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554.US.105 | Petitioner Metropolitan Life Insurance Company (MetLife) is an administrator and the insurer of Sears, Roebuck & Company’s long-term disability insurance plan, which is governed by the Employee Retirement Income Security Act of 1974 (ERISA). The plan gives MetLife (as administrator) discretionary authority to determine the validity of an employee’s benefits claim and provides that MetLife (as insurer) will pay the claims. Respondent Wanda Glenn, a Sears employee, was granted an initial 24 months of benefits under the plan following a diagnosis of a heart disorder. MetLife encouraged her to apply for, and she began receiving, Social Security disability benefits based on an agency determination that she could do no work. But when MetLife itself had to determine whether she could work, in order to establish eligibility for extended plan benefits, it found her capable of doing sedentary work and denied her the benefits. Glenn sought federal-court review under ERISA, see 29 U. S. C. §1132(a)(1)(B), but the District Court denied relief. In reversing, the Sixth Circuit used a deferential standard of review and considered it a conflict of interest that MetLife both determined an employee’s eligibility for benefits and paid the benefits out of its own pocket. Based on a combination of this conflict and other circumstances, it set aside MetLife’s benefits denial. Held: 1. Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101, sets out four principles as to the appropriate standard of judicial review under §1132(a)(1)(B): (1) A court should be “guided by principles of trust law,” analogizing a plan administrator to a trustee and considering a benefit determination a fiduciary act, id., at 111–113; (2) trust law principles require de novo review unless a benefits plan provides otherwise, id., at 115; (3) where the plan so provides, by granting “the administrator or fiduciary discretionary authority to determine eligibility,” “a deferential standard of review [is] appropriate,” id., at 111, 115; and (4) if the administrator or fiduciary having discretion “is operating under a conflict of interest, that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion,’ ” id., at 115. Pp. 3–5. 2. A plan administrator’s dual role of both evaluating and paying benefits claims creates the kind of conflict of interest referred to in Firestone. That conclusion is clear where it is the employer itself that both funds the plan and evaluates the claim, but a conflict also exists where, as here, the plan administrator is an insurance company. For one thing, the employer’s own conflict may extend to its selection of an insurance company to administer its plan. For another, ERISA imposes higher-than-marketplace quality standards on insurers, requiring a plan administrator to “discharge [its] duties” in respect to discretionary claims processing “solely in the interests of the [plan’s] participants and beneficiaries,” 29 U. S. C. §1104(a)(1); underscoring the particular importance of accurate claims processing by insisting that administrators “provide a ‘full and fair review’ of claim denials,” Firestone, supra, at 113; and supplementing marketplace and regulatory controls with judicial review of individual claim denials, see §1132(a)(1)(B). Finally, a legal rule that treats insurers and employers alike in respect to the existence of a conflict can nonetheless take account of different circumstances by treating the circumstances as diminishing the conflict’s significance or severity in individual cases. Pp. 5–8. 3. The significance of the conflict of interest factor will depend upon the circumstances of the particular case. Firestone’s “weighed as a ‘factor’ ” language, 489 U. S., at 115, does not imply a change in the standard of review, say, from deferential to de novo. Nor should this Court overturn Firestone by adopting a rule that could bring about near universal de novo review of most ERISA plan claims denials. And it is not necessary or desirable for courts to create special burden-of-proof rules, or other special procedural or evidentiary rules, focused narrowly upon the evaluator/payor conflict. Firestone means what the word “factor” implies, namely, that judges reviewing a benefit denial’s lawfulness may take account of several different considerations, conflict of interest being one. This kind of review is no stranger to the judicial system. Both trust law and administrative law ask judges to determine lawfulness by taking account of several different, often case-specific, factors, reaching a result by weighing all together. Any one factor will act as a tiebreaker when the others are closely balanced. Here, the Sixth Circuit gave the conflict some weight, but focused more heavily on other factors: that MetLife had encouraged Glenn to argue to the Social Security Administration that she could do no work, received the bulk of the benefits of her success in doing so (being entitled to receive an offset from her retroactive Social Security award), and then ignored the agency’s finding in concluding that she could do sedentary work; and that MetLife had emphasized one medical report favoring denial of benefits, had deemphasized other reports suggesting a contrary conclusion, and had failed to provide its independent vocational and medical experts with all of the relevant evidence. These serious concerns, taken together with some degree of conflicting interests on MetLife’s part, led the court to set aside MetLife’s discretionary decision. There is nothing improper in the way this review was conducted. Finally, the Firestone standard’s elucidation does not consist of detailed instructions, because there “are no talismanic words that can avoid the process of judgment.” Universal Camera Corp. v. NLRB, 340 U. S. 474, 489. Pp. 8–13. 461 F. 3d 660, affirmed. Breyer, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Alito, JJ., joined, and in which Roberts, C. J., joined as to all but Part IV. Roberts, C. J., filed an opinion concurring in part and concurring in the judgment. Kennedy, J., filed an opinion concurring in part and dissenting in part. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. | The Employee Retirement Income Security Act of 1974 (ERISA) permits a person denied benefits under an employee benefit plan to challenge that denial in federal court. 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq.; see §1132(a)(1)(B). Often the entity that administers the plan, such as an employer or an insurance company, both determines whether an employee is eligible for benefits and pays benefits out of its own pocket. We here decide that this dual role creates a conflict of interest; that a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits; and that the significance of the factor will depend upon the circumstances of the particular case. See Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101, 115 (1989). I Petitioner Metropolitan Life Insurance Company (MetLife) serves as both an administrator and the insurer of Sears, Roebuck & Company’s long-term disability insurance plan, an ERISA-governed employee benefit plan. See App. 182a–183a; 29 U. S. C. §1003. The plan grants MetLife (as administrator) discretionary authority to determine whether an employee’s claim for benefits is valid; it simultaneously provides that MetLife (as insurer) will itself pay valid benefit claims. App. 181a–182a. Respondent Wanda Glenn, a Sears employee, was diagnosed with severe dilated cardiomyopathy, a heart condition whose symptoms include fatigue and shortness of breath. She applied for plan disability benefits in June 2000, and MetLife concluded that she met the plan’s standard for an initial 24 months of benefits, namely, that she could not “perform the material duties of [her] own job.” Id., at 159a–160a. MetLife also directed Glenn to a law firm that would assist her in applying for federal Social Security disability benefits (some of which MetLife itself would be entitled to receive as an offset to the more generous plan benefits). In April 2002, an Administrative Law Judge found that Glenn’s illness prevented her not only from performing her own job but also “from performing any jobs [for which she could qualify] existing in significant numbers in the national economy.” App. to Pet. for Cert. 49a; see also 20 CFR §404.1520(g) (2007). The Social Security Administration consequently granted Glenn permanent disability payments retroactive to April 2000. Glenn herself kept none of the backdated benefits: three-quarters went to MetLife, and the rest (plus some additional money) went to the lawyers. To continue receiving Sears plan disability benefits after 24 months, Glenn had to meet a stricter, Social-Security-type standard, namely, that her medical condition rendered her incapable of performing not only her own job but of performing “the material duties of any gainful occupation for which” she was “reasonably qualified.” App. 160a. MetLife denied Glenn this extended benefit because it found that she was “capable of performing full time sedentary work.” Id., at 31a. After exhausting her administrative remedies, Glenn brought this federal lawsuit, seeking judicial review of MetLife’s denial of benefits. See 29 U. S. C. §1132(a)(1)(B); 461 F. 3d 660, 665 (CA6 2006). The District Court denied relief. Glenn appealed to the Court of Appeals for the Sixth Circuit. Because the plan granted MetLife “discretionary authority to … determine benefits,” the Court of Appeals reviewed the administrative record under a deferential standard. Id., at 666. In doing so, it treated “as a relevant factor” a “conflict of interest” arising out of the fact that MetLife was “authorized both to decide whether an employee is eligible for benefits and to pay those benefits.” Ibid. The Court of Appeals ultimately set aside MetLife’s denial of benefits in light of a combination of several circumstances: (1) the conflict of interest; (2) MetLife’s failure to reconcile its own conclusion that Glenn could work in other jobs with the Social Security Administration’s conclusion that she could not; (3) MetLife’s focus upon one treating physician report suggesting that Glenn could work in other jobs at the expense of other, more detailed treating physician reports indicating that she could not; (4) MetLife’s failure to provide all of the treating physician reports to its own hired experts; and (5) MetLife’s failure to take account of evidence indicating that stress aggravated Glenn’s condition. See id., at 674. MetLife sought certiorari, asking us to determine whether a plan administrator that both evaluates and pays claims operates under a conflict of interest in making discretionary benefit determinations. The Solicitor General suggested that we also consider “ ‘how’ ” any such conflict should “ ‘be taken into account on judicial review of a discretionary benefit determination.’ ” Brief for United States as Amicus Curiae on Pet. for Cert. 22. We agreed to consider both questions. See 552 U. S. __ (2008). II In Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101, this Court addressed “the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators under” §1132(a)(1)(B), the ERISA provision at issue here. Id., at 105; see also id., at 108. Firestone set forth four principles of review relevant here. (1) In “determining the appropriate standard of review,” a court should be “guided by principles of trust law”; in doing so, it should analogize a plan administrator to the trustee of a common-law trust; and it should consider a benefit determination to be a fiduciary act (i.e., an act in which the administrator owes a special duty of loyalty to the plan beneficiaries). Id., at 111–113. See also Aetna Health Inc. v. Davila, 542 U. S. 200, 218 (2004); Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559, 570 (1985). (2) Principles of trust law require courts to review a denial of plan benefits “under a de novo standard” unless the plan provides to the contrary. Firestone, 489 U. S., at 115; see also id., at 112 (citing, inter alia, 3 A. Scott & W. Fratcher, Law of Trusts §201, p. 221 (4th ed. 1988); G. Bogert & G. Bogert, Law of Trusts and Trustees §559, pp. 162–168 (2d rev. ed. 1980) (hereinafter Bogert); 1 Restatement (Second) of Trusts §201, Comment b (1957) (hereinafter Restatement)). (3) Where the plan provides to the contrary by granting “the administrator or fiduciary discretionary authority to determine eligibility for benefits,” Firestone, 489 U. S., at 115 (emphasis added), “[t]rust principles make a deferential standard of review appropriate,” id., at 111 (citing Restatement §187 (abuse-of-discretion standard); Bogert §560, at 193–208; emphasis added). (4) If “a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘factor in determining whether there is an abuse of discretion.’ ” Firestone, supra, at 115 (quoting Restatement §187, Comment d; emphasis added; alteration omitted). The questions before us, while implicating the first three principles, directly focus upon the application and the meaning of the fourth. III The first question asks whether the fact that a plan administrator both evaluates claims for benefits and pays benefits claims creates the kind of “conflict of interest” to which Firestone’s fourth principle refers. In our view, it does. That answer is clear where it is the employer that both funds the plan and evaluates the claims. In such a circumstance, “every dollar provided in benefits is a dollar spent by … the employer; and every dollar saved … is a dollar in [the employer’s] pocket.” Bruch v. Firestone Tire & Rubber Co., 828 F. 2d 134, 144 (CA3 1987). The employer’s fiduciary interest may counsel in favor of granting a borderline claim while its immediate financial interest counsels to the contrary. Thus, the employer has an “interest … conflicting with that of the beneficiaries,” the type of conflict that judges must take into account when they review the discretionary acts of a trustee of a common-law trust. Restatement §187, Comment d; see also Firestone, supra, at 115 (citing that Restatement comment); cf. Black’s Law Dictionary 319 (8th ed. 2004) (“conflict of interest” is a “real or seeming incompatibility between one’s private interests and one’s public or fiduciary duties”). Indeed, Firestone itself involved an employer who administered an ERISA benefit plan and who both evaluated claims and paid for benefits. See 489 U. S., at 105. And thus that circumstance quite possibly was what the Court had in mind when it mentioned conflicted administrators. See id., at 115. The Firestone parties, while disagreeing about other matters, agreed that the dual role created a conflict of interest of some kind in the employer. See Brief for Petitioners 6–7, 27–29, Brief for Respondents 9, 26, and Brief for United States as Amicus Curiae 22, in Firestone Tire & Rubber Co. v. Bruch, O. T. 1988, No. 87–1054. MetLife points out that an employer who creates a plan that it will both fund and administer foresees, and implicitly approves, the resulting conflict. But that fact cannot change our conclusion. At trust law, the fact that a settlor (the person establishing the trust) approves a trustee’s conflict does not change the legal need for a judge later to take account of that conflict in reviewing the trustee’s discretionary decisionmaking. See Restatement §107, Comment f (discretionary acts of trustee with settlor-approved conflict subject to “careful scrutiny”); id., §107, Comment f, Illustration 1 (conflict is “a factor to be considered by the court in determining later whether” there has been an “abuse of discretion”); id., §187, Comment d (same); 3 A. Scott, W. Fratcher, & M. Ascher, Scott and Ascher on Trusts §18.2, pp. 1342–1343 (5th ed. 2007) (hereinafter Scott) (same). See also, e.g., Bogert §543, at 264 (rev. 2d ed. 1993) (settlor approval simply permits conflicted individual to act as a trustee); id., §543(U), at 422–431 (same); Scott §17.2.11, at 1136–1139 (same). MetLife also points out that we need not follow trust law principles where trust law is “inconsistent with the language of the statute, its structure, or its purposes.” Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 447 (1999) (internal quotation marks omitted). MetLife adds that to find a conflict here is inconsistent (1) with ERISA’s efforts to avoid complex review proceedings, see Varity Corp. v. Howe, 516 U. S. 489, 497 (1996); (2) with Congress’ efforts not to deter employers from setting up benefit plans, see ibid., and (3) with an ERISA provision specifically allowing employers to administer their own plans, see 29 U. S. C. §1108(c)(3). But we cannot find in these considerations any significant inconsistency. As to the first, we note that trust law functions well with a similar standard. As to the second, we have no reason, empirical or otherwise, to believe that our decision will seriously discourage the creation of benefit plans. As to the third, we have just explained why approval of a conflicted trustee differs from review of that trustee’s conflicted decisionmaking. As to all three taken together, we believe them outweighed by “Congress’ desire to offer employees enhanced protection for their benefits.” Varity, supra, at 497 (discussing “competing congressional purposes” in enacting ERISA). The answer to the conflict question is less clear where (as here) the plan administrator is not the employer itself but rather a professional insurance company. Such a company, MetLife would argue, likely has a much greater incentive than a self-insuring employer to provide accurate claims processing. That is because the insurance company typically charges a fee that attempts to account for the cost of claims payouts, with the result that paying an individual claim does not come to the same extent from the company’s own pocket. It is also because the marketplace (and regulators) may well punish an insurance company when its products, or ingredients of its products, fall below par. And claims processing, an ingredient of the insurance company’s product, falls below par when it seeks a biased result, rather than an accurate one. Why, MetLife might ask, should one consider an insurance company inherently more conflicted than any other market participant, say, a manufacturer who might earn more money in the short run by producing a product with poor quality steel or a lawyer with an incentive to work more slowly than necessary, thereby accumulating more billable hours? Conceding these differences, we nonetheless continue to believe that for ERISA purposes a conflict exists. For one thing, the employer’s own conflict may extend to its selection of an insurance company to administer its plan. An employer choosing an administrator in effect buys insurance for others and consequently (when compared to the marketplace customer who buys for himself) may be more interested in an insurance company with low rates than in one with accurate claims processing. Cf. Langbein, Trust Law as Regulatory Law, 101 Nw. U. L. Rev. 1315, 1323–1324 (2007) (observing that employees are rarely involved in plan negotiations). For another, ERISA imposes higher-than-marketplace quality standards on insurers. It sets forth a special standard of care upon a plan administrator, namely, that the administrator “discharge [its] duties” in respect to discretionary claims processing “solely in the interests of the participants and beneficiaries” of the plan, §1104(a)(1); it simultaneously underscores the particular importance of accurate claims processing by insisting that administrators “provide a ‘full and fair review’ of claim denials,” Firestone, 489 U. S., at 113 (quoting §1133(2)); and it supplements marketplace and regulatory controls with judicial review of individual claim denials, see §1132(a)(1)(B). Finally, a legal rule that treats insurance company administrators and employers alike in respect to the existence of a conflict can nonetheless take account of the circumstances to which MetLife points so far as it treats those, or similar, circumstances as diminishing the significance or severity of the conflict in individual cases. See Part IV, infra. IV We turn to the question of “how” the conflict we have just identified should “be taken into account on judicial review of a discretionary benefit determination.” 552 U. S. __ (2008). In doing so, we elucidate what this Court set forth in Firestone, namely, that a conflict should “be weighed as a ‘factor in determining whether there is an abuse of discretion.’ ” 489 U. S., at 115 (quoting Restatement §187, Comment d; alteration omitted). We do not believe that Firestone’s statement implies a change in the standard of review, say, from deferential to de novo review. Trust law continues to apply a deferential standard of review to the discretionary decisionmaking of a conflicted trustee, while at the same time requiring the reviewing judge to take account of the conflict when determining whether the trustee, substantively or procedurally, has abused his discretion. See Restatement §187, Comments d–j; id., §107, Comment f; Scott §18.2, at 1342–1344. We see no reason to forsake Firestone’s reliance upon trust law in this respect. See 489 U. S., at 111–115. Nor would we overturn Firestone by adopting a rule that in practice could bring about near universal review by judges de novo—i.e., without deference—of the lion’s share of ERISA plan claims denials. See Brief for America’s Health Insurance Plans et al. as Amici Curiae 3–4 (many ERISA plans grant discretionary authority to administrators that combine evaluation and payment functions). Had Congress intended such a system of review, we believe it would not have left to the courts the development of review standards but would have said more on the subject. See Firestone, supra, at 109 (“ERISA does not set out the appropriate standard of review for actions under §1132(a)(1)(B)”); compare, e.g., C. Gresenz et al., A Flood of Litigation? 8 (1999), http://www.rand.org/pubs/ issue_papers/2006/IP184.pdf (all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (estimating that 1.9 million beneficiaries of ERISA plans have health care claims denied each year), with Caseload of Federal Courts Remains Steady Overall (Mar. 11, 2008), http://www.uscourts.gov/Press_Releases/2008/ caseload.cfm (257,507 total civil filings in federal court in 2007); cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”). Neither do we believe it necessary or desirable for courts to create special burden-of-proof rules, or other special procedural or evidentiary rules, focused narrowly upon the evaluator/payor conflict. In principle, as we have said, conflicts are but one factor among many that a reviewing judge must take into account. Benefits decisions arise in too many contexts, concern too many circumstances, and can relate in too many different ways to conflicts—which themselves vary in kind and in degree of seriousness—for us to come up with a one-size-fits-all procedural system that is likely to promote fair and accurate review. Indeed, special procedural rules would create further complexity, adding time and expense to a process that may already be too costly for many of those who seek redress. We believe that Firestone means what the word “factor” implies, namely, that when judges review the lawfulness of benefit denials, they will often take account of several different considerations of which a conflict of interest is one. This kind of review is no stranger to the judicial system. Not only trust law, but also administrative law, can ask judges to determine lawfulness by taking account of several different, often case-specific, factors, reaching a result by weighing all together. See Restatement §187, Comment d; cf., e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 415–417 (1971) (review of governmental decision for abuse of discretion); Universal Camera Corp. v. NLRB, 340 U. S. 474 (1951) (review of agency factfinding). In such instances, any one factor will act as a tiebreaker when the other factors are closely balanced, the degree of closeness necessary depending upon the tiebreaking factor’s inherent or case-specific importance. The conflict of interest at issue here, for example, should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration. See Langbein, supra, at 1317–1321 (detailing such a history for one large insurer). It should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances, or by imposing management checks that penalize inaccurate decisionmaking irrespective of whom the inaccuracy benefits. See Herzel & Colling, The Chinese Wall and Conflict of Interest in Banks, 34 Bus. Law 73, 114 (1978) (recommending interdepartmental information walls to reduce bank conflicts); Brief for Blue Cross and Blue Shield Association as Amicus Curiae 15 (suggesting that insurers have incentives to reward claims processors for their accuracy); cf. generally J. Mashaw, Bureaucratic Justice (1983) (discussing internal controls as a sound method of producing administrative accuracy). The Court of Appeals’ opinion in the present case illustrates the combination-of-factors method of review. The record says little about MetLife’s efforts to assure accurate claims assessment. The Court of Appeals gave the conflict weight to some degree; its opinion suggests that, in context, the court would not have found the conflict alone determinative. See 461 F. 3d, at 666, 674. The court instead focused more heavily on other factors. In particular, the court found questionable the fact that MetLife had encouraged Glenn to argue to the Social Security Administration that she could do no work, received the bulk of the benefits of her success in doing so (the remainder going to the lawyers it recommended), and then ignored the agency’s finding in concluding that Glenn could in fact do sedentary work. See id., at 666–669. This course of events was not only an important factor in its own right (because it suggested procedural unreasonableness), but also would have justified the court in giving more weight to the conflict (because MetLife’s seemingly inconsistent positions were both financially advantageous). And the court furthermore observed that MetLife had emphasized a certain medical report that favored a denial of benefits, had deemphasized certain other reports that suggested a contrary conclusion, and had failed to provide its independent vocational and medical experts with all of the relevant evidence. See id., at 669–674. All these serious concerns, taken together with some degree of conflicting interests on MetLife’s part, led the court to set aside MetLife’s discretionary decision. See id., at 674–675. We can find nothing improper in the way in which the court conducted its review. Finally, we note that our elucidation of Firestone’s standard does not consist of a detailed set of instructions. In this respect, we find pertinent this Court’s comments made in a somewhat different context, the context of court review of agency factfinding. See Universal Camera Corp., supra. In explaining how a reviewing court should take account of the agency’s reversal of its own examiner’s factual findings, this Court did not lay down a detailed set of instructions. It simply held that the reviewing judge should take account of that circumstance as a factor in determining the ultimate adequacy of the record’s support for the agency’s own factual conclusion. Id., at 492–497. In so holding, the Court noted that it had not enunciated a precise standard. See, e.g., id., at 493. But it warned against creating formulas that will “falsif[y] the actual process of judging” or serve as “instrument[s] of futile casuistry.” Id., at 489. The Court added that there “are no talismanic words that can avoid the process of judgment.” Ibid. It concluded then, as we do now, that the “[w]ant of certainty” in judicial standards “partly reflects the intractability of any formula to furnish definiteness of content for all the impalpable factors involved in judicial review.” Id., at 477. We affirm the decision of the Court of Appeals. It is so ordered. |
554.US.527 | Under the Mobile-Sierra doctrine, the Federal Energy Regulatory Commission (FERC) must presume that the electricity rate set in a freely negotiated wholesale-energy contract meets the “just and reasonable” requirement of the Federal Power Act (FPA), see 16 U. S. C. §824d(a), and the presumption may be overcome only if FERC concludes that the contract seriously harms the public interest. See United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332; FPC v. Sierra Pacific Power Co., 350 U. S. 348. Under FERC’s current regulatory regime, a wholesale electricity seller may file a “market-based” tariff, which simply states that the utility will enter into freely negotiated contracts with purchasers. Those contracts are not filed with FERC before they go into effect. In 2000 and 2001, there was a dramatic increase in the price of electricity in the western United States. As a result, respondents entered into long-term contracts with petitioners that locked in rates that were very high by historical standards. Respondents subsequently asked FERC to modify the contracts, contending that the rates should not be presumed just and reasonable under Mobile-Sierra. The Administrative Law Judge concluded that the presumption applied and that the contracts did not seriously harm the public interest. FERC affirmed, but the Ninth Circuit remanded. The court held that contract rates are presumptively reasonable only where FERC has had an initial opportunity to review the contracts without applying the Mobile-Sierra presumption and therefore that the presumption should not apply to contracts entered into under “market-based” tariffs. The court alternatively held that there is a different standard for overcoming the Mobile-Sierra presumption when a purchaser challenges a contract: whether the contract exceeds a “zone of reasonableness.” Held: 1. The Commission was required to apply the Mobile-Sierra presumption in evaluating the contracts here. Sierra held that a rate set out in a contract must be presumed to be just and reasonable absent serious harm to the public interest, regardless of when the contract is challenged. FPC v. Texaco Inc., 417 U. S. 380, distinguished. Also, the Ninth Circuit’s rule requiring FERC to ask whether a contract was formed in an environment of market “dysfunction” is not supported by this Court’s cases and plainly undermines the role of contracts in the FPA’s statutory scheme. Pp. 15–19. 2. The Ninth Circuit’s “zone of reasonableness” test fails to accord an adequate level of protection to contracts. The standard for a buyer’s rate-increase challenge must be the same, generally, as the standard for a seller’s challenge: The contract rate must seriously harm the public interest. The Ninth Circuit misread Sierra in holding that the standard for evaluating a high-rate challenge and setting aside a contract rate is whether consumers’ electricity bills were higher than they would have been had the contract rates equaled “marginal cost.” Under the Mobile-Sierra presumption, setting aside a contract rate requires a finding of “unequivocal public necessity,” Permian Basin Area Rate Cases, 390 U. S. 747, 822, or “extraordinary circumstances,” Arkansas Louisiana Gas Co. v. Hall, 453 U. S. 571, 582. Pp. 19–23. 3. The judgment below is nonetheless affirmed on alternative grounds, based on two defects in FERC’s analysis. First, the analysis was flawed or incomplete to the extent FERC looked simply to whether consumers’ rates increased immediately upon conclusion of the relevant contracts, rather than determining whether the contracts imposed an excessive burden “down the line,” relative to the rates consumers could have obtained (but for the contracts) after elimination of the dysfunctional market. Sierra’s “excessive burden” on customers was the current burden, not just the burden imposed at the contract’s outset. See 350 U. S., at 355. Second, it is unclear from FERC’s orders whether it found respondents’ evidence inadequate to support their claim that petitioners engaged in unlawful market manipulation that altered the playing field for contract negotiations. In such a case, the Commission should not presume that a contract is just and reasonable. Like fraud and duress, unlawful market activity directly affecting contract negotiations eliminates the premise on which the Mobile-Sierra presumption rests: that the contract rates are the product of fair, arms-length negotiations. On remand, FERC should amplify or clarify its findings on these two points. Pp. 23–26. 471 F. 3d 1053, affirmed and remanded. Scalia, J., delivered the opinion of the Court, in which Kennedy, Thomas, and Alito, JJ., joined, and in which Ginsburg, J., joined as to Part III. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Souter, J., joined. Roberts, C. J., and Breyer, J., took no part in the consideration or decision of the cases. * Together with No. 06–1462, American Electric Power Service Corp. et al. v. Public Utility District No. 1 of Snohomish County et al., also on certiorari to the same court. | Under the Mobile-Sierra doctrine, the Federal Energy Regulatory Commission (FERC or Commission) must presume that the rate set out in a freely negotiated wholesale-energy contract meets the “just and reasonable” requirement imposed by law. The presumption may be overcome only if FERC concludes that the contract seriously harms the public interest. These cases present two questions about the scope of the Mobile-Sierra doctrine: First, does the presumption apply only when FERC has had an initial opportunity to review a contract rate without the presumption? Second, does the presumption impose as high a bar to challenges by purchasers of wholesale electricity as it does to challenges by sellers? I A Statutory Background The Federal Power Act (FPA), 41 Stat. 1063, as amended, gives the Commission[Footnote 1] the authority to regulate the sale of electricity in interstate commerce—a market historically characterized by natural monopoly and therefore subject to abuses of market power. See 16 U. S. C. §824 et seq. Modeled on the Interstate Commerce Act, the FPA requires regulated utilities to file compilations of their rate schedules, or “tariffs,” with the Commission, and to provide service to electricity purchasers on the terms and prices there set forth. §824d(c). Utilities wishing to change their tariffs must notify the Commission 60 days before the change is to go into effect. §824d(d). Unlike the Interstate Commerce Act, however, the FPA also permits utilities to set rates with individual electricity purchasers through bilateral contracts. §824d(c), (d). As we have explained elsewhere, the FPA “departed from the scheme of purely tariff-based regulation and acknowledged that contracts between commercial buyers and sellers could be used in ratesetting.” Verizon Communications Inc. v. FCC, 535 U. S. 467, 479 (2002). Like tariffs, contracts must be filed with the Commission before they go into effect. 16 U. S. C. §824d(c), (d). The FPA requires all wholesale-electricity rates to be “just and reasonable.” §824d(a). When a utility files a new rate with the Commission, through a change to its tariff or a new contract, the Commission may suspend the rate for up to five months while it investigates whether the rate is just and reasonable. §824d(e). The Commission may, however, decline to investigate and permit the rate to go into effect—which does not amount to a determination that the rate is “just and reasonable.” See 18 CFR §35.4 (2007). After a rate goes into effect, whether or not the Commission deemed it just and reasonable when filed, the Commission may conclude, in response to a complaint or on its own motion, that the rate is not just and reasonable and replace it with a lawful rate. 16 U. S. C. §824e(a) (2000 ed., Supp. V). The statutory requirement that rates be “just and reasonable” is obviously incapable of precise judicial definition, and we afford great deference to the Commission in its rate decisions. See FPC v. Texaco Inc., 417 U. S. 380, 389 (1974); Permian Basin Area Rate Cases, 390 U. S. 747, 767 (1968). We have repeatedly emphasized that the Commission is not bound to any one ratemaking formula. See Mobil Oil Exploration & Producing Southeast, Inc. v. United Distribution Cos., 498 U. S. 211, 224 (1991); Permian Basin, supra, at 776–777. But FERC must choose a method that entails an appropriate “balancing of the investor and the consumer interests.” FPC v. Hope Natural Gas Co., 320 U. S. 591, 603 (1944). In exercising its broad discretion, the Commission traditionally reviewed and set tariff rates under the “cost-of-service” method, which ensures that a seller of electricity recovers its costs plus a rate of return sufficient to attract necessary capital. See J. McGrew, Federal Energy Regulatory Commission 152, 160–161 (2003) (hereinafter McGrew). In two cases decided on the same day in 1956, we addressed the authority of the Commission to modify rates set bilaterally by contract rather than unilaterally by tariff. In United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, we rejected a natural-gas utility’s argument that the Natural Gas Act’s requirement that it file all new rates with the Commission authorized it to abrogate a lawful contract with a purchaser simply by filing a new tariff, see id., at 336–337. The filing requirement, we explained, is merely a precondition to changing a rate, not an authorization to change rates in violation of a lawful contract (i.e., a contract that sets a just and reasonable rate). See id., at 339–344. In FPC v. Sierra Pacific Power Co., 350 U. S. 348, 352–353 (1956), we applied the holding of Mobile to the analogous provisions of the FPA, concluding that the complaining utility could not supersede a contract rate simply by filing a new tariff. In Sierra, however, the Commission had concluded not only (contrary to our holding) that the newly filed tariff superseded the contract, but also that the contract rate itself was not just and reasonable, “solely because it yield[ed] less than a fair return on the net invested capital” of the utility. Id., at 355. Thus, we were confronted with the question of how the Commission may evaluate whether a contract rate is just and reasonable. We answered that question in the following way: “[T]he Commission’s conclusion appears on its face to be based on an erroneous standard… . [W]hile it may be that the Commission may not normally impose upon a public utility a rate which would produce less than a fair return, it does not follow that the public utility may not itself agree by contract to a rate affording less than a fair return or that, if it does so, it is entitled to be relieved of its improvident bargain… . In such circumstances the sole concern of the Commission would seem to be whether the rate is so low as to adversely affect the public interest—as where it might impair the financial ability of the public utility to continue its service, cast upon other consumers an excessive burden, or be unduly discriminatory.” Id., at 354–355 (emphasis deleted). As we said in a later case, “[t]he regulatory system created by the [FPA] is premised on contractual agreements voluntarily devised by the regulated companies; it contemplates abrogation of these agreements only in circumstances of unequivocal public necessity.” Permian Basin, supra, at 822. Over the past 50 years, decisions of this Court and the Courts of Appeals have refined the Mobile-Sierra presumption to allow greater freedom of contract. In United Gas Pipe Line Co. v. Memphis Light, Gas and Water Div., 358 U. S. 103, 110–113 (1958), we held that parties could contract out of the Mobile-Sierra presumption by specifying in their contracts that a new rate filed with the Commission would supersede the contract rate. Courts of Appeals have held that contracting parties may also agree to a middle option between Mobile-Sierra and Memphis Light: A contract that does not allow the seller to supersede the contract rate by filing a new rate may nonetheless permit the Commission to set aside the contract rate if it results in an unfair rate of return, not just if it violates the public interest. See, e.g., Papago Tribal Util. Auth. v. FERC, 723 F. 2d 950, 953 (CADC 1983); Louisiana Power & Light Co. v. FERC, 587 F. 2d 671, 675–676 (CA5 1979). Thus, as the Mobile-Sierra doctrine has developed, regulated parties have retained broad authority to specify whether FERC can review a contract rate solely for whether it violates the public interest or also for whether it results in an unfair rate of return. But the Mobile-Sierra presumption remains the default rule. Moreover, even though the challenges in Mobile and Sierra were brought by sellers, lower courts have concluded that the Mobile-Sierra presumption also applies where a purchaser, rather than a seller, asks FERC to modify a contract. See Potomac Elec. Power Co. v. FERC, 210 F. 3d 403, 404–405, 409–410 (CADC 2000); Boston Edison Co. v. FERC, 856 F. 2d 361, 372 (CA1 1988). This Court has seemingly blessed that conclusion, explaining that under the FPA, “[w]hen commercial parties … avail themselves of rate agreements, the principal regulatory responsibility [is] not to relieve a contracting party of an unreasonable rate.” Verizon, 535 U. S., at 479 (citing Sierra, supra, at 355). Over the years, the Commission began to refer to the two modes of review—one with the Mobile-Sierra presumption and the other without—as the “public interest standard” and the “just and reasonable standard.” See, e.g., Southern Co. Servs., Inc. Gulf States Utils. Co. v. Southern Co. Servs., Inc., 39 FERC ¶63,026, pp. 65,134, 65,141 (1987). Decisions from the Courts of Appeals did likewise. See, e.g., Kansas Cities v. FERC, 723 F. 2d 82, 87–88 (CADC 1983); Northeast Utils. Serv. Co. v. FERC, 993 F. 2d 937, 961 (CA1 1993). We do not take this nomenclature to stand for the obviously indefensible proposition that a standard different from the statutory just-and-reasonable standard applies to contract rates. Rather, the term “public interest standard” refers to the differing application of that just-and-reasonable standard to contract rates. See Philadelphia Elec. Co., 58 F. P. C. 88, 90 (1977). (It would be less confusing to adopt the Solicitor General’s terminology, referring to the two differing applications of the just-and-reasonable standard as the “ordinary” “just and reasonable standard” and the “public interest standard.” See Reply Brief for Respondent FERC 6.) B Recent FERC Innovations; Market-Based Tariffs In recent decades, the Commission has undertaken an ambitious program of market-based reforms. Part of the impetus for those changes was technological evolution. Historically, electric utilities had been vertically integrated monopolies. For a particular geographic area, a single utility would control the generation of electricity, its transmission, and its distribution to consumers. See Midwest ISO Transmission Owners v. FERC, 373 F. 3d 1361, 1363 (CADC 2004). Since the 1970’s, however, engineering innovations have lowered the cost of generating electricity and transmitting it over long distances, enabling new entrants to challenge the regional generating monopolies of traditional utilities. See generally New York v. FERC, 535 U. S. 1, 7–8 (2002); Public Util. Dist. No. 1 of Snohomish Cty. v. FERC, 272 F. 3d 607, 610 (CADC 2001). To take advantage of these changes, the Commission has attempted to break down regulatory and economic barriers that hinder a free market in wholesale electricity. It has sought to promote competition in those areas of the industry amenable to competition, such as the segment that generates electric power, while ensuring that the segment of the industry characterized by natural monopoly—namely, the transmission grid that conveys the generated electricity—cannot exert monopolistic influence over other areas. See New York, supra, at 9–10; Snohomish, supra. To that end, FERC required in Order No. 888 that each transmission provider offer transmission service to all customers on an equal basis by filing an “open access transmission tariff.” Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities, 61 Fed. Reg. 21540 (1996); see New York, supra, at 10–12. That requirement prevents the utilities that own the grid from offering more favorable transmission terms to their own affiliates and thereby extending their monopoly power to other areas of the industry. To further pry open the wholesale-electricity market and to reduce technical inefficiencies caused when different utilities operate different portions of the grid independently, the Commission has encouraged transmission providers to establish “Regional Transmission Organizations”—entities to which transmission providers would transfer operational control of their facilities for the purpose of efficient coordination. Order No. 2000, 65 Fed. Reg. 810, 811–812 (2000); see Midwest ISO, supra, at 1364. It has encouraged the management of those entities by “Independent System Operators,” not-for-profit entities that operate transmission facilities in a nondiscriminatory manner. See Midwest ISO, supra. In addition to coordinating transmission service, Regional Transmission Organizations perform other functions, such as running auction markets for electricity sales and offering contracts for hedging against potential grid congestion. See Blumsack, Measuring the Benefits and Costs of Regional Electric Grid Integration, 28 Energy L. J. 147, 147 (2007). Against this backdrop of technological change and market-based reforms, the Commission over the past two decades has begun to permit sellers of wholesale electricity to file “market-based” tariffs. These tariffs, instead of setting forth rate schedules or rate-fixing contracts, simply state that the seller will enter into freely negotiated contracts with purchasers. See generally Market-Based Rates For Wholesale Sales Of Electric Energy, Capacity And Ancillary Services By Public Utilities, Order No. 697, 72 Fed. Reg. 39904 (2007) (hereinafter Market-Based Rates); McGrew 160–167. FERC does not subject the contracts entered into under these tariffs (as it subjected traditional wholesale-power contracts) to §824d’s requirement of immediate filing, apparently on the theory that the requirement has been satisfied by the initial filing of the market-based tariffs themselves. See Brief for Respondent FERC 28–29 (hereinafter Brief for FERC). FERC will grant approval of a market-based tariff only if a utility demonstrates that it lacks or has adequately mitigated market power, lacks the capacity to erect other barriers to entry, and has avoided giving preferences to its affiliates. See Market-Based Rates, ¶7, 72 Fed. Reg. 39907. In addition to the initial authorization of a market-based tariff, FERC imposes ongoing reporting requirements. A seller must file quarterly reports summarizing the contracts that it has entered into, even extremely short-term contracts. See California ex rel. Lockyer v. FERC, 383 F. 3d 1006, 1013 (CA9 2004). It must also demonstrate every four months that it still lacks or has adequately mitigated market power. See ibid. If FERC determines from these filings that a seller has reattained market power, it may revoke the authority prospectively. See Market-Based Rates, ¶5, 72 Fed. Reg. 39906. And if the Commission finds that a seller has violated its Regional Transmission Organization’s market rules, its tariff, or Commission orders, the Commission may take appropriate remedial action, such as ordering refunds, requiring disgorgement of profits, and imposing civil penalties. See ibid. Both the Ninth Circuit and the D. C. Circuit have generally approved FERC’s scheme of market-based tariffs. See Lockyer, supra, at 1011–1013; Louisiana Energy & Power Auth. v. FERC, 141 F. 3d 364, 365 (CADC 1998). We have not hitherto approved, and express no opinion today, on the lawfulness of the market-based-tariff system, which is not one of the issues before us. It suffices for the present cases to recognize that when a seller files a market-based tariff, purchasers no longer have the option of buying electricity at a rate set by tariff and contracts no longer need to be filed with FERC (and subjected to its investigatory power) before going into effect. C California’s Electricity Regulation and Its Consequences In 1996, California enacted Assembly Bill 1890 (AB 1890), which massively restructured the California electricity market. See 1996 Cal. Stat. ch. 854 (codified at Cal. Pub. Util. Code Ann. §§330–398.5 (West 2004 and Supp. 2008)); see generally Cudahy, Whither Deregulation: A Look at the Portents, 58 N. Y. U. Annual Survey of Am. Law 155, 172–185 (2001) (hereinafter Cudahy). The bill transferred operational control of the transmission facilities of California’s three largest investor-owned utilities to an Independent Service Operator (Cal-ISO). See Pacific Gas & Elec. Co. v. FERC, 464 F. 3d 861, 864 (CA9 2006). It also established the California Power Exchange (CalPX), a nonprofit entity that operated a short-term market—or “spot market”—for electricity. The bill required California’s three largest investor-owned utilities to divest most of their electricity-generation facilities. It then required those utilities to purchase and sell the bulk of their electricity from and to the CalPX’s spot market, permitting only limited leeway for them to enter into long-term contracts. See Public Util. Dist. No. 1 of Snohomish Cty. v. FERC, 471 F. 3d 1053, 1068 (CA9 2006) (case below). In 1997, FERC approved the Cal-ISO as consistent with the requirements for an Independent Service Operator established in Order No. 888. FERC also approved the CalPX and the investor-owned utilities’ authority to make sales at market-based rates in the CalPX, finding that, in light of the divesture of their generation units and other conditions imposed under the restructuring plan, those utilities had adequately mitigated their market power. See Pacific Gas & Elec. Co., 81 FERC ¶61,122, pp. 61,435, 61,435–61,436, 61,537–61,548 (1997). The CalPX opened for business in March 1998. In the summer of 1999, it expanded to include an auction for sales of electricity under “forward contracts”—contracts in which sellers promise to deliver electricity more than one day in the future (sometimes many years). But the participation of California’s large investor-owned utilities in that forward market was limited because, as we have said, AB 1890 strictly capped the amount of power that they could purchase outside of the spot market. See 471 F. 3d, at 1068. That diminishment of the role of long-term contracts in the California electricity market turned out to be one of the seeds of an energy crisis. In the summer of 2000, the price of electricity in the CalPX’s spot market jumped dramatically—more than fifteenfold. See ibid. The increase was the result of a combination of natural, economic, and regulatory factors: “flawed market rules; inadequate addition of generating facilities in the preceding years; a drop in available hydropower due to drought conditions; a rupture of a major pipeline supplying natural gas into California; strong growth in the economy and in electricity demand; unusually high temperatures; an increase in unplanned outages of extremely old generating facilities; and market manipulation.” CAlifornians for Renewable Energy, Inc. v. Sellers of Energy and Ancillary Servs., 119 FERC ¶61,058, pp. 61,243, 61,246 (2007). Because California’s investor-owned utilities had for the most part been forbidden to obtain their power through long-term contracts, the turmoil in the spot market hit them hard. See Cudahy 174. The high prices led to rolling blackouts and saddled utilities with mounting debt. In late 2000, the Commission took action. A central plank of its emergency effort was to eliminate the utilities’ reliance on the CalPX’s spot market and to shift their purchases to the forward market. To that end, FERC abolished the requirement that investor-owned utilities purchase and sell all power through the CalPX and encouraged them to enter into long-term contracts. See San Diego Gas & Electric Co. v. Sellers of Energy and Ancillary Servs., 93 FERC ¶61,294, pp. 61,980, 61,982 (2000); see also 471 F. 3d, at 1069. The Commission also put price caps on wholesale electricity. See San Diego Gas & Elec. Co. v. Sellers of Energy and Ancillary Servs., 95 FERC ¶61,418, p. 62,545 (2001). By June 2001, electricity prices began to decline to normal levels. Id., at 62,456. D Genesis of These Cases The principal respondents in these cases are western utilities that purchased power under long-term contracts during that tumultuous period in 2000 and 2001. Although they are not located in California, the high prices in California spilled over into other Western States. See 471 F. 3d, at 1069. Petitioners are the sellers that entered into the contracts with respondents. The contracts between the parties included rates that were very high by historical standards. For example, respondent Snohomish signed a 9-year contract to purchase electricity from petitioner Morgan Stanley at a rate of $105/megawatt hour (MWh), whereas prices in the Pacific Northwest have historically averaged $24/MWh. The contract prices were substantially lower, however, than the prices that Snohomish would have paid in the spot market during the energy crisis, when prices peaked at $3,300/MWh. See id., at 1069–1070. After the crisis had passed, buyer’s remorse set in and respondents asked FERC to modify the contracts. They contended that the rates in the contracts should not be presumed to be just and reasonable under Mobile-Sierra because, given the sellers’ market-based tariffs, the contracts had never been initially approved by the Commission without the presumption. See Nevada Power Co. v. Enron Power Marketing, Inc., 103 FERC ¶61,353, pp. 62,382, 62,387 (2003). Respondents also argued that contract modification was warranted even under the Mobile-Sierra presumption because the contract rates were so high that they violated the public interest. See 103 FERC, at 62,383, 62,387–62,395. In a preliminary order, the Commission instructed the Administrative Law Judge (ALJ) to consider 12 different factors in deciding whether the presumption could be overcome for the contracts, such as the terms of the contracts, the available alternatives at the time of sale, the relationship of the rates to Commission benchmarks, the effect of the contracts on the financial health of the purchasers, and the impact of contract modification on national energy markets. After a hearing, the ALJ concluded that the Mobile-Sierra presumption should apply to the contracts and that the contracts did not seriously harm the public interest. In fact, according to the ALJ, even if the Mobile-Sierra presumption did not apply, respondents would not be entitled to have the contracts modified. 103 FERC, at 62,390–62,394. Between the ALJ’s decision and the Commission’s ruling, the Commission’s staff issued a report (Staff Report) concluding that unlawful activities of various sellers in the spot market had affected prices in the forward market. See id., at 62,396. Respondents raised the report at oral argument before the Commission, and some of them argued that petitioners “were unlawfully manipulating market prices, thereby engaging in fraud and deception in violation of their market-based rate tariffs.” Ibid. Petitioners contended, however, that the Staff Report demonstrated only a correlation between rates in the spot and forward markets, not a causal connection. See ibid. FERC affirmed the ALJ. The Commission first held that the Mobile-Sierra presumption did apply to the contracts at issue. Although agreeing with respondents that the presumption applies only where FERC has had an initial opportunity to review a contract rate, the Commission relied on the somewhat metaphysical ground that the grant of market-based authority to petitioners qualified as that initial opportunity. See 103 FERC, at 62,388–62,389. The Commission then held that respondents could not overcome the Mobile-Sierra presumption. It recognized that the Staff Report had “found that spot market distortions flowed through to forward power prices,” 103 FERC, at 62,396–62,397, but concluded that this finding, even if true, was not “determinative” because: “a finding that the unjust and unreasonable spot market caused forward bilateral prices to be unjust and unreasonable would be relevant to contract modification only where there is a ‘just and reasonable’ standard of review… . Under the ‘public interest’ standard, to justify contract modification it is not enough to show that forward prices became unjust and unreasonable due to the impact of spot market dysfunctions; it must be shown that the rates, terms and conditions are contrary to the public interest.” Id., at 62,397. The Commission determined that under the factors identified in Sierra, as well as under a totality-of-the-circumstances test, respondents had not demonstrated that the contracts threatened the public interest. See 103 FERC, at 62,397–62,399. On rehearing, respondents reiterated their complaints, including their charge that “their contracts were the product of market manipulation by Enron, Morgan Stanley and other [sellers].” 105 FERC ¶61,185, pp. 61,979, 61,989 (2003). The Commission answered that there was “no evidence to support a finding of market manipulation that specifically affected the contracts at issue.” Ibid. Respondents filed petitions for review in the Ninth Circuit, which granted the petitions and remanded to the Commission, finding two flaws in the Commission’s analysis.[Footnote 2] First, the court agreed with respondents that rates set by contract (whether pursuant to a market-based tariff or not) are presumptively reasonable only where FERC has had an initial opportunity to review the contracts without applying the Mobile-Sierra presumption. To satisfy that prerequisite under the market-based tariff regime, the court said, the Commission must promptly review the terms of contracts after their formation and must modify those that do not appear to be just and reasonable when evaluated without the Mobile-Sierra presumption (rather than merely revoking market-based authority prospectively but leaving pre-existing contracts intact). See 471 F. 3d, at 1075–1077, 1079–1085. This initial review must include an inquiry into “the market conditions in which the contracts at issue were formed,” and market “dysfunction” is a ground for finding a contract not to be just and reasonable. Id., at 1085–1087. Second, the Ninth Circuit held that even assuming that the Mobile-Sierra presumption applied, the standard for overcoming that presumption is different for a purchaser’s challenge to a contract, namely, whether the contract rate exceeds a “zone of reasonableness.” 471 F. 3d, at 1088–1090. We granted certiorari. See 551 U. S. ___ (2007). II A Application of Mobile-Sierra Presumption to Contracts Concluded under Market-Based Rate Authority As noted earlier, the FERC order under review here agreed with the Ninth Circuit’s premise that the Commission must have an initial opportunity to review a contract without the Mobile-Sierra presumption, but maintained that the authorization for market-based rate authority qualified as that initial review. Before this Court, however, FERC changes its tune, arguing that there is no such prerequisite—or at least that FERC could reasonably conclude so and therefore that Chevron deference is in order. See Brief for FERC 20–21, 33–34; Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). We will not uphold a discretionary agency decision where the agency has offered a justification in court different from what it provided in its opinion. See SEC v. Chenery Corp., 318 U. S. 80, 94–95 (1943). But FERC has lucked out: The Chenery doctrine has no application to these cases, because we conclude that the Commission was required, under our decision in Sierra, to apply the Mobile-Sierra presumption in its evaluation of the contracts here. That it provided a different rationale for the necessary result is no cause for upsetting its ruling. “To remand would be an idle and useless formality. Chenery does not require that we convert judicial review of agency action into a ping-pong game.” NLRB v. Wyman-Gordon Co., 394 U. S. 759, 766–767, n. 6 (1969) (plurality opinion). We are in broad agreement with the Ninth Circuit on a central premise: There is only one statutory standard for assessing wholesale electricity rates, whether set by contract or tariff—the just-and-reasonable standard. The plain text of the FPA states that “[a]ll rates … shall be just and reasonable.” 16 U. S. C. §824d(a); see also §824e(a) (2000 ed., Supp. V). But we disagree with the Ninth Circuit’s interpretation of Sierra as requiring (contrary to the statute) that the Commission apply the standard differently, depending on when a contract rate is challenged. In the Ninth Circuit’s view, Sierra was premised on the idea that “as long as the rate was just and reasonable when the contract was formed, there would be a presumption…that the reasonableness continued throughout the term of the contract.” 471 F. 3d, at 1077. In other words, so long as the Commission concludes (either after a hearing or by allowing a rate to go into effect) that a contract rate is just and reasonable when initially filed, the rate will be presumed just and reasonable in future proceedings. That is a misreading of Sierra. Sierra was grounded in the commonsense notion that “[i]n wholesale markets, the party charging the rate and the party charged [are] often sophisticated businesses enjoying presumptively equal bargaining power, who could be expected to negotiate a ‘just and reasonable’ rate as between the two of them.” Verizon, 535 U. S., at 479. Therefore, only when the mutually agreed-upon contract rate seriously harms the consuming public may the Commission declare it not to be just and reasonable.[Footnote 3] Sierra thus provided a definition of what it means for a rate to satisfy the just-and-reasonable standard in the contract context—a definition that applies regardless of when the contract is reviewed. The Ninth Circuit, by contrast, essentially read Sierra “as the equivalent of an estoppel doctrine,” whereby an initial Commission opportunity for review prevents the Commission from modifying the rates absent serious future harm to the public interest. Tewksbury & Lim, Applying the Mobile-Sierra Doctrine to Market-Based Rate Contracts, 26 Energy L. J. 437, 457–458 (2005). But Sierra said nothing of the sort. And given that the Commission’s passive permission for a rate to go into effect does not constitute a finding that the rate is just and reasonable, it would be odd to treat that initial “opportunity for review” as curtailing later challenges. The Ninth Circuit found support for its prerequisite in our decision in FPC v. Texaco Inc., 417 U. S. 380 (1974). In that case, we warned that the Commission’s attempt to rely solely on market forces to evaluate rates charged by small natural-gas producers was inconsistent with the Natural Gas Act’s insistence that rates be just and reasonable. See id., at 397. The Ninth Circuit apparently took this to mean that all initially filed contracts must be subject to review without the Mobile-Sierra presumption. But Texaco had nothing to do with that doctrine. It held that the Commission had improperly implemented a scheme of total deregulation by applying no standard of review at all to small-producer rates. See 417 U. S., at 395–397. It did not cast doubt on the proposition that in a proper regulatory scheme, the ordinary mode for evaluating contractually set rates is to look to whether the rates seriously harm the public interest, not to whether they are unfair to one of the parties that voluntarily assented to the contract. Cf. id., at 391, n. 4. Nor do we agree with the Ninth Circuit that FERC must inquire into whether a contract was formed in an environment of market “dysfunction” before applying the Mobile-Sierra presumption. Markets are not perfect, and one of the reasons that parties enter into wholesale-power contracts is precisely to hedge against the volatility that market imperfections produce. That is why one of the Commission’s responses to the energy crisis was to remove regulatory barriers to long-term contracts. It would be a perverse rule that rendered contracts less likely to be enforced when there is volatility in the market. (Such a rule would come into play, after all, only when a contract formed in a period of “dysfunction” did not significantly harm the consuming public, since contracts that seriously harm the public should be set aside even under the Mobile-Sierra presumption.) By enabling sophisticated parties who weathered market turmoil by entering long-term contracts to renounce those contracts once the storm has passed, the Ninth Circuit’s holding would reduce the incentive to conclude such contracts in the future. Such a rule has no support in our case law and plainly undermines the role of contracts in the FPA’s statutory scheme. To be sure, FERC has ample authority to set aside a contract where there is unfair dealing at the contract formation stage—for instance, if it finds traditional grounds for the abrogation of the contract such as fraud or duress. See 103 FERC, at 62,399–62,400 (“[T]here is no evidence of unfairness, bad faith, or duress in the original negotiations”). In addition, if the “dysfunctional” market conditions under which the contract was formed were caused by illegal action of one of the parties, FERC should not apply the Mobile-Sierra presumption. See Part III, infra. But the mere fact that the market is imperfect, or even chaotic, is no reason to undermine the stabilizing force of contracts that the FPA embraced as an alternative to “purely tariff-based regulation.” Verizon, 535 U. S., at 479. We may add that evaluating market “dysfunction” is a very difficult and highly speculative task—not one that the FPA would likely require the agency to engage in before holding sophisticated parties to their bargains. We reiterate that we do not address the lawfulness of FERC’s market-based-rates scheme, which assuredly has its critics. But any needed revision in that scheme is properly addressed in a challenge to the scheme itself, not through a disfigurement of the venerable Mobile-Sierra doctrine. We hold only that FERC may abrogate a valid contract only if it harms the public interest. B Application of “Excessive Burden” Exception to High-Rate Challenges We turn now to the Ninth Circuit’s second holding: that a “zone of reasonableness” test should be used to evaluate a buyer’s challenge that a rate is too high. In our view that fails to accord an adequate level of protection to contracts. The standard for a buyer’s challenge must be the same, generally speaking, as the standard for a seller’s challenge: The contract rate must seriously harm the public interest. That is the standard that the Commission applied in the proceedings below. We are again in agreement with the Ninth Circuit on a starting premise: It is clear that the three factors we identified in Sierra—“where [a rate] might impair the financial ability of the public utility to continue its service, cast upon other consumers an excessive burden, or be unduly discriminatory,” 350 U. S., at 355—are not all precisely applicable to the high-rate challenge of a purchaser (where, for example, the relevant question is not whether “other customers” [of the utility] would be excessively burdened, but whether any customers of the purchaser would be); and that those three factors are in any event not the exclusive components of the public interest. In its decision below, the Commission recognized both these realities. See 103 FERC, at 62,397 (“Nevada Companies failed to show that the contract terms at issue impose an excessive burden on their customers” (emphasis added)); id., at 62,398 (“The record also demonstrates that Snohomish presented no evidence that its contract with Morgan Stanley adversely affected Snohomish or its ratepayers” (emphasis added)); id., at 62,398–62,399 (evaluating the “totality of circumstances”); see also Brief for FERC 41–42.[Footnote 4] Where we disagree with the Ninth Circuit is on the overarching “zone of reasonableness” standard it established for evaluating a high-rate challenge and setting aside a contract rate: whether consumers’ electricity bills “are higher than they would otherwise have been had the challenged contracts called for rates within the just and reasonable range,” i.e., rates that equal “marginal cost.”[Footnote 5] 471 F. 3d, at 1089. The Ninth Circuit derived this test from our statement in Sierra that a contract rate would have to be modified if it were so low that it imposed an “excessive burden” on other wholesale purchasers. The Ninth Circuit took “excessive burden” to mean merely the burden caused when one set of consumers is forced to pay above marginal cost to compensate for below-marginal-cost rates charged other consumers. See 471 F. 3d, at 1088. And it proceeded to apply a similar notion of “excessive burden” to high-rate challenges (where all the burden of the above-marginal-cost contract rate falls on the purchaser’s own customers, and does not affect the customers of third parties). Id., at 1089. That is a misreading of Sierra and our later cases. A presumption of validity that disappears when the rate is above marginal cost is no presumption of validity at all, but a reinstitution of cost-based rather than contract-based regulation. We have said that, under the Mobile-Sierra presumption, setting aside a contract rate requires a finding of “unequivocal public necessity,” Permian Basin, 390 U. S., at 822, or “extraordinary circumstances,” Arkansas Louisiana Gas Co. v. Hall, 453 U. S. 571, 582 (1981). In no way can these descriptions be thought to refer to the mere exceeding of marginal cost. The Ninth Circuit’s standard would give short shrift to the important role of contracts in the FPA, as reflected in our decision in Sierra, and would threaten to inject more volatility into the electricity market by undermining a key source of stability. The FPA recognizes that contract stability ultimately benefits consumers, even if short-term rates for a subset of the public might be high by historical standards—which is why it permits rates to be set by contract and not just by tariff. As the Commission has recently put it, its “first and foremost duty is to protect consumers from unjust and unreasonable rates; however, … uncertainties regarding rate stability and contract sanctity can have a chilling effect on investments and a seller’s willingness to enter into long-term contracts and this, in turn, can harm customers in the long run.” Market-Based Rates, ¶6, 72 Fed. Reg. 33906–33907. Besides being wrong in principle, in its practical effect the Ninth Circuit’s rule would impose an onerous new burden on the Commission, requiring it to calculate the marginal cost of the power sold under a market-based contract. Assuming that FERC even ventured to undertake such an analysis, rather than reverting to the ancien régime of cost-of-service ratesetting, the regulatory costs would be enormous. We think that the FPA intended to reserve the Commission’s contract-abrogation power for those extraordinary circumstances where the public will be severely harmed.[Footnote 6] III Defects in FERC’s Analysis Supporting Remand Despite our significant disagreement with the Ninth Circuit, we find two errors in the Commission’s analysis, and we therefore affirm the judgment below on alternative grounds. First, it appears, as the Ninth Circuit concluded, see 471 F. 3d, at 1090, that the Commission may have looked simply to whether consumers’ rates increased immediately upon the relevant contracts’ going into effect, rather than determining whether the contracts imposed an excessive burden on consumers “down the line,” relative to the rates they could have obtained (but for the contracts) after elimination of the dysfunctional market. For example, the Commission concluded that two of the respondents would experience “rate decreases of approximately 20 percent for retail service” during the period covered by the contracts. 103 FERC, at 62,397. But the baseline for that computation was the rate they were paying before the contracts went into effect. That disparity is certainly a relevant consideration; but so is the disparity between the contract rate and the rates consumers would have paid (but for the contracts) further down the line, when the open market was no longer dysfunctional. That disparity, past a certain point, could amount to an “excessive burden.” That is what was contemplated by Sierra, which involved a challenge 5 years into a 15-year contract. The “excessive burden” on other customers to which the opinion referred was assuredly the current burden, and not only the burden imposed at the very outset of the contract. See 350 U. S., at 355. The “unequivocal public necessity” that justifies overriding the Mobile-Sierra presumption does not disappear as a factor once the contract enters into force. Thus, FERC’s analysis on this point was flawed—or at least incomplete. As the Ninth Circuit put it, “[i]t is entirely possible that rates had increased so high during the energy crises because of dysfunction in the spot market that, even with the acknowledged decrease in rates, consumers still paid more under the forward contracts than they otherwise would have.” 471 F. 3d, at 1090. If that is so, and if that increase is so great that, even taking into account the desirability of fostering market-stabilizing long-term contracts, the rates impose an excessive burden on consumers or otherwise seriously harm the public interest, the rates must be disallowed. Second, respondents alleged before FERC that some of the petitioners in these cases had engaged in market manipulation in the spot market. See, e.g., 105 FERC, at 61,989 (“Snohomish and Nevada Companies argue that their contracts were the product of market manipulation by Enron, Morgan Stanley and other Respondents, which, as established by the Commission Staff, engaged in market manipulation”). The Staff Report concluded, as we have said, that the abnormally high prices in the spot market during the energy crisis influenced the terms of contracts in the forward market. But the Commission dismissed the relevance of the Staff Report on the ground that it had not demonstrated that forward market prices were so high as to overcome the Mobile-Sierra presumption. We conclude, however, that if it is clear that one party to a contract engaged in such extensive unlawful market manipulation as to alter the playing field for contract negotiations, the Commission should not presume that the contract is just and reasonable. Like fraud and duress, unlawful market activity that directly affects contract negotiations eliminates the premise on which the Mobile-Sierra presumption rests: that the contract rates are the product of fair, arms-length negotiations. The mere fact that the unlawful activity occurred in a different (but related) market does not automatically establish that it had no effect upon the contract—especially given the Staff Report’s (unsurprising) finding that high prices in the one market produced high prices in the other. We are unable to determine from the Commission’s orders whether it found the evidence inadequate to support the claim that respondents’ alleged unlawful activities affected the contracts at issue here. It said in its order on rehearing, 105 FERC, at 61,989, that “[w]e … found no evidence to support a finding of market manipulation [by respondents] that specifically affected the contracts at issue.” But perhaps that must be read in light of the Commission’s above described rejection of the Staff Report on the ground that high spot market prices caused by manipulation are irrelevant unless the forward market prices fail the Mobile-Sierra standard; and in light of the statement in its initial order, in apparent response to the claim of spot-market manipulation by respondents, 103 FERC, at 62,397, that “a finding that the unjust and unreasonable spot market prices caused forward bilateral prices to be unjust and unreasonable would be relevant to contract modification only where there is a ‘just and reasonable’ standard of review.” We emphasize that the mere fact of a party’s engaging in unlawful activity in the spot market does not deprive its forward contracts of the benefit of the Mobile-Sierra presumption. There is no reason why FERC should be able to abrogate a contract on these grounds without finding a causal connection between unlawful activity and the contract rate. Where, however, causality has been established, the Mobile-Sierra presumption should not apply. On remand, the Commission should amplify or clarify its findings on these two points. The judgment of the Court of Appeals is affirmed, and the cases are remanded for proceedings consistent with this opinion. It is so ordered. The Chief Justice and Justice Breyer took no part in the consideration or decision of these cases. Footnote 1 We also use “Commission” to refer to the Federal Power Commission, FERC’s predecessor. Footnote 2 In a holding not challenged before this Court, the Ninth Circuit concluded that the contracts at issue did not contain “Memphis clause[s],” 471 F. 3d 1053, 1079 (2006) (citing United Gas Pipe Line Co. v. Memphis Light, Gas and Water Div., 358 U. S. 103 (1958)), see supra, at 5, that would have precluded application of the Mobile-Sierra presumption. Footnote 3 We do not say, as the dissent alleges, post, at 7 (opinion of Stevens, J.), that the public interest is not also relevant in a challenge to unilaterally set rates. But it is the “ ‘sole concern’ ” in a contract case. See FPC v. Sierra Pacific Power Co., 350 U. S. 348, 355 (1956). Footnote 4 The dissent criticizes the Commission’s decision because it took into account under the heading “totality of the circumstances” only the circumstances of the contract formation, not “circumstances exogenous to contract negotiations, including natural disasters and market manipulation by entities not parties to the challenged contract.” Post, at 13. Those considerations are relevant to whether the contracts impose an “excessive burden” on consumers relative to what they would have paid absent the contracts. It is precisely our uncertainty whether the Commission considered those “circumstances exogenous to contract negotiations,” discussed in Part III of our opinion, that causes us to approve the remand to FERC. Footnote 5 Elsewhere the Ninth Circuit softened this standard somewhat, saying that “[e]ven if a particular rate exceeds marginal cost … it may still be within this reasonable range—or ‘zone of reasonableness’—if that higher-than-cost-based price results from normal market forces and is part of a general trend toward rates that do reflect cost.” 471 F. 3d, at 1089. We are not sure (and we think no one can be sure) precisely what this means. It has no basis in our opinions, and is in any event wrong because its point of departure (the general principle that rates cannot exceed marginal cost) contradicts Mobile-Sierra. The Ninth Circuit purported to find support for its “zone of reasonableness” test in the case law of the District of Columbia Circuit. But the cited case stands only for the proposition that a market-based scheme must assure that market forces will, “over the long pull,” cause rates to approximate marginal cost. Interstate Natural Gas Assn. of Am. v. FERC, 285 F. 3d 18, 31 (2002). Nowhere does the opinion suggest that the standard for reforming a particular contract validly entered into under a market-based scheme is whether the rates approximate marginal cost. By the same token, our approval of FERC’s decision not to set prospective area rates solely with reference to pre-existing contract prices, Permian Basin Area Rate Cases, 390 U. S. 747, 792–793 (1968), does not support, as the dissent thinks, post, at 8, n. 2, the view that the standard for abrogating an existing, valid contract is anything less than the Mobile-Sierra standard. That is the standard Permian Basin applied when actually confronted with the issue of contract modification. See 390 U. S., at 781–784, 821–822. Footnote 6 The dissent claims that we have misread the FPA because its provisions “do not distinguish between rates set unilaterally by tariff and rates set bilaterally by contract.” Post, at 2. But the dissent’s interpretation, whatever plausibility it has as an original matter, cannot be squared with Sierra, which plainly distinguished between unilaterally and bilaterally set rates, and said that the only relevant consideration for the Commission in the latter case is whether the public interest is harmed. And the circumstances identified in Sierra as implicating the public interest refer to something more than a small dent in the consumer’s pocket, which is why our subsequent cases have described the standard as a high one. At the end of the day, the dissent simply argues against the settled understanding of the FPA that has prevailed in this Court, lower courts, and the Commission for half a century. Although the dissent is correct that we have never used the phrase “Mobile-Sierra doctrine” in our cases, that is probably because the understanding of it was so uniform that no circuit split concerning its meaning arose until the Ninth Circuit’s erroneous decision in these cases. If one searches the Commission’s reports, over 600 decisions since 2000 alone have cited the doctrine, see Brief for Electric Power Supply Association et al. as Amici Curiae 15, and the Courts of Appeals have used the term “Mobile-Sierra doctrine” (or “Sierra-Mobile” doctrine) over 75 times since 1974. If there were ever a context where long-settled understanding should be honored it is here, where a statutory decision (subject to revision by Congress) has been understood the same way for many years by lower courts, by this Court, by the federal agency the statute governs, and hence surely by the private actors trying to observe the law. |
553.US.674 | The Multinational Force–Iraq (MNF–I) is an international coalition force composed of 26 nations, including the United States. It operates in Iraq under the unified command of U. S. military officers, at the Iraqi Government’s request, and in accordance with United Nations Security Council Resolutions. Pursuant to the U. N. mandate, MNF–I forces detain individuals alleged to have committed hostile or warlike acts in Iraq, pending investigation and prosecution in Iraqi courts under Iraqi law. Shawqi Omar and Mohammad Munaf (hereinafter petitioners) are American citizens who voluntarily traveled to Iraq and allegedly committed crimes there. They were each captured by military forces operating as part of the MNF–I; given hearings before MNF–I Tribunals composed of American officers, who concluded that petitioners posed threats to Iraq’s security; and placed in the custody of the U. S. military operating as part of the MNF-I. Family members filed next-friend habeas corpus petitions on behalf of both petitioners in the United States District Court for the District of Columbia. In Omar’s case, after the Department of Justice informed Omar that the MNF–I had decided to refer him to the Central Criminal Court of Iraq for criminal proceedings, his attorney sought and obtained a preliminary injunction from the District Court barring Omar’s removal from United States or MNF-I custody. Affirming, the D. C. Circuit first upheld the District Court’s exercise of habeas jurisdiction, finding that Hirota v. MacArthur, 338 U. S. 197, did not preclude review because Omar, unlike the habeas petitioners in Hirota, had yet to be convicted by a foreign tribunal. Meanwhile, the District Court in Munaf’s case dismissed his habeas petition for lack of jurisdiction. The court concluded that Hirota controlled and required that the petition be dismissed for lack of jurisdiction because the American forces holding Munaf were operating as part of an international force—the MNF-I. The D. C. Circuit agreed and affirmed. It distinguished its prior decision in Omar, which upheld jurisdiction over Omar’s habeas petition, on the grounds that Munaf had been convicted by a foreign tribunal while Omar had not. Held: 1. The habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command. The Government’s argument that the federal courts lack jurisdiction over the detainees’ habeas petitions in such circumstances because the American forces holding Omar and Munaf operate as part of a multinational force is rejected. The habeas statute, 28 U. S. C. §2241(c)(1), applies to persons held “in custody under or by color of the authority of the United States.” The disjunctive “or” in §2241(c)(1) makes clear that actual Government custody suffices for jurisdiction, even if that custody could be viewed as “under … color of” another authority, such as the MNF–I. The Court also rejects the Government’s contention that the District Court lacks jurisdiction in these cases because the multinational character of the MNF–I, like the multinational character of the tribunal at issue in Hirota, means that the MNF-I is not a United States entity subject to habeas. The present cases differ from Hirota in several respects. The Court in Hirota may have found it significant, in considering the nature of the tribunal established by General MacArthur, that in that case the Government argued that General MacArthur was not subject to United States authority, that his duty was to obey the Far Eastern Commission and not the U. S. War Department, and that no process this Court could issue would have any effect on his action. Here, in contrast, the Government acknowledges that U. S. military commanders answer to the President. These cases also differ from Hirota in that they concern American citizens, and the Court has indicated that habeas jurisdiction can depend on citizenship. See e.g., Johnson v. Eisentrager, 339 U. S. 763, 781. Pp. 7–11. 2. Federal district courts, however, may not exercise their habeas jurisdiction to enjoin the United States from transferring individuals alleged to have committed crimes and detained within the territory of a foreign sovereign to that sovereign for criminal prosecution. Because petitioners state no claim in their habeas petitions for which relief can be granted, their habeas petitions should have been promptly dismissed, and no injunction should have been entered. Pp. 11–28. (a) The District Court abused its discretion in granting Omar a preliminary injunction, which the D. C. Circuit interpreted as prohibiting the Government from (1) transferring Omar to Iraqi custody, (2) sharing with the Iraqi Government details concerning any decision to release him, and (3) presenting him to the Iraqi courts for investigation and prosecution, without even considering the merits of the habeas petition. A preliminary injunction is an “extraordinary and drastic remedy.” It should never be awarded as of right, Yakus v. United States, 321 U. S. 414, 440, and requires a demonstration of, inter alia, “a likelihood of success on the merits,” Gonzales v. O Centro Espírita Beneficente Uniăo do Vegetal, 546 U. S. 418, 428. But neither the District Court nor the D. C. Circuit considered the likelihood of success as to the merits of Omar’s habeas petition. Instead, the lower courts concluded that the “jurisdictional issues” implicated by Omar’s petition presented difficult and substantial questions. A difficult question as to jurisdiction is, of course, no reason to grant a preliminary injunction. The foregoing analysis would require reversal and remand in each of these cases: The lower courts in Munaf erred in dismissing for want of jurisdiction, and the lower courts in Omar erred in issuing and upholding the preliminary injunction. Our review of a preliminary injunction, however, “is not confined to the act of granting the injunctio[n].” City and County of Denver v. New York Trust Co., 229 U. S. 123, 136. Rather, a reviewing court has the power on appeal from an interlocutory order “to examine the merits of the case … and upon deciding them in favor of the defendant to dismiss the bill.” North Carolina R. Co. v. Story, 268 U. S. 288, 292. In short, there are occasions when it is appropriate for a court reviewing a preliminary injunction to proceed to the merits; given that the present cases implicate sensitive foreign policy issues in the context of ongoing military operations, this is one of them. Pp. 11–14. (b) Petitioners argue that they are entitled to habeas relief because they have a legally enforceable right not to be transferred to Iraqi authorities for criminal proceedings and because they are innocent civilians unlawfully detained by the Government. With respect to the transfer claim, they request an injunction prohibiting the Government from transferring them to Iraqi custody. With respect to the unlawful detention claim, they seek release but only to the extent it would not result in unlawful transfer to Iraqi custody. Because both requests would interfere with Iraq’s sovereign right to “punish offenses against its laws committed within its borders,” Wilson v. Girard, 354 U. S. 524, 529, petitioners’ claims do not state grounds upon which habeas relief may be granted. Their habeas petitions should have been promptly dismissed and no injunction should have been entered. Pp. 14–28. (1) Habeas is governed by equitable principles. Thus, prudential concerns may “require a federal court to forgo the exercise of its habeas … power.” Francis v. Henderson, 425 U. S. 536, 539. Here, the unusual nature of the relief sought by petitioners suggests that habeas is not appropriate. Habeas is at its core a remedy for unlawful executive detention. Hamdi v. Rumsfeld, 542 U. S. 507, 536. The typical remedy is, of course, release. See, e.g., Preiser v. Rodriguez, 411 U. S. 475, 484. But the habeas petitioners in these cases do not want simple release; that would expose them to apprehension by Iraqi authorities for criminal prosecution—precisely what they went to federal court to avoid. The habeas petitioners do not dispute that they voluntarily traveled to Iraq, that they remain detained within the sovereign territory of Iraq today, or that they are alleged to have committed serious crimes in Iraq. Indeed, Omar and Munaf both concede that, if they were not in MNF–I custody, Iraq would be free to arrest and prosecute them under Iraqi law. Further, Munaf is the subject of ongoing Iraqi criminal proceedings and Omar would be but for the present injunction. Given these facts, Iraq has a sovereign right to prosecute them for crimes committed on its soil, even if its criminal process does not come with all the rights guaranteed by the Constitution, see Neely v. Henkel, 180 U. S. 109, 123. As Chief Justice Marshall explained nearly two centuries ago, “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Schooner Exchange v. McFaddon, 7 Cranch 116, 136. This Court has twice applied that principle in rejecting claims that the Constitution precludes the Executive from transferring a prisoner to a foreign country for prosecution in an allegedly unconstitutional trial. Wilson, supra, at 529–530; Neely, supra, at 112–113, 122. Omar and Munaf concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. But habeas corpus does not bar the United States from transferring a prisoner to the sovereign authority he concedes has a right to prosecute him. Petitioners’ “release” claim adds nothing to their “transfer” claim and fails for the same reasons, given that the release they seek is release that would avoid transfer. There is of course even more at issue here: Neely involved a charge of embezzlement and Wilson the peacetime actions of a serviceman. The present cases concern individuals captured and detained within an ally’s territory during ongoing hostilities involving our troops. It would be very odd to hold that the Executive can transfer individuals such as those in the Neely and Wilson cases, but cannot transfer to an ally detainees captured by our Armed Forces for engaging in serious hostile acts against that ally in what the Government refers to as “an active theater of combat.” Pp. 15–23. (2) Petitioners’ allegations that their transfer to Iraqi custody is likely to result in torture are a matter of serious concern but those allegations generally must be addressed by the political branches, not the judiciary. The recognition that it is for the democratically elected branches to assess practices in foreign countries and to determine national policy in light of those assessments is nothing new. As Chief Justice Marshall explained in the Schooner Exchange, “exemptions from territorial jurisdiction . . . must be derived from the consent of the sovereign of the territory” and are “rather questions of policy than of law, … they are for diplomatic, rather than legal discussion.” 7 Cranch, at 143, 146. In the present cases, the Government explains that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result and that the State Department has determined that the Justice Ministry—the department which has authority over Munaf and Omar—as well as its prison and detention facilities, have generally met internationally accepted standards for basic prisoner needs. The judiciary is not suited to second-guess such determinations. Pp. 23–26. (3) Petitioners’ argument that, under Valentine v. United States ex rel. Neidecker, 299 U. S. 5, the Executive lacks discretion to transfer a citizen to Iraqi custody unless “legal authority” to do so “is given by act of Congress or by the terms of a treaty,” id., at 9, is rejected. Valentine was an extradition case; the present cases involve the transfer to a sovereign’s authority of an individual captured and already detained in that sovereign’s territory. Wilson, supra, also forecloses petitioners’ contention. A Status of Forces Agreement there seemed to give the habeas petitioner a right to trial by an American military tribunal, rather than a Japanese court, 354 U. S., at 529, but this Court found no “constitutional or statutory” impediment to the Government’s waiver of its jurisdiction in light of Japan’s sovereign interest in prosecuting crimes committed within its borders, id., at 530. Pp. 26–28. No. 06–1666, 482 F. 3d 582; No. 07–394, 479 F. 3d 1, vacated and remanded. Roberts, C. J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. * Together with No. 07–394, Geren, Secretary of the Army, et al. v. Omar et al., also on certiorari to the same court. | The Multinational Force–Iraq (MNF–I) is an international coalition force operating in Iraq composed of 26 different nations, including the United States. The force operates under the unified command of United States military officers, at the request of the Iraqi Government, and in accordance with United Nations (U. N.) Security Council Resolutions. Pursuant to the U. N. mandate, MNF–I forces detain individuals alleged to have committed hostile or warlike acts in Iraq, pending investigation and prosecution in Iraqi courts under Iraqi law. These consolidated cases concern the availability of habeas corpus relief arising from the MNF–I’s detention of American citizens who voluntarily traveled to Iraq and are alleged to have committed crimes there. We are confronted with two questions. First, do United States courts have jurisdiction over habeas corpus petitions filed on behalf of American citizens challenging their detention in Iraq by the MNF–I? Second, if such jurisdiction exists, may district courts exercise that jurisdiction to enjoin the MNF–I from transferring such individuals to Iraqi custody or allowing them to be tried before Iraqi courts? We conclude that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command, even when those forces are acting as part of a multinational coalition. Under circumstances such as those presented here, however, habeas corpus provides petitioners with no relief. I Pursuant to its U. N. mandate, the MNF–I has “ ‘the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq.’ ” App. G to Pet. for Cert. in 07–394, p. 74a, ¶10 (quoting U. N. Security Council, U. N. Doc. S/Res/1546, ¶10 (June 2004)). To this end, the MNF–I engages in a variety of military and humanitarian activities. The multinational force, for example, conducts combat operations against insurgent factions, trains and equips Iraqi security forces, and aids in relief and reconstruction efforts. MNF–I forces also detain individuals who pose a threat to the security of Iraq. The Government of Iraq retains ultimate responsibility for the arrest and imprisonment of individuals who violate its laws, but because many of Iraq’s prison facilities have been destroyed, the MNF–I agreed to maintain physical custody of many such individuals during Iraqi criminal proceedings. MNF–I forces are currently holding approximately 24,000 detainees. An American military unit, Task Force 134, oversees detention operations and facilities in Iraq, including those located at Camp Cropper, the detention facility currently housing Shawqi Omar and Mohammad Munaf (herein- after petitioners). The unit is under the command of United States military officers who report to General David Petraeus. A Petitioner Shawqi Omar, an American-Jordanian citizen, voluntarily traveled to Iraq in 2002. In October 2004, Omar was captured and detained in Iraq by U. S. military forces operating as part of the MNF–I during a raid of his Baghdad home. Omar is believed to have provided aid to Abu Musab al-Zarqawi—the late leader of al Qaeda in Iraq—by facilitating his group’s connection with other terrorist groups, bringing foreign fighters into Iraq, and planning and executing kidnappings in Iraq. MNF–I searched his home in an effort to capture and detain insurgents who were associated with al-Zarqawi. The raid netted an Iraqi insurgent and four Jordanian fighters along with explosive devices and other weapons. The captured insurgents gave sworn statements implicating Omar in insurgent cell activities. The four Jordanians testified that they had traveled to Iraq with Omar to commit militant acts against American and other Coalition Forces. Each of the insurgents stated that, while living in Omar’s home, they had surveilled potential kidnap victims and conducted weapons training. The insurgents explained that Omar’s fluency in English allowed him to lure foreigners to his home in order to kidnap and sell them for ransom. Following Omar’s arrest, a three-member MNF–I Tribunal composed of American military officers concluded that Omar posed a threat to the security of Iraq and designated him a “security internee.” The tribunal also found that Omar had committed hostile and warlike acts, and that he was an enemy combatant in the war on terrorism. In accordance with Article 5 of the Geneva Convention, Omar was permitted to hear the basis for his deten- tion, make a statement, and call immediately available witnesses. In addition to the review of his detention by the MNF–I Tribunal, Omar received a hearing before the Combined Review and Release Board (CRRB)—a nine-member board composed of six representatives of the Iraqi Government and three MNF–I officers. The CRRB, like the MNF–I Tribunal, concluded that Omar’s continued detention was necessary because he posed a threat to Iraqi security. At all times since his capture, Omar has remained in the custody of the United States military operating as part of the MNF–I. Omar’s wife and son filed a next-friend petition for a writ of habeas corpus on Omar’s behalf in the District Court for the District of Columbia. Omar v. Harvey, 479 F. 3d 1, 4 (CADC 2007). After the Department of Justice informed Omar that the MNF–I had decided to refer him to the Central Criminal Court of Iraq (CCCI) for criminal proceedings, his attorney sought and obtained a preliminary injunction barring Omar’s “remov[al] … from United States or MNF-I custody.” App. to Pet. in No. 07–394, supra, at 59a. The order directed that “the [United States], their agents, servants, employees, confederates, and any persons acting in concert or participation with them, or having actual or implicit knowledge of this Order … shall not remove [Omar] from United States or MNF-I custody, or take any other action inconsistent with this court’s memorandum opinion.” Ibid. The United States appealed and the Court of Appeals for the District of Columbia Circuit affirmed. Omar, 479 F. 3d 1. The Court of Appeals first upheld the District Court’s exercise of habeas jurisdiction, finding that this Court’s decision in Hirota v. MacArthur, 338 U. S. 197 (1948) (per curiam), did not preclude review. The Court of Appeals distinguished Hirota on the ground that Omar, unlike the petitioner in that case, had yet to be convicted by a foreign tribunal. 479 F. 3d, at 7–9. The Court of Appeals recognized, however, that the writ of habeas corpus could not be used to enjoin release. Id., at 11. It therefore construed the injunction only to bar transfer to Iraqi custody and upheld the District Court’s order insofar as it prohibited the United States from: (1) transferring Omar to Iraqi custody, id., at 11–13; (2) sharing details concerning any decision to release Omar with the Iraqi Government, id., at 13; and (3) presenting Omar to the Iraqi Courts for investigation and prosecution, id., at 14. Judge Brown dissented. She joined the panel’s jurisdictional ruling, but would have vacated the injunction because, in her view, the District Court had no authority to enjoin a transfer that would allow Iraqi officials to take custody of an individual captured in Iraq—something the Iraqi Government “undeniably h[ad] a right to do.” Id., at 19. We granted certiorari. 552 U. S. ___ (2007). B Petitioner Munaf, a citizen of both Iraq and the United States, voluntarily traveled to Iraq with several Romanian journalists. He was to serve as the journalists’ translator and guide. Shortly after arriving in Iraq, the group was kidnapped and held captive for two months. After the journalists were freed, MNF–I forces detained Munaf based on their belief that he had orchestrated the kidnappings. A three-judge MNF–I Tribunal conducted a hearing to determine whether Munaf’s detention was warranted. The MNF–I Tribunal reviewed the facts surrounding Munaf’s capture, interviewed witnesses, and considered the available intelligence information. Munaf was present at the hearing and had an opportunity to hear the grounds for his detention, make a statement, and call immediately available witnesses. At the end of the hearing, the tribunal found that Munaf posed a serious threat to Iraqi security, designated him a “security internee,” and referred his case to the CCCI for criminal investigation and prosecution. During his CCCI trial, Munaf admitted on camera and in writing that he had facilitated the kidnapping of the Romanian journalists. He also appeared as a witness against his alleged co-conspirators. Later in the proceedings, Munaf recanted his confession, but the CCCI nonetheless found him guilty of kidnapping. On appeal, the Iraqi Court of Cassation vacated Munaf’s conviction and remanded his case to the CCCI for further investigation. In re Hikmat, No. 19/Pub. Comm’n/2007, p. 5 (Feb. 19, 2008). The Court of Cassation directed that Munaf was to “remain in custody pending the outcome” of further criminal proceedings. Ibid. Meanwhile, Munaf ’s sister filed a next-friend petition for a writ of habeas corpus in the District Court for the District of Columbia. Mohammed v. Harvey, 456 F. Supp. 2d 115, 118 (2006). The District Court dismissed the petition for lack of jurisdiction, finding that this Court’s decision in Hirota controlled: Munaf was “in the custody of coalition troops operating under the aegis of MNF–I, who derive their ultimate authority from the United Nations and the MNF-I member nations acting jointly.” 456 F. Supp. 2d, at 122. The Court of Appeals for the District of Columbia Circuit affirmed. 482 F. 3d 582 (2007) (hereinafter Muraf). The Court of Appeals, “[c]onstrained by precedent,” agreed with the District Court that Hirota controlled and dismissed Munaf’s petition for lack of jurisdiction. 482 F. 3d, at 583. It distinguished the prior opinion in Omar on the ground that Munaf, like the habeas petitioner in Hirota but unlike Omar, had been convicted by a foreign tribunal. 482 F. 3d, at 583–584. Judge Randolph concurred in the judgment. Id., at 585. He concluded that the District Court had improperly dismissed for want of jurisdiction because “Munaf is an American citizen . . . held by American forces overseas.” Ibid. Nevertheless, Judge Randolph would have held that Munaf’s habeas petition failed on the merits. Id., at 586. He relied on this Court’s holding in Wilson v. Girard, 354 U. S. 524, 529 (1957), that a “sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders,” and concluded that the fact that the United States was holding Munaf because of his conviction by a foreign tribunal was conclusive. Ibid.[Footnote 1] We granted certiorari and consolidated the Omar and Munaf cases. 552 U. S. ___ (2007). II The Solicitor General argues that the federal courts lack jurisdiction over the detainees’ habeas petitions because the American forces holding Omar and Munaf operate as part of a multinational force. Brief for Federal Parties 17–36. The habeas statute provides that a federal district court may entertain a habeas application by a person held “in custody under or by color of the authority of the United States,” or “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. §§2241(c)(1), (3). MNF–I forces, the argument goes, “are not operating solely under United States authority, but rather ‘as the agent of’ a multinational force.” Brief for Federal Parties 23 (quoting Hirota, supra, at 198). Omar and Munaf are thus held pursuant to international authority, not “the authority of the United States,” §2241(c)(1), and they are therefore not within the reach of the habeas statute. Brief for Federal Parties 17–18.[Footnote 2] The United States acknowledges that Omar and Munaf are American citizens held overseas in the immediate “ ‘physical custody’ ” of American soldiers who answer only to an American chain of command. Id., at 21. The MNF–I itself operates subject to a unified American command. Id., at 23. “[A]s a practical matter,” the Government concedes, it is “the President and the Pentagon, the Secretary of Defense, and the American commanders that control what … American soldiers do,” Tr. of Oral Arg. 15, including the soldiers holding Munaf and Omar. In light of these admissions, it is unsurprising that the United States has never argued that it lacks the authority to release Munaf or Omar, or that it requires the consent of other countries to do so. We think these concessions the end of the jurisdictional inquiry. The Government’s argument—that the federal courts have no jurisdiction over American citizens held by American forces operating as multinational agents—is not easily reconciled with the text of §2241(c)(1). See Duncan v. Walker, 533 U. S. 167, 172 (2001) (“We begin, as always, with the language of the statute”). That section applies to persons held “in custody under or by color of the authority of the United States.” §2241(c)(1). An individual is held “in custody” by the United States when the United States official charged with his detention has “the power to produce” him. Wales v. Whitney, 114 U. S. 564, 574 (1885); see also §2243 (“The writ . . . shall be directed to the person having custody of the person detained”). The disjunctive “or” in §2241(c)(1) makes clear that actual custody by the United States suffices for jurisdiction, even if that custody could be viewed as “under … color of” another authority, such as the MNF–I. The Government’s primary contention is that the District Courts lack jurisdiction in these cases because of this Court’s decision in Hirota. That slip of a case cannot bear the weight the Government would place on it. In Hirota, Japanese citizens sought permission to file habeas corpus applications directly in this Court. The petitioners were noncitizens detained in Japan. They had been convicted and sentenced by the International Military Tribunal for the Far East—an international tribunal established by General Douglas MacArthur acting, as the Court put it, in his capacity as “the agent of the Allied Powers.” 338 U. S., at 198. Although those familiar with the history of the period would appreciate the possibility of confusion over who General MacArthur took orders from, the Court concluded that the sentencing tribunal was “not a tribunal of the United States.” Ibid. The Court then held that, “[u]nder the foregoing circumstances,” United States courts had “no power or authority to review, to affirm, set aside or annul the judgments and sentences” imposed by that tribunal. Ibid. Accordingly, the Court denied petitioners leave to file their habeas corpus applications, without further legal analysis. Ibid. The Government argues that the multinational character of the MNF–I, like the multinational character of the tribunal at issue in Hirota, means that it too is not a United States entity subject to habeas. Reply Brief for Federal Parties 5–7. In making this claim, the Government acknowledges that the MNF–I is subject to American authority, but contends that the same was true of the tribunal at issue in Hirota. In Hirota, the Government notes, the petitioners were held by the United States Eighth Army, which took orders from General MacArthur, 338 U. S., at 199 (Douglas, J., concurring), and were subject to an “unbroken” chain of U. S. command, ending with the President of the United States, id., at 207. The Court in Hirota, however, may have found it significant, in considering the nature of the tribunal established by General MacArthur, that the Solicitor General expressly contended that General MacArthur, as pertinent, was not subject to United States authority. The facts suggesting that the tribunal in Hirota was subject to an “unbroken” United States chain of command were not among the “foregoing circumstances” cited in the per curiam opinion disposing of the case, id., at 198. They were highlighted only in Justice Douglas’s belated opinion concurring in the result, published five months after that per curiam. Id., at 199, n.*. Indeed, arguing before this Court, Solicitor General Perlman stated that General MacArthur did not serve “under the Joint Chiefs of Staff,” that his duty was “to obey the directives of the Far Eastern Commission and not our War Department,” and that “no process that could be issued from this court … would have any effect on his action.” Tr. of Oral Arg. in Hirota v. MacArthur, O. T. 1948, No. 239, pp. 42, 50, 51. Here, in contrast, the Government acknowledges that our military commanders do answer to the President. Even if the Government is correct that the international authority at issue in Hirota is no different from the international authority at issue here, the present “circumstances” differ in another respect. These cases concern American citizens while Hirota did not, and the Court has indicated that habeas jurisdiction can depend on citizenship. See Johnson v. Eisentrager, 339 U. S. 763, 781 (1950); Rasul v. Bush, 542 U. S. 466, 486 (2004) (Kennedy, J., concurring in judgment). See also Munaf, 482 F. 3d, at 584 (“[W]e do not mean to suggest that we find the logic of Hirota especially clear or compelling, particularly as applied to American citizens”); id., at 585 (Randolph, J., concurring in judgment).[Footnote 3] “Under the foregoing circumstances,” we decline to extend our holding in Hirota to preclude American citizens held overseas by American soldiers subject to a United States chain of command from filing habeas petitions. III We now turn to the question whether United States district courts may exercise their habeas jurisdiction to enjoin our Armed Forces from transferring individuals detained within another sovereign’s territory to that sovereign’s government for criminal prosecution. The nature of that question requires us to proceed “with the circumspection appropriate when this Court is adjudicating issues inevitably entangled in the conduct of our international relations.” Romero v. International Terminal Operating Co., 358 U. S. 354, 383 (1959). Here there is the further consideration that those issues arise in the context of ongoing military operations conducted by American Forces overseas. We therefore approach these questions cognizant that “courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Department of Navy v. Egan, 484 U. S. 518, 530 (1988). In Omar, the District Court granted and the D. C. Circuit upheld a preliminary injunction that, as interpreted by the Court of Appeals, prohibited the United States from (1) effectuating “Omar’s transfer in any form, whether by an official handoff or otherwise,” to Iraqi custody, 479 F. 3d, at 12; (2) sharing details concerning any decision to release Omar with the Iraqi Government, id., at 13; and (3) “presenting Omar to the [Iraqi courts] for trial,” id., at 14. This is not a narrow injunction. Even the habeas petitioners do not defend it in its entirety. They acknowledge the authority of the Iraqi courts to begin criminal proceedings against Omar and wisely concede that any injunction “clearly need not include a bar on ‘information-sharing.’ ” Brief for Habeas Petitioners 61. As Judge Brown noted in her dissent, such a bar would impermissibly “enjoin the United States military from sharing information with an allied foreign sovereign in a war zone.” Omar, supra, at 18. We begin with the basics. A preliminary injunction is an “extraordinary and drastic remedy,” 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948, p. 129 (2d ed. 1995) (hereinafter Wright & Miller) (footnotes omitted); it is never awarded as of right, Yakus v. United States, 321 U. S. 414, 440 (1944). Rather, a party seeking a preliminary injunction must demonstrate, among other things, “a likelihood of success on the merits.” Gonzales v. O Centro Espírita Beneficente Uniăo do Vegetal, 546 U. S. 418, 428 (2006) (citing Mazurek v. Armstrong, 520 U. S. 968, 972 (1997) (per curiam); Doran v. Salem Inn, Inc., 422 U. S. 922, 931 (1975)). But one searches the opinions below in vain for any mention of a likelihood of success as to the merits of Omar’s habeas petition. Instead, the District Court concluded that the “jurisdictional issues” presented questions “so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberative investigation.” Omar v. Harvey, 416 F. Supp. 2d 19, 23–24, 27 (DC 2006) (internal quotation marks omitted; emphasis added). The D. C. Circuit made the same mistake. In that court’s view, the “only question before [it] at th[at] stage of the litigation relate[d] to the district court’s jurisdiction.” 479 F. 3d, at 11. As a result, the Court of Appeals held that it “need not address” the merits of Omar’s habeas claims: those merits had “no relevance.” Ibid. A difficult question as to jurisdiction is, of course, no reason to grant a preliminary injunction. It says nothing about the “likelihood of success on the merits,” other than making such success more unlikely due to potential impediments to even reaching the merits. Indeed, if all a “likelihood of success on the merits” meant was that the district court likely had jurisdiction, then preliminary injunctions would be the rule, not the exception. In light of these basic principles, we hold that it was an abuse of discretion for the District Court to grant a preliminary injunction on the view that the “jurisdictional issues” in Omar’s case were tough, without even considering the merits of the underlying habeas petition. What we have said thus far would require reversal and remand in each of these cases: The lower courts in Munaf erred in dismissing for want of jurisdiction, and the lower courts in Omar erred in issuing and upholding the preliminary injunction. There are occasions, however, when it is appropriate to proceed further and address the merits. This is one of them. Our authority to address the merits of the habeas petitioners’ claims is clear. Review of a preliminary injunction “is not confined to the act of granting the injunctio[n], but extends as well to determining whether there is any insuperable objection, in point of jurisdiction or merits, to the maintenance of [the] bill, and, if so, to directing a final decree dismissing it.” City and County of Denver v. New York Trust Co., 229 U. S. 123, 136 (1913). See also Deckert v. Independence Shares Corp., 311 U. S. 282, 287 (1940) (“ ‘If insuperable objection to maintaining the bill clearly appears, it may be dismissed and the litigation terminated’ ” (quoting Meccano, Ltd. v. John Wanamaker, N. Y., 253 U. S. 136, 141 (1920))). This has long been the rule: “By the ordinary practice in equity as administered in England and this country,” a reviewing court has the power on appeal from an interlocutory order “to examine the merits of the case … and upon deciding them in favor of the defendant to dismiss the bill.” North Carolina R. Co. v. Story, 268 U. S. 288, 292 (1925). Indeed, “[t]he question whether an action should be dismissed for failure to state a claim is one of the most common issues that may be reviewed on appeal from an interlocutory injunction order.” 16 Wright & Miller, Jurisdiction and Related Matters, §3921.1, at 32 (2d ed. 1996). Adjudication of the merits is most appropriate if the injunction rests on a question of law and it is plain that the plaintiff cannot prevail. In such cases, the defendant is entitled to judgment. See, e.g., Deckert, supra, at 287; North Carolina R. Co., supra, at 292; City and County of Denver, supra, at 136. Given that the present cases involve habeas petitions that implicate sensitive foreign policy issues in the context of ongoing military operations, reaching the merits is the wisest course. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 584–585 (1952) (finding the case ripe for merits review on appeal from stay of preliminary injunction). For the reasons we explain below, the relief sought by the habeas petitioners makes clear under our precedents that the power of the writ ought not to be exercised. Because the Government is entitled to judgment as a matter of law, it is appropriate for us to terminate the litigation now. IV The habeas petitioners argue that the writ should be granted in their cases because they have “a legally enforceable right” not to be transferred to Iraqi authority for criminal proceedings under both the Due Process Clause and the Foreign Affairs Reform and Restructuring Act of 1998 (FARR Act), div. G, 112 Stat. 2681–761, and because they are innocent civilians who have been unlawfully detained by the United States in violation of the Due Process Clause. Brief for Habeas Petitioners 48–52. With respect to the transfer claim, petitioners request an injunction prohibiting the United States from transferring them to Iraqi custody. With respect to the unlawful detention claim, petitioners seek “release”—but only to the extent that release would not result in “unlawful” transfer to Iraqi custody. Tr. of Oral Arg. 48. Both of these requests would interfere with Iraq’s sovereign right to “punish offenses against its laws committed within its borders.” Wilson, 354 U. S., at 529. We accordingly hold that the detainees’ claims do not state grounds upon which habeas relief may be granted, that the habeas petitions should have been promptly dismissed, and that no injunction should have been entered. A Habeas corpus is “governed by equitable principles.” Fay v. Noia, 372 U. S. 391, 438 (1963). We have therefore recognized that “prudential concerns,” Withrow v. Williams, 507 U. S. 680, 686 (1993), such as comity and the orderly administration of criminal justice, may “require a federal court to forgo the exercise of its habeas corpus power,” Francis v. Henderson, 425 U. S. 536, 539 (1976). The principle that a habeas court is “not bound in every case” to issue the writ, Ex parte Royall, 117 U. S. 241, 251 (1886), follows from the precatory language of the habeas statute, and from its common-law origins. The habeas statute provides only that a writ of habeas corpus “may be granted,” §2241(a) (emphasis added), and directs federal courts to “dispose of [habeas petitions] as law and justice require,” §2243. See Danforth v. Minnesota, 552 U. S. ___, ___ (2008) (slip op., at 13–14). Likewise, the writ did not issue in England “as of mere course,” but rather required the petitioner to demonstrate why the “extraordinary power of the crown” should be exercised, 3 W. Blackstone, Commentaries on the Laws of England 132 (1768); even then, courts were directed to “do as to justice shall appertain,” 1 id., at 131 (1765). The question, therefore, even where a habeas court has the power to issue the writ, is “whether this be a case in which [that power] ought to be exercised.” Ex parte Watkins, 3 Pet. 193, 201 (1830) (Marshall, C. J.). At the outset, the nature of the relief sought by the habeas petitioners suggests that habeas is not appropriate in these cases. Habeas is at its core a remedy for unlawful executive detention. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion). The typical remedy for such detention is, of course, release. See, e.g., Preiser v. Rodriguez, 411 U. S. 475, 484 (1973) (“[T]he traditional function of the writ is to secure release from illegal custody”). But here the last thing petitioners want is simple release; that would expose them to apprehension by Iraqi authorities for criminal prosecution—precisely what petitioners went to federal court to avoid. At the end of the day, what petitioners are really after is a court order requiring the United States to shelter them from the sovereign government seeking to have them answer for alleged crimes committed within that sovereign’s borders. The habeas petitioners do not dispute that they voluntarily traveled to Iraq, that they remain detained within the sovereign territory of Iraq today, or that they are alleged to have committed serious crimes in Iraq. Indeed, Omar and Munaf both concede that, if they were not in MNF–I custody, Iraq would be free to arrest and prosecute them under Iraqi law. See Tr. in Omar, No. 06–5126 (CADC), pp. 48–49, 59 (Sept. 11, 2006); Tr. in Mohammed, No. 06–1455 (DC), pp. 15–16 (Oct. 10, 2006). There is, moreover, no question that Munaf is the subject of ongoing Iraqi criminal proceedings and that Omar would be but for the present injunction. Munaf was convicted by the CCCI, and while that conviction was overturned on appeal, his case was remanded to and is again pending before the CCCI. The MNF–I referred Omar to the CCCI for prosecution at which point he sought and obtained an injunction that prohibits his prosecution. See 479 F. 3d, at 16, n. 3 (Brown, J., dissenting in part) (“ ‘[Omar] has not yet had a trial or even an investigative hearing in the CCCI due to the district court’s unprecedented injunction’ ” (citing Opposition to Petitioner’s Emergency Motion for Injunctive Relief 18–19, in Munaf v. Harvey, No. 06–5324 (CADC, Oct. 25, 2006))). Given these facts, our cases make clear that Iraq has a sovereign right to prosecute Omar and Munaf for crimes committed on its soil. As Chief Justice Marshall explained nearly two centuries ago, “[t]he jurisdiction of the nation within its own territory is necessarily exclusive and absolute.” Schooner Exchange v. McFaddon, 7 Cranch 116, 136 (1812). See Wilson, supra, at 529 (“A sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction”); Reid v. Covert, 354 U. S. 1, 15, n. 29 (1957) (opinion of Black, J.) (“[A] foreign nation has plenary criminal jurisdiction … over all Americans … who commit offenses against its laws within its territory”); Kinsella v. Krueger, 351 U. S. 470, 479 (1956) (nations have a “sovereign right to try and punish [American citizens] for offenses committed within their borders,” unless they “have relinquished [their] jurisdiction” to do so). This is true with respect to American citizens who travel abroad and commit crimes in another nation whether or not the pertinent criminal process comes with all the rights guaranteed by our Constitution. “When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people.” Neely v. Henkel, 180 U. S. 109, 123 (1901). The habeas petitioners nonetheless argue that the Due Process Clause includes a “[f]reedom from unlawful transfer” that is “protected wherever the government seizes a citizen.” Brief for Habeas Petitioners 48. We disagree. Not only have we long recognized the principle that a nation state reigns sovereign within its own territory, we have twice applied that principle to reject claims that the Constitution precludes the Executive from transferring a prisoner to a foreign country for prosecution in an allegedly unconstitutional trial. In Wilson, 354 U. S. 524, we reversed an injunction similar to the one at issue here. During a cavalry exercise at the Camp Weir range in Japan, Girard, a Specialist Third Class in the United States Army, caused the death of a Japanese woman. Id., at 525–526. After Japan indicted Girard, but while he was still in United States custody, Girard filed a writ of habeas corpus in the United States District Court for the District of Columbia. Ibid. The District Court granted a preliminary injunction against the United States, enjoining the “proposed delivery of [Girard] to the Japanese Government.” Girard v. Wilson, 152 F. Supp. 21, 27 (DC 1957). In the District Court’s view, to permit the transfer to Japanese authority would violate the rights guaranteed to Girard by the Constitution. Ibid. We granted certiorari, and vacated the injunction. 354 U. S., at 529–530. We noted that Japan had exclusive jurisdiction “to punish offenses against its laws committed within its borders,” unless it had surrendered that jurisdiction. Id., at 529. Consequently, even though Japan had ceded some of its jurisdiction to the United States pursuant to a bilateral Status of Forces Agreement, the United States could waive that jurisdiction—as it had done in Girard’s case—and the habeas court was without authority to enjoin Girard’s transfer to the Japanese authorities. Id., at 529–530. Likewise, in Neely v. Henkel, supra, this Court held that habeas corpus was not available to defeat the criminal jurisdiction of a foreign sovereign, even when application of that sovereign’s law would allegedly violate the Constitution. Neely—the habeas petitioner and an American citizen—was accused of violating Cuban law in Cuba. Id., at 112–113. He was arrested and detained in the United States. Id., at 113. The United States indicated its intent to extradite him, and Neely filed suit seeking to block his extradition on the grounds that Cuban law did not provide the panoply of rights guaranteed him by the Constitution of the United States. Id., at 122. We summarily rejected this claim: “The answer to this suggestion is that those [constitutional] provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country.” Ibid. Neely alleged no claim for which a “discharge on habeas corpus” could issue. Id., at 125. Accordingly, the United States was free to transfer him to Cuban custody for prosecution. In the present cases, the habeas petitioners concede that Iraq has the sovereign authority to prosecute them for alleged violations of its law, yet nonetheless request an injunction prohibiting the United States from transferring them to Iraqi custody. But as the foregoing cases make clear, habeas is not a means of compelling the United States to harbor fugitives from the criminal justice system of a sovereign with undoubted authority to prosecute them. Petitioners’ “release” claim adds nothing to their “transfer” claim. That claim fails for the same reasons the transfer claim fails, given that the release petitioners seek is release in a form that would avoid transfer. See Tr. of Oral Arg. 47–48; App. 40 (coupling Munaf’s claim for release with a request for order requiring the United States to bring him to a U. S. court); App. 123 (same with respect to Omar). Such “release” would impermissibly interfere with Iraq’s “exclusive jurisdiction to punish offenses against its laws committed within its borders,” Wilson, supra, at 529; the “release” petitioners seek is nothing less than an order commanding our forces to smuggle them out of Iraq. Indeed, the Court of Appeals in Omar’s case took the extraordinary step of upholding an injunction that prohibited the Executive from releasing Omar—the quintessential habeas remedy—if the United States shared information about his release with its military ally, Iraq. 479 F. 3d, at 13. Habeas does not require the United States to keep an unsuspecting nation in the dark when it releases an alleged criminal insurgent within its borders. Moreover, because Omar and Munaf are being held by United States Armed Forces at the behest of the Iraqi Government pending their prosecution in Iraqi courts, Mohammed, 456 F. Supp. 2d, at 117, release of any kind would interfere with the sovereign authority of Iraq “to punish offenses against its laws committed within its borders,” Wilson, supra, at 529. This point becomes clear given that the MNF–I, pursuant to its U. N. mandate, is authorized to “take all necessary measures to contribute to the maintenance of security and stability in Iraq,” App. G to Pet. for Cert. in No. 07–394, p. 74a, ¶10, and specifically to provide for the “internment [of individuals in Iraq] where this is necessary for imperative reasons of security,” id., at 86a. While the Iraqi Government is ultimately “responsible for [the] arrest, detention and imprisonment” of individuals who violate its laws, S. C. Res. 1790, Annex I, ¶4, p. 6, U. N. Doc. S/RES/1790 (Dec. 18, 2007), the MNF–I maintains physical custody of individuals like Munaf and Omar while their cases are being heard by the CCCI, Mohammed, supra, at 117. Indeed, Munaf is currently held at Camp Cropper pursuant to the express order of the Iraqi Courts. See In re Hikmat, No. 19/Pub. Comm’n/2007, at 5 (directing that Munaf “remain in custody pending the outcome” of further Iraqi proceedings). As that court order makes clear, MNF–I detention is an integral part of the Iraqi system of criminal justice. MNF–I forces augment the Iraqi Government’s peacekeeping efforts by functioning, in essence, as its jailor. Any requirement that the MNF–I release a detainee would, in effect, impose a release order on the Iraqi Government. The habeas petitioners acknowledge that some interference with a foreign criminal system is too much. They concede that “it is axiomatic that an American court does not provide collateral review of proceedings in a foreign tribunal.” Brief for Habeas Petitioners 39 (citing Republic of Austria v. Altmann, 541 U. S. 677, 700 (2004)). We agree, but see no reason why habeas corpus should permit a prisoner detained within a foreign sovereign’s territory to prevent a trial from going forward in the first place. It did not matter that the habeas petitioners in Wilson and Neely had not been convicted. 354 U. S., at 525–526; 180 U. S., at 112–113. Rather, “the same principles of comity and respect for foreign sovereigns that preclude judicial scrutiny of foreign convictions necessarily render invalid attempts to shield citizens from foreign prosecution in order to preempt such nonreviewable adjudications.” Omar, 479 F. 3d, at 17 (Brown, J., dissenting in part). To allow United States courts to intervene in an ongoing foreign criminal proceeding and pass judgment on its legitimacy seems at least as great an intrusion as the plainly barred collateral review of foreign convictions. See Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 417–418 (1964) (“ ‘To permit the validity of the acts of one sovereign State to be reexamined and perhaps condemned by the courts of another would very certainly “imperil the amicable relations between governments and vex the peace of nations” ’ ” (quoting Oetjen v. Central Leather Co., 246 U. S. 297, 303–304 (1918); punctuation omitted)).[Footnote 4] There is of course even more at issue here: Neither Neely nor Wilson concerned individuals captured and detained within an ally’s territory during ongoing hostilities involving our troops. Neely involved a charge of embezzlement; Wilson the peacetime actions of a serviceman. Yet in those cases we held that the Constitution allows the Executive to transfer American citizens to foreign authorities for criminal prosecution. It would be passing strange to hold that the Executive lacks that same authority where, as here, the detainees were captured by our Armed Forces for engaging in serious hostile acts against an ally in what the Government refers to as “an active theater of combat.” Brief for Federal Parties 16. Such a conclusion would implicate not only concerns about interfering with a sovereign’s recognized prerogative to apply its criminal law to those alleged to have committed crimes within its borders, but also concerns about unwarranted judicial intrusion into the Executive’s ability to conduct military operations abroad. Our constitutional framework “requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.” Orloff v. Willoughby, 345 U. S. 83, 94 (1953). Those who commit crimes within a sovereign’s territory may be transferred to that sovereign’s government for prosecution; there is hardly an exception to that rule when the crime at issue is not embezzlement but unlawful insurgency directed against an ally during ongoing hostilities involving our troops. B 1 Petitioners contend that these general principles are trumped in their cases because their transfer to Iraqi custody is likely to result in torture. This allegation was raised in Munaf’s petition for habeas, App. 39, ¶46, but not in Omar’s. Such allegations are of course a matter of serious concern, but in the present context that concern is to be addressed by the political branches, not the judiciary. See M. Bassiouni, International Extradition: United States Law and Practice 921 (2007) (“Habeas corpus has been held not to be a valid means of inquiry into the treatment the relator is anticipated to receive in the requesting state”). This conclusion is reflected in the cases already cited. Even with respect to claims that detainees would be denied constitutional rights if transferred, we have recognized that it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments. Thus, the Court in Neely concluded that an American citizen who “commits a crime in a foreign country” “cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people,” but went on to explain that this was true “unless a different mode be provided for by treaty stipulation between that country and the United States.” 180 U. S., at 123. Diplomacy was the means of addressing the petitioner’s concerns. By the same token, while the Court in Wilson stated the general principle that a “sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its borders,” it recognized that this rule could be altered by diplomatic agreement in light of particular concerns—as it was in that case—and by a decision of the Executive to waive jurisdiction granted under that agreement—as it was in that case. 354 U. S., at 529. See also Kinsella, 351 U. S., at 479 (alteration of jurisdictional rule through “carefully drawn agreements”). This recognition that it is the political branches that bear responsibility for creating exceptions to the general rule is nothing new; as Chief Justice Marshall explained in the Schooner Exchange, “exemptions from territorial jurisdiction … must be derived from the consent of the sovereign of the territory” and are “rather questions of policy than of law, that they are for diplomatic, rather than legal discussion.” 7 Cranch, at 143, 146. The present concerns are of the same nature as the loss of constitutional rights alleged in Wilson and Neely, and are governed by the same principles.[Footnote 5] The Executive Branch may, of course, decline to surrender a detainee for many reasons, including humanitarian ones. Petitioners here allege only the possibility of mistreatment in a prison facility; this is not a more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway. Indeed, the Solicitor General states that it is the policy of the United States not to transfer an individual in circumstances where torture is likely to result. Brief for Federal Parties 47; Reply Brief for Federal Parties 23. In these cases the United States explains that, although it remains concerned about torture among some sectors of the Iraqi Government, the State Department has determined that the Justice Ministry—the department that would have authority over Munaf and Omar—as well as its prison and detention facilities have “ ‘generally met internationally accepted standards for basic prisoner needs.’ ” Ibid. The Solicitor General explains that such determinations are based on “the Executive’s assessment of the foreign country’s legal system and … the Executive[’s] … ability to obtain foreign assurances it considers reliable.” Brief for Federal Parties 47. The Judiciary is not suited to second-guess such determinations—determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government’s ability to speak with one voice in this area. See The Federalist No. 42, p. 279 (J. Cooke ed. 1961) (J. Madison) (“If we are to be one nation in any respect, it clearly ought to be in respect to other nations”). In contrast, the political branches are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of an ally, and what to do about it if there is. As Judge Brown noted, “we need not assume the political branches are oblivious to these concerns. Indeed, the other branches possess significant diplomatic tools and leverage the judiciary lacks.” 479 F. 3d, at 20, n. 6 (dissenting opinion). Petitioners briefly argue that their claims of potential torture may not be readily dismissed on the basis of these principles because the FARR Act prohibits transfer when torture may result. Brief for Habeas Petitioners 51–52. Neither petitioner asserted a FARR Act claim in his petition for habeas, and the Act was not raised in any of the certiorari filings before this Court. Even in their merits brief in this Court, the habeas petitioners hardly discuss the issue. Id., at 17, 51–52, 57–58. The Government treats the issue in kind. Reply Brief for Federal Parties 24–26. Under such circumstances we will not consider the question.[Footnote 6] 2 Finally, the habeas petitioners raise the additional argument that the United States may not transfer a detainee to Iraqi custody, not because it would be unconstitutional to do so, but because the “[G]overnment may not transfer a citizen without legal authority.” Brief for Habeas Petitioners 54. The United States, they claim, bears the burden of “identify[ing] a treaty or statute that permits it to transfer the[m] to Iraqi custody.” Id., at 49. The habeas petitioners rely prominently on Valentine v. United States ex rel. Neidecker, 299 U. S. 5 (1936), where we ruled that the Executive may not extradite a person held within the United States unless “legal authority” to do so “is given by act of Congress or by the terms of a treaty,” id., at 9. But Valentine is readily distinguishable. It involved the extradition of an individual from the United States; this is not an extradition case, but one involving the transfer to a sovereign’s authority of an individual captured and already detained in that sovereign’s territory. In the extradition context, when a “fugitive criminal” is found within the United States, “ ‘there is no authority vested in any department of the government to seize [him] and surrender him to a foreign power,’ ” in the absence of a pertinent constitutional or legislative provision. Ibid. But Omar and Munaf voluntarily traveled to Iraq and are being held there. They are therefore subject to the territorial jurisdiction of that sovereign, not of the United States. Moreover, as we have explained, the petitioners are being held by the United States, acting as part of MNF–I, at the request of and on behalf of the Iraqi Government. It would be more than odd if the Government had no authority to transfer them to the very sovereign on whose behalf, and within whose territory, they are being detained. The habeas petitioners further contend that this Court’s decision in Wilson supports their argument that the Executive lacks the discretion to transfer a citizen absent a treaty or statute. Brief for Habeas Petitioners 54–55. Quite the opposite. Wilson forecloses it. The only “authority” at issue in Wilson—a Status of Forces Agreement—seemed to give the habeas petitioner in that case a right to be tried by an American military tribunal, not a Japanese court. 354 U. S., at 529. Nevertheless, in light of the background principle that Japan had a sovereign interest in prosecuting crimes committed within its borders, this Court found no “constitutional or statutory” impediment to the United States’s waiver of its jurisdiction under the agreement. Id., at 530. * * * Munaf and Omar are alleged to have committed hostile and warlike acts within the sovereign territory of Iraq during ongoing hostilities there. Pending their criminal prosecution for those offenses, Munaf and Omar are being held in Iraq by American forces operating pursuant to a U. N. Mandate and at the request of the Iraqi Government. Petitioners concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them. For all the reasons given above, petitioners state no claim in their habeas petitions for which relief can be granted, and those petitions should have been promptly dismissed. The judgments below and the injunction entered against the United States are vacated, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 As noted above, Munaf’s conviction was subsequently vacated by an Iraqi appellate court, and he is awaiting a new trial. Footnote 2 These cases concern only American citizens and only the statutory reach of the writ. Nothing herein addresses jurisdiction with respect to alien petitioners or with respect to the constitutional scope of the writ. Footnote 3 The circumstances in Hirota differ in yet another respect. The petitioners in that case sought an original writ, filing their motions for leave to file habeas petitions “in this Court.” 338 U. S., at 198. There is, however, some authority for the proposition that this Court has original subject-matter jurisdiction only over “ ‘cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party,’ ” Marbury v. Madison, 1 Cranch 137, 174 (1803) (quoting U. S. Const., Art. III, §2, cl. 2), and Congress had not granted the Court appellate jurisdiction to review decisions of the International Military Tribunal for the Far East. Footnote 4 The habeas petitioners claim that the injunction only bars Omar’s presentation to the Iraqi courts and that the CCCI trial can go forward in Omar’s absence. The injunction is not so easily narrowed. It was entered on the theory that Omar might be “presented to the CCCI and in that same day, be tried, [and] convicted,” thus depriving the United States district courts of jurisdiction. Omar v. Harvey, 416 F. Supp. 2d 19, 29 (DC 2006). Petitioners’ interpretation makes no sense under that theory: If a conviction would deprive the habeas court of jurisdiction, a trial, with or without the defendant, could result in just such a jurisdiction-divesting order. Footnote 5 The United States has in fact entered into treaties that provide procedural protections to American citizens tried in other nations. See, e.g., North Atlantic Treaty: Status of Forces, June 19, 1951, 4 U. S. T. 1802, T. I. A. S. No. 2846, Art. VII, ¶9 (guaranteeing arrested members of the Armed Forces and their civilian dependents, inter alia, an attorney, an interpreter, and a prompt and speedy trial, as well as the right to confront witnesses, obtain favorable witnesses, and communicate with a representative of the United States). Footnote 6 We hold that these habeas petitions raise no claim for relief under the FARR Act and express no opinion on whether Munaf and Omar may be permitted to amend their respective pleadings to raise such a claim on remand. Even if considered on the merits, several issues under the FARR Act claim would have to be addressed. First, the Act speaks to situations where a detainee is being “returned” to “a country.” FARR Act §2242(a), 112 Stat. 2681–822 (“It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States”); see also Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 U. N. T. S. 85, Art. 3, S. Treaty Doc. No. 20, 100th Cong., 2d Sess., p. 6 (1988) (“No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture” (emphasis added)). It is not settled that the Act addresses the transfer of an individual located in Iraq to the Government of Iraq; arguably such an individual is not being “returned” to “a country”—he is already there. Second, claims under the FARR Act may be limited to certain immigration proceedings. See §2242(d), 112 Stat. 2681–822 (“[N]othing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in [this section], except as part of the review of a final order of removal pursuant to [8 U. S. C. §1252 (2000 ed. and Supp. V]”). |
552.US.196 | Under New York’s current Constitution, State Supreme Court Justices are elected in each of the State’s judicial districts. Since 1921, New York’s election law has required parties to select their nominees by a convention composed of delegates elected by party members. An individual running for delegate must submit a 500-signature petition collected within a specified time. The convention’s nominees appear automatically on the general-election ballot, along with any independent candidates who meet certain statutory requirements. Respondents filed suit, seeking, inter alia, a declaration that New York’s convention system violates the First Amendment rights of challengers running against candidates favored by party leaders and an injunction mandating a direct primary election to select Supreme Court nominees. The Federal District Court issued a preliminary injunction, pending the enactment of a new state statutory scheme, and the Second Circuit affirmed. Held: New York’s system of choosing party nominees for the State Supreme Court does not violate the First Amendment. Pp. 5–12. (a) Because a political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform, a State’s power to prescribe party use of primaries or conventions to select nominees for the general election is not without limits. California Democratic Party v. Jones, 530 U. S. 567, 577. However, respondents, who claim their own associational right to join and have influence in the party, are in no position to rely on the right that the First Amendment confers on political parties. Pp. 5–7. (b) Respondents’ contention that New York’s electoral system does not assure them a fair chance of prevailing in their parties’ candidate-selection process finds no support in this Court’s precedents. Even if Kusper v. Pontikes, 414 U. S. 51, 57, which acknowledged an individual’s associational right to vote in a party primary without undue state-imposed impediment, were extended to cover the right to run in a party primary, the New York law’s signature and deadline requirements are entirely reasonable. A State may demand a minimum degree of support for candidate access to a ballot, see Jenness v. Fortson, 403 U. S. 431, 442. P. 7. (c) Respondents’ real complaint is that the convention process following the delegate election does not give them a realistic chance to secure their party’s nomination because the party leadership garners more votes for its delegate slate and effectively determines the nominees. This says no more than that the party leadership has more widespread support than a candidate not supported by the leadership. Cases invalidating ballot-access requirements have focused on the requirements themselves, and not on the manner in which political actors function under those requirements. E.g., Bullock v. Carter, 405 U. S. 134. Those cases do not establish an individual’s constitutional right to have a “fair shot” at winning a party’s nomination. Pp. 7–10. (d) Respondents’ argument that the existence of entrenched “one-party rule” in the State’s general election demands that the First Amendment be used to impose additional competition in the parties’ nominee-selection process is a novel and implausible reading of the First Amendment. Pp. 10–12. 462 F. 3d 161, reversed. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Souter, Thomas, Ginsburg, Breyer, and Alito, JJ., joined. Stevens, J., filed a concurring opinion, in which Souter, J., joined. Kennedy, J., filed an opinion concurring in the judgment, in which Breyer, J., joined as to Part II. | The State of New York requires that political parties select their nominees for Supreme Court Justice at a convention of delegates chosen by party members in a primary election. We consider whether this electoral system violates the First Amendment rights of prospective party candidates. I A The Supreme Court of New York is the State’s trial court of general jurisdiction, with an Appellate Division that hears appeals from certain lower courts. See N. Y. Const., Art. VI, §§7, 8. Under New York’s current Constitution, the State is divided into 12 judicial districts, see Art. VI, §6(a); N. Y. Jud. Law Ann. §140 (West 2005), and Supreme Court Justices are elected to 14-year terms in each such district, see N. Y. Const., Art. VI, §6(c). The New York Legislature has provided for the election of a total of 328 Supreme Court Justices in this fashion. See N. Y. Jud. Law Ann. §140–a (West Supp. 2007). Over the years, New York has changed the method by which Supreme Court Justices are selected several times. Under the New York Constitution of 1821, Art. IV, §7, all judicial officers, except Justices of the Peace, were appointed by the Governor with the consent of the Senate. See 7 Sources and Documents of the U. S. Constitutions 181, 184 (W. Swindler ed. 1978). In 1846, New York amended its Constitution to require popular election of the Justices of the Supreme Court (and also the Judges of the New York Court of Appeals). Id., at 192, 200 (N. Y. Const. of 1846, Art. VI, §12). In the early years under that regime, the State allowed political parties to choose their own method of selecting the judicial candidates who would bear their endorsements on the general-election ballot. See, e.g., Report of Joint Committee of Senate and Assembly of New York, Appointed to Investigate Primary and Election Laws of This and Other States, S. Doc. No. 26, pp. 195–219 (1910). The major parties opted for party conventions, the same method then employed to nominate candidates for other state offices. Ibid.; see also P. Ray, An Introduction to Political Parties and Practical Politics 94 (1913). In 1911, the New York Legislature enacted a law requiring political parties to select Supreme Court nominees (and most other nominees who did not run statewide) through direct primary elections. Act of Oct. 18, 1911, ch. 891, §45(4), 1911 N. Y. Laws 2657, 2682. The primary system came to be criticized as a “device capable of astute and successful manipulation by professionals,” Editorial, The State Convention, N. Y. Times, May 1, 1917, p. 12, and the Republican candidate for Governor in 1920 campaigned against it as “a fraud” that “offered the opportunity for two things, for the demagogue and the man with money,” Miller Declares Primary a Fraud, N. Y. Times, Oct. 23, 1920, p. 4. A law enacted in 1921 required parties to select their candidates for the Supreme Court by a convention composed of delegates elected by party members. Act of May 2, 1921, ch. 479, §§45(1), 110, 1921 N. Y. Laws 1451, 1454, 1471. New York retains this system of choosing party nominees for Supreme Court Justice to this day. Section 6–106 of New York’s election law sets forth its basic operation: “Party nominations for the office of justice of the supreme court shall be made by the judicial district convention.” N. Y. Elec. Law Ann. §6–106 (West 2007). A “party” is any political organization whose candidate for Governor received 50,000 or more votes in the most recent election. §1–104(3). In a September “delegate primary,” party members elect delegates from each of New York’s 150 assembly districts to attend the party’s judicial convention for the judicial district in which the assembly district is located. See N. Y. State Law Ann. §121 (West 2003); N. Y. Elec. Law Ann. §§6–124, 8–100(1)(a) (West 2007). An individual may run for delegate by submitting to the Board of Elections a designating petition signed by 500 enrolled party members residing in the assembly district, or by five percent of such enrolled members, whichever is less. §§6–136(2)(i), (3). These signatures must be gathered within a 37-day period preceding the filing deadline, which is approximately two months before the delegate primary. §§6–134(4), 6–158(1). The delegates elected in these primaries are uncommitted; the primary ballot does not specify the judicial nominee whom they will support. §7–114. The nominating conventions take place one to two weeks after the delegate primary. §§6–126, 6–158(5). Each of the 12 judicial districts has its own convention to nominate the party’s Supreme Court candidate or candidates who will run at large in that district in the general election. §§6–124, 6–156. The general election takes place in November. §8–100(1)(c). The nominees from the party conventions appear automatically on the general-election ballot. §7–104(5). They may be joined on the general-election ballot by independent candidates and candidates of political organizations that fail to meet the 50,000 vote threshold for “party” status; these candidates gain access to the ballot by submitting timely nominating petitions with (depending on the judicial district) 3,500 or 4,000 signatures from voters in that district or signatures from five percent of the number of votes cast for Governor in that district in the prior election, whichever is less. §§6–138, 6–142(2). B Respondent López Torres was elected in 1992 to the civil court for Kings County—a court with more limited jurisdiction than the Supreme Court—having gained the nomination of the Democratic Party through a primary election. She claims that soon after her election, party leaders began to demand that she make patronage hires, and that her consistent refusal to do so caused the local party to oppose her unsuccessful candidacy at the Supreme Court nominating conventions in 1997, 2002, and 2003. The following year, López Torres—together with other candidates who had failed to secure the nominations of their parties, voters who claimed to have supported those candidates, and the New York branch of a public-interest organization called Common Cause—brought suit in federal court against the New York Board of Elections, which is responsible for administering and enforcing the New York election law. See §§3–102, 3–104. They contended that New York’s election law burdened the rights of challengers seeking to run against candidates favored by the party leadership, and deprived voters and candidates of their rights to gain access to the ballot and to associate in choosing their party’s candidates. As relevant here, they sought a declaration that New York’s convention system for selecting Supreme Court Justices violates their First Amendment rights, and an injunction mandating the establishment of a direct primary election to select party nominees for Supreme Court Justice. The District Court issued a preliminary injunction granting the relief requested, pending the New York Legislature’s enactment of a new statutory scheme. 411 F. Supp. 2d 212, 256 (EDNY 2006). A unanimous panel of the United States Court of Appeals for the Second Circuit affirmed. 462 F. 3d 161 (2006). It held that voters and candidates possess a First Amendment right to a “realistic opportunity to participate in [a political party’s] nominating process, and to do so free from burdens that are both severe and unnecessary.” Id., at 187. New York’s electoral law violated that right because of the quantity of signatures and delegate recruits required to obtain a Supreme Court nomination at a judicial convention, see id., at 197, and because of the apparent reality that party leaders can control delegates, see id., at 198–200. In the court’s view, because “one-party rule” prevailed within New York’s judicial districts, a candidate had a constitutional right to gain access to the party’s convention, notwithstanding her ability to get on the general-election ballot by petition signatures. Id., at 193–195, 200. The Second Circuit’s holding effectively returned New York to the system of electing Supreme Court Justices that existed before the 1921 amendments to the election law. We granted certiorari. 549 U. S. ___ (2007). II A A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122 (1981); California Democratic Party v. Jones, 530 U. S. 567, 574–575 (2000). These rights are circumscribed, however, when the State gives the party a role in the election process—as New York has done here by giving certain parties the right to have their candidates appear with party endorsement on the general-election ballot. Then, for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment. See id., at 573. And then also the State acquires a legitimate governmental interest in assuring the fairness of the party’s nominating process, enabling it to prescribe what that process must be. Id., at 572–573. We have, for example, considered it to be “too plain for argument” that a State may prescribe party use of primaries or conventions to select nominees who appear on the general-election ballot. American Party of Tex. v. White, 415 U. S. 767, 781 (1974). That prescriptive power is not without limits. In Jones, for example, we invalidated on First Amendment grounds California’s blanket primary, reasoning that it permitted non-party members to determine the candidate bearing the party’s standard in the general election. 530 U. S., at 577. See also Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 224 (1989); Tashjian v. Republican Party of Conn., 479 U. S. 208, 214–217 (1986). In the present case, however, the party’s associational rights are at issue (if at all) only as a shield and not as a sword. Respondents are in no position to rely on the right that the First Amendment confers on political parties to structure their internal party processes and to select the candidate of the party’s choosing. Indeed, both the Republican and Democratic state parties have intervened from the very early stages of this litigation to defend New York’s electoral law. The weapon wielded by these plaintiffs is their own claimed associational right not only to join, but to have a certain degree of influence in, the party. They contend that New York’s electoral system does not go far enough—does not go as far as the Constitution demands—in assuring that they will have a fair chance of prevailing in their parties’ candidate-selection process. This contention finds no support in our precedents. We have indeed acknowledged an individual’s associational right to vote in a party primary without undue state-imposed impediment. In Kusper v. Pontikes, 414 U. S. 51, 57 (1973), we invalidated an Illinois law that required a voter wishing to change his party registration so as to vote in the primary of a different party to do so almost two full years before the primary date. But Kusper does not cast doubt on all state-imposed limitations upon primary voting. In Rosario v. Rockefeller, 410 U. S. 752 (1973), we upheld a New York State requirement that a voter have enrolled in the party of his choice at least 30 days before the previous general election in order to vote in the next party primary. In any event, respondents do not claim that they have been excluded from voting in the primary. Moreover, even if we extended Kusper to cover not only the right to vote in the party primary but also the right to run, the requirements of the New York law (a 500-signature petition collected during a 37-day window in advance of the primary) are entirely reasonable. Just as States may require persons to demonstrate “a significant modicum of support” before allowing them access to the general-election ballot, lest it become unmanageable, Jenness v. Fortson, 403 U. S. 431, 442 (1971), they may similarly demand a minimum degree of support for candidate access to a primary ballot. The signature requirement here is far from excessive. See, e.g., Norman v. Reed, 502 U. S. 279, 295 (1992) (approving requirement of 25,000 signatures, or approximately two percent of the electorate); White, supra, at 783 (approving requirement of one percent of the vote cast for Governor in the preceding general election, which was about 22,000 signatures). Respondents’ real complaint is not that they cannot vote in the election for delegates, nor even that they cannot run in that election, but that the convention process that follows the delegate election does not give them a realistic chance to secure the party’s nomination. The party leadership, they say, inevitably garners more votes for its slate of delegates (delegates uncommitted to any judicial nominee) than the unsupported candidate can amass for himself. And thus the leadership effectively determines the nominees. But this says nothing more than that the party leadership has more widespread support than a candidate not supported by the leadership. No New York law compels election of the leadership’s slate—or, for that matter, compels the delegates elected on the leadership’s slate to vote the way the leadership desires. And no state law prohibits an unsupported candidate from attending the convention and seeking to persuade the delegates to support her. Our cases invalidating ballot-access requirements have focused on the requirements themselves, and not on the manner in which political actors function under those requirements. See, e.g., Bullock v. Carter, 405 U. S. 134 (1972) (Texas statute required exorbitant filing fees); Williams v. Rhodes, 393 U. S. 23 (1968) (Ohio statute required, inter alia, excessive number of petition signatures); Anderson v. Celebrezze, 460 U. S. 780 (1983) (Ohio statute established unreasonably early filing deadline). Here respondents complain not of the state law, but of the voters’ (and their elected delegates’) preference for the choices of the party leadership. To be sure, we have, as described above, permitted States to set their faces against “party bosses” by requiring party-candidate selection through processes more favorable to insurgents, such as primaries. But to say that the State can require this is a far cry from saying that the Constitution demands it. None of our cases establishes an individual’s constitutional right to have a “fair shot” at winning the party’s nomination. And with good reason. What constitutes a “fair shot” is a reasonable enough question for legislative judgment, which we will accept so long as it does not too much infringe upon the party’s associational rights. But it is hardly a manageable constitutional question for judges—especially for judges in our legal system, where traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a “fair shot” at party nomination. Party conventions, with their attendant “smoke-filled rooms” and domination by party leaders, have long been an accepted manner of selecting party candidates. “National party conventions prior to 1972 were generally under the control of state party leaders” who determined the votes of state delegates. American Presidential Elections: Process, Policy, and Political Change 14 (H. Schantz ed. 1996). Selection by convention has never been thought unconstitutional, even when the delegates were not selected by primary but by party caucuses. See ibid. The Second Circuit’s judgment finesses the difficulty of saying how much of a shot is a “fair shot” by simply mandating a primary until the New York Legislature acts. This was, according to the Second Circuit, the New York election law’s default manner of party-candidate selection for offices whose manner of selection is not otherwise prescribed. Petitioners question the propriety of this mandate, but we need not pass upon that here. Even conceding its propriety, there is good reason to believe that the elected members of the New York Legislature remain opposed to the primary, for the same reasons their predecessors abolished it 86 years ago: because it leaves judicial selection to voters uninformed about judicial qualifications, and places a high premium upon the ability to raise money. Should the New York Legislature persist in that view, and adopt something different from a primary and closer to the system that the Second Circuit invalidated, the question whether that provides enough of a “fair shot” would be presented. We are not inclined to open up this new and excitingly unpredictable theater of election jurisprudence. Selection by convention has been a traditional means of choosing party nominees. While a State may determine it is not desirable and replace it, it is not unconstitutional. B Respondents put forward, as a special factor which gives them a First Amendment right to revision of party processes in the present case, the assertion that party loyalty in New York’s judicial districts renders the general-election ballot “uncompetitive.” They argue that the existence of entrenched “one-party rule” demands that the First Amendment be used to impose additional competition in the nominee-selection process of the parties. (The asserted “one-party rule,” we may observe, is that of the Democrats in some judicial districts, and of the Republicans in others. See 411 F. Supp. 2d, at 230.) This is a novel and implausible reading of the First Amendment. To begin with, it is hard to understand how the competitiveness of the general election has anything to do with respondents’ associational rights in the party’s selection process. It makes no difference to the person who associates with a party and seeks its nomination whether the party is a contender in the general election, an underdog, or the favorite. Competitiveness may be of interest to the voters in the general election, and to the candidates who choose to run against the dominant party. But we have held that those interests are well enough protected so long as all candidates have an adequate opportunity to appear on the general-election ballot. In Jenness we upheld a petition-signature requirement for inclusion on the general-election ballot of five percent of the eligible voters, see 403 U. S., at 442, and in Munro v. Socialist Workers Party, 479 U. S. 189, 199 (1986), we upheld a petition-signature requirement of one percent of the vote in the State’s primary. New York’s general-election balloting procedures for Supreme Court Justice easily pass muster under this standard. Candidates who fail to obtain a major party’s nomination via convention can still get on the general-election ballot for the judicial district by providing the requisite number of signatures of voters resident in the district. N. Y. Elec. Law Ann. §6–142(2). To our knowledge, outside of the Fourteenth and Fifteenth Amendment contexts, see Jones, 530 U. S., at 573, no court has ever made “one-party entrenchment” a basis for interfering with the candidate-selection processes of a party. (Of course, the lack of one-party entrenchment will not cause free access to the general-election ballot to validate an otherwise unconstitutional restriction upon participation in a party’s nominating process. See Bullock, 405 U. S., at 146–147.) The reason one-party rule is entrenched may be (and usually is) that voters approve of the positions and candidates that the party regularly puts forward. It is no function of the First Amendment to require revision of those positions or candidates. The States can, within limits (that is, short of violating the parties’ freedom of association), discourage party monopoly—for example, by refusing to show party endorsement on the election ballot. But the Constitution provides no authority for federal courts to prescribe such a course. The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference. See Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). It does not call on the federal courts to manage the market by preventing too many buyers from settling upon a single product. Limiting respondents’ court-mandated “fair shot at party endorsement” to situations of one-party entrenchment merely multiplies the impracticable lines courts would be called upon to draw. It would add to those alluded to earlier the line at which mere party popularity turns into “one-party dominance.” In the case of New York’s election system for Supreme Court Justices, that line would have to be drawn separately for each of the 12 judicial districts—and in those districts that are “competitive” the current system would presumably remain valid. But why limit the remedy to one-party dominance? Does not the dominance of two parties similarly stifle competing opinions? Once again, we decline to enter the morass. * * * New York State has thrice (in 1846, 1911, and 1921) displayed a willingness to reconsider its method of selecting Supreme Court Justices. If it wishes to return to the primary system that it discarded in 1921, it is free to do so; but the First Amendment does not compel that. We reverse the Second Circuit’s contrary judgment. It is so ordered. |
554.US.316 | Petitioner Plains Commerce Bank (Bank), a non-Indian bank, sold land it owned in fee simple on a tribal reservation to non-Indians. Respondents the Longs, an Indian couple who had been leasing the land with an option to purchase, claim the Bank discriminated against them by selling the parcel to nonmembers of the Tribe on terms more favorable than the Bank offered to sell it to them. The couple sued in Tribal Court, asserting, inter alia, discrimination, breach-of-contract, and bad-faith claims. Over the Bank’s objection, the Tribal Court concluded that it had jurisdiction and proceeded to trial, where a jury ruled against the Bank on three claims, including the discrimination claim. The court awarded the Longs damages plus interest. In a supplemental judgment, the court also gave the Longs an option to purchase that portion of the fee land they still occupied, nullifying the Bank’s sale of the land to non-Indians. After the Tribal Court of Appeals affirmed, the Bank filed suit in Federal District Court, contending that the tribal judgment was null and void because, as relevant here, the Tribal Court lacked jurisdiction over the Longs’ discrimination claim. The District Court granted the Longs summary judgment, finding tribal court jurisdiction proper because the Bank’s consensual relationship with the Longs and their company (also a respondent here) brought the Bank within the first category of tribal civil jurisdiction over nonmembers outlined in Montana v. United States, 450 U. S. 544. The Eighth Circuit affirmed, concluding that the Tribe had authority to regulate the business conduct of persons voluntarily dealing with tribal members, including a nonmember’s sale of fee land. Held: 1. The Bank has Article III standing to pursue this challenge. Both with respect to damages and the option to purchase, the Bank was “injured in fact,” see Lujan v. Defenders of Wildlife, 504 U. S. 555, 560, by the Tribal Court’s exercise of jurisdiction over the discrimination claim. This Court is unpersuaded by the Longs’ claim that the damages award was premised entirely on their breach-of-contract verdict, which the Bank has not challenged, rather than on their discrimination claim. Because the verdict form allowed the jury to make a damages award after finding liability as to any of the individual claims, the jury could have based its damages award, in whole or in part, on the discrimination finding. The Bank was also injured by the option to purchase. Only the Longs’ discrimination claim sought deed to the land as relief. The fact that the remedial purchase option applied only to a portion of the total parcel does not eliminate the injury to the Bank, which had no obligation to sell any of the land to the Longs before the Tribal Court’s judgment. That judgment effectively nullified a portion of the sale to a third party. These injuries can be remedied by a ruling that the Tribal Court lacked jurisdiction and that its judgment on the discrimination claim is null and void. Pp. 5–8. 2. The Tribal Court did not have jurisdiction to adjudicate a discrimination claim concerning the non-Indian Bank’s sale of its fee land. Pp. 8–24. (a) The general rule that tribes do not possess authority over non-Indians who come within their borders, Montana v. United States, 450 U. S. 564, 565, restricts tribal authority over nonmember activities taking place on the reservation, and is particularly strong when the nonmember’s activity occurs on land owned in fee simple by non-Indians, Strate v. A-1 Contractors, 520 U. S. 438, 446. Once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it. See County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 267–268. Moreover, when the tribe or its members convey fee land to third parties, the tribe “loses any former right of absolute and exclusive use and occupation of the conveyed lands.” South Dakota v. Bourland, 508 U. S. 679, 689. Thus, “the tribe has no authority itself … to regulate the use of fee land.” Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 430. Montana provides two exceptions under which tribes may exercise “civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands,” 450 U. S., at 565: (1) “A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements,” ibid.; and (2) a tribe may exercise “civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe,” id., at 566. Neither exception authorizes tribal courts to exercise jurisdiction over the Longs’ discrimination claim. Pp. 8–11. (b) The Tribal Court lacks jurisdiction to hear that claim because the Tribe lacks the civil authority to regulate the Bank’s sale of its fee land, and “a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction,” Strate, supra, at 453. Montana does not permit tribes to regulate the sale of non-Indian fee land. Rather, it permits tribal regulation of nonmember conduct inside the reservation that implicates the tribe’s sovereign interests. 450 U. S., at 564–565. With only one exception, see Brendale, supra, this Court has never “upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land,” Nevada v. Hicks, 533 U. S. 353, 360. Nor has the Court found that Montana authorized a tribe to regulate the sale of such land. This makes good sense, given the limited nature of tribal sovereignty and the liberty interests of nonmembers. Tribal sovereign interests are confined to managing tribal land, see Worcester v. Georgia, 6 Pet. 515, 561, protecting tribal self-government, and controlling internal relations, see Montana, supra, at 564. Regulations approved under Montana all flow from these limited interests. See, e.g., Duro v. Reina, 495 U. S. 676, 696. None of these interests justified tribal regulation of a nonmember’s sale of fee land. The Tribe cannot justify regulation of the sale of non-Indian fee land by reference to its power to superintend tribal land because non-Indian fee parcels have ceased to be tribal land. Nor can regulation of fee land sales be justified by the Tribe’s interest in protecting internal relations and self-government. Any direct harm sustained because of a fee land sale is sustained at the point the land passes from Indian to non-Indian hands. Resale, by itself, causes no additional damage. Regulating fee land sales also runs the risk of subjecting nonmembers to tribal regulatory authority without their consent. Because the Bill of Rights does not apply to tribes and because nonmembers have no say in the laws and regulations governing tribal territory, tribal laws and regulations may be applied only to nonmembers who have consented to tribal authority, expressly or by action. Even then the regulation must stem from the tribe’s inherent sovereign authority to set conditions on entry, preserve self-government, or control internal relations. There is no reason the Bank should have anticipated that its general business dealings with the Longs would permit the Tribe to regulate the Bank’s sale of land it owned in fee simple. The Longs’ attempt to salvage their position by arguing that the discrimination claim should be read to challenge the Bank’s whole course of commercial dealings with them is unavailing. Their breach-of-contract and bad-faith claims involve the Bank’s general dealings; the discrimination claim does not. The discrimination claim is tied specifically to the fee land sale. And only the discrimination claim is before the Court. Pp. 11–22. (c) Because the second Montana exception stems from the same sovereign interests giving rise to the first, it is also inapplicable here. The “conduct” covered by that exception must do more than injure a tribe; it must “imperil the subsistence” of the tribal community. Montana, 450 U. S., at 566. The land at issue has been owned by a non-Indian party for at least 50 years. Its resale to another non-Indian hardly “imperil[s] the subsistence or welfare of the tribe.” Ibid. Pp. 22–23. (d) Contrary to the Longs’ argument, when the Bank sought the Tribal Court’s aid in serving process on the Longs for the Bank’s pending state-court eviction action, the Bank did not consent to tribal court jurisdiction over the discrimination claim. The Bank has consistently contended that the Tribal Court lacked jurisdiction. P. 23. 491 F. 3d 878, reversed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined, and in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined as to Part II. Ginsburg, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Stevens, Souter, and Breyer, JJ., joined. | This case concerns the sale of fee land on a tribal reservation by a non-Indian bank to non-Indian individuals. Following the sale, an Indian couple, customers of the bank who had defaulted on their loans, claimed the bank discriminated against them by offering the land to non-Indians on terms more favorable than those the bank offered to them. The couple sued on that claim in tribal court; the bank contested the court’s jurisdiction. The tribal court concluded that it had jurisdiction and proceeded to hear the case. It ultimately ruled against the bank and awarded the Indian couple damages and the right to purchase a portion of the fee land. The question presented is whether the tribal court had jurisdiction to adjudicate a discrimination claim concerning the non-Indian bank’s sale of fee land it owned. We hold that it did not. I The Long Family Land and Cattle Company, Inc. (Long Company or Company), is a family-run ranching and farming operation incorporated under the laws of South Dakota. Its lands are located on the Cheyenne River Sioux Indian Reservation. Once a massive, 60-million acre affair, the reservation was appreciably diminished by Congress in the 1880s and at present consists of roughly 11 million acres located in Dewey and Ziebach Counties in north-central South Dakota. The Long Company is a respondent here, along with Ronnie and Lila Long, husband and wife, who together own at least 51 percent of the Company’s shares. Ronnie and Lila Long are both enrolled members of the Cheyenne River Sioux Indian Tribe. The Longs and their Company have been customers for many years at Plains Commerce Bank (Bank), located some 25 miles off the reservation as the crow flies in Hoven, South Dakota. The Bank, like the Long Company, is a South Dakota corporation, but has no ties to the reservation other than its business dealings with tribal members. The Bank made its first commercial loan to the Long Company in 1989, and a series of agreements followed. As part of those agreements, Kenneth Long—Ronnie Long’s father and a non-Indian—mortgaged to the Bank 2,230 acres of fee land he owned inside the reservation. At the time of Kenneth Long’s death in the summer of 1995, Kenneth and the Long Company owed the Bank $750,000. In the spring of 1996, Ronnie and Lila Long began negotiating a new loan contract with the Bank in an effort to shore up their Company’s flagging financial fortunes and come to terms with their outstanding debts. After several months of back-and-forth, the parties finally reached an agreement in December of that year—two agreements, to be precise. The Company and the Bank signed a fresh loan contract, according to which Kenneth Long’s estate deeded over the previously mortgaged fee acreage to the Bank in lieu of foreclosure. App. 104. In return, the Bank agreed to cancel some of the Company’s debt and to make additional operating loans. The parties also agreed to a lease arrangement: The Company received a two-year lease on the 2,230 acres, deeded over to the Bank, with an option to purchase the land at the end of the term for $468,000. Id., at 96–103. It is at this point, the Longs claim, that the Bank began treating them badly. The Longs say the Bank initially offered more favorable purchase terms in the lease agreement, allegedly proposing to sell the land back to the Longs with a 20-year contract for deed. The Bank eventually rescinded that offer, the Longs claim, citing “ ‘possible jurisdictional problems’ ” that might have been caused by the Bank financing an “ ‘Indian owned entity on the reservation.’ ” 491 F. 3d 878, 882 (CA8 2007) (case below). Then came the punishing winter of 1996–1997. The Longs lost over 500 head of cattle in the blizzards that season, with the result that the Long Company was unable to exercise its option to purchase the leased acreage when the lease contract expired in 1998. Nevertheless, the Longs refused to vacate the property, prompting the Bank to initiate eviction proceedings in state court and to petition the Cheyenne River Sioux Tribal Court to serve the Longs with a notice to quit. In the meantime, the Bank sold 320 acres of the fee land it owned to a non-Indian couple. In June 1999, while the Longs continued to occupy a 960-acre parcel of the land, the Bank sold the remaining 1,910 acres to two other nonmembers. In July 1999, the Longs and the Long Company filed suit against the Bank in the Tribal Court, seeking an injunction to prevent their eviction from the property and to reverse the sale of the land. They asserted a variety of claims, including breach of contract, bad faith, violation of tribal-law self-help remedies, and discrimination. The discrimination claim alleged that the Bank sold the land to nonmembers on terms more favorable than those offered the Company. The Bank asserted in its answer that the court lacked jurisdiction and also stated a counterclaim. The Tribal Court found that it had jurisdiction, denied the Bank’s motion for summary judgment on its counterclaim, and proceeded to trial. Four causes of action were submitted to the seven-member jury: breach of contract, bad faith, violation of self-help remedies, and discrimination. The jury found for the Longs on three of the four causes, including the discrimination claim, and awarded a $750,000 general verdict. After denying the Bank’s post-trial motion for judgment notwithstanding the verdict by finding again that it had jurisdiction to adjudicate the Longs’ claims, the Tribal Court entered judgment awarding the Longs $750,000 plus interest. A later supplemental judgment further awarded the Longs an option to purchase the 960 acres of the land they still occupied on the terms offered in the original purchase option, effectively nullifying the Bank’s previous sale of that land to non-Indians. The Bank appealed to the Cheyenne River Sioux Tribal Court of Appeals, which affirmed the judgment of the trial court. The Bank then filed the instant action in the United States District Court for the District of South Dakota, seeking a declaration that the tribal judgment was null and void because, as relevant here, the Tribal Court lacked jurisdiction over the Longs’ discrimination claim. The District Court granted summary judgment to the Longs. The court found tribal court jurisdiction proper because the Bank had entered into a consensual relationship with the Longs and the Long Company. 440 F. Supp. 2d 1070, 1077–1078, 1080–1081 (SD 2006). According to the District Court, this relationship brought the Bank within the first category of tribal civil jurisdiction over nonmembers outlined in Montana v. United States, 450 U. S. 544 (1981). See 440 F. Supp. 2d, at 1077–1078. The Court of Appeals for the Eighth Circuit affirmed. 491 F. 3d 878. The Longs’ discrimination claim, the court held, “arose directly from their preexisting commercial relationship with the bank.” Id., at 887. When the Bank chose to deal with the Longs, it effectively consented to substantive regulation by the tribe: An antidiscrimination tort claim was just another way of regulating the commercial transactions between the parties. See ibid. In sum, the Tribe had authority to regulate the business conduct of persons who “voluntarily deal with tribal members,” including, here, a nonmember’s sale of fee land. Ibid. We granted certiorari, 552 U. S. ___ (2008), and now reverse. II Before considering the Tribal Court’s authority to adjudicate the discrimination claim, we must first address the Longs’ contention that the Bank lacks standing to raise this jurisdictional challenge in the first place. Though the Longs raised their standing argument for the first time before this Court, we bear an independent obligation to assure ourselves that jurisdiction is proper before proceeding to the merits. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 94–95 (1998). We begin by noting that whether a tribal court has adjudicative authority over nonmembers is a federal question. See Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9, 15 (1987); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 852–853 (1985). If the tribal court is found to lack such jurisdiction, any judgment as to the nonmember is necessarily null and void. The Longs do not contest this settled principle but argue instead that the Bank has suffered no “injury in fact” as required by Article III’s case-or-controversy provision. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). The Longs appear to recognize their argument is somewhat counterintuitive. They concede the jury found the Bank guilty of discrimination and awarded them $750,000 plus interest. But the Longs contend the jury’s damages award was in fact premised entirely on their breach-of-contract rather than on their discrimination claim. The Bank does not presently challenge the breach-of-contract verdict. In support of their argument, the Longs point to their amended complaint in the Tribal Court. The complaint comprised nine counts. Several of the counts sought damages; the discrimination count did not. As relief for the discrimination claim, the Longs asked to be granted “possession and title to their land.” App. 173. The Longs contend that the damage award therefore had nothing to do with the discrimination claim. As a result, a decision from this Court finding no jurisdiction with respect to that claim—the only claim the Bank appeals—would not change anything. We are not persuaded. The jury verdict form consisted of six special interrogatories, covering each claim asserted against the Bank, with another one covering the amount of damages to be awarded. Id., at 190–192. The damages interrogatory specifically allowed the jury to make an award after finding liability as to any of the individual claims: “If you answered yes to Numbers 1, 3, 4, or 5 what amount of damages should be awarded to the Plaintiffs?” Id., at 192 (emphasis added). The jury found against the Bank on three of the special interrogatories, including number 4, the discrimination claim. The Bank, the jurors found, “intentionally discriminate[d] against the Plaintiffs Ronnie and Lila Long.” Id., at 191. The jury then entered an award of $750,000. Id., at 192. These facts establish that the jury could have based its damages award, in whole or in part, on the finding of discrimination. There is, in addition, the option to purchase. The Longs argue that requiring the Bank to void the sale to nonmembers of a 960–acre parcel and sell that parcel to them instead does not constitute injury-in-fact, because the Tribal Court actually denied the relief the Longs sought for the Bank’s discrimination. In its supplemental judgment, the Tribal Court refused to permit the Longs (or the Long Company) to purchase all the land—as they had requested—instead granting an option to purchase only the 960 acres the Longs occupied at the time. See Supplemental Judgment in No. R–120–99, Long Family Land & Cattle Co. v. Maciejewski, (Feb. 18, 2003), App. to Pet. for Cert. A–69 to A–70. Even this partial relief, the Longs insist, was crafted as an equitable remedy for their breach-of-contract claim, see Brief for Respondents 32–34, and in any event the Bank really suffered no harm, because it would gain as much income selling to the Longs as it did selling to the nonmembers, see id., at 34–35. These arguments do not defeat the Bank’s standing. The Longs requested, as a remedy for the alleged discrimination, “possession and title” to the subject land. App. 173. They received an option to acquire a portion of exactly that. See App. to Pet. for Cert. A–69 to A–70. The Tribal Court’s silence in its supplemental judgment as to which claim, exactly, the option to purchase was meant to remedy is immaterial. See ibid. Of the four claims presented to the jury, only the discrimination claim sought deed to the land as relief. See Amended Complaint (Jan. 3, 2000), App. 158, 173. Nor does the fact that the remedial purchase option applied only to a portion of the total parcel eliminate the Bank’s injury. The Bank had no obligation to sell the land to the Longs before the Tribal Court’s judgment—indeed, the Bank had already sold the acreage to third parties. The Tribal Court judgment effectively nullified a portion of that sale. This judicially imposed burden certainly qualifies as an injury for standing purposes. As for the Longs’ speculation that the Bank would make as much money selling the land to them as it did selling the parcel to nonmembers, the argument is entirely beside the point. There is more than adequate injury in being compelled to undo one deed and enter into another—particularly with individuals who had previously defaulted on loans. Both with respect to damages and the option to purchase, the Bank was injured by the Tribal Court’s exercise of jurisdiction over the discrimination claim. Those injuries can be remedied by a ruling in favor of the Bank that the Tribal Court lacked jurisdiction and that its judgment on the discrimination claim is null and void. The ultimate collateral consequence of such a determination, whatever it may be—vacatur of the general damages award, vacatur of the option to purchase, a new trial on the other claims—does not alter the fact that the Bank has shown injury traceable to the challenged action and likely to be redressed by a favorable ruling. Allen v. Wright, 468 U. S. 737, 751 (1984). The Bank has Article III standing to pursue this challenge. III A For nearly two centuries now, we have recognized Indian tribes as “distinct, independent political communities,” Worcester v. Georgia, 6 Pet. 515, 559 (1832), qualified to exercise many of the powers and prerogatives of self-government, see United States v. Wheeler, 435 U. S. 313, 322–323 (1978). We have frequently noted, however, that the “sovereignty that the Indian tribes retain is of a unique and limited character.” Id., at 323. It centers on the land held by the tribe and on tribal members within the reservation. See United States v. Mazurie, 419 U. S. 544, 557 (1975) (tribes retain authority to govern “both their members and their territory,” subject ultimately to Congress); see also Nevada v. Hicks, 533 U. S. 353, 392 (2001) (“[T]ribes retain sovereign interests in activities that occur on land owned and controlled by the tribe”) (O’Connor, J., concurring in part and concurring in judgment). As part of their residual sovereignty, tribes retain power to legislate and to tax activities on the reservation, including certain activities by nonmembers, see Kerr-McGee Corp. v. Navajo Tribe, 471 U. S. 195, 201 (1985), to determine tribal membership, see Santa Clara Pueblo v. Martinez, 436 U. S. 49, 55 (1978), and to regulate domestic relations among members, see Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 387–389 (1976) (per curiam). They may also exclude outsiders from entering tribal land. See Duro v. Reina, 495 U. S. 676, 696–697 (1990). But tribes do not, as a general matter, possess authority over non-Indians who come within their borders: “[T]he inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Montana, at 450 U. S., at 565. As we explained in Oliphant v. Suquamish Tribe, 435 U. S. 191 (1978), the tribes have, by virtue of their incorporation into the American republic, lost “the right of governing . . . person[s] within their limits except themselves.” Id., at 209 (emphasis and internal quotation marks omitted). This general rule restricts tribal authority over nonmember activities taking place on the reservation, and is particularly strong when the nonmember’s activity occurs on land owned in fee simple by non-Indians—what we have called “non-Indian fee land.” Strate v. A–1 Contractors, 520 U. S. 438, 446 (1997) (internal quotation marks omitted). Thanks to the Indian General Allotment Act of 1887, 24 Stat. 388, as amended, 25 U. S. C. §331 et seq., there are millions of acres of non-Indian fee land located within the contiguous borders of Indian tribes. See Atkinson Trading Co. v. Shirley, 532 U. S. 645, 648, 651, n. 1 (2001). The history of the General Allotment Act and its successor statutes has been well rehearsed in our precedents. See, e.g., Montana, supra, at 558–563; County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, 254–255 (1992). Suffice it to say here that the effect of the Act was to convert millions of acres of formerly tribal land into fee simple parcels, “fully alienable,” id., at 264, and “free of all charge or encumbrance whatsoever,” 25 U. S. C. §348 (2000 ed., Supp. V). See F. Cohen, Handbook of Federal Indian Law §16.03[2][b], pp. 1041–1042 (2005 ed.) (hereinafter Cohen). Our cases have made clear that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it. See County of Yakima, supra, at 267–268 (General Allotment Act permits Yakima County to impose ad valorem tax on fee land located within the reservation); Goudy v. Meath, 203 U. S. 146, 140–150 (1906) (by rendering allotted lands alienable, General Allotment Act exposed them to state assessment and forced sale for taxes); In re Heff, 197 U. S. 488, 502–503 (1905) (fee land subject to plenary state jurisdiction upon issuance of trust patent (superseded by the Burke Act, 34 Stat. 182, 25 U. S. C. §349) (2000 ed.)). Among the powers lost is the authority to prevent the land’s sale, see County of Yakima, supra, at 263 (General Allotment Act granted fee holders power of voluntary sale)—not surprisingly, as “free alienability” by the holder is a core attribute of the fee simple, C. Moynihan, Introduction to Law of Real Property §3, p. 32 (2d ed. 1988). Moreover, when the tribe or tribal members convey a parcel of fee land “to non-Indians, [the tribe] loses any former right of absolute and exclusive use and occupation of the conveyed lands.” South Dakota v. Bourland, 508 U. S. 679, 689 (1993) (emphasis added). This necessarily entails the “the loss of regulatory jurisdiction over the use of the land by others.” Ibid. As a general rule, then, “the tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate the use of fee land.” Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 430 (1989) (opinion of White, J.). We have recognized two exceptions to this principle, circumstances in which tribes may exercise “civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands.” Montana, 450 U. S., at 565. First, “[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Ibid. Second, a tribe may exercise “civil authority over the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id., at 566. These rules have become known as the Montana exceptions, after the case that elaborated them. By their terms, the exceptions concern regulation of “the activities of nonmembers” or “the conduct of non-Indians on fee land.” Given Montana’s “ ‘general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,’ ” Atkinson, supra, at 651 (quoting Montana, supra, at 565), efforts by a tribe to regulate nonmembers, especially on non-Indian fee land, are “presumptively invalid,” Atkinson, supra, at 659. The burden rests on the tribe to establish one of the exceptions to Montana’s general rule that would allow an extension of tribal authority to regulate nonmembers on non-Indian fee land. Atkinson, 532 U. S., at 654. These exceptions are “limited” ones, id., at 647, and cannot be construed in a manner that would “swallow the rule,” id., at 655, or “severely shrink” it, Strate, 520 U. S., at 458. The Bank contends that neither exception authorizes tribal courts to exercise jurisdiction over the Longs’ discrimination claim at issue in this case. We agree. B According to our precedents, “a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction.” Id., at 453. We reaffirm that principle today and hold that the Tribal Court lacks jurisdiction to hear the Longs’ discrimination claim because the Tribe lacks the civil authority to regulate the Bank’s sale of its fee land. The Longs’ discrimination claim challenges a non-Indian’s sale of non-Indian fee land. Despite the Longs’ attempt to recharacterize their claim as turning on the Bank’s alleged “failure to pay to respondents loans promised for cattle-raising on tribal trust land,” Brief for Respondents 47, in fact the Longs brought their discrimination claim “seeking to have the land sales set aside on the ground that the sale to nonmembers ‘on terms more favorable’ than the bank had extended to the Longs” violated tribal tort law, 491 F. 3d, at 882 (quoting Plaintiffs’ Amended Complaint, App. 173). See also Brief for United States as Amicus Curiae 7. That discrimination claim thus concerned the sale of a 2,230-acre fee parcel that the Bank had acquired from the estate of a non-Indian. The status of the land is relevant “insofar as it bears on the application of . . . Montana’s exceptions to [this] case.” Hicks, 533 U. S., at 376 (Souter, J., concurring). The acres at issue here were alienated from the Cheyenne River Sioux’s tribal trust and converted into fee simple parcels as part of the Act of May 27, 1908, 35 Stat. 312, commonly called the 1908 Allotment Act. See Brief for Respondents 4, n. 2. While the General Allotment Act provided for the division of tribal land into fee simple parcels owned by individual tribal members, that Act also mandated that such allotments would be held in trust for their owners by the United States for a period of 25 years—or longer, at the President’s discretion—during which time the parcel owners had no authority to sell or convey the land. See 25 U. S. C. §348 (2000 ed., and Supp. V). The 1908 Act released particular Indian owners from these restrictions ahead of schedule, vesting in them full fee ownership. See §1, 35 Stat. 312. In 1934, Congress passed the Indian Reorganization Act, 48 Stat. 984, 25 U. S. C. §461 et seq., which “pu[t] an end to further allotment of reservation land,” but did not “return allotted land to pre-General Allotment status, leaving it fully alienable by the allottees, their heirs, and assigns.” County of Yakima, 502 U. S., at 264. The tribal tort law the Longs are attempting to enforce, however, operates as a restraint on alienation. It “set[s] limits on how nonmembers may engage in commercial transactions,” 491 F. 3d, at 887—and not just any transactions, but specifically nonmembers’ sale of fee lands they own. It regulates the substantive terms on which the Bank is able to offer its fee land for sale. Respondents and their principal amicus, the United States, acknowledge that the tribal tort at issue here is a form of regulation. See Brief for Respondents 52; Brief for United States as Amicus Curiae 25–26; see also Riegel v. Medtronic, Inc., 552 U. S. ___, ___ (2008) (slip op., at 11). They argue the regulation is fully authorized by the first Montana exception. They are mistaken. Montana does not permit Indian tribes to regulate the sale of non-Indian fee land. Montana and its progeny permit tribal regulation of nonmember conduct inside the reservation that implicates the tribe’s sovereign interests. Montana expressly limits its first exception to the “activities of nonmembers,” 450 U. S., at 565, allowing these to be regulated to the extent necessary “to protect tribal self-government [and] to control internal relations,” id., at 564. See Big Horn Cty. Elect. Cooperative, Inc. v. Adams, 219 F. 3d 944, 951 (CA9 2000) (“Montana does not grant a tribe unlimited regulatory or adjudicative authority over a nonmember. Rather, Montana limits tribal jurisdiction under the first exception to the regulation of the activities of nonmembers” (internal quotations omitted; emphasis added)). We cited four cases in explanation of Montana’s first exception. Each involved regulation of non-Indian activities on the reservation that had a discernable effect on the tribe or its members. The first concerned a tribal court’s jurisdiction over a contract dispute arising from the sale of merchandise by a non-Indian to an Indian on the reservation. See Williams v. Lee, 358 U. S. 217 (1959). The other three involved taxes on economic activity by nonmembers. See Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 152–153 (1980) (in cases where “the tribe has a significant interest in the subject matter,” tribes retain “authority to tax the activities or property of non-Indians taking place or situated on Indian lands”); Morris v. Hitchcock, 194 U. S. 384, 393 (1904) (upholding tribal taxes on nonmembers grazing cattle on Indian-owned fee land within tribal territory); Buster v. Wright, 135 F. 947, 950 (CA8 1905) (Creek Nation possessed power to levy a permit tax on nonmembers for the privilege of doing business within the reservation). Our cases since Montana have followed the same pattern, permitting regulation of certain forms of nonmember conduct on tribal land. We have upheld as within the tribe’s sovereign authority the imposition of a severance tax on natural resources removed by nonmembers from tribal land. See Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982). We have approved tribal taxes imposed on leasehold interests held in tribal lands, as well as sales taxes imposed on nonmember businesses within the reservation. See Kerr-McGee, 471 U. S., at 196–197. We have similarly approved licensing requirements for hunting and fishing on tribal land. See New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 337 (1983). Tellingly, with only “one minor exception, we have never upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land.” Hicks, supra, at 360 (emphasis added). See Atkinson, 532 U. S., at 659 (Tribe may not tax nonmember activity on non-Indian fee land); Strate, 520 U. S., at 454, 457 (tribal court lacks jurisdiction over tort suit involving an accident on non-tribal land); Montana, supra, at 566 (Tribe has no authority to regulate nonmember hunting and fishing on non-Indian fee land). The exception is Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, and even it fits the general rubric noted above: In that case, we permitted a tribe to restrain particular uses of non-Indian fee land through zoning regulations. While a six-Justice majority held that Montana did not authorize the Yakima Nation to impose zoning regulations on non-Indian fee land located in an area of the reservation where nearly half the acreage was owned by nonmembers, 492 U. S., at 430–431 (opinion of White, J.); id., at 444–447 (opinion of Stevens, J.), five Justices concluded that Montana did permit the Tribe to impose different zoning restrictions on nonmember fee land isolated in “the heart of [a] closed portion of the reservation,” 492 U. S., at 440 (opinion of Stevens, J.), though the Court could not agree on a rationale, see id., at 443–444 (same); id., at 458–459 (opinion of Blackmun, J.). But again, whether or not we have permitted regulation of nonmember activity on non-Indian fee land in a given case, in no case have we found that Montana authorized a tribe to regulate the sale of such land. Rather, our Montana cases have always concerned nonmember conduct on the land. See, e.g., Hicks, 533 U. S., at 359 (Montana and Strate concern “tribal authority to regulate nonmembers’ activities on [fee] land” (emphasis added)); Atkinson, 532 U. S., at 647 (“conduct of nonmembers on non-Indian fee land”); id., at 660 (Souter, J., concurring) (“the activities of nonmembers); Bourland, 508 U. S., at 689 (“use of the land”); Brendale, supra, at 430 (“use of fee land”); Montana, supra, at 565 (first exception covers “activities of nonmembers”).[Footnote 1] The distinction between sale of the land and conduct on it is well-established in our precedent, as the foregoing cases demonstrate, and entirely logical given the limited nature of tribal sovereignty and the liberty interests of nonmembers. By virtue of their incorporation into the United States, the tribe’s sovereign interests are now confined to managing tribal land, see Worcester, 6 Pet., at 561 (persons are allowed to enter Indian land only “with the assent of the [tribal members] themselves”), “protect[ing] tribal self-government,” and “control[ling] internal relations,” see Montana, supra, at 564. The logic of Montana is that certain activities on non-Indian fee land (say, a business enterprise employing tribal members) or certain uses (say, commercial development) may intrude on the internal relations of the tribe or threaten tribal self-rule. To the extent they do, such activities or land uses may be regulated. See Hicks, supra, at 361 (“Tribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them”). Put another way, certain forms of nonmember behavior, even on non-Indian fee land, may sufficiently affect the tribe as to justify tribal oversight. While tribes generally have no interest in regulating the conduct of nonmembers, then, they may regulate nonmember behavior that implicates tribal governance and internal relations. The regulations we have approved under Montana all flow directly from these limited sovereign interests. The tribe’s “traditional and undisputed power to exclude persons” from tribal land, Duro, 495 U. S., at 696, for example, gives it the power to set conditions on entry to that land via licensing requirements and hunting regulations. See Bourland, supra, at 691, n. 11 (“Regulatory authority goes hand in hand with the power to exclude”). Much taxation can be justified on a similar basis. See Colville, 447 U. S., at 153 (taxing power “may be exercised over . . . nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions” (quoting Powers of Indian Tribes, 55 I. D. 14, 46 (1934; emphasis added). The power to tax certain nonmember activity can also be justified as “a necessary instrument of self-government and territorial management,” Merrion, 455 U. S., at 137, insofar as taxation “enables a tribal government to raise revenues for its essential services,” to pay its employees, to provide police protection, and in general to carry out the functions that keep peace and order, ibid. Justice Ginsburg wonders why these sorts of regulations are permissible under Montana but regulating the sale of fee land is not. See post, at 6–7. The reason is that regulation of the sale of non-Indian fee land, unlike the above, cannot be justified by reference to the tribe’s sovereign interests. By definition, fee land owned by nonmembers has already been removed from the tribe’s immediate control. See Strate, 520 U. S., at 456 (tribes lack power to “assert [over non-Indian fee land] a landowner’s right to occupy and exclude”). It has already been alienated from the tribal trust. The tribe cannot justify regulation of such land’s sale by reference to its power to superintend tribal land, then, because non-Indian fee parcels have ceased to be tribal land. Nor can regulation of fee land sales be justified by the tribe’s interests in protecting internal relations and self-government. Any direct harm to its political integrity that the tribe sustains as a result of fee land sale is sustained at the point the land passes from Indian to non-Indian hands. It is at that point the tribe and its members lose the ability to use the land for their purposes. Once the land has been sold in fee simple to non-Indians and passed beyond the tribe’s immediate control, the mere resale of that land works no additional intrusion on tribal relations or self-government. Resale, by itself, causes no additional damage. This is not to suggest that the sale of the land will have no impact on the tribe. The uses to which the land is put may very well change from owner to owner, and those uses may well affect the tribe and its members. As our cases bear out, see supra, at 14–16, the tribe may quite legitimately seek to protect its members from noxious uses that threaten tribal welfare or security, or from nonmember conduct on the land that does the same. But the key point is that any threat to the tribe’s sovereign interests flows from changed uses or nonmember activities, rather than from the mere fact of resale. The tribe is able fully to vindicate its sovereign interests in protecting its members and preserving tribal self-government by regulating nonmember activity on the land, within the limits set forth in our cases. The tribe has no independent interest in restraining alienation of the land itself, and thus, no authority to do so. Not only is regulation of fee land sale beyond the tribe’s sovereign powers, it runs the risk of subjecting nonmembers to tribal regulatory authority without commensurate consent. Tribal sovereignty, it should be remembered, is “a sovereignty outside the basic structure of the Constitution.” United States v. Lara, 541 U. S. 193, 212 (2004) (Kennedy, J., concurring in judgment). The Bill of Rights does not apply to Indian tribes. See Talton v. Mayes, 163 U. S. 376, 382–385 (1896). Indian courts “differ from traditional American courts in a number of significant respects.” Hicks, 533 U. S., at 383 (Souter, J., concurring). And nonmembers have no part in tribal government—they have no say in the laws and regulations that govern tribal territory. Consequently, those laws and regulations may be fairly imposed on nonmembers only if the nonmember has consented, either expressly or by his actions. Even then, the regulation must stem from the tribe’s inherent sovereign authority to set conditions on entry, preserve tribal self-government, or control internal relations. See Montana, 450 U. S., at 564. In commenting on the policy goals Congress adopted with the General Allotment Act, we noted that “[t]here is simply no suggestion” in the history of the Act “that Congress intended that the non-Indians who would settle upon alienated allotted lands would be subject to tribal regulatory authority.” Id., at 560, n. 9. In fact, we said it “defies common sense to suppose” that Congress meant to subject non-Indians to tribal jurisdiction simply by virtue of the nonmember’s purchase of land in fee simple. Ibid. If Congress did not anticipate tribal jurisdiction would run with the land, we see no reason why a nonmember would think so either. The Longs point out that the Bank in this case could hardly have been surprised by the Tribe’s assertion of regulatory power over the parties’ business dealings. The Bank, after all, had “lengthy on-reservation commercial relationships with the Long Company.” Brief for Respondents 40. Justice Ginsburg echoes this point. See post, at 4. But as we have emphasized repeatedly in this context, when it comes to tribal regulatory authority, it is not “in for a penny, in for a Pound.” Atkinson, 532 U. S., at 656 (internal quotation marks omitted). The Bank may reasonably have anticipated that its various commercial dealings with the Longs could trigger tribal authority to regulate those transactions—a question we need not and do not decide. But there is no reason the Bank should have anticipated that its general business dealings with respondents would permit the Tribe to regulate the Bank’s sale of land it owned in fee simple. Even the courts below recognized that the Longs’ discrimination claim was a “novel” one. 491 F. 3d, at 892. It arose “directly from Lakota tradition as embedded in Cheyenne River Sioux tradition and custom,” including the Lakota “sense of justice, fair play and decency to others.” 440 F. Supp. 2d, at 1082 (internal quotation marks omitted). The upshot was to require the Bank to offer the same terms of sale to a prospective buyer who had defaulted in several previous transactions with the Bank as it offered to a different buyer without such a history of default. This is surely not a typical regulation. But whatever the Bank anticipated, whatever “consensual relationship” may have been established through the Bank’s dealing with the Longs, the jurisdictional consequences of that relationship cannot extend to the Bank’s subsequent sale of its fee land. The Longs acknowledge, if obliquely, the critical importance of land status. They emphasize that the Long Company “operated on reservation fee and trust lands,” Brief for Respondents 40, and n. 24, 41, and note that “the fee land at issue in the lease-repurchase agreement” had previously belonged to a tribal member, id., at 47. These facts, however, do not change the status of the land at the time of the challenged sale. Regardless of where the Long Company operated, the fee land whose sale the Longs seek to restrain was owned by the Bank at the relevant time. And indeed, before that, it was owned by Kenneth Long, a non-Indian. See Hicks, supra, at 382, n. 4 (Souter, J., concurring) (“Land status . . . might well have an impact under one (or perhaps both) of the Montana exceptions”), Atkinson, supra, at 659 (Souter, J., concurring) (status of territory as “tribal or fee land may have much to do (as it does here) with the likelihood (or not) that facts will exist that are relevant under the [Montana] exceptions”). The Longs attempt to salvage their position by arguing that the discrimination claim is best read to challenge the Bank’s whole course of commercial dealings with the Longs stretching back over a decade—not just the sale of the fee land. Brief for Respondents 44. That argument is unavailing. The Longs are the first to point out that their breach-of-contract and bad-faith claims, which do involve the Bank’s course of dealings, are not before this Court. Ibid. Only the discrimination claim is before us and that claim is tied specifically to the sale of the fee land.[Footnote 2] Ibid. Count six of the Longs’ amended complaint in the Tribal Court alleges that “[i]n selling the Longs’ land, [Plains Commerce Bank] unfairly discriminated against the Company and the Longs.” App. 172–173 (emphasis added). As relief, the Longs claimed they “should get possession and title to their land back.” Id., at 173. The Longs’ discrimination claim, in short, is an attempt to regulate the terms on which the Bank may sell the land it owns.[Footnote 3] Such regulation is outside the scope of a tribe’s sovereign authority. Justice Ginsburg asserts that if “[t]he Federal Government and every State, county, and municipality can make nondiscrimination the law governing . . . real property transactions,” tribes should be able to do so as well. Post, at 8. This argument completely overlooks the very reason cases like Montana and this one arise: Tribal jurisdiction, unlike the jurisdiction of the other governmental entities cited by Justice Ginsburg, generally does not extend to nonmembers. See Montana, supra, at 565. The sovereign authority of Indian tribes is limited in ways state and federal authority is not. Contrary to Justice Ginsburg’s suggestion, that bedrock principle does not vary depending on the desirability of a particular regulation. Montana provides that, in certain circumstances, tribes may exercise authority over the conduct of nonmembers, even if that conduct takes place on non-Indian fee land. But conduct taking place on the land and the sale of the land are two very different things. The Cheyenne River Sioux Tribe lost the authority to restrain the sale of fee simple parcels inside their borders when the land was sold as part of the 1908 Allotment Act. Nothing in Montana gives it back. C Neither the District Court nor the Court of Appeals relied for its decision on the second Montana exception. The Eighth Circuit declined to address the exception’s applicability, see 491 F. 3d, at 888, n. 7, while the District Court strongly suggested in passing that the second exception would not apply here, see 440 F. Supp. 2d, at 1077. The District Court is correct, for the same reasons we explained above. The second Montana exception stems from the same sovereign interests that give rise to the first, interests that do not reach to regulating the sale of non-Indian fee land. The second exception authorizes the tribe to exercise civil jurisdiction when non-Indians’ “conduct” menaces the “political integrity, the economic security, or the health or welfare of the tribe.” Montana, 450 U. S., at 566. The conduct must do more than injure the tribe, it must “imperil the subsistence” of the tribal community. Ibid. One commentator has noted that “th[e] elevated threshold for application of the second Montana exception suggests that tribal power must be necessary to avert catastrophic consequences.” Cohen §4.02[3][c], at 232, n. 220. The sale of formerly Indian-owned fee land to a third party is quite possibly disappointing to the tribe, but cannot fairly be called “catastrophic” for tribal self-government. See Strate, 520 U. S., at 459. The land in question here has been owned by a non-Indian party for at least 50 years, Brief for Respondents 4, during which time the project of tribal self-government has proceeded without interruption. The land’s resale to another non-Indian hardly “imperil[s] the subsistence or welfare of the tribe.” Montana, supra, at 566. Accordingly, we hold the second Montana exception inapplicable in this case. D Finally, we address the Longs’ argument that the Bank consented to tribal court jurisdiction over the discrimination claim by seeking the assistance of tribal courts in serving a notice to quit. Brief for Respondents 44–46. When the Longs refused to vacate the land, the Bank initiated eviction proceedings in South Dakota state court. The Bank then asked the Tribal Court to appoint a process server able to reach the Longs. Seeking the Tribal Court’s aid in serving process on tribal members for a pending state-court action does not, we think, constitute consent to future litigation in the Tribal Court. Notably, when the Longs did file their complaint against the Bank in Tribal Court, the Bank promptly contended in its answer that the court lacked jurisdiction. Brief for United States as Amicus Curiae 7. Under these circumstances, we find that the Bank did not consent by its litigation conduct to tribal court jurisdiction over the Longs’ discrimination claim. * * * The judgment of the Court of Appeals for the Eighth Circuit is reversed. It is so ordered. Footnote 1 Justice Ginsburg questions this distinction between sales and activities on the ground that “[s]ales of land—and related conduct—are surely ‘activities’ within the ordinary sense of the word.” Post, at 6. We think the distinction is readily understandable. In any event, the question is not whether a sale is, in some generic sense, an action. The question is whether land ownership and sale are “activities” within the meaning of Montana and the other cited precedents. Footnote 2 Justice Ginsburg contends that if the Tribal Court has jurisdiction over the Longs’ other claims, it is hard to understand why jurisdiction would not also extend to the discrimination claim. Post, at 8. First, we have not said the Tribal Court has jurisdiction over the other claims: That question is not before us and we decline to speculate as to its answer. Moreover, the claims on which the Longs prevailed concern breach of a loan agreement, see App. 190, and bad faith in connection with Bureau of Indian Affairs loan guarantees, see id., at 192. The present claim involves substantive regulation of the sale of fee land. Footnote 3 We point to the relief requested by the Longs—and partially granted by the Tribal Court—to rebut the Longs’ contention that their claim did not focus on the sale of the fee land. Contrary to Justice Ginsburg’s assertion, however, the nature of this remedy does not drive our jurisdictional ruling. See post, at 11–12. The remedy is invalid because there is no jurisdiction, not the other way around. |
552.US.346 | A contract between respondent Ferrer, who appears on television as “Judge Alex,” and petitioner Preston, an entertainment industry attorney, requires arbitration of “any dispute … relating to the [contract’s] terms … or the breach, validity, or legality thereof … in accordance with [American Arbitration Association (AAA)] rules.” Preston invoked this provision to gain fees allegedly due under the contract. Ferrer thereupon petitioned the California Labor Commissioner (Labor Commissioner) for a determination that the contract was invalid and unenforceable under California’s Talent Agencies Act (TAA) because Preston had acted as a talent agent without the required license. After the Labor Commissioner’s hearing officer denied Ferrer’s motion to stay the arbitration, Ferrer filed suit in state court seeking to enjoin arbitration, and Preston moved to compel arbitration. The court denied Preston’s motion and enjoined him from proceeding before the arbitrator unless and until the Labor Commissioner determined she lacked jurisdiction over the dispute. While Preston’s appeal was pending, this Court held, in Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 446, that challenges to the validity of a contract requiring arbitration of disputes ordinarily “should … be considered by an arbitrator, not a court.” Affirming the judgment below, the California Court of Appeal held that the TAA vested the Labor Commissioner with exclusive original jurisdiction over the dispute, and that Buckeye was inapposite because it did not involve an administrative agency with exclusive jurisdiction over a disputed issue. Held: When parties agree to arbitrate all questions arising under a contract, the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative. Pp. 4–16. (a) The issue is not whether the FAA preempts the TAA wholesale. Instead, the question is simply who decides—the arbitrator or the Labor Commissioner—whether Preston acted as an unlicensed talent agent in violation of the TAA, as Ferrer claims, or as a personal manager not governed by the TAA, as Preston contends. P. 4. (b) FAA §2 “declare[s] a national policy favoring arbitration” when the parties contract for that mode of dispute resolution. Southland Corp. v. Keating, 465 U. S. 1, 10. That national policy “appli[es] in state as well as federal courts” and “foreclose[s] state legislative attempts to undercut the enforceability of arbitration agreements.” Id., at 16. The FAA’s displacement of conflicting state law has been repeatedly reaffirmed. See, e.g., Buckeye, 546 U. S., at 445–446; Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 272. A recurring question under §2 is who should decide whether “grounds … exist at law or in equity” to invalidate an arbitration agreement. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 403–404, which originated in federal court, this Court held that attacks on an entire contract’s validity, as distinct from attacks on the arbitration clause alone, are within the arbitrator’s ken. Buckeye held that the same rule applies in state court. See 546 U. S., at 446. Buckeye largely, if not entirely, resolves the present dispute. The contract at issue clearly “evidenc[ed] a transaction involving commerce” under §2, and Ferrer has never disputed that the contract’s written arbitration provision falls within §2’s purview. Ferrer sought invalidation of the contract as a whole. He made no discrete challenge to the validity of the arbitration clause, and thus sought to override that clause on a ground Buckeye requires the arbitrator to decide in the first instance. Pp. 5–6. (c) Ferrer attempts to distinguish Buckeye, urging that the TAA merely requires exhaustion of administrative remedies before the parties proceed to arbitration. This argument is unconvincing. Pp. 6–12. (1) Procedural prescriptions of the TAA conflict with the FAA’s dispute resolution regime in two basic respects: (1) One TAA provision grants the Labor Commissioner exclusive jurisdiction to decide an issue that the parties agreed to arbitrate, see Buckeye, 546 U. S., at 446; (2) another imposes prerequisites to enforcement of an arbitration agreement that are not applicable to contracts generally, see Doctor’s Associates, Inc. v. Casarotto, 517 U. S. 681, 687. Pp. 7–8. (2) Ferrer contends that the TAA is compatible with the FAA because the TAA provision vesting exclusive jurisdiction in the Labor Commissioner merely postpones arbitration. That position is contrary to the one Ferrer took in the California courts and does not withstand examination. Arbitration, if it ever occurred following the Labor Commissioner’s decision, would likely be long delayed, in contravention of Congress’ intent “to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 22. Pp. 8–10. (3) Ferrer contends that the conflict between the arbitration clause and the TAA should be overlooked because Labor Commissioner proceedings are administrative rather than judicial. The Court rejected a similar argument in Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 28–29. Pp. 10–12. (d) Ferrer’s reliance on Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, is misplaced for two reasons. First, arbitration was stayed in Volt to accommodate litigation involving third parties who were strangers to the arbitration agreement. Because the contract at issue in Volt did not address the order of proceedings and included a choice-of-law clause adopting California law, the Volt Court recognized as the gap filler a California statute authorizing the state court to stay either third-party court proceedings or arbitration proceedings to avoid the possibility of conflicting rulings on a common issue. Here, in contrast, the arbitration clause speaks to the matter in controversy; both parties are bound by the arbitration agreement; the question of Preston’s status as a talent agent relates to the validity or legality of the contract; there is no risk that related litigation will yield conflicting rulings on common issues; and there is no other procedural void for the choice-of-law clause to fill. Second, the Court is guided by its decision in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52. Although the Volt contract provided for arbitration in accordance with AAA rules, 489 U. S., at 470, n. 1, Volt never argued that incorporation of those rules by reference trumped the contract’s choice-of-law clause, so this Court never addressed the import of such incorporation. In Mastrobuono, the Court reached that open question, declaring that the “best way to harmonize” a New York choice-of-law clause and a clause providing for arbitration in accordance with privately promulgated arbitration rules was to read the choice-of-law clause “to encompass substantive principles that New York courts would apply, but not to include [New York’s] special rules limiting [arbitrators’] authority.” 514 U. S., at 63–64. Similarly here, the “best way to harmonize” the Ferrer-Preston contract’s adoption of the AAA rules and its selection of California law is to read the latter to encompass prescriptions governing the parties’ substantive rights and obligations, but not the State’s “special rules limiting [arbitrators’] authority.” Ibid. Pp. 12–15. 145 Cal. App. 4th 440, 51 Cal. Rptr. 3d 628, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Souter, Breyer, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion. | As this Court recognized in Southland Corp. v. Keating, 465 U. S. 1 (1984), the Federal Arbitration Act (FAA or Act), 9 U. S. C. §1 et seq. (2000 ed. and Supp. V), establishes a national policy favoring arbitration when the parties contract for that mode of dispute resolution. The Act, which rests on Congress’ authority under the Commerce Clause, supplies not simply a procedural framework applicable in federal courts; it also calls for the application, in state as well as federal courts, of federal substantive law regarding arbitration. 465 U. S., at 16. More recently, in Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440 (2006), the Court clarified that, when parties agree to arbitrate all disputes arising under their contract, questions concerning the validity of the entire contract are to be resolved by the arbitrator in the first instance, not by a federal or state court. The instant petition presents the following question: Does the FAA override not only state statutes that refer certain state-law controversies initially to a judicial forum, but also state statutes that refer certain disputes initially to an administrative agency? We hold today that, when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA. I This case concerns a contract between respondent Alex E. Ferrer, a former Florida trial court judge who currently appears as “Judge Alex” on a Fox television network program, and petitioner Arnold M. Preston, a California attorney who renders services to persons in the entertainment industry. Seeking fees allegedly due under the contract, Preston invoked the parties’ agreement to arbitrate “any dispute … relating to the terms of [the contract] or the breach, validity, or legality thereof … in accordance with the rules [of the American Arbitration Association].” App. 18. Preston’s demand for arbitration, made in June 2005, was countered a month later by Ferrer’s petition to the California Labor Commissioner charging that the contract was invalid and unenforceable under the California Talent Agencies Act (TAA), Cal. Lab. Code Ann. §1700 et seq. (West 2003 and Supp. 2008). Ferrer asserted that Preston acted as a talent agent without the license required by the TAA, and that Preston’s unlicensed status rendered the entire contract void.[Footnote 1] The Labor Commissioner’s hearing officer, in November 2005, determined that Ferrer had stated a “colorable basis for exercise of the Labor Commissioner’s jurisdiction.” App. 33. The officer denied Ferrer’s motion to stay the arbitration, however, on the ground that the Labor Commissioner lacked authority to order such relief. Ferrer then filed suit in the Los Angeles Superior Court, seeking a declaration that the controversy between the parties “arising from the [c]ontract, including in particular the issue of the validity of the [c]ontract, is not subject to arbitration.” Id., at 29. As interim relief, Ferrer sought an injunction restraining Preston from proceeding before the arbitrator. Preston responded by moving to compel arbitration. In December 2005, the Superior Court denied Preston’s motion to compel arbitration and enjoined Preston from proceeding before the arbitrator “unless and until the Labor Commissioner determines that … she is without jurisdiction over the disputes between Preston and Ferrer.” No. BC342454 (Dec. 7, 2005), App. C to Pet. for Cert. 18a, 26a–27a. During the pendency of Preston’s appeal from the Superior Court’s decision, this Court reaffirmed, in Buckeye, that challenges to the validity of a contract providing for arbitration ordinarily “should … be considered by an arbitrator, not a court.” 546 U. S., at 446. In a 2-to-1 decision issued in November 2006, the California Court of Appeal affirmed the Superior Court’s judgment. The appeals court held that the relevant provision of the TAA, Cal. Lab. Code Ann. §1700.44(a) (West 2003), vests “exclusive original jurisdiction” over the dispute in the Labor Commissioner. 145 Cal. App. 4th 440, 447, 51 Cal. Rptr. 3d 628, 634. Buckeye is “inapposite,” the court said, because that case “did not involve an administrative agency with exclusive jurisdiction over a disputed issue.” 145 Cal. App. 4th, at 447, 51 Cal. Rptr. 3d, at 634. The dissenting judge, in contrast, viewed Buckeye as controlling; she reasoned that the FAA called for immediate recognition and enforcement of the parties’ agreement to arbitrate and afforded no basis for distinguishing prior resort to a state administrative agency from prior resort to a state court. 145 Cal. App. 4th, at 450–451, 51 Cal. Rptr. 3d, at 636–637 (Vogel, J., dissenting). The California Supreme Court denied Preston’s petition for review. No. S149190 (Feb. 14, 2007), 2007 Cal. LEXIS 1539, App. A to Pet. for Cert. 1a. We granted certiorari to determine whether the FAA overrides a state law vesting initial adjudicatory authority in an administrative agency. 551 U. S. ___ (2007). II An easily stated question underlies this controversy. Ferrer claims that Preston was a talent agent who operated without a license in violation of the TAA. Accordingly, he urges, the contract between the parties, purportedly for “personal management,” is void and Preston is entitled to no compensation for any services he rendered. Preston, on the other hand, maintains that he acted as a personal manager, not as a talent agent, hence his contract with Ferrer is not governed by the TAA and is both lawful and fully binding on the parties. Because the contract between Ferrer and Preston provides that “any dispute … relating to the … validity, or legality” of the agreement “shall be submitted to arbitration,” App. 18, Preston urges that Ferrer must litigate “his TAA defense in the arbitral forum,” Reply Brief 31. Ferrer insists, however, that the “personal manager” or “talent agent” inquiry falls, under California law, within the exclusive original jurisdiction of the Labor Commissioner, and that the FAA does not displace the Commissioner’s primary jurisdiction. Brief for Respondent 14, 30, 40–44. The dispositive issue, then, contrary to Ferrer’s suggestion, is not whether the FAA preempts the TAA wholesale. See id., at 44–48. The FAA plainly has no such destructive aim or effect. Instead, the question is simply who decides whether Preston acted as personal manager or as talent agent. III Section 2 of the FAA states: “A written provision in any … contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. Section 2 “declare[s] a national policy favoring arbitration” of claims that parties contract to settle in that manner. Southland Corp., 465 U. S., at 10. That national policy, we held in Southland, “appli[es] in state as well as federal courts” and “foreclose[s] state legislative attempts to undercut the enforceability of arbitration agreements.” Id., at 16. The FAA’s displacement of conflicting state law is “now well-established,” Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 272 (1995), and has been repeatedly reaffirmed, see, e.g., Buckeye, 546 U. S., at 445–446; Doctor’s Associates, Inc. v. Casarotto, 517 U. S. 681, 684–685 (1996); Perry v. Thomas, 482 U. S. 483, 489 (1987).[Footnote 2] A recurring question under §2 is who should decide whether “grounds … exist at law or in equity” to invalidate an arbitration agreement. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 403–404 (1967), we held that attacks on the validity of an entire contract, as distinct from attacks aimed at the arbitration clause, are within the arbitrator’s ken. The litigation in Prima Paint originated in federal court, but the same rule, we held in Buckeye, applies in state court. 546 U. S., at 447–448. The plaintiffs in Buckeye alleged that the contracts they signed, which contained arbitration clauses, were illegal under state law and void ab initio. Id., at 443. Relying on Southland, we held that the plaintiffs’ challenge was within the province of the arbitrator to decide. See 546 U. S., at 446. Buckeye largely, if not entirely, resolves the dispute before us. The contract between Preston and Ferrer clearly “evidenc[ed] a transaction involving commerce,” 9 U. S. C. §2, and Ferrer has never disputed that the written arbitration provision in the contract falls within the purview of §2. Moreover, Ferrer sought invalidation of the contract as a whole. In the proceedings below, he made no discrete challenge to the validity of the arbitration clause. See 145 Cal. App. 4th, at 449, 51 Cal. Rptr. 3d, at 635 (Vogel, J., dissenting).[Footnote 3] Ferrer thus urged the Labor Commissioner and California courts to override the contract’s arbitration clause on a ground that Buckeye requires the arbitrator to decide in the first instance. IV Ferrer attempts to distinguish Buckeye by arguing that the TAA merely requires exhaustion of administrative remedies before the parties proceed to arbitration. We reject that argument. A The TAA regulates talent agents and talent agency agreements. “Talent agency” is defined, with exceptions not relevant here, as “a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists.” Cal. Lab. Code Ann. §1700.4(a) (West 2003). The definition “does not cover other services for which artists often contract, such as personal and career management (i.e., advice, direction, coordination, and oversight with respect to an artist’s career or personal or financial affairs).” Styne v. Stevens, 26 Cal. 4th 42, 51, 26 P. 3d 343, 349 (2001) (emphasis deleted). The TAA requires talent agents to procure a license from the Labor Commissioner. §1700.5. “In furtherance of the [TAA’s] protective aims, an unlicensed person’s contract with an artist to provide the services of a talent agency is illegal and void.” Id., at 51, 26 P. 3d, at 349.[Footnote 4] Section 1700.44(a) of the TAA states: “In cases of controversy arising under this chapter, the parties involved shall refer the matters in dispute to the Labor Commissioner, who shall hear and determine the same, subject to an appeal within 10 days after determination, to the superior court where the same shall be heard de novo.” Absent a notice of appeal filed within ten days, the Labor Commissioner’s determination becomes final and binding on the parties. REO Broadcasting Consultants v. Martin, 69 Cal. App. 4th 489, 495, 81 Cal. Rptr. 2d 639, 642–643 (1999).[Footnote 5] The TAA permits arbitration in lieu of proceeding before the Labor Commissioner if an arbitration provision “in a contract between a talent agency and [an artist]” both “provides for reasonable notice to the Labor Commissioner of the time and place of all arbitration hearings” and gives the Commissioner “the right to attend all arbitration hearings.” §1700.45. This prescription demonstrates that there is no inherent conflict between the TAA and arbitration as a dispute resolution mechanism. But §1700.45 was of no utility to Preston. He has consistently maintained that he is not a talent agent as that term is defined in §1700.4(a), but is, instead, a personal manager not subject to the TAA’s regulatory regime. 145 Cal. App. 4th, at 444, 51 Cal. Rptr. 3d, at 631. To invoke §1700.45, Preston would have been required to concede a point fatal to his claim for compensation—i.e., that he is a talent agent, albeit an unlicensed one—and to have drafted his contract in compliance with a statute that he maintains is inapplicable. Procedural prescriptions of the TAA thus conflict with the FAA’s dispute resolution regime in two basic respects: First, the TAA, in §1700.44(a), grants the Labor Commissioner exclusive jurisdiction to decide an issue that the parties agreed to arbitrate, see Buckeye, 546 U. S., at 446; second, the TAA, in §1700.45, imposes prerequisites to enforcement of an arbitration agreement that are not applicable to contracts generally, see Doctor’s Associates, Inc., 517 U. S., at 687. B Ferrer contends that the TAA is nevertheless compatible with the FAA because §1700.44(a) merely postpones arbitration until after the Labor Commissioner has exercised her primary jurisdiction. Brief for Respondent 14, 40. The party that loses before the Labor Commissioner may file for de novo review in Superior Court. See §1700.44(a). At that point, Ferrer asserts, either party could move to compel arbitration under Cal. Civ. Proc. Code Ann. §1281.2 (West 2007), and thereby obtain an arbitrator’s determination prior to judicial review. See Brief for Respondent 13. That is not the position Ferrer took in the California courts. In his complaint, he urged the Superior Court to declare that “the [c]ontract, including in particular the issue of the validity of the [c]ontract, is not subject to arbitration,” and he sought an injunction stopping arbitration “unless and until, if ever, the Labor Commissioner determines that he/she has no jurisdiction over the parties’ dispute.” App. 29 (emphasis added). Ferrer also told the Superior Court: “[I]f … the Commissioner rules that the [c]ontract is void, Preston may appeal that ruling and have a hearing de novo before this Court.” Appellant’s App. in No. B188997 (Cal. App.), p. 157, n. 1 (emphasis added). Nor does Ferrer’s current argument—that §1700.44(a) merely postpones arbitration—withstand examination. Section 1700.44(a) provides for de novo review in Superior Court, not elsewhere.[Footnote 6] Arbitration, if it ever occurred following the Labor Commissioner’s decision, would likely be long delayed, in contravention of Congress’ intent “to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 22 (1983). If Ferrer prevailed in the California courts, moreover, he would no doubt argue that judicial findings of fact and conclusions of law, made after a full and fair de novo hearing in court, are binding on the parties and preclude the arbitrator from making any contrary rulings. A prime objective of an agreement to arbitrate is to achieve “streamlined proceedings and expeditious results.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 633 (1985). See also Allied-Bruce Terminix Cos., 513 U. S., at 278; Southland Corp., 465 U. S., at 7. That objective would be frustrated even if Preston could compel arbitration in lieu of de novo Superior Court review. Requiring initial reference of the parties’ dispute to the Labor Commissioner would, at the least, hinder speedy resolution of the controversy. Ferrer asks us to overlook the apparent conflict between the arbitration clause and §1700.44(a) because proceedings before the Labor Commissioner are administrative rather than judicial. Brief for Respondent 40–48. Allowing parties to proceed directly to arbitration, Ferrer contends, would undermine the Labor Commissioner’s ability to stay informed of potentially illegal activity, id., at 43, and would deprive artists protected by the TAA of the Labor Commissioner’s expertise, id., at 41–43. In Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991), we considered and rejected a similar argument, namely, that arbitration of age discrimination claims would undermine the role of the Equal Employment Opportunity Commission (EEOC) in enforcing federal law. The “mere involvement of an administrative agency in the enforcement of a statute,” we held, does not limit private parties’ obligation to comply with their arbitration agreements. Id., at 28–29. Ferrer points to our holding in EEOC v. Waffle House, Inc., 534 U. S. 279, 293–294 (2002), that an arbitration agreement signed by an employee who becomes a discrimination complainant does not bar the EEOC from filing an enforcement suit in its own name. He further emphasizes our observation in Gilmer that individuals who agreed to arbitrate their discrimination claims would “still be free to file a charge with the EEOC.” 500 U. S., at 28. Consistent with these decisions, Ferrer argues, the arbitration clause in his contract with Preston leaves undisturbed the Labor Commissioner’s independent authority to enforce the TAA. See Brief for Respondent 44–48. And so it may.[Footnote 7] But in proceedings under §1700.44(a), the Labor Commissioner functions not as an advocate advancing a cause before a tribunal authorized to find the facts and apply the law; instead, the Commissioner serves as impartial arbiter. That role is just what the FAA-governed agreement between Ferrer and Preston reserves for the arbitrator. In contrast, in Waffle House and in the Gilmer aside Ferrer quotes, the Court addressed the role of an agency, not as adjudicator but as prosecutor, pursuing an enforcement action in its own name or reviewing a discrimination charge to determine whether to initiate judicial proceedings. Finally, it bears repeating that Preston’s petition presents precisely and only a question concerning the forum in which the parties’ dispute will be heard. See supra, at 4. “By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral … forum.” Mitsubishi Motors Corp., 473 U. S., at 628. So here, Ferrer relinquishes no substantive rights the TAA or other California law may accord him. But under the contract he signed, he cannot escape resolution of those rights in an arbitral forum. In sum, we disapprove the distinction between judicial and administrative proceedings drawn by Ferrer and adopted by the appeals court. When parties agree to arbitrate all questions arising under a contract, the FAA supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative. V Ferrer’s final attempt to distinguish Buckeye relies on Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468 (1989). Volt involved a California statute dealing with cases in which “[a] party to [an] arbitration agreement is also a party to a pending court action … [involving] a third party [not bound by the arbitration agreement], arising out of the same transaction or series of related transactions.” Cal. Civ. Proc. Code Ann. §1281.2(c) (West 2007). To avoid the “possibility of conflicting rulings on a common issue of law or fact,” the statute gives the Superior Court authority, inter alia, to stay the court proceeding “pending the outcome of the arbitration” or to stay the arbitration “pending the outcome of the court action.” Ibid. Volt Information Sciences and Stanford University were parties to a construction contract containing an arbitration clause. When a dispute arose and Volt demanded arbitration, Stanford sued Volt and two other companies involved in the construction project. Those other companies were not parties to the arbitration agreement; Stanford sought indemnification from them in the event that Volt prevailed against Stanford. At Stanford’s request, the Superior Court stayed the arbitration. The California Court of Appeal affirmed the stay order. Volt and Stanford incorporated §1281.2(c) into their agreement, the appeals court held. They did so by stipulating that the contract—otherwise silent on the priority of suits drawing in parties not subject to arbitration—would be governed by California law. Board of Trustees of Leland Stanford Junior Univ. v. Volt Information Sciences, Inc., 240 Cal. Rptr. 558, 561 (1987) (officially depublished). Relying on the Court of Appeal’s interpretation of the contract, we held that the FAA did not bar a stay of arbitration pending the resolution of Stanford’s Superior Court suit against Volt and the two companies not bound by the arbitration agreement. Preston and Ferrer’s contract also contains a choice-of-law clause, which states that the “agreement shall be governed by the laws of the state of California.” App. 17. A separate saving clause provides: “If there is any conflict between this agreement and any present or future law,” the law prevails over the contract “to the extent necessary to bring [the contract] within the requirements of said law.” Id., at 18. Those contractual terms, according to Ferrer, call for the application of California procedural law, including §1700.44(a)’s grant of exclusive jurisdiction to the Labor Commissioner. Ferrer’s reliance on Volt is misplaced for two discrete reasons. First, arbitration was stayed in Volt to accommodate litigation involving third parties who were strangers to the arbitration agreement. Nothing in the arbitration agreement addressed the order of proceedings when pending litigation with third parties presented the prospect of inconsistent rulings. We thought it proper, in those circumstances, to recognize state law as the gap filler. Here, in contrast, the arbitration clause speaks to the matter in controversy; it states that “any dispute … relating to … the breach, validity, or legality” of the contract should be arbitrated in accordance with the American Arbitration Association (AAA) rules. App. 18. Both parties are bound by the arbitration agreement; the question of Preston’s status as a talent agent relates to the validity or legality of the contract; there is no risk that related litigation will yield conflicting rulings on common issues; and there is no other procedural void for the choice-of-law clause to fill. Second, we are guided by our more recent decision in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52 (1995). Although the contract in Volt provided for “arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association,” 489 U. S., at 470, n. 1 (internal quotation marks omitted), Volt never argued that incorporation of those rules trumped the choice-of-law clause contained in the contract, see Brief for Appellant, and Reply Brief, in Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., O. T. 1987, No. 87–1318. Therefore, neither our decision in Volt nor the decision of the California appeals court in that case addressed the import of the contract’s incorporation by reference of privately promulgated arbitration rules. In Mastrobuono, we reached that open question while interpreting a contract with both a New York choice-of-law clause and a clause providing for arbitration in accordance with the rules of the National Association of Securities Dealers (NASD). 514 U. S., at 58–59.[Footnote 8] The “best way to harmonize” the two clauses, we held, was to read the choice-of-law clause “to encompass substantive principles that New York courts would apply, but not to include [New York’s] special rules limiting the authority of arbitrators.” Id., at 63–64. Preston and Ferrer’s contract, as noted, provides for arbi- tration in accordance with the AAA rules. App. 18. One of those rules states that “[t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part.” AAA, Commercial Arbitration Rules ¶R–7(b) (2007), online at http://www.adr.org/sp.asp?id=22440 (as visited Feb. 15, 2008, and in Clerk of Court’s case file). The incorporation of the AAA rules, and in particular Rule 7(b), weighs against inferring from the choice-of-law clause an understanding shared by Ferrer and Preston that their disputes would be heard, in the first instance, by the Labor Commissioner. Following the guide Mastrobuono provides, the “best way to harmonize” the parties’ adoption of the AAA rules and their selection of California law is to read the latter to encompass prescriptions governing the substantive rights and obligations of the parties, but not the State’s “special rules limiting the authority of arbitrators.” 514 U. S., at 63–64. * * * For the reasons stated, the judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 The TAA uses the term “talent agency” to describe both corporations and individual talent agents. We use the terms “talent agent” and “talent agency” interchangeably. Footnote 2 Although Ferrer urges us to overrule Southland, he relies on the same arguments we considered and rejected in Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995). Compare Brief for Respondent 55–59, with Brief for Attorney General of Alabama et al. as Amici Curiae in Allied-Bruce Terminix Cos. v. Dobson, O. T. 1993, No. 93–1001, pp. 11–19. Adhering to precedent, we do not take up Ferrer’s invitation to overrule Southland. Footnote 3 Ferrer’s petition to the Labor Commissioner sought a declaration that the contract “is void under the [TAA].” App. 23. His complaint in Superior Court seeking to enjoin arbitration asserted: “[T]he [c]ontract is void by reason of [Preston’s] attempt to procure employment for [Ferrer] in violation of the [TAA],” and “the [c]ontract’s arbitration clause does not vest authority in an arbitrator to determine whether the contract is void.” Id., at 27. His brief in the appeals court stated: “Ferrer does not contend that the arbitration clause in the [c]ontract was procured by fraud. Ferrer contends that Preston unlawfully acted as an unlicensed talent agent and hence cannot enforce the [c]ontract.” Brief for Respondent in No. B188997, p. 18. Footnote 4 Courts “may void the entire contract” where talent agency services regulated by the TAA are “inseparable from [unregulated] managerial services.” Marathon Entertainment, Inc. v. Blasi, No. S145428, 2008 WL 216532, *13 (Cal., Jan. 28, 2008). If the contractual terms are severable, however, “an isolated instance” of unlicensed conduct “does not automatically bar recovery for services that could lawfully be provided without a license.” Ibid. Footnote 5 To appeal the Labor Commissioner’s decision, an aggrieved party must post a bond of at least $1,000 and up to twice the amount of any judgment approved by the Commissioner. §1700.44(a). Footnote 6 From Superior Court an appeal lies in the Court of Appeal. Cal. Civ. Proc. Ann. §904.1(a) (West 2007); Cal. Rule of Court 8.100(a) (Appellate Rules) (West 2007 rev. ed.). Thereafter, the losing party may seek review in the California Supreme Court, Rule 8.500(a)(1) (Appellate Rules), perhaps followed by a petition for a writ of certiorari in this Court, 28 U. S. C. §1257. Ferrer has not identified a single case holding that California law permits interruption of this chain of appeals to allow the arbitrator to review the Labor Commissioner’s decision. See Tr. of Oral Arg. 35. Footnote 7 Enforcement of the parties’ arbitration agreement in this case does not displace any independent authority the Labor Commissioner may have to investigate and rectify violations of the TAA. See Brief for Respondent 47 (“[T]he Commissioner has independent investigatory authority and may receive information concerning alleged violations of the TAA from any source.” (citation omitted)). See also Tr. of Oral Arg. 13–14. Footnote 8 The question in Mastrobuono was whether the arbitrator could award punitive damages. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 53–54 (1995). New York law prohibited arbitrators, but not courts, from awarding such damages. Id., at 55. The NASD rules, in contrast, authorized “damages and other relief,” which, according to a NASD arbitration manual, included punitive damages. Id., at 61 (internal quotation marks omitted). Relying on Volt, respondents argued that the choice-of-law clause incorporated into the parties’ arbitration agreement New York’s ban on arbitral awards of punitive damages. Opposing that argument, petitioners successfully urged that the agreement to arbitrate in accordance with the NASD rules controlled. |
553.US.617 | The longstanding doctrine of patent exhaustion limits the patent rights that survive the initial authorized sale of a patented item. Respondent (LGE) purchased, inter alia, the computer technology patents at issue (LGE Patents): One discloses a system for ensuring that most current data are retrieved from main memory, one relates to the coordination of requests to read from and write to main memory, and one addresses the problem of managing data traffic on a set of wires, or “bus,” connecting two computer components. LGE licensed the patents to Intel Corporation (Intel), in an agreement (License Agreement) that authorizes Intel to manufacture and sell microprocessors and chipsets using the LGE Patents (Intel Products) and that does not purport to alter patent exhaustion rules. A separate agreement (Master Agreement) required Intel to give its customers written notice that the license does not extend to a product made by combining an Intel Product with a non-Intel product, and provided that a breach of the agreement would not affect the License Agreement. Petitioner computer manufacturers (Quanta) purchased microprocessors and chipsets from Intel. Quanta then manufactured computers using Intel parts in combination with non-Intel parts, but did not modify the Intel components. LGE sued, asserting that this combination infringed the LGE Patents. The District Court granted Quanta summary judgment, but on reconsideration, denied summary judgment as to the LGE Patents because they contained method claims. The Federal Circuit affirmed in part and reversed in part, agreeing with the District Court that the patent exhaustion doctrine does not apply to method patents, which describe operations to make or use a product; and concluding, in the alternative, that exhaustion did not apply because LGE did not license Intel to sell the Intel Products to Quanta to combine with non-Intel products. Held: Because the doctrine of patent exhaustion applies to method patents, and because the License Agreement authorizes the sale of components that substantially embody the patents in suit, the exhaustion doctrine prevents LGE from further asserting its patent rights with respect to the patents substantially embodied by those products. Pp. 5–19. (a) The patent exhaustion doctrine provides that a patented item’s initial authorized sale terminates all patent rights to that item. See, e.g., Bloomer v. McQuewan, 14 How. 539. In the Court’s most recent discussion of the doctrine, United States v. Univis Lens Co., 316 U. S. 241, patents for finished eyeglass lenses, held by the respondent (Univis), did not survive the sale of lens blanks by the licensed manufacturer to wholesalers and finishing retailers who ground the blanks into patented finished lenses. The Court assumed that Univis’ patents were practiced in part by the wholesalers and finishing retailers, concluding that the traditional bar on patent restrictions following an item’s sale applies when the item sufficiently embodies the patent—even if it does not completely practice the patent—such that its only and intended use is to be finished under the patent’s terms. The parties’ arguments here are addressed with this patent exhaustion history in mind. Pp. 5–8. (b) Nothing in this Court’s approach to patent exhaustion supports LGE’s argument that method claims, as a category, are never exhaustible. A patented method may not be sold in the same way as an article or device, but methods nonetheless may be “embodied” in a product, the sale of which exhausts patent rights. The Court has repeatedly found method patents exhausted by the sale of an item embodying the method. See Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 446, 457; Univis, supra, at 248–251. These cases rest on solid footing. Eliminating exhaustion for method patents would seriously undermine the exhaustion doctrine, since patentees seeking to avoid exhaustion could simply draft their claims to describe a method rather than an apparatus. On LGE’s theory here, for example, although Intel is authorized to sell a completed computer system that practices the LGE Patents, downstream purchasers could be liable for patent infringement, which would violate the longstanding principle that, when a patented item is “once lawfully made and sold, there is no restriction on [its] use to be implied for the [patentee’s] benefit,” Adams v. Burke, 17 Wall. 453, 457. Pp. 9–11. (c) The Intel Products embodied the patents here. Univis governs this case. There, exhaustion was triggered by the sale of the lens blanks because their only reasonable and intended use was to practice the patent and because they “embodie[d] essential features of [the] patented invention,” 316 U. S., at 249–251. Each of those attributes is shared by the microprocessors and chipsets Intel sold to Quanta under the License Agreement. First, LGE has suggested no reasonable use for the Intel Products other than incorporating them into computer systems that practice the LGE Patents: A microprocessor or chipset cannot function until it is connected to buses and memory. And as in Univis, the only apparent object of Intel’s sales was to permit Quanta to incorporate the Intel Products into computers that would practice the patents. Second, like the Univis lens blanks, the Intel Products constitute a material part of the patented invention and all but completely practice the patent. The only step necessary to practice the patent is the application of common processes or the addition of standard parts. Everything inventive about each patent is embodied in the Intel Products. LGE’s attempts to distinguish Univis are unavailing. Pp. 11–16. (d) Intel’s sale to Quanta exhausted LGE’s patent rights. Exhaustion is triggered only by a sale authorized by the patent holder. Univis, supra, at 249. LGE argues that this sale was not authorized because the License Agreement does not permit Intel to sell its products for use in combination with non-Intel products to practice the LGE Patents. But the License Agreement does not restrict Intel’s right to sell its products to purchasers who intend to combine them with non-Intel parts. Intel was required to give its customers notice that LGE had not licensed those customers to practice its patents, but neither party contends that Intel breached that agreement. In any event, the notice provision is in the Master Agreement, and LGE does not suggest that a breach of that agreement would constitute a License Agreement breach. Contrary to LGE’s position, the question whether third parties may have received implied licenses is irrelevant, because Quanta asserts its right to practice the patents based not on implied license but on exhaustion, and exhaustion turns only on Intel’s own license to sell products practicing the LGE Patents. LGE’s alternative argument, invoking the principle that patent exhaustion does not apply to postsale restrictions on “making” an article, is simply a rephrasing of its argument that combining the Intel Products with other components adds more than standard finishing to complete a patented article. Pp. 16–18. 453 F. 3d 1364, reversed. Thomas, J., delivered the opinion for a unanimous Court. | For over 150 years this Court has applied the doctrine of patent exhaustion to limit the patent rights that survive the initial authorized sale of a patented item. In this case, we decide whether patent exhaustion applies to the sale of components of a patented system that must be combined with additional components in order to practice the patented methods. The Court of Appeals for the Federal Circuit held that the doctrine does not apply to method patents at all and, in the alternative, that it does not apply here because the sales were not authorized by the license agreement. We disagree on both scores. Because the exhaustion doctrine applies to method patents, and because the license authorizes the sale of components that substantially embody the patents in suit, the sale exhausted the patents. I Respondent LG Electronics, Inc. (LGE), purchased a portfolio of computer technology patents in 1999, including the three patents at issue here: U. S. Patent Nos. 4,939,641 (’641); 5,379,379 (’379); and 5,077,733 (’733) (collectively LGE Patents). The main functions of a computer system are carried out on a microprocessor, or central processing unit, which interprets program instructions, processes data, and controls other devices in the system. A set of wires, or bus, connects the microprocessor to a chipset, which transfers data between the microprocessor and other devices, including the keyboard, mouse, monitor, hard drive, memory, and disk drives. The data processed by the computer are stored principally in random access memory, also called main memory. Webster’s New World Dictionary of Computer Terms 334, 451 (8th ed. 2000). Frequently accessed data are generally stored in cache memory, which permits faster access than main memory and is often located on the microprocessor itself. Id., at 84. When copies of data are stored in both the cache and main memory, problems may arise when one copy is changed but the other still contains the original “stale” version of the data. J. Handy, Cache Memory Book 124 (2d ed. 1993). The ’641 patent addresses this problem. It discloses a system for ensuring that the most current data are retrieved from main memory by monitoring data requests and updating main memory from the cache when stale data are requested. LG Electronics, Inc. v. Bizcom Electronics, Inc., 453 F. 3d 1364, 1377 (CA Fed. 2006). The ’379 patent relates to the coordination of requests to read from, and write to, main memory. Id., at 1378. Processing these requests in chronological order can slow down a system because read requests are faster to execute than write requests. Processing all read requests first ensures speedy access, but may result in the retrieval of outdated data if a read request for a certain piece of data is processed before an outstanding write request for the same data. The ’379 patent discloses an efficient method of organizing read and write requests while maintaining accuracy by allowing the computer to execute only read requests until it needs data for which there is an outstanding write request. LG Electronics, Inc. v. Asustek Computer, Inc., No. C 01–02187 CW et al., Order Construing Disputed Terms and Phrases, p. 42 (ND Cal., Aug. 20, 2002). Upon receiving such a read request, the computer executes pending write requests first and only then returns to the read requests so that the most up-to-date data are retrieved. Ibid. The ’733 patent addresses the problem of managing the data traffic on a bus connecting two computer components, so that no one device monopolizes the bus. It allows multiple devices to share the bus, giving heavy users greater access. This patent describes methods that establish a rotating priority system under which each device alternately has priority access to the bus for a preset number of cycles and heavier users can maintain priority for more cycles without “hogging” the device indefinitely. Id., at 37–38. LGE licensed a patent portfolio, including the LGE Patents, to Intel Corporation (Intel). The cross-licensing agreement (License Agreement) permits Intel to manufacture and sell microprocessors and chipsets that use the LGE Patents (the Intel Products). The License Agreement authorizes Intel to “ ‘make, use, sell (directly or indirectly), offer to sell, import or otherwise dispose of’ ” its own products practicing the LGE Patents. Brief for Petitioners 8 (quoting App. 154).[Footnote 1] Notwithstanding this broad language, the License Agreement contains some limitations. Relevant here, it stipulates that no license “ ‘is granted by either party hereto … to any third party for the combination by a third party of Licensed Products of either party with items, components, or the like acquired … from sources other than a party hereto, or for the use, import, offer for sale or sale of such combination.’ ” Brief for Petitioners 8 (quoting App. 164). The License Agreement purports not to alter the usual rules of patent exhaustion, however, providing that, “ ‘[n]otwithstanding anything to the contrary contained in this Agreement, the parties agree that nothing herein shall in any way limit or alter the effect of patent exhaustion that would otherwise apply when a party hereto sells any of its Licensed Products.’ ” Brief for Petitioners 8 (quoting App. 164). In a separate agreement (Master Agreement), Intel agreed to give written notice to its own customers informing them that, while it had obtained a broad license “ ‘ensur[ing] that any Intel product that you purchase is licensed by LGE and thus does not infringe any patent held by LGE,’ ” the license “ ‘does not extend, expressly or by implication, to any product that you make by combining an Intel product with any non-Intel product.’ ” Brief for Respondent 9 (emphasis deleted) (quoting App. 198). The Master Agreement also provides that “ ‘a breach of this Agreement shall have no effect on and shall not be grounds for termination of the Patent License.’ ” Brief for Petitioners 9 (quoting App. 176). Petitioners, including Quanta Computer (collectively Quanta), are a group of computer manufacturers. Quanta purchased microprocessors and chipsets from Intel and received the notice required by the Master Agreement. Nonetheless, Quanta manufactured computers using Intel parts in combination with non-Intel memory and buses in ways that practice the LGE Patents. Quanta does not modify the Intel components and follows Intel’s specifications to incorporate the parts into its own systems. LGE filed a complaint against Quanta, asserting that the combination of the Intel Products with non-Intel memory and buses infringed the LGE Patents. The District Court granted summary judgment to Quanta, holding that, for purposes of the patent exhaustion doctrine, the license LGE granted to Intel resulted in forfeiture of any potential infringement actions against legitimate purchasers of the Intel Products. LG Electronics, Inc. v. Asustek Computer, Inc., 65 USPQ 2d 1589, 1593, 1600 (ND Cal. 2002). The court found that, although the Intel Products do not fully practice any of the patents at issue, they have no reasonable noninfringing use and therefore their authorized sale exhausted patent rights in the completed computers under United States v. Univis Lens Co., 316 U. S. 241 (1942). Asustek, supra, at 1598–1600. In a subsequent order limiting its summary judgment ruling, the court held that patent exhaustion applies only to apparatus or composition-of-matter claims that describe a physical object, and does not apply to process, or method, claims that describe operations to make or use a product. LG Electronics, Inc. v. Asustek Computer, Inc., 248 F. Supp. 2d 912, 918 (ND Cal. 2003). Because each of the LGE Patents includes method claims, exhaustion did not apply. The Court of Appeals for the Federal Circuit affirmed in part and reversed in part. It agreed that the doctrine of patent exhaustion does not apply to method claims. In the alternative, it concluded that exhaustion did not apply because LGE did not license Intel to sell the Intel Products to Quanta for use in combination with non-Intel products. 453 F. 3d, at 1370. We granted certiorari, 551 U. S. ___ (2007). II The longstanding doctrine of patent exhaustion provides that the initial authorized sale of a patented item terminates all patent rights to that item. This Court first applied the doctrine in 19th-century cases addressing patent extensions on the Woodworth planing machine. Purchasers of licenses to sell and use the machine for the duration of the original patent term sought to continue using the licenses through the extended term. The Court held that the extension of the patent term did not affect the rights already secured by purchasers who bought the item for use “in the ordinary pursuits of life.” Bloomer v. McQuewan, 14 How. 539, 549 (1853); see also ibid. (“[W]hen the machine passes to the hands of the purchaser, it is no longer within the limits of the monopoly”); Bloomer v. Millinger, 1 Wall. 340, 351 (1864). In Adams v. Burke, 17 Wall. 453 (1873), the Court affirmed the dismissal of a patent holder’s suit alleging that a licensee had violated postsale restrictions on where patented coffin-lids could be used. “[W]here a person ha[s] purchased a patented machine of the patentee or his assignee,” the Court held, “this purchase carrie[s] with it the right to the use of that machine so long as it [is] capable of use.” Id., at 455. Although the Court permitted postsale restrictions on the use of a patented article in Henry v. A. B. Dick Co., 224 U. S. 1 (1912),[Footnote 2] that decision was short lived. In 1913, the Court refused to apply A. B. Dick to uphold price-fixing provisions in a patent license. See Bauer & Cie v. O’Donnell, 229 U. S. 1, 14–17 (1913). Shortly thereafter, in Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 518 (1917), the Court explicitly overruled A. B. Dick. In that case, a patent holder attempted to limit purchasers’ use of its film projectors to show only film made under a patent held by the same company. The Court noted the “increasing frequency” with which patent holders were using A. B. Dick-style licenses to limit the use of their products and thereby using the patents to secure market control of related, unpatented items. 243 U. S., at 509, 516–517. Observing that “the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents but is ‘to promote the progress of science and useful arts,’ ” id., at 511 (quoting U. S. Const., Art. I, §8, cl. 8), the Court held that “the scope of the grant which may be made to an inventor in a patent, pursuant to the [patent] statute, must be limited to the invention described in the claims of his patent.” 243 U. S., at 511. Accordingly, it reiterated the rule that “the right to vend is exhausted by a single, unconditional sale, the article sold being thereby carried outside the monopoly of the patent law and rendered free of every restriction which the vendor may attempt to put upon it.” Id., at 516. This Court most recently discussed patent exhaustion in Univis, 316 U. S. 241, on which the District Court relied. Univis Lens Company, the holder of patents on eyeglass lenses, licensed a purchaser to manufacture lens blanks[Footnote 3] by fusing together different lens segments to create bi- and tri-focal lenses and to sell them to other Univis licensees at agreed-upon rates. Wholesalers were licensed to grind the blanks into the patented finished lenses, which they would then sell to Univis-licensed prescription retailers for resale at a fixed rate. Finishing retailers, after grinding the blanks into patented lenses, would sell the finished lenses to consumers at the same fixed rate. The United States sued Univis under the Sherman Act, 15 U. S. C. §§1, 3, 15, alleging unlawful restraints on trade. Univis asserted its patent monopoly rights as a defense to the antitrust suit. The Court granted certiorari to determine whether Univis’ patent monopoly survived the sale of the lens blanks by the licensed manufacturer and therefore shielded Univis’ pricing scheme from the Sherman Act. The Court assumed that the Univis patents containing claims for finished lenses were practiced in part by the wholesalers and finishing retailers who ground the blanks into lenses, and held that the sale of the lens blanks exhausted the patents on the finished lenses. Univis, 316 U. S., at 248–249. The Court explained that the lens blanks “embodi[ed] essential features of the patented device and [were] without utility until … ground and polished as the finished lens of the patent.” Id., at 249. The Court noted that: “where one has sold an uncompleted article which, because it embodies essential features of his patented invention, is within the protection of his patent, and has destined the article to be finished by the purchaser in conformity to the patent, he has sold his invention so far as it is or may be embodied in that particular article.” Id., at 250–251. In sum, the Court concluded that the traditional bar on patent restrictions following the sale of an item applies when the item sufficiently embodies the patent—even if it does not completely practice the patent—such that its only and intended use is to be finished under the terms of the patent. With this history of the patent exhaustion doctrine in mind, we turn to the parties’ arguments. III A LGE argues that the exhaustion doctrine is inapplicable here because it does not apply to method claims, which are contained in each of the LGE Patents. LGE reasons that, because method patents are linked not to a tangible article but to a process, they can never be exhausted through a sale. Rather, practicing the patent—which occurs upon each use of an article embodying a method patent—is permissible only to the extent rights are transferred in an assignment contract. Quanta, in turn, argues that there is no reason to preclude exhaustion of method claims, and points out that both this Court and the Federal Circuit have applied exhaustion to method claims. It argues that any other rule would allow patent holders to avoid exhaustion entirely by inserting method claims in their patent specifications. Quanta has the better of this argument. Nothing in this Court’s approach to patent exhaustion supports LGE’s argument that method patents cannot be exhausted. It is true that a patented method may not be sold in the same way as an article or device, but methods nonetheless may be “embodied” in a product, the sale of which exhausts patent rights. Our precedents do not differentiate transactions involving embodiments of patented methods or processes from those involving patented apparatuses or materials. To the contrary, this Court has repeatedly held that method patents were exhausted by the sale of an item that embodied the method. In Ethyl Gasoline Corp. v. United States, 309 U. S. 436, 446, 457 (1940), for example, the Court held that the sale of a motor fuel produced under one patent also exhausted the patent for a method of using the fuel in combustion motors.[Footnote 4] Similarly, as previously described, Univis held that the sale of optical lens blanks that partially practiced a patent exhausted the method patents that were not completely practiced until the blanks were ground into lenses. 316 U. S., at 248–251. These cases rest on solid footing. Eliminating exhaustion for method patents would seriously undermine the exhaustion doctrine. Patentees seeking to avoid patent exhaustion could simply draft their patent claims to describe a method rather than an apparatus.[Footnote 5] Apparatus and method claims “may approach each other so nearly that it will be difficult to distinguish the process from the function of the apparatus.” United States ex rel. Steinmetz v. Allen, 192 U. S. 543, 559 (1904). By characterizing their claims as method instead of apparatus claims, or including a method claim for the machine’s patented method of performing its task, a patent drafter could shield practically any patented item from exhaustion. This case illustrates the danger of allowing such an end-run around exhaustion. On LGE’s theory, although Intel is authorized to sell a completed computer system that practices the LGE Patents, any downstream purchasers of the system could nonetheless be liable for patent infringement. Such a result would violate the longstanding principle that, when a patented item is “once lawfully made and sold, there is no restriction on [its] use to be implied for the benefit of the patentee.” Adams, 17 Wall., at 457. We therefore reject LGE’s argument that method claims, as a category, are never exhaustible. B We next consider the extent to which a product must embody a patent in order to trigger exhaustion. Quanta argues that, although sales of an incomplete article do not necessarily exhaust the patent in that article, the sale of the microprocessors and chipsets exhausted LGE’s patents in the same way the sale of the lens blanks exhausted the patents in Univis. Just as the lens blanks in Univis did not fully practice the patents at issue because they had not been ground into finished lenses, Quanta observes, the Intel Products cannot practice the LGE Patents—or indeed, function at all—until they are combined with memory and buses in a computer system. If, as in Univis, patent rights are exhausted by the sale of the incomplete item, then LGE has no postsale right to require that the patents be practiced using only Intel parts. Quanta also argues that exhaustion doctrine will be a dead letter unless it is triggered by the sale of components that essentially, even if not completely, embody an invention. Otherwise, patent holders could authorize the sale of computers that are complete with the exception of one minor step—say, inserting the microprocessor into a socket—and extend their rights through each downstream purchaser all the way to the end user. LGE, for its part, argues that Univis is inapplicable here for three reasons. First, it maintains that Univis should be limited to products that contain all the physical aspects needed to practice the patent. On that theory, the Intel Products cannot embody the patents because additional physical components are required before the patents can be practiced. Second, LGE asserts that in Univis there was no “patentable distinction” between the lens blanks and the patented finished lenses since they were both subject to the same patent. Brief for Respondent 14 (citing Univis, supra, at 248–252). In contrast, it describes the Intel Products as “independent and distinct products” from the systems using the LGE Patents and subject to “independent patents.” Brief for Respondent 13. Finally, LGE argues that Univis does not apply because the Intel Products are analogous to individual elements of a combination patent, and allowing sale of those components to exhaust the patent would impermissibly “ascrib[e] to one element of the patented combination the status of the patented invention in itself.” Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U. S. 336, 344–345 (1961). We agree with Quanta that Univis governs this case. As the Court there explained, exhaustion was triggered by the sale of the lens blanks because their only reasonable and intended use was to practice the patent and because they “embodie[d] essential features of [the] patented invention.” 316 U. S., at 249–251. Each of those attributes is shared by the microprocessors and chipsets Intel sold to Quanta under the License Agreement. First, Univis held that “the authorized sale of an article which is capable of use only in practicing the patent is a relinquishment of the patent monopoly with respect to the article sold.” Id., at 249. The lens blanks in Univis met this standard because they were “without utility until [they were] ground and polished as the finished lens of the patent.” Ibid. Accordingly, “the only object of the sale [was] to enable the [finishing retailer] to grind and polish it for use as a lens by the prospective wearer.” Ibid. Here, LGE has suggested no reasonable use for the Intel Products other than incorporating them into computer systems that practice the LGE Patents.[Footnote 6] Nor can we can discern one: A microprocessor or chipset cannot function until it is connected to buses and memory. And here, as in Univis, the only apparent object of Intel’s sales to Quanta was to permit Quanta to incorporate the Intel Products into computers that would practice the patents. Second, the lens blanks in Univis “embodie[d] essential features of [the] patented invention.” Id., at 250–251. The essential, or inventive, feature of the Univis lens patents was the fusing together of different lens segments to create bi- and tri-focal lenses. The finishing process performed by the finishing and prescription retailers after the fusing was not unique. As the United States explained: “The finishing licensees finish Univis lens blanks in precisely the same manner as they finish all other bifocal lens blanks. Indeed, appellees have never contended that their licensing system is supported by patents covering methods or processes relating to the finishing of lens blanks. Consequently, it appears that appellees perform all of the operations which contribute any claimed element of novelty to Univis lenses.” Brief for United States in United States v. Univis Lens Co., O. T. 1941, No. 855 et al., p. 10 (footnote and citations omitted). While the Court assumed that the finishing process was covered by the patents, Univis, supra, at 248–249, and the District Court found that it was necessary to make a working lens, United States v. Univis Lens Co., 41 F. Supp. 258, 262–263 (SDNY 1941), the grinding process was not central to the patents. That standard process was not included in detail in any of the patents and was not referred to at all in two of the patents. Those that did mention the finishing process treated it as incidental to the invention, noting, for example, that “[t]he blank is then ground in the usual manner,” U. S. Patent No. 1,876,497, p. 2, or simply that the blank is “then ground and polished,” U. S. Patent No. 1,632,208, p. 1, Tr. of Record in United States v. Univis Lens Co., O. T. 1941, No. 855 et al., pp. 516, 498. Like the Univis lens blanks, the Intel Products constitute a material part of the patented invention and all but completely practice the patent. Here, as in Univis, the incomplete article substantially embodies the patent because the only step necessary to practice the patent is the application of common processes or the addition of standard parts. Everything inventive about each patent is embodied in the Intel Products. They control access to main and cache memory, practicing the ’641 and ’379 patents by checking cache memory against main memory and comparing read and write requests. They also control priority of bus access by various other computer components under the ’733 patent. Naturally, the Intel Products cannot carry out these functions unless they are attached to memory and buses, but those additions are standard components in the system, providing the material that enables the microprocessors and chipsets to function. The Intel Products were specifically designed to function only when memory or buses are attached; Quanta was not required to make any creative or inventive decision when it added those parts. Indeed, Quanta had no alternative but to follow Intel’s specifications in incorporating the Intel Products into its computers because it did not know their internal structure, which Intel guards as a trade secret. Brief for Petitioners 3. Intel all but practiced the patent itself by designing its products to practice the patents, lacking only the addition of standard parts. We are unpersuaded by LGE’s attempts to distinguish Univis. First, there is no reason to distinguish the two cases on the ground that the articles in Univis required the removal of material to practice the patent while the Intel Products require the addition of components to practice the patent. LGE characterizes the lens blanks and lenses as sharing a “basic nature” by virtue of their physical similarity, while the Intel Products embody only some of the “patentably distinct elements and steps” involved in the LGE Patents. Brief for Respondent 26–27. But we think that the nature of the final step, rather than whether it consists of adding or deleting material, is the relevant characteristic. In each case, the final step to practice the patent is common and noninventive: grinding a lens to the customer’s prescription, or connecting a microprocessor or chipset to buses or memory. The Intel Products embody the essential features of the LGE Patents because they carry out all the inventive processes when combined, according to their design, with standard components. With regard to LGE’s argument that exhaustion does not apply across patents, we agree on the general principle: The sale of a device that practices patent A does not, by virtue of practicing patent A, exhaust patent B. But if the device practices patent A while substantially embodying patent B, its relationship to patent A does not prevent exhaustion of patent B. For example, if the Univis lens blanks had been composed of shatter-resistant glass under patent A, the blanks would nonetheless have substantially embodied, and therefore exhausted, patent B for the finished lenses. This case is no different. While each Intel microprocessor and chipset practices thousands of individual patents, including some LGE patents not at issue in this case, the exhaustion analysis is not altered by the fact that more than one patent is practiced by the same product. The relevant consideration is whether the Intel Products that partially practice a patent—by, for example, embodying its essential features—exhaust that patent. Finally, LGE’s reliance on Aro is misplaced because that case dealt only with the question whether replacement of one part of a patented combination infringes the patent. First, the replacement question is not at issue here. Second, and more importantly, Aro is not squarely applicable to the exhaustion of patents like the LGE Patents that do not disclose a new combination of existing parts. Aro described combination patents as “cover[ing] only the totality of the elements in the claim [so] that no element, separately viewed, is within the grant.” 365 U. S., at 344; see also Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661, 667–668 (1944) (noting that, in a combination patent, “the combination is the invention and it is distinct from any” of its elements). Aro’s warning that no element can be viewed as central to or equivalent to the invention is specific to the context in which the combination itself is the only inventive aspect of the patent. In this case, the inventive part of the patent is not the fact that memory and buses are combined with a microprocessor or chipset; rather, it is included in the design of the Intel Products themselves and the way these products access the memory or bus. C Having concluded that the Intel Products embodied the patents, we next consider whether their sale to Quanta exhausted LGE’s patent rights. Exhaustion is triggered only by a sale authorized by the patent holder. Univis, 316 U. S., at 249. LGE argues that there was no authorized sale here because the License Agreement does not permit Intel to sell its products for use in combination with non-Intel products to practice the LGE Patents. It cites General Talking Pictures Corp. v. Western Elec. Co., 304 U. S. 175 (1938), and General Talking Pictures Corp. v. Western Elec. Co., 305 U. S. 124 (1938), in which the manufacturer sold patented amplifiers for commercial use, thereby breaching a license that limited the buyer to selling the amplifiers for private and home use. The Court held that exhaustion did not apply because the manufacturer had no authority to sell the amplifiers for commercial use, and the manufacturer “could not convey to petitioner what both knew it was not authorized to sell.” General Talking Pictures, supra, at 181. LGE argues that the same principle applies here: Intel could not convey to Quanta what both knew it was not authorized to sell, i.e., the right to practice the patents with non-Intel parts. LGE overlooks important aspects of the structure of the Intel-LGE transaction. Nothing in the License Agreement restricts Intel’s right to sell its microprocessors and chipsets to purchasers who intend to combine them with non-Intel parts. It broadly permits Intel to “ ‘make, use, [or] sell’ ” products free of LGE’s patent claims. Brief for Petitioners 8 (quoting App. 154). To be sure, LGE did require Intel to give notice to its customers, including Quanta, that LGE had not licensed those customers to practice its patents. But neither party contends that Intel breached the agreement in that respect. Brief for Petitioners 9; Brief for Respondent 9. In any event, the provision requiring notice to Quanta appeared only in the Master Agreement, and LGE does not suggest that a breach of that agreement would constitute a breach of the License Agreement. Hence, Intel’s authority to sell its products embodying the LGE Patents was not conditioned on the notice or on Quanta’s decision to abide by LGE’s directions in that notice. LGE points out that the License Agreement specifically disclaimed any license to third parties to practice the patents by combining licensed products with other components. Brief for Petitioners 8. But the question whether third parties received implied licenses is irrelevant because Quanta asserts its right to practice the patents based not on implied license but on exhaustion. And exhaustion turns only on Intel’s own license to sell products practicing the LGE Patents. Alternatively, LGE invokes the principle that patent exhaustion does not apply to postsale restrictions on “making” an article. Brief for Respondent 43. But this is simply a rephrasing of its argument that combining the Intel Products with other components adds more than standard finishing to complete a patented article. As explained above, making a product that substantially embodies a patent is, for exhaustion purposes, no different from making the patented article itself. In other words, no further “making” results from the addition of standard parts—here, the buses and memory—to a product that already substantially embodies the patent. The License Agreement authorized Intel to sell products that practiced the LGE Patents. No conditions limited Intel’s authority to sell products substantially embodying the patents. Because Intel was authorized to sell its products to Quanta, the doctrine of patent exhaustion prevents LGE from further asserting its patent rights with respect to the patents substantially embodied by those products.[Footnote 7] IV The authorized sale of an article that substantially embodies a patent exhausts the patent holder’s rights and prevents the patent holder from invoking patent law to control postsale use of the article. Here, LGE licensed Intel to practice any of its patents and to sell products practicing those patents. Intel’s microprocessors and chipsets substantially embodied the LGE Patents because they had no reasonable noninfringing use and included all the inventive aspects of the patented methods. Nothing in the License Agreement limited Intel’s ability to sell its products practicing the LGE Patents. Intel’s authorized sale to Quanta thus took its products outside the scope of the patent monopoly, and as a result, LGE can no longer assert its patent rights against Quanta. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Footnote 1 App. 145–198 is sealed; where material contained therein also appears in the parties’ unsealed briefs, citations are to the latter. Footnote 2 The A. B. Dick Company sold mimeograph machines with an attached license stipulating that the machine could be used only with ink, paper, and other supplies made by the A. B. Dick Company. The Court rejected the notion that a patent holder “can only keep the article within the control of the patent by retaining the title,” A. B. Dick, 224 U. S., at 18, and held that “any … reasonable stipulation, not inherently violative of some substantive law” was “valid and enforceable,” id., at 31. The only requirement, the Court held, was that “the purchaser must have notice that he buys with only a qualified right of use,” so that a sale made without conditions resulted in “an unconditional title to the machine, with no limitations upon the use.” Id., at 26. Footnote 3 Lens blanks are “rough opaque pieces of glass of suitable size, design and composition for use, when ground and polished, as multifocal lenses in eyeglasses.” Univis, 316 U. S., at 244. Footnote 4 The patentee held patents for (1) a fluid additive increasing gasoline efficiency, (2) motor fuel produced by mixing gasoline with the patented fluid, and (3) a method of using fuel containing the patented fluid in combustion motors. Ethyl Gasoline Corp., 309 U. S., at 446. The patentee sold only the fluid, but attempted to control sales of the treated fuel. Id., at 459. The Court held that the sale of the fluid to refiners relinquished the patentee’s exclusive rights to sell the treated fuel. Id., at 457. Footnote 5 One commentator recommends this strategy as a way to draft patent claims that “will survive numerous transactions regarding the patented good, allowing the force of the patent to intrude deeply into the stream of commerce.” Thomas, Of Text, Technique, and the Tangible: Drafting Patent Claims Around Patent Rules, 17 J. Marshall J. Computer & Info. L. 219, 252 (1998); see also id., at 225–226 (advocating the conversion of apparatus claims into method claims and noting that “[e]ven the most novice claims drafter would encounter scant difficulty in converting a patent claim from artifact to technique and back again”). Footnote 6 LGE suggests that the Intel Products would not infringe its patents if they were sold overseas, used as replacement parts, or engineered so that use with non-Intel Products would disable their patented features. Brief for Respondent 21–22, n. 10. But Univis teaches that the question is whether the product is “capable of use only in practicing the patent,” not whether those uses are infringing. 316 U. S., at 249 (emphasis added). Whether outside the country or functioning as replacement parts, the Intel Products would still be practicing the patent, even if not infringing it. And since the features partially practicing the patent are what must have an alternative use, suggesting that they be disabled is no solution. The disabled features would have no real use. Footnote 7 We note that the authorized nature of the sale to Quanta does not necessarily limit LGE’s other contract rights. LGE’s complaint does not include a breach-of-contract claim, and we express no opinion on whether contract damages might be available even though exhaustion operates to eliminate patent damages. See Keeler v. Standard Folding Bed Co., 157 U. S. 659, 666 (1895) (“Whether a patentee may protect himself and his assignees by special contracts brought home to the purchasers is not a question before us, and upon which we express no opinion. It is, however, obvious that such a question would arise as a question of contract, and not as one under the inherent meaning and effect of the patent laws”). |
553.US.550 | Arrested after a search of the car he was driving through Texas toward Mexico revealed nearly $81,000 bundled in plastic bags and covered with animal hair in a secret compartment under the rear floorboard, petitioner was charged with, and convicted of, attempting to transport “funds from a place in the United States to … a place outside the United States … knowing that the … funds … represent the proceeds of … unlawful activity and … that such transportation … is designed … to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of ” the money, in violation of the federal money laundering statute, 18 U. S. C. §1956(a)(2)(B)(i). Affirming, the Fifth Circuit rejected as inconsistent with the statutory text petitioner’s argument that the Government must prove that he attempted to create the appearance of legitimate wealth, but held that his extensive efforts to prevent the funds’ detection during transportation showed that he sought to conceal or disguise their nature, location, source, ownership, or control. Held: Although §1956(a)(2)(B)(i) does not require proof that the defendant attempted to create the appearance of legitimate wealth, neither can it be satisfied solely by evidence that the funds were concealed during transport. The statutory text makes clear that a conviction requires proof that the transportation’s purpose—not merely its effect—was to conceal or disguise one of the listed attributes: the funds’ nature, location, source, ownership, or control. Pp. 5–17. (a) The statute contains no “appearance of legitimate wealth” requirement. Although petitioner is correct that taking steps to make funds appear legitimate is the common meaning of “money laundering,” this Court must be guided by a statute’s words, not by its title’s common meaning, to the extent they are inconsistent, see Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212. Here, Congress used broad language that captures more than classic money laundering: In addition to concealing or disguising the nature or source of illegal funds, Congress also sought to reach transportation designed to conceal or disguise the funds’ location, ownership, or control. Nor does the Court find persuasive petitioner’s attempt to infuse a money-laundering requirement into the listed attributes. Only the attribute “nature” is coextensive with the funds’ illegitimate character, but that does not mean that Congress intended nature to swallow the other attributes. The Court is likewise skeptical of petitioner’s argument that violating the statute’s elements would necessarily have the effect of making the funds appear more legitimate than they did before. It is not necessarily true that concealing or disguising any one of the listed attributes may have the effect of making the funds appear more legitimate by impeding law enforcement’s ability to identify illegitimate funds. Finally, the Court disagrees with petitioner’s argument that §1956(a)(2) must be aimed at something other than merely secretive transportation of illicit funds because that conduct is already punished by the bulk cash smuggling statute, 31 U. S. C. §5332. Even if §1956(a)(2)(B)(i) has no “appearance of legitimate wealth” requirement, the two statutes nonetheless target distinct conduct, in that §5332(a)(1) encompasses, inter alios, a defendant who, “with the intent to evade a currency reporting requirement … , knowingly conceals more than $10,000 … and transports [it] from … the United States to a place outside” the country. Pp. 6–9. (b) The evidence that petitioner concealed the money during transportation is not sufficient to sustain his conviction. In determining whether he knew that “such transportation,” §1956(a)(2)(B)(i), was designed to conceal or disguise the specified attributes of the illegally obtained funds, the critical transportation was not the transportation of the funds within this country on the way to the border, but transportation “from a place in the United States to … a place outside the United States,” ibid.—here, from this country to Mexico. Therefore, what the Government had to prove was that petitioner knew that taking the funds to Mexico was “designed,” at least in part, to conceal or disguise their “nature,” “location,” “source,” “ownership,” or “control.” The Court agrees with petitioner that merely hiding funds during transportation is not sufficient to violate the statute, even if substantial efforts have been expended to conceal the money. This conclusion turns on §1956(a)(2)(B)(i)’s text, particularly the term “design,” which the dictionaries show means purpose or plan; i.e., the transportation’s intended aim. Congress wrote “knowing that such transportation is designed … to conceal or disguise” a listed attribute, and when an act is “designed to” do something, the most natural reading is that it has that something as its purpose. Because the Fifth Circuit used “design” to refer not to the transportation’s purpose but to the manner in which it was carried out, its use of the term in this context was consistent with the alternate meaning of “design” as structure or arrangement. It is implausible, however, that Congress intended this meaning. If it had, it could have expressed its intention simply by writing “knowing that such transportation conceals or disguises,” rather than the more complex formulation “knowing that such transportation … is designed … to conceal or disguise.” §1956(a)(2)(B)(i). It seems far more likely that Congress intended courts to apply the familiar criminal law concepts of purpose and intent than to focus exclusively on how a defendant “structured” the transportation. In addition, the structural meaning of “design” is both overinclusive and underinclusive: It would capture individuals who structured transportation in a secretive way but lacked any criminal intent (such as a person who hid illicit funds en route to turn them over to law enforcement); yet it would exclude individuals who fully intended to move the funds in order to impede detection by law enforcement but failed to hide them during transport. In this case, evidence that petitioner transported the cash bundled in plastic bags and hidden in a secret compartment covered with animal hair was plainly probative of an underlying goal to prevent the funds’ detection during the drive into Mexico. However, even with the abundant evidence that petitioner had concealed the money in order to transport it, the Government’s own expert testified that the transportation’s purpose was to compensate the Mexican leaders of the operation. Thus, the evidence suggested that the transportation’s secretive aspects were employed to facilitate it, but not necessarily that secrecy was its purpose. Because petitioner’s extensive efforts to conceal the funds en route to Mexico was the only evidence the Government introduced to prove that the transportation was “designed in whole or in part to conceal or disguise the [funds’] nature, … location, … source, … ownership, or … control,” petitioner’s conviction cannot stand. Pp. 10–17. 478 F. 3d 282, reversed. Thomas, J., delivered the opinion for a unanimous Court. Alito, J., filed a concurring opinion, in which Roberts, C. J., and Kennedy, J., joined. | This case involves the provision of the federal money laundering statute that prohibits international transportation of the proceeds of unlawful activity. Petitioner argues that his conviction cannot stand because, while the evidence demonstrates that he took steps to hide illicit funds en route to Mexico, it does not show that the cross-border transport of those funds was designed to create the appearance of legitimate wealth. Although we agree with the Government that the statute does not require proof that the defendant attempted to “legitimize” tainted funds, we agree with petitioner that the Government must demonstrate that the defendant did more than merely hide the money during its transport. We therefore reverse the judgment of the Fifth Circuit. I On July 14, 2004, petitioner Humberto Fidel Regalado Cuellar was stopped in southern Texas for driving errati-cally. Driving south toward the Mexican border, about 114 miles away, petitioner had just passed the town of Eldorado. In response to the officer’s questions, petitioner, who spoke no English, handed the officer a stack of papers. Included were bus tickets showing travel from a Texas border town to San Antonio on July 13 and, in the other direction, from San Antonio to Big Spring, Texas, on July 14. A Spanish-speaking officer, Trooper Danny Nuńez, was called to the scene and began questioning petitioner. Trooper Nuńez soon became suspicious because petitioner was avoiding eye contact and seemed very nervous. Petitioner claimed to be on a 3-day business trip, but he had no luggage or extra clothing with him, and he gave conflicting accounts of his itinerary. When Trooper Nuńez asked petitioner about a bulge in his shirt pocket, petitioner produced a wad of cash that smelled of marijuana. Petitioner consented to a search of the Volkswagen Beetle that he was driving. While the officers were searching the vehicle, Trooper Nuńez observed petitioner standing on the side of the road making the sign of the cross, which he interpreted to mean that petitioner knew he was in trouble. A drug detection dog alerted on the cash from petitioner’s shirt pocket and on the rear area of the car. Further scrutiny uncovered a secret compartment under the rear floorboard, and inside the compartment the officers found approximately $81,000 in cash. The money was bundled in plastic bags and duct tape, and animal hair was spread in the rear of the vehicle. Petitioner claimed that he had previously transported goats in the vehicle, but Trooper Nuńez doubted that goats could fit in such a small space and suspected that the hair had been spread in an attempt to mask the smell of marijuana. There were signs that the compartment had been recently created and that someone had attempted to cover up the bodywork: The Beetle’s carpeting appeared newer than the rest of the interior, and the exterior of the vehicle appeared to have been purposely splashed with mud to cover up toolmarks, fresh paint, or other work. In the backseat, officers found a fast-food restaurant receipt dated the same day from a city farther north than petitioner claimed to have traveled. After a check of petitioner’s last border crossing also proved inconsistent with his story, petitioner was arrested and interrogated. He continued to tell conflicting stories about his travels. At one point, before he knew that the officers had found the cash, he remarked to Trooper Nuńez that he had to have the car in Mexico by midnight or else his family would be “floating down the river.” App. 50. Petitioner was charged with attempting to transport the proceeds of unlawful activity across the border, knowing that the transportation was designed “to conceal or disguise the nature, the location, the source, the ownership, or the control” of the money. 18 U. S. C. §1956(a)(2)(B)(i). After a 2-day trial, the jury found petitioner guilty. The District Court denied petitioner’s motion for judgment of acquittal based on insufficient evidence and sentenced petitioner to 78 months in prison, followed by three years of supervised release. On appeal, a divided panel of the Fifth Circuit reversed and rendered a judgment of acquittal. 441 F. 3d 329 (2006). Judge Smith’s majority opinion held that, although the evidence showed that petitioner concealed the money for the purpose of transporting it, the statute requires that the purpose of the transportation itself must be to conceal or disguise the unlawful proceeds. Id., at 333–334. Analogizing from cases interpreting another provision of the money laundering statute, the court held that the transportation must be undertaken in an attempt to create the appearance of legitimate wealth.[Footnote 1] See id., at 334. Although the evidence showed intent to avoid detection while driving the funds to Mexico, it did not show that petitioner intended to create the appearance of legitimate wealth, and accordingly no rational trier of fact could have found petitioner guilty. Ibid. Judge Davis dissented, arguing that concealment during transportation is sufficient to violate §1956(a)(2)(B)(i). Id., at 334–336. The Fifth Circuit granted rehearing en banc and affirmed petitioner’s conviction. 478 F. 3d 282 (2007). The court rejected as inconsistent with the statutory text petitioner’s argument that the Government must prove that he attempted to create the appearance of legitimate wealth. Id., at 290. But it held that petitioner’s extensive efforts to prevent detection of the funds during transportation showed that petitioner sought to conceal or disguise the nature, location, and source, ownership, or control of the funds. Id., at 289–290. Judge Smith dissented for largely the same reasons set forth in his opinion for the original panel majority. He emphasized the distinction between “concealing something to transport it, and transporting something to conceal it,” and explained that whether petitioner was doing the latter depended on whether his ultimate plan upon reaching his destination was to conceal the nature, location, source, ownership, or control of the money. Id., at 296–297. We granted certiorari, 552 U. S. ___ (2007). II The federal money laundering statute, 18 U. S. C. §1956, prohibits specified transfers of money derived from unlawful activities. Subsection (a)(1) makes it unlawful to engage in certain financial transactions, while subsection (a)(2) criminalizes certain kinds of transportation. Petitioner was charged under the transportation provision: The indictment alleged that he attempted to transport illicit proceeds across the Mexican border “knowing that such transportation was designed in whole or in part to conceal and disguise the nature, location, source, ownership, and control” of the funds.[Footnote 2] App. 10–11 (citing §1956(a)(2)(B)(i)). A We first consider the “designed … to conceal” element. Petitioner argues that to satisfy this element, the Government must prove that the defendant attempted to create the appearance of legitimate wealth. Petitioner would replace “designed … to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds” with “designed to create the appearance of legitimate wealth.” §1956(a)(2)(B)(i). This is consistent with the plain meaning of “money laundering,” petitioner argues, because that term is commonly understood to mean disguising illegally obtained money in order to make it appear legitimate. In petitioner’s view, this common understanding of “money laundering” is implicit in both the transaction and transportation provisions of the statute because concealing or disguising any of the listed attributes would necessarily have the effect of making the funds appear legitimate, and, conversely, revealing any such attribute would necessarily reveal the funds as illicit. The Government disagrees, contending that making funds appear legitimate is merely one way to accomplish money laundering, and that revealing a listed attribute would not necessarily reveal the funds’ illicit nature. In any event, the Government argues, the statute should not be cabined to target only classic money laundering because Congress intended to reach any conduct that impairs the ability of law enforcement to find and recover the unlawful proceeds. We agree with petitioner that taking steps to make funds appear legitimate is the common meaning of the term “money laundering.” See American Heritage Dictionary 992 (4th ed. 2000) (hereinafter Am. Hert.) (defining “launder” as “[t]o disguise the source or nature of (illegal funds, for example) by channeling through an intermediate agent”); Black’s Law Dictionary 1027 (8th ed. 2004) (hereinafter Black’s) (defining “money-laundering” to mean “[t]he act of transferring illegally obtained money through legitimate people or accounts so that its original source cannot be traced”). But to the extent they are inconsistent, we must be guided by the words of the operative statutory provision, and not by the common meaning of the statute’s title. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (declining to use a statute’s title to limit the meaning of the text). Here, Congress used broad language that captures more than classic money laundering: In addition to concealing or disguising the nature or source of illegal funds, Congress also sought to reach transportation designed to conceal or disguise the location, ownership, or control of the funds. For example, a defendant who smuggles cash into Mexico with the intent of hiding it from authorities by burying it in the desert may have engaged in transportation designed to conceal the location of those funds, but his conduct would not necessarily have the effect of making the funds appear legitimate. Nor do we find persuasive petitioner’s attempt to infuse a “classic money laundering” requirement into the listed attributes. Contrary to petitioner’s argument, revealing those attributes—nature, location, source, ownership, or control—would not necessarily expose the illegitimacy of the funds. Digging up the cash buried in the Mexican desert, for example, would not necessarily reveal that it was derived from unlawful activity. Indeed, of all the listed attributes, only “nature” is coextensive with the funds’ illegitimate character: Exposing the nature of illicit funds would, by definition, reveal them as unlawful proceeds. But nature is only one attribute in the statute; that it may be coextensive with the creation of the appearance of legitimate wealth does not mean that Congress intended that requirement to swallow the other listed attributes. We likewise are skeptical of petitioner’s argument that violating the elements of the statute would necessarily have the effect of making the funds appear more legitimate than they did before. It is true that concealing or disguising any one of the listed attributes may have the effect of making the funds appear more legitimate—largely because concealing or disguising those attributes might impede law enforcement’s ability to identify illegitimate funds—but we are not convinced that this is necessarily so. It might be possible for a defendant to conceal or disguise a listed attribute without also creating the appearance of legitimate wealth. Cf. United States v. Abbell, 271 F. 3d 1286, 1298 (CA11 2001) (noting that the transaction provision, although designed to punish those who “attemp[t] to legitimize their proceeds,” may be satisfied without proof that a particular defendant did so). Petitioner’s “appearance of legitimate wealth” requirement simply has no basis in the operative provision’s text. Petitioner argues that the money laundering transportation provision must be aimed at something other than merely secretive transportation of illicit funds because that conduct is already punished by the bulk cash smuggling statute, 31 U. S. C. §5332 (2000 ed., Supp. V). We disagree. A comparison of the statutory language reveals that, even if no “appearance of legitimate wealth” requirement exists in 18 U. S. C. §1956(a)(2)(B)(i), the two statutes nonetheless target distinct conduct. The bulk cash smuggling provision encompasses, in relevant part, a defendant who, “with the intent to evade a currency reporting requirement under section 5316, knowingly conceals more than $10,000 in currency or other monetary instruments . . . and transports or transfers or attempts to transport or transfer such currency or monetary instruments from a place within the United States to a place outside of the United States.” 31 U. S. C. §5332(a)(1). To be sure, certain conduct may fall within both statutes. For example, both provisions may be violated by a defendant who intends to evade a relevant reporting requirement. See §5332(a)(1) (transportation of funds “with the intent to evade a currency reporting requirement”); 18 U. S. C. §1956(a)(2)(B)(ii) (transportation of funds knowing that it is designed “to avoid a transaction reporting requirement”). But only the money laundering statute may be violated in the absence of such intent. See §1956(a)(2)(B)(i) (prohibiting transportation of illicit funds knowing that the transportation is designed to conceal or disguise a listed attribute). Similarly, although both statutes encompass transportation of illicit funds, only the bulk cash smuggling statute also punishes the mere transportation of lawfully derived proceeds.[Footnote 3] Compare 31 U. S. C. §5332(a) (omitting any requirement that the funds be unlawfully derived) with 18 U. S. C. §1956(a)(2)(B) (requiring that the defendant “kno[w] that the monetary instrument or funds involved in the transportation … represent the proceeds of some form of unlawful activity”). B Having concluded that the statute contains no “appearance of legitimate wealth” requirement, we next consider whether the evidence that petitioner concealed the money during transportation is sufficient to sustain his conviction. As noted, petitioner was convicted under §1956(a)(2)(B)(i), which, in relevant part, makes it a crime to attempt to transport “funds from a place in the United States to … a place outside the United States … knowing that the … funds involved in the transportation … represent the proceeds of some form of unlawful activity and knowing that such transportation … is designed in whole or in part … to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.” Accordingly, the Government was required in this case to prove that petitioner (1) attempted to transport funds from the United States to Mexico, (2) knew that these funds “represent[ed] the proceeds of some form of unlawful activity,” e.g., drug trafficking, and (3) knew that “such transportation” was designed to “conceal or disguise the nature, the location, the source, the ownership, or the control” of the funds. It is the last of these that is at issue before us, viz., whether petitioner knew that “such transportation” was designed to conceal or disguise the specified attributes of the illegally obtained funds. In this connection, it is important to keep in mind that the critical transportation was not the transportation of the funds within this country on the way to the border. Instead, the term “such transportation” means transportation “from a place in the United States to … a place outside the United States”—here, from the United States to Mexico. Therefore, what the Government had to prove was that petitioner knew that taking the funds to Mexico was “designed,” at least in part, to conceal or disguise their “nature,” “location,” “source,” “ownership,” or “control.” Petitioner argues that the evidence is not sufficient to sustain his conviction because concealing or disguising a listed attribute of the funds during transportation cannot satisfy the “designed … to conceal” element. Citing cases that interpret the identical phrase in the transaction provision to exclude “mere spending,”[Footnote 4] petitioner argues that the transportation provision must exclude “mere hiding.” Otherwise, petitioner contends, all cross-border transport of illicit funds would fall under the statute because people regularly make minimal efforts to conceal money, such as placing it inside a wallet or other receptacle, in order to secure it during travel. The Government responds that concealment during transportation is sufficient to satisfy this element because it is circumstantial evidence that the ultimate purpose of the transportation—i.e., its “design”—is to conceal or disguise a listed attribute of the funds. This standard would not criminalize all cross-border transport of illicit funds, the Government argues, because, just as in the transaction cases,[Footnote 5] the statute encompasses only substantial efforts at concealment. As a result, the Government agrees with the Court of Appeals that a violation of the transportation provision cannot be established solely by evidence that the defendant carried money in a wallet or concealed it in some other conventional or incidental way. See 478 F. 3d, at 291 (characterizing the defendant’s transportation of money in a box in United States v. Dimeck, 24 F. 3d 1239, 1246 (CA10 1994), as a “minimal attempt at concealment” that is distinguishable from petitioner’s “effort to hide or conceal” the funds). We agree with petitioner that merely hiding funds during transportation is not sufficient to violate the statute, even if substantial efforts have been expended to conceal the money. Our conclusion turns on the text of §1956(a)(2)(B)(i), and particularly on the term “design.” In this context, “design” means purpose or plan; i.e., the intended aim of the transportation. See Am. Hert. 491 (“To formulate a plan for; devise”; “[t]o create or contrive for a particular purpose or effect”); Black’s 478 (“A plan or scheme”; “[p]urpose or intention combined with a plan”); see also Brief for United States 14 (“ ‘to conceive and plan out in the mind’ ” (quoting Webster’s Third New International Dictionary 611 (1993)). Congress wrote “knowing that such transportation is designed … to conceal or disguise” a listed attribute of the funds, §1956(a)(2)(B)(i), and when an act is “designed to” do something, the most natural reading is that it has that something as its purpose. The Fifth Circuit employed this meaning of design when it referred to the “transportation design or plan to get the funds out of this country.” See 478 F. 3d, at 289. But the Fifth Circuit went on to discuss the “design” of the transportation in a different sense. It described the packaging of the money, its placement in the hidden compartment, and the use of animal hair to mask its scent as “aspects of the transportation” that “were designed to conceal or disguise” the nature and location of the cash. Ibid. (emphasis added). Because the Fifth Circuit used “design” to refer not to the purpose of the transportation but to the manner in which it was carried out, its use of the term in this context was consistent with the alternate meaning of “design” as structure or arrangement. See Am. Hert. 491, 492 (“To plan out in systematic, usually graphic form”; “[t]he purposeful or inventive arrangement of parts or details”); Black’s 478 (“The pattern or configuration of elements in something, such as a work of art”). The Government at times also appears to adopt this meaning of “design.” See Brief for United States 21 (“Congress focused on how the transportation itself was ‘designed’ ”); id., at 43 (arguing that petitioner’s design to move funds without detection is proof of a design to conceal or disguise the location and nature of the funds).[Footnote 6] If the statutory term had this meaning, it would apply whenever a person transported illicit funds in a secretive manner. Judge Smith supplied an example of this construction: A petty thief who hides money in his shoe and then walks across the border to spend the money in local bars, see 478 F. 3d, at 301 (dissenting opinion), has engaged in transportation designed to conceal the location of the money because he has hidden it in an unlikely place. We think it implausible, however, that Congress intended this meaning of “design.” If it had, it could have expressed its intention simply by writing “knowing that such transportation conceals or disguises,” rather than the more complex formulation “knowing that such transportation … is designed … to conceal or disguise.” §1956(a)(2)(B)(i). It seems far more likely that Congress intended courts to apply the familiar criminal law concepts of purpose and intent than to focus exclusively on how a defendant “structured” the transportation. In addition, the structural meaning of “design” is both overinclusive and underinclusive: It would capture individuals who structured transportation in a secretive way but lacked any criminal intent (such as a person who hid illicit funds en route to turn them over to law enforcement); yet it would exclude individuals who fully intended to move the funds in order to impede detection by law enforcement but failed to hide them during the transportation. To be sure, purpose and structure are often related. One may employ structure to achieve a purpose: For example, the petty thief may hide money in his shoe to prevent it from being detected as he crosses the border with the intent to hide the money in Mexico. See 478 F. 3d, at 301 (Smith, J., dissenting). Although transporting money in a conventional manner may suggest no particular purpose other than simply to move it from one place to another, secretively transporting it suggests, at least, that the defendant did not want the money to be detected during transport. In this case, evidence of the methods petitioner used to transport the nearly $81,000 in cash—bundled in plastic bags and hidden in a secret compartment covered with animal hair—was plainly probative of an underlying goal to prevent the funds from being detected while he drove them from the United States to Mexico. The same secretive aspects of the transportation also may be circumstantial evidence that the transportation itself was intended to avoid detection of the funds, because, for example, they may suggest that the transportation is only one step in a larger plan to facilitate the cross-border transport of the funds. Cf. id., at 289 (noting that “concealment of the funds during the U. S. leg of the trip [was] a vital part of the transportation design or plan to get the funds out of this country”). But its probative force, in that context, is weak. “There is a difference between concealing something to transport it, and transporting something to conceal it,” id., at 296–297 (Smith, J., dissenting); that is, how one moves the money is distinct from why one moves the money. Evidence of the former, standing alone, is not sufficient to prove the latter. This case illustrates why: Even with abundant evidence that petitioner had concealed the money in order to transport it, the Government’s own expert witness—ICE Agent Richard Nuckles—testified that the purpose of the transportation was to compensate the leaders of the operation.[Footnote 7] Tr. 179 (Oct. 12, 2004), App. 64–65 (“[T]he bulk of [the money] generally goes back to Mexico, because the smuggler is the one who originated this entire process. He’s going to get a large cut of the profit, and that money has to be moved back to him in Mexico”). The evidence suggested that the secretive aspects of the transportation were employed to facilitate the transportation, see 478 F. 3d, at 289 (noting that “concealment of the funds during the U. S. leg of the trip [was] a vital part of the transportation design or plan”), but not necessarily that secrecy was the purpose of the transportation. Agent Nuckles testified that the secretive manner of transportation was consistent with drug smuggling, see Tr. 179–180, App. 65–66, but the Government failed to introduce any evidence that the reason drug smugglers move money to Mexico is to conceal or disguise a listed attribute of the funds. Agent Nuckles also testified that Acuna, the Mexican border town to which petitioner was headed, has a cash economy and that U. S. currency is widely accepted there. See Tr. 188–189, App. 69. The Fifth Circuit apparently viewed this as evidence that petitioner transported the money in order to conceal or disguise it: “[G]iven Mexico’s largely cash economy, if [petitioner] had successfully transported the funds to Mexico without detection, the jury was entitled to find that the funds would have been better concealed or concealable after the transportation than before.” 478 F. 3d, at 292. The statutory text makes clear, however, that a conviction under this provision requires proof that the purpose—not merely effect—of the transportation was to conceal or disguise a listed attribute. Although the evidence suggested that petitioner’s transportation would have had the effect of concealing the funds, the evidence did not demonstrate that such concealment was the purpose of the transportation because, for instance, there was no evidence that petitioner knew about or intended the effect.[Footnote 8] In sum, we conclude that the evidence introduced by the Government was not sufficient to permit a reasonable jury to conclude beyond a reasonable doubt that petitioner’s transportation was “designed in whole or in part … to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds.” §1956(a)(2)(B)(i). III The provision of the money laundering statute under which petitioner was convicted requires proof that the transportation was “designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control” of the funds. §1956(a)(2)(B)(i). Although this element does not require proof that the defendant attempted to create the appearance of legitimate wealth, neither can it be satisfied solely by evidence that a defendant concealed the funds during their transport. In this case, the only evidence introduced to prove this element showed that petitioner engaged in extensive efforts to conceal the funds en route to Mexico, and thus his conviction cannot stand. We reverse the judgment of the Fifth Circuit. It is so ordered. Footnote 1 Several Courts of Appeals have considered this requirement as relevant, or even necessary, in the context of 18 U. S. C. §1956(a)(1)(B)(i), which prohibits, inter alia, engaging in financial transactions “involv[ing] the proceeds of specified unlawful activity . . . knowing that the transaction is designed in whole or in part . . . to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of some specified unlawful activity.” See United States v. Morales-Rodriguez, 467 F. 3d 1, 13 (CA1 2006); United States v. Esterman, 324 F. 3d 565, 572–573 (CA7 2003); United States v. Abbell, 271 F. 3d 1286, 1298 (CA11 2001); United States v. McGahee, 257 F. 3d 520, 527–528 (CA6 2001); United States v. Dobbs, 63 F. 3d 391, 397 (CA5 1995); United States v. Dimeck, 24 F. 3d 1239, 1247 (CA10 1994). In construing the provision under which petitioner was convicted, four Courts of Appeals, including the Fifth Circuit, have implicitly or explicitly rejected the requirement. See United States v. Garcia-Jaimes, 484 F. 3d 1311, 1322 (CA11 2007) (upholding convictions for conspiracy to commit transportation money laundering without addressing the requirement); United States v. Ness, 466 F. 3d 79, 81–82 (CA2 2006) (rejecting the requirement and upholding a conviction for conspiracy to violate the transportation provision where defendant’s conduct was elaborate and highly secretive); United States v. Carr, 25 F. 3d 1194, 1206–1207 (CA3 1994) (upholding a conviction under the transportation provision without discussing the requirement). Footnote 2 Subsection (a)(2) reads, in its entirety: “Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States— “(A) with the intent to promote the carrying on of specified unlawful activity; or “(B) knowing that the monetary instrument or funds involved in the transportation, transmission, or transfer represent the proceeds of some form of unlawful activity and knowing that such transportation, transmission, or transfer is designed in whole or in part— “(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or “(ii) to avoid a transaction reporting requirement under State or Federal law, “shall be sentenced to a fine of not more than $500,000 or twice the value of the monetary instrument or funds involved in the transportation, transmission, or transfer whichever is greater, or imprisonment for not more than twenty years, or both. For the purpose of the offense described in subparagraph (B), the defendant’s knowledge may be established by proof that a law enforcement officer represented the matter specified in subparagraph (B) as true, and the defendant’s subsequent statements or actions indicate that the defendant believed such representations to be true.” Footnote 3 Section 1956(a)(2)(A) also punishes the mere transportation of lawfully derived proceeds, but it imposes the additional requirement, not found in 31 U. S. C. §5332 (2000 ed., Supp. V), that the defendant must have “inten[ded] to promote the carrying on of specified unlawful activity.” Footnote 4 See, e.g., Esterman, 324 F. 3d, at 570–572; United States v. Corchado-Peralta, 318 F. 3d 255, 259 (CA1 2003); McGahee, 257 F. 3d, at 527; United States v. Herron, 97 F. 3d 234, 237 (CA8 1996); United States v. Majors, 196 F. 3d 1206, 1213 (CA11 1999); United States v. Stephenson, 183 F. 3d 110, 120–121 (CA2 1999); Dobbs, 63 F. 3d, at 398; United States v. Garcia-Emanuel, 14 F. 3d 1469, 1474 (CA10 1994). Footnote 5 See, e.g., Ness, 466 F. 3d, at 81 (concluding that extensive attempts at secrecy were sufficient to support a conviction under 18 U. S. C. §1956(a)(1), but “express[ing] no view” as to whether transactions involving “less elaborate stratagems or a lesser measure of secrecy” would be sufficient); United States v. Johnson, 440 F. 3d 1286, 1291 (CA11 2006) (“Evidence of concealment must be substantial”); Dimeck, 24 F. 3d, at 1247 (“The transportation of the money from Detroit to California in a box, suitcase, or other container does not convert the mere transportation of money into money laundering”). Footnote 6 This understanding of “design” is also implicit in some of the Government’s statements that secretive transportation is sufficient to prove a violation of the statute. See Brief for United States 46 (arguing that the statute covers any “surreptitiou[s]” movement of funds “to a location where United States law enforcement authorities are impaired from detecting and intercepting them,” apparently regardless of whether such impairment was the purpose of the plan); id., at 11 (“When a defendant surreptitiously transports or attempts to transport illegal proceeds across the border knowing of their illegal character, money laundering is the appropriate charge”); id., at 13 (“The statute explicitly covers, and was intended to cover, a wide range of conduct that impairs the ability of law enforcement to find and recover the proceeds of crime”); Tr. of Oral Arg. 46. Agent Richard Nuckles, Immigration and Customs Enforcement (ICE), appears to have adopted this standard at trial as well. See Tr. 196 (Oct. 12, 2004) (testifying that attempting to move funds across the border without detection would be illegal, apparently regardless of the reason for doing so). Footnote 7 Concealing or disguising a listed attribute need be only one of the purposes of the transportation. See §1956(a)(2)(B)(i) (providing that a transportation plan need be designed “in whole or in part” to conceal or disguise). But here, compensating the leaders of the operation was the only purpose to which Agent Nuckles testified. Footnote 8 In many cases, a criminal defendant’s knowledge or purpose is not established by direct evidence but instead is shown circumstantially based on inferences drawn from evidence of effect. See, e.g., 1 W. LaFave, Substantive Criminal Law §5.2(a), p. 341 (2d ed. 2003). Specifically, where the consequences of an action are commonly known, a trier of fact will often infer that the person taking the action knew what the consequences would be and acted with the purpose of bringing them about. Although, as noted above, the Government introduced some evidence regarding the effect of transporting illegally obtained money to Mexico, the Government has not pointed to any evidence in the record from which it could be inferred beyond a reasonable doubt that petitioner knew that taking the funds to Mexico would have had one of the relevant effects. |
553.US.851 | A class action by and for human rights victims (Pimentel class) of Ferdinand Marcos, while he was President of the Republic of the Philippines (Republic), led to a nearly $2 billion judgment in a United States District Court. The Pimentel class then sought to attach the assets of Arelma, S. A. (Arelma), a company incorporated by Marcos, held by a New York broker (Merrill Lynch). The Republic and a Philippine commission (Commission) established to recover property wrongfully taken by Marcos are also attempting to recover this and other Marcos property. The Philippine National Banc (PNB) holds some of the disputed assets in escrow, awaiting the outcome of pending litigation in the Sandiganbayan, a Philippine court determining whether Marcos’ property should be forfeited to the Republic. Facing claims from various Marcos creditors, including the Pimentel class, Merrill Lynch filed this interpleader action under 28 U. S. C. §1335, naming, among the defendants, the Republic, the Commission, Arelma, PNB (all petitioners here), and the Pimentel class (respondents here). The Republic and the Commission asserted sovereign immunity under the Foreign Sovereign Immunities Act of 1976, and moved to dismiss pursuant to Federal Rule of Civil Procedure 19(b), arguing that the action could not proceed without them. Arelma and PNB also sought a Rule 19(b) dismissal. The District Court refused, but the Ninth Circuit reversed, holding that the Republic and the Commission are entitled to sovereign immunity and are required parties under Rule 19(a), and it entered a stay pending the Sandiganbayan litigation’s outcome. Finding that that litigation could not determine entitlement to Arelma’s assets, the District Court vacated the stay and ultimately awarded the assets to the Pimentel class. The Ninth Circuit affirmed, holding that dismissal was not warranted under Rule 19(b) because, though the Republic and the Commission were required parties, their claim had so little likelihood of success on the merits that the action could proceed without them. The court found it unnecessary to consider whether prejudice to those entities might be lessened by a judgment or interim decree in the interpleader action, found the entities’ failure to obtain a judgment in the Sandiganbayan an equitable consideration counseling against dismissing the interpleader suit, and found that allowing the interpleader case to proceed would serve the Pimentel class’ interests. Held: 1. Because Arelma and PNB also seek review of the Ninth Circuit’s decision, this Court need not rule on the question whether the Republic and the Commission, having been dismissed from the suit, had the right to seek review of the decision that the suit could proceed in their absence. As a general matter any party may move to dismiss an action under Rule 19(b). Arelma and PNB have not lost standing to have the judgment vacated in its entirety on procedural grounds simply because they did not appeal, or petition for certiorari on, the underlying merits ruling denying them the interpleaded assets. Pp. 7–9. 2. Rule 19 requires dismissal of the interpleader action. Pp. 9–20. (a) Under Rule 19(a), nonjoinder even of a required person does not always result in dismissal. When joinder is not feasible, the question whether an action should proceed turns on nonexclusive considerations in Rule 19(b), which asks whether “in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” The joinder issue can be complex, and the case-specific determinations involve multiple factors, some “substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests,” Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102, 119. Pp. 9–10. (b) Here, Rule 19(a)’s application is not contested: The Republic and the Commission are required entities. And this Court need not decide the proper standard of review for Rule 19(b) decisions, because the Ninth Circuit’s errors of law require reversal. Pp. 10–19. (1) The first factor directs the court to consider, in determining whether the action may proceed, the prejudice to absent entities and present parties in the event judgment is rendered without joinder. Rule 19(b)(1). The Ninth Circuit gave insufficient weight to the sovereign status of the Republic and the Commission in considering whether they would be prejudiced if the case proceeded. Giving full effect to sovereign immunity promotes the comity and dignity interests that contributed to the development of the immunity doctrine. See, e.g., Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 486. These interests are concrete here. The entities’ claims arise from historically and politically significant events for the Republic and its people, and the entities have a unique interest in resolving matters related to Arelma’s assets. A foreign state has a comity interest in using its courts for a dispute if it has a right to do so. Its dignity is not enhanced if other nations bypass its courts without right or good cause. A more specific affront could result if property the Republic and the Commission claim is seized by a foreign court decree. This Court has not considered the precise question presented, but authorities involving the intersection of joinder and the United States’ governmental immunity, see, e.g., Mine Safety Appliances Co. v. Forrestal, 326 U. S. 371, 373–375, instruct that where sovereign immunity is asserted, and the sovereign’s claims are not frivolous, dismissal must be ordered where there is a potential for injury to the absent sovereign’s interests. The claims of the Republic and the Commission were not frivolous, and the Ninth Circuit thus erred in ruling on their merits. The privilege of sovereign immunity from suit is much diminished if an important and consequential ruling affecting the sovereign’s substantial interest is determined, or at least assumed, by a federal court in its absence and over its objection. The Pimentel class’ interest in recovering its damages is not discounted, but important comity concerns are implicated by assertion of foreign sovereign immunity. The error is not that the courts below gave too much weight to the Pimentel class’ interests, but that they did not accord proper weight to the compelling sovereign immunity claim. Pp. 11–16. (2) The second factor is the extent to which any prejudice could be lessened or avoided by relief or measures alternative to dismissal, Rule 19(b)(2), but no alternative remedies or forms of relief have been proposed or appear to be available. As to the third factor—whether a judgment rendered without the absent party would be adequate, Rule 19(b)(3)—“adequacy” refers not to satisfaction of the Pimentel class’ claims, but to the “public stake in settling disputes by wholes, whenever possible,” Provident Bank, supra, at 111. Going forward with the action in the absence of the Republic and the Commission would not further this public interest because they could not be bound by a judgment to which they were not parties. As to the fourth factor—whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder, Rule 19(b)(4)—the Ninth Circuit made much of the tort victims’ lack of an alternative forum. But Merrill Lynch, not the Pimentel class, is the plaintiff as the stakeholder in the interpleader action. See 28 U. S. C. §1335(a). The Pimentel class’ interests are not irrelevant to Rule 19(b)’s equitable balance, but the Rule’s other provisions are the relevant ones to consult. A dismissal on the ground of nonjoinder will not provide Merrill Lynch with a judgment determining entitlement to the assets so it could be done with the matter, but it likely would give Merrill Lynch an effective defense against piecemeal litigation by various claimants and inconsistent, conflicting judgments. Any prejudice to Merrill Lynch is outweighed by prejudice to the absent entities invoking sovereign immunity. In the usual course, the Ninth Circuit’s failure to give sufficient weight to the likely prejudice to the Republic and the Commission would warrant reversal and remand for further determinations, but here, that error plus this Court’s analysis under Rule 19(b)’s additional provisions require the action’s dismissal. Pp. 17–20. 464 F. 3d 885, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, Ginsburg, Breyer, and Alito, JJ., joined, in which Souter, J., joined as to all but Parts IV–B and V, and in which Stevens, J., joined as to Part II. Stevens, J., and Souter, J., filed opinions concurring in part and dissenting in part. | This case turns on the interpretation and proper application of Rule 19 of the Federal Rules of Civil Procedure and requires us to address the Rule’s operation in the context of foreign sovereign immunity. This interpleader action was commenced to determine the ownership of property allegedly stolen by Ferdinand Marcos when he was the President of the Republic of the Philippines. Two entities named in the suit invoked sovereign immunity. They are the Republic of the Philippines and the Philippine Presidential Commission on Good Governance, referred to in turn as the Republic and the Commission. They were dismissed, but the interpleader action proceeded to judgment over their objection. Together with two parties who remained in the suit, the Republic and the Commission now insist it was error to allow the litigation to proceed. Under Rule 19, they contend, the action should have been dismissed once it became clear they could not be joined as parties without their consent. The United States Court of Appeals for the Ninth Circuit, agreeing with the District Court, held the action could proceed without the Republic and the Commission as parties. Among the reasons the Court of Appeals gave was that the absent, sovereign entities would not prevail on their claims. We conclude the Court of Appeals gave insufficient weight to the foreign sovereign status of the Republic and the Commission, and that the court further erred in reaching and discounting the merits of their claims. I A When the opinion of the Court of Appeals is consulted, the reader will find its quotations from Rule 19 do not accord with its text as set out here; for after the case was in the Court of Appeals and before it came here, the text of the Rule changed. The Rules Committee advised the changes were stylistic only, see Advisory Committee’s Notes on 2007 Amendment to Fed. Rule Civ. Proc. 19, 28 U. S. C. A., p. 168 (2008); and we agree. These are the three relevant stylistic changes. First, the word “required” replaced the word “necessary” in subparagraph (a). Second, the 1966 Rule set out factors in longer clauses and the 2007 Rule sets out the factors affecting joinder in separate lettered headings. Third, the word “indispensable,” which had remained as a remnant of the pre-1966 Rule, is altogether deleted from the current text. Though the word “indispensable” had a lesser place in the 1966 Rule, it still had the latent potential to mislead. As the substance and operation of the Rule both pre- and post-2007 are unchanged, we will refer to the present, revised version. The pre-2007 version is printed in the Appendix of this opinion. The current Rule states, in relevant part, as follows: “Rule 19. Required Joinder of Parties. “(a) Persons Required to Be Joined if Feasible. “(1) Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: “(A) in that person’s absence, the court cannot accord complete relief among existing parties; or “(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: “(i) as a practical matter impair or impede the person’s ability to protect the interest; or “(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. “(2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff. “(3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party. “(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include: “(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties; “(2) the extent to which any prejudice could be lessened or avoided by: “(A) protective provisions in the judgment; “(B) shaping the relief; or “(C) other measures; “(3) whether a judgment rendered in the person’s absence would be adequate; and “(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.” Fed. Rules Civ. Proc. 19(a)–(b). See also Rule 19(c) (imposing pleading requirements); Rule 19(d) (creating exception for class actions). B In 1972, Ferdinand Marcos, then President of the Republic, incorporated Arelma, S. A. (Arelma), under Panamanian law. Around the same time, Arelma opened a brokerage account with Merrill Lynch, Pierce, Fenner & Smith Inc. (Merrill Lynch) in New York, in which it deposited $2 million. As of the year 2000, the account had grown to approximately $35 million. Alleged crimes and misfeasance by Marcos during his presidency became the subject of worldwide attention and protest. A class action by and on behalf of some 9,539 of his human rights victims was filed against Marcos and his estate, among others. The class action was tried in the United States District Court for the District of Hawaii and resulted in a nearly $2 billion judgment for the class. See Hilao v. Estate of Marcos, 103 F. 3d 767 (CA9 1996). We refer to that litigation as the Pimentel case and to its class members as the Pimentel class. In a related action, the Estate of Roger Roxas and Golden Budha [sic] Corporation (the Roxas claimants) claim a right to execute against the assets to satisfy their own judgment against Marcos’ widow, Imelda Marcos. See Roxas v. Marcos, 89 Haw. 91, 113–115, 969 P. 2d 1209, 1231–1233 (1998). The Pimentel class claims a right to enforce its judgment by attaching the Arelma assets held by Merrill Lynch. The Republic and the Commission claim a right to the assets under a 1955 Philippine law providing that property derived from the misuse of public office is forfeited to the Republic from the moment of misappropriation. See An Act Declaring Forfeiture in Favor of the State Any Property Found To Have Been Unlawfully Acquired by Any Public Officer or Employee and Providing for the Proceedings Therefor, Rep. Act No. 1379, 51:9 O. G. 4457 (June 18, 1955). After Marcos fled the Philippines in 1986, the Commission was created to recover any property he wrongfully took. Almost immediately the Commission asked the Swiss Government for assistance in recovering assets—including shares in Arelma—that Marcos had moved to Switzerland. In compliance the Swiss Government froze certain assets and, in 1990, that freeze was upheld by the Swiss Federal Supreme Court. In 1991, the Commission asked the Sandiganbayan, a Philippine court of special jurisdiction over corruption cases, to declare forfeited to the Republic any property Marcos had obtained through misuse of his office. That litigation is still pending in the Sandiganbayan. The Swiss assets were transferred to an escrow account set up by the Commission at the Philippine National Banc (PNB), pending the Sandiganbayan’s decision as to their rightful owner. The Republic and the Commission requested that Merrill Lynch follow the same course and transfer the Arelma assets to an escrow account at PNB. Merrill Lynch did not do so. Facing claims from various Marcos creditors, including the Pimentel class, Merrill Lynch instead filed an interpleader action under 28 U. S. C. §1335. The named defendants in the interpleader action were, among others, the Republic and the Commission, Arelma, PNB, and the Pimentel class (the respondents here). The Pimentel case had been tried as a class action before Judge Manuel Real of the United States District Court for the Central District of California, who was sitting by designation in the District of Hawaii after the Judicial Panel on Multidistrict Litigation consolidated the various human rights complaints against Marcos in that court. See Hilao, supra, at 771. Judge Real directed Merrill Lynch to file the interpleader action in the District of Hawaii, and he presided over the matter. After being named as defendants in the interpleader action, the Republic and the Commission asserted sovereign immunity under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. §1604. They moved to dismiss pursuant to Rule 19(b), based on the premise that the action could not proceed without them. Arelma and PNB also moved to dismiss pursuant to Rule 19(b). Without addressing whether they were entitled to sovereign immunity, Judge Real initially rejected the request by the Republic and the Commission to dismiss the interpleader action. They appealed, and the Court of Appeals reversed. It held the Republic and the Commission are entitled to sovereign immunity and that under Rule 19(a) they are required parties (or “necessary” parties under the old terminology). See In re Republic of the Philippines, 309 F. 3d 1143, 1149–1152 (CA9 2002). The Court of Appeals entered a stay pending the outcome of the litigation in the Sandiganbayan over the Marcos assets. See id., at 1152–1153. After concluding that the pending litigation in the Sandiganbayan could not determine entitlement to the Arelma assets, Judge Real vacated the stay, allowed the action to proceed, and awarded the assets to the Pimentel class. A week later, in the case initiated before the Sandiganbayan in 1991, the Republic asked that court to declare the Arelma assets forfeited, arguing the matter was ripe for decision. The Sandiganbayan has not yet ruled. In the interpleader case the Republic, the Commission, Arelma, and PNB appealed the District Court’s judgment in favor of the Pimentel claimants. This time the Court of Appeals affirmed. See Merrill Lynch, Pierce, Fenner & Smith v. ENC Corp., 464 F. 3d 885 (CA9 2006). Dismissal of the interpleader suit, it held, was not warranted under Rule 19(b) because, though the Republic and the Commission were required (“necessary”) parties under Rule 19(a), their claim had so little likelihood of success on the merits that the interpleader action could proceed without them. One of the reasons the court gave was that any action commenced by the Republic and the Commission to recover the assets would be barred by New York’s 6-year statute of limitations for claims involving the misappropriation of public property. See N. Y. Civ. Prac. Law Ann. §213 (West Supp. 2008). The court thus found it unnecessary to consider whether any prejudice to the Republic and the Commission might be lessened by some form of judgment or interim decree in the interpleader action. The court also considered the failure of the Republic and the Commission to obtain a judgment in the Sandiganbayan—despite the Arelma share certificates having been located and held in escrow at the PNB since 1997–1998—to be an equitable consideration counseling against dismissal of the interpleader suit. The court further found it relevant that allowing the interpleader case to proceed would serve the interests of the Pimentel class, which, at this point, likely has no other available forum in which to enforce its judgment against property belonging to Marcos. This Court granted certiorari. See 552 U. S. ___ (2007). II We begin with the question we asked the parties to address when we granted certiorari: Whether the Republic and the Commission, having been dismissed from the interpleader action based on their successful assertion of sovereign immunity, had the right to appeal the District Court’s determination under Rule 19 that the action could proceed in their absence; and whether they have the right to seek this Court’s review of the Court of Appeals’ judgment affirming the District Court. See ibid. Respondents contend that the Republic and the Commission were not proper parties in the Court of Appeals when it reviewed the District Court’s judgment allowing the action to proceed without them; and, respondents continue, the Republic and the Commission are not proper parties in the instant proceeding before us. See Brief for Respondent Pimentel 21. Without implying that respondents are correct in saying the Republic and the Commission could neither appeal nor become parties here, we conclude we need not rule on this point. Other parties before us, Arelma and PNB, also seek review of the Court of Appeals’ decision affirming the District Court. They, too, moved to dismiss the action under Rule 19(b), appealed from the denial of their motion, and are petitioners before this Court. As a general matter any party may move to dismiss an action under Rule 19(b). A court with proper jurisdiction may also consider sua sponte the absence of a required person and dismiss for failure to join. See, e.g., Minnesota v. Northern Securities Co., 184 U. S. 199, 235 (1902); see also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102, 111 (1968). Respondents argue, however, that Arelma and PNB have no standing to raise before this Court the question whether the action may proceed in the absence of the Republic and the Commission. Arelma and PNB lost on the merits of their underlying claims to the interpleaded assets in both the District Court and the Court of Appeals. By failing to petition for certiorari on that merits ruling, respondents contend, Arelma and PNB abandoned any entitlement to the interpleaded assets and therefore lack a concrete stake in the outcome of further proceedings. We disagree. Dismissal of the action under Rule 19(b) would benefit Arelma and PNB by vacating the judgment denying them the interpleaded assets. A party that seeks to have a judgment vacated in its entirety on procedural grounds does not lose standing simply because the party does not petition for certiorari on the substance of the order. III We turn to the question whether the interpleader action could proceed in the District Court without the Republic and the Commission as parties. Subdivision (a) of Rule 19 states the principles that determine when persons or entities must be joined in a suit. The Rule instructs that nonjoinder even of a required person does not always result in dismissal. Subdivision (a) opens by noting that it addresses joinder “if Feasible.” Where joinder is not feasible, the question whether the action should proceed turns on the factors outlined in subdivision (b). The considerations set forth in subdivision (b) are nonexclusive, as made clear by the introductory statement that “[t]he factors for the court to consider include.” Fed. Rule Civ. Proc. 19(b). The general direction is whether “in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Ibid. The design of the Rule, then, indicates that the determination whether to proceed will turn upon factors that are case specific, which is consistent with a Rule based on equitable considerations. This is also consistent with the fact that the determination of who may, or must, be parties to a suit has consequences for the persons and entities affected by the judgment; for the judicial system and its interest in the integrity of its processes and the respect accorded to its decrees; and for society and its concern for the fair and prompt resolution of disputes. See, e.g., Illinois Brick Co. v. Illinois, 431 U. S. 720, 737–739 (1977). For these reasons, the issue of joinder can be complex, and determinations are case specific. See, e.g., Provident Bank, supra, at 118–119. Under the earlier Rules the term “indispensable party” might have implied a certain rigidity that would be in tension with this case-specific approach. The word “indispensable” had an unforgiving connotation that did not fit easily with a system that permits actions to proceed even when some persons who otherwise should be parties to the action cannot be joined. As the Court noted in Provident Bank, the use of “indispensable” in Rule 19 created the “verbal anomaly” of an “indispensable person who turns out to be dispensable after all.” 390 U. S., at 117, n. 12. Though the text has changed, the new Rule 19 has the same design and, to some extent, the same tension. Required persons may turn out not to be required for the action to proceed after all. In all events it is clear that multiple factors must bear on the decision whether to proceed without a required person. This decision “must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests.” Id., at 119. IV We turn to Rule 19 as it relates to this case. The application of subdivision (a) of Rule 19 is not contested. The Republic and the Commission are required entities because “[w]ithout [them] as parties in this interpleader action, their interests in the subject matter are not protected.” In re Republic of Philippines, 309 F. 3d, at 1152; see Fed. Rule Civ. Proc. 19(a)(1)(B)(i). All parties appear to concede this. The disagreement instead centers around the application of subdivision (b), which addresses whether the action may proceed without the Republic and the Commission, given that the Rule requires them to be parties. We have not addressed the standard of review for Rule 19(b) decisions. The case-specific inquiry that must be followed in applying the standards set forth in subdivision (b), including the direction to consider whether “in equity and good conscience” the case should proceed, implies some degree of deference to the district court. In this case, however, we find implicit in the District Court’s rulings, and explicit in the opinion of the Court of Appeals, errors of law that require reversal. Whatever the appropriate standard of review, a point we need not decide, the judgment could not stand. Cf. Koon v. United States, 518 U. S. 81, 99–100 (1996) (a court “by definition abuses its discretion when it makes an error of law”). The Court of Appeals erred in not giving the necessary weight to the absent entities’ assertion of sovereign immunity. The court in effect decided the merits of the Republic and the Commission’s claims to the Arelma assets. Once it was recognized that those claims were not frivolous, it was error for the Court of Appeals to address them on their merits when the required entities had been granted sovereign immunity. The court’s consideration of the merits was itself an infringement on foreign sovereign immunity; and, in any event, its analysis was flawed. We discuss these errors first in the context of how they affected the Court of Appeals’ analysis under the first factor of Rule 19(b). We then explain that the outcome suggested by the first factor is confirmed by our analysis under the other provisions of Rule 19(b). The action may not proceed. A As to the first Rule 19(b) factor—the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties, Fed. Rule Civ. Proc. 19(b)(1)—the judgment of the Court of Appeals is incorrect. In considering whether the Republic and the Commission would be prejudiced if the action were to proceed in their absence, the Court of Appeals gave insufficient weight to their sovereign status. The doctrine of foreign sovereign immunity has been recognized since early in the history of our Nation. It is premised upon the “perfect equality and absolute independence of sovereigns, and th[e] common interest impelling them to mutual intercourse.” Schooner Exchange v. McFaddon, 7 Cranch 116, 137 (1812). The Court has observed that the doctrine is designed to “give foreign states and their instrumentalities some protection from the inconvenience of suit,” Dole Food Co. v. Patrickson, 538 U. S. 468, 479 (2003). The privilege is codified by federal statute. FSIA, 28 U. S. C. §§1330, 1602–1611, provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607,” absent existing international agreements to the contrary. §1604; see Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 486–489 (1983) (explaining the history of the doctrine’s codification). Exceptions to the general principle of foreign sovereign immunity are contained in §§1605–1607 of the statute. They are inapplicable here, or at least the parties do not invoke them. Immunity in this case, then, is uncontested; and pursuant to the Court of Appeals’ earlier ruling on the issue, the District Court dismissed the Republic and the Commission from the action on this ground. The District Court and the Court of Appeals failed to give full effect to sovereign immunity when they held the action could proceed without the Republic and the Commission. Giving full effect to sovereign immunity promotes the comity interests that have contributed to the development of the immunity doctrine. See, e.g., id., at 486 (“[F]oreign sovereign immunity is a matter of grace and comity”); National City Bank of N. Y. v. Republic of China, 348 U. S. 356, 362, and n. 7 (1955) (foreign sovereign immunity derives from “standards of public morality, fair dealing, reciprocal self-interest, and respect for the ‘power and dignity’ of the foreign sovereign” (quoting Schooner Exchange, supra, at 136–137, 143–144)). Comity and dignity interests take concrete form in this case. The claims of the Republic and the Commission arise from events of historical and political significance for the Republic and its people. The Republic and the Commission have a unique interest in resolving the ownership of or claims to the Arelma assets and in determining if, and how, the assets should be used to compensate those persons who suffered grievous injury under Marcos. There is a comity interest in allowing a foreign state to use its own courts for a dispute if it has a right to do so. The dignity of a foreign state is not enhanced if other nations bypass its courts without right or good cause. Then, too, there is the more specific affront that could result to the Republic and the Commission if property they claim is seized by the decree of a foreign court. Cf. Republic of Mexico v. Hoffman, 324 U. S. 30, 35–36 (1945) (pre-FSIA, common-law doctrine dictated that courts defer to executive determination of immunity because “[t]he judicial seizure” of the property of a friendly state may be regarded as “an affront to its dignity and may … affect our relations with it”). Though this Court has not considered a case posing the precise question presented here, there are some authorities involving the intersection of joinder and the governmental immunity of the United States. See, e.g., Mine Safety Appliances Co. v. Forrestal, 326 U. S. 371, 373–375 (1945) (dismissing an action where the Under Secretary of the Navy was sued in his official capacity, because the Government was a required entity that could not be joined when it withheld consent to be sued); Minnesota v. United States, 305 U. S. 382, 386–388 (1939) (dismissing the action for nonjoinder of a required entity where the United States was the owner of the land in question but had not consented to suit). The analysis of the joinder issue in those cases was somewhat perfunctory, but the holdings were clear: A case may not proceed when a required-entity sovereign is not amenable to suit. These cases instruct us that where sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign. The Court of Appeals accordingly erred in undertaking to rule on the merits of the Republic and the Commission’s claims. There may be cases where the person who is not joined asserts a claim that is frivolous. In that instance a court may have leeway under both Rule 19(a)(1), defining required parties, and Rule 19(b), addressing when a suit may go forward nonetheless, to disregard the frivolous claim. Here, the claims of the absent entities are not frivolous; and the Court of Appeals should not have proceeded on the premise that those claims would be determined against the sovereign entities that asserted immunity. The Court of Appeals determined that the claims of the Republic and the Commission as to the assets would not succeed because a suit would be time barred in New York. This is not necessarily so. If the Sandiganbayan rules that the Republic owns the assets or stock of Arelma because Marcos did not own them and the property was forfeited to the Republic under Philippine law, then New York misappropriation rules might not be the applicable law. For instance, the Republic and the Commission, standing in for Arelma based upon the Sandiganbayan’s judgment, might not pursue a misappropriation of public property suit, as the Court of Appeals assumed they would. They might instead, or in the alternative, file suit for breach of contract against Merrill Lynch. They would argue the statute of limitations would start to run if and when Merrill Lynch refused to hand over the assets. See N. Y. Civ. Prac. Law Ann. §213 (West Supp. 2008); Ely-Cruikshank Co. v. Bank of Montreal, 81 N. Y. 2d 399, 402, 615 N. E. 2d 985, 986 (1993) (“In New York, a breach of contract cause of action accrues at the time of the breach”). Or the Republic and the Commission might bring an action either in state or federal court to enforce the Sandiganbayan’s judgment. See 1 Restatement (Third) of Foreign Relations Law of the United States §482, Comment a (1986) (jurisdiction of foreign court rendering judgment is presumed); id., at Comment d (providing exceptions not relevant here); see also 28 U. S. C. §2467(c) (providing for enforcement of foreign forfeiture judgments in certain circumstances). Merrill Lynch makes arguments why these actions would not succeed, see Brief for Merrill Lynch as Amicus Curiae 26–27, to which the Republic, the Commission, and the United States respond, see Reply Brief for Petitioners 14–18; Brief for United States as Amicus Curiae 24–28. We need not seek to predict the outcomes. It suffices that the claims would not be frivolous. As these comments indicate, Rule 19 cannot be applied in a vacuum, and it may require some preliminary assessment of the merits of certain claims. For example, the Rule directs a court, in determining who is a required person, to consider whether complete relief can be afforded in their absence. See Fed. Rule Civ. Proc. 19(a)(1)(A). Likewise, in the Rule 19(b) inquiry, a court must examine, to some extent, the claims presented and the interests likely to be asserted both by the joined parties and the absent entities or persons. Here, however, it was improper to issue a definitive holding regarding a nonfrivolous, substantive claim made by an absent, required entity that was entitled by its sovereign status to immunity from suit. That privilege is much diminished if an important and consequential ruling affecting the sovereign’s substantial interest is determined, or at least assumed, by a federal court in the sovereign’s absence and over its objection. As explained above, the decision to proceed in the absence of the Republic and the Commission ignored the substantial prejudice those entities likely would incur. This most directly implicates Rule 19(b)’s first factor, which directs consideration of prejudice both to absent persons and those who are parties. We have discussed the absent entities. As to existing parties, we do not discount the Pimentel class’ interest in recovering damages it was awarded pursuant to a judgment. Furthermore, combating public corruption is a significant international policy. The policy is manifested in treaties providing for international cooperation in recovering forfeited assets. See, e.g., United Nations Convention Against Corruption, G. A. Res. 5814, chs. IV and V, U. N. Doc. A/RES/58/4, pp. 22, 32 (Dec. 11, 2003) (reprinted in 43 I. L. M. 37 (2004)); Treaty on Mutual Legal Assistance in Criminal Matters Art. 16, Nov. 13, 1994, S. Treaty Doc. No. 104–18 (1995). This policy does support the interest of the Pimentel class in recovering damages awarded to it. But it also underscores the important comity concerns implicated by the Republic and the Commission in asserting foreign sovereign immunity. The error is not that the District Court and the Court of Appeals gave too much weight to the interest of the Pimentel class, but that it did not ac- cord proper weight to the compelling claim of sovereign immunity. Based on these considerations we conclude the District Court and the Court of Appeals gave insufficient weight to the likely prejudice to the Republic and the Commission should the interpleader proceed in their absence. B As to the second Rule 19(b) factor—the extent to which any prejudice could be lessened or avoided by relief or measures alternative to dismissal, Fed. Rule Civ. Proc. 19(b)(2)—there is no substantial argument to allow the action to proceed. No alternative remedies or forms of relief have been proposed to us or appear to be available. See 7 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1608, pp. 106–110 (3d ed. 2001) (collecting cases using alternative forms of relief, including the granting of money damages rather than specific performance, the use of declaratory judgment, and the direction that payment be withheld pending suits against the absent party). If the Marcos estate did not own the assets, or if the Republic owns them now, the claim of the Pimentel class likely fails; and in all events, if there are equally valid but competing claims, that too would require adjudication in a case where the Republic and the Commission are parties. See State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523, 534, and n. 16 (1967); Russell v. Clark’s Executors, 7 Cranch 69, 98–99 (1812) (Marshall, C. J.); Wichita & Affiliated Tribes of Okla. v. Hodel, 788 F. 2d 765, 774 (CADC 1986) (“Conflicting claims by beneficiaries to a common trust present a textbook example of a case where one party may be severely prejudiced by a decision in his absence” (citing Williams v. Bankhead, 19 Wall. 563, 570–571 (1874))). C As to the third Rule 19(b) factor—whether a judgment rendered without the absent party would be adequate, Fed. Rule Civ. Proc. 19(b)(3)—the Court of Appeals understood “adequacy” to refer to satisfaction of the Pimentel class’ claims. But adequacy refers to the “public stake in settling disputes by wholes, whenever possible.” Provident Bank, 390 U. S., at 111. This “social interest in the efficient administration of justice and the avoidance of multiple litigation” is an interest that has “traditionally been thought to support compulsory joinder of absent and potentially adverse claimants.” Illinois Brick Co., 431 U. S., at 737–738. Going forward with the action without the Republic and the Commission would not further the public interest in settling the dispute as a whole because the Republic and the Commission would not be bound by the judgment in an action where they were not parties. D As to the fourth Rule 19(b) factor—whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder, Fed. Rule Civ. Proc. 19(b)(4)—the Court of Appeals made much of what it considered the tort victims’ lack of an alternative forum should this action be dismissed. This seems to assume the plaintiff in this interpleader action was the Pimentel class. It is Merrill Lynch, however, that has the statutory status of plaintiff as the stakeholder in the interpleader action. It is true that, in an interpleader action, the stakeholder is often neutral as to the outcome, while other parties press claims in the manner of a plaintiff. That is insufficient, though, to overcome the statement in the interpleader statute that the stakeholder is the plaintiff. See 28 U. S. C. §1335(a) (conditioning jurisdiction in part upon whether “the plaintiff has deposited such money or property” at issue with the district court or has “given bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper”). We do not ignore that, in context, the Pimentel class (and indeed all interpleader claimants) are to some extent comparable to the plaintiffs in noninterpleader cases. Their interests are not irrelevant to the Rule 19(b) equitable balance; but the other provisions of the Rule are the relevant ones to consult. Merrill Lynch, as the stakeholder, makes the point that if the action is dismissed it loses the benefit of a judgment allowing it to disburse the assets and be done with the matter. Dismissal of the action, it urges, leaves it without an adequate remedy, for it “could potentially be forced … to defend lawsuits by the various claimants in different jurisdictions, possibly leading to inconsistent judgments.” Brief for Merrill Lynch as Amicus Curiae 14. A dismissal of the action on the ground of nonjoinder, however, will protect Merrill Lynch in some respects. That disposition will not provide Merrill Lynch with a judgment determining the party entitled to the assets, but it likely would provide Merrill Lynch with an effective defense against piecemeal litigation and inconsistent, conflicting judgments. As matters presently stand, in any later suit against it Merrill Lynch may seek to join the Republic and the Commission and have the action dismissed under Rule 19(b) should they again assert sovereign immunity. Dismissal for nonjoinder to some extent will serve the purpose of interpleader, which is to prevent a stakeholder from having to pay two or more parties for one claim. Any prejudice to Merrill Lynch in this regard is outweighed by prejudice to the absent entities invoking sovereign immunity. Dismissal under Rule 19(b) will mean, in some instances, that plaintiffs will be left without a forum for definitive resolution of their claims. But that result is contemplated under the doctrine of foreign sovereign immunity. See, e.g., Verlinden, 461 U. S., at 497 (“[I]f a court determines that none of the exceptions to sovereign immunity applies, the plaintiff will be barred from raising his claim in any court in the United States”). V The Court of Appeals’ failure to give sufficient weight to the likely prejudice to the Republic and the Commission should the interpleader proceed in their absence would, in the usual course, warrant reversal and remand for further proceedings. In this case, however, that error and our further analysis under the additional provisions of Rule 19(b) lead us to conclude the action must be dismissed. This leaves the Pimentel class, which has waited for years now to be compensated for grievous wrongs, with no immediate way to recover on its judgment against Marcos. And it leaves Merrill Lynch, the stakeholder, without a judgment. The balance of equities may change in due course. One relevant change may occur if it appears that the Sandiganbayan cannot or will not issue its ruling within a reasonable period of time. Other changes could result when and if there is a ruling. If the Sandiganbayan rules that the Republic and the Commission have no right to the assets, their claims in some later interpleader suit would be less substantial than they are now. If the ruling is that the Republic and the Commission own the assets, then they may seek to enforce a judgment in our courts; or consent to become parties in an interpleader suit, where their claims could be considered; or file in some other forum if they can obtain jurisdiction over the relevant persons. We do note that if Merrill Lynch, or other parties, elect to commence further litigation in light of changed circumstances, it would not be necessary to file the new action in the District Court where this action arose, provided venue and jurisdictional requirements are satisfied elsewhere. The present action, however, may not proceed. * * * The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded with instructions to order the District Court to dismiss the interpleader action. It is so ordered. Appendix The Court of Appeals issued its decision before the 2007 Amendments to Rule 19(b) became effective. See Merrill Lynch, Pierce, Fenner & Smith v. ENC Corp., 464 F. 3d 885, 891 (CA9 2006). The text of the Rule before those changes were adopted is as follows: “Rule 19. Joinder of Persons Needed for Just Adjudication “(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action. “(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(1)–(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. “(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as prescribed in subdivision (a)(1)–(2) hereof who are not joined, and the reasons why they are not joined. “(d) Exception of Class Actions. This rule is subject to the provisions of Rule 23.” |
553.US.571 | After prevailing against the Government on a claim originating in the Department of Transportation’s Board of Contract Appeals, petitioner (Richlin) filed an application with the Board for reimbursement of attorney’s fees, expenses, and costs, pursuant to the Equal Access to Justice Act (EAJA). The Board concluded, inter alia, that Richlin was not entitled to recover paralegal fees at the rates at which it was billed by its law firm, holding that EAJA limited such recovery to the attorney’s cost, which was lower than the billed rate. In affirming, the Federal Circuit concluded that the term “fees,” for which EAJA authorizes recovery at “prevailing market rates,” embraces only the fees of attorneys, experts, and agents. Held: A prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the Government at prevailing market rates. Pp. 4–18. (a) EAJA permits a prevailing party to recover “fees and other expenses incurred by that party in connection with” administrative proceedings, 5 U. S. C. §504(a)(1), including “the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project … , and reasonable attorney or agent fees,” and bases the amount of such fees on “prevailing market rates,” §504(b)(1)(A). Because Richlin “incurred” “fees” for paralegal services in connection with its action before the Board, a straightforward reading of the statute demonstrates that Richlin was entitled to recover fees for the paralegal services it purchased at the market rate for such services. The Government’s contrary reading—that expenditures for paralegal services are “other expenses” recoverable only at “reasonable cost”—is unpersuasive. Section 504(b)(1)(A) does not clearly distinguish between the rates at which “fees” and “other expenses” are reimbursed. Even if the statutory text supported the Government’s dichotomy, it would hardly follow that amounts billed for paralegal services should be classified as “expenses” rather than as “fees.” Paralegals are surely more analogous to attorneys, experts, and agents than to studies, analyses, reports, tests, and projects. Even if the Court agreed that EAJA limited paralegal fees to “reasonable cost,” it would not follow that the cost should be measured from the perspective of the party’s attorney rather than the client. By providing that an agency shall award a prevailing party “fees and other expenses … incurred by that party” (emphasis added), §504(a)(1) leaves no doubt that Congress intended the “reasonable cost” of §504(b)(1)(A)’s items to be calculated from the litigant’s perspective. It is unlikely that Congress, without even mentioning paralegals, intended to make an exception of them by calculating their cost from their employer’s perspective. It seems more plausible that Congress intended all “fees and other expenses” to be recoverable at the litigant’s “reasonable cost,” subject to the proviso that “reasonable cost” would be deemed to be “prevailing market rates” when such rates could be determined. Pp. 4–8. (b) To the extent that some ambiguity subsists in the statutory text, this Court need look no further to resolve it than Missouri v. Jenkins, 491 U. S. 274, where the Court addressed a similar question with respect to the Civil Rights Attorney’s Fees Awards Act of 1976—which provides that a court “may allow the prevailing party … a reasonable attorney’s fee as part of the costs,” 42 U. S. C. §1988—finding it “self-evident” that “attorney’s fee” embraced the fees of paralegals as well as attorneys, 491 U. S., at 285. EAJA, like §1988, entitles certain parties to recover “reasonable attorney … fees,” §504(b)(1)(A), and makes no mention of the paralegals, “secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client,” 491 U. S., at 285. Thus, EAJA, like §1988, must be interpreted as using the term “attorney … fees” to reach fees for paralegal services as well as compensation for the attorney’s personal labor, making “self-evident” that Congress intended that term to embrace paralegal fees. Since §504 generally provides for recovery of attorney’s fees at “prevailing market rates,” it follows that paralegal fees must also be recoverable at those rates. The Government’s contention that Jenkins found paralegal fees recoverable as “attorney’s fee[s]” because §1988 authorized no other recoverable “expenses” finds no support in Jenkins itself, which turned not on extratextual policy goals, but on the “self-evident” proposition that “attorney’s fee[s]” had historically included paralegal fees. Indeed, this Court rejected the Government’s interpretation of Jenkins in West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, concluding that a petitioner seeking expert witness fees under §1988 could not rely on Jenkins for the proposition that §1988’s “broad remedial purposes” allowed recovery of fees not expressly authorized by statute. Pp. 8–11. (c) Even assuming that some residual ambiguity in the statutory text justified resorting to extratextual authorities, the legislative history cited by the Government does not address the question presented and policy considerations actually counsel in favor of Richlin’s interpretation. Pp. 11–18. 472 F. 3d 1370, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, in which Scalia, J., joined except as to Part III–A, and in which Thomas, J., joined except as to Parts II–B and III. | * The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party’s attorney. The United States Court of Appeals for the Federal Circuit limited recovery to the attorney’s cost. 472 F. 3d 1370 (2006). We reverse. I Petitioner Richlin Security Service Co. (Richlin) is a small California proprietorship. In the early 1990’s, it was engaged by the former Immigration and Naturalization Service (INS) to provide guard services for detainees at Los Angeles International Airport. Through mutual mistake, the parties’ two contracts misclassified Richlin’s employees under the Service Contract Act of 1965, 41 U. S. C. §351 et seq. The Department of Labor discovered the misclassification and ordered Richlin to pay its employees back wages. Richlin responded by filing a claim against the Government with the Department of Transportation’s Board of Contract Appeals (Board). The claim sought reformation of the two contracts in order to force the Government to make additional payments necessary to cover Richlin’s liability under the Service Contract Act. Richlin prevailed after extensive litigation, and the Board entered an award in its favor. Richlin then filed an application with the Board for reimbursement of its attorney’s fees, expenses, and costs pursuant to EAJA. Under EAJA, “[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” 5 U. S. C. §504(a)(1). In addition to its other fees and expenses, Richlin sought $45,141.10 for 523.8 hours of paralegal work on its contract claim and $6,760 for 68.2 hours of paralegal work on the EAJA application itself. The Board granted Richlin’s application in part. Richlin Security Service Co. v. Department of Justice, Nos. WRO–06–90, WRO–03–91, 2005 WL 1635099 (June 30, 2005), App. to Pet. for Cert. 25a. It found that Richlin met §504(b)(1)(B)’s eligibility requirements, see id., at 30a, and that the Government’s position had not been “substantially justified” within the meaning of §504(a)(1), id., at 32a. It concluded, however, that Richlin was not entitled to recover its paralegal fees at the rates (ranging from $50 per hour to $95 per hour) at which Richlin was billed by its law firm.[Footnote 1] See id., at 39a. The Board held that EAJA limited recovery of paralegal fees to “the cost to the firm rather than … the billed rate.” Ibid. Richlin had not submitted any evidence regarding the cost of the paralegal services to its law firm, see ibid., but the Board found that “$35 per hour is a reasonable cost to the firm[,] having taken judicial notice of paralegal salaries in the Washington D. C. area as reflected on the internet.” Id., at 42a–43a. A divided panel of the Federal Circuit affirmed. 472 F. 3d 1370. The court construed the term “fees,” for which EAJA authorizes recovery at “prevailing market rates,” §504(b)(1)(A), as embracing only the fees of attorneys, experts, and agents.[Footnote 2] See id., at 1374. The court declined to follow the contrary decision of the Eleventh Circuit in Jean v. Nelson, 863 F. 2d 759 (1988), aff’d sub nom. Commissioner v. Jean, 496 U. S. 154 (1990). It also distinguished this Court’s decisions in Missouri v. Jenkins, 491 U. S. 274 (1989), and West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83 (1991), reasoning that those cases involved a different fee-shifting statute with different “ ‘goals and objectives.’ ” 472 F. 3d, at 1375–1377, 1379 (discussing the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. §1988). The court instead found support for its interpretation in EAJA’s legislative history, see 472 F. 3d, at 1381 (citing S. Rep. No. 98–586 (1984) (hereinafter S. Rep.)), and in considerations of public policy, see 472 F. 3d, at 1380–1381. Judge Plager dissented. He believed that the authorities distinguished by the majority (particularly this Court’s decisions in Jenkins and Casey) were indistinguishable. He also identified “sound policy reasons for … adopting the Supreme Court’s take of the case, even if we thought we had a choice.” 472 F. 3d, at 1383. Richlin petitioned for rehearing, pointing out that the approach taken by the Eleventh Circuit in Jean had been followed by several other Circuits. See 482 F. 3d 1358, 1359 (CAFed. 2007) (citing Role Models Am., Inc. v. Brownlee, 353 F. 3d 962, 974 (CADC 2004); Hyatt v. Barnhart, 315 F. 3d 239, 255 (CA4 2002); and Miller v. Alamo, 983 F. 2d 856, 862 (CA8 1993)). The panel denied rehearing over Judge Plager’s dissent, and the full court denied rehearing en banc. See App. to Pet. for Cert. 57a. We granted certiorari. 551 U. S. ___ (2007). II A EAJA permits an eligible prevailing party to recover “fees and other expenses incurred by that party in connection with” a proceeding before an administrative agency. 5 U. S. C. §504(a)(1). EAJA defines “fees and other expenses” as follows: “ ‘[F]ees and other expenses’ includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be necessary for the preparation of the party’s case, and reasonable attorney or agent fees (The amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency involved, and (ii) attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee.)” §504(b)(1)(A).[Footnote 3] In this case, Richlin “incurred” “fees” for paralegal services in connection with its contract action before the Board. Since §504(b)(1)(A) awards fees at “prevailing market rates,” a straightforward reading of the statute leads to the conclusion that Richlin was entitled to recover fees for the paralegal services it purchased at the market rate for such services. The Government resists this reading by distinguishing “fees” from “other expenses.” The Government concedes that “fees” are reimbursable at “prevailing market rates,” but it insists that “other expenses” (including expenses for “any study, analysis, engineering report, test, or project”) are reimbursable only at their “reasonable cost.” And in the Government’s view, outlays for paralegal services are better characterized as “other expenses” than as “fees.” The Government observes that the second sentence of §504(b)(1)(A), which explains how to calculate awards for “fees,” refers to attorneys, agents, and expert witnesses, without mentioning paralegals. From this omission, the Government infers that Congress intended to treat expenditures for paralegal services not as “fees” but as “other expenses,” recoverable at “reasonable cost.” We find the Government’s fractured interpretation of the statute unpersuasive. Contrary to the Government’s contention, §504(b)(1)(A) does not clearly distinguish between the rates at which “fees” and “other expenses” are reimbursed. Although the statute does refer to the “reasonable cost” of “any study, analysis, engineering report, test, or project,” Congress may reasonably have believed that market rates would not exist for work product of that kind. At one point, Congress even appears to use the terms “expenses” and “fees” interchangeably: The first clause of §504(b)(1)(A) refers to the “reasonable expenses of expert witnesses,” while the parenthetical characterizes expert compensation as “fees.” There is no indication that Congress, in using the term “expenses” in one place and “fees” in the other, was referring to two different components of expert remuneration. Even if the dichotomy that the Government draws between “fees” and “other expenses” were supported by the statutory text, it would hardly follow that amounts billed for paralegal services should be classified as “expenses” rather than as “fees.” The Government concludes that the omission of paralegal fees from §504(b)(1)(A)’s parenthetical (which generally authorizes reimbursement at “prevailing market rates”) implies that the recovery of paralegal fees is limited to cost. But one could just as easily conclude that the omission of paralegal fees from the litany of “any study, analysis, engineering report, test, or project” (all of which are recoverable at “reasonable cost”) implies that paralegal fees are recoverable at market rates. Surely paralegals are more analogous to attorneys, experts, and agents than to studies, analyses, reports, tests, and projects. Even the Government’s brief, which incants the term “paralegal expenses,” e.g., Brief for Respondent 4, 5, 6, 7, 8, 9, 10, 11, 12, slips up once and refers to them as “fees,” see id., at 35 (“As the court of appeals explained, treating paralegal fees as attorney fees could ‘distort the normal allocation of work and result in a less efficient performance of legal services’ under the EAJA …”). But even if we agreed that EAJA limited a prevailing party’s recovery for paralegal fees to “reasonable cost,” it certainly would not follow that the cost should be measured from the perspective of the party’s attorney.[Footnote 4] To the contrary, it would be anomalous to measure cost from the perspective of the attorney rather than the client. We do not understand the Government to contend, for example, that the “reasonable cost” of an “engineering report” or “analysis” should be calculated from the perspective of the firm that employs the engineer or analyst. Such an interpretation would be tough to square with the statutory language. Section 504(a)(1) provides that an agency shall award to a prevailing party “fees and other expenses incurred by that party.” See also §504(b)(1)(A) (emphasis added). That language leaves no doubt that Congress intended the “reasonable cost” of the specified items in §504(b)(1)(A) to be calculated from the perspective of the litigant. That being the case, we find it hard to believe that Congress, without even mentioning paralegals, intended to make an exception of them by calculating their cost from the perspective of their employer rather than the litigant. It seems more plausible that Congress intended all “fees and other expenses” to be recoverable at the litigant’s “reasonable cost,” subject to the proviso that “reasonable cost” would be deemed to be “prevailing market rates” when such rates could be determined.[Footnote 5] B To the extent that some ambiguity subsists in the statutory text, we need not look far to resolve it, for we have already addressed a similar question with respect to another fee-shifting statute. In Missouri v. Jenkins, 491 U. S. 274 (1989), we considered whether litigants could recover paralegal fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U. S. C. §1988. Section 1988 provides that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” We concluded that the term “attorney’s fee” in §1988 “cannot have been meant to compensate only work performed personally by members of the bar.” 491 U. S., at 285. Although separate billing for paralegals had become “increasingly widespread,” id., at 286 (internal quotation marks omitted), attorney’s fees had traditionally subsumed both the attorney’s personal labor and the labor of paralegals and other individuals who contributed to the attorney’s work product, see id., at 285. We were so confident that Congress had given the term “attorney’s fees” this traditional gloss that we declared it “self-evident” that the term embraced the fees of paralegals as well as attorneys. Ibid. We think Jenkins substantially answers the question before us. EAJA, like §1988, entitles certain parties to recover “reasonable attorney … fees.” 5 U. S. C. §504(b)(1)(A). EAJA, like §1988, makes no mention of the paralegals, “secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client.” Jenkins, supra, at 285. And we think EAJA, like §1988, must be interpreted as using the term “attorney … fees” to reach fees for paralegal services as well as compensation for the attorney’s personal labor. The Government does not contend that the meaning of the term “attorney’s fees” changed so much between §1988’s enactment in 1976 and EAJA’s enactment in 1980 that the term’s meaning in one statute must be different from its meaning in the other. Under the reasoning of Jenkins, we take it as “self-evident” that when Congress instructed agencies to award “attorney … fees” to certain parties prevailing against the Government, that term was intended to embrace paralegal fees as well. Since §504 generally provides for recovery of attorney’s fees at “prevailing market rates,” it follows that fees for paralegal services must be recoverable at prevailing market rates as well. The Government contends that our decision in Jenkins was driven by considerations arising from the different context in which the term “attorney’s fee” was used in §1988. At the time Jenkins was decided, §1988 provided for the recovery of attorney’s fees without reference to any other recoverable “expenses.” The Government insists that Jenkins found paralegal fees recoverable under the guise of “attorney’s fee[s]” because otherwise paralegal fees would not be recoverable at all. Since EAJA expressly permits recovery (albeit at “cost”) for items other than attorney, agent, and expert witness fees, the Government sees no reason to give EAJA the broad construction that Jenkins gave §1988. The Government’s rationale for distinguishing Jenkins finds no support either in our opinion there or in our subsequent decisions. Our opinion in Jenkins expressed no apprehension at the possibility that a contrary decision would leave the claimant emptyhanded. This omission is unsurprising, since our decision in Jenkins did not rest on the conviction that recovery at market rates was better than nothing. Our decision rested instead on the proposition—a proposition we took as “self-evident”—that the term “attorney’s fee” had historically included fees for paralegal services. Indeed, the Government’s interpretation of Jenkins was rejected by this Court just two years after Jenkins was handed down. In West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, the petitioner sought to recover expert witness fees from the Commonwealth of Pennsylvania pursuant to §1988. The petitioner looked to Jenkins for the proposition that the “broad remedial purposes” of §1988 allowed the recovery of fees not expressly authorized by statute. The Court rejected that interpretation of Jenkins: “The issue [in Jenkins] was not, as [petitioner] contends, whether we would permit our perception of the ‘policy’ of the statute to overcome its ‘plain language.’ It was not remotely plain in Jenkins that the phrase ‘attorney’s fee’ did not include charges for law clerk and paralegal services. Such services, like the services of ‘secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product,’ had traditionally been included in calculation of the lawyers’ hourly rates. Only recently had there arisen ‘the increasingly widespread custom of separately billing for [such] services.’ By contrast, there has never been, to our knowledge, a practice of including the cost of expert services within attorneys’ hourly rates. There was also no record in Jenkins—as there is a lengthy record here—of statutory usage that recognizes a distinction between the charges at issue and attorney’s fees.” Casey, supra, at 99 (quoting 491 U. S., at 285–286) (some internal quotation marks and citations omitted).[Footnote 6] Our analysis of Jenkins in Casey refutes the Government’s claim that Jenkins had to stretch the law to fit hard facts. As Casey shows, our decision in Jenkins turned not on extratextual policy goals but on the traditional meaning of the term “attorney’s fees.” III The Government parries this textual and doctrinal analysis with legislative history and public policy. We are not persuaded by either. The legislative history cited by the Government does not address the question presented, and policy considerations actually counsel in favor of Richlin’s interpretation. A The Government contends first that a 1984 Senate Report accompanying the bill that reenacted EAJA[Footnote 7] unequivocally expressed congressional intent that paralegal fees should be recovered only “ ‘at cost.’ ” Brief for Respondent 29 (quoting S. Rep., at 15; emphasis in original). It next contends that the Report tacitly endorsed the same result by approving model rules of the Administrative Conference of the United States and a pre-EAJA Sixth Circuit decision, both of which had adopted schemes of reimbursement at attorney cost. See Brief for Respondent 29. We are not persuaded. In our view, the legislative history does not even address the question presented, much less answer it in the Government’s favor.[Footnote 8] The Senate Report accompanying the 1984 bill remarked that “[e]xamples of the type of expenses that should ordinarily be compensable [under EAJA] include paralegal time (billed at cost).” S. Rep., at 15. The Government concludes from this stray remark that Congress intended to limit recovery of paralegal fees to attorney cost. But as we observed earlier, the word “cost” could just as easily (and more sensibly) refer to the client’s cost rather than the attorney’s cost. Under the former interpretation, the Senate Report simply indicates that a prevailing party who satisfies EAJA’s other requirements should generally be able to “bil[l]” the Government for any reasonable amount the party paid for paralegal services. Since the litigant’s out-of-pocket cost for paralegal services would normally be equal to the “prevailing market rat[e]” for such services, 5 U. S. C. §504(b)(1)(A), the Senate Report could easily support Richlin’s interpretation. Moreover, even if the Government’s interpretation of the word “cost” is correct, that interpretation would not be inconsistent with our decision today. “Nothing in [EAJA] requires that the work of paralegals invariably be billed separately. If it is the practice in the relevant market not to do so, or to bill the work of paralegals only at cost, that is all that [EAJA] requires.” Jenkins, supra, at 288 (construing 42 U. S. C. §1988). We thus recognize the possibility, as we did in Jenkins, that the attorney’s cost for paralegal services will supply the relevant metric for calculating the client’s recovery. Whether that metric is appropriate depends on market practice. The Senate Report, even under the Government’s contestable interpretation, is not inconsistent with that conclusion. On the contrary, the Report implies that courts should look to market practice in setting EAJA awards. See S. Rep., at 15 (“The Act should not be read … to permit reimbursement for items ordinarily included in office overhead, nor for any other expenses not reasonable in amount, necessary for the conduct of the litigation, and customarily chargeable to clients” (emphasis added)). Beyond that vague guidance, the Report does not address the critical question in this case: whether EAJA limits recovery of paralegal fees to attorney cost regardless of market practice. As such, the Report does not persuade us of the soundness of the Government’s interpretation of the statute. The Government’s reliance on the Sixth Circuit’s decision in Northcross v. Board of Ed. of the Memphis City Schools, 611 F. 2d 624 (1979), founders for the same reason. The Government contends that Northcross approved of reimbursement at attorney cost under 42 U. S. C. §1988 and that the 1984 Senate Report, by endorsing Northcross, tacitly approved of the same result for EAJA. See Brief for Respondent 30 (citing Northcross, supra, at 639). The problem again is that Northcross did not decide whether a litigant’s recovery for paralegal services would be limited to his attorney’s cost even in a market where litigants were customarily billed at “prevailing market rates.” Although the Sixth Circuit seems to have been aware that paralegal services could be billed to clients at market rates, some language in its opinion suggests that the court assumed that attorneys billed their clients only for the out-of-pocket cost of paralegal services.[Footnote 9] Since Northcross does not clearly address the question presented, its endorsement in the Senate Report means little. Finally, the model rules cited in the Senate Report may actually support Richlin’s position. The implementing release for the rules describes the Administrative Conference’s approach to paralegal costs as follows: “Commenters also took varying positions on whether paralegal costs should be chargeable as expenses. We do not believe the rules should discourage the use of paralegals, which can be an important cost-saving measure. On the other hand, lawyers’ practices with respect to charging for paralegal time, as with respect to other expenses such as duplicating, telephone charges and the like, vary according to locality, field of practice, and individual custom. We have decided not to designate specific items as compensable expenses. Instead, we will adopt a suggestion of the Treasury Department and revise the model rule to provide that expenses may be charged as a separate item if they are ordinarily so charged to the attorney’s clients.” Administrative Conference of the U. S., Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32905 (1981). To the extent that this passage addresses the question presented at all, it seems to take the same approach that the Court took in Jenkins and that we adopt today: it allows the recovery of paralegal fees according to “the practice in the relevant market.” 491 U. S., at 288. But we think the fairest interpretation of the implementing release is that it does not address how awards for paralegal fees should be calculated. Instead, it addresses the anterior question whether courts may award paralegal fees under EAJA at all. See, e.g., 46 Fed. Reg. 32905 (responding to comments urging that the model rules “identify particular expenses of attorneys and witnesses that are compensable”). Like the other legislative authorities cited by the Government, the model rules fail to persuade us of the soundness of the Government’s interpretation because they fail to clearly address the question presented. B We find the Government’s policy rationale for recovery at attorney cost likewise unpersuasive. The Government argues that market-based recovery would distort litigant incentives because EAJA would cap paralegal and attorney’s fees at the same rate. See 5 U. S. C. §504(b)(1)(A) (“[A]ttorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee”). The Government observes that paralegal rates are lower than rates for attorneys operating in the same market. If EAJA reimbursed both attorney time and paralegal time at market rates, then the cap would clip more off the top of the attorney’s rates than the paralegal’s rates. According to the Government, a market-based scheme would encourage litigants to shift an inefficient amount of attorney work to paralegals, since paralegal fees could be recovered at a greater percentage of their full market value. The problem with this argument, as Richlin points out, is that it proves too much. The same reasoning would imply that agent fees should not be recoverable at market rates.[Footnote 10] If market-based recovery of paralegal time resulted in excessive reliance on paralegals, then market-based recovery of agent time should result in excessive reliance on agents. The same reasoning would also imply that fees for junior attorneys (who generally bill at lower rates than senior attorneys) should not be recoverable at market rates. Cf. Jenkins, supra, at 287 (“If the fees are consistent with market rates and practices, the ‘windfall’ argument has no more force with regard to paralegals than it does for associates”). Yet despite the possibility that market-based recovery of attorney and agent fees would distort litigant incentives, §504 unambiguously authorizes awards of “reasonable attorney or agent fees … [at] prevailing market rates.” 5 U. S. C. §504(b)(1)(A). The Government offers no persuasive reason why Congress would have treated paralegal fees any differently. The Government’s policy rationale thus founders on the text of the statute, which shows that Congress was untroubled by the very distortion the Government seeks to prevent. We also question the practical feasibility of the Government’s interpretation of the statute. The Board in this case relied on the Internet for data on paralegal salaries in the District of Columbia, but the Government fails to explain why a law firm’s cost should be limited to salary. The benefits and perks with which a firm compensates its staff come out of the bottom line no less than salary. The Government has offered no solution to this accounting problem, and we do not believe that solutions are readily to be found. Market practice provides by far the more transparent basis for calculating a prevailing party’s recovery under EAJA. It strains credulity that Congress would have abandoned this predictable, workable framework for the uncertain and complex accounting requirements that a cost-based rule would inflict on litigants, their attorneys, administrative agencies, and the courts. IV Confronted with the flaws in its interpretation of the statute, the Government seeks shelter in a canon of construction. According to the Government, any right to recover paralegal fees under EAJA must be read narrowly in light of the statutory canon requiring strict construction of waivers of sovereign immunity. We disagree. The sovereign immunity canon is just that—a canon of construction. It is a tool for interpreting the law, and we have never held that it displaces the other traditional tools of statutory construction. Indeed, the cases on which the Government relies all used other tools of construction in tandem with the sovereign immunity canon. See Ardestani v. INS, 502 U. S. 129, 137 (1991) (relying on the canon as “reinforce[ment]” for the independent “conclusion that any ambiguities in the legislative history are insufficient to undercut the ordinary understanding of the statutory language”); Ruckelshaus v. Sierra Club, 463 U. S. 680, 682, 685–686 (1983) (relying on the canon in tandem with “historic principles of fee-shifting in this and other countries” to define the scope of a fee-shifting statute); Department of Energy v. Ohio, 503 U. S. 607, 626–627 (1992) (resorting to the canon only after a close reading of the statutory provision had left the Court “with an unanswered question and an unresolved tension between closely related statutory provisions”); see also Smith v. United States, 507 U. S. 197, 201–203 (1993) (invoking the sovereign immunity canon only after observing that the claimant’s argument was “undermine[d]” by the “commonsense meaning” of the statutory language). In this case, traditional tools of statutory construction and considerations of stare decisis compel the conclusion that paralegal fees are recoverable as attorney’s fees at their “prevailing market rates.” 5 U. S. C. §504(b)(1)(A). There is no need for us to resort to the sovereign immunity canon because there is no ambiguity left for us to construe. V For these reasons, we hold that a prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the Government at prevailing market rates. The Board’s contrary decision was error, and the Federal Circuit erred in affirming that decision. The judgment of the Federal Circuit is reversed, and this case is remanded for further proceedings consistent with this opinion. It is so ordered. * Justice Scalia joins this opinion except as to Part III–A, and Justice Thomas joins this opinion except as to Parts II–B and III. Footnote 1 Richlin was actually billed for paralegal services at rates as high as $135 per hour, but it amended its application to cap the fees at $95 per hour. See App. to Pet. for Cert. 39a; Brief for Petitioner 9; Brief for Respondent 4, n. 2. Footnote 2 Some agencies allow nonattorney representatives, known as “agents,” to assist parties with the presentation of their cases. See n. 10, infra. Richlin has never claimed that a paralegal may qualify as an “agent” within the meaning of §504(b)(1)(A). Footnote 3 Virtually identical fee-shifting provisions apply to actions by or against the Government in federal court. See 28 U. S. C. §§2412(a)(1), (d)(2)(A). The question presented addresses both §§504 and 2412, but the Federal Circuit’s decision resolved only petitioner’s §504 application, and the Government avers (without challenge from Richlin) that §2412 “is not at issue in this case.” Brief for Respondent 2, n. 1. We assume without deciding that the reasoning of our opinion would extend equally to §§504 and 2412. We confine our discussion to §504. Footnote 4 The Government contends that the question presented does not fairly include the question whether the cost of paralegal services should be calculated from the perspective of the litigant rather than the litigant’s attorney. We disagree. The question presented in Richlin’s petition for certiorari was whether “a prevailing party [may] be awarded attorney fees for paralegal services at the market rate for such services, … [or at] cost only.” Pet. for Cert. i. A decision limiting reimbursement to “cost only” would simply beg the question of how that cost should be measured. Since the question presented cannot genuinely be answered without addressing the subsidiary question, we have no difficulty concluding that the latter question is “fairly included” within the former. See this Court’s Rule 14.1(a). Footnote 5 It is worth recalling that the Board calculated Richlin’s award based on an Internet survey of paralegal salaries in the District of Columbia. Presumably the salaries the Board identified represented the market rate for paralegal compensation. The limited award that the Government wants affirmed was thus based, ironically enough, on the “prevailing market rates” for paralegal services. The fact that paralegal salaries respond to market forces no less than the fees that clients pay suggests to us that this case has more to do with determining whose expenditures get reimbursed (the attorney’s or the client’s) than with determining how expenditures are calculated (at cost or at market). Since EAJA authorizes the recovery of fees and other expenses “incurred by [the] party,” §504(a)(1), rather than the party’s attorney, the answer to the former question is plain. Footnote 6 Following our decision in Casey, Congress amended §1988 to allow parties to recover “expert fees as part of the attorney’s fees.” Civil Rights Act of 1991, §113(a), 105 Stat. 1079 (codified at 42 U. S. C. §1988(c)). Footnote 7 The version of EAJA first enacted in 1980 had a sunset provision effective October 1, 1984. See §§203(c), 204(c), 94 Stat. 2327, 2329. Congress revived EAJA without the sunset provision (but with certain other amendments) in 1985. See Act of Aug. 5, 1985, §§1–2, 6, 99 Stat. 183–186; see also n. 8, infra; see generally Scarborough v. Principi, 541 U. S. 401, 406–407 (2004) (summarizing EAJA’s legislative history). Footnote 8 Richlin makes a threshold challenge to the legitimacy of the 1984 Senate Report as legislative history, observing that the bill it accompanied was vetoed by the President before being enacted by a subsequent Congress. See Brief for Petitioner 27 (“To the extent that legislative history serves as legitimate evidence of congressional intent, it does so only because it is presumed to have been ratified by Congress and the President when the relevant legislation was enacted” (citing Siegel, The Use of Legislative History in a System of Separated Powers, 53 Vand. L. Rev. 1457, 1522 (2000); and Sullivan v. Finkelstein, 496 U. S. 617, 631–632 (1990) (Scalia, J., concurring in part))). But see Melkonyan v. Sullivan, 501 U. S. 89, 96 (1991) (relying on the same Report to interpret EAJA’s 1985 amendments). Because the legislative history is a wash in this case, we need not decide precisely how much weight it deserves in our analysis. Footnote 9 Compare Northcross, 611 F. 2d, at 638 (“[A] scale of fees as is used by most law firms is appropriate to use in making fee awards pursuant to Section 1988. The use of broad categories, differentiating between paralegal services, in-office services by experienced attorneys and trial service, would result in a fair and equitable fee”) with id., at 639 (“The authority granted in section 1988 to award a reasonable attorney’s fee included the authority to award those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services. Reasonable photocopying, paralegal expenses, and travel and telephone costs are thus recoverable pursuant to the statutory authority of §1988” (internal quotation marks omitted)). Footnote 10 “ ‘An “agent fee” may be awarded for the services of a non-attorney where an agency permits such agents to represent parties who come before it.’ ” Brief for Respondent at 11, n. 4 (quoting H. R. Rep. No. 96–1418, p. 14 (1980)); see also n. 2, supra. Since federal courts generally do not permit nonattorneys to practice before them, the portion of EAJA governing awards for parties to federal litigation makes no provision for agent fees. Compare 28 U. S. C. §2412(d)(2)(A) with 5 U. S. C. §504(b)(1)(A). |
552.US.312 | The Medical Device Amendments of 1976 (MDA) created a scheme of federal safety oversight for medical devices while sweeping back state oversight schemes. The statute provides that a State shall not “establish or continue in effect with respect to a device intended for human use any requirement—… (1) which is different from, or in addition to, any requirement applicable under [federal law] to the device, and … (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under” relevant federal law. 21 U. S. C. §360k(a). The MDA calls for federal oversight of medical devices that varies with the type of device at issue. The most extensive oversight is reserved for Class III devices that undergo the premarket approval process. These devices may enter the market only if the FDA reviews their design, labeling, and manufacturing specifications and determines that those specifications provide a reasonable assurance of safety and effectiveness. Manufacturers may not make changes to such devices that would affect safety or effectiveness unless they first seek and obtain permission from the FDA. Charles Riegel and his wife, petitioner Donna Riegel, brought suit against respondent Medtronic after a Medtronic catheter ruptured in Charles Riegel’s coronary artery during heart surgery. The catheter is a Class III device that received FDA premarket approval. The Riegels alleged that the device was designed, labeled, and manufactured in a manner that violated New York common law. The District Court held that the MDA pre-empted the Riegels’ claims of strict liability; breach of implied warranty; and negligence in the design, testing, inspection, distribution, labeling, marketing, and sale of the catheter, and their claim of negligent manufacturing insofar as the claim was not premised on the theory that Medtronic had violated federal law. The Second Circuit affirmed. Held: The MDA’s pre-emption clause bars common-law claims challenging the safety or effectiveness of a medical device marketed in a form that received premarket approval from the FDA. Pp. 8–17. (a) The Federal Government has established “requirement[s] applicable … to” Medtronic’s catheter within §360k(a)(1)’s meaning. In Medtronic, Inc. v. Lohr, 518 U. S. 470, 495, 500–501, the Court interpreted the MDA’s pre-emption provision in a manner “substantially informed” by an FDA regulation, 21 CFR §808.1(d), which says that state requirements are pre-empted only when the FDA “has established specific counterpart regulations or there are other specific requirements applicable to a particular device” under federal law. Premarket approval imposes “specific requirements applicable to a particular device.” The FDA requires that a device that has received premarket approval be marketed without significant deviations from the specifications in the device’s approval application, for the reason that the FDA has determined that those specifications provide a reasonable assurance of safety and effectiveness. Pp. 8–10. (b) Petitioner’s common-law claims are pre-empted because they are based upon New York “requirement[s]” with respect to Medtronic’s catheter that are “different from, or in addition to” the federal ones, and that relate to safety and effectiveness, §360k(a). Pp. 10–17. (i) Common-law negligence and strict-liability claims impose “requirement[s]” under the ordinary meaning of that term, see, e.g., Lohr, supra, at 503–505, 512, Cipollone v. Liggett Group, Inc., 505 U. S. 504, 521–523, 548–549. There is nothing in the MDA that contradicts this normal meaning. Pp. 10–12. (ii) The Court rejects petitioner’s contention that the duties underlying her state-law tort claims are not pre-empted because general common-law duties are not requirements maintained “with respect to devices.” Petitioner’s suit depends upon New York’s “continu[ing] in effect” general tort duties “with respect to” Medtronic’s catheter. Title 21 CFR §808.1(d)(1)—which states that MDA pre-emption does not extend to “[s]tate or local requirements of general applicability [whose] purpose … relates either to other products in addition to devices … or to unfair trade practices in which the requirements are not limited to devices”—does not alter the Court’s interpretation. Pp. 14–17. (c) The Court declines to address in the first instance petitioner’s argument that this lawsuit raises “parallel” claims that are not pre-empted by §360k under Lohr, supra, at 495, 513. P. 17. 451 F. 3d 104, affirmed. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined, and in which Stevens, J., joined except for Parts III–A and III–B. Stevens, J., filed an opinion concurring in part and concurring in the judgment. Ginsburg, J., filed a dissenting opinion. | We consider whether the pre-emption clause enacted in the Medical Device Amendments of 1976, 21 U. S. C. §360k, bars common-law claims challenging the safety and effectiveness of a medical device given premarket approval by the Food and Drug Administration (FDA). I A The Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq., has long required FDA approval for the introduction of new drugs into the market. Until the statutory enactment at issue here, however, the introduction of new medical devices was left largely for the States to supervise as they saw fit. See Medtronic, Inc. v. Lohr, 518 U. S. 470, 475–476 (1996). The regulatory landscape changed in the 1960’s and 1970’s, as complex devices proliferated and some failed. Most notably, the Dalkon Shield intrauterine device, introduced in 1970, was linked to serious infections and several deaths, not to mention a large number of pregnancies. Thousands of tort claims followed. R. Bacigal, The Limits of Litigation: The Dalkon Shield Controversy 3 (1990). In the view of many, the Dalkon Shield failure and its aftermath demonstrated the inability of the common-law tort system to manage the risks associated with dangerous devices. See, e.g., S. Foote, Managing the Medical Arms Race 151–152 (1992). Several States adopted regulatory measures, including California, which in 1970 enacted a law requiring premarket approval of medical devices. 1970 Cal. Stats. ch. 1573, §§26670–26693; see also Leflar & Adler, The Preemption Pentad: Federal Preemption of Products Liability Claims After Medtronic, 64 Tenn. L. Rev. 691, 703, n. 66 (1997) (identifying 13 state statutes governing medical devices as of 1976). Congress stepped in with passage of the Medical Device Amendments of 1976 (MDA), 21 U. S. C. §360c et seq.,[Footnote 1] which swept back some state obligations and imposed a regime of detailed federal oversight. The MDA includes an express pre-emption provision that states: “Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement— “(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and “(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.” §360k(a). The exception contained in subsection (b) permits the FDA to exempt some state and local requirements from pre-emption. The new regulatory regime established various levels of oversight for medical devices, depending on the risks they present. Class I, which includes such devices as elastic bandages and examination gloves, is subject to the lowest level of oversight: “general controls,” such as labeling requirements. §360c(a)(1)(A); FDA, Device Advice: Device Classes, http://www.fda.gov/cdrh/devadvice/3132.html (all Internet materials as visited Feb. 14, 2008, and available in Clerk of Court’s case file). Class II, which includes such devices as powered wheelchairs and surgical drapes, ibid., is subject in addition to “special controls” such as performance standards and postmarket surveillance measures, §360c(a)(1)(B). The devices receiving the most federal oversight are those in Class III, which include replacement heart valves, implanted cerebella stimulators, and pacemaker pulse generators, FDA, Device Advice: Device Classes, supra. In general, a device is assigned to Class III if it cannot be established that a less stringent classification would provide reasonable assurance of safety and effectiveness, and the device is “purported or represented to be for a use in supporting or sustaining human life or for a use which is of substantial importance in preventing impairment of human health,” or “presents a potential unreasonable risk of illness or injury.” §360c(a)(1)(C)(ii). Although the MDA established a rigorous regime of premarket approval for new Class III devices, it grandfathered many that were already on the market. Devices sold before the MDA’s effective date may remain on the market until the FDA promulgates, after notice and comment, a regulation requiring premarket approval. §§360c(f)(1), 360e(b)(1). A related provision seeks to limit the competitive advantage grandfathered devices receive. A new device need not undergo premarket approval if the FDA finds it is “substantially equivalent” to another device exempt from premarket approval. §360c(f)(1)(A). The agency’s review of devices for substantial equivalence is known as the §510(k) process, named after the section of the MDA describing the review. Most new Class III devices enter the market through §510(k). In 2005, for example, the FDA authorized the marketing of 3,148 devices under §510(k) and granted premarket approval to just 32 devices. P. Hutt, R. Merrill, & L. Grossman, Food and Drug Law 992 (3d ed. 2007). Premarket approval is a “rigorous” process. Lohr, 518 U. S., at 477. A manufacturer must submit what is typically a multivolume application. FDA, Device Advice—Premarket Approval (PMA) 18, http://www.fda.gov/cdrh/ devadvice/pma/printer.html. It includes, among other things, full reports of all studies and investigations of the device’s safety and effectiveness that have been published or should reasonably be known to the applicant; a “full statement” of the device’s “components, ingredients, and properties and of the principle or principles of operation”; “a full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and, when relevant, packing and installation of, such device”; samples or device components required by the FDA; and a specimen of the proposed labeling. §360e(c)(1). Before deciding whether to approve the application, the agency may refer it to a panel of outside experts, 21 CFR §814.44(a) (2007), and may request additional data from the manufacturer, §360e(c)(1)(G). The FDA spends an average of 1,200 hours reviewing each application, Lohr, supra, at 477, and grants premarket approval only if it finds there is a “reasonable assurance” of the device’s “safety and effectiveness,” §360e(d). The agency must “weig[h] any probable benefit to health from the use of the device against any probable risk of injury or illness from such use.” §360c(a)(2)(C). It may thus approve devices that present great risks if they nonetheless offer great benefits in light of available alternatives. It approved, for example, under its Humanitarian Device Exemption procedures, a ventricular assist device for children with failing hearts, even though the survival rate of children using the device was less than 50 percent. FDA, Center for Devices and Radiological Health, Summary of Safety and Probable Benefit 20 (2004), online at http://www.fda.gov/cdrh/pdf3/H030003b.pdf. The premarket approval process includes review of the device’s proposed labeling. The FDA evaluates safety and effectiveness under the conditions of use set forth on the label, §360c(a)(2)(B), and must determine that the proposed labeling is neither false nor misleading, §360e(d)(1)(A). After completing its review, the FDA may grant or deny premarket approval. §360e(d). It may also condition approval on adherence to performance standards, 21 CFR §861.1(b)(3), restrictions upon sale or distribution, or compliance with other requirements, §814.82. The agency is also free to impose device-specific restrictions by regulation. §360j(e)(1). If the FDA is unable to approve a new device in its proposed form, it may send an “approvable letter” indicating that the device could be approved if the applicant submitted specified information or agreed to certain conditions or restrictions. 21 CFR §814.44(e). Alternatively, the agency may send a “not approvable” letter, listing the grounds that justify denial and, where practical, measures that the applicant could undertake to make the device approvable. §814.44(f). Once a device has received premarket approval, the MDA forbids the manufacturer to make, without FDA permission, changes in design specifications, manufacturing processes, labeling, or any other attribute, that would affect safety or effectiveness. §360e(d)(6)(A)(i). If the applicant wishes to make such a change, it must submit, and the FDA must approve, an application for supplemental premarket approval, to be evaluated under largely the same criteria as an initial application. §360e(d)(6); 21 CFR §814.39(c). After premarket approval, the devices are subject to reporting requirements. §360i. These include the obligation to inform the FDA of new clinical investigations or scientific studies concerning the device which the applicant knows of or reasonably should know of, 21 CFR §814.84(b)(2), and to report incidents in which the device may have caused or contributed to death or serious injury, or malfunctioned in a manner that would likely cause or contribute to death or serious injury if it recurred, §803.50(a). The FDA has the power to withdraw premarket approval based on newly reported data or existing information and must withdraw approval if it determines that a device is unsafe or ineffective under the condi- tions in its labeling. §360e(e)(1); see also §360h(e) (recall authority). B Except as otherwise indicated, the facts set forth in this section appear in the opinion of the Court of Appeals. The device at issue is an Evergreen Balloon Catheter marketed by defendant-respondent Medtronic, Inc. It is a Class III device that received premarket approval from the FDA in 1994; changes to its label received supplemental approvals in 1995 and 1996. Charles Riegel underwent coronary angioplasty in 1996, shortly after suffering a myocardial infarction. App. to Pet. for Cert. 56a. His right coronary artery was diffusely diseased and heavily calcified. Riegel’s doctor inserted the Evergreen Balloon Catheter into his patient’s coronary artery in an attempt to dilate the artery, although the device’s labeling stated that use was contraindicated for patients with diffuse or calcified stenoses. The label also warned that the catheter should not be inflated beyond its rated burst pressure of eight atmospheres. Riegel’s doctor inflated the catheter five times, to a pressure of 10 atmospheres; on its fifth inflation, the catheter ruptured. Complaint 3. Riegel developed a heart block, was placed on life support, and underwent emergency coronary bypass surgery. Riegel and his wife Donna brought this lawsuit in April 1999, in the United States District Court for the Northern District of New York. Their complaint alleged that Medtronic’s catheter was designed, labeled, and manufactured in a manner that violated New York common law, and that these defects caused Riegel to suffer severe and permanent injuries. The complaint raised a number of common-law claims. The District Court held that the MDA pre-empted Riegel’s claims of strict liability; breach of implied warranty; and negligence in the design, testing, inspection, distribution, labeling, marketing, and sale of the catheter. App. to Pet. for Cert. 68a; Complaint 3–4. It also held that the MDA pre-empted a negligent manufacturing claim insofar as it was not premised on the theory that Medtronic violated federal law. App. to Pet. for Cert. 71a. Finally, the court concluded that the MDA pre-empted Donna Riegel’s claim for loss of consortium to the extent it was derivative of the pre-empted claims. Id., at 68a; see also id., at 75a.[Footnote 2] The United States Court of Appeals for the Second Circuit affirmed these dismissals. 451 F. 3d 104 (2006). The court concluded that Medtronic was “clearly subject to the federal, device-specific requirement of adhering to the standards contained in its individual, federally approved” premarket approval application. Id., at 118. The Riegels’ claims were pre-empted because they “would, if successful, impose state requirements that differed from, or added to” the device-specific federal requirements. Id., at 121. We granted certiorari.[Footnote 3] 551 U. S. ___ (2007). II Since the MDA expressly pre-empts only state requirements “different from, or in addition to, any requirement applicable . . . to the device” under federal law, §360k(a)(1), we must determine whether the Federal Government has established requirements applicable to Medtronic’s catheter. If so, we must then determine whether the Riegels’ common-law claims are based upon New York requirements with respect to the device that are “different from, or in addition to” the federal ones, and that relate to safety and effectiveness. §360k(a). We turn to the first question. In Lohr, a majority of this Court interpreted the MDA’s pre-emption provision in a manner “substantially informed” by the FDA regulation set forth at 21 CFR §808.1(d). 518 U. S., at 495; see also id., at 500–501. That regulation says that state requirements are pre-empted “only when the Food and Drug Administration has established specific counterpart regulations or there are other specific requirements applicable to a particular device . . . .” 21 CFR §808.1(d). Informed by the regulation, we concluded that federal manufacturing and labeling requirements applicable across the board to almost all medical devices did not pre-empt the common-law claims of negligence and strict liability at issue in Lohr. The federal requirements, we said, were not requirements specific to the device in question—they reflected “entirely generic concerns about device regulation generally.” 518 U. S., at 501. While we disclaimed a conclusion that general federal requirements could never pre-empt, or general state duties never be pre-empted, we held that no pre-emption occurred in the case at hand based on a careful comparison between the state and federal duties at issue. Id., at 500–501. Even though substantial-equivalence review under §510(k) is device specific, Lohr also rejected the manufacturer’s contention that §510(k) approval imposed device-specific “requirements.” We regarded the fact that products entering the market through §510(k) may be marketed only so long as they remain substantial equivalents of the relevant pre-1976 devices as a qualification for an exemption rather than a requirement. Id., at 493–494; see also id., at 513 (O’Connor, J., concurring in part and dissenting in part). Premarket approval, in contrast, imposes “requirements” under the MDA as we interpreted it in Lohr. Unlike general labeling duties, premarket approval is specific to individual devices. And it is in no sense an exemption from federal safety review—it is federal safety review. Thus, the attributes that Lohr found lacking in §510(k) review are present here. While §510(k) is “ ‘focused on equivalence, not safety,’ ” id., at 493 (opinion of the Court), premarket approval is focused on safety, not equivalence. While devices that enter the market through §510(k) have “never been formally reviewed under the MDA for safety or efficacy,” ibid., the FDA may grant premarket approval only after it determines that a device offers a reasonable assurance of safety and effectiveness, §360e(d). And while the FDA does not “ ‘require’ ” that a device allowed to enter the market as a substantial equivalent “take any particular form for any particular reason,” ibid., at 493, the FDA requires a device that has received premarket approval to be made with almost no deviations from the specifications in its approval application, for the reason that the FDA has determined that the approved form provides a reasonable assurance of safety and effectiveness. III We turn, then, to the second question: whether the Riegels’ common-law claims rely upon “any requirement” of New York law applicable to the catheter that is “different from, or in addition to” federal requirements and that “relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device.” §360k(a). Safety and effectiveness are the very subjects of the Riegels’ common-law claims, so the critical issue is whether New York’s tort duties constitute “requirements” under the MDA. A In Lohr, five Justices concluded that common-law causes of action for negligence and strict liability do impose “requirement[s]” and would be pre-empted by federal requirements specific to a medical device. See 518 U. S., at 512 (opinion of O’Connor, J., joined by Rehnquist, C. J., and Scalia and Thomas, JJ.); id., at 503–505 (opinion of Breyer, J.). We adhere to that view. In interpreting two other statutes we have likewise held that a provision pre-empting state “requirements” pre-empted common-law duties. Bates v. Dow Agrosciences LLC, 544 U. S. 431 (2005), found common-law actions to be pre-empted by a provision of the Federal Insecticide, Fungicide, and Rodenticide Act that said certain States “ ‘shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.’ ” Id., at 443 (discussing 7 U. S. C. §136v(b); emphasis added). Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992), held common-law actions pre-empted by a provision of the Public Health Cigarette Smoking Act of 1969, 15 U. S. C. §1334(b), which said that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes” whose packages were labeled in accordance with federal law. See 505 U. S., at 523 (plurality opinion); id., at 548–549 (Scalia, J., concurring in judgment in part and dissenting in part). Congress is entitled to know what meaning this Court will assign to terms regularly used in its enactments. Absent other indication, reference to a State’s “requirements” includes its common-law duties. As the plurality opinion said in Cipollone, common-law liability is “premised on the existence of a legal duty,” and a tort judgment therefore establishes that the defendant has violated a state-law obligation. Id., at 522. And while the common-law remedy is limited to damages, a liability award “ ‘can be, indeed is designed to be, a potent method of governing conduct and controlling policy.’ ” Id., at 521. In the present case, there is nothing to contradict this normal meaning. To the contrary, in the context of this legislation excluding common-law duties from the scope of pre-emption would make little sense. State tort law that requires a manufacturer’s catheters to be safer, but hence less effective, than the model the FDA has approved disrupts the federal scheme no less than state regulatory law to the same effect. Indeed, one would think that tort law, applied by juries under a negligence or strict-liability standard, is less deserving of preservation. A state statute, or a regulation adopted by a state agency, could at least be expected to apply cost-benefit analysis similar to that applied by the experts at the FDA: How many more lives will be saved by a device which, along with its greater effectiveness, brings a greater risk of harm? A jury, on the other hand, sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court. As Justice Breyer explained in Lohr, it is implausible that the MDA was meant to “grant greater power (to set state standards ‘different from, or in addition to’ federal standards) to a single state jury than to state officials acting through state administrative or legislative lawmaking processes.” 518 U. S., at 504. That perverse distinction is not required or even suggested by the broad language Congress chose in the MDA,[Footnote 4] and we will not turn somersaults to create it. B The dissent would narrow the pre-emptive scope of the term “requirement” on the grounds that it is “difficult to believe that Congress would, without comment, remove all means of judicial recourse” for consumers injured by FDA-approved devices. Post, at 5 (opinion of Ginsburg, J.) (internal quotation marks omitted). But, as we have explained, this is exactly what a pre-emption clause for medical devices does by its terms. The operation of a law enacted by Congress need not be seconded by a committee report on pain of judicial nullification. See, e.g., Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992). It is not our job to speculate upon congressional motives. If we were to do so, however, the only indication available— the text of the statute—suggests that the solicitude for those injured by FDA-approved devices, which the dissent finds controlling, was overcome in Congress’s estimation by solicitude for those who would suffer without new medical devices if juries were allowed to apply the tort law of 50 States to all innovations.[Footnote 5] In the case before us, the FDA has supported the position taken by our opinion with regard to the meaning of the statute. We have found it unnecessary to rely upon that agency view because we think the statute itself speaks clearly to the point at issue. If, however, we had found the statute ambiguous and had accorded the agency’s current position deference, the dissent is correct, see post, at 6, n. 8, that—inasmuch as mere Skidmore deference would seemingly be at issue—the degree of deference might be reduced by the fact that the agency’s earlier position was different. See Skidmore v. Swift & Co., 323 U. S. 134 (1944); United States v. Mead Corp., 533 U. S. 218 (2001); Good Samaritan Hospital v. Shalala, 508 U. S. 402, 417 (1993). But of course the agency’s earlier position (which the dissent describes at some length, post, at 5–6, and finds preferable) is even more compromised, indeed deprived of all claim to deference, by the fact that it is no longer the agency’s position. The dissent also describes at great length the experience under the FDCA with respect to drugs and food and color additives. Post, at 7–11. Two points render the conclusion the dissent seeks to draw from that experience—that the pre-emption clause permits tort suits—unreliable. (1) It has not been established (as the dissent assumes) that no tort lawsuits are pre-empted by drug or additive approval under the FDCA. (2) If, as the dissent believes, the pre-emption clause permits tort lawsuits for medical devices just as they are (by hypothesis) permitted for drugs and additives; and if, as the dissent believes, Congress wanted the two regimes to be alike; Congress could have applied the pre-emption clause to the entire FDCA. It did not do so, but instead wrote a pre-emption clause that applies only to medical devices. C The Riegels contend that the duties underlying negligence, strict-liability, and implied-warranty claims are not pre-empted even if they impose “ ‘requirements,’ ” because general common-law duties are not requirements maintained “ ‘with respect to devices.’ ” Brief for Petitioner 34–36. Again, a majority of this Court suggested otherwise in Lohr. See 518 U. S., at 504–505 (opinion of Breyer, J.); id., at 514 (opinion of O’Connor, J., joined by Rehnquist, C. J., and Scalia and Thomas, JJ.).[Footnote 6] And with good reason. The language of the statute does not bear the Riegels’ reading. The MDA provides that no State “may establish or continue in effect with respect to a device … any requirement” relating to safety or effectiveness that is different from, or in addition to, federal requirements. §360k(a) (emphasis added). The Riegels’ suit depends upon New York’s “continu[ing] in effect” general tort duties “with respect to” Medtronic’s catheter. Nothing in the statutory text suggests that the pre-empted state requirement must apply only to the relevant device, or only to medical devices and not to all products and all actions in general. The Riegels’ argument to the contrary rests on the text of an FDA regulation which states that the MDA’s pre-emption clause does not extend to certain duties, including “[s]tate or local requirements of general applicability where the purpose of the requirement relates either to other products in addition to devices (e.g., requirements such as general electrical codes, and the Uniform Commercial Code (warranty of fitness)), or to unfair trade practices in which the requirements are not limited to devices.” 21 CFR §808.1(d)(1). Even assuming that this regulation could play a role in defining the MDA’s pre-emptive scope, it does not provide unambiguous support for the Riegels’ position. The agency’s reading of its own rule is entitled to substantial deference, see Auer v. Robbins, 519 U. S. 452, 461 (1997), and the FDA’s view put forward in this case is that the regulation does not refer to general tort duties of care, such as those underlying the claims in this case that a device was designed, labeled, or manufactured in an unsafe or ineffective manner. Brief for United States as Amicus Curiae 27–28. That is so, according to the FDA, because the regulation excludes from pre-emption requirements that relate only incidentally to medical devices, but not other requirements. General tort duties of care, unlike fire codes or restrictions on trade practices, “directly regulate” the device itself, including its design. Id., at 28. We find the agency’s explanation less than compelling, since the same could be said of general requirements imposed by electrical codes, the Uniform Commercial Code, or unfair-trade-practice law, which the regulation specifically excludes from pre-emption. Other portions of 21 CFR §808.1, however, support the agency’s view that §808.1(d)(1) has no application to this case (though still failing to explain why electrical codes, the Uniform Commercial Code or unfair-trade-practice requirements are different). Section 808.1(b) states that the MDA sets forth a “general rule” pre-empting state duties “having the force and effect of law (whether established by statute, ordinance, regulation, or court decision) … .” (Emphasis added.) This sentence is far more comprehensible under the FDA’s view that §808.1(d)(1) has no application here than under the Riegels’ view. We are aware of no duties established by court decision other than common-law duties, and we are aware of no common-law duties that relate solely to medical devices. The Riegels’ reading is also in tension with the regulation’s statement that adulteration and misbranding claims are pre-empted when they “ha[ve] the effect of establishing a substantive requirement for a specific device, e.g., a specific labeling requirement” that is “different from, or in addition to” a federal requirement. §808.1(d)(6)(ii). Surely this means that the MDA would pre-empt a jury determination that the FDA-approved labeling for a pacemaker violated a state common-law requirement for additional warnings. The Riegels’ reading of §808.1(d)(1), however, would allow a claim for tortious mislabeling to escape pre-emption so long as such a claim could also be brought against objects other than medical devices. All in all, we think that §808.1(d)(1) can add nothing to our analysis but confusion. Neither accepting nor rejecting the proposition that this regulation can properly be consulted to determine the statute’s meaning; and neither accepting nor rejecting the FDA’s distinction between general requirements that directly regulate and those that regulate only incidentally; the regulation fails to alter our interpretation of the text insofar as the outcome of this case is concerned. IV State requirements are pre-empted under the MDA only to the extent that they are “different from, or in addition to” the requirements imposed by federal law. §360k(a)(1). Thus, §360k does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case “parallel,” rather than add to, federal requirements. Lohr, 518 U. S., at 495; see also id., at 513 (O’Connor, J., concurring in part and dissenting in part). The District Court in this case recognized that parallel claims would not be pre-empted, see App. to Pet. for Cert. 70a–71a, but it interpreted the claims here to assert that Medtronic’s device violated state tort law notwithstanding compliance with the relevant federal requirements, see id., at 68a. Although the Riegels now argue that their law- suit raises parallel claims, they made no such conten- tion in their briefs before the Second Circuit, nor did they raise this argument in their petition for certiorari. We decline to address that argument in the first instance here. * * * For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. Footnote 1 Unqualified §360 et seq. numbers hereinafter refer to sections of 21 U. S. C. Footnote 2 The District Court later granted summary judgment to Medtronic on those claims of Riegel it had found not pre-empted, viz., that Medtronic breached an express warranty and was negligent in manufacturing because it did not comply with federal standards. App. to Pet. for Cert. 90a. It consequently granted summary judgment as well on Donna Riegel’s derivative consortium claim. Ibid. The Court of Appeals affirmed these determinations, and they are not before us. Footnote 3 Charles Riegel having died, Donna Riegel is now petitioner on her own behalf and as administrator of her husband’s estate. 552 U. S. ___ (2007). For simplicity’s sake, the terminology of our opinion draws no distinction between Charles Riegel and the Estate of Charles Riegel and refers to the claims as belonging to the Riegels. Footnote 4 The Riegels point to §360k(b), which authorizes the FDA to exempt state “requirements” from pre-emption under circumstances that would rarely be met for common-law duties. But a law that permits an agency to exempt certain “requirements” from pre-emption does not suggest that no other “requirements” exist. The Riegels also invoke §360h(d), which provides that compliance with certain FDA orders “shall not relieve any person from liability under Federal or State law.” This indicates that some state-law claims are not pre-empted, as we held in Lohr. But it could not possibly mean that all state-law claims are not pre-empted, since that would deprive the MDA pre-emption clause of all content. And it provides no guidance as to which state-law claims are pre-empted and which are not. Footnote 5 Contrary to Justice Stevens’ contention, post, at 2, we do not “advance” this argument. We merely suggest that if one were to speculate upon congressional purposes, the best evidence for that would be found in the statute. Footnote 6 The opinions joined by these five Justices dispose of the Riegels’ assertion that Lohr held common-law duties were too general to qualify as duties “with respect to a device.” The majority opinion in Lohr also disavowed this conclusion, for it stated that the Court did “not believe that [the MDA’s] statutory and regulatory language necessarily precludes . . . ‘general’ state requirements from ever being pre-empted . . . .” Medtronic, Inc. v. Lohr, 518 U. S. 470, 500 (1996). |
553.US.406 | Section 5 of the Voting Rights Act of 1965 (VRA) requires “covered jurisdictions” to obtain preclearance from the District Court for the District of Columbia or the Department of Justice (DOJ) before “enact[ing] or seek[ing] to administer” any changes in their practices or procedures affecting voting. Alabama is a covered jurisdiction. As of its November 1, 1964 coverage date, state law provided that midterm vacancies on county commissions were to be filled by gubernatorial appointment. In 1985, the state legislature passed, and the DOJ precleared, a “local law” providing that Mobile County Commission midterm vacancies would be filled by special election rather than gubernatorial appointment. In 1987, the Governor called a special election for the first midterm opening on the Commission postpassage of the 1985 Act. A Mobile County voter, Willie Stokes, filed suit in state court seeking to enjoin the election, but the state trial court denied his request. Although Stokes immediately appealed to the Alabama Supreme Court, the special election went forward and the winner took office. Subsequently, however, the Alabama Supreme Court reversed the trial court’s judgment, finding that the 1985 Act violated the State Constitution. When the next midterm Commission vacancy occurred in 2005, the method of filling the opening again became the subject of litigation. In 2004, the state legislature had passed, and the DOJ had precleared, a law providing for gubernatorial appointment as the means to fill county commission vacancies unless a local law authorized a special election. When the vacancy arose, appellee voters and state legislators (hereinafter Kennedy) filed suit against the Governor in state court, asserting that the 2004 Act had revived the 1985 Act and cured its infirmity under the Alabama Constitution. Adopting Kennedy’s view, the trial court ordered the Governor to call a special election. Before the election took place, however, the Alabama Supreme Court reversed the trial court’s order, holding that the 2004 Act did not resurrect the 1985 Act. The Governor therefore filled the vacancy by appointment, naming Commissioner Chastang to the open seat. Kennedy then commenced this suit in Federal District Court. Invoking §5 of the VRA, she sought declaratory relief and an injunction barring the Governor from filling the Commission vacancy by appointment unless and until Alabama gained preclearance of the Stokes and Kennedy decisions. A three-judge District Court granted the requested declaration in August 2006. It determined that the “baseline” against which any change should be measured was the 1985 Act’s provision requiring special elections, a measure both precleared and put into “force or effect” with the special election in 1987. It followed, the District Court reasoned, that the gubernatorial appointment called for by Stokes and Kennedy ranked as a change from the baseline practice; consequently, those decisions should have been precleared. Deferring affirmative relief, the District Court gave the State 90 days to obtain preclearance. When the DOJ denied the State’s request for preclearance, Kennedy returned to the District Court and filed a motion for further relief. On May 1, 2007, the District Court vacated the Governor’s appointment of Chastang to the Commission, finding it unlawful under §5 of the VRA. The Governor filed a notice of appeal in the District Court on May 18. Held: 1. Because the District Court did not render its final judgment until May 1, 2007, the Governor’s May 18 notice of appeal was timely. Under §5, “any appeal” from the decision of a three-judge district court “shall lie to the Supreme Court,” 42 U. S. C. §1973c(a), but the appeal must be filed within 60 days of a district court’s entry of a final judgment, see 28 U. S. C. §2101(b). Kennedy maintains that the District Court’s August 2006 order qualified as a final judgment, while the Governor maintains that the District Court’s final judgment was the May 1 order vacating Chastang’s appointment. A final judgment “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U. S. 229, 233. The August 2006 order declared that preclearance was required for the Stokes and Kennedy decisions, but left unresolved Kennedy’s demand for injunctive relief. An order resolving liability without addressing a plaintiff’s requests for relief is not final. See Liberty Mut. Ins. Co. v. Wetzel, 424 U. S. 737, 742–743. Pp. 9–10. 2. For §5 purposes, the 1985 Act never gained “force or effect.” Therefore, Alabama’s reinstatement of its prior practice of gubernatorial appointment did not rank as a “change” requiring preclearance. Pp. 10–20. (a) In order to determine whether an election practice constitutes a “change” as defined in this Court’s §5 precedents, the practice must be compared with the covered jurisdiction’s “baseline,” i.e., the most recent practice both precleared and “in force or effect”—or, absent any change since the jurisdiction’s coverage date, the practice “in force or effect” on that date. See Young v. Fordice, 520 U. S. 273, 282–283. Pp. 10–12. (b) While not controlling here, three precedents addressing §5’s term of art “in force or effect” provide the starting point for the Court’s inquiry. In Perkins v. Matthews, 400 U. S. 379, the question was what practice had been “in force or effect” in Canton, Mississippi, on that State’s 1964 coverage date. A 1962 state law required at-large elections for city aldermen, but Canton had elected aldermen by wards in 1961 and again in 1965. This Court held that the city’s 1969 attempt to move to at-large elections was a change requiring preclearance because election by ward was “the procedure in fact ‘in force or effect’ in Canton” on the coverage date. Id., at 395. Similarly, in City of Lockhart v. United States, 460 U. S. 125, the question was what practice had been “in force or effect” in Lockhart, Texas, on the relevant coverage date. The city had used a “numbered-post” system to elect its city council for more than 50 years. Though the numbered-post system’s validity under state law was “not entirely clear,” id., at 132, “[t]he proper comparison [wa]s between the new system and the system actually in effect on” the coverage date, “regardless of what state law might have required,” ibid. Finally, in Young v. Fordice, the question was whether a provisional voter registration plan precleared and implemented by Mississippi election officials, who believed that the state legislature was about to amend the relevant law, had been “in force or effect.” See 520 U. S., at 279. As it turned out, the state legislature failed to pass the amendment, and voters who had registered under the provisional plan were required to reregister. This Court held that the provisional plan was a “temporary misapplication of state law” that, for §5 purposes, was “never ‘in force or effect.’ ” Id., at 282. Young thus qualified the general rule of Perkins and Lockhart: A practice best characterized as nothing more than a “temporary misapplication of state law,” is not in “force or effect,” even if actually implemented by state election officials, 520 U. S., at 282. Pp. 12–15. (c) If the only relevant factors were the length of time a practice was in use and the degree to which it was implemented, this would be a close case under Perkins, Lockhart, and Young. But an extraordinary circumstance not present in any past case is operative here, impelling the conclusion that the 1985 Act was never “in force or effect”: The Act was challenged in state court at first opportunity, the lone election was held in the shadow of that legal challenge, and the Act was ultimately invalidated by the Alabama Supreme Court. These characteristics plainly distinguish this case from Perkins and Lockhart, where the state judiciary had no involvement. The prompt legal challenge and the State Supreme Court’s decision also provide strong cause to conclude that, in the §5 context, the 1985 Act was never “in force or effect.” A State’s highest court is unquestionably “the ultimate exposito[r] of state law.” Mullaney v. Wilbur, 421 U. S. 684, 691. And because the State Supreme Court’s prerogative to say what Alabama law is merits respect in federal forums, a law challenged at first opportunity and invalidated by Alabama’s highest court is properly regarded as null and void ab initio, incapable of effecting any change in Alabama law or establishing a voting practice under §5. There is no good reason to hold otherwise simply because Alabama’s highest court did not render its decision until after an election was held. To the contrary, practical considerations sometimes require courts to allow elections to proceed despite pending legal challenges. Cf. Purcell v. Gonzalez, 549 U. S. 1, 5–6 (per curiam). Ruling otherwise would have the anomalous effect of binding Alabama to an unconstitutional practice because of the state trial court’s error. The trial court misconstrued the State’s law and, due to that court’s error, an election took place. That sequence of events, the District Court held, made the 1985 Act part of Alabama’s §5 baseline. In essence, the District Court’s decision gave controlling effect to the erroneous trial court ruling and rendered the Alabama Supreme Court’s corrections inoperative. That sort of interference with a state supreme court’s ability to determine the content of state law is more than a hypothetical concern. The realities of election litigation are such that lower state courts often allow elections to proceed based on erroneous interpretations of state law later corrected on appeal. The Court declines to adopt a rigid interpretation of “in force or effect” that would deny state supreme courts the opportunity to correct similar errors in the future. Pp. 15–19. (d) Although this Court’s reasoning and the facts of this case should make the narrow scope of the holding apparent, some cautionary observations are in order. First, the presence of a judgment by Alabama’s highest court invalidating the 1985 Act under the State Constitution is critical here. The outcome might be different were a potentially unlawful practice simply abandoned by state officials after initial use in an election. Cf. Perkins, 400 U. S., at 395. Second, the 1985 Act was challenged the first time it was invoked and struck down shortly thereafter. The same result would not necessarily follow if a practice were invalidated only after enforcement without challenge in several previous elections. Cf. Young, 520 U. S., at 283. Finally, the consequence of the Alabama Supreme Court’s Stokes decision was to reinstate a practice—gubernatorial appointment—identical to the State’s §5 baseline. Preclearance might well have been required had the court instead ordered the State to adopt a novel practice. Pp. 19–20. Reversed and remanded. Ginsburg, 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 Souter, J., joined. | This case presents a novel question concerning §5 of the Voting Rights Act of 1965. The setting, in a nutshell: A covered State passed a law adopting a new election practice, obtained the preclearance required by §5, and held an election. Soon thereafter, the law under which the election took place was invalidated by the State’s highest court on the ground that it violated a controlling provision of the State’s Constitution. The question presented: Must the State obtain fresh preclearance in order to reinstate the election practice prevailing before enactment of the law struck down by the State’s Supreme Court? We hold that, for §5 purposes, the invalidated law never gained “force or effect.” Therefore, the State’s reversion to its prior practice did not rank as a “change” requiring preclearance. I The Voting Rights Act of 1965 (VRA), 79 Stat. 437, as amended, 42 U. S. C. §1973 et seq., “was designed by Congress to banish the blight of racial discrimination in voting, which ha[d] infected the electoral process in parts of our country for nearly a century.” South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). In three earlier statutes, passed in 1957, 1960, and 1964, Congress had empowered the Department of Justice (DOJ or Department) to combat voting discrimination through “case-by-case litigation.” Id., at 313. These lawsuits, however, made little headway. Voting-rights suits were “unusually onerous to prepare” and the progress of litigation was “exceedingly slow,” in no small part due to the obstructionist tactics of state officials. Id., at 314. Moreover, some States “resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees.” Id., at 335. The VRA reflected Congress’ determination that “sterner and more elaborate measures” were needed to counteract these formidable hindrances. Id., at 309. Sections 4 and 5 impose the most stringent of the Act’s remedies. Under §4(b), as amended, a State or political subdivision is a so-called “covered jurisdiction” if, on one of three specified coverage dates: (1) it maintained a literacy requirement or other “test or device” as a prerequisite to voting, and (2) fewer than 50% of its voting-age citizens were registered to vote or voted in that year’s Presidential election. 42 U. S. C. A. §1973b(b) (Supp. 2007). Section 4(a) suspends the operation of all such “test[s] or device[s]” in covered jurisdictions. §1973b(a) (main ed. and Supp. 2007). Section 5 requires covered jurisdictions to obtain what has come to be known as “preclearance” from the District Court for the District of Columbia or the DOJ before “enact[ing] or seek[ing] to administer” any alteration of their practices or procedures affecting voting. §1973c(a) (Supp. 2007). A change will be precleared only if it “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or [because of membership in a language minority group].” Ibid. An election practice has the “effect” of “denying or abridging the right to vote” if it “lead[s] to a retrogression in the position of racial [or language] minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U. S. 130, 141 (1976). See also Young v. Fordice, 520 U. S. 273, 276 (1997); 28 CFR §51.54 (2007). As amended in 2006, the statute defines “purpose” to include “any discriminatory purpose.” 120 Stat. 581, codified at 42 U. S. C. A. §1973c(c) (Supp. 2007). Congress took the extraordinary step of requiring covered jurisdictions to preclear all changes in their voting practices because it “feared that the mere suspension of existing tests [in §4(a)] would not completely solve the problem, given the history some States had of simply enacting new and slightly different requirements with the same discriminatory effect.” Allen v. State Bd. of Elections, 393 U. S. 544, 548 (1969). By putting the burden on covered jurisdictions to demonstrate that future changes would not be discriminatory, §5 served to “shift the advantage of time and inertia from the perpetrators of the evil to its victims.” Katzenbach, 383 U. S., at 328. Sections 4 and 5 were originally scheduled to lapse once a covered jurisdiction complied with §4(a)’s ban on the use of tests and devices for five years. See 79 Stat. 438. Finding continuing discrimination in access to the ballot, however, Congress renewed and expanded §§4 and 5 on four occasions, most recently in 2006.[Footnote 1] Sections 4 and 5 are now set to expire in 2021, see 42 U. S. C. A. §1973b(a)(8) (Supp. 2007), but a covered jurisdiction may “bail out” at any time if it satisfies certain requirements, see §1973b(a)(1) (main ed. and Supp. 2007). II The voting practice at issue in this litigation is the method used to fill midterm vacancies on the Mobile County Commission, the governing body of Mobile County, Alabama. Composed of three members elected by separate districts to four-year terms, the Commission has the power to levy taxes, make appropriations, and exercise other county-wide executive and administrative functions. See Ala. Code §11–3–11 (1975). We set out first, as pivotal to our resolution of this case, a full account of two disputes over the means of filling midterm vacancies on the Commission. The first occurred between 1985 and 1988; the second began in 2004 and culminates in the appeal now before us. A Alabama is a covered jurisdiction with a coverage date of November 1, 1964. See 30 Fed. Reg. 9897 (1965). As of that date, Alabama law provided that midterm vacancies on all county commissions were to be filled by gubernatorial appointment. See Ala. Code §12–6 (1959). The relevant provision was later recodified without substantive change as Ala. Code §11–3–6 (1975), which stated: “In case of a vacancy, it shall be filled by appointment by the governor, and the person so appointed shall hold office for the remainder of the term of the commissioner in whose place he is appointed.” In 1985, however, the state legislature passed a “local law” providing that any vacancy on the Mobile County Commission occurring “with twelve months or more remaining on the term of the vacant seat” would be filled by special election rather than gubernatorial appointment. 1985 Ala. Acts no. 85–237 (1985 Act).[Footnote 2] The DOJ precleared this new law in June 1985. The first midterm opening on the Commission postpassage of the 1985 Act occurred in 1987, when the seat for District One—a majority African-American district—became vacant. In accord with the 1985 Act, the Governor called a special election. A Mobile County voter, Willie Stokes, promptly filed suit in state court seeking to enjoin the election. The 1985 Act, he alleged, violated Art. IV, §105, of the Alabama Constitution, which provides that no “local law … shall be enacted in any case which is provided for by a general law.” On Stokes’s reading, the 1985 Act conflicted with §105 because the Act addressed a matter already governed by Ala. Code §11–3–6. The state trial court rejected Stokes’s argument and entered judgment for the state defendants. Stokes immediately appealed to the Alabama Supreme Court and sought an order staying the election pending that court’s decision. The requested stay was denied and the special election went forward in June 1987. The winner, Samuel Jones, took office as District One’s Commissioner in July 1987. Approximately 14 months later, however, in September 1988, the Alabama Supreme Court reversed the trial court’s judgment. Finding that the 1985 Act “clearly offend[ed] §105 of the [Alabama] Constitution,” the court declared the Act unconstitutional. Stokes v. Noonan, 534 So. 2d 237, 238–239 (1988). The Alabama Supreme Court’s decree cast grave doubt on the legitimacy of Jones’s election and, consequently, on his continued tenure in office. The Governor, however, defused any potential controversy by immediately invoking his authority under Ala. Code §11–3–6 and appointing Jones to the Commission. B The next midterm vacancy on the Commission did not occur until October 2005, when Jones—who had been reelected every four years since 1988—was elected mayor of the city of Mobile. Once again, the method of filling the vacancy became the subject of litigation. In 2004, the state legislature had passed (and the DOJ had precleared) an amendment to Ala. Code §11–3–6 providing that vacancies on county commissions were to be filled by gubernatorial appointment “[u]nless a local law authorizes a special election.” 2004 Ala. Acts no. 2004–455 (2004 Act). When the 2005 vacancy arose, three Mobile County voters and Alabama state legislators—appellees Yvonne Kennedy, James Buskey, and William Clark (hereinafter Kennedy)—filed suit against Alabama’s Governor, Bob Riley, in state court. The 2004 Act’s authorization of local laws providing for special elections, they urged, had revived the 1985 Act and cured its infirmity under §105 of the Alabama Constitution. Adopting Kennedy’s view, the state trial court ordered Governor Riley to call a special election. While the Governor’s appeal to the Alabama Supreme Court was pending, Mobile County’s election officials obtained preclearance of procedures for a special election, scheduled to take place in January 2006. In November 2005, however, the Alabama Supreme Court reversed the trial court’s order. Holding that the 2004 Act “provide[d] for prospective application only” and thus did not resurrect the 1985 Act, Alabama’s highest court ruled that “Governor Riley [wa]s authorized to fill the vacancy on the Mobile County Commission by appointment.” Riley v. Kennedy, 928 So. 2d 1013, 1017 (2005). Governor Riley promptly exercised that authority by appointing Juan Chastang. The day after the Alabama Supreme Court denied rehearing, Kennedy commenced the instant suit in Federal District Court. Invoking §5, she sought declaratory relief and an injunction barring Governor Riley from filling the Commission vacancy by appointment unless and until Alabama gained preclearance of the decisions in Stokes and Kennedy. As required by §5, a three-judge District Court convened to hear the suit. See 42 U. S. C. A. §1973c(a) (Supp. 2007); Allen, 393 U. S., at 563. In August 2006, the three-judge court, after a hearing, granted the requested declaration. The court observed first that for purposes of §5’s preclearance requirement, “[c]hanges are measured by comparing the new challenged practice with the baseline practice, that is, the most recent practice that is both precleared and in force or effect.” 445 F. Supp. 2d 1333, 1336 (MD Ala.). It then determined that the 1985 Act’s provision requiring special elections had been both precleared and put into “force or effect” with the special election of Jones in 1987. It followed, the District Court reasoned, that the gubernatorial appointment called for by Stokes and Kennedy ranked as a change from the baseline practice; consequently “the two [Alabama Supreme Court] decisions … should have been precleared before they were implemented.” 445 F. Supp. 2d, at 1336. Deferring affirmative relief, the District Court gave the State 90 days to obtain preclearance of Stokes and Kennedy. 445 F. Supp 2d, at 1336. Without conceding that preclearance was required, the State submitted the decisions to the DOJ. Finding that the State had failed to prove that the reinstatement of gubernatorial appointment would not be retrogressive, the Department denied preclearance. See App. to Motion to Dismiss or Affirm 2a–8a. “The African-American voters of District 1,” the DOJ explained, “enjoy the opportunity to elect minority candidates of their choice” under the 1985 Act. Id., at 6a. A change to gubernatorial appointment would be retrogressive because it “would transfer this electoral power to a state official elected by a statewide constituency whose racial make-up and electoral choices regularly differ from those of the voters of District 1.” Ibid. After the State unsuccessfully sought DOJ reconsideration, Kennedy returned to the District Court and filed a motion for further relief. On May 1, 2007, the District Court ruled that “Governor Bob Riley’s appointment of Juan Chastang to the Mobile County Commission … was unlawful under federal law” and vacated the appointment. App. to Juris. Statement 1a–2a. Governor Riley filed a notice of appeal in the District Court on May 18, 2007, and a Jurisdictional Statement in this Court on July 17, 2007. In November 2007, we postponed a determination of jurisdiction until our consideration of the case on the merits. 552 U. S. ___. In the meantime, a special election was held in Mobile County in October 2007 to fill the vacancy resulting from the District Court’s order vacating Chastang’s appointment.[Footnote 3] Chastang ran in the election but was defeated by Merceria Ludgood, who garnered nearly 80% of the vote. See Certification of Results, Special Election, Mobile County (Oct. 16, 2007), http://records.mobile-county.net/ ViewImagesPDFAll.Aspx?ID=2007081288 (as visited May 22, 2008, and available in Clerk of Court’s case file). Ludgood continues to occupy the District One seat on the Commission. Her term will expire in November 2008.[Footnote 4] III Before reaching the merits of Governor Riley’s appeal, we first take up Kennedy’s threshold objection. The appeal, Kennedy urges, must be dismissed as untimely. Section 5 provides that “any appeal” from the decision of a three-judge district court “shall lie to the Supreme Court.” 42 U. S. C. §1973c(a). Such an appeal must be filed within 60 days of the District Court’s entry of a final judgment. See 28 U. S. C. §2101(b). Kennedy maintains that Governor Riley’s May 18, 2007 notice of appeal came too late because the District Court’s August 2006 order qualified as a final judgment. If Kennedy’s characterization is correct, then Governor Riley’s time to file an appeal expired in October 2006 and his appeal must be dismissed. But if, as Governor Riley maintains, the District Court did not issue a final judgment until the order vacating Chastang’s appointment on May 1, 2007, then the Governor filed his appeal well within the required time. A final judgment is “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U. S. 229, 233 (1945).[Footnote 5] The District Court’s August 2006 order declared that the Alabama Supreme Court’s decisions in Stokes and Kennedy required preclearance, but that order left unresolved Kennedy’s demand for injunctive relief. We have long held that an order resolving liability without addressing a plaintiff’s requests for relief is not final. See Liberty Mut. Ins. Co. v. Wetzel, 424 U. S. 737, 742–743 (1976). See also 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3915.2, p. 271 (2d ed. 1992). Resisting the conclusion these authorities indicate, Kennedy maintains that the August 2006 order ranked as a final decision for two reasons. First, she contends, that order conclusively settled the key remedial issue, for it directed Governor Riley to seek preclearance of the Alabama Supreme Court’s decisions in Stokes and Kennedy. See Brief for Appellees 26–27. This argument misapprehends the District Court’s order: Far from requiring the Governor to seek preclearance, the District Court expressly allowed for the possibility that he would elect not to do so. See 445 F. Supp. 2d, at 1337 (“Defendant Riley is to keep the court informed of what action, if any, the State decides to take … .” (emphasis added)). Second, Kennedy notes that the District Court directed entry of its August 2006 order “as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure,” ibid. See Brief for Appellees 27. “The label used by the District Court,” however, “cannot control [an] order’s appealability.” Sullivan v. Finkelstein, 496 U. S. 617, 628, n. 7 (1990). See also Wetzel, 424 U. S., at 741–743. Because the District Court did not render its final judgment until May 1, 2007, Governor Riley’s May 18 notice of appeal was timely. We therefore proceed to the merits. IV Prior to 1985, Alabama filled midterm vacancies on the Mobile County Commission by gubernatorial appointment. The 1985 Act adopted a different practice—special elections. That new practice was used in one election only, held in 1987. The next year, the Alabama Supreme Court determined, in Stokes v. Noonan, that the Act authorizing special elections was invalid under the State’s Constitution. Properly framed, the issue before us is whether §5 required Alabama to obtain preclearance before reinstating the practice of gubernatorial appointment in the wake of the decision by its highest court invalidating the special-election law.[Footnote 6] It is undisputed that a “change” from election to appointment is a change “with respect to voting” and thus covered by §5. See Allen, 393 U. S., at 569–570; Presley v. Etowah County Comm’n, 502 U. S. 491, 502–503 (1992). We have also stated that the preclearance requirement encompasses “voting changes mandated by order of a state court.” Branch v. Smith, 538 U. S. 254, 262 (2003). See also Hathorn v. Lovorn, 457 U. S. 255, 265–266, and n. 16 (1982). The question is whether, given the circumstances here presented, any “change” within the meaning of §5 occurred in this case. In order to determine whether an election practice constitutes a “change” as that term is defined in our §5 precedents, we compare the practice with the covered jurisdiction’s “baseline.” We have defined the baseline as the most recent practice that was both precleared and “in force or effect”—or, absent any change since the jurisdiction’s coverage date, the practice that was “in force or effect” on that date. See Young, 520 U. S., at 282–283. See also Presley, 502 U. S., at 495. The question is “whether a State has ‘enact[ed]’ or is ‘seek[ing] to administer’ a ‘practice or procedure’ that is ‘different’ enough” from the baseline to qualify as a change. Young, 520 U. S., at 281 (quoting 42 U. S. C. §1973c).[Footnote 7] For the reasons that follow, we conclude that the 1985 Act was never “in force or effect” within the meaning of §5. At all relevant times, therefore, the baseline practice for filling midterm vacancies on the Commission was the pre-1985 practice of gubernatorial appointment. The State’s reinstatement of that practice thus did not constitute a change requiring preclearance. A We have directly addressed the §5 term of art “in force or effect” on three prior occasions. As will become clear, these precedents do not control this case because they differ in a critical respect. They do, however, provide the starting point for our inquiry. In Perkins v. Matthews, 400 U. S. 379 (1971), the question was what practice had been “in force or effect” in the city of Canton, Mississippi, on that State’s §5 coverage date, November 1, 1964. A 1962 state law required selection of city aldermen by at-large elections rather than by ward. Canton, however, “ignored the mandate [of the statute] in the conduct of the 1965 municipal elections and, as in 1961, elected aldermen by wards.” Id., at 394. In the 1969 election, the city sought to switch to at-large elections. We held that this move was a change requiring preclearance because election by ward was “the procedure in fact ‘in force or effect’ in Canton on November 1, 1964.” Id., at 395. We endeavored to determine in Perkins the voting procedure that would have been followed on the coverage date, November 1, 1964. Two choices were apparent: the state law on the books since 1962 calling for at-large elections, or the practice Canton actually used, without challenge, in 1965—election by wards. We picked the 1965 practice as the more likely indicator of the practice Canton would have employed had it held an election on the coverage date, just seven months earlier. See id., at 394–395. Similarly, in City of Lockhart v. United States, 460 U. S. 125 (1983), the question was what practice had been “in force or effect” in Lockhart, Texas, on the relevant §5 coverage date, November 1, 1972. For more than 50 years, without challenge, the city had used a “numbered-post” system to elect its city council. See id., at 132, n. 6.[Footnote 8] A group of plaintiffs nonetheless contended that the numbered-post system was never “in force or effect” because it lacked state-law authorization. We noted that the validity of the numbered-post system under state law was “not entirely clear.” Id., at 132.[Footnote 9] Relying on Perkins, we considered the uncertain state of Texas law “irrelevant,” for “[t]he proper comparison [wa]s between the new system and the system actually in effect on November 1, 1972, regardless of what state law might have required.” 460 U. S., at 132 (footnote omitted). Finally, in Young v. Fordice, decided in 1997, the question was whether a provisional voter registration plan implemented by Mississippi election officials had been “in force or effect.” Believing that the state legislature was about to amend the relevant law, the officials had prepared and obtained preclearance for a new voter registration scheme. See 520 U. S., at 279. Roughly one-third of the State’s election officials implemented the plan, registering around 4,000 voters. See id., at 278, 283. As it turned out, however, the state legislature failed to pass the amendment, and the voters who had registered under the provisional plan were required to reregister. See id., at 278. When the case reached us, we rejected the argument that “the [p]rovisional [p]lan, because it was precleared by the Attorney General, became part of the baseline against which to judge whether a future change must be precleared.” Id., at 282. Regarding the provisional plan as a “temporary misapplication of state law,” we held that, for §5 purposes, the plan was “never ‘in force or effect.’ ” Ibid. We emphasized that the officials who implemented the provisional plan “did not intend to administer an unlawful plan” and that they abandoned it “as soon as its unlawfulness became apparent.” Id., at 283. We also noted that the provisional plan had been used for only 41 days and that the State “held no elections” during that period. Ibid. B Perkins and Lockhart established that an election practice may be “in force or effect” for §5 purposes despite its illegality under state law if, as a practical matter, it was “actually in effect.” Lockhart, 460 U. S., at 132. Our more recent decision in Young, however, qualified that general rule: A practice best characterized as nothing more than a “temporary misapplication of state law,” we held, is not in “force or effect,” even if actually implemented by state election officials. 520 U. S., at 282. If the only relevant factors were the length of time a practice was in use and the extent to which it was implemented, this would be a close case falling somewhere between the two poles established by our prior decisions. On one hand, as in Young, the 1985 Act was a “temporary misapplication” of state law: It was on the books for just over three years and applied as a voting practice only once. In Lockhart, by contrast, the city had used the numbered-post system “for over 50 years without challenge.” 460 U. S., at 132, n. 6. (Perkins is a less clear case: The city failed to alter its practice in response to changed state law for roughly seven years, but only a single election was held during that period. See 400 U. S., at 394.) On the other hand, in Young no election occurred during the time the provisional registration plan was in use, while in this case one election was held under the later-invalidated 1985 Act. We are convinced, however, that an extraordinary circumstance not present in any past case is operative here, impelling the conclusion that the 1985 Act was never “in force or effect”: The Act was challenged in state court at first opportunity, the lone election was held in the shadow of that legal challenge, and the Act was ultimately invalidated by the Alabama Supreme Court. These characteristics plainly distinguish the present case from Perkins and Lockhart. The state judiciary had no involvement in either of those cases, as the practices at issue were administered without legal challenge of any kind. And in Lockhart, we justified our unwillingness to incorporate a practice’s legality under state law into the §5 “force or effect” inquiry in part on this ground: “We doubt[ed] that Congress intended” to require “the Attorney General and the District Court for the District of Columbia” to engage in “speculation as to state law.” 460 U. S., at 133, n. 8. Here, in contrast, the 1985 Act’s invalidity under the Alabama Constitution has been definitively established by the Alabama Supreme Court. The prompt legal challenge and the Alabama Supreme Court’s decision not only distinguish this case from Perkins and Lockhart; they also provide strong cause to conclude that, in the context of §5, the 1985 Act was never “in force or effect.” A State’s highest court is unquestionably “the ultimate exposito[r] of state law.” Mullaney v. Wilbur, 421 U. S. 684, 691 (1975). And because the prerogative of the Alabama Supreme Court to say what Alabama law is merits respect in federal forums,[Footnote 10] a law challenged at first opportunity and invalidated by Alabama’s highest court is properly regarded as null and void ab initio, incapable of effecting any change in Alabama law or establishing a voting practice for §5 purposes. Indeed, Kennedy and the United States appear to concede that the 1985 Act would not have been “in force or effect” had the Alabama Supreme Court stayed the 1987 election pending its decision in Stokes (or simply issued its decision sooner). See Brief for Appellees 51; Brief for United States as Amicus Curiae 23–24. There is no good reason to hold otherwise simply because Alabama’s highest court, proceeding at a pace hardly uncommon in litigated controversies, did not render its decision until after an election was held. In this regard, we have recognized that practical considerations sometimes require courts to allow elections to proceed despite pending legal challenges. Cf. Purcell v. Gonzalez, 549 U. S. 1, 5–6 (2006) (per curiam) (“Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the [challenged] rules.”). Ruling as Kennedy and the United States urge, moreover, would have the anomalous effect of binding Alabama to an unconstitutional practice because of a state trial court’s error. If the trial court had gotten the law of Alabama right, all agree, there would have been no special election and no tenable argument that the 1985 Act had ever gained “force or effect.” But the trial court misconstrued the State’s law and, due to that court’s error, an election took place. That sequence of events, the District Court held, made the Act part of Alabama’s §5 baseline. No precedent of this Court calls for such a holding. The District Court took care to note that its decision “d[id] not in any way undermine [Stokes and Kennedy] under state law.” 445 F. Supp. 2d, at 1337. In some theoretical sense, that may be true. Practically, however, the District Court’s decision gave controlling effect to the erroneous trial court decision and rendered the Alabama Supreme Court’s corrections inoperative. Alabama’s Constitution, that State’s Supreme Court determined, required that, in the years here involved, vacancies on the Mobile County Commission be filled by appointment rather than special election. Nothing inherent in the practice of appointment violates the Fifteenth Amendment or the VRA. The DOJ, however, found that a change from special elections to appointment had occurred in District One, and further found that the change was retrogressive, hence barred by §5. The District Court’s final decision, tied to the DOJ determination, thus effectively precluded the State from reinstating gubernatorial appointment, the only practice consistent with the Alabama Constitution pre-2006.[Footnote 11] Indeed, Kennedy’s counsel forthrightly acknowledged that the position she defends would “loc[k] into place” an unconstitutional practice. Tr. of Oral Arg. 32. The dissent, too, appears to concede that its reading of §5 would bind Alabama to an unconstitutional practice because of an error by the state trial court. See post, at 7. But it contends that this imposition is no more “offensive to state sovereignty” than “effectively requiring a State to administer a law it has repealed,” post, at 8—a routine consequence of §5. The result described by the dissent, however, follows directly from the Constitution’s instruction that a state law may not be enforced if it conflicts with federal law. See Art. VI, cl. 2. Section 5 prohibits States from making retrogressive changes to their voting practices, and thus renders any such changes unenforceable. To be sure, this result constrains States’ legislative freedom. But the rule advocated by the dissent would effectively preclude Alabama’s highest court from applying to a state law a provision of the State Constitution entirely harmonious with federal law. That sort of interference with a state supreme court’s ability to determine the content of state law, we think it plain, is a burden of a different order. This burden is more than a hypothetical concern. The realities of election litigation are such that lower state courts often allow elections to proceed based on erroneous interpretations of state law later corrected on appeal. See, e.g., Akins v. Secretary of State, 154 N. H. 67, 67–68, 74, 904 A. 2d 702, 703, 708 (2006) (preelection challenge rejected by a state trial court but eventually sustained in a postelection decision by the State Supreme Court); Cobb v. State Canvassing Bd., 2006–NMSC–034, ¶¶1–17, 140 N. M. 77, 79–83 (2006) (same); Maryland Green Party v. Maryland Bd. of Elections, 377 Md. 127, 137–139, 832 A. 2d 214, 220–221 (2003) (same); O’Callaghan v. State, 914 P. 2d 1250, 1263–1264 (Alaska 1996) (same); Peloza v. Freas, 871 P. 2d 687, 688, 692 (Alaska 1994) (same). We decline to adopt a rigid interpretation of “in force or effect” that would deny state supreme courts the opportunity to correct similar errors in the future. C Although our reasoning and the particular facts of this case should make the narrow scope of our holding apparent, we conclude with some cautionary observations. First, the presence of a judgment by Alabama’s highest court declaring the 1985 Act invalid under the State Constitution is critical to our decision.[Footnote 12] We do not suggest the outcome would be the same if a potentially unlawful practice had simply been abandoned by state officials after initial use in an election. Cf. Perkins, 400 U. S., at 395. Second, the 1985 Act was challenged the first time it was invoked and struck down shortly thereafter. The same result would not necessarily follow if a practice were invalidated only after enforcement without challenge in several previous elections. Cf. Young, 520 U. S., at 283 (“[T]he simple fact that a voting practice is unlawful under state law does not show, entirely by itself, that the practice was never ‘in force or effect.’ … A State, after all, might maintain in effect for many years a plan that technically … violated some provision of state law.”). Finally, the consequence of the Alabama Supreme Court’s decision in Stokes was to reinstate a practice—gubernatorial appointment—identical to the State’s §5 baseline. Preclearance might well have been required had the court instead ordered the State to adopt a novel practice.[Footnote 13] * * * For the reasons stated, the judgment of the United States District Court for the Middle District of Alabama is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577; Voting Rights Act Amendments of 1982, 96 Stat. 131; Voting Rights Act Amendments of 1975, 89 Stat. 400; Voting Rights Act Amendments of 1970, 84 Stat. 314. Footnote 2 Under the Alabama Constitution, a “general” law is “a law which in its terms and effect applies either to the whole state, or to one or more municipalities of the state less than the whole in a class.” Art. IV, §110. A “special or private” law is a law that “applies to an individual, association or corporation.” Ibid. A “local” law is “a law which is not a general law or a special or private law.” Ibid. The 1985 Act was a local law because it applied only to Mobile County; the remainder of the State continued to be governed by Ala. Code §11–3–6 (1975). Footnote 3 The District Court denied the Governor’s motion to stay its judgment pending this appeal. See App. 7. Footnote 4 Regardless of the outcome of this litigation, the method for filling future midterm vacancies on the Commission appears to have been settled. In 2006, the Alabama Legislature enacted a new measure providing that, on a going-forward basis, vacancies on the Commission will be filled by special election. See 2006 Ala. Acts no. 2006–342. The DOJ precleared the statute in July 2007. The passage of this law does not render this case moot: If the Governor prevails in his appeal, Chastang may seek reinstatement to the Commission to serve out the remainder of the term ending in November 2008. See Brief for United States as Amicus Curiae 5, n. 1. Footnote 5 Catlin and the other authorities cited in this Part interpret the meaning of “final decisions” in 28 U. S. C. §1291, the statute governing appeals from district courts to the courts of appeals. We find them instructive in interpreting the parallel term “final” judgment in §2101(b). Footnote 6 As framed by the District Court, the issue was whether the Alabama Supreme Court’s decisions in Stokes v. Noonan and Riley v. Kennedy should have been precleared. See 445 F. Supp. 2d, at 1336. This formulation, we conclude, misstates the issue in two technical respects. First, §5 requires a covered jurisdiction to seek preclearance of any changed “practice … with respect to voting.” 42 U. S. C. A. §1973c(a) (Supp. 2007). The “practice” at issue here is gubernatorial appointment. That practice, and not the Alabama Supreme Court’s interpretation of state law in Stokes and Kennedy, is the proper subject of the §5 inquiry. Second, as Governor Riley noted, see Brief for Appellant 25, if there was a change requiring preclearance, it came about as a result of Stokes, not Kennedy. Stokes held that the 1985 Act violated the Alabama Constitution, and the State accordingly reinstated the practice of gubernatorial appointment with the Governor’s 1988 appointment of Jones. Kennedy simply determined that the 2004 Act did not resurrect the 1985 Act; that decision itself prompted no change in the State’s election practices. Footnote 7 By its terms, §5 requires preclearance of any election practice that is “different from that in force or effect on” the relevant coverage date—in this case, November 1, 1964. 42 U. S. C. A. §1973c(a) (Supp. 2007). Governor Riley’s opening brief suggested that this text could be read to mean that no preclearance is required if a covered jurisdiction seeks to adopt the same practice that was in force or effect on its coverage date—even if, because of intervening changes, that practice is different from the jurisdiction’s baseline. See Brief for Appellant 26–27. In response, Kennedy and the United States noted that the DOJ, see 28 CFR §51.12 (2007), and the lower courts to consider the question, see, e.g., NAACP, DeKalb Cty. Chapter v. Georgia, 494 F. Supp. 668, 677 (ND Ga. 1980) (three-judge court), have rejected this interpretation. See Brief for Appellees 47–49; Brief for United States as Amicus Curiae 17–18. We need not resolve this dispute because the result in this case is the same under either view. But see post, at 2–3 (taking the issue up, although it is academic here). Footnote 8 Under the “numbered post” system, “the two commissioner posts were designated by number, and each candidate for commissioner specified the post for which he or she sought election.” City of Lockhart v. United States, 460 U. S. 125, 127 (1983) (internal quotation marks omitted). It contrasted with an alternative system “in which all of the candidates … run in a single election, and the two receiving the greatest number of votes are elected.” Id., at 127, n. 1. Footnote 9 We commented in this regard that the longevity of the numbered-post system “suggest[ed] a presumption of legality under state law.” Id., at 132, n. 6. Footnote 10 The dissent observes that the Alabama Supreme Court’s decision in Stokes was not unanimous. See post, at 8–9. Like this Court, the Alabama Supreme Court does not shy away from revealing dissenting opinions. Of course, it is the majority opinion that declares what state law is. Footnote 11 As earlier noted, see supra, at 8–9, n. 4, the Alabama Legislature modified the relevant state law in 2006 by adopting special elections on a going-forward basis. Footnote 12 There is no indication in the record that the Alabama Supreme Court’s decisions in Stokes and Kennedy were anything other than reasonable and impartial interpretations of controlling Alabama law. Footnote 13 In view of these limitations, the concern expressed in Part IV of the dissent, see post, at 9–13, is misplaced. The Alabama Supreme Court’s historical role in administering the State’s discriminatory literacy test, the dissent contends, “indicates that state courts must be treated on the same terms as state legislatures for §5 purposes,” post, at 9. But it is common ground that a “change” made pursuant to a state-court order is subject to §5 scrutiny; the only question is whether the Alabama Supreme Court’s ruling in Stokes triggered a “change” within the meaning of our decisions. See supra, at 11; post, at 8. More importantly, none of the past discriminatory actions by the state court identified in the dissent would have been sheltered from §5 review by our tightly bounded decision in this case. |
554.US.191 | Texas police relied on erroneous information that petitioner Rothgery had a previous felony conviction to arrest him as a felon in possession of a firearm. The officers brought Rothgery before a magistrate judge, as required by state law, for a so-called “article 15.17 hearing,” at which the Fourth Amendment probable-cause determination was made, bail was set, and Rothgery was formally apprised of the accusation against him. After the hearing, the magistrate judge committed Rothgery to jail, and he was released after posting a surety bond. Rothgery had no money for a lawyer and made several unheeded oral and written requests for appointed counsel. He was subsequently indicted and rearrested, his bail was increased, and he was jailed when he could not post the bail. Subsequently, Rothgery was assigned a lawyer, who assembled the paperwork that prompted the indictment’s dismissal. Rothgery then brought this 42 U. S. C. §1983 action against respondent County, claiming that if it had provided him a lawyer within a reasonable time after the article 15.17 hearing, he would not have been indicted, rearrested, or jailed. He asserts that the County’s unwritten policy of denying appointed counsel to indigent defendants out on bond until an indictment is entered violates his Sixth Amendment right to counsel. The District Court granted the County summary judgment, and the Fifth Circuit affirmed, considering itself bound by Circuit precedent to the effect that the right to counsel did not attach at the article 15.17 hearing because the relevant prosecutors were not aware of, or involved in, Rothgery’s arrest or appearance at the hearing, and there was no indication that the officer at Rothgery’s appearance had any power to commit the State to prosecute without a prosecutor’s knowledge or involvement. Held: A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. Pp. 5–20. (a) Texas’s article 15.17 hearing marks the point of attachment, with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made. This Court has twice held that the right to counsel attaches at the initial appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty. See Michigan v. Jackson, 475 U. S. 625, 629, n. 3; Brewer v. Williams, 430 U. S. 387, 398–399. Rothgery’s hearing was an initial appearance: he was taken before a magistrate judge, informed of the formal accusation against him, and sent to jail until he posted bail. Thus, Brewer and Jackson control. Pp. 5–10. (b) In McNeil v. Wisconsin, 501 U. S. 171, 180–181, the Court reaffirmed that “[t]he Sixth Amendment right to counsel attaches at the first formal proceeding against an accused,” and observed that “in most States … free counsel is made available at that time.” That observation remains true today. The overwhelming consensus practice conforms to the rule that the first formal proceeding is the point of attachment. The Court is advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel before, at, or just after initial appearance. To the extent the remaining 7 States have been denying appointed counsel at that time, they are a distinct minority. Pp. 10–12. (c) Neither the Fifth Circuit nor the County offers an acceptable justification for the minority practice. Pp. 12–19. (1) The Fifth Circuit found the determining factor to be that no prosecutor was aware of Rothgery’s article 15.17 hearing or involved in it. This prosecutorial awareness standard is wrong. Neither Brewer nor Jackson said a word about the prosecutor’s involvement as a relevant fact, much less a controlling one. Those cases left no room for the factual enquiry the Circuit would require, and with good reason: an attachment rule that turned on determining the moment of a prosecutor’s first involvement would be “wholly unworkable and impossible to administer,” Escobedo v. Illinois, 378 U. S. 478, 496. The Fifth Circuit derived its rule from the statement, in Kirby v. Illinois, 406 U. S. 682, 689, that the right to counsel attaches when the government has “committed itself to prosecute.” But what counts as such a commitment is an issue of federal law unaffected by allocations of power among state officials under state law, cf. Moran v. Burbine, 475 U. S. 412, 429, n. 3, and under the federal standard, an accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused’s liberty, see, e.g., Kirby, supra, at 689. Pp. 12–15. (2) The County relies on United States v. Gouveia, 467 U. S. 180, in arguing that in considering the initial appearance’s significance, this Court must ignore prejudice to a defendant’s pretrial liberty, it being the concern, not of the right to counsel, but of the speedy-trial right and the Fourth Amendment. But the County’s suggestion that Fifth Amendment protections at the early stage obviate attachment of the Sixth Amendment right at initial appearance was refuted by Jackson, 475 U. S., at 629, n. 3. And since the Court is not asked to extend the right to counsel to a point earlier than formal judicial proceedings (as in Gouveia), but to defer it to those proceedings in which a prosecutor is involved, Gouveia does not speak to the question at issue. Pp. 15–17. (3) The County’s third tack gets it no further. Stipulating that the properly formulated test is whether the State has objectively committed itself to prosecute, the County says that prosecutorial involvement is but one form of evidence of such commitment and that others include (1) the filing of formal charges or the holding of an adversarial preliminary hearing to determine probable cause to file such charges, and (2) a court appearance following arrest on an indictment. Either version runs up against Brewer and Jackson: an initial appearance following a charge signifies a sufficient commitment to prosecute regardless of a prosecutor’s participation, indictment, information, or what the County calls a “formal” complaint. The County’s assertions that Brewer and Jackson are “vague” and thus of limited, if any, precedential value are wrong. Although the Court in those cases saw no need for lengthy disquisitions on the initial appearance’s significance, that was because it found the attachment issue an easy one. See, e.g., Brewer, supra, at 399. Pp. 17–19. 491 F. 3d 293, vacated and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, Breyer, and Alito, JJ., joined. Roberts, C. J., filed a concurring opinion, in which Scalia, J., joined. Alito, J., filed a concurring opinion, in which Roberts, C. J., and Scalia, J., joined. Thomas, J., filed a dissenting opinion. | This Court has held that the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty. See Brewer v. Williams, 430 U. S. 387, 398–399 (1977); Michigan v. Jackson, 475 U. S. 625, 629, n. 3 (1986). The question here is whether attachment of the right also requires that a public prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. We hold that it does not. I A Although petitioner Walter Rothgery has never been convicted of a felony,[Footnote 1] a criminal background check disclosed an erroneous record that he had been, and on July 15, 2002, Texas police officers relied on this record to arrest him as a felon in possession of a firearm. The officers lacked a warrant, and so promptly brought Rothgery before a magistrate judge, as required by Tex. Crim. Proc. Code Ann., Art. 14.06(a) (West Supp. 2007).[Footnote 2] Texas law has no formal label for this initial appearance before a magistrate, see 41 G. Dix & R. Dawson, Texas Practice Series: Criminal Practice and Procedure §15.01 (2d ed. 2001), which is sometimes called the “article 15.17 hearing,” see, e.g., Kirk v. State, 199 S. W. 3d 467, 476–477 (Tex. App. 2006); it combines the Fourth Amendment’s required probable-cause determination[Footnote 3] with the setting of bail, and is the point at which the arrestee is formally apprised of the accusation against him, see Tex. Crim. Proc. Code Ann., Art. 15.17(a). Rothgery’s article 15.17 hearing followed routine. The arresting officer submitted a sworn “Affidavit Of Probable Cause” that described the facts supporting the arrest and “charge[d] that … Rothgery … commit[ted] the offense of unlawful possession of a firearm by a felon—3rd degree felony [Tex. Penal Code Ann. §46.04],” App. to Pet. for Cert. 33a. After reviewing the affidavit, the magistrate judge “determined that probable cause existed for the arrest.” Id., at 34a. The magistrate judge informed Rothgery of the accusation, set his bail at $5,000, and committed him to jail, from which he was released after posting a surety bond. The bond, which the Gillespie County deputy sheriff signed, stated that “Rothgery stands charged by complaint duly filed … with the offense of a … felony, to wit: Unlawful Possession of a Firearm by a Felon.” Id., at 39a. The release was conditioned on the defendant’s personal appearance in trial court “for any and all subsequent proceedings that may be had relative to the said charge in the course of the criminal action based on said charge.” Ibid. Rothgery had no money for a lawyer and made several oral and written requests for appointed counsel,[Footnote 4] which went unheeded.[Footnote 5] The following January, he was indicted by a Texas grand jury for unlawful possession of a firearm by a felon, resulting in rearrest the next day, and an order increasing bail to $15,000. When he could not post it, he was put in jail and remained there for three weeks. On January 23, 2003, six months after the article 15.17 hearing, Rothgery was finally assigned a lawyer, who promptly obtained a bail reduction (so Rothgery could get out of jail), and assembled the paperwork confirming that Rothgery had never been convicted of a felony. Counsel relayed this information to the district attorney, who in turn filed a motion to dismiss the indictment, which was granted. B Rothgery then brought this 42 U. S. C. §1983 action against respondent Gillespie County, claiming that if the County had provided a lawyer within a reasonable time after the article 15.17 hearing, he would not have been indicted, rearrested, or jailed for three weeks. The County’s failure is said to be owing to its unwritten policy of denying appointed counsel to indigent defendants out on bond until at least the entry of an information or indictment.[Footnote 6] Rothgery sees this policy as violating his Sixth Amendment right to counsel.[Footnote 7] The District Court granted summary judgment to the County, see 413 F. Supp. 2d 806, 807 (WD Tex. 2006), and the Court of Appeals affirmed, see 491 F. 3d 293, 294 (CA5 2007). The Court of Appeals felt itself bound by Circuit precedent, see id., at 296–297 (citing Lomax v. Alabama, 629 F. 2d 413 (CA5 1980), and McGee v. Estelle, 625 F. 2d 1206 (CA5 1980)), to the effect that the Sixth Amendment right to counsel did not attach at the article 15.17 hearing, because “the relevant prosecutors were not aware of or involved in Rothgery’s arrest or appearance before the magistrate on July 16, 2002,” and “[t]here is also no indication that the officer who filed the probable cause affidavit at Rothgery’s appearance had any power to commit the state to prosecute without the knowledge or involvement of a prosecutor,” 491 F. 3d, at 297. We granted certiorari, 552 U. S. ___ (2007), and now vacate and remand. II The Sixth Amendment right of the “accused” to assistance of counsel in “all criminal prosecutions”[Footnote 8] is limited by its terms: “it does not attach until a prosecution is commenced.” McNeil v. Wisconsin, 501 U. S. 171, 175 (1991); see also Moran v. Burbine, 475 U. S. 412, 430 (1986). We have, for purposes of the right to counsel, pegged commencement to “ ‘the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,’ ” United States v. Gouveia, 467 U. S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972) (plurality opinion)). The rule is not “mere formalism,” but a recognition of the point at which “the government has committed itself to prosecute,” “the adverse positions of government and defendant have solidified,” and the accused “finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Kirby, supra, at 689. The issue is whether Texas’s article 15.17 hearing marks that point, with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made. A When the Court of Appeals said no, because no prosecutor was aware of Rothgery’s article 15.17 hearing or involved in it, the court effectively focused not on the start of adversarial judicial proceedings, but on the activities and knowledge of a particular state official who was presumably otherwise occupied. This was error. As the Court of Appeals recognized, see 491 F. 3d, at 298, we have twice held that the right to counsel attaches at the initial appearance before a judicial officer, see Jackson, 475 U. S., at 629, n. 3; Brewer 430 U. S., at 399. This first time before a court, also known as the “ ‘preliminary arraignment’ ” or “ ‘arraignment on the complaint,’ ” see 1 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §1.4(g), p. 135 (3d ed. 2007), is generally the hearing at which “the magistrate informs the defendant of the charge in the complaint, and of various rights in further proceedings,” and “determine[s] the conditions for pretrial release,” ibid. Texas’s article 15.17 hearing is an initial appearance: Rothgery was taken before a magistrate judge, informed of the formal accusation against him, and sent to jail until he posted bail. See supra, at 2–3.[Footnote 9] Brewer and Jackson control. The Brewer defendant surrendered to the police after a warrant was out for his arrest on a charge of abduction. He was then “arraigned before a judge … on the outstanding arrest warrant,” and at the arraignment, “[t]he judge advised him of his Miranda [v. Arizona, 384 U. S. 436 (1966)] rights and committed him to jail.” Brewer, 430 U. S., at 391. After this preliminary arraignment, and before an indictment on the abduction charge had been handed up, police elicited incriminating admissions that ultimately led to an indictment for first-degree murder. Because neither of the defendant’s lawyers had been present when the statements were obtained, the Court found it “clear” that the defendant “was deprived of … the right to the assistance of counsel.” Id., at 397–398. In plain terms, the Court said that “[t]here can be no doubt in the present case that judicial proceedings had been initiated” before the defendant made the incriminating statements. Id., at 399. Although it noted that the State had conceded the issue, the Court nevertheless held that the defendant’s right had clearly attached for the reason that “[a] warrant had been issued for his arrest, he had been arraigned on that warrant before a judge in a … courtroom, and he had been committed by the court to confinement in jail.” Ibid.[Footnote 10] In Jackson, the Court was asked to revisit the question whether the right to counsel attaches at the initial appearance, and we had no more trouble answering it the second time around. Jackson was actually two consolidated cases, and although the State conceded that respondent Jackson’s arraignment “represented the initiation of formal legal proceedings,” 475 U. S., at 629, n. 3, it argued that the same was not true for respondent Bladel. In briefing us, the State explained that “[i]n Michigan, any person charged with a felony, after arrest, must be brought before a Magistrate or District Court Judge without unnecessary delay for his initial arraignment.” Brief for Petitioner in Michigan v. Bladel, O. T. 1985, No. 84–1539, p. 24. The State noted that “[w]hile [Bladel] had been arraigned … , there is also a second arraignment in Michigan procedure … , at which time defendant has his first opportunity to enter a plea in a court with jurisdiction to render a final decision in a felony case.” Id., at 25. The State contended that only the latter proceeding, the “arraignment on the information or indictment,” Y. Kamisar, W. LaFave, J. Israel, & N. King, Modern Criminal Procedure 28 (9th ed. 1999) (emphasis deleted), should trigger the Sixth Amendment right.[Footnote 11] “The defendant’s rights,” the State insisted, “are fully protected in the context of custodial interrogation between initial arraignment and preliminary examination by the Fifth Amendment right to counsel” and by the preliminary examination itself.[Footnote 12] See Bladel Brief, supra, at 26. We flatly rejected the distinction between initial arraignment and arraignment on the indictment, the State’s argument being “untenable” in light of the “clear language in our decisions about the significance of arraignment.” Jackson, supra, at 629, n. 3. The conclusion was driven by the same considerations the Court had endorsed in Brewer: by the time a defendant is brought before a judicial officer, is informed of a formally lodged accusation, and has restrictions imposed on his liberty in aid of the prosecution, the State’s relationship with the defendant has become solidly adversarial. And that is just as true when the proceeding comes before the indictment (in the case of the initial arraignment on a formal complaint) as when it comes after it (at an arraignment on an indictment).[Footnote 13] See Coleman v. Alabama, 399 U. S. 1, 8 (1970) (plurality opinion) (right to counsel applies at preindictment preliminary hearing at which the “sole purposes … are to determine whether there is sufficient evidence against the accused to warrant presenting his case to the grand jury, and, if so, to fix bail if the offense is bailable”); cf. Owen v. State, 596 So. 2d 985, 989, n. 7 (Fla. 1992) (“The term ‘arraign’ simply means to be called before a court officer and charged with a crime”). B Our latest look at the significance of the initial appearance was McNeil, 501 U. S. 171, which is no help to the County. In McNeil the State had conceded that the right to counsel attached at the first appearance before a county court commissioner, who set bail and scheduled a preliminary examination. See id., at 173; see also id., at 175 (“It is undisputed, and we accept for purposes of the present case, that at the time petitioner provided the incriminating statements at issue, his Sixth Amendment right had attached …”). But we did more than just accept the concession; we went on to reaffirm that “[t]he Sixth Amendment right to counsel attaches at the first formal proceeding against an accused,” and observed that “in most States, at least with respect to serious offenses, free counsel is made available at that time … .” Id., at 180–181. That was 17 years ago, the same is true today, and the overwhelming consensus practice conforms to the rule that the first formal proceeding is the point of attachment. We are advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel “before, at, or just after initial appearance.” App. to Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 1a; see id., at 1a–7a (listing jurisdictions);[Footnote 14] see also Brief for American Bar Association as Amicus Curiae 5–8 (describing the ABA’s position for the past 40 years that counsel should be appointed “certainly no later than the accused’s initial appearance before a judicial officer”). And even in the remaining 7 States (Alabama, Colorado, Kansas, Oklahoma, South Carolina, Texas, and Virginia) the practice is not free of ambiguity. See App. to Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 5a–7a (suggesting that the practice in Alabama, Kansas, South Carolina, and Virginia might actually be consistent with the majority approach); see also n. 7, supra. In any event, to the extent these States have been denying appointed counsel on the heels of the first appearance, they are a distinct minority. C The only question is whether there may be some arguable justification for the minority practice. Neither the Court of Appeals in its opinion, nor the County in its briefing to us, has offered an acceptable one. 1 The Court of Appeals thought Brewer and Jackson could be distinguished on the ground that “neither case addressed the issue of prosecutorial involvement,” and the cases were thus “neutral on the point,” 491 F. 3d, at 298. With Brewer and Jackson distinguished, the court then found itself bound by Circuit precedent that “ ‘an adversary criminal proceeding has not begun in a case where the prosecution officers are unaware of either the charges or the arrest.’ ” See 491 F. 3d, at 297 (quoting McGee v. Estelle, 625 F. 3d 1206, 1208 (CA5 1980)). Under this standard of prosecutorial awareness, attachment depends not on whether a first appearance has begun adversary judicial proceedings, but on whether the prosecutor had a hand in starting it. That standard is wrong. Neither Brewer nor Jackson said a word about the prosecutor’s involvement as a relevant fact, much less a controlling one. Those cases left no room for the factual enquiry the Court of Appeals would require, and with good reason: an attachment rule that turned on determining the moment of a prosecutor’s first involvement would be “wholly unworkable and impossible to administer,” Escobedo v. Illinois, 378 U. S. 478, 496 (1964) (White, J., dissenting), guaranteed to bog the courts down in prying enquiries into the communication between police (who are routinely present at defendants’ first appearances) and the State’s attorneys (who are not), see Brief for Petitioner 39–41. And it would have the practical effect of resting attachment on such absurd distinctions as the day of the month an arrest is made, see Brief for Brennan Center of Justice et al. as Amici Curiae 10 (explaining that “jails may be required to report their arrestees to county prosecutor offices on particular days” (citing Tex. Crim. Proc. Code Ann., Art. 2.19)); or “the sophistication, or lack thereof, of a jurisdiction’s computer intake system,” Brief for Brennan Center, supra, at 11; see also id., at 10–12 (noting that only “[s]ome Texas counties … have computer systems that provide arrest and detention information simultaneously to prosecutors, law enforcement officers, jail personnel, and clerks. Prosecutors in these jurisdictions use the systems to prescreen cases early in the process before an initial appearance” (citing D. Carmichael, M. Gilbert, & M. Voloudakis, Texas A&M U., Public Policy Research Inst., Evaluating the Impact of Direct Electronic Filing in Criminal Cases: Closing the Paper Trap 2–3 (2006), online at http://www.courts.state.tx. us/tfid/pdf/FinalReport7-12-06wackn.pdf (as visited June 19, 2008, and available in Clerk of Court’s case file))). It is not that the Court of Appeals believed that any such regime would be desirable, but it thought originally that its rule was implied by this Court’s statement that the right attaches when the government has “committed itself to prosecute.” Kirby, 406 U. S., at 689. The Court of Appeals reasoned that because “the decision not to prosecute is the quintessential function of a prosecutor” under Texas law, 491 F. 3d, at 297 (internal quotation marks omitted), the State could not commit itself to prosecution until the prosecutor signaled that it had. But what counts as a commitment to prosecute is an issue of federal law unaffected by allocations of power among state officials under a State’s law, cf. Moran, 475 U. S., at 429, n. 3 (“[T]he type of circumstances that would give rise to the right would certainly have a federal definition”), and under the federal standard, an accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused’s liberty to facilitate the prosecution, see Jackson, 475 U. S., at 629, n. 3; Brewer, 430 U. S., at 399; Kirby, supra, at 689; see also n. 9, supra. From that point on, the defendant is “faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law” that define his capacity and control his actual ability to defend himself against a formal accusation that he is a criminal. Kirby, supra, at 689. By that point, it is too late to wonder whether he is “accused” within the meaning of the Sixth Amendment, and it makes no practical sense to deny it. See Grano, Rhode Island v. Innis: A Need to Reconsider the Constitutional Premises Underlying the Law of Confessions, 17 Am. Crim. L. Rev. 1, 31 (1979) (“[I]t would defy common sense to say that a criminal prosecution has not commenced against a defendant who, perhaps incarcerated and unable to afford judicially imposed bail, awaits preliminary examination on the authority of a charging document filed by the prosecutor, less typically by the police, and approved by a court of law” (internal quotation marks omitted)). All of this is equally true whether the machinery of prosecution was turned on by the local police or the state attorney general. In this case, for example, Rothgery alleges that after the initial appearance, he was “unable to find any employment for wages” because “all of the potential employers he contacted knew or learned of the criminal charge pending against him.” Original Complaint in No. 1:04–CV–00456–LY (WD Tex., July 15, 2004), p. 5. One may assume that those potential employers would still have declined to make job offers if advised that the county prosecutor had not filed the complaint. 2 The County resists this logic with the argument that in considering the significance of the initial appearance, we must ignore prejudice to a defendant’s pretrial liberty, reasoning that it is the concern, not of the right to counsel, but of the speedy-trial right and the Fourth Amendment. See Brief for Respondent 47–51. And it cites Gouveia, 467 U. S. 180, in support of its contention. See Brief for Respondent 49; see also Brief for Texas et al. as Amici Curiae 8–9. We think the County’s reliance on Gouveia is misplaced, and its argument mistaken. The defendants in Gouveia were prison inmates, suspected of murder, who had been placed in an administrative detention unit and denied counsel up until an indictment was filed. Although no formal judicial proceedings had taken place prior to the indictment, see 467 U. S., at 185, the defendants argued that their administrative detention should be treated as an accusation for purposes of the right to counsel because the government was actively investigating the crimes. We recognized that “because an inmate suspected of a crime is already in prison, the prosecution may have little incentive promptly to bring formal charges against him, and that the resulting preindictment delay may be particularly prejudicial to the inmate,” id., at 192, but we noted that statutes of limitation and protections of the Fifth Amendment guarded against delay, and that there was no basis for “depart[ing] from our traditional interpretation of the Sixth Amendment right to counsel in order to provide additional protections for [the inmates],” ibid. Gouveia’s holding that the Sixth Amendment right to counsel had not attached has no application here. For one thing, Gouveia does not affect the conclusion we reaffirmed two years later in Jackson, that bringing a defendant before a court for initial appearance signals a sufficient commitment to prosecute and marks the start of adversary judicial proceedings. (Indeed, Jackson refutes the County’s argument that Fifth Amendment protections at the early stage obviate attachment of the Sixth Amendment right at initial appearance. See supra, at 8–9.) And since we are not asked to extend the right to counsel to a point earlier than formal judicial proceedings (as in Gouveia), but to defer it to those proceedings in which a prosecutor is involved, Gouveia does not speak to the question before us. The County also tries to downplay the significance of the initial appearance by saying that an attachment rule unqualified by prosecutorial involvement would lead to the conclusion “that the State has statutorily committed to prosecute every suspect arrested by the police,” given that “state law requires [an article 15.17 hearing] for every arrestee.” Brief for Respondent 24 (emphasis in original). The answer, though, is that the State has done just that, subject to the option to change its official mind later. The State may rethink its commitment at any point: it may choose not to seek indictment in a felony case, say, or the prosecutor may enter nolle prosequi after the case gets to the jury room. But without a change of position, a defendant subject to accusation after initial appearance is headed for trial and needs to get a lawyer working, whether to attempt to avoid that trial or to be ready with a defense when the trial date arrives. 3 A third tack on the County’s part, slightly different from the one taken by the Fifth Circuit, gets it no further. The County stipulates that “the properly formulated test is not … merely whether prosecutors have had any involvement in the case whatsoever, but instead whether the State has objectively committed itself to prosecute.” Id., at 31. It then informs us that “[p]rosecutorial involvement is merely one form of evidence of such commitment.” Ibid. Other sufficient evidentiary indications are variously described: first (expansively) as “the filing of formal charges … by information, indictment or formal complaint, or the holding of an adversarial preliminary hearing to determine probable cause to file such charges,” ibid. (citing Kirby, 406 U. S., at 689); then (restrictively) as a court appearance following “arrest … on an indictment or information,” Brief for Respondent 32. Either version, in any event, runs up against Brewer and Jackson: an initial appearance following a charge signifies a sufficient commitment to prosecute regardless of a prosecutor’s participation, indictment, information, or what the County calls a “formal” complaint. So the County is reduced to taking aim at those cases. Brewer and Jackson, we are told, are “vague” and thus of “limited, if any, precedential value.” Brief for Respondent 33, 35; see also id., at 32, n. 13 (asserting that Brewer and Jackson “neither provide nor apply an analytical framework for determining attachment”). And, according to the County, our cases (Brewer and Jackson aside) actually establish a “general rule that the right to counsel attaches at the point that [what the County calls] formal charges are filed,” Brief for Respondent 19, with exceptions allowed only in the case of “a very limited set of specific preindictment situations,” id., at 23. The County suggests that the latter category should be limited to those appearances at which the aid of counsel is urgent and “ ‘the dangers to the accused of proceeding without counsel’ ” are great. Id., at 28 (quoting Patterson v. Illinois, 487 U. S. 285, 298 (1988)). Texas’s article 15.17 hearing should not count as one of those situations, the County says, because it is not of critical significance, since it “allows no presentation of witness testimony and provides no opportunity to expose weaknesses in the government’s evidence, create a basis for later impeachment, or even engage in basic discovery.” Brief for Respondent 29. We think the County is wrong both about the clarity of our cases and the substance that we find clear. Certainly it is true that the Court in Brewer and Jackson saw no need for lengthy disquisitions on the significance of the initial appearance, but that was because it found the attachment issue an easy one. The Court’s conclusions were not vague; Brewer expressed “no doubt” that the right to counsel attached at the initial appearance, 430 U. S., at 399, and Jackson said that the opposite result would be “untenable,” 475 U. S., at 629, n. 3. If, indeed, the County had simply taken the cases at face value, it would have avoided the mistake of merging the attachment question (whether formal judicial proceedings have begun) with the distinct “critical stage” question (whether counsel must be present at a postattachment proceeding unless the right to assistance is validly waived). Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute as spelled out in Brewer and Jackson. Once attachment occurs, the accused at least[Footnote 15] is entitled to the presence of appointed counsel during any “critical stage” of the postattachment proceedings; what makes a stage critical is what shows the need for counsel’s presence.[Footnote 16] Thus, counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself. The County thus makes an analytical mistake in its assumption that attachment necessarily requires the occurrence or imminence of a critical stage. See Brief for Respondent 28–30. On the contrary, it is irrelevant to attachment that the presence of counsel at an article 15.17 hearing, say, may not be critical, just as it is irrelevant that counsel’s presence may not be critical when a prosecutor walks over to the trial court to file an information. As we said in Jackson, “[t]he question whether arraignment signals the initiation of adversary judicial proceedings … is distinct from the question whether the arraignment itself is a critical stage requiring the presence of counsel.” 475 U. S., at 630, n. 3. Texas’s article 15.17 hearing plainly signals attachment, even if it is not itself a critical stage.[Footnote 17] III Our holding is narrow. We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Because the Fifth Circuit came to a different conclusion on this threshold issue, its judgment is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 “[F]elony charges … had been dismissed after Rothgery completed a diversionary program, and both sides agree that [he] did not have a felony conviction.” 491 F. 3d 293, 294 (CA5 2007) (case below). Footnote 2 A separate article of the Texas Code of Criminal Procedure requires prompt presentment in the case of arrests under warrant as well. See Art. 15.17(a) (West Supp. 2007). Whether the arrest is under warrant or warrantless, article 15.17 details the procedures a magistrate judge must follow upon presentment. See Art. 14.06(a) (in cases of warrantless arrest, “[t]he magistrate shall immediately perform the duties described in Article 15.17 of this Code”). Footnote 3 See Gerstein v. Pugh, 420 U. S. 103, 113–114 (1975) (“[A] policeman’s on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest[,] … . [but] the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest”). Footnote 4 Because respondent Gillespie County obtained summary judgment in the current case, we accept as true that Rothgery made multiple requests. Footnote 5 Rothgery also requested counsel at the article 15.17 hearing itself, but the magistrate judge informed him that the appointment of counsel would delay setting bail (and hence his release from jail). Given the choice of proceeding without counsel or remaining in custody, Rothgery waived the right to have appointed counsel present at the hearing. See 491 F. 3d, at 295, n. 2. Footnote 6 Rothgery does not challenge the County’s written policy for appointment of counsel, but argues that the County was not following that policy in practice. See 413 F. Supp. 2d 806, 809–810 (WD Tex. 2006). Footnote 7 Such a policy, if proven, arguably would also be in violation of Texas state law, which appears to require appointment of counsel for indigent defendants released from custody, at the latest, when the “first court appearance” is made. See Tex. Crim. Proc. Code Ann., Art. 1.051(j). See also Brief for Texas Association of Counties et al. as Amici Curiae 13 (asserting that Rothgery “was statutorily entitled to the appointment of counsel within three days after having requested it”). Footnote 8 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.” Footnote 9 The Court of Appeals did not resolve whether the arresting officer’s formal accusation would count as a “formal complaint” under Texas state law. See 491 F. 3d, at 298–300 (noting the confusion in the Texas state courts). But it rightly acknowledged (albeit in considering the separate question whether the complaint was a “formal charge”) that the constitutional significance of judicial proceedings cannot be allowed to founder on the vagaries of state criminal law, lest the attachment rule be rendered utterly “vague and unpredictable.” Virginia v. Moore, 553 U. S. ___, ___ (2008) (slip op., at 10). See 491 F. 3d, at 300 (“[W]e are reluctant to rely on the formalistic question of whether the affidavit here would be considered a ‘complaint’ or its functional equivalent under Texas case law and Article 15.04 of the Texas Code of Criminal Procedures—a question to which the answer is itself uncertain. Instead, we must look to the specific circumstances of this case and the nature of the affidavit filed at Rothgery’s appearance before the magistrate” (footnote omitted)). What counts is that the complaint filed with the magistrate judge accused Rothgery of committing a particular crime and prompted the judicial officer to take legal action in response (here, to set the terms of bail and order the defendant locked up). Footnote 10 The dissent says that “Brewer’s attachment holding is indisputably no longer good law” because “we have subsequently held that the Sixth Amendment right to counsel is ‘ “offense specific,” ’ ” post, at 13 (opinion of Thomas, J.) (quoting Texas v. Cobb, 532 U. S. 162, 164 (2001)), i.e., that it does not “exten[d] to crimes that are ‘factually related’ to those that have actually been charged,” Cobb, supra, at 167. It is true that Brewer appears to have assumed that attachment of the right with respect to the abduction charge should prompt attachment for the murder charge as well. But the accuracy of the dissent’s assertion ends there, for nothing in Cobb’s conclusion that the right is offense specific casts doubt on Brewer’s separate, emphatic holding that the initial appearance marks the point at which the right attaches. Nor does Cobb reflect, as the dissent suggests, see post, at 14, a more general disapproval of our opinion in Brewer. While Brewer failed even to acknowledge the issue of offense specificity, it spoke clearly and forcefully about attachment. Cobb merely declined to follow Brewer’s unmentioned assumption, and thus it lends no support to the dissent’s claim that we should ignore what Brewer explicitly said. Footnote 11 The State continued to press this contention at oral argument. See Tr. of Oral Arg. in Michigan v. Jackson, O. T. 1985, No. 84–1531 etc., p. 4 (“[T]he Michigan Supreme Court held that if a defendant, while at his initial appearance before a magistrate who has no jurisdiction to accept a final plea in the case, whose only job is ministerial, in other words to advise a defendant of the charge against him, set bond if bond is appropriate, and to advise him of his right to counsel and to get the administrative process going if he’s indigent, the Michigan Supreme Court said if the defendant asked for appointed counsel at that stage, the police are forevermore precluded from initiating interrogation of that defendant”); id., at 8 (“First of all, as a practical matter, at least in our courts, the police are rarely present for arraignment, for this type of an arraignment, for an initial appearance, I guess we should use the terminology… . The prosecutor is not there for initial appearance. We have people brought through a tunnel. A court officer picks them up. They take them down and the judge goes through this procedure… . There is typically nobody from our side, if you will, there to see what’s going on”). Footnote 12 The preliminary examination is a preindictment stage at which the defendant is allowed to test the prosecution’s evidence against him, and to try to dissuade the prosecutor from seeking an indictment. See Coleman v. Alabama, 399 U. S. 1 (1970). In Texas, the defendant is notified of his right to a preliminary hearing, which in Texas is called an “examining trial,” at the article 15.17 hearing. See Tex. Crim. Proc. Code Ann., Art. 15.17(a). The examining trial in Texas is optional only, and the defendant must affirmatively request it. See Reply Brief for Petitioner 25. Footnote 13 The County, in its brief to this Court, suggests that although Brewer and Jackson spoke of attachment at the initial appearance, the cases might actually have turned on some unmentioned fact. As to Brewer, the County speculates that an information might have been filed before the defendant’s initial appearance. See Brief for Respondent 34–36. But as Rothgery points out, the initial appearance in Brewer was made in municipal court, and a felony information could not have been filed there. See Reply Brief for Petitioner 11. As to Jackson, the County suggests that the Court might have viewed Michigan’s initial arraignment as a significant proceeding only because the defendant could make a statement at that hearing, and because respondent Bladel did in fact purport to enter a plea of not guilty. See Brief for Respondent 36–37. But this attempt to explain Jackson as a narrow holding is impossible to square with Jackson’s sweeping rejection of the State’s claims. It is further undermined by the fact that the magistrate judge in Bladel’s case, like the one in Texas’s article 15.17 hearing, had no jurisdiction to accept a plea of guilty to a felony charge. See Reply Brief for Petitioner 11–12. Footnote 14 The 43 States are these: (1) Alaska: see Alaska Stat. §18.85.100 (2006); Alaska Rule Crim. Proc. 5 (Lexis 2006–2007); (2) Arizona: see Ariz. Rules Crim. Proc. 4.2, 6.1 (West Supp. 2007), (West 1998); (3) Arkansas: see Ark. Rule Crim. Proc. 8.2 (2006); Bradford v. State, 325 Ark. 278, 927 S. W. 2d 329 (1996); (4) California: see Cal. Penal Code §§858, 859 (West Supp. 2008); In re Johnson, 62 Cal. 2d 325, 329–330, 398 P. 2d 420, 422–423 (1965); (5) Connecticut: see Conn. Gen. Stat. §54–1b (2005); Conn. Super. Ct. Crim. Rules §§37–1, 37–3, 37–6 (West 2008); State v. Pierre, 277 Conn. 42, 95–96, 890 A. 2d 474, 507 (2006); (6) Delaware: see Del. Code Ann., Tit. 29, §4604 (2003); Del. Super. Ct. Crim. Rules 5, 44 (2008); Deputy v. State, 500 A. 2d 581 (Del. 1985); (7) Florida: see Fla. Rule Crim. Proc. 3.111 (West 2007); (8) Georgia: see Ga. Code Ann. §§17–4–26 (2004), 17–12–23 (Supp. 2007); O’Kelley v. State, 278 Ga. 564, 604 S. E. 2d 509 (2004); (9) Hawaii: see Haw. Rev. Stat. §§802–1, 803–9 (1993); (10) Idaho: see Idaho Crim. Rules 5, 44 (Lexis 2007); Idaho Code §19–852 (Lexis 2004); (11) Illinois: see Ill. Comp. Stat., ch. 725, §5/109–1 (2006); (12) Indiana: see Ind. Code §§35–33–7–5, 35–33–7–6 (West 2004); (13) Iowa: see Iowa Rules Crim. Proc. §§2.2, 2.28 (West 2008); (14) Kentucky: see Ky. Rule Crim. Proc. §3.05 (Lexis 2008); (15) Louisiana: see La. Code Crim. Proc. Ann., Art 230.1 (West Supp. 2008); (16) Maine: see Me. Rule Crim. Proc. 5C (West 2007); (17) Maryland: see Md. Ann. Code, Art. 27A, §4 (Lexis Supp. 2007); Md. Rule 4–214 (Lexis 2008); McCarter v. State, 363 Md. 705, 770 A. 2d 195 (2001); (18) Massachusetts: see Mass. Rule Crim. Proc. 7 (West 2006); (19) Michigan: see Mich. Rules Crim. Proc 6.005 (West 2008); (20) Minnesota: see Minn. Rules Crim. Proc. 5.01, 5.02 (2006); (21) Mississippi: see Jimpson v. State, 532 So. 2d 985 (Miss. 1988); (22) Missouri: see Mo. Rev. Stat. §600.048 (2000); (23) Montana: see Mont. Code Ann. §46–8–101 (2007); (24) Nebraska: see Neb. Rev. Stat. §29–3902 (1995); (25) Nevada: see Nev. Rev. Stat. §178.397 (2007); (26) New Hampshire: see N. H. Rev. Stat. Ann. §604–A:3 (2001); (27) New Jersey: see N. J. Rule Crim. Proc. 3:4–2 (West 2008); State v. Tucker, 137 N. J. 259, 645 A. 2d 111 (1994); (28) New Mexico: see N. M. Stat. Ann. §31–16–3 (2000); (29) New York: see N. Y. Crim. Proc. Law Ann. §180.10 (West 2007); (30) North Carolina: see N. C. Gen. Stat. Ann. §7A–451 (Lexis 2007); (31) North Dakota: see N. D. Rules Crim. Proc. 5, 44 (Lexis 2008–2009); (32) Ohio: see Ohio Rules Crim. Proc. 5, 44 (Lexis 2006); (33) Oregon: see Ore. Rev. Stat. §§135.010, 135.040, 135.050 (2007); (34) Pennsylvania: see Pa. Rules Crim. Proc. 122, 519 (West 2008); (35) Rhode Island: see R. I. Dist. Ct. Rules Crim. Proc. 5, 44 (2007); (36) South Dakota: see S. D. Rule Crim. Proc. §23A–40–6 (2007); (37) Tennessee: see Tenn. Rule Crim. Proc. 44 (2007); (38) Utah: see Utah Code Ann. §77–32–302 (Lexis Supp. 2007); (39) Vermont: see Vt. Stat. Ann., Tit. 13, §5234 (1998); Vt. Rules Crim. Proc. 5, 44 (2003); (40) Washington: see Wash. Super. Ct. Crim. Rule 3.1 (West 2008); (41) West Virginia: see W. Va. Code Ann. §50–4–3 (Lexis 2000); State v. Barrow, 178 W. Va. 406, 359 S. E. 2d 844 (1987); (42) Wisconsin: see Wis. Stat. §967.06 (2003–2004); (43) Wyoming: see Wyo. Stat. Ann. §7–6–105 (2007); Wyo. Rules Crim. Proc. 5, 44 (2007). Footnote 15 We do not here purport to set out the scope of an individual’s postattachment right to the presence of counsel. It is enough for present purposes to highlight that the enquiry into that right is a different one from the attachment analysis. Footnote 16 The cases have defined critical stages as proceedings between an individual and agents of the State (whether “formal or informal, in court or out,” see United States v. Wade, 388 U. S. 218, 226 (1967)) that amount to “trial-like confrontations,” at which counsel would help the accused “in coping with legal problems or … meeting his adversary,” United States v. Ash, 413 U. S. 300, 312–313 (1973); see also Massiah v. United States, 377 U. S. 201 (1964). Footnote 17 The dissent likewise anticipates an issue distinct from attachment when it claims Rothgery has suffered no harm the Sixth Amendment recognizes. Post, at 18. Whether the right has been violated and whether Rothgery has suffered cognizable harm are separate questions from when the right attaches, the sole question before us. |
552.US.364 | Although a provision of the Federal Aviation Administration Authorization Act of 1994 forbids States to “enact or enforce a law … related to a price, route, or service of any motor carrier,” 49 U. S. C. §14501(c)(1), see also §41713(b)(4)(a), Maine adopted a law which, inter alia, (1) specifies that a state-licensed tobacco shipper must utilize a delivery company that provides a recipient-verification service that confirms the buyer is of legal age, and (2) adds, in prohibiting unlicensed tobacco shipments into the State, that a person is deemed to know that a package contains tobacco if it is marked as originating from a Maine-licensed tobacco retailer or if it is received from someone whose name appears on an official list of un-licensed tobacco retailers distributed to package-delivery companies. In respondent carrier associations’ suit, the District Court and the First Circuit agreed with respondents that Maine’s recipient-verification and deemed-to-know provisions were pre-empted by federal law. Held: Federal law pre-empts the two state-law provisions at issue. Pp. 3–11. (a) In interpreting the 1994 federal Act, the Court follows Morales v. Trans World Airlines, Inc., 504 U. S. 374, 378, in which it interpreted similar language in the pre-emption provision of the Airline Deregulation Act of 1978. Voiding state enforcement of consumer fraud statutes against deceptive airline-fare advertisements, Morales determined, inter alia, that the federal Act pre-empted state actions having a “connection with” carrier “ ‘ rates, routes, or services,’ ” id., at 384; that pre-emption may occur even if a state law has only an indirect effect on rates, routes, or services, id., at 386; and that pre-emption occurs at least where state laws have a “significant impact” related to Congress’ deregulatory and pre-emption-related objectives, id., at 390. The Court also emphasized that the airline Act’s overarching goal of helping assure that transportation rates, routes, and services reflects maximum reliance on competitive market forces, id., at 378, and stated that federal law might not pre-empt state laws affecting fares only tenuously, remotely, or peripherally, but did not say where, or how, it would draw the line on “borderline” questions, id., at 390. Pp. 3–5. (b) In light of Morales, the Maine laws at issue are pre-empted. In regulating delivery service procedures, the recipient-verification provision focuses on trucking and similar services, thereby creating a direct “connection with” motor carrier services. See 504 U. S., at 384. It also has a “significant” and adverse “impact” in respect to the federal Act’s ability to achieve its pre-emption-related objectives, id., at 390, because it requires carriers to offer a system of services that the market does not now provide (and which the carriers would prefer not to offer). Even were that not so, the law would freeze into place services that carriers might prefer to discontinue in the future, thereby producing the very effect the federal law sought to avoid, i.e., a State’s direct substitution of its own governmental commands for “competitive market forces” in determining (to a significant degree) the services that motor carriers will provide. Id., at 378. Maine’s deemed-to-know provision applies yet more directly to motor carrier services by creating a conclusive presumption of carrier knowledge that a shipment contains tobacco in the specified circumstances. That presumption means that the law imposes civil liability upon the carrier, not simply for its knowing transport of (unlicensed) tobacco, but for the carrier’s failure sufficiently to examine every package. The provision thus requires the carrier to check each shipment for certain markings and to compare it against the list of proscribed shippers, thereby directly regulating a significant aspect of the motor carrier’s package pick-up and delivery service and creating the kind of state-mandated regulation that the federal Act pre-empts. Pp. 5–7. (c) Maine’s primary arguments for an exception from pre-emption—that its laws help prevent minors from obtaining cigarettes and thereby protect its citizens’ public health—are unavailing. The federal law does not create a public health exception, but, to the contrary, explicitly lists a set of exceptions that do not include public health. See, e.g., §§14501(c)(2) to (c)(3). Nor does its legislative history mention specific state enforcement methods or suggest that Congress made a firm judgment about, or even focused upon, the issue here. Maine’s inability to find significant support for such an exception is not surprising, given the number of States through which carriers travel, the number of products carried, the variety of potential adverse public health effects, the many different kinds of regulatory rules potentially available, and the difficulty of finding a legal criterion for separating permissible from impermissible public-health-oriented regulations. Although federal law does not generally pre-empt state public health regulation, the state laws at issue are not general, their impact on carrier rates, routes, or services is significant, and their connection with trucking is not tenuous, remote, or peripheral: They aim directly at the carriage of goods, a commercial field where carriage by commercial motor vehicles plays a major role. From the perspective of pre-emption, this case is no more “borderline” than was Morales. Maine’s argument that to set aside its regulations will seriously harm its efforts to prevent minors from obtaining cigarettes is unpersuasive in light of other legislative alternatives available to the State. Regardless, given Morales’ holding that federal law pre-empts state consumer-protection laws, federal law must also pre-empt Maine’s efforts directly to regulate carrier services. Pp. 7–11. 448 F. 3d 66, affirmed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Thomas, Ginsburg, and Alito, JJ., joined, and in which Scalia, J., joined in part. Ginsburg, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part. | We here consider whether a federal statute that prohibits States from enacting any law “related to” a motor carrier “price, route, or service” pre-empts two provisions of a Maine tobacco law, which regulate the delivery of tobacco to customers within the State. 49 U. S. C. §§14501(c)(1), 41713(b)(4)(A); see Me. Rev. Stat. Ann., Tit. 22, §§1555–C(3)(C), 1555–D (second sentence) (2004). We hold that the federal law pre-empts both provisions. I A In 1978, Congress “determin[ed] that ‘maximum reliance on competitive market forces’ ” would favor lower airline fares and better airline service, and it enacted the Airline Deregulation Act. Morales v. Trans World Airlines, Inc., 504 U. S. 374, 378 (1992) (quoting 49 U. S. C. App. §1302(a)(4) (1988 ed.)); see 92 Stat. 1705. In order to “ensure that the States would not undo federal deregulation with regulation of their own,” that Act “included a pre-emption provision” that said “no State … shall enact or enforce any law … relating to rates, routes, or services of any air carrier.” Morales, supra, at 378; 49 U. S. C. App. §1305(a)(1) (1988 ed.). In 1980, Congress deregulated trucking. See Motor Carrier Act of 1980, 94 Stat. 793. And a little over a decade later, in 1994, Congress similarly sought to pre-empt state trucking regulation. See Federal Aviation Administration Authorization Act of 1994, 108 Stat. 1605–1606; see also ICC Termination Act of 1995, 109 Stat. 899. In doing so, it borrowed language from the Airline Deregulation Act of 1978 and wrote into its 1994 law language that says: “[A] State . . . may not enact or enforce a law . . . related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” 49 U. S. C. §14501(c)(1); see also §41713(b)(4)(A) (similar provision for combined motor-air carriers). The State of Maine subsequently adopted An Act To Regulate the Delivery and Sales of Tobacco Products and To Prevent the Sale of Tobacco Products to Minors, 2003 Me. Acts p. 1089, two sections of which are relevant here. The first section forbids anyone other than a Maine-licensed tobacco retailer to accept an order for delivery of tobacco. Me. Rev. Stat. Ann., Tit. 22, §1555–C(1). It then adds that, when a licensed retailer accepts an order and ships tobacco, the retailer must “utilize a delivery service” that provides a special kind of recipient-verification service. §1555–C(3)(C). The delivery service must make certain that (1) the person who bought the tobacco is the person to whom the package is addressed; (2) the person to whom the package is addressed is of legal age to purchase tobacco; (3) the person to whom the package is addressed has himself or herself signed for the package; and (4) the person to whom the package is addressed, if under the age of 27, has produced a valid government-issued photo identification with proof of age. Ibid. Violations are punishable by civil penalties. See §§1555–C(3)(E) to C(3)(F) (first offense up to $1,500; subsequent offenses up to $5,000). The second section forbids any person “knowingly” to “transport” a “tobacco product” to “a person” in Maine unless either the sender or the receiver has a Maine license. §1555–D. It then adds that a “person is deemed to know that a package contains a tobacco product” (1) if the package is marked as containing tobacco and displays the name and license number of a Maine-licensed tobacco retailer; or (2) if the person receives the package from someone whose name appears on a list of un-licensed tobacco retailers that Maine’s Attorney General distributes to various package-delivery companies. Ibid. (emphasis added); see also §§1555–C(3)(B), 1555–D(1). Violations are again punishable by civil penalties. §1555–D(2) (up to $1,500 per violation against violator and/or violator’s employer). B Respondents, several transport carrier associations, brought this lawsuit in federal court, claiming that federal law pre-empts several sections of Maine’s statute. The District Court held (among other things) that federal law pre-empts the portions of the two sections we have described, namely the “recipient-verification” provision (§1555–C(3)(C)) and the “deemed to know” provision (the second sentence of §1555–D). See 377 F. Supp. 2d 197, 220 (Me. 2005). On appeal, the Court of Appeals for the First Circuit agreed that federal law pre-empted the two provisions. 448 F. 3d 66, 82 (2006). We granted certiorari to review these determinations. 551 U. S. ___ (2007). II A In Morales, this Court interpreted the pre-emption provision in the Airline Deregulation Act of 1978. See 504 U. S., at 378. And we follow Morales in interpreting similar language in the 1994 Act before us here. We have said that “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.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 85 (2006) (internal quotation marks and alterations omitted). Here, the Congress that wrote the language before us copied the language of the air-carrier pre-emption provision of the Airline Deregulation Act of 1978. Compare 49 U. S. C. §§14501(c)(1), 41713(b)(4)(A), with 49 U. S. C. App. §1305(a)(1) (1988 ed.); see also H. R. Conf. Rep. No. 103–677, pp. 82–83, 85 (1994) (hereinafter H. R. Conf. Rep.). And it did so fully aware of this Court’s interpretation of that language as set forth in Morales. See H. R. Conf. Rep., at 83 (motor carriers will enjoy “the identical intrastate preemption of prices, routes and services as that originally contained in” the Airline Deregulation Act); ibid. (expressing agreement with “the broad preemption interpretation adopted by the United States Supreme Court in Morales”); id., at 85. In Morales, the Court determined: (1) that “[s]tate enforcement actions having a connection with, or reference to” carrier “ ‘rates, routes, or services’ are pre-empted,” 504 U. S., at 384 (emphasis added); (2) that such pre-emption may occur even if a state law’s effect on rates, routes or services “is only indirect,” id., at 386 (internal quotation marks omitted); (3) that, in respect to pre-emption, it makes no difference whether a state law is “consistent” or “inconsistent” with federal regulation, id., at 386–387 (emphasis deleted); and (4) that pre-emption occurs at least where state laws have a “significant impact” related to Congress’ deregulatory and pre-emption-related objectives, id., at 390. The Court described Congress’ overarching goal as helping assure transportation rates, routes, and services that reflect “maximum reliance on competitive market forces,” thereby stimulating “efficiency, innovation, and low prices,” as well as “variety” and “quality.” Id., at 378 (internal quotation marks omitted). Morales held that, given these principles, federal law pre-empts States from enforcing their consumer-fraud statutes against deceptive airline-fare advertisements. Id., at 391. See American Airlines, Inc. v. Wolens, 513 U. S. 219, 226–228 (1995) (federal law pre-empts application of a State’s general consumer-protection statute to an airline’s frequent flyer program). Finally, Morales said that federal law might not pre-empt state laws that affect fares in only a “tenuous, remote, or peripheral … manner,” such as state laws forbidding gambling. 504 U. S., at 390 (internal quotation marks omitted). But the Court did not say where, or how, “it would be appropriate to draw the line,” for the state law before it did not “present a borderline question.” Ibid. (internal quotation marks omitted); see also Wolens, supra, at 226. B In light of Morales, we find that federal law pre-empts the Maine laws at issue here. Section 1555–C(3)(C) of the Maine statute forbids licensed tobacco retailers to employ a “delivery service” unless that service follows particular delivery procedures. Me. Rev. Stat. Ann., Tit. 22, §1555–C(3)(C). In doing so, it focuses on trucking and other motor carrier services (which make up a substantial portion of all “delivery services,” §1551(1–C)), thereby creating a direct “connection with” motor carrier services. See Morales, 504 U. S., at 384. At the same time, the provision has a “significant” and adverse “impact” in respect to the federal Act’s ability to achieve its pre-emption-related objectives. Id., at 390. The Solicitor General and the carrier associations claim (and Maine does not deny) that the law will require carriers to offer a system of services that the market does not now provide (and which the carriers would prefer not to offer). And even were that not so, the law would freeze into place services that carriers might prefer to discontinue in the future. The Maine law thereby produces the very effect that the federal law sought to avoid, namely, a State’s direct substitution of its own governmental commands for “competitive market forces” in determining (to a significant degree) the services that motor carriers will provide. Id., at 378 (internal quotation marks omitted). We concede that the regulation here is less “direct” than it might be, for it tells shippers what to choose rather than carriers what to do. Nonetheless, the effect of the regulation is that carriers will have to offer tobacco delivery services that differ significantly from those that, in the absence of the regulation, the market might dictate. And that being so, “treating sales restrictions and purchase restrictions differently for pre-emption purposes would make no sense.” Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U. S. 246, 255 (2004). If federal law pre-empts state efforts to regulate, and consequently to affect, the advertising about carrier rates and services at issue in Morales, it must pre-empt Maine’s efforts to regulate carrier delivery services themselves. Section 1555–D’s “deemed to know” provision applies yet more directly to motor carrier services. The provision creates a conclusive presumption of carrier knowledge that a shipment contains tobacco when it is marked as originating from a Maine-licensed tobacco retailer or is sent by anyone Maine has specifically identified as an unlicensed tobacco retailer. That presumption means that the Maine law imposes civil liability upon the carrier, not simply for its knowing transport of (unlicensed) tobacco, but for the carrier’s failure sufficiently to examine every package. The provision thus requires the carrier to check each shipment for certain markings and to compare it against the Maine attorney general’s list of proscribed shippers. And it thereby directly regulates a significant aspect of the motor carrier’s package pick-up and delivery service. In this way it creates the kind of state-mandated regulation that the federal Act pre-empts. Maine replies that the regulation will impose no significant additional costs upon carriers. But even were that so (and the carriers deny it), Maine’s reply is off the mark. As with the recipient-verification provision, the “deemed to know” provision would freeze in place and immunize from competition a service-related system that carriers do not (or in the future might not) wish to provide. Supra, at 5–6. To allow Maine to insist that the carriers provide a special checking system would allow other States to do the same. And to interpret the federal law to permit these, and similar, state requirements could easily lead to a patchwork of state service-determining laws, rules, and regulations. That state regulatory patchwork is inconsistent with Congress’ major legislative effort to leave such decisions, where federally unregulated, to the competitive marketplace. See H. R. Conf. Rep., at 87. If federal law pre-empts state regulation of the details of an air carrier’s frequent flyer program, a program that primarily promotes carriage, see Wolens, supra, at 226–228, it must pre-empt state regulation of the essential details of a motor carrier’s system for picking-up, sorting, and carrying goods—essential details of the carriage itself. C Maine’s primary arguments focus upon the reason why it has enacted the provisions in question. Maine argues for an exception from pre-emption on the ground that its laws help it prevent minors from obtaining cigarettes. In Maine’s view, federal law does not pre-empt a State’s efforts to protect its citizens’ public health, particularly when those laws regulate so dangerous an activity as underage smoking. Despite the importance of the public health objective, we cannot agree with Maine that the federal law creates an exception on that basis, exempting state laws that it would otherwise pre-empt. The Act says nothing about a public health exception. To the contrary, it explicitly lists a set of exceptions (governing motor vehicle safety, certain local route controls, and the like), but the list says nothing about public health. See 49 U. S. C. §§14501(c)(2) to (c)(3); see also §41713(b)(4)(B). Maine suggests that the provision’s history indicates that Congress’ primary concern was not with the sort of law it has enacted, but instead with state “economic” regulation. See, e.g., H. R. Conf. Rep., at 88; see also Columbus v. Ours Garage & Wrecker Service, Inc., 536 U. S. 424, 440 (2002). But it is frequently difficult to distinguish between a State’s “economic”-related and “health”-related motivations, see infra, at 9, and, indeed, the parties vigorously dispute Maine’s actual motivation for the laws at issue here. Consequently, it is not surprising that Congress declined to insert the term “economic” into the operative language now before us, despite having at one time considered doing so. See S. Rep. No. 95–631, p. 171 (1978) (reprinting Senate bill). Maine’s argument for an implied “public health” or “tobacco” exception to federal pre-emption rests largely upon (1) legislative history containing a list of nine States, with laws resembling Maine’s, that Congress thought did not regulate “intrastate prices, routes and services of motor carriers,” see H. R. Conf. Rep., at 86; and (2) the Synar Amendment, a law that denies States federal funds unless they forbid sales of tobacco to minors, see 42 U. S. C. §§300x–26(a)(1), (b)(1). The legislative history, however, does not suggest Congress made a firm judgment about, or even focused upon, the issue now before us. And the Synar Amendment nowhere mentions the particular state enforcement method here at issue; indeed, it does not mention specific state enforcement methods at all. Maine’s inability to find significant support for some kind of “public health” exception is not surprising. “Public health” does not define itself. Many products create “public health” risks of differing kind and degree. To accept Maine’s justification in respect to a rule regulating services would legitimate rules regulating routes or rates for similar public health reasons. And to allow Maine directly to regulate carrier services would permit other States to do the same. Given the number of States through which carriers travel, the number of products, the variety of potential adverse public health effects, the many different kinds of regulatory rules potentially available, and the difficulty of finding a legal criterion for separating permissible from impermissible public-health-oriented regulations, Congress is unlikely to have intended an implicit general “public health” exception broad enough to cover even the shipments at issue here. This is not to say that this federal law generally pre-empts state public health regulation: for instance, state regulation that broadly prohibits certain forms of conduct and affects, say, truckdrivers, only in their capacity as members of the public (e.g., a prohibition on smoking in certain public places). We have said that federal law does not pre-empt state laws that affect rates, routes, or services in “too tenuous, remote, or peripheral a manner.” Morales, 504 U. S., at 390 (internal quotation marks omitted). And we have written that the state laws whose “effect” is “forbidden” under federal law are those with a “significant impact” on carrier rates, routes, or services. Id., at 388, 390 (emphasis added). In this case, the state law is not general, it does not affect truckers solely in their capacity as members of the general public, the impact is significant, and the connection with trucking is not tenuous, remote, or peripheral. The state statutes aim directly at the carriage of goods, a commercial field where carriage by commercial motor vehicles plays a major role. The state statutes require motor carrier operators to perform certain services, thereby limiting their ability to provide incompatible alternative services; and they do so simply because the State seeks to enlist the motor carrier operators as allies in its enforcement efforts. Given these circumstances, from the perspective of pre-emption, this case is no more “borderline” than was Morales. Id., at 390 (internal quotation marks omitted); see also Wolens, 513 U. S., at 226. Maine adds that it possesses legal authority to prevent any tobacco shipments from entering into or moving within the State, and that the broader authority must encompass the narrower authority to regulate the manner of tobacco shipments. But even assuming purely for argument’s sake that Maine possesses the broader authority, its conclusion does not follow. To accept that conclusion would permit Maine to regulate carrier routes, carrier rates, and carrier services, all on the ground that such regulation would not restrict carriage of the goods as seriously as would a total ban on shipments. And it consequently would severely undermine the effectiveness of Congress’ pre-emptive provision. Indeed, it would create the very exception that we have just rejected, extending that exception to all other products a State might ban. We have explained why we do not believe Congress intended that result. Supra, at 7–10. Finally, Maine says that to set aside its regulations will seriously harm its efforts to prevent cigarettes from falling into the hands of minors. The Solicitor General denies that this is so. He suggests that Maine, like other States, can prohibit all persons from providing tobacco products to minors (as it already has, see Me. Rev. Stat. Ann., Tit. 22, §1555–B(2) (Supp. 2007)); that it can ban all non-face-to-face sales of tobacco; that it might pass other laws of general (non-carrier-specific) applicability; and that it can, if necessary, seek appropriate federal regulation (see, e.g., H. R. 4081, 110th Cong., 1st Sess. (2007) (proposed bill regulating tobacco shipment); H. R. 4128, 110th Cong., 1st Sess., §§1411–1416, pp. 577–583 (2007) (proposed bill providing criminal penalties for trafficking in contraband tobacco)). Regardless, given Morales, where the Court held that federal law pre-empts state consumer-protection laws, we find that federal law must also pre-empt Maine’s efforts directly to regulate carrier services. For these reasons, the judgment of the Court of Appeals is affirmed. It is so ordered. |
552.US.472 | During voir dire in petitioner’s capital murder case, the prosecutor used peremptory strikes to eliminate black prospective jurors who had survived challenges for cause. The jury convicted petitioner and sentenced him to death. Both on direct appeal and on remand in light of Miller-El v. Dretke, 545 U. S. 231, the Louisiana Supreme Court rejected petitioner’s claim that the prosecution’s peremptory strikes of certain prospective jurors, including Mr. Brooks, were based on race, in violation of Batson v. Kentucky, 476 U. S. 79. Held: The trial judge committed clear error in rejecting the Batson objection to the strike of Mr. Brooks. Pp. 3–13. (a) Under Batson’s three-step process for adjudicating claims such as petitioner’s, (1) a defendant must make a prima facie showing that the challenge was based on race; (2) if so, “ ‘the prosecution must offer a race-neutral basis for striking the juror in question’ ”; and (3) “ ‘in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.’ ” Miller-El, supra, at 277 (Thomas, J., dissenting) (quoting Miller-El v. Cockrell, 537 U. S. 322, 328–329). Unless it is clearly erroneous, the trial court’s ruling must be sustained on appeal. The trial court’s role is pivotal, for it must evaluate the demeanor of the prosecutor exercising the challenge and the juror being excluded. Pp. 3–4. (b) While all of the circumstances bearing on the racial-animosity issue must be consulted in considering a Batson objection or reviewing a ruling claimed to be a Batson error, the explanation given for striking Mr. Brooks, a college senior attempting to fulfill his student-teaching obligation, is insufficient by itself and suffices for a Batson error determination. Pp. 4–13. (1) It cannot be presumed that the trial court credited the prosecution’s first race-neutral reason, that Mr. Brooks looked nervous. Deference is owed to a trial judge’s finding that an attorney credibly relied on demeanor in exercising a strike, but here, the trial judge simply allowed the challenge without explanation. Since Mr. Brooks was not challenged until the day after he was questioned and thus after dozens of other jurors had been called, the judge might not have recalled his demeanor. Or he may have found such consideration unnecessary, instead basing his ruling on the second proffered reason for the strike. P. 6. (2) That reason—Mr. Brooks’ student-teaching obligation—fails even under the highly deferential standard of review applicable here. Mr. Brooks was 1 of more than 50 venire members expressing concern that jury service or sequestration would interfere with work, school, family, or other obligations. Although he was initially concerned about making up lost teaching time, he expressed no further concern once a law clerk reported that the school’s dean would work with Mr. Brooks if he missed time for a trial that week, and the prosecutor did not question him more deeply about the matter. The proffered reason must be evaluated in light of the circumstances that the colloquy and law clerk report took place on Tuesday, the prosecution struck Mr. Brooks on Wednesday, the trial’s guilt phase ended on Thursday, and its penalty phase ended on Friday. The prosecutor’s scenario—that Mr. Brooks would have been inclined to find petitioner guilty of a lesser included offense to obviate the need for a penalty phase—is both highly speculative and unlikely. Mr. Brooks would be in a position to shorten the trial only if most or all of the jurors had favored a lesser verdict. Perhaps most telling, the trial’s brevity, which the prosecutor anticipated on the record during voir dire, meant that jury service would not have seriously interfered with Mr. Brooks’ ability to complete his student teaching. The dean offered to work with him, and the trial occurred relatively early in the fall term, giving Mr. Brooks several weeks to make up the time. The implausibility of the prosecutor’s explanation is reinforced by his acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks’. Under Batson’s third stage, the prosecution’s pretextual explanation gives rise to an inference of discriminatory intent. There is no need to decide here whether, in Batson cases, once a discriminatory intent is shown to be a motivating factor, the burden shifts to the prosecution to show that the discriminatory factor was not determinative. It is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution. The record here does not show that the prosecution would have pre-emptively challenged Mr. Brooks based on his nervousness alone, and there is no realistic possibility that the subtle question of causation could be profitably explored further on remand more than a decade after petitioner’s trial. Pp. 6–13. 942 So. 2d 484, reversed and remanded. Alito, 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, in which Scalia, J., joined. | Petitioner Allen Snyder was convicted of first-degree murder in a Louisiana court and was sentenced to death. He asks us to review a decision of the Louisiana Supreme Court rejecting his claim that the prosecution exercised some of its peremptory jury challenges based on race, in violation of Batson v. Kentucky, 476 U. S. 79 (1986). We hold that the trial court committed clear error in its ruling on a Batson objection, and we therefore reverse. I The crime for which petitioner was convicted occurred in August 1995. At that time, petitioner and his wife, Mary, had separated. On August 15, they discussed the possibility of reconciliation, and Mary agreed to meet with petitioner the next day. That night, Mary went on a date with Howard Wilson. During the evening, petitioner repeatedly attempted to page Mary, but she did not respond. At approximately 1:30 a.m. on August 16, Wilson drove up to the home of Mary’s mother to drop Mary off. Petitioner was waiting at the scene armed with a knife. He opened the driver’s side door of Wilson’s car and repeatedly stabbed the occupants, killing Wilson and wounding Mary. The State charged petitioner with first-degree murder and sought the death penalty based on the aggravating circumstance that petitioner had knowingly created a risk of death or great bodily harm to more than one person. See La. Code Crim. Proc. Ann., Art. 905.4(A)(4) (West Supp. 2008). Voir dire began on Tuesday, August 27, 1996, and proceeded as follows. During the first phase, the trial court screened the panel to identify jurors who did not meet Louisiana’s requirements for jury service or claimed that service on the jury or sequestration for the duration of the trial would result in extreme hardship. More than 50 prospective jurors reported that they had work, family, or other commitments that would interfere with jury service. In each of those instances, the nature of the conflicting commitments was explored, and some of these jurors were dismissed. App. 58–164. In the next phase, the court randomly selected panels of 13 potential jurors for further questioning. Id., at 166–167. The defense and prosecution addressed each panel and questioned the jurors both as a group and individually. At the conclusion of this questioning, the court ruled on challenges for cause. Then, the prosecution and the defense were given the opportunity to use peremptory challenges (each side had 12) to remove remaining jurors. The court continued this process of calling 13-person panels until the jury was filled. In accordance with Louisiana law, the parties were permitted to exercise “backstrikes.” That is, they were allowed to use their peremptories up until the time when the final jury was sworn and thus were permitted to strike jurors whom they had initially accepted when the jurors’ panels were called. See La. Code Crim. Proc. Ann., Art. 795(b)(1); State v. Taylor, 93–2201, pp. 22–23 (La. 2/28/96), 669 So. 2d 364, 376. Eighty-five prospective jurors were questioned as members of a panel. Thirty-six of these survived challenges for cause; 5 of the 36 were black; and all 5 of the prospective black jurors were eliminated by the prosecution through the use of peremptory strikes. The jury found petitioner guilty of first-degree murder and determined that he should receive the death penalty. On direct appeal, the Louisiana Supreme Court conditionally affirmed petitioner’s conviction. The court rejected petitioner’s Batson claim but remanded the case for a nunc pro tunc determination of petitioner’s competency to stand trial. State v. Snyder, 98–1078 (La. 4/14/99), 750 So. 2d 832. Two justices dissented and would have found a Batson violation. See id., at 866 (Johnson, J., dissenting), 863 (Lemmon, J., concurring in part and dissenting in part). On remand, the trial court found that petitioner had been competent to stand trial, and the Louisiana Supreme Court affirmed that determination. State v. Snyder, 1998–1078 (La. 4/14/04), 874 So. 2d 739. Petitioner petitioned this Court for a writ of certiorari, and while his petition was pending, this Court decided Miller-El v. Dretke, 545 U. S. 231 (2005). We then granted the petition, vacated the judgment, and remanded the case to the Louisiana Supreme Court for further consideration in light of Miller-El. See Snyder v. Louisiana, 545 U. S. 1137 (2005). On remand, the Louisiana Supreme Court again rejected Snyder’s Batson claim, this time by a vote of 4 to 3. See 1998–1078 (La. 9/6/06), 942 So. 2d 484. We again granted certiorari, 551 U. S. ___ (2007), and now reverse. II Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race: “ ‘First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.’ ” Miller-El v. Dretke, supra, at 277 (Thomas, J., dissenting) (quoting Miller-El v. Cockrell, 537 U. S. 322, 328–329 (2003)). On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. See Hernandez v. New York, 500 U. S. 352, 369 (1991) (plurality opinion); id., at 372 (O’Connor, J., joined by Scalia, J., concurring in judgment). The trial court has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry involves an evaluation of the prosecutor’s credibility, see 476 U. S., at 98, n. 21, and “the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge,” Hernandez, 500 U. S., at 365 (plurality opinion). In addition, race-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie “ ‘peculiarly within a trial judge’s province,’ ” ibid. (quoting Wainwright v. Witt, 469 U. S. 412, 428 (1985)), and we have stated that “in the absence of exceptional circumstances, we would defer to [the trial court].” 500 U. S., at 366. III Petitioner centers his Batson claim on the prosecution’s strikes of two black jurors, Jeffrey Brooks and Elaine Scott. Because we find that the trial court committed clear error in overruling petitioner’s Batson objection with respect to Mr. Brooks, we have no need to consider petitioner’s claim regarding Ms. Scott. See, e.g., United States v. Vasquez-Lopez, 22 F. 3d 900, 902 (CA9 1994) (“[T]he Constitution forbids striking even a single prospective juror for a discriminatory purpose”); United States v. Lane, 866 F. 2d 103, 105 (CA4 1989); United States v. Clemons, 843 F. 2d 741, 747 (CA3 1988); United States v. Battle, 836 F. 2d 1084, 1086 (CA8 1987); United States v. David, 803 F. 2d 1567, 1571 (CA11 1986). In Miller-El v. Dretke, the Court made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted. 545 U. S., at 239. Here, as just one example, if there were persisting doubts as to the outcome, a court would be required to consider the strike of Ms. Scott for the bearing it might have upon the strike of Mr. Brooks. In this case, however, the explanation given for the strike of Mr. Brooks is by itself unconvincing and suffices for the determination that there was Batson error. When defense counsel made a Batson objection concerning the strike of Mr. Brooks, a college senior who was attempting to fulfill his student-teaching obligation, the prosecution offered two race-neutral reasons for the strike. The prosecutor explained: “I thought about it last night. Number 1, the main reason is that he looked very nervous to me throughout the questioning. Number 2, he’s one of the fellows that came up at the beginning [of voir dire] and said he was going to miss class. He’s a student teacher. My main concern is for that reason, that being that he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase. Those are my two reasons.” App. 444. Defense counsel disputed both explanations, id., at 444–445, and the trial judge ruled as follows: “All right. I’m going to allow the challenge. I’m going to allow the challenge.” Id., at 445. We discuss the prosecution’s two proffered grounds for striking Mr. Brooks in turn. A With respect to the first reason, the Louisiana Supreme Court was correct that “nervousness cannot be shown from a cold transcript, which is why … the [trial] judge’s evaluation must be given much deference.” 942 So. 2d, at 496. As noted above, deference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike. Here, however, the record does not show that the trial judge actually made a determination concerning Mr. Brooks’ demeanor. The trial judge was given two explanations for the strike. Rather than making a specific finding on the record concerning Mr. Brooks’ demeanor, the trial judge simply allowed the challenge without explanation. It is possible that the judge did not have any impression one way or the other concerning Mr. Brooks’ demeanor. Mr. Brooks was not challenged until the day after he was questioned, and by that time dozens of other jurors had been questioned. Thus, the trial judge may not have recalled Mr. Brooks’ demeanor. Or, the trial judge may have found it unnecessary to consider Mr. Brooks’ demeanor, instead basing his ruling completely on the second proffered justification for the strike. For these reasons, we cannot presume that the trial judge credited the prosecutor’s assertion that Mr. Brooks was nervous. B The second reason proffered for the strike of Mr. Brooks—his student-teaching obligation—fails even under the highly deferential standard of review that is applicable here. At the beginning of voir dire, when the trial court asked the members of the venire whether jury service or sequestration would pose an extreme hardship, Mr. Brooks was 1 of more than 50 members of the venire who expressed concern that jury service or sequestration would interfere with work, school, family, or other obligations. When Mr. Brooks came forward, the following exchange took place: “MR. JEFFREY BROOKS: … I’m a student at Southern University, New Orleans. This is my last semester. My major requires me to student teach, and today I’ve already missed a half a day. That is part of my—it’s required for me to graduate this semester. “[DEFENSE COUNSEL]: Mr. Brooks, if you—how many days would you miss if you were sequestered on this jury? Do you teach every day? “MR. JEFFREY BROOKS: Five days a week. “[DEFENSE COUNSEL]: Five days a week. “MR. JEFFREY BROOKS: And it’s 8:30 through 3:00. “[DEFENSE COUNSEL]: If you missed this week, is there any way that you could make it up this semester? “MR. JEFFREY BROOKS: Well, the first two weeks I observe, the remaining I begin teaching, so there is something I’m missing right now that will better me towards my teaching career. “[DEFENSE COUNSEL]: Is there any way that you could make up the observed observation [sic] that you’re missing today, at another time? “MR. JEFFREY BROOKS: It may be possible, I’m not sure. “[DEFENSE COUNSEL]: Okay. So that— “THE COURT: Is there anyone we could call, like a Dean or anything, that we could speak to? “MR. JEFFREY BROOKS: Actually, I spoke to my Dean, Doctor Tillman, who’s at the university probably right now. “THE COURT: All right. “MR. JEFFREY BROOKS: Would you like to speak to him? “THE COURT: Yeah. “MR. JEFFREY BROOKS: I don’t have his card on me. “THE COURT: Why don’t you give [a law clerk] his number, give [a law clerk] his name and we’ll call him and we’ll see what we can do. “(MR. JEFFREY BROOKS LEFT THE BENCH).” App. 102–104. Shortly thereafter, the court again spoke with Mr. Brooks: “THE LAW CLERK: Jeffrey Brooks, the requirement for his teaching is a three hundred clock hour observation. Doctor Tillman at Southern University said that as long as it’s just this week, he doesn’t see that it would cause a problem with Mr. Brooks completing his observation time within this semester. “(MR. BROOKS APPROACHED THE BENCH) “THE COURT: We talked to Doctor Tillman and he says he doesn’t see a problem as long as it’s just this week, you know, he’ll work with you on it. Okay? “MR. JEFFREY BROOKS: Okay. “(MR. JEFFREY BROOKS LEFT THE BENCH).” Id., at 116. Once Mr. Brooks heard the law clerk’s report about the conversation with Doctor Tillman, Mr. Brooks did not express any further concern about serving on the jury, and the prosecution did not choose to question him more deeply about this matter. The colloquy with Mr. Brooks and the law clerk’s report took place on Tuesday, August 27; the prosecution struck Mr. Brooks the following day, Wednesday, August 28; the guilt phase of petitioner’s trial ended the next day, Thursday, August 29; and the penalty phase was completed by the end of the week, on Friday, August 30. The prosecutor’s second proffered reason for striking Mr. Brooks must be evaluated in light of these circumstances. The prosecutor claimed to be apprehensive that Mr. Brooks, in order to minimize the student-teaching hours missed during jury service, might have been motivated to find petitioner guilty, not of first-degree murder, but of a lesser included offense because this would obviate the need for a penalty phase proceeding. But this scenario was highly speculative. Even if Mr. Brooks had favored a quick resolution, that would not have necessarily led him to reject a finding of first-degree murder. If the majority of jurors had initially favored a finding of first-degree murder, Mr. Brooks’ purported inclination might have led him to agree in order to speed the deliberations. Only if all or most of the other jurors had favored the lesser verdict would Mr. Brooks have been in a position to shorten the trial by favoring such a verdict. Perhaps most telling, the brevity of petitioner’s trial—something that the prosecutor anticipated on the record during voir dire[Footnote 1]—meant that serving on the jury would not have seriously interfered with Mr. Brooks’ ability to complete his required student teaching. As noted, petitioner’s trial was completed by Friday, August 30. If Mr. Brooks, who reported to court and was peremptorily challenged on Wednesday, August 28, had been permitted to serve, he would have missed only two additional days of student teaching, Thursday, August 29, and Friday, August 30. Mr. Brooks’ dean promised to “work with” Mr. Brooks to see that he was able to make up any student-teaching time that he missed due to jury service; the dean stated that he did not think that this would be a problem; and the record contains no suggestion that Mr. Brooks remained troubled after hearing the report of the dean’s remarks. In addition, although the record does not include the academic calendar of Mr. Brooks’ university, it is apparent that the trial occurred relatively early in the fall semester. With many weeks remaining in the term, Mr. Brooks would have needed to make up no more than an hour or two per week in order to compensate for the time that he would have lost due to jury service. When all of these considerations are taken into account, the prosecutor’s second proffered justification for striking Mr. Brooks is suspicious. The implausibility of this explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks’. We recognize that a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In that situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable. In this case, however, the shared characteristic, i.e., concern about serving on the jury due to conflicting obligations, was thoroughly explored by the trial court when the relevant jurors asked to be excused for cause.[Footnote 2] A comparison between Mr. Brooks and Roland Laws, a white juror, is particularly striking. During the initial stage of voir dire, Mr. Laws approached the court and offered strong reasons why serving on the sequestered jury would cause him hardship. Mr. Laws stated that he was “a self-employed general contractor,” with “two houses that are nearing completion, one [with the occupants] … moving in this weekend.” Id., at 129. He explained that, if he served on the jury, “the people won’t [be able to] move in.” Id., at 130. Mr. Laws also had demanding family obligations: “[M]y wife just had a hysterectomy, so I’m running the kids back and forth to school, and we’re not originally from here, so I have no family in the area, so between the two things, it’s kind of bad timing for me.” Ibid. Although these obligations seem substantially more pressing than Mr. Brooks’, the prosecution questioned Mr. Laws and attempted to elicit assurances that he would be able to serve despite his work and family obligations. See ibid. (prosecutor asking Mr. Laws “[i]f you got stuck on jury duty anyway … would you try to make other arrangements as best you could?”). And the prosecution declined the opportunity to use a peremptory strike on Mr. Laws. Id., at 549. If the prosecution had been sincerely concerned that Mr. Brooks would favor a lesser verdict than first-degree murder in order to shorten the trial, it is hard to see why the prosecution would not have had at least as much concern regarding Mr. Laws. The situation regarding another white juror, John Donnes, although less fully developed, is also significant. At the end of the first day of voir dire, Mr. Donnes approached the court and raised the possibility that he would have an important work commitment later that week. Id., at 349. Because Mr. Donnes stated that he would know the next morning whether he would actually have a problem, the court suggested that Mr. Donnes raise the matter again at that time. Ibid. The next day, Mr. Donnes again expressed concern about serving, stating that, in order to serve, “I’d have to cancel too many things,” including an urgent appointment at which his presence was essential. Id., at 467–468. Despite Mr. Donnes’ concern, the prosecution did not strike him. Id., at 490. As previously noted, the question presented at the third stage of the Batson inquiry is “ ‘whether the defendant has shown purposeful discrimination.’ ” Miller-El v. Dretke, 545 U. S., at 277. The prosecution’s proffer of this pretextual explanation naturally gives rise to an inference of discriminatory intent. See id., at 252 (noting the “pretextual significance” of a “stated reason [that] does not hold up”); Purkett v. Elem, 514 U. S. 765, 768 (1995) (per curiam) (“At [the third] stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination”); Hernandez, 500 U. S., at 365 (plurality opinion) (“In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory chal- lenge should be believed”). Cf. St. Mary’s Honor Center v. Hicks, 509 U. S. 502, 511 (1993) (“[R]ejection of the de- fendant’s proffered [nondiscriminatory] reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination”). In other circumstances, we have held that, once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this factor was not determinative. See Hunter v. Underwood, 471 U. S. 222, 228 (1985). We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context. For present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution. And in light of the circumstances here—including absence of anything in the record showing that the trial judge credited the claim that Mr. Brooks was nervous, the prosecution’s description of both of its proffered explanations as “main concern[s],” App. 444, and the adverse inference noted above—the record does not show that the prosecution would have pre-emptively challenged Mr. Brooks based on his nervousness alone. See Hunter, supra, at 228. Nor is there any realistic possibility that this subtle question of causation could be profitably explored further on remand at this late date, more than a decade after petitioner’s trial. * * * We therefore reverse the judgment of the Louisiana Supreme Court and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 See, e.g., App. 98, 105, 111, 121, 130, 204. Footnote 2 The Louisiana Supreme Court did not hold that petitioner had procedurally defaulted reliance on a comparison of the African-American jurors whom the prosecution struck with white jurors whom the prosecution accepted. On the contrary, the State Supreme Court itself made such a comparison. See 942 So. 2d 484, 495–496 (2006). |
554.US.269 | A payphone customer making a long-distance call with an access code or 1–800 number issued by a long-distance carrier pays the carrier (which completes the call). The carrier then compensates the payphone operator (which connects the call to the carrier in the first place). The payphone operator can sue the long-distance carrier for any compensation that the carrier fails to pay for these “dial-around” calls. Many payphone operators assign their dial-around claims to billing and collection firms (aggregators) so that, in effect, these aggregators can bring suit on their behalf. A group of aggregators (respondents here) were assigned legal title to the claims of approximately 1,400 payphone operators. The aggregators separately agreed to remit all proceeds to those operators, who would then pay the aggregators for their services. After entering into these agreements, the aggregators filed federal-court lawsuits seeking compensation from petitioner long-distance carriers. The District Court refused to dismiss the claims, finding that the aggregators had standing, and the D.C. Circuit ultimately affirmed. Held: An assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor. Pp. 3–23. (a) History and precedent show that, for centuries, courts have found ways to allow assignees to bring suit; where assignment is at issue, courts—both before and after the founding—have always permitted the party with legal title alone to bring suit; and there is a strong tradition specifically of suits by assignees for collection. And while precedents of this Court, Waite v. Santa Cruz, 184 U. S. 302, Spiller v. Atchison, T. & S. F. R. Co., 253 U. S. 117, and Titus v. Wallick, 306 U. S. 282, do not conclusively resolve the standing question here, they offer powerful support for the proposition that suits by assignees for collection have long been seen as “amenable” to resolution by the judicial process, Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 102. Pp. 3–16. (b) Petitioners offer no convincing reason to depart from the historical tradition of suits by assignees, including assignees for collection. In any event, the aggregators satisfy the Article III standing requirements articulated in this Court’s more modern decisions. Petitioners argue that the aggregators have not themselves suffered an injury and that assignments for collection do not transfer the payphone operators’ injuries. But the operators assigned their claims lock, stock, and barrel, and precedent makes clear that an assignee can sue based on his assignor’s injuries. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765. In arguing that the aggregators cannot satisfy the redressability requirement because they will remit their recovery to the payphone operators, petitioners misconstrue the nature of the redressability inquiry, which focuses on whether the injury that a plaintiff alleges is likely to be redressed through the litigation—not on what the plaintiff ultimately intends to do with the money recovered. See, e.g., id., at 771. Petitioners’ claim that the assignments constitute nothing more than a contract for legal services is overstated. There is an important distinction between simply hiring a lawyer and assigning a claim to a lawyer. The latter confers a property right (which creditors might attach); the former does not. Finally, as a practical matter, it would be particularly unwise to abandon history and precedent in resolving the question here, for any such ruling could be overcome by, e.g., rewriting the agreement to give the aggregator a tiny portion of the assigned claim itself, perhaps only a dollar or two. Pp. 16–20 (c) Petitioners’ reasons for denying prudential standing—that the aggregators are seeking redress for third parties; that the litigation represents an effort by the aggregators and payphone operators to circumvent Federal Rule of Civil Procedure 23’s class-action requirements; and that practical problems could arise because the aggregators are suing, e.g., payphone operators may not comply with discovery requests or honor judgments—are unpersuasive. And because there are no allegations that the assignments were made in bad faith and because the assignments were made for ordinary business purposes, any other prudential questions need not be considered here. Pp. 20–23. 489 F. 3d 1249, affirmed. Breyer, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, and Ginsburg, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. | The question before us is whether an assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor. Because history and precedent make clear that such an assignee has long been permitted to bring suit, we conclude that the assignee does have standing. I When a payphone customer makes a long-distance call with an access code or 1–800 number issued by a long-distance communications carrier, the customer pays the carrier (which completes that call), but not the payphone operator (which connects that call to the carrier in the first place). In these circumstances, the long-distance carrier is required to compensate the payphone operator for the customer’s call. See 47 U. S. C. §226; 47 CFR §64.1300 (2007). The payphone operator can sue the long-distance carrier in court for any compensation that the carrier fails to pay for these “dial-around” calls. And many have done so. See Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., 550 U. S. ___ (2007) (finding that the Communications Act of 1934 authorizes such suits). Because litigation is expensive, because the evidentiary demands of a single suit are often great, and because the resulting monetary recovery is often small, many payphone operators assign their dial-around claims to billing and collection firms called “aggregators” so that, in effect, these aggregators can bring suit on their behalf. See Brief for Respondents 3. Typically, an individual aggregator collects claims from different payphone operators; the aggregator promises to remit to the relevant payphone operator (i.e., the assignor of the claim) any dial-around compensation that is recovered; the aggregator then pursues the claims in court or through settlement negotiations; and the aggregator is paid a fee for this service. The present litigation involves a group of aggregators who have taken claim assignments from approximately 1,400 payphone operators. Each payphone operator signed an Assignment and Power of Attorney Agreement (Agreement) in which the payphone operator “assigns, transfers and sets over to [the aggregator] for purposes of collection all rights, title and interest of the [payphone operator] in the [payphone operator’s] claims, demands or causes of action for ‘Dial-Around Compensation’ . . . due the [payphone operator] for periods since October 1, 1997.” App. to Pet. for Cert. 114a. The Agreement also “appoints” the aggregator as the payphone operator’s “true and lawful attorney-in-fact.” Ibid. The Agreement provides that the aggregator will litigate “in the [payphone operator’s] interest.” Id., at 115a. And the Agreement further stipulates that the assignment of the claims “may not be revoked without the written consent of the [aggregator].” Ibid. The aggregator and payphone operator then separately agreed that the aggregator would remit all proceeds to the payphone operator and that the payphone operator would pay the aggregator for its services (typically via a quarterly charge). After signing the agreements, the aggregators (respondents here) filed lawsuits in federal court seeking dial-around compensation from Sprint, AT&T, and other long-distance carriers (petitioners here). AT&T moved to dismiss the claims, arguing that the aggregators lack standing to sue under Article III of the Constitution. The District Court initially agreed to dismiss, APCC Servs., Inc. v. AT&T Corp., 254 F. Supp. 2d 135, 140–141 (DC 2003), but changed its mind in light of a “long line of cases and legal treatises that recognize a well-established principle that assignees for collection purposes are entitled to bring suit where [as here] the assignments transfer absolute title to the claims.” APCC Servs., Inc. v. AT&T Corp., 281 F. Supp. 2d 41, 45 (DC 2003). After consolidating similar cases, a divided panel of the Court of Appeals for the District of Columbia Circuit agreed that the aggregators have standing to sue, but held that the relevant statutes do not create a private right of action. APCC Servs., Inc. v. Sprint Communications Co., 418 F. 3d 1238 (2005) (per curiam). This Court granted the aggregators’ petition for certiorari on the latter statutory question, vacated the judgment, and remanded the case for reconsideration in light of Global Crossing, supra. APPC Services, Inc. v. Sprint Communications Co. 550 U. S. ___ (2007). On remand, the Court of Appeals affirmed the orders of the District Court allowing the litigation to go forward. 489 F. 3d 1249, 1250 (2007) (per curiam). The long-distance carriers then asked us to consider the standing question. We granted certiorari, and we now affirm. II We begin with the most basic doctrinal principles: Article III, §2, of the Constitution restricts the federal “judicial Power” to the resolution of “Cases” and “Controversies.” That case-or-controversy requirement is satisfied only where a plaintiff has standing. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U. S. 332 (2006). And in order to have Article III standing, a plaintiff must adequately establish: (1) an injury in fact (i.e., a “concrete and particularized” invasion of a “legally protected interest”); (2) causation (i.e., a “ ‘fairly … trace[able]’ ” connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is “ ‘likely’ ” and not “merely ‘speculative’ ” that the plaintiff’s injury will be remedied by the relief plaintiff seeks in bringing suit). Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992) (calling these the “irreducible constitutional minimum” requirements). In some sense, the aggregators clearly meet these requirements. They base their suit upon a concrete and particularized “injury in fact,” namely, the carriers’ failure to pay dial-around compensation. The carriers “caused” that injury. And the litigation will “redress” that injury—if the suits are successful, the long-distance carriers will pay what they owe. The long-distance carriers argue, however, that the aggregators lack standing because it was the payphone operators (who are not plaintiffs), not the aggregators (who are plaintiffs), who were “injured in fact” and that it is the payphone operators, not the aggregators, whose injuries a legal victory will truly “redress”: The aggregators, after all, will remit all litigation proceeds to the payphone operators. Brief for Petitioners 18. Thus, the question before us is whether, under these circumstances, an assignee has standing to pursue the assignor’s claims for money owed. We have often said that history and tradition offer a meaningful guide to the types of cases that Article III empowers federal courts to consider. See, e.g., Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 102 (1998) (“We have always taken [the case-or-controversy requirement] to mean cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process” (emphasis added)); GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445 U. S. 375, 382 (1980) (“The purpose of the case-or-controversy requirement is to limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process” (emphasis added and internal quotation marks omitted)); cf. Coleman v. Miller, 307 U. S. 433, 460 (1939) (opinion of Frankfurter, J.) (in crafting Article III, “the framers … gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union”). Consequently, we here have carefully examined how courts have historically treated suits by assignors and assignees. And we have discovered that history and precedent are clear on the question before us: Assignees of a claim, including assignees for collection, have long been permitted to bring suit. A clear historical answer at least demands reasons for change. We can find no such reasons here, and accordingly we conclude that the aggregators have standing. A We must begin with a minor concession. Prior to the 17th century, English law would not have authorized a suit like this one. But that is because, with only limited exceptions, English courts refused to recognize assignments at all. See, e.g., Lampet’s Case, 10 Co. Rep. 46b, 48a, 77 Eng. Rep. 994, 997 (K. B. 1612) (stating that “no possibility, right, title, nor thing in action, shall be granted or assigned to strangers” (footnote omitted)); Penson & Highbed’s Case, 4 Leo. 99, 74 Eng. Rep. 756 (K. B. 1590) (refusing to recognize the right of an assignee of a right in contract); see also 9 J. Murray, Corbin on Contracts §47.3, p. 134 (rev. ed. 2007) (noting that the King was excepted from the basic rule and could, as a result, always receive assignments). Courts then strictly adhered to the rule that a “chose in action”—an interest in property not immediately reducible to possession (which, over time, came to include a financial interest such as a debt, a legal claim for money, or a contractual right)—simply “could not be transferred to another person by the strict rules of the ancient common law.” See 2 W. Blackstone, Commentaries *442. To permit transfer, the courts feared, would lead to the “multiplying of contentions and suits,” Lampet’s Case, supra, at 48a, 77 Eng. Rep., at 997, and would also promote “maintenance,” i.e., officious intermeddling with litigation, see Holdsworth, History of the Treatment of Choses in Action by the Common Law, 33 Harv. L. Rev. 997, 1006–1009 (1920). As the 17th century began, however, strict anti-assignment rules seemed inconsistent with growing commercial needs. And as English commerce and trade expanded, courts began to liberalize the rules that prevented assignments of choses in action. See 9 Corbin, supra, §47.3, at 134 (suggesting that the “pragmatic necessities of trade” induced “evolution of the common law”); Holdsworth, supra, at 1021–1022 (the “common law” was “induced” to change because of “considerations of mercantile convenience or necessity”); J. Ames, Lectures on Legal History 214 (1913) (noting that the “objection of maintenance” yielded to “the modern commercial spirit”). By the beginning of the 18th century, courts routinely recognized assignments of equitable (but not legal) interests in a chose in action: Courts of equity permitted suits by an assignee who had equitable (but not legal) title. And courts of law effectively allowed suits either by the assignee (who had equitable, but not legal title) or the assignor (who had legal, but not equitable title). To be more specific, courts of equity would simply permit an assignee with a beneficial interest in a chose in action to sue in his own name. They might, however, require the assignee to bring in the assignor as a party to the action so as to bind him to whatever judgment was reached. See, e.g., Warmstrey v. Tanfield, 1 Ch. Rep. 29, 21 Eng. Rep. 498 (1628–1629); Fashion v. Atwood, 2 Ch. Cas. 36, 22 Eng. Rep. 835 (1688); Peters v. Soame, 2 Vern. 428, 428–429, 23 Eng. Rep. 874 (Ch. 1701); Squib v. Wyn, 1 P. Wms. 378, 381, 24 Eng. Rep. 432, 433 (Ch. 1717); Lord Carteret v. Paschal, 3 P. Wms. 197, 199, 24 Eng. Rep. 1028, 1029 (Ch. 1733); Row v. Dawson, 1 Ves. sen. 331, 332–333, 27 Eng. Rep. 1064, 1064–1065 (Ch. 1749). See also M. Smith, Law of Assignment: The Creation and Transfer of Choses in Action 131 (2007) (by the beginning of the 18th century, “it became settled that equity would recognize the validity of the assignment of both debts and of other things regarded by the common law as choses in action”). Courts of law, meanwhile, would permit the assignee with an equitable interest to bring suit, but nonetheless required the assignee to obtain a “power of attorney” from the holder of the legal title, namely, the assignor, and further required the assignee to bring suit in the name of that assignor. See, e.g., Cook, Alienability of Choses in Action, 29 Harv. L. Rev. 816, 822 (1916) (“[C]ommon law lawyers were able, through the device of the ‘power of attorney’ … to enable the assignee to obtain relief in common law proceedings by suing in the name of the assignor”); 29 R. Lord, Williston on Contracts §74.2, pp. 214–215 (4th ed. 2003). Compare, e.g., Barrow v. Gray, Cro. Eliz. 551, 78 Eng. Rep. 797 (Q. B. 1653), and South & Marsh’s Case, 3 Leo. 234, 74 Eng. Rep. 654 (Exch. 1686) (limiting the use of a power of attorney to cases in which the assignor owed the assignee a debt), with Holdsworth, supra, at 1021 (noting that English courts abandoned that limitation by the end of the 18th century). At the same time, courts of law would permit an assignor to sue even when he had transferred away his beneficial interest. And they permitted the assignor to sue in such circumstances precisely because the assignor retained legal title. See, e.g., Winch v. Keeley, 1 T. R. 619, 99 Eng. Rep. 1284 (K. B. 1787) (allowing the bankrupt assignor of a chose in action to sue a debtor for the benefit of the assignee because the assignor possessed legal, though not equitable, title). The upshot is that by the time Blackstone published volume II of his Commentaries in 1766, he could dismiss the “ancient common law” prohibition on assigning choses in action as a “nicety … now disregarded.” 2 Blackstone, supra, at *442. B Legal practice in the United States largely mirrored that in England. In the latter half of the 18th century and throughout the 19th century, American courts regularly “exercised their powers in favor of the assignee,” both at law and in equity. 9 Corbin on Contracts §47.3, at 137. See, e.g., McCullum v. Coxe, 1 Dall. 139 (Pa. 1785) (protecting assignee of a debt against a collusive settlement by the assignor); Dennie v. Chapman, 1 Root 113, 115 (Conn. Super. 1789) (assignee of a nonnegotiable note can bring suit “in the name of the original promisee or his administrator”); Andrews v. Beecker, 1 Johns. Cas. 411, 411–412, n. (N. Y. Sup. 1800) (“Courts of law … are, in justice, bound to protect the rights of the assignees, as much as a court of equity, though they may still require the action to be brought in the name of the assignor”); Riddle & Co. v. Mandeville, 5 Cranch 322 (1809) (assignees of promissory notes entitled to bring suit in equity). Indeed, §11 of the Judiciary Act of 1789 specifically authorized federal courts to take “cognizance of any suit to recover the contents of any promissory note or other chose in action in favour of an assignee” so long as federal jurisdiction would lie if the assignor himself had brought suit. 1 Stat. 79. Thus, in 1816, Justice Story, writing for a unanimous Court, summarized the practice in American courts as follows: “Courts of law, following in this respect the rules of equity, now take notice of assignments of choses in action, and exert themselves to afford them every support and protection.” Welch v. Mandeville, 1 Wheat. 233, 236. He added that courts of equity have “disregarded the rigid strictness of the common law, and protected the rights of the assignee of choses in action,” and noted that courts of common law “now consider an assignment of a chose in action as substantially valid, only preserving, in certain cases, the form of an action commenced in the name of the assignor.” Id., at 237, n. It bears noting, however, that at the time of the founding (and in some States well before then) the law did permit the assignment of legal title to at least some choses in action. In such cases, the assignee could bring suit on the assigned claim in his own name, in a court of law. See, e.g., 3 Va. Stat. at Large 378, Ch. XXXIV (W. Hening ed. 1823) (reprinted 1969) (Act of Oct. 1705) (permitting any person to “assign or transfer any bond or bill for debt over to any other person” and providing that “the asignee or assignees, his and their executors and administrators by virtue of such assignment shall and may have lawfull power to commence and prosecute any suit at law in his or their own name or names”); Act of May 28, 1715, Ch. XXVIII, Gen. Laws of Penn. 60 (J. Dunlop 2d ed. 1849) (permitting the assignment of “bonds, specialties, and notes” and authorizing “the person or persons, to whom the said bonds, specialties or notes, are … assigned” to “commence and prosecute his, her, or their actions at law”); Patent Act of 1793, ch. 11, §4, 1 Stat. 322 (“[I]t shall be lawful for any inventor, his executor or administrator to assign the title and interest in the said invention, at anytime, and the assignee … shall thereafter stand in the place of the original inventor, both as to right and responsibility”). C By the 19th century, courts began to consider the specific question presented here: whether an assignee of a legal claim for money could sue when that assignee had promised to give all litigation proceeds back to the assignor. During that century American law at the state level became less formalistic through the merger of law and equity, through statutes more generously permitting an assignor to pass legal title to an assignee, and through the adoption of rules that permitted any “real party in interest” to bring suit. See 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1541, pp. 320–321 (2d ed. 1990) (hereinafter Wright & Miller); see also 9 Corbin, supra, §47.3, at 137. The courts recognized that pre-existing law permitted an assignor to bring suit on a claim even though the assignor retained nothing more than naked legal title. Since the law increasingly permitted the transfer of legal title to an assignee, courts agreed that assignor and assignee should be treated alike in this respect. And rather than abolish the assignor’s well-established right to sue on the basis of naked legal title alone, many courts instead extended the same right to an assignee. See, e.g., Clark & Hutchins, The Real Party in Interest, 34 Yale L. J. 259, 264–265 (1925) (noting that the changes in the law permitted both the assignee with “naked legal title” and the assignee with an equitable interest in a claim to bring suit). Thus, during the 19th century, most state courts entertained suits virtually identical to the litigation before us: suits by individuals who were assignees for collection only, i.e., assignees who brought suit to collect money owed to their assignors but who promised to turn over to those assignors the proceeds secured through litigation. See, e.g., Webb & Hepp v. Morgan, McClung & Co., 14 Mo. 428, 431 (1851) (holding that the assignees of a promissory note for collection only can bring suit, even though they lack a beneficial interest in the note, because the assignment “creates in them such legal interest, that they thereby become the persons to sue”); Meeker v. Claghorn, 44 N. Y. 349, 350, 353 (1871) (allowing suit by the assignee of a cause of action even though the assignors “ ‘expected to receive the amount recovered in the action,’ ” because the assignee, as “legal holder of the claim,” was “the real party in interest”); Searing v. Berry, 58 Iowa 20, 23, 24, 11 N. W. 708, 709 (1882) (where legal title to a judgment was assigned “merely for the purpose of enabling plaintiff to enforce the collection” and the assignor in fact retained the beneficial interest, the plaintiff-assignee could “prosecute this suit to enforce the collection of the judgment”); Grant v. Heverin, 77 Cal. 263, 265, 19 P. 493 (1888) (holding that the assignee of a bond could bring suit, even though he lacked a beneficial interest in the bond, and adopting the rule that an assignee with legal title to an assigned claim can bring suit even where the assignee must “account to the assignor” for “a part of the proceeds” or “is to account for the whole proceeds” (internal quotation marks omitted)); McDaniel v. Pressler, 3 Wash. 636, 638, 637, 29 P. 209, 210 (1892) (holding that the assignee of promissory notes was the real party in interest, even though the assignment was “for the purpose of collection” and the assignee had “no interest other than that of the legal holder of said notes”); Wines v. Rio Grande W. R. Co., 9 Utah 228, 235, 33 P. 1042, 1044, 1045 (1893) (holding that an assignee could bring suit based on causes of action assigned to him “simply to enable him to sue” and who “would turn over to the assignors all that was recovered in the action, after deducting [the assignors’] proportion of the expenses of the suit”); Gomer v. Stockdale, 5 Colo. App. 489, 492, 39 P. 355, 357, 356 (1895) (permitting suit by a party who was assigned legal title to contractual rights, where the assignor retained the beneficial interest, noting that the doctrine that “prevails in Colorado” is that the assignee may bring suit in his own name “although there may be annexed to the transfer the condition that when the sum is collected the whole or some part of it must be paid over to the assignor”). See also Appendix, infra (collecting cases from numerous other States approving of suits by assignees for collection). Of course, the dissent rightly notes, some States during this period of time refused to recognize assignee-for-collection suits, or otherwise equivocated on the matter. See post, at 12–13. But so many States allowed these suits that by 1876, the distinguished procedure and equity scholar John Norton Pomeroy declared it “settled by a great preponderance of authority, although there is some conflict” that an assignee is “entitled to sue in his own name” whenever the assignment vests “legal title” in the assignee, and notwithstanding “any contemporaneous, collateral agreement by virtue of which he is to receive a part only of the proceeds … or even is to thus account [to the assignor] for the whole proceeds.” Remedies and Remedial Rights §132, p. 159 (internal quotation marks omitted and emphasis added). Other contemporary scholars reached the same basic conclusion. See, e.g., P. Bliss, A Treatise upon the Law of Pleading §51, p. 69 (2d ed. 1887) (stating that “[m]ost of the courts have held that where negotiable paper has been indorsed, or other choses in action have been assigned, it does not concern the defendant for what purpose the transfer has been made” and giving examples of States permitting assignees to bring suit even where they lacked a beneficial interest in the assigned claims (emphasis added)). See also Clark & Hutchins, supra, at 264 (“many, probably most, American jurisdictions” have held that “an assignee who has no beneficial interest, like an assignee for collection only, may prosecute an action in his own name” (emphasis added)). Even Michael Ferguson’s California Law Review Comment—which the dissent cites as support for its argument about “the divergent practice” among the courts, post, at 14—recognizes that “[a] majority of courts has held that an assignee for collection only is a real party in interest” entitled to bring suit. See Comment, The Real Party in Interest Rule Revitalized: Recognizing Defendant’s Interest in the Determination of Proper Parties Plaintiff, 55 Cal. L. Rev. 1452, 1475 (1967) (emphasis added); see also id., at 1476, n. 118 (noting that even “[t]he few courts that have wavered on the question have always ended up in the camp of the majority” (emphasis added)). During this period, a number of federal courts similarly indicated approval of suits by assignees for collection only. See, e.g., Bradford v. Jenks, 3 F. Cas. 1132, 1134 (No. 1,769) (CC Ill. 1840) (stating that the plaintiff, the receiver of a bank, could bring suit in federal court to collect on a note owed to that bank if he sued as the bank’s assignee, not its receiver, but ultimately holding that the plaintiff could not sue as an assignee because there was no diversity jurisdiction); Orr v. Lacy, 18 F. Cas. 834 (No. 10,589) (CC Mich. 1847) (affirming judgment for the plaintiff, the endorsee of a bill of exchange, on the ground that, as endorsee, he had the “legal right” to bring suit notwithstanding the fact that the proceeds of the litigation would be turned over to the endorser); Murdock v. The Emma Graham, 17 F. Cas. 1012, 1013 (No. 9,940) (DC SD Ohio 1878) (permitting the assignee of a claim for injury to a “float or barge” to bring suit when, “under the assignment,” the assignor’s creditors would benefit from the litigation); The Rupert City, 213 F. 263, 266–267 (WD Wash. 1914) (assignees of claims for collection only could bring suit in maritime law because “an assignment for collection … vest[s] such an interest in [an] assignee as to entitle him to sue”). Even this Court long ago indicated that assignees for collection only can properly bring suit. For example, in Waite v. Santa Cruz, 184 U. S. 302 (1902), the plaintiff sued to collect on a number of municipal bonds and coupons whose “legal title” had been vested in him but which were transferred to him “for collection only.” Id., at 324. The Court, in a unanimous decision, ultimately held that the federal courts could not hear his suit because the amount-in-controversy requirement of diversity jurisdiction would not have been satisfied if the bondholders and coupon holders had sued individually. See id., at 328–329. However, before reaching this holding, the Court expressly stated that the suit could properly be brought in federal court “if the only objection to the jurisdiction of the Circuit Court is that the plaintiff was invested with the legal title to the bonds and coupons simply for purposes of collection.” Id., at 325. Next, in Spiller v. Atchison, T. & S. F. R. Co., 253 U. S. 117 (1920), a large number of cattle shippers assigned to Spiller (the secretary of a Cattle Raiser’s Association) their individual reparation claims against railroads they said had charged them excessive rates. The Federal Court of Appeals held that Spiller could not bring suit because, in effect, he was an assignee for collection only and would be passing back to the cattle shippers any money he recovered from the litigation. In a unanimous decision, this Court reversed. The Court wrote that the cattle shippers’ “assignments were absolute in form” and “plainly” “vest[ed] the legal title in Spiller.” Id., at 134. The Court conceded that the assignments did not pass “beneficial or equitable title” to Spiller. Ibid. But the Court then said that “this was not necessary to support the right of the assignee to claim an award of reparation and enable him to recover it by action at law brought in his own name but for the benefit of the equitable owners of the claims.” Ibid. The Court thereby held that Spiller’s legal title alone was sufficient to allow him to bring suit in federal court on the aggregated claims of his assignors. Similarly, in Titus v. Wallick, 306 U. S. 282 (1939), this Court unanimously held that (under New York law) a plaintiff, an assignee for collection, had “dominion over the claim for purposes of suit” because the assignment purported to “ ‘sell, assign, transfer and set over’ the chose in action” to the assignee. Id., at 289. More importantly for present purposes, the Court said that the assignment’s “legal effect was not curtailed by the recital that the assignment was for purposes of suit and that its proceeds were to be turned over or accounted for to another.” Ibid. To be clear, we do not suggest that the Court’s decisions in Waite, Spiller, and Titus conclusively resolve the standing question before us. We cite them because they offer additional and powerful support for the proposition that suits by assignees for collection have long been seen as “amenable” to resolution by the judicial process. Steel Co., 523 U. S., at 102. Finally, we note that there is also considerable, more recent authority showing that an assignee for collection may properly sue on the assigned claim in federal court. See, e.g., 6A Wright & Miller §1545, at 346–348 (noting that an assignee with legal title is considered to be a real party in interest and that as a result “federal courts have held that an assignee for purposes of collection who holds legal title to the debt according to the governing substantive law is the real party in interest even though the assignee must account to the assignor for whatever is recovered in the action”); 6 Am. Jur. 2d, Assignments §184, pp. 262–263 (1999) (“An assignee for collection or security only is within the meaning of the real party in interest statutes and entitled to sue in his or her own name on an assigned account or chose in action, although he or she must account to the assignor for the proceeds of the action, even when the assignment is without consideration” (footnote omitted)). See also Rosenblum v. Dingfelder, 111 F. 2d 406, 407 (CA2 1940); Staggers v. Otto Gerdau Co., 359 F. 2d 292, 294 (CA2 1966); Dixie Portland Flour Mills, Inc. v. Dixie Feed & Seed Co., 382 F. 2d 830, 833 (CA6 1967); Klamath-Lake Pharmaceutical Assn. v. Klamath Medical Serv. Bur., 701 F. 2d 1276, 1282 (CA9 1983). D The history and precedents that we have summarized make clear that courts have long found ways to allow assignees to bring suit; that where assignment is at issue, courts—both before and after the founding— have always permitted the party with legal title alone to bring suit; and that there is a strong tradition specifically of suits by assignees for collection. We find this history and precedent “well nigh conclusive” in respect to the issue before us: Lawsuits by assignees, including assignees for collection only, are “cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 777–778 (2000) (internal quotation marks omitted). III Petitioners have not offered any convincing reason why we should depart from the historical tradition of suits by assignees, including assignees for collection. In any event, we find that the assignees before us satisfy the Article III standing requirements articulated in more modern decisions of this Court. Petitioners argue, for example, that the aggregators have not themselves suffered any injury in fact and that the assignments for collection “do not suffice to transfer the payphone operators’ injuries.” Brief for Petitioners 18. It is, of course, true that the aggregators did not originally suffer any injury caused by the long-distance carriers; the payphone operators did. But the payphone operators assigned their claims to the aggregators lock, stock, and barrel. See APPC Servs., 418 F. 3d, at 1243 (there is “no reason to believe the assignment is anything less than a complete transfer to the aggregator” of the injury and resulting claim); see also App. to Pet. for Cert. 114a (Agreement provides that each payphone operator “assigns, transfers and sets over” to the aggregator “all rights, title and interest” in dial-around compensation claims). And within the past decade we have expressly held that an assignee can sue based on his assignor’s injuries. In Vermont Agency, supra, we considered whether a qui tam relator possesses Article III standing to bring suit under the False Claims Act, which authorizes a private party to bring suit to remedy an injury (fraud) that the United States, not the private party, suffered. We held that such a relator does possess standing. And we said that is because the Act “effect[s] a partial assignment of the Government’s damages claim” and that assignment of the “United States’ injury in fact suffices to confer standing on [the relator].” Id., at 773, 774. Indeed, in Vermont Agency we stated quite unequivocally that “the assignee of a claim has standing to assert the injury in fact suffered by the assignor.” Id., at 773. Petitioners next argue that the aggregators cannot satisfy the redressability requirement of standing because, if successful in this litigation, the aggregators will simply remit the litigation proceeds to the payphone operators. But petitioners misconstrue the nature of our redressability inquiry. That inquiry focuses, as it should, on whether the injury that a plaintiff alleges is likely to be redressed through the litigation—not on what the plaintiff ultimately intends to do with the money he recovers. See, e.g., id., at 771 (to demonstrate redressability, the plaintiff must show a “substantial likelihood that the requested relief will remedy the alleged injury in fact” (internal quotation marks omitted and emphasis added)); Lujan, 504 U. S., at 561 (“[I]t must be likely . . . that the injury will be redressed by a favorable decision” (internal quotation marks omitted and emphasis added)). Here, a legal victory would unquestionably redress the injuries for which the aggregators bring suit. The aggregators’ injuries relate to the failure to receive the required dial-around compensation. And if the aggregators prevail in this litigation, the long-distance carriers would write a check to the aggregators for the amount of dial-around compensation owed. What does it matter what the aggregators do with the money afterward? The injuries would be redressed whether the aggregators remit the litigation proceeds to the payphone operators, donate them to charity, or use them to build new corporate headquarters. Moreover, the statements our prior cases made about the need to show redress of the injury are consistent with what numerous authorities have long held in the assignment context, namely, that an assignee for collection may properly bring suit to redress the injury originally suffered by his assignor. Petitioners might disagree with those authorities. But petitioners have not provided us with a good reason to reconsider them. The dissent argues that our redressability analysis “could not be more wrong,” because “[w]e have never approved federal-court jurisdiction over a claim where the entire relief requested will run to a party not before the court. Never.” Post, at 5 (opinion of Roberts, C. J.). But federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians ad litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; executors bring suit to benefit testator estates; and so forth. The dissent’s view of redressability, if taken seriously, would work a sea change in the law. Moreover, to the extent that trustees, guardians ad litem, and the like have some sort of “obligation” to the parties whose interests they vindicate through litigation, see post, at 7–8, n. 2, the same is true in respect to the aggregators here. The aggregators have a contractual obligation to litigate “in the [payphone operator’s] interest.” App. to Pet. for Cert. 115a. (And if the aggregators somehow violate that contractual obligation, say, by agreeing to settle the claims against the long-distance providers in exchange for a kickback from those providers, each payphone operator would be able to bring suit for breach of contract.) Petitioners also make a further conceptual argument. They point to cases in which this Court has said that a party must possess a “personal stake” in a case in order to have standing under Article III. See Baker v. Carr, 369 U. S. 186, 204 (1962). And petitioners add that, because the aggregators will not actually benefit from a victory in this case, they lack a “personal stake” in the litigation’s outcome. The problem with this argument is that the general “personal stake” requirement and the more specific standing requirements (injury in fact, redressability, and causation) are flip sides of the same coin. They are simply different descriptions of the same judicial effort to assure, in every case or controversy, “that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” Ibid. See also Massachusetts v. EPA, 549 U. S. ___, ___ (2007) (slip op., at 13) (“At bottom, the gist of the question of standing is whether petitioners have such a personal stake in the outcome of the controversy as to assure that concrete adverseness” (internal quotation marks omitted)). Courts, during the past two centuries, appear to have found that “concrete adverseness” where an assignee for collection brings a lawsuit. And petitioners have provided us with no grounds for reaching a contrary conclusion. Petitioners make a purely functional argument, as well. Read as a whole, they say, the assignments in this litigation constitute nothing more than a contract for legal services. We think this argument is overstated. There is an important distinction between simply hiring a lawyer and assigning a claim to a lawyer (on the lawyer’s promise to remit litigation proceeds). The latter confers a property right (which creditors might attach); the former does not. Finally, we note, as a practical matter, that it would be particularly unwise for us to abandon history and precedent in resolving the question before us. Were we to agree with petitioners that the aggregators lack standing, our holding could easily be overcome. For example, the Agreement could be rewritten to give the aggregator a tiny portion of the assigned claim itself, perhaps only a dollar or two. Or the payphone operators might assign all of their claims to a “Dial-Around Compensation Trust” and then pay a trustee (perhaps the aggregator) to bring suit on behalf of the trust. Accordingly, the far more sensible course is to abide by the history and tradition of assignee suits and find that the aggregators possess Article III standing. IV Petitioners argue that, even if the aggregators have standing under Article III, we should nonetheless deny them standing for a number of prudential reasons. See Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 11 (2004) (prudential standing doctrine “embodies judicially self-imposed limits on the exercise of federal jurisdiction” (internal quotation marks omitted)). First, petitioners invoke certain prudential limitations that we have imposed in prior cases where a plaintiff has sought to assert the legal claims of third parties. See, e.g., Warth v. Seldin, 422 U. S. 490, 501 (1975) (expressing a “reluctance to exert judicial power when the plaintiff’s claim to relief rests on the legal rights of third parties”); Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 263 (1977) (“In the ordinary case, a party is denied standing to assert the rights of third persons”); Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955 (1984) (a plaintiff ordinarily “ ‘cannot rest his claim to relief on the legal rights or interests of third parties’ ”). These third-party cases, however, are not on point. They concern plaintiffs who seek to assert not their own legal rights, but the legal rights of others. See, e.g., Warth, supra, at 499 (plaintiff “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties” (emphasis added)); see also Kowalski v. Tesmer, 543 U. S. 125 (2004) (lawyers lack standing to assert the constitutional rights of defendants deprived of appointed counsel on appeal); Powers v. Ohio, 499 U. S. 400 (1991) (permitting a criminal defendant to assert rights of juror discriminated against because of race); Craig v. Boren, 429 U. S. 190 (1976) (permitting beer vendors to assert rights of prospective male customers aged 18 to 21 who, unlike females of the same ages, were barred from purchasing beer). Here, the aggregators are suing based on injuries originally suffered by third parties. But the payphone operators assigned to the aggregators all “rights, title and interest” in claims based on those injuries. Thus, in the litigation before us, the aggregators assert what are, due to that transfer, legal rights of their own. The aggregators, in other words, are asserting first-party, not third-party, legal rights. Moreover, we add that none of the third-party cases cited by petitioners involve assignments or purport to overturn the longstanding doctrine permitting an assignee to bring suit on an assigned claim. Second, petitioners suggest that the litigation here simply represents an effort by the aggregators and the payphone operators to circumvent Federal Rule of Civil Procedure 23’s class-action requirements. But we do not understand how “circumvention” of Rule 23 could constitute a basis for denying standing here. For one thing, class actions are permissive, not mandatory. More importantly, class actions constitute but one of several methods for bringing about aggregation of claims, i.e., they are but one of several methods by which multiple similarly situated parties get similar claims resolved at one time and in one federal forum. See Rule 20(a) (permitting joinder of multiple plaintiffs); Rule 42 (permitting consolidation of related cases filed in the same district court); 28 U. S. C. §1407 (authorizing consolidation of pretrial proceedings for related cases filed in multiple federal districts); §1404 (making it possible for related cases pending in different federal courts to be transferred and consolidated in one district court); D. Herr, Annotated Manual for Complex Litigation §20.12, p. 279 (4th ed. 2007) (noting that “[r]elated cases pending in different federal courts may be consolidated in a single district” by transfer under 28 U. S. C. §1404(a)); J. Tidmarsh & R. Trangsrud, Complex Litigation and the Adversary System 473–524 (1998) (section on “Transfer Devices that Aggregate Cases in a Single Venue”). Because the federal system permits aggregation by other means, we do not think that the payphone operators should be denied standing simply because they chose one aggregation method over another. Petitioners also point to various practical problems that could arise because the aggregators, rather than the payphone operators, are suing. In particular, they say that the payphone operators may not comply with discovery requests served on them, that the payphone operators may not honor judgments reached in this case, and that petitioners may not be able to bring, in this litigation, counterclaims against the payphone operators. See Brief for Petitioners 46–48. Even assuming all that is so, courts have long permitted assignee lawsuits notwithstanding the fact that such problems could arise. Regardless, courts are not helpless in the face of such problems. For example, a district court can, if appropriate, compel a party to collect and to produce whatever discovery-related information is necessary. See Fed. Rules Civ. Proc. 26(b)(1), 30–31, 33–36. That court might grant a motion to join the payphone operators to the case as “required” parties. See Rule 19. Or the court might allow the carriers to file a third-party complaint against the payphone operators. See Rule 14(a). And the carriers could always ask the Federal Communications Commission to find administrative solutions to any remaining practical problems. Cf. 47 U. S. C. §276(b)(1)(A) (authorizing the FCC to “prescribe regulations” that “ensure that all payphone service providers are fairly compensated for each and every completed [dial-around] call”). We do not say that the litigation before us calls for the use of any such procedural device. We mention them only to explain the lack of any obvious need for the remedy that the carriers here propose, namely, denial of standing. Finally, we note that in this litigation, there has been no allegation that the assignments were made in bad faith. We note, as well, that the assignments were made for ordinary business purposes. Were this not so, additional prudential questions might perhaps arise. But these questions are not before us, and we need not consider them here. V The judgment of the Court of Appeals is affirmed. It is so ordered. Appendix Examples of cases in which state courts entertained or otherwise indicated approval of suits by assignees for collection only. References to “Pomeroy’s rule” are references to the statement of law set forth in J. Pomeroy, Remedies and Remedial Rights §132, p. 159 (1876). 1. Webb & Hepp v. Morgan, McClung & Co., 14 Mo. 428, 431 (1851) (holding that the assignees of a promissory note for collection only can bring suit, even though they lack a beneficial interest in the note, because the assignment “creates in them such legal interest, that they thereby become the persons to sue”); 2. Castner v. Austin Sumner & Co., 2 Minn. 44, 47–48 (1858) (holding that the assignees of promissory notes were proper plaintiffs, regardless of the arrangement they and their assignor had made in respect to the proceeds of the litigation, because the defendants “can only raise the objection of a defect of parties to the suit, when it appears that some other person or party than the Plaintiffs have such a legal interest in the note that a recovery by the Plaintiffs would not preclude it from being enforced, and they be thereby subjected to the risk of another suit for the same subject-matter” (emphasis added)); 3. Cottle v. Cole, 20 Iowa 481, 485–486 (1866) (holding that the assignee could sue, notwithstanding the possibility that the assignor was the party “beneficially interested in the action,” because “[t]he course of decision in this State establishes this rule, viz.: that the party holding the legal title of a note or instrument may sue on it though he be an agent or trustee, and liable to account to another for the proceeds of the recovery”); 4. Alle n v. Brown, 44 N. Y. 228, 231, 234 (1870) (opinion of Hunt, Comm’r) (holding that the assignee with legal title to a cause of action was “legally the real party in interest” “[e]ven if he be liable to another as a debtor upon his contract for the collection he may thus make”); 5. Meeker v. Claghorn, 44 N. Y. 349, 350, 353 (1871) (opinion of Earl, Comm’r) (allowing suit by the assignee of a cause of action even though the assignors “ ‘expected to receive the amount recovered in the action,’ ” because the assignee, as “legal holder of the claim,” was “the real party in interest”); 6. Hays v. Hathorn, 74 N. Y. 486, 490 (1878) (holding that so long as an assignee has legal title to the assigned commercial paper, the assignee may bring suit even if the assignment was “merely for the purpose of collection” and he acts merely as “equitable trustee” for the assignor, i.e., the assignor maintains the beneficial interest in the paper); 7. Searing v. Berry, 58 Iowa 20, 23, 24, 11 N. W. 708, 709 (1882) (where legal title to a judgment was assigned “merely for the purpose of enabling plaintiff to enforce the collection” and the assignor in fact retained the beneficial interest, the plaintiff-assignee could “prosecute this suit to enforce the collection of the judgment”); 8. Haysler v. Dawson, 28 Mo. App. 531, 536 (1888) (holding, in light of the “recognized practice in this state,” that the assignee could bring suit to recover on certain accounts even where the assignment of the accounts had been made “with the agreement that they were to [be] [he]ld solely for the purpose of [the litigation],” i.e., the assignor maintained the beneficial interest in the accounts (emphasis added)); 9. Grant v. Heverin, 77 Cal. 263, 265, 264, 19 P. 493 (1888) (holding that the assignee of a bond could bring suit, even though he lacked a beneficial interest in the bond, and endorsing Pomeroy’s rule as “a clear and correct explication of the law”); 10. Young v. Hudson, 99 Mo. 102, 106, 12 S. W. 632, 633 (1889) (holding that an assignee could sue to collect on an account for merchandise sold, even though the money would be remitted to the assignor, because “[a]n assignee of a chose in action arising out of contract, may sue upon it in his own name, though the title was passed to him only for the purpose of collection”); 11. Jackson v. Hamm, 14 Colo. 58, 61, 23 P. 88, 88–89 (1890) (holding that the assignee of a judgment was “the real party in interest” and was “entitled to sue in his own name,” even though the beneficial interest in the judgment was held by someone else); 12. Saulsbury v. Corwin, 40 Mo. App. 373, 376 (1890) (permitting suit by an assignee of a note who “had no interest in the note” on the theory that “[o]ne who holds negotiable paper for collection merely may sue on it in his own name”); 13. Anderson v. Reardon, 46 Minn. 185, 186, 48 N. W. 777 (1891) (where plaintiff had been assigned a claim on the “understanding” that he would remit the proceeds to the assignor less the “amount due him for services already rendered, and to be thereafter rendered” to the assignor, the plaintiff could bring suit, even though he had “already collected on the demand enough to pay his own claim for services up to that time,” because “[i]t is no concern of the defendant whether the assignee of a claim receives the money on it in his own right or as trustee of the assignor”); 14. McDaniel v. Pressler, 3 Wash. 636, 638, 637, 29 P. 209, 210 (1892) (holding that the assignee of promissory notes was the real party in interest, even the assignment was “for the purpose of collection” and the assignee had “no interest other than that of the legal holder of said notes”); 15. Minnesota Thresher Mfg. Co. v. Heipler, 49 Minn. 395, 396, 52 N. W. 33 (1892) (upholding the plaintiff-assignee’s judgment where that assignee “held the legal title to the demand” and notwithstanding the fact that “there was an agreement between the [assignor] and the plaintiff that the latter took the [assignment] only for collection”); 16. Wines v. Rio Grande W. R. Co., 9 Utah 228, 235, 33 P. 1042, 1044, 1045 (1893) (adopting Pomeroy’s rule and holding that an assignee could bring suit based on causes of action assigned to him “simply to enable him to sue” and who “would turn over to the assignors all that was recovered in the action, after deducting their proportion of the expenses of the suit”); 17. Greig v. Riordan, 99 Cal. 316, 323, 33 P. 913, 916 (1893) (holding that the plaintiff-assignee could sue on claims assigned by multiple parties “for collection,” stating that “[i]t is [a] matter of common knowledge that for the purpose of saving expense commercial associations and others resort to this method” and repeating the rule that “[i]n such cases the assignee becomes the legal holder of a chose in action, which is sufficient to entitle him to recover”); 18. Gomer v. Stockdale, 5 Colo. App. 489, 492, 39 P. 355, 357, 356 (1895) (permitting suit by a party who was assigned legal title to contractual rights, where the assignor retained the beneficial interest, noting that the doctrine that “prevails in Colorado” is that the assignee may bring suit in his own name “although there may be annexed to the transfer the condition that when the sum is collected the whole or some part of it must be paid over to the assignor”); 19. Cox’s Executors v. Crockett & Co., 92 Va. 50, 58, 57, 22 S. E. 840, 843 (1895) (finding that suit by assignor following an adverse judgment against assignee was barred by res judicata but endorsing Pomeroy’s rule that an assignee could bring suit as the “real party in interest” even where the assignee must “account to the assignor, or other person, for the residue, or even is to thus account for the whole proceeds” of the litigation); 20. Sroufe v. Soto Bros. & Co., 5 Ariz. 10, 11, 12, 43 P. 221 (1896) (holding that state law permits “a party to maintain an action on an account which has been assigned to him for the purpose of collection, only” because such parties are “holders of the legal title of said accounts”); 21. Ingham v. Weed, 5 Cal. Unreported Cases, 645, 649, 48 P. 318, 320 (1897) (holding that the assignees of promissory notes could bring suit where the assignors retained part of the beneficial interest in the outcome, and expressly noting that the assignees could bring suit even if the entire interest in the notes had been assigned to them as “agents for collection” because, citing Pomeroy and prior California cases “to the same effect,” an assignee can bring suit where he has “legal title” to a claim, notwithstanding “any contemporaneous collateral agreement” by which he is to account to the assignor for part or even “the whole proceeds”); 22. Citizens Bank v. Corkings 9 S. D. 614, 615, 616, 70 N. W. 1059, 1060, rev’d on other grounds, 10 S. D. 98, 72 N. W. 99 (1897) (holding that where the assignee “took a formal written assignment absolute in terms, but with the understanding that he would take the claim, collect what he could, and turn over to the company the proceeds thereof less the expenses of collection,” the assignee could sue because the “rule is that a written or verbal assignment, absolute in terms, and vesting in the assignee the apparent legal title to a chose in action, is unaffected by a collateral contemporaneous agreement respecting the proceeds”); 23. Chase v. Dodge, 111 Wis. 70, 73, 86 N. W. 548, 549 (1901) (adopting New York’s rule that an assignee is the real party in interest so long as he “holds the legal title” to an assigned claim, regardless of the existence of “any private or implied understanding” between the assignor and assignee concerning the beneficial interest (internal quotation marks omitted)); 24. Roth v. Continental Wire Co., 94 Mo. App. 236, 262–264, 68 S. W. 594, 602 (1902) (noting that Missouri has adopted Pomeroy’s rule and holding that the trial court did not err in excluding evidence that plaintiff was assigned the cause of action for collection only); 25. Manley v. Park, 68 Kan. 400, 402, 75 P. 557, 558 (1904) (overruling prior state cases and holding that where the assignment of a bond or note vests legal title in the assignee, the assignee can bring suit even where the assignee promises to remit to the assignor “a part or all of the proceeds” (emphasis added)); 26. Eagle Mining & Improvement Co. v. Lund, 14 N. M. 417, 420–422, 94 P. 949, 950 (1908) (adopting the rule that the assignee of a note can bring suit even where the assignor, not the assignee, maintains the beneficial interest in the note); 27. Harrison v. Pearcy & Coleman, 174 Ky. 485, 488, 487, 192 S. W. 513, 514–515 (1917) (holding that the assignee could bring suit to collect on a note, even though he was “an assignee for the purpose of collection only” and had “no financial interest in the note”). 28. James v. Lederer-Strauss & Co., 32 Wyo. 377, 233 P. 137, 139 (1925) (“By the clear weight of authority a person to whom a chose in action has been assigned for the purpose of collection may maintain an action thereon … and as such is authorized by statute in this state to maintain an action in his own name”). |
552.US.379 | In respondent Mendelsohn’s age discrimination case, petitioner Sprint moved in limine to exclude the testimony of former employees alleging discrimination by supervisors who had no role in the employment decision Mendelsohn challenged, on the ground that such evidence was irrelevant to the case’s central issue, see Fed. Rules Evid. 401, 402, and unduly prejudicial, see Rule 403. Granting the motion, the District Court excluded evidence of discrimination against those not “similarly situated” to Mendelsohn. The Tenth Circuit treated that order as applying a per se rule that evidence from employees of other supervisors is irrelevant in age discrimination cases, concluded that the District Court abused its discretion by relying on the Circuit’s Aramburu case, determined that the evidence was relevant and not unduly prejudicial, and remanded for a new trial. Held: The Tenth Circuit erred in concluding that the District Court applied a per se rule and thus improperly engaged in its own analysis of the relevant factors under Rules 401 and 403, rather than remanding the case for the District Court to clarify its ruling. Pp. 4–9. (a) In deference to a district court’s familiarity with a case’s details and its greater experience in evidentiary matters, courts of appeals uphold Rule 403 rulings unless the district court has abused its discretion. Here, the Tenth Circuit did not accord due deference to the District Court. The District Court’s two-sentence discussion of the evidence neither cited nor gave any other indication that the decision relied on Aramburu or suggested that the court applied a per se rule of inadmissibility. Neither party’s submissions to the District Court suggested that Aramburu was controlling. That court’s use of the same “similarly situated” phrase that Aramburu used cannot be presumed to indicate adoption of Aramburu’s analysis, for the District Court was addressing a very different kind of evidence here. And the nature of Sprint’s argument was not that the particular evidence was never admissible, but only that such evidence lacked sufficient probative value in this case to be relevant or outweigh prejudice and delay. Pp. 4–7. (b) Because of the Tenth Circuit’s error, it went on to assess the relevance of the evidence itself and conduct its own balancing of probative value and potential prejudicial effect when it should have allowed the District Court to make these determinations in the first instance, explicitly and on the record. Pp. 7–8. 466 F. 3d 1223, vacated and remanded. Thomas, J., delivered the opinion for a unanimous Court. | In this age discrimination case, the District Court excluded testimony by nonparties alleging discrimination at the hands of supervisors of the defendant company who played no role in the adverse employment decision challenged by the plaintiff. The Court of Appeals, having concluded that the District Court improperly applied a per se rule excluding the evidence, engaged in its own analysis of the relevant factors under Federal Rules of Evidence 401 and 403, and remanded with instructions to admit the challenged testimony. We granted certiorari on the question whether the Federal Rules of Evidence required admission of the testimony. We conclude that such evidence is neither per se admissible nor per se inadmissible. Because it is not entirely clear whether the District Court applied a per se rule, we vacate the judgment of the Court of Appeals and remand for the District Court to conduct the relevant inquiry under the appropriate standard. I Respondent Ellen Mendelsohn was employed in the Business Development Strategy Group of petitioner Sprint/United Management Company (Sprint) from 1989 until 2002, when Sprint terminated her as a part of an ongoing company-wide reduction in force. She sued Sprint under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq., alleging disparate treatment based on her age. In support of her claim, Mendelsohn sought to introduce testimony by five other former Sprint employees who claimed that their supervisors had discriminated against them because of age. Three of the witnesses alleged that they heard one or more Sprint supervisors or managers make remarks denigrating older workers. One claimed that Sprint’s intern program was a mechanism for age discrimination and that she had seen a spreadsheet suggesting that a supervisor considered age in making layoff decisions. Another witness was to testify that he had been given an unwarranted negative evaluation and “banned” from working at Sprint because of his age, and that he had witnessed another employee being harassed because of her age. App. 17a. The final witness alleged that Sprint had required him to get permission before hiring anyone over age 40, that after his termination he had been replaced by a younger employee, and that Sprint had rejected his subsequent employment applications. None of the five witnesses worked in the Business Development Strategy Group with Mendelsohn, nor had any of them worked under the supervisors in her chain of command, which included James Fee, Mendelsohn’s direct supervisor; Paul Reddick, Fee’s direct manager and the decisionmaker in Mendelsohn’s termination; and Bill Blessing, Reddick’s supervisor and head of the Business Development Strategy Group. Neither did any of the proffered witnesses report hearing discriminatory remarks by Fee, Reddick, or Blessing. Sprint moved in limine to exclude the testimony, arguing that it was irrelevant to the central issue in the case: whether Reddick terminated Mendelsohn because of her age. See Fed. Rules Evid. 401, 402. Sprint claimed that the testimony would be relevant only if it came from employees who were “similarly situated” to Mendelsohn in that they had the same supervisors. App. 156a. Sprint also argued that, under Rule 403, the probative value of the evidence would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, and undue delay. In a minute order, the District Court granted the motion, excluding, in relevant part, evidence of “discrimination against employees not similarly situated to plaintiff.” App. to Pet. for Cert. 24a. In clarifying that Mendelsohn could only “offer evidence of discrimination against Sprint employees who are similarly situated to her,” the court defined “ ‘ [s]imilarly situated employees,’ for the purpose of this ruling, [as] requir[ing] proof that (1) Paul Ruddick [sic] was the decision-maker in any adverse employment action; and (2) temporal proximity.” Ibid. Beyond that, the District Court provided no explanation of the basis for its ruling. As the trial proceeded, the judge orally clarified that the minute order was meant to exclude only testimony “that Sprint treated other people unfairly on the basis of age,” and would not bar testimony going to the “totally different” question “whether the [reduction in force], which is [Sprint’s] stated nondiscriminatory reason, is a pretext for age discrimination.” App. 295a–296a. The Court of Appeals for the Tenth Circuit treated the minute order as the application of a per se rule that evidence from employees with other supervisors is irrelevant to proving discrimination in an ADEA case. Specifically, it concluded that the District Court abused its discretion by relying on Aramburu v. Boeing Co., 112 F. 3d 1398 (CA10 1997). 466 F. 3d 1223, 1227–1228 (CA10 2006). Aramburu held that “[s]imilarly situated employees,” for the purpose of showing disparate treatment in employee discipline, “are those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline.” 112 F. 3d, at 1404 (internal quotation marks omitted). The Court of Appeals viewed that case as inapposite because it addressed discriminatory discipline, not a company-wide policy of discrimination. The Court of Appeals then determined that the evidence was relevant and not unduly prejudicial, and reversed and remanded for a new trial. We granted certiorari, 551 U. S. ___ (2007), to determine whether, in an employment discrimination action, the Federal Rules of Evidence require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff. II The parties focus their dispute on whether the Court of Appeals correctly held that the evidence was relevant and not unduly prejudicial under Rules 401 and 403. We conclude, however, that the Court of Appeals should not have engaged in that inquiry. Rather, as explained below, we hold that the Court of Appeals erred in concluding that the District Court applied a per se rule. Given the circumstances of this case and the unclear basis of the District Court’s decision, the Court of Appeals should have remanded the case to the District Court for clarification. A In deference to a district court’s familiarity with the details of the case and its greater experience in evidentiary matters, courts of appeals afford broad discretion to a district court’s evidentiary rulings. This Court has acknowledged: “A district court is accorded a wide discretion in determining the admissibility of evidence under the Federal Rules. Assessing the probative value of [the proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403 … .” United States v. Abel, 469 U. S. 45, 54 (1984). This is particularly true with respect to Rule 403 since it requires an “on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.” 1 S. Childress & M. Davis, Federal Standards of Review §4.02, p. 4–16 (3d ed. 1999). Under this deferential standard, courts of appeals uphold Rule 403 rulings unless the district court has abused its discretion. See Old Chief v. United States, 519 U. S. 172, 183, n. 7 (1997). Here, however, the Court of Appeals did not accord the District Court the deference we have described as the “hallmark of abuse-of-discretion review.” General Elec. Co. v. Joiner, 522 U. S. 136, 143 (1997). Instead, it reasoned that the District Court had “erroneous[ly] conclu[ded] that Aramburu controlled the fate of the evidence in this case.” 466 F. 3d, at 1230, n. 4. To be sure, Sprint in its motion in limine argued, with a citation to Aramburu’s categorical bar, that “[e]mployees may be similarly situated only if they had the same supervisor,” App. 163a, and the District Court’s minute order mirrors that blanket language. But the District Court’s discussion of the evidence neither cited Aramburu nor gave any other indication that its decision relied on that case. The minute order included only two sentences discussing the admissibility of the evidence: “Plaintiff may offer evidence of discrimination against Sprint employees who are similarly situated to her. ‘Similarly situated employees,’ for the purpose of this ruling, requires proof that (1) Paul Ruddick [sic] was the decision-maker in any adverse employment action; and (2) temporal proximity.” App. to Pet. for Cert. 24a. Contrary to the Court of Appeals’ conclusion, these sentences include no analysis suggesting that the District Court applied a per se rule excluding this type of evidence. Mendelsohn argued on appeal[Footnote 1] that the District Court must have viewed Aramburu as controlling because Sprint cited the case in support of its in limine motion. But neither party’s submissions to the District Court suggested that Aramburu was controlling. Sprint’s memorandum in support of its motion mentioned the case only in a string citation, and not for the proposition that only “similarly situated” witnesses’ testimony would be admissible.[Footnote 2] App. 163a. Mendelsohn did not cite the case in her memorandum in opposition, see id., at 208a, and Sprint did not address it in its reply brief, see id., at 221a. Mendelsohn further argued that the District Court’s use of the phrase “similarly situated,” also used in Aramburu, evidenced its reliance on that case. Although the District Court used the same phrase, we decline to read the District Court’s decision as relying on a case that was not controlling. Aramburu defined the phrase “similarly situated” in the entirely different context of a plaintiff’s allegation that nonminority employees were treated more favorably than minority employees. 112 F. 3d, at 1403–1406. Absent reason to do so, we should not assume the District Court adopted that “similarly situated” analysis when it addressed a very different kind of evidence. An appellate court should not presume that a district court intended an incorrect legal result when the order is equally susceptible of a correct reading, particularly when the applicable standard of review is deferential. Mendelsohn additionally argued that the District Court must have meant to apply such a rule because that was the nature of the argument in Sprint’s in limine motion. But the in limine motion did not suggest that the evidence is never admissible; it simply argued that such evidence lacked sufficient probative value “in this case” to be relevant or outweigh prejudice and delay. App. 156a. When a district court’s language is ambiguous, as it was here, it is improper for the court of appeals to presume that the lower court reached an incorrect legal conclusion. A remand directing the district court to clarify its order is generally permissible and would have been the better approach in this case. B In the Court of Appeals’ view, the District Court excluded the evidence as per se irrelevant, and so had no occasion to reach the question whether such evidence, if relevant, should be excluded under Rule 403. The Court of Appeals, upon concluding that such evidence was not per se irrelevant, decided that it was relevant in the circumstances of this case and undertook its own balancing under Rule 403. But questions of relevance and prejudice are for the District Court to determine in the first instance. Abel, supra, at 54 (“Assessing the probative value of [evidence], and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403 …”). Rather than assess the relevance of the evidence itself and conduct its own balancing of its probative value and potential prejudicial effect, the Court of Appeals should have allowed the District Court to make these determinations in the first instance, explicitly and on the record.[Footnote 3] See Pullman-Standard v. Swint, 456 U. S. 273, 291 (1982) (When a district court “fail[s] to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings to permit the trial court to make the missing findings”). With respect to evidentiary questions in general and Rule 403 in particular, a district court virtually always is in the better position to assess the admissibility of the evidence in the context of the particular case before it. We note that, had the District Court applied a per se rule excluding the evidence, the Court of Appeals would have been correct to conclude that it had abused its discretion. Relevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules. See Advisory Committee’s Notes on Fed. Rule Evid. 401, 28 U. S. C. App., p. 864 (“Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case”). But, as we have discussed, there is no basis in the record for concluding that the District Court applied a blanket rule. III The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry. Because Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible, and because the inquiry required by those Rules is within the province of the District Court in the first instance, we vacate the judgment of the Court of Appeals and remand the case with instructions to have the District Court clarify the basis for its evidentiary ruling under the applicable Rules. It is so ordered. Footnote 1 Although, as noted above, the parties do not address in their filings before this Court the grounds on which we base our decision, we shall consider the relevant arguments they made before the Court of Appeals. Footnote 2 Even if Sprint had argued that Aramburu requires a per se rule excluding such evidence, it would be inappropriate for the reviewing court to assume, absent indication in the District Court’s opinion, that the lower court adopted a party’s incorrect argument. Cf. Lawrence v. Chater, 516 U. S. 163, 183 (1996) (Scalia, J., dissenting) (“[W]e should not assume that a court of appeals has adopted a legal position only because [a party] supported it”). Footnote 3 The only exception to this rule is when “the record permits only one resolution of the factual issue.” Pullman-Standard v. Swint, 456 U. S. 273, 292 (1982). The evidence here, however, is not of that dispositive character. |
552.US.148 | Alleging losses after purchasing Charter Communications, Inc., common stock, petitioner filed suit against respondents and others under §10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission (SEC) Rule 10b–5. Acting as Charter’s customers and suppliers, respondents had agreed to arrangements that allowed Charter to mislead its auditor and issue a misleading financial statement affecting its stock price, but they had no role in preparing or disseminating the financial statement. Affirming the District Court’s dismissal of respondents, the Eighth Circuit ruled that the allegations did not show that respondents made misstatements relied upon by the public or violated a duty to disclose. The court observed that, at most, respondents had aided and abetted Charter’s misstatement, and noted that the private cause of action this Court has found implied in §10(b) and Rule 10b–5, Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6, 13, n. 9, does not extend to aiding and abetting a §10(b) violation, see Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 191. Held: The §10(b) private right of action does not reach respondents because Charter investors did not rely upon respondents’ statements or representations. Pp. 5–16. (a) Although Central Bank prompted calls for creation of an express cause of action for aiding and abetting, Congress did not follow this course. Instead, in §104 of the Private Securities Litigation Reform Act of 1995 (PSLRA), it directed the SEC to prosecute aiders and abettors. Thus, the §10(b) private right of action does not extend to aiders and abettors. Because the conduct of a secondary actor must therefore satisfy each of the elements or preconditions for §10(b) liability, the plaintiff must prove, as here relevant, reliance upon a material misrepresentation or omission by the defendant. Pp. 5–7. (b) The Court has found a rebuttable presumption of reliance in two circumstances. First, if there is an omission of a material fact by one with a duty to disclose, the investor to whom the duty was owed need not provide specific proof of reliance. Affiliated Ute Citizens of Utah v. United States, 406 U. S. 128, 153–154. Second, under the fraud-on-the-market doctrine, reliance is presumed when the statements at issue become public. Neither presumption applies here: Respondents had no duty to disclose; and their deceptive acts were not communicated to the investing public during the relevant times. Petitioner, as a result, cannot show reliance upon any of respondents’ actions except in an indirect chain that is too remote for liability. P. 8. (c) Petitioner’s reference to so-called “scheme liability” does not, absent a public statement, answer the objection that petitioner did not in fact rely upon respondents’ deceptive conduct. Were the Court to adopt petitioner’s concept of reliance—i.e., that in an efficient market investors rely not only upon the public statements relating to a security but also upon the transactions those statements reflect—the implied cause of action would reach the whole marketplace in which the issuing company does business. There is no authority for this rule. Reliance is tied to causation, leading to the inquiry whether respondents’ deceptive acts were immediate or remote to the injury. Those acts, which were not disclosed to the investing public, are too remote to satisfy the reliance requirement. It was Charter, not respondents, that misled its auditor and filed fraudulent financial statements; nothing respondents did made it necessary or inevitable for Charter to record the transactions as it did. The Court’s precedents counsel against petitioner’s attempt to extend the §10(b) private cause of action beyond the securities markets into the realm of ordinary business operations, which are governed, for the most part, by state law. See, e.g., Marine Bank v. Weaver, 455 U. S. 551, 556. The argument that there could be a reliance finding if this were a common-law fraud action is answered by the fact that §10(b) does not incorporate common-law fraud into federal law, see, e.g., SEC v. Zandford, 535 U. S. 813, 820, and should not be interpreted to provide a private cause of action against the entire marketplace in which the issuing company operates, cf. Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 733, n. 5. Petitioner’s theory, moreover, would put an unsupportable interpretation on Congress’ specific response to Central Bank in PSLRA §104 by, in substance, reviving the implied cause of action against most aiders and abettors and thereby undermining Congress’ determination that this class of defendants should be pursued only by the SEC. The practical consequences of such an expansion provide a further reason to reject petitioner’s approach. The extensive discovery and the potential for uncertainty and disruption in a lawsuit could allow plaintiffs with weak claims to extort settlements from innocent companies. See, e.g., Blue Chip, supra, at 740–741. It would also expose to such risks a new class of defendants—overseas firms with no other exposure to U. S. securities laws—thereby deterring them from doing business here, raising the cost of being a publicly traded company under U. S. law, and shifting securities offerings away from domestic capital markets. Pp. 8–13. (d) Upon full consideration, the history of the §10(b) private right of action and the careful approach the Court has taken before proceeding without congressional direction provide further reasons to find no liability here. The §10(b) private cause of action is a judicial construct that Congress did not direct in the text of the relevant statutes. See, e.g., Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350, 358–359. Separation of powers provides good reason for the now-settled view that an implied cause of action exists only if the underlying statute can be interpreted to disclose the intent to create one, see, e.g., Alexander v. Sandoval, 532 U. S. 275, 286–287. The decision to extend the cause of action is thus for the Congress, not for this Court. This restraint is appropriate in light of the PSLRA, in which Congress ratified the implied right of action after the Court moved away from a broad willingness to imply such private rights, see, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 381–382, and n. 66. It is appropriate for the Court to assume that when PSLRA §104 was enacted, Congress accepted the §10(b) private right as then defined but chose to extend it no further. See, e.g., Alexander, supra, at 286–287. Pp. 13–15. 443 F. 3d 987, affirmed 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, in which Souter and Ginsburg, JJ., joined. Breyer, J., took no part in the consideration or decision of the case. | We consider the reach of the private right of action the Court has found implied in §10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 15 U. S. C. §78j(b), and SEC Rule 10b–5, 17 CFR §240.10b–5 (2007). In this suit investors alleged losses after purchasing common stock. They sought to impose liability on entities who, acting both as customers and suppliers, agreed to arrangements that allowed the investors’ company to mislead its auditor and issue a misleading financial statement affecting the stock price. We conclude the implied right of action does not reach the customer/supplier companies because the investors did not rely upon their statements or representations. We affirm the judgment of the Court of Appeals. I This class-action suit by investors was filed against Charter Communications, Inc., in the United States District Court for the Eastern District of Missouri. Stoneridge Investment Partners, LLC, a limited liability company organized under the laws of Delaware, was the lead plaintiff and is petitioner here. Charter issued the financial statements and the securities in question. It was a named defendant along with some of its executives and Arthur Andersen LLP, Charter’s independent auditor during the period in question. We are concerned, though, with two other defendants, respondents here. Respondents are Scientific-Atlanta, Inc., and Motorola, Inc. They were suppliers, and later customers, of Charter. For purposes of this proceeding, we take these facts, alleged by petitioner, to be true. Charter, a cable operator, engaged in a variety of fraudulent practices so its quarterly reports would meet Wall Street expectations for cable subscriber growth and operating cash flow. The fraud included misclassification of its customer base; delayed reporting of terminated customers; improper capitalization of costs that should have been shown as expenses; and manipulation of the company’s billing cutoff dates to inflate reported revenues. In late 2000, Charter executives realized that, despite these efforts, the company would miss projected operating cash flow numbers by $15 to $20 million. To help meet the shortfall, Charter decided to alter its existing arrangements with respondents, Scientific-Atlanta and Motorola. Petitioner’s theory as to whether Arthur Andersen was altogether misled or, on the other hand, knew the structure of the contract arrangements and was complicit to some degree, is not clear at this stage of the case. The point, however, is neither controlling nor significant for our present disposition, and in our decision we assume it was misled. Respondents supplied Charter with the digital cable converter (set top) boxes that Charter furnished to its customers. Charter arranged to overpay respondents $20 for each set top box it purchased until the end of the year, with the understanding that respondents would return the overpayment by purchasing advertising from Charter. The transactions, it is alleged, had no economic substance; but, because Charter would then record the advertising purchases as revenue and capitalize its purchase of the set top boxes, in violation of generally accepted accounting principles, the transactions would enable Charter to fool its auditor into approving a financial statement showing it met projected revenue and operating cash flow numbers. Respondents agreed to the arrangement. So that Arthur Andersen would not discover the link between Charter’s increased payments for the boxes and the advertising purchases, the companies drafted documents to make it appear the transactions were unrelated and conducted in the ordinary course of business. Following a request from Charter, Scientific-Atlanta sent documents to Charter stating—falsely—that it had increased production costs. It raised the price for set top boxes for the rest of 2000 by $20 per box. As for Motorola, in a written contract Charter agreed to purchase from Motorola a specific number of set top boxes and pay liquidated damages of $20 for each unit it did not take. The contract was made with the expectation Charter would fail to purchase all the units and pay Motorola the liquidated damages. To return the additional money from the set top box sales, Scientific-Atlanta and Motorola signed contracts with Charter to purchase advertising time for a price higher than fair value. The new set top box agreements were backdated to make it appear that they were negotiated a month before the advertising agreements. The backdating was important to convey the impression that the negotiations were unconnected, a point Arthur Andersen considered necessary for separate treatment of the transactions. Charter recorded the advertising payments to inflate revenue and operating cash flow by approximately $17 million. The inflated number was shown on financial statements filed with the Securities and Exchange Commission (SEC) and reported to the public. Respondents had no role in preparing or disseminating Charter’s financial statements. And their own financial statements booked the transactions as a wash, under generally accepted accounting principles. It is alleged respondents knew or were in reckless disregard of Charter’s intention to use the transactions to inflate its revenues and knew the resulting financial statements issued by Charter would be relied upon by research analysts and investors. Petitioner filed a securities fraud class action on behalf of purchasers of Charter stock alleging that, by participating in the transactions, respondents violated §10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b–5. The District Court granted respondents’ motion to dismiss for failure to state a claim on which relief can be granted. The United States Court of Appeals for the Eighth Circuit affirmed. In re Charter Communications, Inc., Securities Litigation, 443 F. 3d 987 (2006). In its view the allegations did not show that respondents made misstatements relied upon by the public or that they violated a duty to disclose; and on this premise it found no violation of §10(b) by respondents. Id., at 992. At most, the court observed, respondents had aided and abetted Charter’s misstatement of its financial results; but, it noted, there is no private right of action for aiding and abetting a §10(b) violation. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 191 (1994). The court also affirmed the District Court’s denial of petitioner’s motion to amend the complaint, as the revised pleading would not change the court’s conclusion on the merits. 443 F. 3d, at 993. Decisions of the Courts of Appeals are in conflict respecting when, if ever, an injured investor may rely upon §10(b) to recover from a party that neither makes a public misstatement nor violates a duty to disclose but does participate in a scheme to violate §10(b). Compare Simpson v. AOL Time Warner Inc., 452 F. 3d 1040 (CA9 2006), with Regents of Univ. of Cal. v. Credit Suisse First Boston (USA), Inc., 482 F. 3d 372 (CA5 2007). We granted certiorari. 549 U. S. ___ (2007). II Section 10(b) of the Securities Exchange Act makes it “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 … [t]o use or employ, in connection with the purchase or sale of any security … any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U. S. C. §78j. The SEC, pursuant to this section, promulgated Rule 10b–5, which makes it unlawful “(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. Rule 10b–5 encompasses only conduct already prohibited by §10(b). United States v. O’Hagan, 521 U. S. 642, 651 (1997). Though the text of the Securities Exchange Act does not provide for a private cause of action for §10(b) violations, the Court has found a right of action implied in the words of the statute and its implementing regulation. Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6, 13, n. 9 (1971). In a typical §10(b) private action a plaintiff must prove (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation. See Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 341–342 (2005). In Central Bank, the Court determined that §10(b) liability did not extend to aiders and abettors. The Court found the scope of §10(b) to be delimited by the text, which makes no mention of aiding and abetting liability. 511 U. S., at 177. The Court doubted the implied §10(b) action should extend to aiders and abettors when none of the express causes of action in the securities Acts included that liability. Id., at 180. It added the following: “Were we to allow the aiding and abetting action proposed in this case, the defendant could be liable without any showing that the plaintiff relied upon the aider and abettor’s statements or actions. See also Chiarella [v. United States, 445 U. S. 222, 228 (1980)]. Allowing plaintiffs to circumvent the reliance requirement would disregard the careful limits on 10b–5 recovery mandated by our earlier cases.” Ibid. The decision in Central Bank led to calls for Congress to create an express cause of action for aiding and abetting within the Securities Exchange Act. Then-SEC Chairman Arthur Levitt, testifying before the Senate Securities Subcommittee, cited Central Bank and recommended that aiding and abetting liability in private claims be established. S. Hearing No. 103–759, pp. 13–14 (1994). Congress did not follow this course. Instead, in §104 of the Private Securities Litigation Reform Act of 1995 (PSLRA), 109 Stat. 757, it directed prosecution of aiders and abettors by the SEC. 15 U. S. C. §78t(e). The §10(b) implied private right of action does not extend to aiders and abettors. The conduct of a secondary actor must satisfy each of the elements or preconditions for liability; and we consider whether the allegations here are sufficient to do so. III The Court of Appeals concluded petitioner had not alleged that respondents engaged in a deceptive act within the reach of the §10(b) private right of action, noting that only misstatements, omissions by one who has a duty to disclose, and manipulative trading practices (where “manipulative” is a term of art, see, e.g., Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 476–477 (1977)) are deceptive within the meaning of the rule. 443 F. 3d, at 992. If this conclusion were read to suggest there must be a specific oral or written statement before there could be liability under §10(b) or Rule 10b–5, it would be erroneous. Conduct itself can be deceptive, as respondents concede. In this case, moreover, respondents’ course of conduct included both oral and written statements, such as the backdated contracts agreed to by Charter and respondents. A different interpretation of the holding from the Court of Appeals opinion is that the court was stating only that any deceptive statement or act respondents made was not actionable because it did not have the requisite proximate relation to the investors’ harm. That conclusion is consistent with our own determination that respondents’ acts or statements were not relied upon by the investors and that, as a result, liability cannot be imposed upon respondents. A Reliance by the plaintiff upon the defendant’s deceptive acts is an essential element of the §10(b) private cause of action. It ensures that, for liability to arise, the “requisite causal connection between a defendant’s misrepresentation and a plaintiff’s injury” exists as a predicate for liability. Basic Inc. v. Levinson, 485 U. S. 224, 243 (1988); see also Affiliated Ute Citizens of Utah v. United States, 406 U. S. 128, 154 (1972) (requiring “causation in fact”). We have found a rebuttable presumption of reliance in two different circumstances. First, if there is an omission of a material fact by one with a duty to disclose, the investor to whom the duty was owed need not provide specific proof of reliance. Id., at 153–154. Second, under the fraud-on-the-market doctrine, reliance is presumed when the statements at issue become public. The public information is reflected in the market price of the security. Then it can be assumed that an investor who buys or sells stock at the market price relies upon the statement. Basic, supra, at 247. Neither presumption applies here. Respondents had no duty to disclose; and their deceptive acts were not communicated to the public. No member of the investing public had knowledge, either actual or presumed, of respondents’ deceptive acts during the relevant times. Petitioner, as a result, cannot show reliance upon any of respondents’ actions except in an indirect chain that we find too remote for liability. B Invoking what some courts call “scheme liability,” see, e.g., In re Enron Corp. Securities, Derivative, & “ERISA” Litigation, 439 F. Supp. 2d 692, 723 (SD Tex. 2006), petitioner nonetheless seeks to impose liability on respondents even absent a public statement. In our view this approach does not answer the objection that petitioner did not in fact rely upon respondents’ own deceptive conduct. Liability is appropriate, petitioner contends, because respondents engaged in conduct with the purpose and effect of creating a false appearance of material fact to further a scheme to misrepresent Charter’s revenue. The argument is that the financial statement Charter released to the public was a natural and expected consequence of respondents’ deceptive acts; had respondents not assisted Charter, Charter’s auditor would not have been fooled, and the financial statement would have been a more accurate reflection of Charter’s financial condition. That causal link is sufficient, petitioner argues, to apply Basic’s presumption of reliance to respondents’ acts. See, e.g., Simpson, 452 F. 3d, at 1051–1052; In re Parmalat Securities Litigation, 376 F. Supp. 2d 472, 509 (SDNY 2005). In effect petitioner contends that in an efficient market investors rely not only upon the public statements relating to a security but also upon the transactions those statements reflect. Were this concept of reliance to be adopted, the implied cause of action would reach the whole marketplace in which the issuing company does business; and there is no authority for this rule. As stated above, reliance is tied to causation, leading to the inquiry whether respondents’ acts were immediate or remote to the injury. In considering petitioner’s arguments, we note §10(b) provides that the deceptive act must be “in connection with the purchase or sale of any security.” 15 U. S. C. §78j(b). Though this phrase in part defines the statute’s coverage rather than causation (and so we do not evaluate the “in connection with” requirement of §10(b) in this case), the emphasis on a purchase or sale of securities does provide some insight into the deceptive acts that concerned the enacting Congress. See Black, Securities Commentary: The Second Circuit’s Approach to the ‘In Connection With’ Requirement of Rule 10b–5, 53 Brooklyn L. Rev. 539, 541 (1987) (“[W]hile the ‘in connection with’ and causation requirements are analytically distinct, they are related to each other, and discussion of the first requirement may merge with discussion of the second”). In all events we conclude respondents’ deceptive acts, which were not disclosed to the investing public, are too remote to satisfy the requirement of reliance. It was Charter, not respondents, that misled its auditor and filed fraudulent financial statements; nothing respondents did made it necessary or inevitable for Charter to record the transactions as it did. The petitioner invokes the private cause of action under §10(b) and seeks to apply it beyond the securities markets—the realm of financing business—to purchase and supply contracts—the realm of ordinary business operations. The latter realm is governed, for the most part, by state law. It is true that if business operations are used, as alleged here, to affect securities markets, the SEC enforcement power may reach the culpable actors. It is true as well that a dynamic, free economy presupposes a high degree of integrity in all of its parts, an integrity that must be underwritten by rules enforceable in fair, independent, accessible courts. Were the implied cause of action to be extended to the practices described here, however, there would be a risk that the federal power would be used to invite litigation beyond the immediate sphere of securities litigation and in areas already governed by functioning and effective state-law guarantees. Our precedents counsel against this extension. See Marine Bank v. Weaver, 455 U. S. 551, 556 (1982) (“Congress, in enacting the securities laws, did not intend to provide a broad federal remedy for all fraud”); Santa Fe, 430 U. S., at 479–480 (“There may well be a need for uniform federal fiduciary standards … . But those standards should not be supplied by judicial extension of §10(b) and Rule 10b–5 to ‘cover the corporate universe’ ” (quoting Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 Yale L. J. 663, 700 (1974))). Though §10(b) is “not ‘limited to preserving the integrity of the securities markets,’ ” Bankers Life, 404 U. S., at 12, it does not reach all commercial transactions that are fraudulent and affect the price of a security in some attenuated way. These considerations answer as well the argument that if this were a common-law action for fraud there could be a finding of reliance. Even if the assumption is correct, it is not controlling. Section 10(b) does not incorporate common-law fraud into federal law. See, e.g., SEC v. Zandford, 535 U. S. 813, 820 (2002) (“[Section 10(b)] must not be construed so broadly as to convert every common-law fraud that happens to involve securities into a violation”); Central Bank, 511 U. S., at 184 (“Even assuming … a deeply rooted background of aiding and abetting tort liability, it does not follow that Congress intended to apply that kind of liability to the private causes of action in the securities Acts”); see also Dura, 544 U. S., at 341. Just as §10(b) “is surely badly strained when construed to provide a cause of action … to the world at large,” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 733, n. 5 (1975), it should not be interpreted to provide a private cause of action against the entire marketplace in which the issuing company operates. Petitioner’s theory, moreover, would put an unsupportable interpretation on Congress’ specific response to Central Bank in §104 of the PSLRA. Congress amended the securities laws to provide for limited coverage of aiders and abettors. Aiding and abetting liability is authorized in actions brought by the SEC but not by private parties. See 15 U. S. C. §78t(e). Petitioner’s view of primary liability makes any aider and abettor liable under §10(b) if he or she committed a deceptive act in the process of providing assistance. Reply Brief for Petitioner 6, n. 2; Tr. of Oral Arg. 24. Were we to adopt this construction of §10(b), it would revive in substance the implied cause of action against all aiders and abettors except those who committed no deceptive act in the process of facilitating the fraud; and we would undermine Congress’ determination that this class of defendants should be pursued by the SEC and not by private litigants. See Alexander v. Sandoval, 532 U. S. 275, 290 (2001) (“The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others”); FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 143 (2000) (“At the time a statute is enacted, it may have a range of plausible meanings. Over time, however, subsequent acts can shape or focus those meanings”); see also Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U. S. 572, 596 (1980) (“[W]hile the views of subsequent Congresses cannot override the unmistakable intent of the enacting one, such views are entitled to significant weight, and particularly so when the precise intent of the enacting Congress is obscure” (citations omitted)). This is not a case in which Congress has enacted a regulatory statute and then has accepted, over a long period of time, broad judicial authority to define substantive standards of conduct and liability. Cf. Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. ___, ___ (2007) (slip op., at 19–20). And in accord with the nature of the cause of action at issue here, we give weight to Congress’ amendment to the Act restoring aiding and abetting liability in certain cases but not others. The amendment, in our view, supports the conclusion that there is no liability. The practical consequences of an expansion, which the Court has considered appropriate to examine in circumstances like these, see Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083, 1104–1105 (1991); Blue Chip, 421 U. S., at 737, provide a further reason to reject petitioner’s approach. In Blue Chip, the Court noted that extensive discovery and the potential for uncertainty and disruption in a lawsuit allow plaintiffs with weak claims to extort settlements from innocent companies. Id., at 740–741. Adoption of petitioner’s approach would expose a new class of defendants to these risks. As noted in Central Bank, contracting parties might find it necessary to protect against these threats, raising the costs of doing business. See 511 U. S., at 189. Overseas firms with no other exposure to our securities laws could be deterred from doing business here. See Brief for Organization for International Investment et al. as Amici Curiae 17–20. This, in turn, may raise the cost of being a publicly traded company under our law and shift securities offerings away from domestic capital markets. Brief for NASDAQ Stock Market, Inc., et al. as Amici Curiae 12–14. C The history of the §10(b) private right and the careful approach the Court has taken before proceeding without congressional direction provide further reasons to find no liability here. The §10(b) private cause of action is a judicial construct that Congress did not enact in the text of the relevant statutes. See Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350, 358–359 (1991); Blue Chip, supra, at 729. Though the rule once may have been otherwise, see J. I. Case Co. v. Borak, 377 U. S. 426, 432–433 (1964), it is settled that there is an implied cause of action only if the underlying statute can be interpreted to disclose the intent to create one, see, e.g., Alexander, supra, at 286–287; Virginia Bankshares, supra, at 1102; Touche Ross & Co. v. Redington, 442 U. S. 560, 575 (1979). This is for good reason. In the absence of congressional intent the Judiciary’s recognition of an implied private right of action “necessarily extends its authority to embrace a dispute Congress has not assigned it to resolve. This runs contrary to the established principle that ‘[t]he jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation … ,’ American Fire & Casualty Co. v. Finn, 341 U. S. 6, 17 (1951), and conflicts with the authority of Congress under Art. III to set the limits of federal jurisdiction.” Cannon v. University of Chicago, 441 U. S. 677, 746 (1979) (Powell, J., dissenting) (citations and footnote omitted). The determination of who can seek a remedy has significant consequences for the reach of federal power. See Wilder v. Virginia Hospital Assn., 496 U. S. 498, 509, n. 9 (1990) (requirement of congressional intent “reflects a concern, grounded in separation of powers, that Congress rather than the courts controls the availability of remedies for violations of statutes”). Concerns with the judicial creation of a private cause of action caution against its expansion. The decision to extend the cause of action is for Congress, not for us. Though it remains the law, the §10(b) private right should not be extended beyond its present boundaries. See Virginia Bankshares, supra, at 1102 (“[T]he breadth of the [private right of action] once recognized should not, as a general matter, grow beyond the scope congressionally intended”); see also Central Bank, supra, at 173 (determining that the scope of conduct prohibited is limited by the text of §10(b)). This restraint is appropriate in light of the PSLRA, which imposed heightened pleading requirements and a loss causation requirement upon “any private action” arising from the Securities Exchange Act. See 15 U. S. C. §78u–4(b). It is clear these requirements touch upon the implied right of action, which is now a prominent feature of federal securities regulation. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 81–82 (2006); Dura, 544 U. S., at 345–346; see also S. Rep. No. 104–98, p. 4–5 (1995) (recognizing the §10(b) implied cause of action, and indicating the PSLRA was intended to have “Congress … reassert its authority in this area”); id., at 26 (indicating the pleading standards covered §10(b) actions). Congress thus ratified the implied right of action after the Court moved away from a broad willingness to imply private rights of action. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 381–382, and n. 66 (1982); cf. Borak, supra, at 433. It is appropriate for us to assume that when §78u–4 was enacted, Congress accepted the §10(b) private cause of action as then defined but chose to extend it no further. IV Secondary actors are subject to criminal penalties, see, e.g., 15 U. S. C. §78ff, and civil enforcement by the SEC, see, e.g., §78t(e). The enforcement power is not toothless. Since September 30, 2002, SEC enforcement actions have collected over $10 billion in disgorgement and penalties, much of it for distribution to injured investors. See SEC, 2007 Performance and Accountability Report, p. 26, http://www.sec.gov/about/secpar2007.shtml (as visited Jan. 2, 2008, and available in Clerk of Court’s case file). And in this case both parties agree that criminal penalties are a strong deterrent. See Brief for Respondents 48; Reply Brief for Petitioner 17. In addition some state securities laws permit state authorities to seek fines and restitution from aiders and abettors. See, e.g., Del. Code Ann., Tit. 6, §7325 (2005). All secondary actors, furthermore, are not necessarily immune from private suit. The securities statutes provide an express private right of action against accountants and underwriters in certain circumstances, see 15 U. S. C. §77k, and the implied right of action in §10(b) continues to cover secondary actors who commit primary violations. Central Bank, supra, at 191. Here respondents were acting in concert with Charter in the ordinary course as suppliers and, as matters then evolved in the not so ordinary course, as customers. Unconventional as the arrangement was, it took place in the marketplace for goods and services, not in the investment sphere. Charter was free to do as it chose in preparing its books, conferring with its auditor, and preparing and then issuing its financial statements. In these circumstances the investors cannot be said to have relied upon any of respondents’ deceptive acts in the decision to purchase or sell securities; and as the requisite reliance cannot be shown, respondents have no liability to petitioner under the implied right of action. This conclusion is consistent with the narrow dimensions we must give to a right of action Congress did not authorize when it first enacted the statute and did not expand when it revisited the law. 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. Justice Breyer took no part in the consideration or decision of this case. |
553.US.880 | Greg Herrick, an antique aircraft enthusiast seeking to restore a vintage airplane manufactured by the Fairchild Engine and Airplane Corporation (FEAC), filed a Freedom of Information Act (FOIA) request asking the Federal Aviation Administration (FAA) for copies of technical documents related to the airplane. The FAA denied his request based on FOIA’s exemption for trade secrets, see 5 U. S. C. §552(b)(4). Herrick took an administrative appeal, but when respondent Fairchild, FEAC’s successor, objected to the documents’ release, the FAA adhered to its original decision. Herrick then filed an unsuccessful FOIA lawsuit to secure the documents. Less than a month after that suit was resolved, petitioner Taylor, Herrick’s friend and an antique aircraft enthusiast himself, made a FOIA request for the same documents Herrick had unsuccessfully sued to obtain. When the FAA failed to respond, Taylor filed suit in the U. S. District Court for the District of Columbia. Holding the suit barred by claim preclusion, the District Court granted summary judgment to the FAA and to Fairchild, as intervenor in Taylor’s action. The court acknowledged that Taylor was not a party to Herrick’s suit, but held that a nonparty may be bound by a judgment if she was “virtually represented” by a party. The D. C. Circuit affirmed, announcing a five-factor test for “virtual representation.” The first two factors of the D. C. Circuit’s test—“identity of interests” and “adequate representation”—are necessary but not sufficient for virtual representation. In addition, at least one of three other factors must be established: “a close relationship between the present party and his putative representative,” “substantial participation by the present party in the first case,” or “tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment.” The D. C. Circuit acknowledged the absence of any indication that Taylor participated in, or even had notice of, Herrick’s suit. It nonetheless found the “identity of interests,” “adequate representation,” and “close relationship” factors satisfied because the two men sought release of the same documents, were “close associates,” had discussed working together to restore Herrick’s plane, and had used the same lawyer to pursue their suits. Because these conditions sufficed to establish virtual representation, the court left open the question whether Taylor had engaged in tactical maneuvering to avoid preclusion. Held: 1. The theory of preclusion by “virtual representation” is disapproved. The preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion. Pp. 9–21. (a) The preclusive effect of a federal-court judgment is determined by federal common law, subject to due process limitations. Pp. 9–13. (1) Extending the preclusive effect of a judgment to a nonparty runs up against the “deep-rooted historic tradition that everyone should have his own day in court.” Richards v. Jefferson County, 517 U. S. 793, 798 (internal quotation marks omitted). Indicating the strength of that tradition, this Court has often repeated the general rule that “one is not bound by a judgment in personam in a litigation in which he is not designated a party or to which he has not been made a party by service of process.” Hansberry v. Lee, 311 U. S. 32, 40. Pp. 9–10. (2) The rule against nonparty preclusion is subject to exceptions, grouped for present purposes into six categories. First, “[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the [agreement’s] terms.” Restatement (Second) of Judgments §40. Second, nonparty preclusion may be based on a pre-existing substantive legal relationship between the person to be bound and a party to the judgment, e.g., assignee and assignor. Third, “in certain limited circumstances,” a nonparty may be bound by a judgment because she was “ ‘adequately represented by someone with the same interests who [wa]s a party’ ” to the suit. Richards, 517 U. S., at 798. Fourth, a nonparty is bound by a judgment if she “assume[d] control” over the litigation in which that judgment was rendered. Montana v. United States, 440 U. S. 147, 154. Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in litigation later brings suit as the designated representative or agent of a person who was a party to the prior adjudication. Sixth, a special statutory scheme otherwise consistent with due process—e.g., bankruptcy proceedings—may “expressly foreclos[e] successive litigation by nonlitigants.” Martin v. Wilks, 490 U. S. 755, 762, n. 2. Pp. 10–13. (b) Reaching beyond these six categories, the D. C. Circuit recognized a broad “virtual representation” exception to the rule against nonparty preclusion. None of the arguments advanced by that court, the FAA, or Fairchild justify such an expansive doctrine. Pp. 13–22. (1) The D. C. Circuit purported to ground its doctrine in this Court’s statements that, in some circumstances, a person may be bound by a judgment if she was adequately represented by a party to the proceeding yielding that judgment. But the D. C. Circuit’s definition of “adequate representation” strayed from the meaning this Court has attributed to that term. In Richards, the Alabama Supreme Court had held a tax challenge barred by a judgment upholding the same tax in a suit by different taxpayers. 517 U. S., at 795–797. This Court reversed, holding that nonparty preclusion was inconsistent with due process where there was no showing (1) that the court in the first suit “took care to protect the interests” of absent parties, or (2) that the parties to the first litigation “understood their suit to be on behalf of absent [parties],” id., at 802. In holding that representation can be “adequate” for purposes of nonparty preclusion even where these two factors are absent, the D. C. Circuit misapprehended Richards. Pp. 14–15. (2) Fairchild and the FAA ask this Court to abandon altogether the attempt to delineate discrete grounds and clear rules for nonparty preclusion. Instead, they contend, only an equitable and heavily fact-driven inquiry can account for all of the situations in which nonparty preclusion is appropriate. This argument is rejected. First, respondents’ balancing test is at odds with the constrained approach advanced by this Court’s decisions, which have endeavored to delineate discrete, limited exceptions to the fundamental rule that a litigant is not bound by a judgment to which she was not a party, see, e.g., Richards, 517 U. S., at 798–799. Second, a party’s representation of a nonparty is “adequate” for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned, see Hansberry, 311 U. S., at 43, and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the nonparty’s interests, see Richards, 517 U. S., at 801–802. Adequate representation may also require (3) notice of the original suit to the persons alleged to have been represented. See id., at 801. In the class-action context, these limitations are implemented by Federal Rule of Civil Procedure 23’s procedural safeguards. But an expansive virtual representation doctrine would recognize a common-law kind of class action shorn of these protections. Third, a diffuse balancing approach to nonparty preclusion would likely complicate the task of district courts faced in the first instance with preclusion questions. Pp. 15–19. (3) Finally, the FAA contends that nonparty preclusion should apply more broadly in “public-law” litigation than in “private-law” controversies. First, the FAA points to Richards’ acknowledgment that when a taxpayer challenges “an alleged misuse of public funds” or “other public action,” the suit “has only an indirect impact on [the plaintiff’s] interests,” 517 U. S., at 803, and “the States have wide latitude to establish procedures [limiting] the number of judicial proceedings that may be entertained,” ibid. In contrast to the public-law litigation contemplated in Richards, however, a successful FOIA action results in a grant of relief to the individual plaintiff, not a decree benefiting the public at large. Furthermore, Richards said only that, for the type of public-law claims there envisioned, States were free to adopt procedures limiting repetitive litigation. While it appears equally evident that Congress can adopt such procedures, it hardly follows that this Court should proscribe or confine successive FOIA suits by different requesters. Second, the FAA argues that, because the number of plaintiffs in public-law cases is potentially limitless, it is theoretically possible for several persons to coordinate a series of vexatious repetitive lawsuits. But this risk does not justify departing from the usual nonparty preclusion rules. Stare decisis will allow courts to dispose of repetitive suits in the same circuit, and even when stare decisis is not dispositive, the human inclination not to waste money should discourage suits based on claims or issues already decided. Pp. 19–22. 2. The remaining question is whether the result reached by the courts below can be justified based on one of the six the established grounds for nonparty preclusion. With one exception, those grounds plainly have no application here. Respondents argue that Taylor’s suit is a collusive attempt to relitigate Herrick’s claim. That argument justifies a remand to allow the courts below the opportunity to determine whether the fifth ground for nonparty preclusion—preclusion because a nonparty to earlier litigation has brought suit as an agent of a party bound by the prior adjudication—applies to Taylor’s suit. But courts should be cautious about finding preclusion on the basis of agency. A mere whiff of “tactical maneuvering” will not suffice; instead, principles of agency law indicate that preclusion is appropriate only if the putative agent’s conduct of the suit is subject to the control of the party who is bound by the prior adjudication. Finally, the Court rejects Fairchild’s suggestion that Taylor must bear the burden of proving he is not acting as Herrick’s agent. Claim preclusion is an affirmative defense for the defendant to plead and prove. Pp. 22–25. 490 F. 3d 965, vacated and remanded. Ginsburg, J., delivered the opinion for a unanimous Court. | “It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry v. Lee, 311 U. S. 32, 40 (1940). Several exceptions, recognized in this Court’s decisions, temper this basic rule. In a class action, for example, a person not named as a party may be bound by a judgment on the merits of the action, if she was adequately represented by a party who actively participated in the litigation. See id., at 41. In this case, we consider for the first time whether there is a “virtual representation” exception to the general rule against precluding nonparties. Adopted by a number of courts, including the courts below in the case now before us, the exception so styled is broader than any we have so far approved. The virtual representation question we examine in this opinion arises in the following context. Petitioner Brent Taylor filed a lawsuit under the Freedom of Information Act seeking certain documents from the Federal Aviation Administration. Greg Herrick, Taylor’s friend, had previously brought an unsuccessful suit seeking the same records. The two men have no legal relationship, and there is no evidence that Taylor controlled, financed, participated in, or even had notice of Herrick’s earlier suit. Nevertheless, the D. C. Circuit held Taylor’s suit precluded by the judgment against Herrick because, in that court’s assessment, Herrick qualified as Taylor’s “virtual representative.” We disapprove the doctrine of preclusion by “virtual representation,” and hold, based on the record as it now stands, that the judgment against Herrick does not bar Taylor from maintaining this suit. I The Freedom of Information Act (FOIA) accords “any person” a right to request any records held by a federal agency. 5 U. S. C. §552(a)(3)(A) (2006 ed.). No reason need be given for a FOIA request, and unless the requested materials fall within one of the Act’s enumerated exemptions, see §552(a)(3)(E), (b), the agency must “make the records promptly available” to the requester, §552(a)(3)(A). If an agency refuses to furnish the requested records, the requester may file suit in federal court and obtain an injunction “order[ing] the production of any agency records improperly withheld.” §552(a)(4)(B). The courts below held the instant FOIA suit barred by the judgment in earlier litigation seeking the same records. Because the lower courts’ decisions turned on the connection between the two lawsuits, we begin with a full account of each action. A The first suit was filed by Greg Herrick, an antique aircraft enthusiast and the owner of an F–45 airplane, a vintage model manufactured by the Fairchild Engine and Airplane Corporation (FEAC) in the 1930’s. In 1997, seeking information that would help him restore his plane to its original condition, Herrick filed a FOIA request asking the Federal Aviation Administration (FAA) for copies of any technical documents about the F–45 contained in the agency’s records. To gain a certificate authorizing the manufacture and sale of the F–45, FEAC had submitted to the FAA’s predecessor, the Civil Aeronautics Authority, detailed specifications and other technical data about the plane. Hundreds of pages of documents produced by FEAC in the certification process remain in the FAA’s records. The FAA denied Herrick’s request, however, upon finding that the documents he sought are subject to FOIA’s exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” 5 U. S. C. §552(b)(4) (2006 ed.). In an administrative appeal, Herrick urged that FEAC and its successors had waived any trade-secret protection. The FAA thereupon contacted FEAC’s corporate successor, respondent Fairchild Corporation (Fairchild). Because Fairchild objected to release of the documents, the agency adhered to its original decision. Herrick then filed suit in the U. S. District Court for the District of Wyoming. Challenging the FAA’s invocation of the trade-secret exemption, Herrick placed heavy weight on a 1955 letter from FEAC to the Civil Aeronautics Authority. The letter authorized the agency to lend any documents in its files to the public “for use in making repairs or replacement parts for aircraft produced by Fairchild.” Herrick v. Garvey, 298 F. 3d 1184, 1193 (CA10 2002) (internal quotation marks omitted). This broad authorization, Herrick maintained, showed that the F–45 certification records held by the FAA could not be regarded as “secre[t]” or “confidential” within the meaning of §552(b)(4). Rejecting Herrick’s argument, the District Court granted summary judgment to the FAA. Herrick v. Garvey, 200 F. Supp. 2d 1321, 1328–1329 (Wyo. 2000). The 1955 letter, the court reasoned, did not deprive the F–45 certification documents of trade-secret status, for those documents were never in fact released pursuant to the letter’s blanket authorization. See id., at 1329. The court also stated that even if the 1955 letter had waived trade-secret protection, Fairchild had successfully “reversed” the waiver by objecting to the FAA’s release of the records to Herrick. Ibid. On appeal, the Tenth Circuit agreed with Herrick that the 1955 letter had stripped the requested documents of trade-secret protection. See Herrick, 298 F. 3d, at 1194. But the Court of Appeals upheld the District Court’s alternative determination—i.e., that Fairchild had restored trade-secret status by objecting to Herrick’s FOIA request. Id., at 1195. On that ground, the appeals court affirmed the entry of summary judgment for the FAA. In so ruling, the Tenth Circuit noted that Herrick had failed to challenge two suppositions underlying the District Court’s decision. First, the District Court assumed trade-secret status could be “restored” to documents that had lost protection. Id., at 1194, n. 10. Second, the District Court also assumed that Fairchild had regained trade-secret status for the documents even though the company claimed that status only “after Herrick had initiated his request” for the F–45 records. Ibid. The Court of Appeals expressed no opinion on the validity of these suppositions. See id., at 1194–1195, n. 10. B The Tenth Circuit’s decision issued on July 24, 2002. Less than a month later, on August 22, petitioner Brent Taylor—a friend of Herrick’s and an antique aircraft enthusiast in his own right—submitted a FOIA request seeking the same documents Herrick had unsuccessfully sued to obtain. When the FAA failed to respond, Taylor filed a complaint in the U. S. District Court for the District of Columbia. Like Herrick, Taylor argued that FEAC’s 1955 letter had stripped the records of their trade-secret status. But Taylor also sought to litigate the two issues concerning recapture of protected status that Herrick had failed to raise in his appeal to the Tenth Circuit. After Fairchild intervened as a defendant,[Footnote 1] the District Court in D. C. concluded that Taylor’s suit was barred by claim preclusion; accordingly, it granted summary judgment to Fairchild and the FAA. The court acknowledged that Taylor was not a party to Herrick’s suit. Relying on the Eighth Circuit’s decision in Tyus v. Schoemehl, 93 F. 3d 449 (1996), however, it held that a nonparty may be bound by a judgment if she was “virtually represented” by a party. App. to Pet. for Cert. 30a–31a. The Eighth Circuit’s seven-factor test for virtual representation, adopted by the District Court in Taylor’s case, requires an “identity of interests” between the person to be bound and a party to the judgment. See id., at 31a. See also Tyus, 93 F. 3d, at 455. Six additional factors counsel in favor of virtual representation under the Eighth Circuit’s test, but are not prerequisites: (1) a “close relationship” between the present party and a party to the judgment alleged to be preclusive; (2) “participation in the prior litigation” by the present party; (3) the present party’s “apparent acquiescence” to the preclusive effect of the judgment; (4) “deliberat[e] maneuver[ing]” to avoid the effect of the judgment; (5) adequate representation of the present party by a party to the prior adjudication; and (6) a suit raising a “public law” rather than a “private law” issue. App. to Pet. for Cert. 31a (citing Tyus, 93 F. 3d, at 454–456). These factors, the D. C. District Court observed, “constitute a fluid test with imprecise boundaries” and call for “a broad, case-by-case inquiry.” App. to Pet. for Cert. 32a. The record before the District Court in Taylor’s suit revealed the following facts about the relationship between Taylor and Herrick: Taylor is the president of the Antique Aircraft Association, an organization to which Herrick belongs; the two men are “close associate[s],” App. 54; Herrick asked Taylor to help restore Herrick’s F–45, though they had no contract or agreement for Taylor’s participation in the restoration; Taylor was represented by the lawyer who represented Herrick in the earlier litigation; and Herrick apparently gave Taylor documents that Herrick had obtained from the FAA during discovery in his suit. Fairchild and the FAA conceded that Taylor had not participated in Herrick’s suit. App. to Pet. for Cert. 32a. The D. C. District Court determined, however, that Herrick ranked as Taylor’s virtual representative because the facts fit each of the other six indicators on the Eighth Circuit’s list. See id., at 32a–35a. Accordingly, the District Court held Taylor’s suit, seeking the same documents Herrick had requested, barred by the judgment against Herrick. See id., at 35a. The D. C. Circuit affirmed. It observed, first, that other Circuits “vary widely” in their approaches to virtual representation. Taylor v. Blakey, 490 F. 3d 965, 971 (2007). In this regard, the D. C. Circuit contrasted the multifactor balancing test applied by the Eighth Circuit and the D. C. District Court with the Fourth Circuit’s narrower approach, which “treats a party as a virtual representative only if the party is ‘accountable to the nonparties who file a subsequent suit’ and has ‘the tacit approval of the court’ to act on the nonpart[ies’] behalf.” Ibid. (quoting Klugh v. United States, 818 F. 2d 294, 300 (CA4 1987)). Rejecting both of these approaches, the D. C. Circuit announced its own five-factor test. The first two factors—“identity of interests” and “adequate representation”—are necessary but not sufficient for virtual representation. 490 F. 3d, at 971–972. In addition, at least one of three other factors must be established: “a close relationship between the present party and his putative representative,” “substantial participation by the present party in the first case,” or “tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment.” Id., at 972. Applying this test to the record in Taylor’s case, the D. C. Circuit found both of the necessary conditions for virtual representation well met. As to identity of interests, the court emphasized that Taylor and Herrick sought the same result—release of the F–45 documents. Moreover, the D. C. Circuit observed, Herrick owned an F–45 airplane, and therefore had “if anything, a stronger incentive to litigate” than Taylor, who had only a “general interest in public disclosure and the preservation of antique aircraft heritage.” Id., at 973 (internal quotation marks omitted). Turning to adequacy of representation, the D. C. Circuit acknowledged that some other Circuits regard notice of a prior suit as essential to a determination that a nonparty was adequately represented in that suit. See id., at 973–974 (citing Perez v. Volvo Car Corp., 247 F. 3d 303, 312 (CA1 2001), and Tice v. American Airlines, Inc., 162 F. 3d 966, 973 (CA7 1998)). Disagreeing with these courts, the D. C. Circuit deemed notice an “important” but not an indispensable element in the adequacy inquiry. The court then concluded that Herrick had adequately represented Taylor even though Taylor had received no notice of Herrick’s suit. For this conclusion, the appeals court relied on Herrick’s “strong incentive to litigate” and Taylor’s later engagement of the same attorney, which indicated to the court Taylor’s satisfaction with that attorney’s performance in Herrick’s case. See 490 F. 3d, at 974–975. The D. C. Circuit also found its “close relationship” criterion met, for Herrick had “asked Taylor to assist him in restoring his F–45” and “provided information to Taylor that Herrick had obtained through discovery”; furthermore, Taylor “did not oppose Fairchild’s characterization of Herrick as his ‘close associate.’ ” Id., at 975. Because the three above-described factors sufficed to establish virtual representation under the D. C. Circuit’s five-factor test, the appeals court left open the question whether Taylor had engaged in “tactical maneuvering.” See id., at 976 (calling the facts bearing on tactical maneuvering “ambigu[ous]”).[Footnote 2] We granted certiorari, 552 U. S. ___ (2008), to resolve the disagreement among the Circuits over the permis- sibility and scope of preclusion based on “virtual representation.”[Footnote 3] II The preclusive effect of a federal-court judgment is determined by federal common law. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U. S. 497, 507–508 (2001). For judgments in federal-question cases—for example, Herrick’s FOIA suit—federal courts participate in developing “uniform federal rule[s]” of res judicata, which this Court has ultimate authority to determine and declare. Id., at 508.[Footnote 4] The federal common law of preclusion is, of course, subject to due process limitations. See Richards v. Jefferson County, 517 U. S. 793, 797 (1996). Taylor’s case presents an issue of first impression in this sense: Until now, we have never addressed the doctrine of “virtual representation” adopted (in varying forms) by several Circuits and relied upon by the courts below. Our inquiry, however, is guided by well-established precedent regarding the propriety of nonparty preclusion. We review that precedent before taking up directly the issue of virtual representation. A The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as “res judicata.”[Footnote 5] Under the doctrine of claim preclusion, a final judgment forecloses “successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.” New Hampshire v. Maine, 532 U. S. 742, 748 (2001). Issue preclusion, in contrast, bars “successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,” even if the issue recurs in the context of a different claim. Id., at 748–749. By “preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,” these two doctrines protect against “the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U. S. 147, 153–154 (1979). A person who was not a party to a suit generally has not had a “full and fair opportunity to litigate” the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the “deep-rooted historic tradition that everyone should have his own day in court.” Richards, 517 U. S., at 798 (internal quotation marks omitted). Indicating the strength of that tradition, we have often repeated the general rule that “one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry, 311 U. S., at 40. See also, e.g., Richards, 517 U. S., at 798; Martin v. Wilks, 490 U. S. 755, 761 (1989); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 110 (1969). B Though hardly in doubt, the rule against nonparty preclusion is subject to exceptions. For present pur- poses, the recognized exceptions can be grouped into six categories.[Footnote 6] First, “[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement.” 1 Restatement (Second) of Judgments §40, p. 390 (1980) (hereinafter Restatement). For example, “if separate actions involving the same transaction are brought by different plaintiffs against the same defendant, all the parties to all the actions may agree that the question of the defendant’s liability will be definitely determined, one way or the other, in a ‘test case.’ ” D. Shapiro, Civil Procedure: Preclusion in Civil Actions 77–78 (2001) (hereinafter Shapiro). See also California v. Texas, 459 U. S. 1096, 1097 (1983) (dismissing certain defendants from a suit based on a stipulation “that each of said defendants … will be bound by a final judgment of this Court” on a specified issue).[Footnote 7] Second, nonparty preclusion may be justified based on a variety of pre-existing “substantive legal relationship[s]” between the person to be bound and a party to the judgment. Shapiro 78. See also Richards, 517 U. S., at 798. Qualifying relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor. See 2 Restatement §§43–44, 52, 55. These exceptions originated “as much from the needs of property law as from the values of preclusion by judgment.” 18A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4448, p. 329 (2d ed. 2002) (hereinafter Wright & Miller).[Footnote 8] Third, we have confirmed that, “in certain limited circumstances,” a nonparty may be bound by a judgment because she was “adequately represented by someone with the same interests who [wa]s a party” to the suit. Richards, 517 U. S., at 798 (internal quotation marks omitted). Representative suits with preclusive effect on nonparties include properly conducted class actions, see Martin, 490 U. S., at 762, n. 2 (citing Fed. Rule Civ. Proc. 23), and suits brought by trustees, guardians, and other fiduciaries, see Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573, 593 (1974). See also 1 Restatement §41. Fourth, a nonparty is bound by a judgment if she “assume[d] control” over the litigation in which that judgment was rendered. Montana, 440 U. S., at 154. See also Schnell v. Peter Eckrich & Sons, Inc., 365 U. S. 260, 262, n. 4 (1961); 1 Restatement §39. Because such a person has had “the opportunity to present proofs and argument,” he has already “had his day in court” even though he was not a formal party to the litigation. Id., Comment a, p. 382. Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication. See Chicago, R. I. & P. R. Co. v. Schendel, 270 U. S. 611, 620, 623 (1926); 18A Wright & Miller §4454, pp. 433–434. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a nonparty later brings suit as an agent for a party who is bound by a judgment. See id., §4449, p. 335. Sixth, in certain circumstances a special statutory scheme may “expressly foreclos[e] successive litigation by nonlitigants … if the scheme is otherwise consistent with due process.” Martin, 490 U. S., at 762, n. 2. Examples of such schemes include bankruptcy and probate proceedings, see ibid., and quo warranto actions or other suits that, “under [the governing] law, [may] be brought only on behalf of the public at large,” Richards, 517 U. S., at 804. III Reaching beyond these six established categories, some lower courts have recognized a “virtual representation” exception to the rule against nonparty preclusion. Decisions of these courts, however, have been far from consistent. See 18A Wright & Miller §4457, p. 513 (virtual representation lacks a “clear or coherent theory”; decisions applying it have “an episodic quality”). Some Circuits use the label, but define “virtual representation” so that it is no broader than the recognized exception for adequate representation. See, e.g., Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 193 F. 3d 415, 423, 427 (CA6 1999). But other courts, including the Eighth, Ninth, and D. C. Circuits, apply multifactor tests for virtual representation that permit nonparty preclusion in cases that do not fit within any of the established exceptions. See supra, at 5–8, and n. 3. The D. C. Circuit, the FAA, and Fairchild have presented three arguments in support of an expansive doctrine of virtual representation. We find none of them persuasive. A The D. C. Circuit purported to ground its virtual representation doctrine in this Court’s decisions stating that, in some circumstances, a person may be bound by a judgment if she was adequately represented by a party to the proceeding yielding that judgment. See 490 F. 3d, at 970–971. But the D. C. Circuit’s definition of “adequate representation” strayed from the meaning our decisions have attributed to that term. In Richards, we reviewed a decision by the Alabama Supreme Court holding that a challenge to a tax was barred by a judgment upholding the same tax in a suit filed by different taxpayers. 517 U. S., at 795–797. The plaintiffs in the first suit “did not sue on behalf of a class,” their complaint “did not purport to assert any claim against or on behalf of any nonparties,” and the judgment “did not purport to bind” nonparties. Id., at 801. There was no indication, we emphasized, that the court in the first suit “took care to protect the interests” of absent parties, or that the parties to that litigation “understood their suit to be on behalf of absent [parties].” Id., at 802. In these circumstances, we held, the application of claim preclusion was inconsistent with “the due process of law guaranteed by the Fourteenth Amendment.” Id., at 797. The D. C. Circuit stated, without elaboration, that it did not “read Richards to hold a nonparty … adequately represented only if special procedures were followed [to protect the nonparty] or the party to the prior suit understood it was representing the nonparty.” 490 F. 3d, at 971. As the D. C. Circuit saw this case, Herrick adequately represented Taylor for two principal reasons: Herrick had a strong incentive to litigate; and Taylor later hired Herrick’s lawyer, suggesting Taylor’s “satisfaction with the attorney’s performance in the prior case.” Id., at 975. The D. C. Circuit misapprehended Richards. As just recounted, our holding that the Alabama Supreme Court’s application of res judicata to nonparties violated due process turned on the lack of either special procedures to protect the nonparties’ interests or an understanding by the concerned parties that the first suit was brought in a representative capacity. See Richards, 517 U. S., at 801–802. Richards thus established that representation is “adequate” for purposes of nonparty preclusion only if (at a minimum) one of these two circumstances is present. We restated Richards’ core holding in South Central Bell Telephone Co. v. Alabama, 526 U. S. 160 (1999). In that case, as in Richards, the Alabama courts had held that a judgment rejecting a challenge to a tax by one group of taxpayers barred a subsequent suit by a different taxpayer. See 526 U. S., at 164–165. In South Central Bell, however, the nonparty had notice of the original suit and engaged one of the lawyers earlier employed by the original plaintiffs. See id., at 167–168. Under the D. C. Circuit’s decision in Taylor’s case, these factors apparently would have sufficed to establish adequate representation. See 490 F. 3d, at 973–975. Yet South Central Bell held that the application of res judicata in that case violated due process. Our inquiry came to an end when we determined that the original plaintiffs had not understood themselves to be acting in a representative capacity and that there had been no special procedures to safeguard the interests of absentees. See 526 U. S., at 168. Our decisions recognizing that a nonparty may be bound by a judgment if she was adequately represented by a party to the earlier suit thus provide no support for the D. C. Circuit’s broad theory of virtual representation. B Fairchild and the FAA do not argue that the D. C. Circuit’s virtual representation doctrine fits within any of the recognized grounds for nonparty preclusion. Rather, they ask us to abandon the attempt to delineate discrete grounds and clear rules altogether. Preclusion is in order, they contend, whenever “the relationship between a party and a non-party is ‘close enough’ to bring the second litigant within the judgment.” Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22–24. Courts should make the “close enough” determination, they urge, through a “heavily fact-driven” and “equitable” inquiry. Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22 (“there is no clear test” for nonparty preclusion; rather, an “equitable and fact-intensive” inquiry is demanded (internal quotation marks omitted)). Only this sort of diffuse balancing, Fairchild and the FAA argue, can account for all of the situations in which nonparty preclusion is appropriate. We reject this argument for three reasons. First, our decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party. See, e.g., Richards, 517 U. S., at 798–799; Martin, 490 U. S., at 761–762. Accordingly, we have endeavored to delineate discrete exceptions that apply in “limited circumstances.” Id., at 762, n. 2. Respondents’ amorphous balancing test is at odds with the constrained approach to nonparty preclusion our decisions advance. Resisting this reading of our precedents, respondents call up three decisions they view as supportive of the approach they espouse. Fairchild quotes our statement in Coryell v. Phipps, 317 U. S. 406, 411 (1943), that privity “turns on the facts of particular cases.” See Brief for Respondent Fairchild 20. That observation, however, scarcely implies that privity is governed by a diffuse balancing test.[Footnote 9] Fairchild also cites Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U. S. 313, 334 (1971), which stated that estoppel questions turn on “the trial courts’ sense of justice and equity.” See Brief for Respondent Fairchild 20. This passing statement, however, was not made with nonparty preclusion in mind; it appeared in a discussion recognizing district courts’ discretion to limit the use of issue preclusion against persons who were parties to a judgment. See Blonder-Tongue, 402 U. S., at 334. The FAA relies on United States v. Des Moines Valley R. Co., 84 F. 40 (CA8 1897), an opinion we quoted with approval in Schendel, 270 U. S., at 619–620. Des Moines Valley was a quiet title action in which the named plaintiff was the United States. The Government, however, had “no interest in the land” and had “simply permitted [the landowner] to use its name as the nominal plaintiff.” 84 F., at 42. The suit was therefore barred, the appeals court held, by an earlier judgment against the landowner. As the court explained: “[W]here the government lends its name as a plaintiff … to enable one private person to maintain a suit against another,” the government is “subject to the same defenses which exist … against the real party in interest.” Id., at 43. Des Moines Valley, the FAA contended at oral argument, demonstrates that it is sometimes appropriate to bind a nonparty in circumstances that do not fit within any of the established grounds for nonparty preclusion. See Tr. of Oral Arg. 31–33. Properly understood, however, Des Moines Valley is simply an application of the fifth basis for nonparty preclusion described above: A party may not use a representative or agent to relitigate an adverse judgment. See supra, at 12–13.[Footnote 10] We thus find no support in our precedents for the lax approach to nonparty preclusion advocated by respondents. Our second reason for rejecting a broad doctrine of virtual representation rests on the limitations attending nonparty preclusion based on adequate representation. A party’s representation of a nonparty is “adequate” for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned, see Hansberry, 311 U. S., at 43; and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty, see Richards, 517 U. S., at 801–802; supra, at 14–15. In addition, adequate representation sometimes requires (3) notice of the original suit to the persons alleged to have been represented, see Richards, 517 U. S., at 801.[Footnote 11] In the class-action context, these limitations are implemented by the procedural safeguards contained in Federal Rule of Civil Procedure 23. An expansive doctrine of virtual representation, however, would “recogniz[e], in effect, a common-law kind of class action.” Tice, 162 F. 3d, at 972 (internal quotation marks omitted). That is, virtual representation would authorize preclusion based on identity of interests and some kind of relationship between parties and nonparties, shorn of the procedural protections prescribed in Hansberry, Richards, and Rule 23. These protections, grounded in due process, could be circumvented were we to approve a virtual representation doctrine that allowed courts to “create de facto class actions at will.” Tice, 162 F. 3d, at 973. Third, a diffuse balancing approach to nonparty preclusion would likely create more headaches than it relieves. Most obviously, it could significantly complicate the task of district courts faced in the first instance with preclusion questions. An all-things-considered balancing approach might spark wide-ranging, time-consuming, and expensive discovery tracking factors potentially relevant under seven- or five-prong tests. And after the relevant facts are established, district judges would be called upon to evaluate them under a standard that provides no firm guidance. See Tyus, 93 F. 3d, at 455 (conceding that “there is no clear test for determining the applicability of” the virtual representation doctrine announced in that case). Preclusion doctrine, it should be recalled, is intended to reduce the burden of litigation on courts and parties. Cf. Montana, 440 U. S., at 153–154. “In this area of the law,” we agree, “ ‘crisp rules with sharp corners’ are preferable to a round-about doctrine of opaque standards.” Bittinger v. Tecumseh Products Co., 123 F. 3d 877, 881 (CA6 1997). C Finally, relying on the Eighth Circuit’s decision in Tyus, 93 F. 3d, at 456, the FAA maintains that nonparty preclusion should apply more broadly in “public-law” litigation than in “private-law” controversies. To support this position, the FAA offers two arguments. First, the FAA urges, our decision in Richards acknowledges that, in certain cases, the plaintiff has a reduced interest in controlling the litigation “because of the public nature of the right at issue.” Brief for Respondent FAA 28. When a taxpayer challenges “an alleged misuse of public funds” or “other public action,” we observed in Richards, the suit “has only an indirect impact on [the plaintiff’s] interests.” 517 U. S., at 803. In actions of this character, the Court said, “we may assume that the States have wide latitude to establish procedures … to limit the number of judicial proceedings that may be entertained.” Ibid. Taylor’s FOIA action falls within the category described in Richards, the FAA contends, because “the duty to disclose under FOIA is owed to the public generally.” See Brief for Respondent FAA 34. The opening sentence of FOIA, it is true, states that agencies “shall make [information] available to the public.” 5 U. S. C. §552(a) (2006 ed.). Equally true, we have several times said that FOIA vindicates a “public” interest. E.g., National Archives and Records Admin. v. Favish, 541 U. S. 157, 172 (2004). The Act, however, instructs agencies receiving FOIA requests to make the information available not to the public at large, but rather to the “person” making the request. §552(a)(3)(A). See also §552(a)(3)(B) (“In making any record available to a person under this paragraph, an agency shall provide the record in any [readily reproducible] form or format requested by the person … .” (emphasis added)); Brief for National Security Archive et al. as Amici Curiae 10 (“Government agencies do not systematically make released records available to the general public.”). Thus, in contrast to the public-law litigation contemplated in Richards, a successful FOIA action results in a grant of relief to the individual plaintiff, not a decree benefiting the public at large. Furthermore, we said in Richards only that, for the type of public-law claims there envisioned, States are free to adopt procedures limiting repetitive litigation. See 517 U. S., at 803. In this regard, we referred to instances in which the first judgment foreclosed successive litigation by other plaintiffs because, “under state law, [the suit] could be brought only on behalf of the public at large.” Id., at 804.[Footnote 12] Richards spoke of state legislation, but it appears equally evident that Congress, in providing for actions vindicating a public interest, may “limit the number of judicial proceedings that may be entertained.” Id., at 803. It hardly follows, however, that this Court should proscribe or confine successive FOIA suits by different requesters. Indeed, Congress’ provision for FOIA suits with no statutory constraint on successive actions counsels against judicial imposition of constraints through extraordinary application of the common law of preclusion. The FAA next argues that “the threat of vexatious litigation is heightened” in public-law cases because “the number of plaintiffs with standing is potentially limitless.” Brief for Respondent FAA 28 (internal quotation marks omitted). FOIA does allow “any person” whose request is denied to resort to federal court for review of the agency’s determination. 5 U. S. C. §552(a)(3)(A), (4)(B) (2006 ed.). Thus it is theoretically possible that several persons could coordinate to mount a series of repetitive lawsuits. But we are not convinced that this risk justifies departure from the usual rules governing nonparty preclusion. First, stare decisis will allow courts swiftly to dispose of repetitive suits brought in the same circuit. Second, even when stare decisis is not dispositive, “the human tendency not to waste money will deter the bringing of suits based on claims or issues that have already been adversely determined against others.” Shapiro 97. This intuition seems to be borne out by experience: The FAA has not called our attention to any instances of abusive FOIA suits in the Circuits that reject the virtual-representation theory respondents advocate here. IV For the foregoing reasons, we disapprove the theory of virtual representation on which the decision below rested. The preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion described in this opinion. See Part II–B, supra. Although references to “virtual representation” have proliferated in the lower courts, our decision is unlikely to occasion any great shift in actual practice. Many opinions use the term “virtual representation” in reaching results at least arguably defensible on established grounds. See 18A Wright & Miller §4457, pp. 535–539, and n. 38 (collecting cases). In these cases, dropping the “virtual representation” label would lead to clearer analysis with little, if any, change in outcomes. See Tice, 162 F. 3d, at 971. (“[T]he term ‘virtual representation’ has cast more shadows than light on the problem [of nonparty preclusion].”). In some cases, however, lower courts have relied on virtual representation to extend nonparty preclusion beyond the latter doctrine’s proper bounds. We now turn back to Taylor’s action to determine whether his suit is such a case, or whether the result reached by the courts below can be justified on one of the recognized grounds for nonparty preclusion. A It is uncontested that four of the six grounds for nonparty preclusion have no application here: There is no indication that Taylor agreed to be bound by Herrick’s litigation, that Taylor and Herrick have any legal relationship, that Taylor exercised any control over Herrick’s suit, or that this suit implicates any special statutory scheme limiting relitigation. Neither the FAA nor Fairchild contends otherwise. It is equally clear that preclusion cannot be justified on the theory that Taylor was adequately represented in Herrick’s suit. Nothing in the record indicates that Herrick understood himself to be suing on Taylor’s behalf, that Taylor even knew of Herrick’s suit, or that the Wyoming District Court took special care to protect Taylor’s interests. Under our pathmarking precedent, therefore, Herrick’s representation was not “adequate.” See Richards, 517 U. S., at 801–802. That leaves only the fifth category: preclusion because a nonparty to an earlier litigation has brought suit as a representative or agent of a party who is bound by the prior adjudication. Taylor is not Herrick’s legal representative and he has not purported to sue in a representative capacity. He concedes, however, that preclusion would be appropriate if respondents could demonstrate that he is acting as Herrick’s “undisclosed agen[t].” Brief for Petitioner 23, n. 4. See also id., at 24, n. 5. Respondents argue here, as they did below, that Taylor’s suit is a collusive attempt to relitigate Herrick’s action. See Brief for Respondent Fairchild 32, and n. 18; Brief for Respondent FAA 18–19, 33, 39. The D. C. Circuit considered a similar question in addressing the “tactical maneuvering” prong of its virtual representation test. See 490 F. 3d, at 976. The Court of Appeals did not, however, treat the issue as one of agency, and it expressly declined to reach any definitive conclusions due to “the ambiguity of the facts.” Ibid. We therefore remand to give the courts below an opportunity to determine whether Taylor, in pursuing the instant FOIA suit, is acting as Herrick’s agent. Taylor concedes that such a remand is appropriate. See Tr. of Oral Arg. 56–57. We have never defined the showing required to establish that a nonparty to a prior adjudication has become a litigating agent for a party to the earlier case. Because the issue has not been briefed in any detail, we do not discuss the matter elaboratively here. We note, however, that courts should be cautious about finding preclusion on this basis. A mere whiff of “tactical maneuvering” will not suffice; instead, principles of agency law are suggestive. They indicate that preclusion is appropriate only if the putative agent’s conduct of the suit is subject to the control of the party who is bound by the prior adjudication. See 1 Restatement (Second) of Agency §14, p. 60 (1957) (“A principal has the right to control the conduct of the agent with respect to matters entrusted to him.”).[Footnote 13] B On remand, Fairchild suggests, Taylor should bear the burden of proving he is not acting as Herrick’s agent. When a defendant points to evidence establishing a close relationship between successive litigants, Fairchild maintains, “the burden [should] shif[t] to the second litigant to submit evidence refuting the charge” of agency. Brief for Respondent Fairchild 27–28. Fairchild justifies this proposed burden-shift on the ground that “it is unlikely an opposing party will have access to direct evidence of collusion.” Id., at 28, n. 14. We reject Fairchild’s suggestion. Claim preclusion, like issue preclusion, is an affirmative defense. See Fed. Rule Civ. Proc. 8(c); Blonder-Tongue, 402 U. S., at 350. Ordinarily, it is incumbent on the defendant to plead and prove such a defense, see Jones v. Bock, 549 U. S. 199, 204 (2007), and we have never recognized claim preclusion as an exception to that general rule, see 18 Wright & Miller §4405, p. 83 (“[A] party asserting preclusion must carry the burden of establishing all necessary elements.”). We acknowledge that direct evidence justifying nonparty preclusion is often in the hands of plaintiffs rather than defendants. See, e.g., Montana, 440 U. S., at 155 (listing evidence of control over a prior suit). But “[v]ery often one must plead and prove matters as to which his adversary has superior access to the proof.” 2 K. Broun, McCormick on Evidence §337, p. 475 (6th ed. 2006). In these situations, targeted interrogatories or deposition questions can reduce the information disparity. We see no greater cause here than in other matters of affirmative defense to disturb the traditional allocation of the proof burden. * * * For the reasons stated, the judgment of the United States Court of Appeals for the District of Columbia Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Although Fairchild provided documents to the Wyoming District Court and filed an amicus brief in the Tenth Circuit, it was not a party to Herrick’s suit. See Herrick v. Garvey, 298 F. 3d 1184, 1188 (CA10 2002); Herrick v. Garvey, 200 F. Supp. 2d 1321, 1327 (Wyo. 2000). Footnote 2 The D. C. Circuit did not discuss the District Court’s distinction between public-law and private-law claims. Footnote 3 The Ninth Circuit applies a five-factor test similar to the D. C. Circuit’s. See Kourtis v. Cameron, 419 F. 3d 989, 996 (2005). The Fifth, Sixth, and Eleventh Circuits, like the Fourth Circuit, have constrained the reach of virtual representation by requiring, inter alia, the existence of a legal relationship between the nonparty to be bound and the putative representative. See Pollard v. Cockrell, 578 F. 2d 1002, 1008 (CA5 1978); Becherer v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 193 F. 3d 415, 424 (CA6 1999); EEOC v. Pemco Aeroplex, Inc., 383 F. 3d 1280, 1289 (CA11 2004). The Seventh Circuit, in contrast, has rejected the doctrine of virtual representation altogether. See Perry v. Globe Auto Recycling, Inc., 227 F. 3d 950, 953 (2000). Footnote 4 For judgments in diversity cases, federal law incorporates the rules of preclusion applied by the State in which the rendering court sits. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U. S. 497, 508 (2001). Footnote 5 These terms have replaced a more confusing lexicon. Claim preclusion describes the rules formerly known as “merger” and “bar,” while issue preclusion encompasses the doctrines once known as “collateral estoppel” and “direct estoppel.” See Migra v. Warren City School Dist. Bd. of Ed., 465 U. S. 75, 77, n. 1 (1984). Footnote 6 The established grounds for nonparty preclusion could be organized differently. See, e.g., 1 & 2 Restatement (Second) of Judgments §§39–62 (1980) (hereinafter Restatement); D. Shapiro, Civil Procedure: Preclusion in Civil Actions 75–92 (2001); 18A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4448, pp. 327–329 (2d ed. 2002) (hereinafter Wright & Miller). The list that follows is meant only to provide a framework for our consideration of virtual representation, not to establish a definitive taxonomy. Footnote 7 The Restatement observes that a nonparty may be bound not only by express or implied agreement, but also through conduct inducing reliance by others. See 2 Restatement §62. See also 18A Wright & Miller §4453, pp. 425–429. We have never had occasion to consider this ground for nonparty preclusion, and we express no view on it here. Footnote 8 The substantive legal relationships justifying preclusion are sometimes collectively referred to as “privity.” See, e.g., Richards v. Jefferson County, 517 U. S. 793, 798 (1996); 2 Restatement §62, Comment a. The term “privity,” however, has also come to be used more broadly, as a way to express the conclusion that nonparty preclusion is appropriate on any ground. See 18A Wright & Miller §4449, pp. 351–353, and n. 33 (collecting cases). To ward off confusion, we avoid using the term “privity” in this opinion. Footnote 9 Moreover, Coryell interpreted the term “privity” not in the context of res judicata, but as used in a statute governing shipowner liability. See Coryell v. Phipps, 317 U. S. 406, 407–408, and n. 1 (1943). And we made the statement Fairchild quotes in explaining why it was appropriate to defer to the findings of the lower courts, not as a comment on the substantive rules of privity. See id., at 411. Footnote 10 The FAA urges that there was no agency relationship between the landowner and the United States because the landowner did not control the U. S. Attorney’s conduct of the suit. See Tr. of Oral Arg. 33. That point is debatable. See United States v. Des Moines Valley R. Co., 84 F. 40, 42–43 (CA8 1897) (the United States was only a “nominal plaintiff”; it merely “len[t]” its name to the landowner). But even if the FAA is correct about agency, the United States plainly litigated as the landowner’s designated representative. See id., at 42 (“The bill does not attempt to conceal the fact that … its real purpose is to champion the cause of [the landowner] … .”). See also Chicago, R. I. & P. R. Co. v. Schendel, 270 U. S. 611, 618–620 (1926) (classifying Des Moines Valley with other cases of preclusion based on representation). Footnote 11 Richards suggested that notice is required in some representative suits, e.g., class actions seeking monetary relief. See 517 U. S., at 801 (citing Hansberry v. Lee, 311 U. S. 32, 40 (1940), Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 177 (1974), and Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 319 (1950)). But we assumed without deciding that a lack of notice might be overcome in some circumstances. See Richards, 517 U. S., at 801. Footnote 12 Nonparty preclusion in such cases ranks under the sixth exception described above: special statutory schemes that expressly limit subsequent suits. See supra, at 13. Footnote 13 Our decision in Montana v. United States, 440 U. S. 147 (1979), also suggests a “control” test for agency. In that case, we held that the United States was barred from bringing a suit because it had controlled a prior unsuccessful action filed by a federal contractor. See id., at 155. We see no reason why preclusion based on a lesser showing would have been appropriate if the order of the two actions had been switched—that is, if the United States had brought the first suit itself, and then sought to relitigate the same claim through the contractor. See Schendel, 270 U. S., at 618 (“[I]f, in legal contemplation, there is identity of parties” when two suits are brought in one order, “there must be like identity” when the order is reversed.). |
553.US.1 | The Internal Revenue Code requires a taxpayer seeking a refund of taxes unlawfully assessed to file an administrative claim with the Internal Revenue Service (IRS) before filing suit against the Government, see 26 U. S. C. §7422(a). Such claim must be filed within three years of the filing of a tax return or two years of the tax’s payment, whichever is later, see §6511(a). In contrast, the Tucker Act allows claims to be brought against the Government within six years of the challenged conduct. Respondent coal companies paid taxes on coal exports under a portion of the Code later invalidated under the Export Clause of the Constitution. They filed timely administrative claims and recovered refunds of their 1997–1999 taxes, but sought a refund of their 1994–1996 taxes in the Court of Federal Claims without complying with the Code’s refund procedures. Nevertheless, the court allowed them to proceed directly under the Export Clause and the Tucker Act. Affirming in relevant part, the Federal Circuit ruled that the companies could pursue their Export Clause claim despite their failure to file timely administrative refund claims. Held: The plain language of 26 U. S. C. §§7422(a) and 6511 requires a taxpayer seeking a refund for a tax assessed in violation of the Export Clause, just as for any other unlawfully assessed tax, to file a timely administrative refund claim before bringing suit against the Government. Pp. 4–12. (a) Because the companies did not file a refund claim with the IRS for the 1994–1996 taxes, they may, under §7422(a), bring “[n]o suit” in “any court” to recover “any internal revenue tax” or “any sum” alleged to have been wrongfully collected “in any manner.” Moreover, §6511’s time limits for filing administrative refund claims—set forth in an “unusually emphatic form,” United States v. Brockamp, 519 U. S. 347, 350—apply to “any tax imposed by [Title 26],” §6511(a) (emphasis added). Contrary to the companies’ claim that these statutes are ambiguous, the provisions clearly state that taxpayers must comply with the Code’s refund scheme before bringing suit, including the filing of a timely administrative claim. Indeed, this question was all but decided in United States v. A. S. Kreider Co., 313 U. S. 443, where the Court held that the limitations period in the Revenue Act then in effect, not the Tucker Act’s longer period, applied to tax refund actions. As was the case there, the current Code’s refund scheme would have “no meaning whatever,” id., at 448, if taxpayers failing to comply with it were nonetheless allowed to bring suit subject only to the Tucker Act’s longer time bar. Pp. 4–6. (b) The companies nonetheless assert that their claims are exempt from the Code provisions’ broad sweep because the claims derive from the Export Clause. The principles that a “constitutional claim can become time-barred just as any other claim can,” Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 292, and that Congress has the authority to require administrative exhaustion before allowing a suit against the Government, even for a constitutional violation, see, e.g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1018, are fully applicable to unconstitutional taxation claims. The companies’ attempt to distinguish Export Clause claims on the ground that the Clause is not simply a limitation on taxing authority but a prohibition carving particular economic activity out of Congress’s power is without substance and totally manipulable. There is no basis for treating taxes collected in violation of that Clause differently from taxes challenged on other grounds. Because the companies acknowledge that their claims are subject to the Tucker Act’s time bar, the question is not whether their refund claim can be limited, but rather which limitation applies. Their argument that, despite explicit and expansive statutory language, the Code’s refund scheme does not apply to their case as a matter of statutory interpretation is unavailing. They claim that Congress could not have intended it to apply a “constitutionally dubious” refund scheme to taxes assessed in violation of the Export Clause, but the statutory language emphatically covers the facts of this case. In any event, there is no constitutional problem. Congress’s detailed scheme is designed “to advise the appropriate officials of the demands or claims intended to be asserted, so as to insure an orderly administration of the revenue,” United States v. Felt & Tarrant Mfg. Co., 283 U. S. 269, 272, to provide that refund claims are made promptly, and to allow the IRS to avoid unnecessary litigation by correcting conceded errors. Even when a tax’s constitutionality is challenged, taxing authorities have an “exceedingly strong interest in financial stability,” McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 37, that they may pursue through provisions of the sort at issue. There is no reason why invoking the Export Clause would deprive Congress of the power to protect this interest. The companies’ claim that the Code procedures are excessively burdensome is belied by their own invocation of those procedures for taxes paid within the Code’s limitations period, which resulted in full refunds with interest. Pp. 6–10. (c) The companies’ fallback argument—that even if the refund scheme applies to Export Clause cases generally, it does not apply when taxes are unconstitutional on their face—is rejected. Enochs v. Williams Packing & Nav. Co., 370 U. S. 1, distinguished. Pp. 10–12. 473 F. 3d 1373, reversed. Roberts, C. J., delivered the opinion for a unanimous Court. | The Internal Revenue Code provides that taxpayers seeking a refund of taxes unlawfully assessed must comply with tax refund procedures set forth in the Code. Under those procedures, a taxpayer must file an administrative claim with the Internal Revenue Service before filing suit against the Government. Such a claim must be filed within three years of the filing of a return or two years of payment of the tax, whichever is later. The Tucker Act, in contrast, is more forgiving, allowing claims to be brought against the United States within six years of the challenged conduct. The question in this case is whether a taxpayer suing for a refund of taxes collected in violation of the Export Clause of the Constitution may proceed under the Tucker Act, when his suit does not meet the time limits for refund actions in the Internal Revenue Code. The answer is no. I A taxpayer seeking a refund of taxes erroneously or unlawfully assessed or collected may bring an action against the Government either in United States district court or in the United States Court of Federal Claims. 28 U. S. C. §1346(a)(1); EC Term of Years Trust v. United States, 550 U. S. ___, ___, and n. 2 (2007) (slip op., at 2, and n. 2). The Internal Revenue Code specifies that before doing so, the taxpayer must comply with the tax refund scheme established in the Code. United States v. Dalm, 494 U. S. 596, 609–610 (1990). That scheme provides that a claim for a refund must be filed with the Internal Revenue Service before suit can be brought, and establishes strict timeframes for filing such a claim. In particular, 26 U. S. C. §7422(a) specifies: “No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the [IRS].” The Code further establishes a time limit for filing such a refund claim with the IRS: To receive a “refund of an overpayment of any tax imposed by this title in respect of which tax the taxpayer is required to file a return,” a refund claim must be filed no later than “3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later.” §6511(a). And §6511(b)(1) mandates that “[n]o credit or refund shall be allowed or made” if a claim is not filed within the time limits set forth in §6511(a). “Read together, the import of these sections is clear: unless a claim for refund of a tax has been filed within the time limits imposed by §6511(a), a suit for refund … may not be maintained in any court.” Dalm, supra, at 602. In 1978, Congress levied a tax “on coal from mines located in the United States sold by the producer,” 26 U. S. C. §4121(a)(1), and specifically applied this tax to coal exports, see §4221(a) (1994 ed.) (excepting from the general ban on taxing exports those taxes imposed under, inter alia, §4121). In 1998, a group of companies challenged the tax in the District Court for the Eastern District of Virginia, contending that it violated the Export Clause of the Constitution. That Clause provides that “No Tax or Duty shall be laid on Articles exported from any State.” Art. I, §9, cl. 5. The District Court agreed and held the tax unconstitutional. Ranger Fuel Corp. v. United States, 33 F. Supp. 2d 466, 469 (1998). The Government did not appeal, and the IRS acquiesced in the District Court’s holding. See IRS Notice 2000–28, 2000–1 Cum. Bull. 1116, 1116–1117 (IRS Notice). The respondents here, three coal companies, had all paid taxes on coal exports under §4121(a) “[s]ince as early as 1978.” App. to Pet. for Cert. 36a. After §4121(a) was held unconstitutional as applied to coal exports, the companies filed timely administrative claims in accordance with the refund scheme outlined above, seeking a refund of coal taxes they had paid in 1997, 1998, and 1999. The IRS refunded those taxes, with interest. The companies also filed suit in the Court of Federal Claims seeking a refund of $1,065,936 in taxes paid between 1994 and 1996. They did not file any claim for those taxes with the IRS; any such claim would of course have been denied, given the limits set forth in §6511. See IRS Notice, at 1117 (“Claims [for a refund of taxes paid under §4121] must be filed within the period prescribed by §6511”). Notwithstanding the failure of the companies to file timely administrative refund claims, the Court of Federal Claims allowed the companies to pursue their suit directly under the Export Clause. Jurisdiction rested on the Tucker Act, 28 U. S. C. §1491(a)(1), and the companies limited their claim to taxes paid within that statute’s 6-year limitations period, §2501 (2000 ed. and Supp. V). In allowing the companies to proceed outside the confines of the Internal Revenue Code refund procedures, the court relied on the decision of the Court of Appeals for the Federal Circuit in Cyprus Amax Coal Co. v. United States, 205 F. 3d 1369 (2000). Andalex Resources, Inc. v. United States, 54 Fed. Cl. 563, 564 (2002). The Court of Federal Claims did not, however, allow the companies to recover interest on the taxes paid under 28 U. S. C. §2411. That provision requires the Government to pay interest “for any overpayment in respect of any internal-revenue tax,” but the court held that the statute applied only to refund claims brought under the Code, not to claims brought directly under the Export Clause. 54 Fed. Cl., at 566. The Court of Appeals affirmed in part and reversed in part. It first refused to revisit its holding in Cyprus Amax, and therefore upheld the ruling that the companies could pursue their claim under the Export Clause, despite having failed to file timely administrative refund claims. 473 F. 3d 1373, 1374–1375 (CA Fed. 2007). The Court of Appeals reversed the Court of Federal Claims interest holding, however, finding that the Government was required to pay the companies interest on the 1994–1996 amounts under §2411. Id., at 1376. We granted certiorari, 552 U. S. __ (2007), and now reverse. II A The outcome here is clear given the language of the pertinent statutory provisions. Title 26 U. S. C. §7422(a) states that “[n]o suit … shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund … has been duly filed with” the IRS. (Emphasis added.) Here the companies did not file a refund claim with the IRS for the 1994–1996 taxes, and therefore may bring “[n]o suit” in “any court” to recover “any internal revenue tax” or “any sum” alleged to have been wrongfully collected “in any manner.” Five “any’s” in one sentence and it begins to seem that Congress meant the statute to have expansive reach. Moreover, the time limits for filing administrative refund claims in §6511—set forth in an “unusually emphatic form,” United States v. Brockamp, 519 U. S. 347, 350 (1997)—apply to “any tax imposed by this title,” 26 U. S. C. §6511(a) (emphasis added). The statute further provides that “[n]o credit or refund shall be allowed or made after the expiration of the period of limitation prescribed in subsection (a) … unless a claim for credit or refund is filed by the taxpayer within such period.” §6511(b)(1). Again, this language on its face plainly covers the companies’ claim for a “refund” of “tax[es] imposed by” Title 26, specifically 26 U. S. C. §4121. The companies argue that these statutory provisions are ambiguous, Brief for Respondents 43–45, but we cannot imagine what language could more clearly state that taxpayers seeking refunds of unlawfully assessed taxes must comply with the Code’s refund scheme before bringing suit, including the requirement to file a timely administrative claim. Indeed, we all but decided the question presented over six decades ago in United States v. A. S. Kreider Co., 313 U. S. 443 (1941). Section 1113(a) of the Revenue Act of 1926, like the refund claim provision in §7422(a) of the current Code, prescribed that “[n]o suit or proceeding shall be maintained in any court for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected until a claim for refund or credit has been duly filed with the Commissioner of Internal Revenue,” and established a time limit for bringing suit once the claim-filing requirement had been met. 44 Stat. 116. Like the companies here, A. S. Kreider had failed to file a tax-refund action within that limitations period. See 313 U. S., at 446. And, like the companies here, A. S. Kreider argued that it was instead subject only to the longer 6-year statute of limitations under the Tucker Act. Id., at 447. We rejected the claim, holding that the Tucker Act limitations period “was intended merely to place an outside limit on the period within which all suits must be initiated” under that Act, and that “Congress left it open to provide less liberally for particular actions which, because of special considerations, required different treatment.” Ibid. We held that the limitations period in §1113(a) was “precisely that type of provision,” finding that Congress created a shorter statute of limitations for tax claims because “suits against the United States for the recovery of taxes impeded effective administration of the revenue laws.” Ibid. If such suits were allowed to be brought subject only to the 6-year limitations period in the Tucker Act, we explained, §1113(a) would have “no meaning whatever.” Id., at 448. So too here. The refund scheme in the current Code would have “no meaning whatever” if taxpayers failing to comply with it were nonetheless allowed to bring suit subject only to the Tucker Act’s longer time bar. B The companies gamely argue for a different result here because the coal tax at issue was assessed in violation of the Export Clause of the Constitution. They spend much of their brief arguing that the Export Clause itself creates a cause of action against the Government, which can be brought directly under the Tucker Act. See Brief for Respondents 8–25. We need not decide this question here, because it does not matter. If the companies’ claims are subject to the Code provisions, those claims are barred whatever the source of the cause of action. We there- fore turn to the companies’ assertion that their claims are somehow exempt from the broad sweep of the Code provisions. The companies do not argue for such an exemption simply because their claims are based on a constitutional violation. As they acknowledge, id., at 34, a “constitutional claim can become time-barred just as any other claim can,” Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 292 (1983). Further, Congress has the authority to require administrative exhaustion before allowing a suit against the Government, even for a constitutional violation. See, e.g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1018 (1984); Christian v. New York State Dept. of Labor, 414 U. S. 614, 622 (1974); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, 766–767 (1947). These principles are fully applicable to claims of unconstitutional taxation, a point highlighted by what we have said in other cases about the Anti-Injunction Act. That statute commands that (absent certain exceptions) “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” 26 U. S. C. §7421(a). The “decisions of this Court make it unmistakably clear that the constitutional nature of a taxpayer’s claim … is of no consequence” to whether the prohibition against tax injunctions applies. Alexander v. “Americans United” Inc., 416 U. S. 752, 759 (1974). This is so even though the Anti-Injunction Act’s prohibitions impose upon the wronged taxpayer requirements at least as onerous as those mandated by the refund scheme—the taxpayer must succumb to an unconstitutional tax, and seek recourse only after it has been unlawfully exacted. We see no reason why compliance with straightforward administrative requirements and reasonable time limits to seek a refund once a tax has been paid should lead to a different result. The companies assert that Export Clause claims in particular must be treated differently from constitutional claims in general. This is so, they argue, because the Clause is not simply a limitation on the taxing authority but a prohibition that “carves one particular economic activity completely out of Congress’s power.” Brief for Respondents 11. That distinction is without substance and totally manipulable: If the pertinent authority is regarded as the power to tax exports, the Clause is indeed a complete prohibition on congressional power. But if the pertinent authority is instead viewed as the “Power To lay and collect Taxes,” U. S. Const., Art. I, §8, cl. 1, then the Clause is properly regarded as a limitation on that power. We do not question the importance of the Export Clause to the success of the enterprise in Philadelphia in 1787, see Brief for Respondents 11–13, but we see no basis for treating taxes collected in violation of its terms differently from taxes challenged on other grounds. Indeed, the companies more or less give up the game when they acknowledge that their claims are subject to the Tucker Act’s statute of limitations. See id., at 34. The question is thus not whether the companies’ refund claim under the Export Clause can be limited, but rather which limitation applies. The companies are therefore left to argue that, despite the explicit and expansive statutory language described above, the refund scheme in Title 26 does not apply to their case as a matter of statutory interpretation. We find this ambitious argument unavailing. The companies seek to support it by characterizing the refund scheme set out in the Code as “pro-government and revenue-protective,” and therefore “constitutionally dubious” as applied to Export Clause cases. Id., at 28–29. Given this potential constitutional infirmity, the companies argue, Congress could not have intended the refund scheme to apply to taxes assessed in violation of the Export Clause. See Ashwander v. TVA, 297 U. S. 288, 341 (1936) (Brandeis, J., concurring). We disagree. To begin with, any argument that Congress did not mean to require those in the companies’ position to comply with the tax refund scheme runs into a powerful impediment, for “[t]he ‘strong presumption’ that the plain language of the statute expresses congressional intent is rebutted only in ‘rare and exceptional circumstances.’ ” Ardestani v. INS, 502 U. S. 129, 135 (1991) (quoting Rubin v. United States, 449 U. S. 424, 430 (1981)). As we have already explained, the language of the relevant statutes emphatically covers the facts of this case. In any event, we see no constitutional problem at all. Congress has indeed established a detailed refund scheme that subjects complaining taxpayers to various requirements before they can bring suit. This scheme is designed “to advise the appropriate officials of the demands or claims intended to be asserted, so as to insure an orderly administration of the revenue,” United States v. Felt & Tarrant Mfg. Co., 283 U. S. 269, 272 (1931), to provide that refund claims are made promptly, and to allow the IRS to avoid unnecessary litigation by correcting conceded errors. Even when the constitutionality of a tax is challenged, taxing authorities do in fact have an “exceedingly strong interest in financial stability,” McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 37 (1990), an interest they may pursue through provisions of the sort at issue here. We do not see why invocation of the Export Clause would deprive Congress of the power to protect this “exceedingly strong interest.” Congress may not impose a tax in violation of the Export Clause (or any other constitutional provision, for that matter). But it is certainly within Congress’s authority to assure that allegations of taxes unlawfully assessed—whether the asserted illegality is based upon the Export Clause or any other provision of law—are processed in an orderly and timely manner, and that costly litigation is avoided when possible. The companies’ claim that the Code procedures are themselves excessively burdensome is belied by the companies’ own invocation of those procedures for taxes paid within the Code’s limitations period, which resulted in full refunds with interest. C As a fallback argument, the companies maintain that even if the refund scheme applies to Export Clause cases generally, it does not “apply to taxes that are, on their face, unconstitutional.” Brief for Respondents 39. They rely for this proposition on Enochs v. Williams Packing & Nav. Co., 370 U. S. 1 (1962), a case dealing with the Anti-Injunction Act, 26 U. S. C. §7421(a). Despite that Act’s broad and mandatory language, we explained that “if it is clear that under no circumstances could the Government ultimately prevail, … the attempted collection may be enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely in ‘the guise of a tax.’ ” 370 U. S., at 7 (quoting Miller v. Standard Nut Margarine Co. of Fla., 284 U. S. 498, 509 (1932)). See also Bob Jones Univ. v. Simon, 416 U. S. 725, 745–746 (1974) (reaffirming the “under no circumstances” rule of Williams Packing). On the force of Williams Packing, the companies argue that the refund scheme should similarly be read as inapplicable to situations in which there are “no circumstances” under which the tax imposed could be held valid under the Export Clause. The trouble with this is that §7422, the primary statute governing the refund process, is written much more broadly than §7421(a), the statute at issue in Williams Packing. Section §7422(a) states that “[n]o suit … shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected … until a claim for refund or credit has been duly filed with the” IRS. (Emphasis added.) This language generally tracks that of the Anti-Injunction Act, which also applies to suits “restraining the assessment or collection of any tax.” §7421(a) (emphasis added). But §7422(a) goes on to apply its prohibition against suit absent a proper refund claim to “any sum alleged to have been excessive or in any manner wrongfully collected.” (Emphasis added.) Even if we agreed that a facially unconstitutional tax for purposes of the tax refund scheme is “merely in ‘the guise of a tax,’ ” Williams Packing, supra, at 7 (quoting Standard Nut Margarine, supra, at 509), and therefore not a “tax alleged to have been erroneously or illegally assessed or collected,” §7422(a), it would nevertheless clearly fall into the broader category of “any sum … in any manner wrongfully collected,” ibid. Moreover, even if we were to accept the companies’ argument that the “under no circumstances” limitation on the Anti-Injunction Act applies to the refund scheme, they still would not prevail. We made clear in Williams Packing that “the question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained.” 370 U. S., at 7. A tax injunction suit, of course, is brought at the time the Government attempts to assess a tax on the taxpayer. Thus, if we applied the Williams Packing “under no circumstances” rule to the refund scheme, we would judge the Government’s chances of success as of the time the tax was assessed. In this case, the companies seek refunds for taxes paid between 1994 and 1996. At that time, the scope of the Export Clause was sufficiently debatable that we granted certiorari in 1996, see United States v. International Business Machines Corp., 517 U. S. 843, and again in 1998, see United States v. United States Shoe Corp., 523 U. S. 360, to clear it up. What is more, the District Court that struck down the application of §4121(a) to coal exports partially relied on these cases in arriving at its decision, Ranger Fuel Corp., 33 F. Supp. 2d, at 469, and the IRS cited, inter alia, International Business Machines, supra, in its acquiescence notice, see IRS Notice, at 1116. Indeed, we would think that if the unconstitutionality of the coal export tax were so obvious that the Government had no chance of prevailing, someone paying the tax—such as these companies—would have successfully challenged it earlier than 20 years after its enactment. We therefore hold that the plain language of 26 U. S. C. §§7422(a) and 6511 requires a taxpayer seeking a refund for a tax assessed in violation of the Export Clause, just as for any other unlawfully assessed tax, to file a timely administrative refund claim before bringing suit against the Government. Because we find that the Court of Appeals erred in allowing the companies to bring suit seeking a refund for the 1994–1996 taxes, we do not reach the question whether the Court of Appeals also erred in awarding the companies interest on those amounts under 28 U. S. C. §2411. The judgment of the Court of Appeals is reversed. It is so ordered. |
553.US.272 | After respondent gave false information on his customs form while attempting to enter the United States, a search of his car revealed explosives that he intended to detonate in this country. He was convicted of, inter alia, (1) feloniously making a false statement to a customs official in violation of 18 U. S. C. §1001, and (2) “carr[ying] an explosive during the commission of” that felony in violation of §844(h)(2). The Ninth Circuit set aside the latter conviction because it read “during” in §844(h)(2) to include a requirement that the explosive be carried “in relation to” the underlying felony. Held: Since respondent was carrying explosives when he violated §1001, he was carrying them “during” the commission of that felony. The most natural reading of §844(h)(2) provides a sufficient basis for reversal. It is undisputed that the items in respondent’s car were “explosives,” and that he was “carr[ying]” those explosives when he knowingly made false statements to a customs official in violation of §1001. Dictionary definitions need not be consulted to arrive at the conclusion that he engaged in §844(h)(2)’s precise conduct. “[D]uring” denotes a temporal link. Because his carrying of explosives was contemporaneous with his §1001 violation, he carried them “during” that violation. The statute’s history further supports the conclusion that Congress did not intend a relational requirement in §844(h) as presently written. Pp. 2–6 474 F. 3d 597, reversed. Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Ginsburg, and Alito, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part I. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Scalia, J., joined. Breyer, J., filed a dissenting opinion. | Respondent attempted to enter the United States by car ferry at Port Angeles, Washington. Hidden in the trunk of his rental car were explosives that he intended to detonate at the Los Angeles International Airport. After the ferry docked, respondent was questioned by a customs official, who instructed him to complete a customs declaration form; respondent did so, identifying himself on the form as a Canadian citizen (he is Algerian) named Benni Noris (his name is Ahmed Ressam). Respondent was then directed to a secondary inspection station, where another official performed a search of his car. The official discovered explosives and related items in the car’s spare tire well. Respondent was subsequently convicted of a number of crimes, including the felony of making a false statement to a United States customs official in violation of 18 U. S. C. §1001 (1994 ed., Supp. V) (Count 5) and carrying an explosive “during the commission of” that felony in violation of §844(h)(2) (1994 ed.) (Count 9). The Court of Appeals for the Ninth Circuit set aside his conviction on Count 9 because it read the word “during,” as used in §844(h)(2), to include a requirement that the explosive be carried “in relation to” the underlying felony. 474 F. 3d 597 (2007). Because that construction of the statute conflicted with decisions of other Courts of Appeals, we granted certiorari.[Footnote 1] 552 U. S. ___ (2007). I The most natural reading of the relevant statutory text provides a sufficient basis for reversal. That text reads: “Whoever— “(1) uses fire or an explosive to commit any felony which may be prosecuted in a court of the United States, or “(2) carries an explosive during the commission of any felony which may be prosecuted in a court of the United States, “including a felony which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for 10 years.” 18 U. S. C. §844(h). It is undisputed that the items hidden in respondent’s car were “explosives.”[Footnote 2] It is also undisputed that respondent was “carr[ying]” those explosives when he knowingly made false statements to a customs official, and that those statements violated §1001 (1994 ed., Supp. V). There is no need to consult dictionary definitions of the word “during” in order to arrive at the conclusion that respondent engaged in the precise conduct described in §844(h)(2) (1994 ed.). The term “during” denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because respondent’s carrying of the explosives was contemporaneous with his violation of §1001, he carried them “during” that violation. II The history of the statute we construe today further supports our conclusion that Congress did not intend to require the Government to establish a relationship between the explosive carried and the underlying felony. Congress originally enacted §844(h)(2) as part of its “Regulation of Explosives” in Title XI of the Organized Crime Control Act of 1970, 84 Stat. 957. The provision was modeled after a portion of the Gun Control Act of 1968, §102, 82 Stat. 1224, codified, as amended, at 18 U. S. C. §924(c) (2000 ed. and Supp. V). The earlier statute mandated at least 1 and no more than 10 years’ imprisonment for any person who “carries a firearm unlawfully during the commission of any felony which may be prosecuted in a court of the United States.” 18 U. S. C. §924(c)(2) (1964 ed., Supp. IV). Except for the word “explosive” in §844(h)(2), instead of the word “firearm” in §924(c)(2), the two provisions as originally enacted were identical. In 1984, Congress redrafted the firearm statute; it increased the penalties attached to the provision and, most significantly for our purposes, deleted the word “unlawfully” and inserted the words “and in relation to” immediately after the word “during.” §1005(a), 98 Stat. 2138. Reviewing a conviction for an offense that was committed before the amendment but not decided on appeal until after its enactment, the Ninth Circuit held that the original version of the firearm statute had implicitly included the “in relation to” requirement that was expressly added while the case was pending on appeal. As then-Judge Kennedy explained: “The statute as written when Stewart committed the offense provided in pertinent part that it was a crime to ‘carr[y] a firearm unlawfully during the commission of any felony… .’ 18 U. S. C. §924(c)(2) (1982). In 1984, Congress revised section 924(c) … . The 1984 amendment substituted for the word ‘during’ the phrase ‘during and in relation to.’ 18 U. S. C. A. §924(c) (West Supp. 1985) (emphasis added). Our study of the legislative history of the amendment … indicates the ‘in relation to’ language was not intended to create an element of the crime that did not previously exist, but rather was intended to make clear a condition already implicit in the statute. The legislative history reveals that because the amendment eliminated the requirement that the firearm be carried unlawfully, 18 U. S. C. A. §924(c) (West Supp. 1985), the ‘in relation to’ language was added to allay explicitly the concern that a person could be prosecuted under section 924(c) for committing an entirely unrelated crime while in possession of a firearm. Though the legislative history does not say so expressly, it strongly implies that the ‘in relation to’ language did not alter the scope of the statute … .” United States v. Stewart, 779 F. 2d 538, 539–540 (1985) (citations omitted). Relying on that Circuit precedent, the Court of Appeals in this case concluded that the explosives statute, like the firearm statute, implicitly included a requirement of a relationship between possession of the item in question and the underlying felony. Whatever the merits of the argument that §924(c) as originally enacted contained a relational requirement, the subsequent changes to both statutes convince us that the Government’s reading of §844(h) as presently written is correct. III In 1988, Congress enacted the “Explosives Offenses Amendments,” §6474(b), 102 Stat. 4379, which modified the text of §844(h). Those amendments increased the penalties for violating the provision, §6474(b)(2), id., at 4380; they also deleted the word “unlawfully,” §6474(b)(1), ibid. Unlike its earlier amendment to the firearm statute, however, Congress did not also insert the words “and in relation to” after the word “during.” While it is possible that this omission was inadvertent, that possibility seems remote given the stark difference that was thereby introduced into the otherwise similar texts of 18 U. S. C. §§844(h) and 924(c). Even if the similarity of the original texts of the two statutes might have supported an inference that both included an implicit relationship requirement, their current difference virtually commands the opposite inference. While the two provisions were initially identical, Congress’ replacement of the word “unlawfully” in the firearm statute with the phrase “and in relation to,” coupled with the deletion of the word “unlawfully” without any similar replacement in the explosives statute, convinces us that Congress did not intend to introduce a relational requirement into the explosives provision, but rather intended us to accept the more straightforward reading of §844(h). Since respondent was carrying explosives when he violated §1001, he was carrying them “during” the commission of that felony. The statute as presently written requires nothing further. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Footnote 1 Both the Third and Fifth Circuits have declined to interpret §844(h)(2) as requiring that the explosive be carried in relation to the underlying felony. See United States v. Rosenberg, 806 F. 2d 1169, 1178–1179 (CA3 1986) (“The plain everyday meaning of ‘during’ is ‘at the same time’ or ‘at a point in the course of… . It does not normally mean ‘at the same time and in connection with… .’ It is not fitting for this court to declare that the crime defined by §844(h)(2) has more elements than those enumerated on the face of the statute”); United States v. Ivy, 929 F. 2d 147, 151 (CA5 1991) (“Section 844(h)(2) … does not include the relation element Ivy urges… . We … refuse to judicially append the relation element to §844(h)(2)”). Footnote 2 Because respondent concedes that the items in his car were “explosives,” we have no occasion to determine the boundaries of that term as used in the statute. Specifically, we do not comment on when, if ever, “such commonplace materials as kerosene, gasoline, or certain fertilizers,” post, at 2 (Breyer, J., dissenting), might fall within the definition of “explosive.” |
553.US.377 | Upon respondent’s federal conviction for possession of a firearm by a convicted felon, 18 U. S. C. §922(g)(1), he had three prior Washington state convictions for delivery of a controlled substance. At the time of those convictions, Washington law specified a maximum 5-year prison term for the first such offense. A recidivist provision, however, set a 10-year ceiling for a second or subsequent offense, and the state court had sentenced respondent to concurrent 48-month sentences on each count. The Government contended in the federal felon-in-possession case that respondent should be sentenced under the Armed Career Criminal Act (ACCA), §924(e), which sets a 15-year minimum sentence “[i]n the case of a person who violates [§922(g)] and has three previous convictions … for a … serious drug offense,” §924(e)(1). Because a state drug-trafficking conviction qualifies as “a serious drug offense” if “a maximum term of imprisonment of ten years or more is prescribed by law” for the “offense,” §924(e)(2)(A)(ii), and the maximum term on at least two of respondent’s Washington crimes was 10 years under the state recidivist provision, the Government argued that these convictions had to be counted under ACCA. The District Court disagreed, holding that the “maximum term of imprisonment” for §924(e)(2)(A)(ii) purposes is determined without reference to recidivist enhancements. The Ninth Circuit affirmed. Held: The “maximum term of imprisonment … prescribed by law” for the state drug convictions at issue was the 10-year maximum set by the applicable state recidivist provision. Pp. 3–14. (a) This reading is compelled by a straightforward application of §924(e)(2)(A)(ii)’s three key terms: “offense,” “law,” and “maximum term.” The “offense” was the crime charged in each of respondent’s drug-delivery cases. And because the relevant “law” is the state statutes prescribing 5- and 10-year prison terms, the “maximum term” prescribed for at least two of respondent’s state drug offenses was 10 years. The Ninth Circuit’s holding that the maximum term was 5 years contorts ACCA’s plain terms. Although the state court sentenced respondent to 48 months, there is no dispute that state law permitted a sentence of up to 10 years. The Circuit’s interpretation is also inconsistent with how the concept “maximum term of imprisonment” is customarily understood by participants in the criminal justice process. Pp. 3–5. (b) Respondent’s textual argument—that because “offense” generally describes a crime’s elements, while prior convictions required for recidivist enhancements are not typically elements, such convictions are not part of the ACCA “offense,” and the “maximum term” for the convictions at issue was the 5-year ceiling for simply committing the drug offense elements—is not faithful to the statutory text, which refers to the maximum 10-year term prescribed by Washington law for each of respondent’s two relevant offenses. Respondent’s “manifest purpose” argument—that because ACCA uses the maximum state-law penalty as shorthand for conduct sufficiently serious to trigger the mandatory penalty, while an offense’s seriousness is typically gauged by the nature of the defendant’s conduct, the offense’s elements, and the crime’s impact, a defendant’s recidivist status has no connection to whether his offense was serious—rests on the erroneous proposition that a prior record has no bearing on an offense’s seriousness. Respondent’s understanding of recidivism statutes has been has squarely rejected. See, e.g., Nichols v. United States, 511 U. S. 738, 747. Pp. 5–7. (c) Respondent’s argument that the Court’s ACCA interpretation produces a perverse bootstrapping whereby a defendant is punished under federal law for being treated as a recidivist under state law is rejected. The Court’s reading is bolstered by the fact that ACCA is itself a recidivist statute, so that Congress must have understood that the “maximum penalty prescribed by [state] law” could be increased by state recidivism provisions. Contrary to respondent’s suggestion, United States v. LaBonte, 520 U. S. 751—in which the Court held that the phrase “maximum term authorized” in 28 U. S. C. §994(h) “refers to all applicable statutes,” including recidivist enhancements—supports the Court’s ACCA interpretation. Respondent’s reliance on Taylor v. United States, 495 U. S. 575, is also misplaced: There is no connection between the issue there (the meaning of “burglary” in §924(e)(2)(B)(ii)) and the meaning of “maximum term of imprisonment … prescribed by law” in §924(e)(2)(A)(ii). Respondent argues unpersuasively that, under today’s interpretation, offenses that are not really serious will be included as “serious drug offense[s]” because of recidivist enhancements. Since Congress presumably thought that state lawmakers must consider a crime “serious” when they provide a 10-year sentence for it, this Court’s holding poses no risk that a drug-trafficking offense will be treated as “serious” without satisfying the standard Congress prescribed. Pp. 7–9. (d) Also rejected is respondent’s argument that the Court’s holding will often require federal courts to engage in difficult inquiries regarding novel state-law questions and complex factual determinations about long-past state-court proceedings. Respondent greatly exaggerates the difficulties because (1) receipt of a recidivist enhancement will necessarily be evident from the sentence’s length in some cases; (2) the conviction judgment will sometimes list the maximum possible sentence even where the sentence actually imposed did not exceed the top sentence allowed without recidivist enhancement; (3) some jurisdictions require the prosecution to submit a publicly available charging document to obtain a recidivist enhancement; (4) a plea colloquy will often include a statement by the trial judge regarding the maximum penalty; and (5) where the records do not show that the defendant faced a recidivist enhancement, the Government may well be precluded from establishing that a conviction was for a qualifying offense. Merely because future cases might present difficulties cannot justify disregarding ACCA’s clear meaning. Pp. 10–11. (e) Also unavailing is respondent’s argument that if recidivist enhancements can increase the “maximum term” under ACCA, then mandatory guidelines systems capping sentences can decrease the “maximum term,” whereas Congress cannot have wanted to make the “maximum term” dependent on the complexities of state sentencing guidelines. The phrase “maximum term of imprisonment … prescribed by law” for the “offense” could not have been meant to apply to the top sentence in a guidelines range because (1) such a sentence is generally not really the maximum because guidelines systems typically allow a sentencing judge to impose a sentence that exceeds the top of the guidelines range under appropriate circumstances; and (2) in all of the many statutes predating ACCA and the federal Sentencing Reform Act of 1984 that used the concept of the “maximum” term prescribed by law, the concept necessarily referred to the maximum term prescribed by the relevant criminal statute, not the top of a sentencing guideline range. United States v. R. L. C., 503 U. S. 291, 295, n. 1, 299, distinguished. Pp. 11–14. 464 F. 3d 1072, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, and Breyer, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined. | Under the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(A)(ii), a state drug-trafficking conviction qualifies as “a serious drug offense” if “a maximum term of imprisonment of ten years or more is prescribed by law” for the “offense.” The Court of Appeals for the Ninth Circuit held that “the maximum term of imprisonment . . . prescribed by law” must be determined without taking recidivist enhancements into account. 464 F. 3d 1072, 1082 (2006). We reverse. I At issue in this case is respondent’s sentence on his 2004 conviction in the United States District Court for the Eastern District of Washington for possession of a firearm by a convicted felon, in violation of 18 U. S. C. §922(g)(1). Respondent had two prior state convictions in California for residential burglary and three state convictions in Washington for delivery of a controlled substance, in violation of Wash. Rev. Code §§69.50.401(a)(1)(ii)–(iv) (1994).[Footnote 1] Respondent’s three Washington drug convictions occurred on the same day but were based on deliveries that took place on three separate dates. Sentencing Order No. CR–03–142–RHW (ED Wash., Sept. 3, 2004), p. 5, App. 245, 250 (hereinafter Sentencing Order). At the time of respondent’s drug offenses, the Washington statute that respondent was convicted of violating stated that, upon conviction, a defendant could be “imprisoned for not more than five years,” §§69.50.401(a)(1)(ii)–(iv), but another provision specified that “[a]ny person convicted of a second or subsequent offense” could “be imprisoned for a term up to twice the term otherwise authorized,” §69.50.408(a). Thus, by virtue of this latter, recidivist, provision respondent faced a maximum penalty of imprisonment for 10 years. The judgment of conviction for each of the drug-delivery charges listed the maximum term of imprisonment for the offense as “ten years,” App. 16, 42, 93, but the state court sentenced respondent to concurrent sentences of 48 months’ imprisonment on each count. Id., at 21, 47, 98. In the federal felon-in-possession case, the Government asked the District Court to sentence respondent under ACCA, which sets a 15-year minimum sentence “[i]n the case of a person who violates section 922(g) of [Title 18] and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another … .” 18 U. S. C. §924(e)(1) (2000 ed., Supp. V). The Government argued that respondent’s two prior California burglary convictions were for “ ‘violent felonies.’ ” Pet. for Cert. 4. See §924(e)(2)(B)(ii) (2000 ed.) (listing “burglary” as a “violent felony”). The District Court agreed, and that ruling is not at issue here. The Government also argued that at least two of respondent’s Washington drug convictions were for “serious drug offense[s].” Under ACCA, a “serious drug offense” includes: “an offense under State law, involving manufacturing, distributing, or possessing with intent to distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U. S. C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.” §924(e)(2)(A) (emphasis added). Because the maximum term that respondent faced on at least two of the Washington charges was 10 years, the Government contended that these convictions had to be counted under ACCA. The District Court disagreed, holding that respondent’s drug-trafficking convictions were not convictions for “serious drug offense[s]” under ACCA because the “maximum term of imprisonment” for the purposes of §924(e)(2)(A)(ii) is determined without reference to recidivist enhancements. Sentencing Order, at 9, App. 254. The Court of Appeals for the Ninth Circuit, applying its prior precedent in United States v. Corona-Sanchez, 291 F. 3d 1201 (2002) (en banc), affirmed. 464 F. 3d 1072. The Court recognized that its decision conflicted with the Seventh Circuit’s decision in United States v. Henton, 374 F. 3d 467, 469–470, cert. denied, 543 U. S. 967 (2004), and was “in tension” with decisions of the Fourth and Fifth Circuits. 464 F. 3d, at 1082, n. 6; see Mutascu v. Gonzales, 444 F. 3d 710, 712 (CA5 2006) (per curiam); United States v. Williams, 326 F. 3d 535, 539 (CA4 2003). We granted the Government’s petition for a writ of certiorari, 551 U. S. ___ (2007). II The question that we must decide is whether the “maximum term of imprisonment prescribed by law” in this case is, as respondent maintains and the Ninth Circuit held, the 5-year ceiling for first offenses or, as the Government contends, the 10-year ceiling for second or subsequent offenses. See Wash. Rev. Code §§69.50.401(a) (ii)–(iv), 69.50.408(a). The Government’s reading is compelled by the language of ACCA. For present purposes, there are three key statutory terms: “offense,” “law,” and “maximum term.” The “offense” in each of the drug-delivery cases was a violation of §§69.50.401(a)(ii)–(iv). The relevant “law” is set out in both that provision, which prescribes a “maximum term” of five years for a first “offense,” and §69.50.408(a), which prescribes a “maximum term” of 10 years for a second or subsequent “offense.” Thus, in this case, the maximum term prescribed by Washington law for at least two of respondent’s state drug offenses was 10 years. The Ninth Circuit’s holding that the maximum term was five years contorts ACCA’s plain terms. Although the Washington state court sentenced respondent to 48 months’ imprisonment, there is no dispute that §69.50.408(a) permitted a sentence of up to 10 years. On the Ninth Circuit’s reading of ACCA, even if respondent had been sentenced to, say, six years’ imprisonment, “the maximum term of imprisonment” prescribed by law still would have been five years. It is hard to accept the proposition that a defendant may lawfully be sentenced to a term of imprisonment that exceeds the “maximum term of imprisonment . . . prescribed by law,” but that is where the Ninth Circuit’s reading of the statute leads. The Ninth Circuit’s interpretation is also inconsistent with the way in which the concept of the “maximum term of imprisonment” is customarily understood by participants in the criminal justice process. Suppose that a defendant who indisputably had more than three prior convictions for “violent felon[ies]” or “serious drug offense[s]” was charged in federal court with violating the felon-in-possession statute. Under ACCA, this defendant would face a sentence of “not less than 15 years.” 18 U. S. C. §924(e)(1) (2000 ed., Supp. V). Suppose that the defendant asked his or her attorney, “What’s the maximum term I face for the new offense?” An attorney aware of ACCA would surely not respond, “10 years,” even though 10 years is the maximum sentence without the ACCA enhancement. See §924(a)(2) (2000 ed.). Suppose that the defendant then pleaded guilty to the felon-in-possession charge. Under Federal Rule of Criminal Procedure 11(b)(1)(H), the trial judge would be required to advise the defendant of the “maximum possible penalty.” If the judge told the defendant that the maximum possible sentence was 10 years and then imposed a sentence of 15 years based on ACCA, the defendant would have been sorely misled and would have a ground for moving to withdraw the plea. See United States v. Gonzalez, 420 F. 3d 111, 132 (CA2 2005); United States v. Harrington, 354 F. 3d 178, 185–186 (CA2 2004). In sum, a straightforward application of the language of ACCA leads to the conclusion that the “maximum term of imprisonment prescribed by law” in this case was 10 years. III A In an effort to defend the Ninth Circuit’s decision, respondent offers both a textual argument and a related argument based on the “manifest purpose” of ACCA. Brief for Respondent 8. Respondent’s textual argument is as follows. The term “offense” “generally is understood to describe the elements constituting the crime.” Id., at 10. Because prior convictions required for recidivist enhancements are not typically offense elements, they should not be considered part of the “offense” under ACCA. Thus, the “maximum term of imprisonment prescribed by law” for the drug convictions at issue was the maximum term prescribed for simply committing the elements of the drug offense and was therefore five years. Id., at 10–11. Respondent’s argument is not faithful to the statutory text. Respondent reads ACCA as referring to “the maximum term of imprisonment prescribed by law” for a defendant with no prior convictions that trigger a recidivist enhancement, but that is not what ACCA says. ACCA instead refers to “the maximum term of imprisonment prescribed by law” for “an offense,” and, as previously explained, in this case, the maximum term prescribed by Washington law for each of respondent’s two relevant offenses was 10 years. Respondent’s argument based on ACCA’s “manifest purpose” must also be rejected. Respondent argues that ACCA uses “the maximum penalty specified for the offense by state law as a short-hand means of identifying conduct deemed sufficiently ‘serious’ to trigger [the] mandatory penalty.” Id., at 9. According to respondent, “[t]he nature of [a defendant’s] conduct, the elements of the offense, and the impact of the crime . . . are the characteristics that typically are used to gauge the ‘seriousness’ of an offense,” and a defendant’s “status as a recidivist has no connection to whether the offense committed by the defendant was a ‘serious’ one.” Id., at 11. This argument rests on the erroneous proposition that a defendant’s prior record of convictions has no bearing on the seriousness of an offense. On the contrary, however, an offense committed by a repeat offender is often thought to reflect greater culpability and thus to merit greater punishment. Similarly, a second or subsequent offense is often regarded as more serious because it portends greater future danger and therefore warrants an increased sentence for purposes of deterrence and incapacitation. See Witte v. United States, 515 U. S. 389, 403 (1995); Spencer v. Texas, 385 U. S. 554, 570 (1967) (Warren, C. J., dissenting in two judgments and concurring in one). If respondent were correct that a defendant’s record of prior convictions has no bearing on the seriousness of an offense, then it would follow that any increased punishment imposed under a recidivist provision would not be based on the offense of conviction but on something else—presumably the defendant’s prior crimes or the defendant’s “status as a recidivist,” Brief for Respondent 11. But we have squarely rejected this understanding of recidivism statutes. In Nichols v. United States, 511 U. S. 738 (1994), we explained that “ ‘[t]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant.’ ” Id., at 747 (quoting Baldasar v. Illinois, 446 U. S. 222, 232 (1980) (Powell, J., dissenting)). When a defendant is given a higher sentence under a recidivism statute—or for that matter, when a sentencing judge, under a guidelines regime or a discretionary sentencing system, increases a sentence based on the defendant’s criminal history—100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant’s “status as a recidivist.” The sentence “is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one.” Gryger v. Burke, 334 U. S. 728, 732 (1948). B Respondent argues that our interpretation of ACCA produces “a sort of perverse bootstrapping” under which a defendant is “punished under federal law for being treated as a recidivist under state law,” Brief for Respondent 20 (emphasis deleted), but the fact that ACCA is itself a recidivist statute bolsters our reading. Since ACCA is a recidivist statute, Congress must have had such provisions in mind and must have understood that the “maximum penalty prescribed by [state] law” in some cases would be increased by state recidivism provisions. Contrary to respondent’s suggestion, United States v. LaBonte, 520 U. S. 751 (1997), supports our interpretation of ACCA. The statute at issue in LaBonte, a provision of the Sentencing Reform Act of 1984, as amended, 28 U. S. C. §994(h), directed the United States Sentencing Commission to “assure” that the Sentencing Guidelines specify a prison sentence “at or near the maximum term authorized for categories of” adult offenders who commit their third felony drug offense or violent crime. We held that the phrase “maximum term authorized” “refers to all applicable statutes,” including recidivist enhancements. 520 U. S., at 758, n. 4. Respondent claims that LaBonte supports his position because ACCA, unlike 28 U. S. C. §994(h), does not refer to “categories of” offenders. Respondent suggests that Congress’ failure to include such language in ACCA means that Congress intended to refer to a “maximum term” that does not depend on whether a defendant falls into the first-time-offender or recidivist “category.” Respondent does not explain how 18 U. S. C. §924(e)(2)(A) could have easily been reworded to mirror 28 U. S. C. §994(h). But in any event, the language used in ACCA, for the reasons explained above, is more than clear enough. Respondent argues that the Ninth Circuit’s decision is supported by the so-called “categorical” approach that we used in Taylor v. United States, 495 U. S. 575 (1990), in determining which offenses qualify as “violent felon[ies]” under 18 U. S. C. §924(e)(2)(B)(ii). Section 924(e)(2)(B)(ii) provides that four enumerated crimes—burglary, arson, extortion, and offenses involving the use of explosives—are “violent felon[ies]” for ACCA purposes. In Taylor, we held that Congress intended for these crimes to have a “uniform definition” that was “independent of the labels employed by the various States’ criminal codes.” Id., at 592. According to respondent, “[t]he categorical approach rests on the congressional intent—reflected in the statutory language—to focus the ACCA inquiry on the offense of conviction, rather than on collateral matters unrelated to the definition of the crime.” Brief for Respondent 12. We see no connection, however, between the issue in Taylor (the meaning of the term “burglary” in §924(e)(2)(B)(ii)) and the issue here (the meaning of the phrase “maximum term of imprisonment . . . prescribed by law” under §924(e)(2)(A)(ii)). Taylor held that the meaning of “burglary” for purposes of ACCA does not depend on the label attached by the law of a particular State, 495 U. S., at 600–601, but the “maximum penalty prescribed by law” for a state offense necessarily depends on state law. For a similar reason, we reject respondent’s argument that, under our interpretation, offenses that are not really serious will be included as “serious drug offense[s]” because of recidivist enhancements. In §924(e)(2)(A)(ii), Congress chose to rely on the “maximum term of imprisonment . . . prescribed” by state law as the measure of the seriousness of state offenses involving the manufacture, distribution, or possession of illegal drugs. Congress presumably thought—not without reason—that if state lawmakers provide that a crime is punishable by 10 years’ imprisonment, the lawmakers must regard the crime as “serious,” and Congress chose to defer to the state lawmakers’ judgment. Therefore, our interpretation poses no risk that a drug-trafficking offense will be treated as a “serious” without satisfying the standard that Congress prescribed.[Footnote 2] C Respondent argues that it will often be difficult to determine whether a defendant faced the possibility of a recidivist enhancement in connection with a past state drug conviction and that therefore our interpretation of ACCA will require the federal courts to “engage in difficult inquiries regarding novel questions of state law and complex factual determinations about long-past proceedings in state courts.” Brief for Respondent 21. Respondent greatly exaggerates the problems to which he refers. First, in some cases, a defendant will have received a recidivist enhancement, and this will necessarily be evident from the length of the sentence imposed. Second, as the present case illustrates, see App. 16, 42, 93, the judgment of conviction will sometimes list the maximum possible sentence even where the sentence that was imposed did not exceed the top sentence allowed without any recidivist enhancement. Third, as respondent himself notes, some jurisdictions require that the prosecution submit a formal charging document in order to obtain a recidivist enhancement. See Brief for Respondent 33. Such documents fall within the limited list of generally available documents that courts already consult for the purpose of determining if a past conviction qualifies as an ACCA predicate. See Shepard v. United States, 544 U. S. 13, 20 (2005). Fourth, in those cases in which the defendant pleaded guilty to the state drug charges, the plea colloquy will very often include a statement by the trial judge regarding the maximum penalty. This is mandated by Federal Rule of Criminal Procedure 11(b)(1)(H), and many States have similar requirements.[Footnote 3] Finally, in those cases in which the records that may properly be consulted do not show that the defendant faced the possibility of a recidivist enhancement, it may well be that the Government will be precluded from establishing that a conviction was for a qualifying offense. The mere possibility that some future cases might present difficulties cannot justify a reading of ACCA that disregards the clear meaning of the statutory language. D Respondent’s last argument is that if recidivist enhancements can increase the “maximum term” of imprisonment under ACCA, it must follow that mandatory guidelines systems that cap sentences can decrease the “maximum term” of imprisonment. Brief for Respondent 38. In each situation, respondent argues, the “maximum term” of imprisonment is the term to which the state court could actually have sentenced the defendant. Respondent concedes that he has waived this argument with respect to his own specific state-court convictions. See Brief in Opposition 15, n. 7. He argues, however, that Congress cannot have wanted to make the “maximum term” of imprisonment for ACCA purposes dependent on the complexities of state sentencing guidelines. We conclude, however, that the phrase “maximum term of imprisonment . . . prescribed by law” for the “offense” was not meant to apply to the top sentence in a guidelines range. First, the top sentence in a guidelines range is generally not really the “maximum term . . . prescribed by law” for the “offense” because guidelines systems typically allow a sentencing judge to impose a sentence that exceeds the top of the guidelines range under appropriate circumstances. The United States Sentencing Guidelines, for example, permit “upward departures,” see United States Sentencing Commission, Guidelines Manual §5K2.0 (Nov. 2007), and essentially the same characteristic was shared by all of the mandatory guidelines system in existence at the time of the enactment of the ACCA provision at issue in this case.[Footnote 4] (Following this pattern, Washington law likewise provided at the time of respondent’s state convictions that a sentencing judge could “impose a sentence outside the standard sentence range” upon a finding “that there [were] substantial and compelling reasons justifying an exceptional sentence.” Wash. Rev. Code §9.94A.120(2) (1994).[Footnote 5]) Second, the concept of the “maximum” term of imprisonment or sentence prescribed by law was used in many statutes that predated the enactment of ACCA and the federal Sentencing Reform Act of 1984, Pub. L. 98–473, §211, 98 Stat. 1987, and in all those statutes the concept necessarily referred to the maximum term prescribed by the relevant criminal statute, not the top of a sentencing guideline range. See, e.g., 18 U. S. C. §3 (1982 ed.) (“[A]n accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment … for the punishment of the principal”); §3575(b) (allowing for an increased sentence for dangerous special offenders “not disproportionate in severity to the maximum term otherwise authorized by law for” the underlying felony); see also §371 (the punishment for conspiracy to commit a misdemeanor “shall not exceed the maximum punishment provided for such misdemeanor”); §3651 (allowing for confinement and suspension of sentence upon conviction of an offense not punishable by death or life imprisonment “if the maximum sentence for such offense is more than six months”); §3653 (referring to the “maximum probation period”). It is instructive that, even in the Sentencing Reform Act, the concept of the “maximum term of imprisonment” prescribed for an offense was used in this sense. See §212, 98 Stat. 1991–1992 (new 18 U. S. C. §3559 classifying offenses based on “the maximum term of imprisonment authorized … by the statute describing the offense”); §235(b)(1)(F), 98 Stat. 2032 (“The maximum term of imprisonment in effect on the effective date [of the Sentencing Reform Act]” remains in effect for five years after the effective date “for an offense committed before the effective date”); §1003(a), id., at 2138 (solicitation to commit a crime of violence punishable by “one-half the maximum term of imprisonment . . . prescribed for the punishment of the crime solicited”). In light of this established pattern and the relative newness of sentencing guidelines systems when the ACCA provision at issue here was added, we conclude that Congress meant for the concept of the “maximum term of imprisonment” prescribed by law for an “offense” to have same meaning in ACCA. Our decision in United States v. R. L. C., 503 U. S. 291 (1992), is not to the contrary. The statutory provision there, 18 U. S. C. §5037(c) (2000 ed.), set out the term of official detention for a juvenile found to be a delinquent. This provision was amended by the Sentencing Reform Act, see §214, 98 Stat. 2013, and then amended again two years later, see §§21(a)(2)–(4), 100 Stat. 3596. As thus amended, the provision did not refer to the “maximum term of imprisonment” prescribed for an “offense.” Rather, the provision focused on the particular juvenile being sentenced. It provided that, “ ‘in the case of a juvenile who is less than eighteen years old,’ ” official detention could not extend beyond the earlier of two dates: the juvenile’s 21st birthday or “ ‘the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.’ ” United States v. R. L. C., supra, at 295–296, n. 1 (quoting 18 U. S. C. §5037(c)). Because this provision clearly focuses on the circumstances of the particular juvenile and not on the offense, 503 U. S., at 299, it is not analogous to the ACCA provision that is before us in this case. * * * For these reasons, we hold that the “maximum term of imprisonment … prescribed by law” for the state drug convictions at issue in this case was the 10-year maximum set by the applicable recidivist provision. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 “Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.” Wash. Rev. Code §69.50.401(a)(1994). Footnote 2 In any event, the only “minor drug crime” that respondent identifies as potentially constituting an ACCA predicate based on recidivist enhancement is distribution of a 21 U. S. C. §812, Schedule III narcotic in violation of Mich. Comp. Laws Ann. §333.7401(2)(b)(ii) (West Supp. 2007). Given that Schedule III substances include anabolic steroids and painkillers with specified amounts of certain narcotics like opium, see 21 U. S. C. §812, one might debate respondent’s assertion that distribution of these narcotics is not “serious” in the generic sense of the word. However, Congress chose to defer to the Michigan Legislature’s judgment that the offense was “serious” enough to warrant punishment of first offenses by up to seven years’ imprisonment, and certain repeat offenses by a maximum term of life imprisonment. See Mich. Comp. Laws Ann. §§333.7401(2)(b)(ii), 333.769.12(1). Footnote 3 See, e.g., Kan. Stat. Ann. §22–3210(a)(2) (2007); N. C. Gen. Stat. Ann. §15A–1022(a)(6) (Lexis 2007); Tex. Crim. Proc. Code Ann. §§26.13(a)(1), (d) (West Supp. 2007); Ala. Rule Crim. Proc. 14.4(a)(1)(ii) (Lexis 2007); Fla. Rule Crim. Proc. 3.172(b), (c)(1) (West 2007); Ga. Uniform Super. Ct. Rule 33.8(C)(3) (Lexis 2008); Ill. Sup. Ct. Rule 402(a)(2) (West 2007); Pa. Rule Crim. Proc. 590, comment (West 2008); Ohio Rule Crim. Proc. 11(C)(2)(a) (West 2008); Mich. Rule Crim. Proc. 6.302(B)(2) (West 2007); Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992); Bunnell v. Superior Court, 13 Cal. 3d 592, 604–605, 531 P. 2d 1086, 1094 (1975). Footnote 4 By 1986, when Congress added the relevant statutory language, see Pub. L. 99–570, §1402, 100 Stat. 3207–39, eight States had guidelines systems in effect. See Frase, State Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy Issues, 105 Colum. L. Rev. 1190, 1196, Table 1 (2005). Two of those States (Utah and Maryland) had voluntary guidelines, id., at 1198, and the other six States had guidelines systems that allowed for sentences in excess of the recommended range in various circumstances, see People v. Miles, 156 Mich. App. 431, 437, 402 N. W. 2d 34, 37 (1986) (remanding for the trial court to state reasons for upward departure); Staats v. State, 717 P. 2d 413, 422 (Alaska App. 1986) (affirming upward departure); State v. Armstrong, 106 Wash. 2d 547, 549–550, 723 P. 2d 1111, 1113–1114 (1986) (en banc) (same); State v. Mortland, 395 N. W. 2d 469, 474 (Minn. App. 1986) (same); Walker v. State, 496 So. 2d 220 (Fla. App. 1986) (per curiam) (same); Commonwealth v. Mills, 344 Pa. Super. 200, 204, 496 A. 2d 752, 754 (1985) (same). Footnote 5 While Washington law provided a list of “illustrative factors which the court [could] consider in the exercise of its discretion to impose an exceptional sentence,” the list was “not intended to be exclusive” of other potential reasons for departing. §9.94A.390. |
553.US.507 | In an illegal lottery run by respondent Santos, runners took commissions from the bets they gathered, and some of the rest of the money was paid as salary to respondent Diaz and other collectors and to the winning gamblers. Based on these payments to runners, collectors, and winners, Santos was convicted of, inter alia, violating the federal money-laundering statute, 18 U. S. C. §1956, which prohibits the use of the “proceeds” of criminal activities for various purposes, including engaging in, and conspiring to engage in, transactions intended to promote the carrying on of unlawful activity, §1956(a)(1)(A)(i) and §1956(h). Based on his receipt of salary, Diaz pleaded guilty to conspiracy to launder money. The Seventh Circuit affirmed the convictions. On collateral review, the District Court ruled that, under intervening Circuit precedent interpreting the word “proceeds” in the federal money-laundering statute, §1956(a)(1)(A)(i) applies only to transactions involving criminal profits, not criminal receipts. Finding no evidence that the transactions on which respondents’ money-laundering convictions were based involved lottery profits, the court vacated those convictions. The Seventh Circuit affirmed. Held: The judgment is affirmed. 461 F. 3d 886, affirmed. Justice Scalia, joined by Justice Souter, Justice Thomas, and Justice Ginsburg, concluded in Parts I–III and V that the term “proceeds” in §1956(a)(1) means “profits,” not “receipts.” Pp. 3–14, 16–17. (a) The rule of lenity dictates adoption of the “profits” reading. The statute nowhere defines “proceeds.” An undefined term is generally given its ordinary meaning. Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187. However, dictionaries and the Federal Criminal Code sometimes define “proceeds” to mean “receipts” and sometimes “profits.” Moreover, the many provisions in the federal money-laundering statute that use the word “proceeds” make sense under either definition. The rule of lenity therefore requires the statute to be interpreted in favor of defendants, and the “profits” definition of “proceeds” is always more defendant-friendly than the “receipts” definition. Pp. 3–6. (b) The Government’s contention that the “profits” interpretation fails to give the money-laundering statute its intended scope begs the question; the Government’s contention that the “profits” interpretation hinders effective enforcement of the law is exaggerated. Neither suffices to overcome the rule of lenity. Pp. 6–14. (c) None of the transactions on which respondents’ money-laundering convictions were based can fairly be characterized as involving the lottery’s profits. Pp. 16–17. Justice Scalia, joined by Justice Souter and Justice Ginsburg, concluded in Part IV that Justice Stevens’ position that “proceeds” should be interpreted to mean profits for some predicate crimes, “receipts” for others, is contrary to this Court’s precedents holding that judges cannot give the same statutory text different meanings in different cases, see Clark v. Martinez, 543 U. S. 371. Pp. 14–16. Justice Stevens concluded that revenue a gambling business uses to pay essential operating expenses is not “proceeds” under 18 U. S. C. §1956. When, as here, Congress fails to define potentially ambiguous statutory terms, it effectively delegates the task to federal judges. See Commissioner v. Fink, 483 U. S. 89, 104. Because Congress could have required that “proceeds” have one meaning when referring to some of the specified unlawful activities listed in §1956(c)(7) and a different meaning when referring to others, judges filling statutory gaps may also do so, as long as they are conscientiously endeavoring to carry out Congress’ intent. Section 1956’s legislative history makes clear that “proceeds” includes gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales, but sheds no light on how to identify the proceeds of an unlicensed stand-alone gambling venture. Furthermore, the consequences of applying a “gross receipts” definition of “proceeds” to respondents are so perverse that Congress could not have contemplated them: Allowing the Government to treat the mere payment of an illegal gambling business’ operating expenses as a separate offense is in practical effect tantamount to double jeopardy, which is particularly unfair in this case because the penalties for money laundering are substantially more severe than those for the underlying offense of operating a gambling business. Accordingly, the rule of lenity may weigh in the determination, and in that respect the plurality’s opinion is persuasive. Pp. 1–6. Scalia, J., announced the judgment of the Court and delivered an opinion, in which Souter and Ginsburg, JJ., joined, and in which Thomas, J., joined as to all but Part IV. Stevens, J., filed an opinion concurring in the judgment. Breyer, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Kennedy and Breyer, JJ., joined. | in which Justice Souter and Justice Ginsburg join, and in which Justice Thomas joins as to all but Part IV. We consider whether the term “proceeds” in the federal money-laundering statute, 18 U. S. C. §1956(a)(1), means “receipts” or “profits.” I From the 1970’s until 1994, respondent Santos operated a lottery in Indiana that was illegal under state law. See Ind. Code §35–45–5–3 (West 2004). Santos employed a number of helpers to run the lottery. At bars and restaurants, Santos’s runners gathered bets from gamblers, kept a portion of the bets (between 15% and 25%) as their commissions, and delivered the rest to Santos’s collectors. Collectors, one of whom was respondent Diaz, then delivered the money to Santos, who used some of it to pay the salaries of collectors (including Diaz) and to pay the winners. These payments to runners, collectors, and winners formed the basis of a 10-count indictment filed in the United States District Court for the Northern District of Indiana, naming Santos, Diaz, and 11 others. A jury found Santos guilty of one count of conspiracy to run an illegal gambling business (§371), one count of running an illegal gambling business (§1955), one count of conspiracy to launder money (§1956(a)(1)(A)(i) and §1956(h)), and two counts of money laundering (§1956(a)(1)(A)(i)). The court sentenced Santos to 60 months of imprisonment on the two gambling counts and to 210 months of imprisonment on the three money-laundering counts. Diaz pleaded guilty to conspiracy to launder money, and the District Court sentenced him to 108 months of imprisonment. The Court of Appeals affirmed the convictions and sentences. United States v. Febus, 218 F. 3d 784 (CA7 2000). We declined to review the case. 531 U. S. 1021 (2000). Thereafter, respondents filed motions under 28 U. S. C. §2255, collaterally attacking their convictions and sentences. The District Court rejected all of their claims but one, a challenge to their money-laundering convictions based on the Seventh Circuit’s subsequent decision in United States v. Scialabba, 282 F. 3d 475 (2002), which held that the federal money-laundering statute’s prohibition of transactions involving criminal “proceeds” applies only to transactions involving criminal profits, not criminal receipts. Id., at 478. Applying that holding to respondents’ cases, the District Court found no evidence that the transactions on which the money-laundering convictions were based (Santos’s payments to runners, winners, and collectors and Diaz’s receipt of payment for his collection services) involved profits, as opposed to receipts, of the illegal lottery, and accordingly vacated the money-laundering convictions. The Court of Appeals affirmed, rejecting the Government’s contention that Scialabba was wrong and should be overruled. 461 F. 3d 886 (CA7 2006). We granted certiorari. 550 U. S. ___ (2007). II The federal money-laundering statute prohibits a number of activities involving criminal “proceeds.” Most relevant to this case is 18 U. S. C. §1956(a)(1)(A)(i), which criminalizes transactions to promote criminal activity.[Footnote 1] This provision uses the term “proceeds” in describing two elements of the offense: the Government must prove that a charged transaction “in fact involve[d] the proceeds of specified unlawful activity” (the proceeds element), and it also must prove that a defendant knew “that the property involved in” the charged transaction “represent[ed] the proceeds of some form of unlawful activity” (the knowledge element). §1956(a)(1). The federal money-laundering statute does not define “proceeds.” When a term is undefined, we give it its ordinary meaning. Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187 (1995). “Proceeds” can mean either “receipts” or “profits.” Both meanings are accepted, and have long been accepted, in ordinary usage. See, e.g., 12 Oxford English Dictionary 544 (2d ed. 1989); Random House Dictionary of the English Language 1542 (2d ed. 1987); Webster’s New International Dictionary 1972 (2d ed. 1957) (hereinafter Webster’s 2d). The Government contends that dictionaries generally prefer the “receipts” definition over the “profits” definition, but any preference is too slight for us to conclude that “receipts” is the primary meaning of “proceeds.” “Proceeds,” moreover, has not acquired a common meaning in the provisions of the Federal Criminal Code. Most leave the term undefined. See, e.g., 18 U. S. C. §1963; 21 U. S. C. §853. Recognizing the word’s inherent ambiguity, Congress has defined “proceeds” in various criminal provisions, but sometimes has defined it to mean “receipts” and sometimes “profits.” Compare 18 U. S. C. §2339C(e)(3) (2000 ed., Supp. V) (receipts), §981(a)(2)(A) (2000 ed.) (same), with §981(a)(2)(B) (profits). Since context gives meaning, we cannot say the money-laundering statute is truly ambiguous until we consider “proceeds” not in isolation but as it is used in the federal money-laundering statute. See United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988). The word appears repeatedly throughout the statute, but all of those appearances leave the ambiguity intact. Section 1956(a)(1) itself, for instance, makes sense under either definition: one can engage in a financial transaction with either receipts or profits of a crime; one can intend to promote the carrying on of a crime with either its receipts or its profits; and one can try to conceal the nature, location, etc., of either receipts or profits. The same is true of all the other provisions of this legislation in which the term “proceeds” is used. They make sense under either definition. See, for example, §1956(a)(2)(B), which speaks of “proceeds” represented by a “monetary instrument or funds.” Justice Alito’s dissent (the principal dissent) makes much of the fact that 14 States that use and define the word “proceeds” in their money-laundering statutes,[Footnote 2] the Model Money Laundering Act, and an international treaty on the subject, all define the term to include gross receipts. See post, at 3–5. We do not think this evidence shows that the drafters of the federal money-laundering statute used “proceeds” as a term of art for “receipts.” Most of the state laws cited by the dissent, the Model Act, and the treaty postdate the 1986 federal money-laundering statute by several years, so Congress was not acting against the backdrop of those definitions when it enacted the federal statute. If anything, they show that “proceeds” is ambiguous and that others who believed that money-laundering statutes ought to include gross receipts sought to clarify the ambiguity that Congress created when it left the term undefined.[Footnote 3] Under either of the word’s ordinary definitions, all provisions of the federal money-laundering statute are coherent; no provisions are redundant; and the statute is not rendered utterly absurd. From the face of the statute, there is no more reason to think that “proceeds” means “receipts” than there is to think that “proceeds” means “profits.” Under a long line of our decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. See United States v. Gradwell, 243 U. S. 476, 485 (1917); McBoyle v. United States, 283 U. S. 25, 27 (1931); United States v. Bass, 404 U. S. 336, 347–349 (1971). This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead. Because the “profits” definition of “proceeds” is always more defendant-friendly than the “receipts” definition, the rule of lenity dictates that it should be adopted. III Stopping short of calling the “profits” interpretation absurd, the Government contends that the interpretation should nonetheless be rejected because it fails to give the federal money-laundering statute its proper scope and because it hinders effective enforcement of the law. Neither contention overcomes the rule of lenity. A According to the Government, if we do not read “proceeds” to mean “receipts,” we will disserve the purpose of the federal money-laundering statute, which is, the Government says, to penalize criminals who conceal or promote their illegal activities. On the Government’s view, “[t]he gross receipts of a crime accurately reflect the scale of the criminal activity, because the illegal activity generated all of the funds.” Brief for United States 21; see also post, at 5–7 (Alito, J., dissenting). When interpreting a criminal statute, we do not play the part of a mind reader. In our seminal rule-of-lenity decision, Chief Justice Marshall rejected the impulse to speculate regarding a dubious congressional intent. “[P]robability is not a guide which a court, in construing a penal statute, can safely take.” United States v. Wiltberger, 5 Wheat. 76, 105 (1820). And Justice Frankfurter, writing for the Court in another case, said the following: “When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.” Bell v. United States, 349 U. S. 81, 83 (1955). The statutory purpose advanced by the Government to construe “proceeds” is a textbook example of begging the question. To be sure, if “proceeds” meant “receipts,” one could say that the statute was aimed at the dangers of concealment and promotion. But whether “proceeds” means “receipts” is the very issue in the case. If “proceeds” means “profits,” one could say that the statute is aimed at the distinctive danger that arises from leaving in criminal hands the yield of a crime. A rational Congress could surely have decided that the risk of leveraging one criminal activity into the next poses a greater threat to society than the mere payment of crime-related expenses and justifies the money-laundering statute’s harsh penalties. If we accepted the Government’s invitation to speculate about congressional purpose, we would also have to confront and explain the strange consequence of the “receipts” interpretation, which respondents have described as a “merger problem.” See, e.g., Brief for Respondent Diaz 34. If “proceeds” meant “receipts,” nearly every violation of the illegal-lottery statute would also be a violation of the money-laundering statute, because paying a winning bettor is a transaction involving receipts that the defendant intends to promote the carrying on of the lottery. Since few lotteries, if any, will not pay their winners, the statute criminalizing illegal lotteries, 18 U. S. C. §1955, would “merge” with the money-laundering statute. Congress evidently decided that lottery operators ordinarily deserve up to 5 years of imprisonment, §1955(a), but as a result of merger they would face an additional 20 years, §1956(a)(1). Prosecutors, of course, would acquire the discretion to charge the lesser lottery offense, the greater money-laundering offense, or both—which would predictably be used to induce a plea bargain to the lesser charge. The merger problem is not limited to lottery operators. For a host of predicate crimes, merger would depend on the manner and timing of payment for the expenses associated with the commission of the crime. Few crimes are entirely free of cost, and costs are not always paid in advance. Anyone who pays for the costs of a crime with its proceeds—for example, the felon who uses the stolen money to pay for the rented getaway car—would violate the money-laundering statute. And any wealth-acquiring crime with multiple participants would become money-laundering when the initial recipient of the wealth gives his confederates their shares.[Footnote 4] Generally speaking, any specified unlawful activity, an episode of which includes transactions which are not elements of the offense and in which a participant passes receipts on to someone else, would merge with money laundering. There are more than 250 predicate offenses for the money-laundering statute, see Dept. of Justice, Bureau of Justice Statistics, M. Motivans, Money Laundering Offenders 1994–2001, p. 2 (2003), online at http://www.ojp.usdoj.gov/bjs/pub/pdf/mlo01.pdf (as visited May 29, 2008, and available in Clerk of Court’s case file), and many foreseeably entail such transactions, see 18 U. S. C. §1956(c)(7) (establishing as predicate offenses a number of illegal trafficking and selling offenses, the expenses of which might be paid after the illegal transportation or sale). The Government suggests no explanation for why Congress would have wanted a transaction that is a normal part of a crime it had duly considered and appropriately punished elsewhere in the Criminal Code to radically increase the sentence for that crime. Interpreting “proceeds” to mean “profits” eliminates the merger problem. Transactions that normally occur during the course of running a lottery are not identifiable uses of profits and thus do not violate the money-laundering statute. More generally, a criminal who enters into a transaction paying the expenses of his illegal activity cannot possibly violate the money-laundering statute, because by definition profits consist of what remains after expenses are paid. Defraying an activity’s costs with its receipts simply will not be covered. The principal dissent suggests that a solution to the merger problem may be found in giving a narrow interpretation to the “promotion prong” of the statute: A defendant might be deemed not to “promote” illegal activity “by doing those things … that are needed merely to keep the business running,” post, at 18, because promotion (presumably) means doing things that will cause a business to grow. See Webster’s 2d, p. 1981 (giving as one of the meanings of “promote” “[t]o contribute to the growth [or] enlargement” of something). (This argument is embraced by Justice Breyer’s dissent as well. See post, at 2.) The federal money-laundering statute, however, bars not the bare act of promotion, but engaging in certain transactions “with the intent to promote the carrying on of specified unlawful activity.” 18 U. S. C. §1956(a)(1)(A)(i) (emphasis added). In that context the word naturally bears one of its other meanings, such as “[t]o contribute to the … prosperity” of something, or to “further” something. See Webster’s 2d, p. 1981. Surely one promotes “the carrying on” of a gambling enterprise by merely assuring that it continues in business.[Footnote 5] In any event, to believe that this “narrow” interpretation of “promote” would solve the merger problem one must share the dissent’s misperception that the statute applies just to the conduct of ongoing enterprises rather than individual unlawful acts. If the predicate act is theft by an individual, it makes no sense to ask whether an expenditure was intended to “grow” the culprit’s theft business. The merger problem thus stands as a major obstacle to the dissent’s interpretation of “proceeds.” Justice Breyer admits that the merger problem casts doubt on the Government’s position, post, at 1, but believes there are “other, more legally felicitous” solutions to the problem, post, at 2. He suggests that the merger problem could be solved by holding that “the money laundering offense and the underlying offense that generated the money to be laundered must be distinct in order to be separately punishable.” Ibid. The insuperable difficulty with this solution is that it has no basis whatever in the words of the statute. Even assuming (as one should not) the propriety of a judicial rewrite, why should one believe that Congress wanted courts to avoid the merger problem in that unusual fashion, rather than by adopting one of the two possible meanings of an ambiguous term? Justice Breyer pins hope on the possibility, “if the ‘merger’ problem is essentially a problem of fairness in sentencing,” that the United States Sentencing Commission might revise its recommended sentences for money laundering. Post, at 2–3. See also principal dissent, post, at 17–18 (in agreement). Even if that is a possibility, it is not a certainty. And once again, why should one choose this chancy method of solving the problem, rather than interpret ambiguous language to avoid it? In any event, as noted, supra, at 8, the merger problem affects more than just sentencing; it affects charging decisions and plea-bargaining as well. B The Government also argues for the “receipts” interpretation because—quite frankly—it is easier to prosecute. Proving the proceeds and knowledge elements of the federal money-laundering offense under the “profits” interpretation will unquestionably require proof that is more difficult to obtain. Essentially, the Government asks us to resolve the statutory ambiguity in light of Congress’s presumptive intent to facilitate money-laundering prosecutions. That position turns the rule of lenity upside-down. We interpret ambiguous criminal statutes in favor of defendants, not prosecutors. It is true that the “profits” interpretation demands more from the Government than the “receipts” interpretation. Not so much more, however, as to render such a disposition inconceivable—as proved by the fact that Congress has imposed similar proof burdens upon the prosecution elsewhere. See 18 U. S. C. §1963(a) (criminal forfeiture provision requiring determination of “gross profits or other proceeds”); 21 U. S. C. §853(a) (same).[Footnote 6] It is untrue that the added burdens “serve no discernible purpose.” Post, at 12 (Alito, J., dissenting). They ensure that the severe money-laundering penalties will be imposed only for the removal of profits from criminal activity, which permit the leveraging of one criminal activity into the next. See supra, at 7–8. In any event, the Government exaggerates the difficulties. The “proceeds of specified unlawful activity” are the proceeds from the conduct sufficient to prove one predicate offense. Thus, to establish the proceeds element under the “profits” interpretation, the prosecution needs to show only that a single instance of specified unlawful activity was profitable and gave rise to the money involved in a charged transaction. And the Government, of course, can select the instances for which the profitability is clearest. Contrary to the principal dissent’s view, post, at 6, 11–12, the factfinder will not need to consider gains, expenses, and losses attributable to other instances of specified unlawful activity, which go to the profitability of some entire criminal enterprise. What counts is whether the receipts from the charged unlawful act exceeded the costs fairly attributable to it.[Footnote 7] When the Government charges an “enterprise” crime as the predicate offense, see, e.g., 18 U. S. C. §1956(c)(7)(C), it will have to prove the profitability of only the conduct sufficient to violate the enterprise statute. That is typically defined as a “continuing series of violations,” 21 U. S. C. §848(c)(2), which would presumably be satisfied by three violations, see Richardson v. United States, 526 U. S. 813, 818 (1999). Thus, the Government will have to prove the profitability of just three offenses, selecting (again) those for which profitability is clearest. And of course a prosecutor will often be able to charge the underlying crimes instead of the overarching enterprise crime. As for the knowledge element of the money-laundering offense—knowledge that the transaction involves profits of unlawful activity—that will be provable (as knowledge must almost always be proved) by circumstantial evidence. For example, someone accepting receipts from what he knows to be a long-continuing drug-dealing operation can be found to know that they include some profits. And a jury could infer from a long-running launderer-criminal relationship that the launderer knew he was hiding the criminal’s profits. Moreover, the Government will be entitled to a willful blindness instruction if the professional money launderer, aware of a high probability that the laundered funds were profits, deliberately avoids learning the truth about them—as might be the case when he knows that the underlying crime is one that is rarely unprofitable. IV Concurring in the judgment, Justice Stevens expresses the view that the rule of lenity applies to this case because there is no legislative history reflecting any legislator’s belief about how the money-laundering statute should apply to lottery operators. See post, at 3, 5. The rule of lenity might not apply, he thinks, in a case involving an organized crime syndicate or the sale of contraband because the legislative history supposedly contains some views on the meaning of “proceeds” in those circumstances.[Footnote 8] See post, at 2–3, and n. 3. In short, Justice Stevens would interpret “proceeds” to mean “profits” for some predicate crimes, “receipts” for others. Justice Stevens’ position is original with him; neither the United States nor any amicus suggested it; it has no precedent in our cases. Justice Stevens relies on the proposition that one undefined word, repeated in different statutory provisions, can have different meanings in each provision. See post, at 2, and n. 2. But that is worlds apart from giving the same word, in the same statutory provision, different meanings in different factual contexts. Not only have we never engaged in such interpretive contortion; just over three years ago, in an opinion joined by Justice Stevens, we forcefully rejected it. Clark v. Martinez, 543 U. S. 371 (2005), held that the meaning of words in a statute cannot change with the statute’s application. See id., at 378. To hold otherwise “would render every statute a chameleon,” id., at 382, and “would establish within our jurisprudence … the dangerous principle that judges can give the same statutory text different meanings in different cases,” id., at 386. Precisely to avoid that result, our cases often “give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it were, must govern.” Id., at 380 (emphasis added). Our obligation to maintain the consistent meaning of words in statutory text does not disappear when the rule of lenity is involved. To the contrary, we have resolved an ambiguity in a tax statute in favor of the taxpayer in a civil case because the statute had criminal applications that triggered the rule of lenity. See United States v. Thompson/Center Arms Co., 504 U. S. 505, 517–518, and n. 10 (1992) (plurality opinion). If anything, the rule of lenity is an additional reason to remain consistent, lest those subject to the criminal law be misled. And even if, as Justice Stevens contends, post, at 1, statutory ambiguity “effectively” licenses us to write a brand-new law, we cannot accept that power in a criminal case, where the law must be written by Congress. See United States v. Hudson, 7 Cranch 32, 34 (1812). We think it appropriate to add a word concerning the stare decisis effect of Justice Stevens’ opinion. Since his vote is necessary to our judgment, and since his opinion rests upon the narrower ground, the Court’s holding is limited accordingly. See Marks v. United States, 430 U. S. 188, 193 (1977). But the narrowness of his ground consists of finding that “proceeds” means “profits” when there is no legislative history to the contrary. That is all that our judgment holds. It does not hold that the outcome is different when contrary legislative history does exist. Justice Stevens’ speculations on that point address a case that is not before him, are the purest of dicta, and form no part of today’s holding. Thus, as far as this particular statute is concerned, counsel remain free to argue Justice Stevens’ view (and to explain why it does not overrule Clark v. Martinez, supra). They should be warned, however: Not only do the Justices joining this opinion reject that view, but so also (apparently) do the Justices joining the principal dissent. See post, at 2, 17. V The money-laundering charges brought against Santos were based on his payments to the lottery winners and his employees, and the money-laundering charge brought against Diaz was based on his receipt of payments as an employee. Neither type of transaction can fairly be characterized as involving the lottery’s profits. Indeed, the Government did not try to prove, and respondents have not admitted, that they laundered criminal profits. We accordingly affirm the judgment of the Court of Appeals. It is so ordered. Footnote 1 Section 1956(a)(1) reads as follows: “Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity … (A)(i) with the intent to promote the carrying on of specified unlawful activity … shall be sentenced to a fine of not more than $500,000 or twice the value of the property involved in the transaction, whichever is greater, or imprisonment for not more than twenty years, or both.” Respondents were also convicted of conspiring to launder money under §1956(h). Because the Government has not argued that respondents’ conspiracy convictions could stand if “proceeds” meant “profits,” see 461 F. 3d 866, 889 (CA7 2006), we do not address that possibility. Footnote 2 The majority of States with money-laundering laws, in fact, use “proceeds” without defining it. See Colo. Rev. Stat. Ann. §18–18–408 (2007); Fla. Stat. §896.101 (2006); Ga. Code Ann. §§7–1–911, 7–1–915 (2004); Idaho Code §18–8201 (Lexis 2004); Ill. Comp. Stat., ch. 720, §29B–1 (West 2003); Kan. Stat. Ann. §65–4142 (2002); Minn. Stat. §§609.496 to 609.497 (2006); Miss. Code Ann. §97–23–101 (2006); Mo. Rev. Stat. §574.105 (2000); Mont. Code Ann. §45–6–341 (2007); Nev. Rev. Stat. §207.195 (2007); N. Y. Penal Law Ann. §§470.00 to 470.25 (West Supp. 2008); Okla. Stat., Tit. 63, §2–503.1 (2004); Ore. Rev. Stat. §164.170 (2007); 18 Pa. Cons. Stat. §5111 (Supp. 2008); R. I. Gen. Laws §11–9.1–15 (2002); S. C. Code Ann. §44–53–475 (2002); Tenn. Code Ann. §§39–14–901 to 39–14–909 (2006). Courts in these States have not construed the term one way or the other. But cf. State v. Jackson, 124 S. W. 3d 139, 143 (Tenn. Crim. App. 2003) (linking “proceeds” with the defined term “property”). California might belong in this list, for it has a money-laundering provision in its Penal Code, in which it uses the term “proceeds” but does not define it. See Cal. Penal Code Ann. §186.10 (West 1999). But California also has a more limited money-laundering statute that uses and defines “proceeds.” See Cal. Health & Safety Code Ann. §11370.9(h)(1) (West 2007). Maryland might belong on the list as well: Its general money-laundering statute defines “proceeds” simply to set a minimum value on the proceeds laundered, Md. Crim. Law Code Ann. §5–623(a)(5) (Lexis 2002) (“money or any other property with a value exceeding $10,000”), and its more limited money-laundering statute does not define the term, see §11–304. Footnote 3 The principal dissent also suggests that Congress thought “proceeds” meant “receipts” because the House of Representatives (but not the Senate) had passed a money-laundering bill that did not use the word “proceeds” but rather used and defined a term (“criminally derived property”) that, perhaps, included receipts. See post, at 5, n. 5. Putting aside the question whether resort to legislative history is ever appropriate when interpreting a criminal statute, compare United States v. R. L. C., 503 U. S. 291, 306, n. 6 (1992), with id., at 307 (Scalia, J., concurring in part and concurring in judgment), that bit of it is totally unenlightening because we do not know why the earlier House terminology was rejected—because “proceeds” captured the same meaning, or because “proceeds” carried a narrower meaning? Footnote 4 The Solicitor General suggests that this is the case even under the “profits” interpretation. See Reply Brief for United States 16; see also post, at 15–16 (Alito, J., dissenting). That is not so, because when the “loot” comes into the hands of the later distributing felon his confederates’ shares are (as to him) not profits but mere receipts subject to his payment of expenses. Footnote 5 We note in passing the peculiarity that a dissent which rejects our interpretation of “proceeds” because knowledge of profits will be difficult to prove, suggests an interpretation of “promotes” that will require proving that a particular expenditure was intended, not merely to keep a business “running,” but to expand it. (“You must decide, ladies and gentlemen of the jury, whether it is true beyond a reasonable doubt that the payoff of this winning bettor was not simply motivated by a desire to bring him and other current gambling customers back, but was meant to create a reputation for reliable payoff that would attract future customers.”) Footnote 6 The principal dissent claims that these statutes do not require proof of profits because the Government could rely upon the “other proceeds” prong, which the dissent interprets to mean all proceeds, gross profits and everything else. See post, at 16. We do not normally interpret a text in a manner that makes one of its provisions superfluous. But even if we did, these provisions would still establish what the dissent believes unthinkable: that Congress could envision the Government’s proving profits. Footnote 7 The principal dissent asks, “[H]ow long does each gambling ‘instance’ last?” Post, at 14. The answer is “as long as the Government chooses to charge.” Title 18 U. S. C. §1955(a) provides that “[w]hoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined under this title or imprisoned not more than five years, or both.” An illegal gambling business is an illegal gambling business during each moment of its operation, and it will be up to the Government to select that period of time for which it can most readily establish the necessary elements of the charged offenses, including (if money laundering is one of them) profitability. (To the extent this raises the possibility of the Government’s making multiple violations out of one person’s running of a single business, that problem arises no matter what definition of “proceeds” is adopted.) The “preposterous results” that the dissent attributes to our interpretation of “proceeds,” post, at 14, are in fact the consequence of the Government’s decision to charge Santos with conducting a gambling business over a 6-year period. Of course in the vast majority of cases, establishing the profitability of the predicate offense will not put the Government to the task of identifying the relevant period. Most criminal statutes prohibit discrete, individual acts (fraud, bank robbery) rather than the conduct of a business. Footnote 8 Justice Stevens fails to identify the legislative history to which he refers. He offers only: “As Justice Alito rightly argues, the legislative history of §1956 makes it clear that Congress intended the term ‘proceeds’ to include gross revenues from the sale of contraband and the operation of organized crime syndicates involving such sales.” Post, at 2–3. Although Justice Alito, from one item of legislative history, draws an inference about the meaning of “proceeds” in all its applications (which we find dubious, see n. 3, supra), nowhere does he cite legislative history addressing the meaning of the word “proceeds” in cases specifically involving contraband or organized crime. Thus Justice Stevens’ concurrence appears to address not only a hypothetical case, see infra, at 16, but even an imagined legislative history. |
553.US.285 | After this Court found facially overbroad a federal statutory provision criminalizing the possession and distribution of material pandered as child pornography, regardless of whether it actually was that, Ashcroft v. Free Speech Coalition, 535 U. S. 234, Congress passed the pandering and solicitation provision at issue, 18 U. S. C. §2252A(a)(3)(B). Respondent Williams pleaded guilty to this offense and others, but reserved the right to challenge his pandering conviction’s constitutionality. The District Court rejected his challenge, but the Eleventh Circuit reversed, finding the statute both overbroad under the First Amendment and impermissibly vague under the Due Process Clause. Held: 1. Section 2252A(a)(3)(B) is not overbroad under the First Amendment. Pp. 6–18. (a) A statute is facially invalid if it prohibits a substantial amount of protected speech. Section 2252A(a)(3)(B) generally prohibits offers to provide and requests to obtain child pornography. It targets not the underlying material, but the collateral speech introducing such material into the child-pornography distribution network. Its definition of material or purported material that may not be pandered or solicited precisely tracks the material held constitutionally proscribable in New York v. Ferber, 458 U. S. 747, and Miller v. California, 413 U. S. 15: obscene material depicting (actual or virtual) children engaged in sexually explicit conduct, and any other material depicting actual children engaged in sexually explicit conduct. The statute’s important features include: (1) a scienter requirement; (2) operative verbs that are reasonably read to penalize speech that accompanies or seeks to induce a child pornography transfer from one person to another; (3) a phrase—“in a manner that reflects the belief,” ibid.—that has both the subjective component that the defendant must actually have held the “belief” that the material or purported material was child pornography, and the objective component that the statement or action must manifest that belief; (4) a phrase—“in a manner … that is intended to cause another to believe,” ibid —that has only the subjective element that the defendant must “intend” that the listener believe the material to be child pornography; and (5) a “sexually explicit conduct” definition that is very similar to that in the New York statute upheld in Ferber. Pp. 6–11. (b) As thus construed, the statute does not criminalize a substantial amount of protected expressive activity. Offers to engage in illegal transactions are categorically excluded from First Amendment protection. E.g., Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 388. The Eleventh Circuit mistakenly believed that this exclusion extended only to commercial offers to provide or receive contraband. The exclusion’s rationale, however, is based not on the less privileged status of commercial speech, but on the principle that offers to give or receive what it is unlawful to possess have no social value and thus enjoy no First Amendment protection. The constitutional defect in Free Speech Coalition’s pandering provision was that it went beyond pandering to prohibit possessing material that could not otherwise be proscribed. The Eleventh Circuit’s erroneous conclusion led it to apply strict scrutiny to §2252A(a)(3)(B), lodging three fatal objections that lack merit. Pp. 11–18. 2. Section 2252A(a)(3)(B) is not impermissibly vague under the Due Process Clause. A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. Hill v. Colorado, 530 U. S. 703, 732. In the First Amendment context plaintiffs may argue that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494–495, and nn. 6 and 7. The Eleventh Circuit mistakenly believed that “in a manner that reflects the belief” and “in a manner … that is intended to cause another to believe” were vague and standardless phrases that left the public with no objective measure of conformance. What renders a statute vague, however, is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of what that fact is. See, e.g., Coates v. Cincinnati, 402 U. S. 611, 614. There is no such indeterminacy here. The statute’s requirements are clear questions of fact. It may be difficult in some cases to determine whether the requirements have been met, but courts and juries every day pass upon the reasonable import of a defendant’s statements and upon “knowledge, belief and intent.” American Communications Assn. v. Douds, 339 U. S. 382, 411. Pp. 18–21. 444 F. 3d 1286, reversed. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Thomas, Breyer, and Alito, JJ., joined. Stevens, J., filed a concurring opinion, in which Breyer, J., joined. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined. | Section 2252A(a)(3)(B) of Title 18, United States Code, criminalizes, in certain specified circumstances, the pandering or solicitation of child pornography. This case presents the question whether that statute is overbroad under the First Amendment or impermissibly vague under the Due Process Clause of the Fifth Amendment. I A We have long held that obscene speech—sexually explicit material that violates fundamental notions of decency—is not protected by the First Amendment. See Roth v. United States, 354 U. S. 476, 484–485 (1957). But to protect explicit material that has social value, we have limited the scope of the obscenity exception, and have overturned convictions for the distribution of sexually graphic but nonobscene material. See Miller v. California, 413 U. S. 15, 23–24 (1973); see also, e.g., Jenkins v. Georgia, 418 U. S. 153, 161 (1974). Over the last 25 years, we have confronted a related and overlapping category of proscribable speech: child pornography. See Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002); Osborne v. Ohio, 495 U. S. 103 (1990); New York v. Ferber, 458 U. S. 747 (1982). This consists of sexually explicit visual portrayals that feature children. We have held that a statute which proscribes the distribution of all child pornography, even material that does not qualify as obscenity, does not on its face violate the First Amendment. See id., at 751–753, 756–764. Moreover, we have held that the government may criminalize the possession of child pornography, even though it may not criminalize the mere possession of obscene material involving adults. Compare Osborne, supra, at 111, with Stanley v. Georgia, 394 U. S. 557, 568 (1969). The broad authority to proscribe child pornography is not, however, unlimited. Four Terms ago, we held facially overbroad two provisions of the federal Child Pornography Protection Act of 1996 (CPPA). Free Speech Coalition, 535 U. S., at 258. The first of these banned the possession and distribution of “ ‘any visual depiction’ ” that “ ‘is, or appears to be, of a minor engaging in sexually explicit conduct,’ ” even if it contained only youthful-looking adult actors or virtual images of children generated by a computer. Id., at 239–241 (quoting 18 U. S. C. §2256(8)(B)). This was invalid, we explained, because the child-protection rationale for speech restriction does not apply to materials produced without children. See 535 U. S., at 249–251, 254. The second provision at issue in Free Speech Coalition criminalized the possession and distribution of material that had been pandered as child pornography, regardless of whether it actually was that. See id., at 257 (citing 18 U. S. C. §2256(8)(D)). A person could thus face prosecution for possessing unobjectionable material that someone else had pandered. 535 U. S., at 258. We held that this prohibition, which did “more than prohibit pandering,” was also facially overbroad. Ibid. After our decision in Free Speech Coalition, Congress went back to the drawing board and produced legislation with the unlikely title of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. We shall refer to it as the Act. Section 503 of the Act amended 18 U. S. C. §2252A to add a new pandering and solicitation provision, relevant portions of which now read as follows: “(a) Any person who— “(3) knowingly— . . . . . “(B) advertises, promotes, presents, distributes, or solicits through the mails, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains— “(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or “(ii) a visual depiction of an actual minor engaging in sexually explicit conduct, . . . . . “shall be punished as provided in subsection (b).” §2252A(a)(3)(B) (2000 ed., Supp. V). Section 2256(2)(A) defines “sexually explicit conduct” as “actual or simulated— “(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; “(ii) bestiality; “(iii) masturbation; “(iv) sadistic or masochistic abuse; or “(v) lascivious exhibition of the genitals or pubic area of any person.” Violation of §2252A(a)(3)(B) incurs a minimum sentence of 5 years imprisonment and a maximum of 20 years. 18 U. S. C. §2252A(b)(1). The Act’s express findings indicate that Congress was concerned that limiting the child-pornography prohibition to material that could be proved to feature actual children, as our decision in Free Speech Coalition required, would enable many child pornographers to evade conviction. See §501(9), (10), 117 Stat. 677. The emergence of new technology and the repeated retransmission of picture files over the Internet could make it nearly impossible to prove that a particular image was produced using real children—even though “[t]here is no substantial evidence that any of the child pornography images being trafficked today were made other than by the abuse of real children,” virtual imaging being prohibitively expensive. §501(5), (7), (8), (11), id., at 676–678; see also Dept. of Justice, Office of Community Oriented Policing Services, R. Wortley & S. Smallbone, Child Pornography on the Internet 9 (May 2006), on line at hhtp://www.cops. usdoj.gov/mime/open.pdf?Item=1729 (hereinafter Child Pornography on the Internet) (as visited Jan. 7, 2008, and available in Clerk of Court’s case file). B The following facts appear in the opinion of the Eleventh Circuit, 444 F. 3d 1286, 1288 (2006). On April 26, 2004, respondent Michael Williams, using a sexually explicit screen name, signed in to a public Internet chat room. A Secret Service agent had also signed in to the chat room under the moniker “Lisa n Miami.” The agent noticed that Williams had posted a message that read: “Dad of toddler has ‘good’ pics of her an [sic] me for swap of your toddler pics, or live cam.” The agent struck up a conversation with Williams, leading to an electronic exchange of nonpornographic pictures of children. (The agent’s picture was in fact a doctored photograph of an adult.) Soon thereafter, Williams messaged that he had photographs of men molesting his 4-year-old daughter. Suspicious that “Lisa n Miami” was a law-enforcement agent, before proceeding further Williams demanded that the agent produce additional pictures. When he did not, Williams posted the following public message in the chat room: “HERE ROOM; I CAN PUT UPLINK CUZ IM FOR REAL—SHE CANT.” Appended to this declaration was a hyperlink that, when clicked, led to seven pictures of actual children, aged approximately 5 to 15, engaging in sexually explicit conduct and displaying their genitals. The Secret Service then obtained a search warrant for Williams’s home, where agents seized two hard drives containing at least 22 images of real children engaged in sexually explicit conduct, some of it sadomasochistic. Williams was charged with one count of pandering child pornography under §2252A(a)(3)(B) and one count of possessing child pornography under §2252A(a)(5)(B). He pleaded guilty to both counts but reserved the right to challenge the constitutionality of the pandering conviction. The District Court rejected his challenge, and sentenced him to concurrent 60-month sentences on the two counts. No. 04–20299–CR–MIDDLEBROOKS (SD Fla., Aug. 20, 2004), App. B to Pet. for Cert. 46a–69a. The United States Court of Appeals for the Eleventh Circuit reversed the pandering conviction, holding that the statute was both overbroad and impermissibly vague. 444 F. 3d, at 1308–1309.[Footnote 1] We granted certiorari. 549 U. S. ___ (2007). II A According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech. The doctrine seeks to strike a balance between competing social costs. Virginia v. Hicks, 539 U. S. 113, 119–120 (2003). On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, invalidating a law that in some of its applications is perfectly constitutional—particularly a law directed at conduct so antisocial that it has been made criminal—has obvious harmful effects. In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep. See Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 485 (1989); Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973). Invalidation for overbreadth is “ ‘ “strong medicine” ’ ” that is not to be “casually employed.” Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32, 39 (1999) (quoting Ferber, 458 U. S., at 769). The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers. Generally speaking, §2252A(a)(3)(B) prohibits offers to provide and requests to obtain child pornography. The statute does not require the actual existence of child pornography. In this respect, it differs from the statutes in Ferber, Osborne, and Free Speech Coalition, which prohibited the possession or distribution of child pornography. Rather than targeting the underlying material, this statute bans the collateral speech that introduces such material into the child-pornography distribution network. Thus, an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as de- picting actual children also falls within the reach of the statute. The statute’s definition of the material or purported material that may not be pandered or solicited precisely tracks the material held constitutionally proscribable in Ferber and Miller: obscene material depicting (actual or virtual) children engaged in sexually explicit conduct, and any other material depicting actual children engaged in sexually explicit conduct. See Free Speech Coalition, 535 U. S., at 245–246 (stating that the First Amendment does not protect obscenity or pornography produced with actual children); id., at 256 (holding invalid the challenged provision of the CPPA because it “cover[ed] materials beyond the categories recognized in Ferber and Miller”). A number of features of the statute are important to our analysis: First, the statute includes a scienter requirement. The first word of §2252A(a)(3)—“knowingly”—applies to both of the immediately following subdivisions, both the previously existing §2252A(a)(3)(A)[Footnote 2] and the new §2252A(a) (3)(B) at issue here. We think that the best reading of the term in context is that it applies to every element of the two provisions. This is not a case where grammar or structure enables the challenged provision or some of its parts to be read apart from the “knowingly” requirement. Here “knowingly” introduces the challenged provision itself, making clear that it applies to that provision in its entirety; and there is no grammatical barrier to reading it that way. Second, the statute’s string of operative verbs—“advertises, promotes, presents, distributes, or solicits”—is reasonably read to have a transactional connotation. That is to say, the statute penalizes speech that accompanies or seeks to induce a transfer of child pornography—via reproduction or physical delivery—from one person to another. For three of the verbs, this is obvious: advertising, distributing, and soliciting are steps taken in the course of an actual or proposed transfer of a product, typically but not exclusively in a commercial market. When taken in isolation, the two remaining verbs—“promotes” and “presents”—are susceptible of multiple and wide-ranging meanings. In context, however, those meanings are narrowed by the commonsense canon of noscitur a sociis—which counsels that a word is given more precise content by the neighboring words with which it is associated. See Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961); 2A N. Singer & J. Singer, Sutherland Statutes and Statutory Construction §47.16 (7th ed. 2007). “Promotes,” in a list that includes “solicits,” “distributes,” and “advertises,” is most sensibly read to mean the act of recommending purported child pornography to another person for his acquisition. See American Heritage Dictionary 1403 (4th ed. 2000) (def. 4: “To attempt to sell or popularize by advertising or publicity”). Similarly, “presents,” in the context of the other verbs with which it is associated, means showing or offering the child pornography to another person with a view to his acquisition. See id., at 1388 (def. 3a: “To make a gift or award of”). (The envisioned acquisition, of course, could be an electronic one, for example reproduction of the image on the recipient’s computer screen.) To be clear, our conclusion that all the words in this list relate to transactions is not to say that they relate to commercial transactions. One could certainly “distribute” child pornography without expecting payment in return. Indeed, in much Internet file sharing of child pornography each participant makes his files available for free to other participants—as Williams did in this case. “Distribution may involve sophisticated pedophile rings or organized crime groups that operate for profit, but in many cases, is carried out by individual amateurs who seek no financial reward.” Child Pornography on the Internet 9. To run afoul of the statute, the speech need only accompany or seek to induce the transfer of child pornography from one person to another. Third, the phrase “in a manner that reflects the belief” includes both subjective and objective components. “[A] manner that reflects the belief” is quite different from “a manner that would give one cause to believe.” The first formulation suggests that the defendant must actually have held the subjective “belief” that the material or purported material was child pornography. Thus, a misdescription that leads the listener to believe the defendant is offering child pornography, when the defendant in fact does not believe the material is child pornography, does not violate this prong of the statute. (It may, however, violate the “manner … that is intended to cause another to believe” prong if the misdescription is intentional.) There is also an objective component to the phrase “manner that reflects the belief.” The statement or action must objectively manifest a belief that the material is child pornography; a mere belief, without an accompanying statement or action that would lead a reasonable person to understand that the defendant holds that belief, is insufficient. Fourth, the other key phrase, “in a manner . . . that is intended to cause another to believe,” contains only a subjective element: The defendant must “intend” that the listener believe the material to be child pornography, and must select a manner of “advertising, promoting, presenting, distributing, or soliciting” the material that he thinks will engender that belief—whether or not a reasonable person would think the same. (Of course in the ordinary case the proof of the defendant’s intent will be the fact that, as an objective matter, the manner of “advertis- ing, promoting, presenting, distributing, or soliciting” plainly sought to convey that the material was child pornography.) Fifth, the definition of “sexually explicit conduct” (the visual depiction of which, engaged in by an actual minor, is covered by the Act’s pandering and soliciting prohibition even when it is not obscene) is very similar to the definition of “sexual conduct” in the New York statute we upheld against an overbreadth challenge in Ferber. That defined “sexual conduct” as “ ‘actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.’ ” 458 U. S., at 751. Congress used essentially the same constitutionally approved definition in the present Act. If anything, the fact that the defined term here is “sexually explicit conduct,” rather than (as in Ferber) merely “sexual conduct,” renders the definition more immune from facial constitutional attack. “[S]imulated sexual intercourse” (a phrase found in the Ferber definition as well) is even less susceptible here of application to the sorts of sex scenes found in R-rated movies—which suggest that intercourse is taking place without explicitly depicting it, and without causing viewers to believe that the actors are actually engaging in intercourse. “Sexually explicit conduct” connotes actual depiction of the sex act rather than merely the suggestion that it is occurring. And “simulated” sexual intercourse is not sexual intercourse that is merely suggested, but rather sexual intercourse that is explicitly portrayed, even though (through camera tricks or otherwise) it may not actually have occurred. The portrayal must cause a reasonable viewer to believe that the actors actually engaged in that conduct on camera. Critically, unlike in Free Speech Coalition, §2252A(a)(3)(B)(ii)’s requirement of a “visual depiction of an actual minor” makes clear that, although the sexual intercourse may be simulated, it must involve actual children (unless it is obscene). This change eliminates any possibility that virtual child pornography or sex between youthful-looking adult actors might be covered by the term “simulated sexual intercourse.” B We now turn to whether the statute, as we have construed it, criminalizes a substantial amount of protected expressive activity. Offers to engage in illegal transactions are categorically excluded from First Amendment protection. Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 388 (1973); Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949). One would think that this principle resolves the present case, since the statute criminalizes only offers to provide or requests to obtain contraband—child obscenity and child pornography involving actual children, both of which are proscribed, see 18 U. S. C. §1466A(a), §2252A(a)(5)(B) (2000 ed., Supp. V), and the proscription of which is constitutional, see Free Speech Coalition, 535 U. S., at 245–246, 256. The Eleventh Circuit, however, believed that the exclusion of First Amendment protection extended only to commercial offers to provide or receive contraband: “Because [the statute] is not limited to commercial speech but extends also to non-commercial promotion, presentation, distribution, and solicitation, we must subject the content-based restriction of the PROTECT Act pandering provision to strict scrutiny … .” 444 F. 3d, at 1298. This mistakes the rationale for the categorical exclusion. It is based not on the less privileged First Amendment status of commercial speech, see Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 562–563 (1980), but on the principle that offers to give or receive what it is unlawful to possess have no social value and thus, like obscenity, enjoy no First Amendment protection. See Pittsburgh Press, supra, at 387–389.[Footnote 3] Many long established criminal proscriptions—such as laws against conspiracy, incitement, and solicitation—criminalize speech (commercial or not) that is intended to induce or commence illegal activities. See, e.g., ALI, Model Penal Code §5.02(1) (1985) (solicitation to commit a crime); §5.03(1)(a) (conspiracy to commit a crime). Offers to provide or requests to obtain unlawful material, whether as part of a commercial exchange or not, are similarly undeserving of First Amendment protection. It would be an odd constitutional principle that permitted the government to prohibit offers to sell illegal drugs, but not offers to give them away for free. To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality. See Brandenburg v. Ohio, 395 U. S. 444, 447–448 (1969) (per curiam); see also NAACP v. Claiborne Hardware Co., 458 U. S. 886, 928–929 (1982). The Act before us does not prohibit advocacy of child pornography, but only offers to provide or requests to obtain it. There is no doubt that this prohibition falls well within constitutional bounds. The constitutional defect we found in the pandering provision at issue in Free Speech Coalition was that it went beyond pandering to prohibit possession of material that could not otherwise be proscribed. 535 U. S., at 258. In sum, we hold that offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment. Since the Eleventh Circuit erroneously concluded otherwise, it applied strict scrutiny to §2252A(a)(3)(B), lodging three fatal objections. We address these objections because they could be recast as arguments that Congress has gone beyond the categorical exception. The Eleventh Circuit believed it a constitutional difficulty that no child pornography need exist to trigger the statute. In its view, the fact that the statute could punish a “braggart, exaggerator, or outright liar” rendered it unconstitutional. 444 F. 3d, at 1298. That seems to us a strange constitutional calculus. Although we have held that the government can ban both fraudulent offers, see, e.g., Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 611–612 (2003), and offers to provide illegal products, the Eleventh Circuit would forbid the government from punishing fraudulent offers to provide illegal products. We see no logic in that position; if anything, such statements are doubly excluded from the First Amendment. The Eleventh Circuit held that under Brandenburg, the “non-commercial, non-inciteful promotion of illegal child pornography” is protected, and §2252A(a)(3)(B) therefore overreaches by criminalizing the promotion of child pornography. 444 F. 3d, at 1298. As we have discussed earlier, however, the term “promotes” does not refer to abstract advocacy, such as the statement “I believe that child pornography should be legal” or even “I encourage you to obtain child pornography.” It refers to the recommendation of a particular piece of purported child pornography with the intent of initiating a transfer. The Eleventh Circuit found “particularly objectionable” the fact that the “reflects the belief” prong of the statute could ensnare a person who mistakenly believes that material is child pornography. Ibid. This objection has two conceptually distinct parts. First, the Eleventh Circuit thought that it would be unconstitutional to punish someone for mistakenly distributing virtual child pornography as real child pornography. We disagree. Offers to deal in illegal products or otherwise engage in illegal activity do not acquire First Amendment protection when the offeror is mistaken about the factual predicate of his offer. The pandering and solicitation made unlawful by the Act are sorts of inchoate crimes—acts looking toward the commission of another crime, the delivery of child pornography. As with other inchoate crimes—attempt and conspiracy, for example—impossibility of completing the crime because the facts were not as the defendant believed is not a defense. “All courts are in agreement that what is usually referred to as ‘factual impossibility’ is no defense to a charge of attempt.” 2 W. LaFave, Substantive Criminal Law §11.5(a)(2) (2d ed. 2003). (The author gives as an example “the intended sale of an illegal drug [that] actually involved a different substance.” Ibid.) See also United States v. Hamrick, 43 F. 3d 877, 885 (CA4 1995) (en banc) (holding that impossibility is no defense to attempt and citing the holdings of four other Circuits); ALI, Model Penal Code §5.01, Comment (in attempt prosecutions “the defendant’s conduct should be measured according to the circumstances as he believes them to be, rather than the circumstances as they may have existed in fact”). Under this heading the Eleventh Circuit also thought that the statute could apply to someone who subjectively believes that an innocuous picture of a child is “lascivious.” (Clause (v) of the definition of “sexually explicit conduct” is “lascivious exhibition of the genitals or pubic area of any person.”) That is not so. The defendant must believe that the picture contains certain material, and that material in fact (and not merely in his estimation) must meet the statutory definition. Where the material at issue is a harmless picture of a child in a bathtub and the defendant, knowing that material, erroneously believes that it constitutes a “lascivious display of the genitals,” the statute has no application. Williams and amici raise other objections, which demonstrate nothing so forcefully as the tendency of our overbreadth doctrine to summon forth an endless stream of fanciful hypotheticals. Williams argues, for example, that a person who offers nonpornographic photographs of young girls to a pedophile could be punished under the statute if the pedophile secretly expects that the pictures will contain child pornography. Brief for Respondent 19–20. That hypothetical does not implicate the statute, because the offeror does not hold the belief or intend the recipient to believe that the material is child pornography. Amici contend that some advertisements for mainstream Hollywood movies that depict underage characters having sex violate the statute. Brief for Free Speech Coalition et al. as Amici Curiae 9–18. We think it implausible that a reputable distributor of Hollywood movies, such as Amazon.com, believes that one of these films contains actual children engaging in actual or simulated sex on camera; and even more implausible that Amazon.com would intend to make its customers believe such a thing. The average person understands that sex scenes in mainstream movies use nonchild actors, depict sexual activity in a way that would not rise to the explicit level necessary under the statute, or, in most cases, both. There was raised at oral argument the question whether turning child pornography over to the police might not count as “present[ing]” the material. See Tr. of Oral Arg. 9–11. An interpretation of “presents” that would include turning material over to the authorities would of course be self-defeating in a statute that looks to the prosecution of people who deal in child pornography. And it would effectively nullify §2252A(d), which provides an affirmative defense to the possession ban if a defendant promptly delivers child pornography to a law-enforcement agency. (The possession offense would simply be replaced by a pandering offense for delivering the material to law-enforcement officers.) In any event, the verb “present”—along with “distribute” and “advertise,” as well as “give,” “lend,” “deliver,” and “transfer”—was used in the definition of “promote” in Ferber. See 458 U. S., at 751 (quoting N. Y. Penal Law Ann. §263.15 (McKinney 1980)). Despite that inclusion, we had no difficulty concluding that the New York statute survived facial challenge. And in the period since Ferber, despite similar statutory definitions in other state statutes, see, e.g., Alaska Stat. §11.61.125(d) (2006), Del. Code Ann., Title 11, §1109(5) (2007), we are aware of no prosecution for giving child pornography to the police. We can hardly say, therefore, that there is a “realistic danger” that §2252A(a)(3)(B) will deter such activity. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 11 (1988) (citing Thornhill v. Alabama, 310 U. S. 88, 97–98 (1940)). It was also suggested at oral argument that the statute might cover documentary footage of atrocities being committed in foreign countries, such as soldiers raping young children. See Tr. of Oral Arg. 5-7. Perhaps so, if the material rises to the high level of explicitness that we have held is required. That sort of documentary footage could of course be the subject of an as-applied challenge. The courts presumably would weigh the educational interest in the dissemination of information about the atrocities against the government’s interest in preventing the distribution of materials that constitute “a permanent record” of the children’s degradation whose dissemination increases “the harm to the child.” Ferber, 458 U. S., at 759. Assuming that the constitutional balance would have to be struck in favor of the documentary, the existence of that exception would not establish that the statute is substantially overbroad. The “mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800 (1984). In the vast majority of its applications, this statute raises no constitutional problems whatever. Finally, the dissent accuses us of silently overruling our prior decisions in Ferber and Free Speech Coalition. See post, at 12. According to the dissent, Congress has made an end-run around the First Amendment’s protection of virtual child pornography by prohibiting proposals to transact in such images rather than prohibiting the images themselves. But an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means “a protected category of expression [will] inevitably be suppressed,” post, at 13. Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography. The dissent would require an exception from the statute’s prohibition when, unbeknownst to one or both of the parties to the proposal, the completed transaction would not have been unlawful because it is (we have said) protected by the First Amendment. We fail to see what First Amendment interest would be served by drawing a distinction between two defendants who attempt to acquire contraband, one of whom happens to be mistaken about the contraband nature of what he would acquire. Is Congress forbidden from punishing those who attempt to acquire what they believe to be national-security documents, but which are actually fakes? To ask is to answer. There is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts. III As an alternative ground for facial invalidation, the Eleventh Circuit held that §2252A(a)(3)(B) is void for vagueness. Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment. A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. Hill v. Colorado, 530 U. S. 703, 732 (2000); see also Grayned v. City of Rockford, 408 U. S. 104, 108–109 (1972). Although ordinarily “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,” we have relaxed that requirement in the First Amendment context, permitting plaintiffs to argue that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494–495, and nn. 6 and 7 (1982); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 870–874 (1997). But “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491 U. S. 781, 794 (1989). The Eleventh Circuit believed that the phrases “ ‘in a manner that reflects the belief’ ” and “ ‘in a manner … that is intended to cause another to believe’ ” are “so vague and standardless as to what may not be said that the public is left with no objective measure to which behavior can be conformed.” 444 F. 3d, at 1306. The court gave two examples. First, an email claiming to contain photograph attachments and including a message that says “ ‘little Janie in the bath—hubba, hubba!’ ” Ibid. According to the Eleventh Circuit, given that the statute does not require the actual existence of illegal material, the Government would have “virtually unbounded discretion” to deem such a statement in violation of the “ ‘reflects the belief’ ” prong. Ibid. The court’s second example was an e-mail entitled “ ‘Good pics of kids in bed’ ” with a photograph attachment of toddlers in pajamas asleep in their beds. Ibid. The court described three hypothetical senders: a proud grandparent, a “chronic forwarder of cute photos with racy tongue-in-cheek subject lines,” and a child molester who seeks to trade the photographs for more graphic material. Id., at 1306–1307. According to the Eleventh Circuit, because the “manner” in which the photographs are sent is the same in each case, and because the identity of the sender and the content of the photographs are irrelevant under the statute, all three senders could arguably be prosecuted for pandering. Id., at 1307. We think that neither of these hypotheticals, without further facts, would enable a reasonable juror to find, beyond a reasonable doubt, that the speaker believed and spoke in a manner that reflected the belief, or spoke in a manner intended to cause another to believe, that the pictures displayed actual children engaged in “sexually explicit conduct” as defined in the Act. The prosecutions would be thrown out at the threshold. But the Eleventh Circuit’s error is more fundamental than merely its selection of unproblematic hypotheticals. Its basic mistake lies in the belief that the mere fact that close cases can be envisioned renders a statute vague. That is not so. Close cases can be imagined under virtually any statute. The problem that poses is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt. See In re Winship, 397 U. S. 358, 363 (1970). What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is. Thus, we have struck down statutes that tied criminal culpability to whether the defendant’s conduct was “annoying” or “indecent”—wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings. See Coates v. Cincinnati, 402 U. S. 611, 614 (1971); Reno, supra, at 870–871, and n. 35. There is no such indeterminacy here. The statute requires that the defendant hold, and make a statement that reflects, the belief that the material is child pornography; or that he communicate in a manner intended to cause another so to believe. Those are clear questions of fact. Whether someone held a belief or had an intent is a true-or-false determination, not a subjective judgment such as whether conduct is “annoying” or “indecent.” Similarly true or false is the determination whether a particular formulation reflects a belief that material or purported material is child pornography. To be sure, it may be difficult in some cases to determine whether these clear requirements have been met. “But courts and juries every day pass upon knowledge, belief and intent—the state of men’s minds—having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred.” American Communications Assn. v. Douds, 339 U. S. 382, 411 (1950) (citing 2 J. Wigmore, Evidence §§244, 256 et seq. (3d ed. 1940)). And they similarly pass every day upon the reasonable import of a defendant’s statements—whether, for example, they fairly convey a false representation, see, e.g., 18 U. S. C. §1621 (criminalizing perjury), or a threat of physical injury, see, e.g., §115(a)(1) (criminalizing threats to assault federal officials). Thus, the Eleventh Circuit’s contention that §2252A(a)(3)(B) gives law enforcement officials “virtually unfettered discretion” has no merit. No more here than in the case of laws against fraud, conspiracy, or solicitation. * * * Child pornography harms and debases the most defenseless of our citizens. Both the State and Federal Governments have sought to suppress it for many years, only to find it proliferating through the new medium of the Internet. This Court held unconstitutional Congress’s previous attempt to meet this new threat, and Congress responded with a carefully crafted attempt to eliminate the First Amendment problems we identified. As far as the provision at issue in this case is concerned, that effort was successful. The judgment of the Eleventh Circuit is reversed. It is so ordered. Footnote 1 Williams also challenged his sentence for the possession conviction on the ground that he was entitled to resentencing in light of our decision in United States v. Booker, 543 U. S. 220 (2005). See 444 F. 3d, at 1307–308. The Eleventh Circuit rejected this challenge and therefore affirmed his 60-month sentence despite reversing his pandering conviction. See id., at 1309. Although Williams did not receive a reduced sentence as a result of his appeal, this case is not moot. We held in Benton v. Maryland, 395 U. S. 784 (1969), that “there is no jurisdictional bar to consideration of challenges to multiple convictions, even though concurrent sentences were imposed.” Id., at 791. Footnote 2 Section 2252A(a)(3)(A) (2000 ed., Supp. V) reads: “reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer.” Footnote 3 In Pittsburgh Press, the newspaper argued that we should afford that category of commercial speech which consists of help-wanted ads the same level of First Amendment protection as noncommercial speech, because of its important information-exchange function. We replied: “Whatever the merits of this contention may be in other contexts, it is unpersuasive in this case. Discrimination in employment is not only commercial activity, it is illegal commercial activity . . . . We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes.” 413 U. S., at 388. The import of this response is that noncommercial proposals to engage in illegal activity have no greater protection than commercial proposals to do so. |
553.US.164 | Rather than issuing the summons required by Virginia law, police arrested respondent Moore for the misdemeanor of driving on a suspended license. A search incident to the arrest yielded crack cocaine, and Moore was tried on drug charges. The trial court declined to suppress the evidence on Fourth Amendment grounds. Moore was convicted. Ultimately, the Virginia Supreme Court reversed, reasoning that the search violated the Fourth Amendment because the arresting officers should have issued a citation under state law, and the Fourth Amendment does not permit search incident to citation. Held: The police did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by state law, or when they performed a search incident to the arrest. Pp. 3–13. (a) Because the founding era’s statutes and common law do not support Moore’s view that the Fourth Amendment was intended to incorporate statutes, this is “not a case in which the claimant can point to a ‘clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since,’ ” Atwater v. Lago Vista, 532 U. S. 318, 345. Pp. 3–5. (b) Where history provides no conclusive answer, this Court has analyzed a search or seizure in light of traditional reasonableness standards “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.” Wyoming v. Houghton, 526 U. S. 295, 300. Applying that methodology, this Court has held that when an officer has probable cause to believe a person committed even a minor crime, the arrest is constitutionally reasonable. Atwater, supra, at 354. This Court’s decisions counsel against changing the calculus when a State chooses to protect privacy beyond the level required by the Fourth Amendment. See, e.g., Whren v. United States, 517 U. S. 35. United States v. Di Re, 332 U. S. 581, distinguished. Pp. 6–8. (c) The Court adheres to this approach because an arrest based on probable cause serves interests that justify seizure. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation. A State’s choice of a more restrictive search-and-seizure policy does not render less restrictive ones unreasonable, and hence unconstitutional. While States are free to require their officers to engage in nuanced determinations of the need for arrest as a matter of their own law, the Fourth Amendment should reflect administrable bright-line rules. Incorporating state arrest rules into the Constitution would make Fourth Amendment protections as complex as the underlying state law, and variable from place to place and time to time. Pp. 8–11. (d) The Court rejects Moore’s argument that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. Officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. United States v. Robinson, 414 U. S. 218. While officers issuing citations do not face the same danger, and thus do not have the same authority to search, Knowles v. Iowa, 525 U. S. 113, the officers arrested Moore, and therefore faced the risks that are “an adequate basis for treating all custodial arrests alike for purposes of search justification,” Robinson, supra, at 235. Pp. 11–13. 272 Va. 717, 636 S. E. 2d 395, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment. | We consider whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law. I On February 20, 2003, two City of Portsmouth police officers stopped a car driven by David Lee Moore. They had heard over the police radio that a person known as “Chubs” was driving with a suspended license, and one of the officers knew Moore by that nickname. The officers determined that Moore’s license was in fact suspended, and arrested him for the misdemeanor of driving on a suspended license, which is punishable under Virginia law by a year in jail and a $2,500 fine, Va. Code Ann. §§18.2–11, 18.2–272, 46.2–301(C) (Lexis 2005). The officers subsequently searched Moore and found that he was carrying 16 grams of crack cocaine and $516 in cash.[Footnote 1] See 272 Va. 717, 636 S. E. 2d 395 (2006); 45 Va. App. 146, 609 S. E. 2d 74 (2005). Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who “fail or refuse to discontinue” the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. Va. Code Ann. §19.2–74 (Lexis 2004). The intermediate appellate court found none of these circumstances applicable, and Virginia did not appeal that determination. See 272 Va., at 720, n. 3, 636 S. E. 2d, at 396–397, n. 3. Virginia also permits arrest for driving on a suspended license in jurisdictions where “prior general approval has been granted by order of the general district court,” Va. Code Ann. §46.2–936; Virginia has never claimed such approval was in effect in the county where Moore was arrested. Moore was charged with possessing cocaine with the intent to distribute it in violation of Virginia law. He filed a pretrial motion to suppress the evidence from the arrest search. Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law. See 45 Va. App., at 160–162, 609 S. E. 2d, at 82 (Annunziata, J., dissenting). Moore argued, however, that suppression was required by the Fourth Amendment. The trial court denied the motion, and after a bench trial found Moore guilty of the drug charge and sentenced him to a 5-year prison term, with one year and six months of the sentence suspended. The conviction was reversed by a panel of Virginia’s intermediate court on Fourth Amendment grounds, id., at 149–150, 609 S. E. 2d, at 76, reinstated by the intermediate court sitting en banc, 47 Va. App. 55, 622 S. E. 2d 253 (2005), and finally reversed again by the Virginia Supreme Court, 272 Va., at 725, 636 S. E. 2d, at 400. The Court reasoned that since the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit search incident to citation, the arrest search violated the Fourth Amendment. Ibid. We granted certiorari. 551 U. S. ___ (2007). II The Fourth Amendment protects “against unreasonable searches and seizures” of (among other things) the person. In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve. See Wyoming v. Houghton, 526 U. S. 295, 299 (1999); Wilson v. Arkansas, 514 U. S. 927, 931 (1995). We are aware of no historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted.[Footnote 2] The immediate object of the Fourth Amendment was to prohibit the general warrants and writs of assistance that English judges had employed against the colonists, Boyd v. United States, 116 U. S. 616, 624–627 (1886); Payton v. New York, 445 U. S. 573, 583–584 (1980). That suggests, if anything, that founding-era citizens were skeptical of using the rules for search and seizure set by government actors as the index of reasonableness. Joseph Story, among others, saw the Fourth Amendment as “little more than the affirmance of a great constitutional doctrine of the common law,” 3 Commentaries on the Constitution of the United States §1895, p. 748 (1833), which Story defined in opposition to statutes, see Codification of the Common Law in The Miscellaneous Writings of Joseph Story 698, 699, 701 (W. Story ed. 1852). No early case or commentary, to our knowledge, suggested the Amendment was intended to incorporate subsequently enacted statutes. None of the early Fourth Amendment cases that scholars have identified sought to base a constitutional claim on a violation of a state or federal statute concerning arrest. See Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 613–614 (1999);[Footnote 3] see also T. Taylor, Two Studies in Constitutional Interpretation 44–45 (1969). Of course such a claim would not have been available against state officers, since the Fourth Amendment was a restriction only upon federal power, see Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). But early Congresses tied the arrest authority of federal officers to state laws of arrest. See United States v. Di Re, 332 U. S. 581, 589 (1948); United States v. Watson, 423 U. S. 411, 420 (1976). Moreover, even though several state constitutions also prohibited unreasonable searches and seizures, citizens who claimed officers had violated state restrictions on arrest did not claim that the violations also ran afoul of the state constitutions.[Footnote 4] The apparent absence of such litigation is particularly striking in light of the fact that searches incident to warrantless arrests (which is to say arrests in which the officer was not insulated from private suit) were, as one commentator has put it, “taken for granted” at the founding, Taylor, supra, at 45, as were warrantless arrests themselves, Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 764 (1994). There are a number of possible explanations of why such constitutional claims were not raised. Davies, for example, argues that actions taken in violation of state law could not qualify as state action subject to Fourth Amendment constraints. 98 Mich. L. Rev., at 660–663. Be that as it may, as Moore adduces neither case law nor commentaries to support his view that the Fourth Amendment was intended to incorporate statutes, this is “not a case in which the claimant can point to ‘a clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since.’ ” Atwater v. Lago Vista, 532 U. S. 318, 345 (2001) (alteration in original). III A When history has not provided a conclusive answer, we have analyzed a search or seizure in light of traditional standards of reasonableness “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.” Houghton, 526 U. S., at 300; see also Atwater, 532 U. S., at 346. That methodology provides no support for Moore’s Fourth Amendment claim. In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable. Id., at 354; see also, e.g., Devenpeck v. Alford, 543 U. S. 146, 152 (2004); Gerstein v. Pugh, 420 U. S. 103, 111 (1975); Brinegar v. United States, 338 U. S. 160, 164, 170, 175–176 (1949). Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U. S. 58 (1967), we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state law authorized the search was irrelevant. States, we said, remained free “to impose higher standards on searches and seizures than required by the Federal Constitution,” id., at 62, but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law. In California v. Greenwood, 486 U. S. 35 (1988), we held that search of an individual’s garbage forbidden by California’s Constitution was not forbidden by the Fourth Amendment. “[W]hether or not a search is reasonable within the meaning of the Fourth Amendment,” we said, has never “depend[ed] on the law of the particular State in which the search occurs.” Id., at 43. While “[i]ndividual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution,” ibid., state law did not alter the content of the Fourth Amendment. We have applied the same principle in the seizure context. Whren v. United States, 517 U. S. 806 (1996), held that police officers had acted reasonably in stopping a car, even though their action violated regulations limiting the authority of plainclothes officers in unmarked vehicles. We thought it obvious that the Fourth Amendment’s meaning did not change with local law enforcement practices—even practices set by rule. While those practices “vary from place to place and from time to time,” Fourth Amendment protections are not “so variable” and cannot “be made to turn upon such trivialities.” Id., at 815. Some decisions earlier than these excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution. In Di Re, 332 U. S. 581, federal and state officers collaborated in an investigation that led to an arrest for a federal crime. The Government argued that the legality of an arrest for a federal offense was a matter of federal law. Id., at 589. We concluded, however, that since Congress had provided that arrests with warrants must be made in accordance with state law, the legality of arrests without warrants should also be judged according to state-law standards. Id., at 589–590. This was plainly not a rule we derived from the Constitution, however, because we repeatedly invited Congress to change it by statute—saying that state law governs the validity of a warrantless arrest “in [the] absence of an applicable federal statute,” id., at 589, and that the Di Re rule applies “except in those cases where Congress has enacted a federal rule,” id., at 589–590. Later decisions did not expand the rule of Di Re. Johnson v. United States, 333 U. S. 10 (1948), relied on Di Re to suppress evidence obtained under circumstances identical in relevant respects to those in that case. See 333 U. S., at 12, 15, n. 5. And Michigan v. DeFillippo, 443 U. S. 31 (1979), upheld a warrantless arrest in a case where compliance with state law was not at issue. While our opinion said that “[w]hether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law,” it also said that a warrantless arrest satisfies the Constitution so long as the officer has “probable cause to believe that the suspect has committed or is committing a crime.” Id., at 36. We need not pick and choose among the dicta: Neither Di Re nor the cases following it held that violations of state arrest law are also violations of the Fourth Amendment, and our more recent decisions, discussed above, have indicated that when States go above the Fourth Amendment minimum, the Constitution’s protections concerning search and seizure remain the same. B We are convinced that the approach of our prior cases is correct, because an arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Whren, supra, at 817; Atwater, supra, at 354. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation. See W. LaFave, Arrest: The Decision to Take a Suspect into Custody 177–202 (1965). Moore argues that a State has no interest in arrest when it has a policy against arresting for certain crimes. That is not so, because arrest will still ensure a suspect’s appearance at trial, prevent him from continuing his offense, and enable officers to investigate the incident more thoroughly. State arrest restrictions are more accurately characterized as showing that the State values its interests in forgoing arrests more highly than its interests in making them, see, e.g., Dept. of Justice, National Institute of Justice, D. Whitcomb, B. Lewin, & M. Levine, Issues and Practices: Citation Release 17 (Mar. 1984) (describing cost savings as a principal benefit of citation-release ordinances); or as showing that the State places a higher premium on privacy than the Fourth Amendment requires. A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional. If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes. See 45 Va. App., at 161, 609 S. E. 2d, at 82 (Annunziata, J., dissenting) (citing Janis v. Commonwealth, 22 Va. App. 646, 651, 472 S. E. 2d 649, 652 (1996)). Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures. Even if we thought that state law changed the nature of the Commonwealth’s interests for purposes of the Fourth Amendment, we would adhere to the probable-cause standard. In determining what is reasonable under the Fourth Amendment, we have given great weight to the “essential interest in readily administrable rules.” Atwater, 532 U. S., at 347. In Atwater, we acknowledged that nuanced judgments about the need for warrantless arrest were desirable, but we nonetheless declined to limit to felonies and disturbances of the peace the Fourth Amendment rule allowing arrest based on probable cause to believe a law has been broken in the presence of the arresting officer. Id., at 346–347. The rule extends even to minor misdemeanors, we concluded, because of the need for a bright-line constitutional standard. If the constitutionality of arrest for minor offenses turned in part on inquiries as to risk of flight and danger of repetition, officers might be deterred from making legitimate arrests. Id., at 351. We found little to justify this cost, because there was no “epidemic of unnecessary minor-offense arrests,” and hence “a dearth of horribles demanding redress.” Id., at 353. Incorporating state-law arrest limitations into the Constitution would produce a constitutional regime no less vague and unpredictable than the one we rejected in Atwater. The constitutional standard would be only as easy to apply as the underlying state law, and state law can be complicated indeed. The Virginia statute in this case, for example, calls on law enforcement officers to weigh just the sort of case-specific factors that Atwater said would deter legitimate arrests if made part of the constitutional inquiry. It would authorize arrest if a misdemeanor suspect fails or refuses to discontinue the unlawful act, or if the officer believes the suspect to be likely to disregard a summons. Va. Code Ann. §19.2–74.A.1. Atwater specifically noted the “extremely poor judgment” displayed in arresting a local resident who would “almost certainly” have discontinued the offense and who had “no place to hide and no incentive to flee.” 532 U. S., at 346–347. It nonetheless declined to make those considerations part of the constitutional calculus. Atwater differs from this case in only one significant respect: It considered (and rejected) federal constitutional remedies for all minor-misdemeanor arrests; Moore seeks them in only that subset of minor-misdemeanor arrests in which there is the least to be gained—that is, where the State has already acted to constrain officers’ discretion and prevent abuse. Here we confront fewer horribles than in Atwater, and less of a need for redress. Finally, linking Fourth Amendment protections to state law would cause them to “vary from place to place and from time to time,” Whren, 517 U. S., at 815. Even at the same place and time, the Fourth Amendment’s protections might vary if federal officers were not subject to the same statutory constraints as state officers. In Elkins v. United States, 364 U. S. 206, 210–212 (1960), we noted the practical difficulties posed by the “silver-platter doctrine,” which had imposed more stringent limitations on federal officers than on state police acting independent of them. It would be strange to construe a constitutional provision that did not apply to the States at all when it was adopted to now restrict state officers more than federal officers, solely because the States have passed search-and-seizure laws that are the prerogative of independent sovereigns. We conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections. IV Moore argues that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. We have recognized, however, that officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. United States v. Robinson, 414 U. S. 218 (1973). We have described this rule as covering any “lawful arrest,” id., at 235, with constitutional law as the reference point. That is to say, we have equated a lawful arrest with an arrest based on probable cause: “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Ibid. (emphasis added). Moore correctly notes that several important state-court decisions have defined the lawfulness of arrest in terms of compliance with state law. See Brief for Respondent 32–33 (citing People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923); People v. DeFore, 242 N. Y. 13, 17–19, 150 N. E. 585, 586 (1926)). But it is not surprising that States have used “lawful” as shorthand for compliance with state law, while our constitutional decision in Robinson used “lawful” as shorthand for compliance with constitutional constraints. The interests justifying search are present whenever an officer makes an arrest. A search enables officers to safeguard evidence, and, most critically, to ensure their safety during “the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.” Robinson, supra, at 234–235. Officers issuing citations do not face the same danger, and we therefore held in Knowles v. Iowa, 525 U. S. 113 (1998), that they do not have the same authority to search. We cannot agree with the Virginia Supreme Court that Knowles controls here. The state officers arrested Moore, and therefore faced the risks that are “an adequate basis for treating all custodial arrests alike for purposes of search justification.” Robinson, supra, at 235. The Virginia Supreme Court may have concluded that Knowles required the exclusion of evidence seized from Moore because, under state law, the officers who arrested Moore should have issued him a citation instead. This argument might have force if the Constitution forbade Moore’s arrest, because we have sometimes excluded evidence obtained through unconstitutional methods in order to deter constitutional violations. See Wong Sun v. United States, 371 U. S. 471, 484–485, 488 (1963). But the arrest rules that the officers violated were those of state law alone, and as we have just concluded, it is not the province of the Fourth Amendment to enforce state law. That Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest. * * * We reaffirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety. The judgment of the Supreme Court of Virginia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 The arresting officers did not perform a search incident to arrest immediately upon taking Moore into custody, because each of them mistakenly believed that the other had done so. App. 54–55; see also id., at 33–34. They realized their mistake after arriving with Moore at Moore’s hotel room, which they had obtained his consent to search, and they searched his person there. Ibid. Moore does not contend that this delay violated the Fourth Amendment. Footnote 2 Atwater v. Lago Vista, 532 U. S. 318 (2001), rejected the view Justice Ginsburg advances that the legality of arrests for misdemeanors involving no breach of the peace “depended on statutory authorization.” Post, at 1, n. 1 (opinion concurring in judgment). Atwater cited both of the sources on which Justice Ginsburg relies for a limited view of common-law arrest authority, but it also identified and quoted numerous treatises that described common-law authority to arrest for minor misdemeanors without limitation to cases in which a statute authorized arrest. See 532 U. S., at 330–332. Atwater noted that many statutes authorized arrest for misdemeanors other than breaches of the peace, but it concluded that the view of arrest authority as extending beyond breaches of the peace also reflected judge-made common law. Id., at 330–331. Particularly since Atwater considered the materials on which Justice Ginsburg relies, we see no reason to revisit the case’s conclusion. Footnote 3 Of the early cases that Davies collects, see 98 Mich. L. Rev., at 613, n. 174; id., at 614, n. 175, the lone decision to treat statutes as relevant to the Fourth Amendment’s contours simply applied the principle that statutes enacted in the years immediately before or after the Amendment was adopted shed light on what citizens at the time of the Amendment’s enactment saw as reasonable. Boyd v. United States, 116 U. S. 616, 622–623 (1886). Footnote 4 Massachusetts, for example, had a state constitutional provision paralleling the Fourth Amendment, but the litigants in the earliest cases we have identified claiming violations of arrest statutes in the Commonwealth did not argue that their arrests violated the Commonwealth’s Constitution. See Brock v. Stimson, 108 Mass. 520 (1871); Phillips v. Fadden, 125 Mass. 198 (1878); see also Tubbs v. Tukey, 57 Mass. 438 (1849) (asserting violation of state common law concerning arrest but not asserting violation of state constitution). |
552.US.442 | After the Ninth Circuit invalidated Washington’s blanket primary system on the ground that it was nearly identical to the California system struck down in California Democratic Party v. Jones, 530 U. S. 567, state voters passed an initiative (I–872), providing that candidates must be identified on the primary ballot by their self-designated party preference; that voters may vote for any candidate; and that the two top votegetters for each office, regardless of party preference, advance to the general election. Respondent political parties claim that the new law, on its face, violates a party’s associational rights by usurping its right to nominate its own candidates and by forcing it to associate with candidates it does not endorse. The District Court granted respondents summary judgment, enjoining I–872’s implementation. The Ninth Circuit affirmed. Held: I–872 is facially constitutional. Pp. 6–16. (a) Facial challenges, which require a showing that a law is unconstitutional in all of its applications, are disfavored: They often rest on speculation; they run contrary to the fundamental principle of judicial restraint that courts should neither “ ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,’ ” Ashwander v. TVA, 297 U. S. 288, 483; and they threaten to shortcircuit the democratic process by preventing laws embodying the will of the people from being implemented consistent with the Constitution. Pp. 6–8. (b) If I–872 severely burdens associational rights, it is subject to strict scrutiny and will be upheld only if it is “narrowly tailored to serve a compelling state interest,” Clingman v. Beaver, 544 U. S. 581, 586. Contrary to petitioners’ argument, this Court’s presumption in Jones—that a nonpartisan blanket primary where the top two votegetters proceed to the general election regardless of party would be a less restrictive alternative to California’s system because it would not nominate candidates—is not dispositive here. There, the Court had no occasion to determine whether a primary system that indicates each candidate’s party preference on the ballot, in effect, chooses the parties’ nominees. Respondents’ arguments that I–872 imposes a severe burden are flawed. They claim that the law is unconstitutional under Jones because it allows primary voters unaffiliated with a party to choose the party’s nominee, thus violating the party’s right to choose its own standard bearer. Unlike California’s primary, however, the I–872 primary does not, by its terms, choose the parties’ nominees. The choice of a party representative does not occur under I–872. The two top primary candidates proceed to the general election regardless of their party preferences. Whether the parties nominate their own candidate outside the state-run primary is irrelevant. Respondents counter that voters will assume that candidates on the general election ballot are their preferred nominees; and that even if voters do not make that assumption, they will at least assume that the parties associate with, and approve of, the nominees. However, those claims depend not on any facial requirement of I–872, but on the possibility that voters will be confused as to the meaning of the party-preference designation. This is sheer speculation. Even if voters could possibly misinterpret the designations, I–872 cannot be struck down in a facial challenge based on the mere possibility of voter confusion. The State could implement I–872 in a variety of ways, e.g., through ballot design, that would eliminate any real threat of confusion. And without the specter of widespread voter confusion, respondents’ forced association and compelled speech arguments fall flat. Pp. 8–15. (c) Because I–872 does not severely burden respondents, the State need not assert a compelling interest. Its interest in providing voters with relevant information about the candidates on the ballot is easily sufficient to sustain the provision. P. 15. 460 F. 3d 1108, reversed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Souter, Ginsburg, Breyer, and Alito, JJ., joined. Roberts, C. J., filed a concurring opinion, in which Alito, J., joined. Scalia, J., filed a dissenting opinion, in which Kennedy, J., joined. Together with No. 06–730, Washington et al. v. Washington State Republican Party et al., also on certiorari to the same court. | In 2004, voters in the State of Washington passed an initiative changing the State’s primary election system. The People’s Choice Initiative of 2004, or Initiative 872 (I–872), provides that candidates for office shall be identified on the ballot by their self-designated “party preference”; that voters may vote for any candidate; and that the top two votegetters for each office, regardless of party preference, advance to the general election. The Court of Appeals for the Ninth Circuit held I–872 facially invalid as imposing an unconstitutional burden on state political parties’ First Amendment rights. Because I–872 does not on its face impose a severe burden on political parties’ associational rights, and because respondents’ arguments to the contrary rest on factual assumptions about voter confusion that can be evaluated only in the context of an as-applied challenge, we reverse. I For most of the past century, Washington voters selected nominees for state and local offices using a blanket primary.[Footnote 1] From 1935 until 2003, the State used a blanket primary that placed candidates from all parties on one ballot and allowed voters to select a candidate from any party. See 1935 Wash. Laws, ch. §§1–5, pp. 60–64. Under this system, the candidate who won a plurality of votes within each major party became that party’s nominee in the general election. See 2003 Wash. Laws, §919, p. 775. California used a nearly identical primary in its own elections until our decision in California Democratic Party v. Jones, 530 U. S. 567 (2000). In Jones, four political parties challenged California’s blanket primary, arguing that it unconstitutionally burdened their associational rights by forcing them to associate with voters who did not share their beliefs. We agreed and struck down the blanket primary as inconsistent with the First Amendment. In so doing, we emphasized the importance of the nomination process as “ ‘the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.’ ” Id., at 575 (quoting Tashjian v. Republican Party of Conn., 479 U. S. 208, 216 (1986)). We observed that a party’s right to exclude is central to its freedom of association, and is never “more important than in the process of selecting its nominee.” 530 U. S., at 575. California’s blanket primary, we concluded, severely burdened the parties’ freedom of association because it forced them to allow nonmembers to participate in selecting the parties’ nominees. That the parties retained the right to endorse their preferred candidates did not render the burden any less severe, as “[t]here is simply no substitute for a party’s selecting its own candidates.” Id., at 581. Because California’s blanket primary severely burdened the parties’ associational rights, we subjected it to strict scrutiny, carefully examining each of the state interests offered by California in support of its primary system. We rejected as illegitimate three of the asserted interests: “producing elected officials who better represent the electorate,” “expanding candidate debate beyond the scope of partisan concerns,” and ensuring “the right to an effective vote” by allowing nonmembers of a party to vote in the majority party’s primary in “ ‘safe’ ” districts. Id., at 582–584. We concluded that the remaining interests—promoting fairness, affording voters greater choice, increasing voter participation, and protecting privacy—were not compelling on the facts of the case. Even if they were, the partisan California primary was not narrowly tailored to further those interests because a nonpartisan blanket primary, in which the top two votegetters advance to the general election regardless of party affiliation, would accomplish each of those interests without burdening the parties’ associational rights. Id., at 585–586. The nonpartisan blanket primary had “all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters [were] not choosing a party’s nominee.” Ibid. After our decision in Jones, the Court of Appeals for the Ninth Circuit struck down Washington’s primary as “materially indistinguishable from the California scheme.” Democratic Party of Washington State v. Reed, 343 F. 3d 1198, 1203 (2003). The Washington State Grange[Footnote 2] promptly proposed I–872 as a replacement.[Footnote 3] It passed with nearly 60% of the vote and became effective in December 2004. Under I–872, all elections for “partisan offices”[Footnote 4] are conducted in two stages: a primary and a general election. To participate in the primary, a candidate must file a “declaration of candidacy” form, on which he declares his “major or minor party preference, or independent status.” Wash. Rev. Code §29A.24.030 (Supp. 2005). Each candidate and his party preference (or independent status) is in turn designated on the primary election ballot. A political party cannot prevent a candidate who is unaffiliated with, or even repugnant to, the party from designating it as his party of preference. See Wash. Admin. Code §434–215–015 (2005). In the primary election, voters may select “any candidate listed on the ballot, regardless of the party preference of the candidates or the voter.” §434–262–012. The candidates with the highest and second-highest vote totals advance to the general election, regardless of their party preferences. Ibid. Thus, the general election may pit two candidates with the same party preference against one another.[Footnote 5] Each candidate’s party preference is listed on the general election ballot, and may not be changed between the primary and general elections. See §434–230–040. Immediately after the State enacted regulations to implement I–872, the Washington State Republican Party filed suit against a number of county auditors challenging the law on its face. The party contended that the new system violates its associational rights by usurping its right to nominate its own candidates and by forcing it to associate with candidates it does not endorse. The Washington State Democratic Central Committee and Libertarian Party of Washington State joined the suit as plaintiffs. The Washington State Grange joined as a defendant, and the State of Washington was substituted for the county auditors as defendant. The United States District Court for the Western District of Washington granted the political parties’ motions for summary judgment and enjoined the implementation of I–872. See Washington State Republican Party v. Logan, 377 F. Supp. 2d 907, 932 (2005). The Court of Appeals affirmed. 460 F. 3d 1108, 1125 (CA9 2006). It held that the I–872 primary severely burdens the political parties’ associational rights because the party-preference designation on the ballot creates a risk that primary winners will be perceived as the parties’ nominees and produces an “impression of associatio[n]” between a candidate and his party of preference even when the party does not associate, or wish to be associated, with the candidate. Id., at 1119. The Court of Appeals noted a “constitutionally significant distinction between ballots and other vehicles for political expression,” reasoning that the risk of perceived association is particularly acute when ballots include party labels because such labels are typically used to designate candidates’ views on issues of public concern. Id., at 1121. And it determined that the State’s interests underlying I–872 were not sufficiently compelling to justify the severe burden on the parties’ association. Concluding that the provisions of I–872 providing for the party-preference designation on the ballot were not severable, the court struck down I–872 in its entirety. We granted certiorari, 549 U. S. ___ (2007), to determine whether I–872, on its face, violates the political parties’ associational rights. II Respondents object to I–872 not in the context of an actual election, but in a facial challenge. Under United States v. Salerno, 481 U. S. 739 (1987), a plaintiff can only succeed in a facial challenge by “establish[ing] that no set of circumstances exists under which the Act would be valid,” i.e., that the law is unconstitutional in all of its applications. Id., at 745. While some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a “ ‘plainly legitimate sweep.’ ” Washington v. Glucksberg, 521 U. S. 702, 739–740, and n. 7 (1997) (Stevens, J., concurring in judgments). Washington’s primary system survives under either standard, as we explain below.[Footnote 6] In determining whether a law is facially invalid, we must be careful not to go beyond the statute’s facial requirements and speculate about “hypothetical” or “imaginary” cases. See United States v. Raines, 362 U. S. 17, 22 (1960) (“The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined”). The State has had no opportunity to implement I–872, and its courts have had no occasion to construe the law in the context of actual disputes arising from the electoral context, or to accord the law a limiting construction to avoid constitutional questions. Cf. Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co., 226 U. S. 217, 220 (1912) (“How the state court may apply [a statute] to other cases, whether its general words may be treated as more or less restrained, and how far parts of it may be sustained if others fail are matters upon which we need not speculate now”). Exercising judicial restraint in a facial challenge “frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in areas where their constitutional application might be cloudy.” Raines, supra, at 22. Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of “premature interpretation of statutes on the basis of factually barebones records.” Sabri v. United States, 541 U. S. 600, 609 (2004) (internal quotation marks and brackets omitted). Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither “ ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ ” Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885)). Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that “ ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006) (quoting Regan v. Time, Inc., 468 U. S. 641, 652 (1984) (plurality opinion)). It is with these principles in view that we turn to the merits of respondents’ facial challenge to I–872. A The States possess a “ ‘broad power to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives,” Art. I, §4, cl. 1, which power is matched by state control over the election process for state offices.’ ” Clingman v. Beaver, 544 U. S. 581, 586 (2005) (quoting Tashjian, 479 U. S., at 217); Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358 (1997) (same). This power is not absolute, but is “subject to the limitation that [it] may not be exercised in a way that violates … specific provisions of the Constitution.” Williams v. Rhodes, 393 U. S. 23, 29 (1968). In particular, the State has the “ ‘responsibility to observe the limits established by the First Amendment rights of the State’s citizens,’ ” including the freedom of political association. Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 222 (1989) (quoting Tashjian, supra, at 217). Election regulations that impose a severe burden on associational rights are subject to strict scrutiny, and we uphold them only if they are “narrowly tailored to serve a compelling state interest.” Clingman, supra, at 586; see also Rhodes, supra, at 31 (“ ‘only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms’ ” (quoting NAACP v. Button, 371 U. S. 415, 438 (1963))). If a statute imposes only modest burdens, however, then “the State’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions” on election procedures. Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). “Accordingly, we have repeatedly upheld reasonable, politically neutral regulations that have the effect of channeling expressive activity at the polls.” Burdick v. Takushi, 504 U. S. 428, 438 (1992). The parties do not dispute these general principles; rather, they disagree about whether I–872 severely burdens respondents’ associational rights. That disagreement begins with Jones. Petitioners argue that the I–872 primary is indistinguishable from the alternative Jones suggested would be constitutional. In Jones we noted that a nonpartisan blanket primary, where the top two votegetters proceed to the general election regardless of their party, was a less restrictive alternative to California’s system because such a primary does not nominate candidates. 530 U. S., at 585–586 (The nonpartisan blanket primary “has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party’s nominee”). Petitioners are correct that we assumed that the nonpartisan primary we described in Jones would be constitutional. But that is not dispositive here because we had no occasion in Jones to determine whether a primary system that indicates each candidate’s party preference on the ballot, in effect, chooses the parties’ nominees. That question is now squarely before us. Respondents argue that I–872 is unconstitutional under Jones because it has the same “constitutionally crucial” infirmity that doomed California’s blanket primary: it allows primary voters who are unaffiliated with a party to choose the party’s nominee. Respondents claim that candidates who progress to the general election under I–872 will become the de facto nominees of the parties they prefer, thereby violating the parties’ right to choose their own standard-bearers, see Timmons, supra, at 359, and altering their messages. They rely on our statement in Jones reaffirming “the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party ‘select[s] a standard bearer who best represents the party’s ideologies and preferences.’ ” Jones, 550 U. S., at 575 (quoting Eu, supra, at 224). The flaw in this argument is that, unlike the California primary, the I–872 primary does not, by its terms, choose parties’ nominees. The essence of nomination—the choice of a party representative—does not occur under I–872. The law never refers to the candidates as nominees of any party, nor does it treat them as such. To the contrary, the election regulations specifically provide that the primary “does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election.” Wash. Admin. Code §434–262–012. The top two candidates from the primary election proceed to the general election regardless of their party preferences. Whether parties nominate their own candidates outside the state-run primary is simply irrelevant. In fact, parties may now nominate candidates by whatever mechanism they choose because I–872 repealed Washington’s prior regulations governing party nominations.[Footnote 7] Respondents counter that, even if the I–872 primary does not actually choose parties’ nominees, it nevertheless burdens their associational rights because voters will assume that candidates on the general election ballot are the nominees of their preferred parties. This brings us to the heart of respondents’ case—and to the fatal flaw in their argument. At bottom, respondents’ objection to I–872 is that voters will be confused by candidates’ party-preference designations. Respondents’ arguments are largely variations on this theme. Thus, they argue that even if voters do not assume that candidates on the general election ballot are the nominees of their parties, they will at least assume that the parties associate with, and approve of, them. This, they say, compels them to associate with candidates they do not endorse, alters the messages they wish to convey, and forces them to engage in counterspeech to disassociate themselves from the candidates and their positions on the issues. We reject each of these contentions for the same reason: They all depend, not on any facial requirement of I–872, but on the possibility that voters will be confused as to the meaning of the party-preference designation. But respondents’ assertion that voters will misinterpret the party-preference designation is sheer speculation. It “depends upon the belief that voters can be ‘misled’ by party labels. But ‘[o]ur cases reflect a greater faith in the ability of individual voters to inform themselves about campaign issues.’ ” Tashjian, 479 U. S., at 220 (quoting Anderson, 460 U. S., at 797). There is simply no basis to presume that a well-informed electorate will interpret a candidate’s party-preference designation to mean that the candidate is the party’s chosen nominee or representative or that the party associates with or approves of the candidate. See New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13–14 (1988) (rejecting a facial challenge to a law regulating club membership and noting that “[w]e could hardly hold otherwise on the record before us, which contains no specific evidence on the characteristics of any club covered by the [l]aw”). This strikes us as especially true here, given that it was the voters of Washington themselves, rather than their elected representatives, who enacted I–872. Of course, it is possible that voters will misinterpret the candidates’ party-preference designations as reflecting endorsement by the parties. But these cases involve a facial challenge, and we cannot strike down I–872 on its face based on the mere possibility of voter confusion. See Yazoo, 226 U. S., at 219 (“[T]his court must deal with the case in hand and not with imaginary ones”); Pullman Co. v. Knott, 235 U. S. 23, 26 (1914) (A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are”). Because respondents brought their suit as a facial challenge, we have no evidentiary record against which to assess their assertions that voters will be confused. See Timmons, 520 U. S., at 375–376 (Stevens, J., dissenting) (rejecting judgments based on “imaginative theoretical sources of voter confusion” and “entirely hypothetical” outcomes). Indeed, because I–872 has never been implemented, we do not even have ballots indicating how party preference will be displayed. It stands to reason that whether voters will be confused by the party-preference designations will depend in significant part on the form of the ballot. The Court of Appeals assumed that the ballot would not place abbreviations like “ ‘D’ ” and “ ‘R,’ ” or “ ‘Dem.’ ” and “ ‘Rep.’ ” after the names of candidates, but would instead “clearly state that a particular candidate ‘prefers’ a particular party.” 460 F. 3d, at 1121, n. 20. It thought that even such a clear statement did too little to eliminate the risk of voter confusion. But we see no reason to stop there. As long as we are speculating about the form of the ballot—and we can do no more than speculate in this facial challenge—we must, in fairness to the voters of the State of Washington who enacted I–872 and in deference to the executive and judicial officials who are charged with implementing it, ask whether the ballot could conceivably be printed in such a way as to eliminate the possibility of widespread voter confusion and with it the perceived threat to the First Amendment. See Ayotte, 546 U. S., at 329 (noting that courts should not nullify more of a state law than necessary so as to avoid frustrating the intent of the people and their duly elected representatives); Ward v. Rock Against Racism, 491 U. S. 781, 795–796 (1989) (“ ‘[I]n evaluating a facial challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered.’ ” (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494, n. 5 (1982))). It is not difficult to conceive of such a ballot. For example, petitioners propose that the actual I–872 ballot could include prominent disclaimers explaining that party preference reflects only the self-designation of the candidate and not an official endorsement by the party. They also suggest that the ballots might note preference in the form of a candidate statement that emphasizes the candidate’s personal determination rather than the party’s acceptance of the candidate, such as “my party preference is the Republican Party.” Additionally, the State could decide to educate the public about the new primary ballots through advertising or explanatory materials mailed to voters along with their ballots.[Footnote 8] We are satisfied that there are a variety of ways in which the State could implement I–872 that would eliminate any real threat of voter confusion. And without the specter of widespread voter confusion, respondents’ arguments about forced association[Footnote 9] and compelled speech[Footnote 10] fall flat. Our conclusion that these implementations of I–872 would be consistent with the First Amendment is fatal to respondents’ facial challenge. See Schall v. Martin, 467 U. S. 253, 264 (1984) (a facial challenge fails where “at least some” constitutional applications exist). Each of their arguments rests on factual assumptions about voter confusion, and each fails for the same reason: In the absence of evidence, we cannot assume that Washington’s voters will be misled. See Jones, 530 U. S., at 600 (Stevens, J., dissenting) (“[A]n empirically debatable assumption . . . is too thin a reed to support a credible First Amendment distinction” between permissible and impermissible burdens on association). That factual determination must await an as-applied challenge. On its face, I–872 does not impose any severe burden on respondents’ associational rights. B Because we have concluded that I–872 does not severely burden respondents, the State need not assert a compelling interest. See Clingman, 544 U. S., at 593 (“When a state electoral provision places no heavy burden on associational rights, ‘a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions’ ” (quoting Timmons, 520 U. S., at 358)). The State’s asserted interest in providing voters with relevant information about the candidates on the ballot is easily sufficient to sustain I–872. See Anderson, 460 U. S., at 796 (“There can be no question about the legitimacy of the State’s interest in fostering informed and educated expressions of the popular will in a general election”).[Footnote 11] III Respondents ask this Court to invalidate a popularly enacted election process that has never been carried out. Immediately after implementing regulations were enacted, respondents obtained a permanent injunction against the enforcement of I–872. The First Amendment does not require this extraordinary and precipitous nullification of the will of the people. Because I–872 does not on its face provide for the nomination of candidates or compel political parties to associate with or endorse candidates, and because there is no basis in this facial challenge for presuming that candidates’ party-preference designations will confuse voters, I–872 does not on its face severely burden respondents’ associational rights. We accordingly hold that I–872 is facially constitutional. The judgment of the Court of Appeals is reversed. It is so ordered. Footnote 1 The term “blanket primary” refers to a system in which “any person, regardless of party affiliation, may vote for a party’s nominee.” California Democratic Party v. Jones, 530 U. S. 567, 576, n. 6 (2000). A blanket primary is distinct from an “open primary,” in which a person may vote for any party’s nominees, but must choose among that party’s nominees for all offices, ibid., and the more traditional “closed primary” in which “only persons who are members of the political party … can vote on its nominee,” id., at 570. Footnote 2 The Washington State Grange is a fraternal, social, and civic organization chartered by the National Grange in 1889. Although originally formed to represent the interests of farmers, the organization has advocated a variety of goals, including women’s suffrage, rural electrification, protection of water resources, and universal telephone service. The State Grange also supported the Washington constitutional amendment establishing initiatives and referendums and sponsored the 1934 blanket primary initiative. Footnote 3 Respondents make much of the fact that the promoters of I–872 presented it to Washington voters as a way to preserve the primary system in place from 1935 to 2003. But our task is not to judge I–872 based on its promoters’ assertions about its similarity, or lack thereof, to the unconstitutional primary; we must evaluate the constitutionality of I–872 on its own terms. Whether the language of I–872 was purposely drafted to survive a Jones-type constitutional challenge is irrelevant to whether it has successfully done so. Footnote 4 “ ‘Partisan office’ means a public office for which a candidate may indicate a political party preference on his or her declaration of candidacy and have that preference appear on the primary and general election ballot in conjunction with his or her name.” Wash. Rev. Code §29A.04.110 (Supp. 2005). Footnote 5 This is not a hypothetical outcome. The Court of Appeals observed that, had the 1996 gubernatorial primary been conducted under the I–872 system, two Democratic candidates and no Republican candidate would have advanced from the primary to the general election. See 460 F. 3d 1108, 1114, n. 8 (CA9 2006). Footnote 6 Our cases recognize a second type of facial challenge in the First Amendment context under which a law may be overturned as impermissibly overbroad because a “substantial number” of its applications are unconstitutional, “ ‘judged in relation to the statute’s plainly legitimate sweep.’ ” New York v. Ferber, 458 U. S. 747, 769–771 (1982) (quoting Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973)). We generally do not apply the “ ‘strong medicine’ ” of overbreadth analysis where the parties fail to describe the instances of arguable overbreadth of the contested law. See New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 14 (1988). Footnote 7 It is true that parties may no longer indicate their nominees on the ballot, but that is unexceptionable: The First Amendment does not give political parties a right to have their nominees designated as such on the ballot. See Timmons v. Twin Cities Area New Party, 520 U. S. 351, 362–363 (1997) (“We are unpersuaded, however, by the party’s contention that it has a right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate”). Parties do not gain such a right simply because the State affords candidates the opportunity to indicate their party preference on the ballot. “Ballots serve primarily to elect candidates, not as forums for political expression.” Id., at 363. Footnote 8 Washington counties have broad authority to conduct elections entirely by mail ballot rather than at in-person polling places. See Wash. Rev. Code §29A.48.010. As a result, over 90% of Washington voters now vote by mail. See Tr. of Oral Arg. 11. Footnote 9 Respondents rely on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995) (holding that a State may not require a parade to include a group if the parade’s organizer disagrees with the group’s message), and Boy Scouts of America v. Dale, 530 U. S. 640 (2000) (holding that the Boy Scouts’ freedom of expressive association was violated by a state law requiring the organization to admit a homosexual scoutmaster). In those cases, actual association threatened to distort the groups’ intended messages. We are aware of no case in which the mere impression of association was held to place a severe burden on a group’s First Amendment rights, but we need not decide that question here. Footnote 10 Relying on Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1 (1986) (holding that a state agency may not require a utility company to include a third-party newsletter in its billing envelope), respondents argue that the threat of voter confusion will force them to speak to clarify their positions. Because I–872 does not actually force the parties to speak, however, Pacific Gas & Elec. is inapposite. I–872 does not require the parties to reproduce another’s speech against their will; nor does it co-opt the parties’ own conduits for speech. Rather, it simply provides a place on the ballot for candidates to designate their party preferences. Facilitation of speech to which a political party may choose to respond does not amount to forcing the political party to speak. Cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 64–65 (2006). Footnote 11 Respondent Libertarian Party of Washington argues that I–872 is unconstitutional because of its implications for ballot access, trademark protection of party names, and campaign finance. We do not consider the ballot access and trademark arguments as they were not addressed below and are not encompassed by the question on which we granted certiorari: “Does Washington’s primary election system … violate the associational rights of political parties because candidates are permitted to identify their political party preference on the ballot?” Pet. for cert. in No. 06–730, p. i. The campaign finance issue also was not addressed below and is more suitable for consideration on remand. |
552.US.74 | After trading a controlled substance for a pistol, petitioner Watson was indicted for, inter alia, violating 18 U. S. C. §924(c)(1)(A), which sets a mandatory minimum sentence, depending on the facts, for a defendant who, “during and in relation to any … drug trafficking crime[,] … uses … a firearm.” The statute does not define “uses,” but this Court has spoken to it twice. In holding that “a criminal who trades his firearm for drugs ‘uses’ it … within the meaning of §924(c)(1),” Smith v. United States, 508 U. S. 223, 241, the Court rested primarily on the “ordinary or natural meaning” of the verb in context, id., at 228, understanding its common range as going beyond employment as a weapon to trading a weapon for drugs, id., at 230. Later, in holding that merely possessing a firearm kept near the scene of drug trafficking is not “use” under §924(c)(1), the Court, in Bailey v. United States, 516 U. S. 137, again looked to “ordinary or natural” meaning, id., at 145, deciding that “§924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense,” id., at 143. Watson pleaded guilty but reserved the right to challenge the factual basis for a §924(c)(1)(A) conviction and sentence. The Fifth Circuit affirmed on its precedent foreclosing any argument that Watson had not “used” a firearm. Held: A person does not “use” a firearm under 18 U. S. C. §924(c)(1)(A) when he receives it in trade for drugs. Pp. 4–9. (a) The Government’s position lacks authority in either precedent or regular English. Neither Smith, which addressed only the trader who swaps his gun for drugs, not the trading partner who ends up with the gun, nor Bailey, which ruled that a gun must be made use of actively to satisfy §924(c)(1)(A), decides this case. With no statutory definition, the meaning of “uses” has to turn on “everyday meaning” revealed in phraseology that strikes the ear as “both reasonable and normal.” Smith, supra, 228, 230. When Watson handed over the drugs for the pistol, the officer “used” the pistol to get the drugs, but regular speech would not say that Watson himself used the pistol in the trade. Pp. 4–5. (b) The Government’s first effort to trump ordinary English is rejected. Noting that §924(d)(1) authorizes seizure and forfeiture of firearms “intended to be used in” certain crimes, the Government infers that since some of those offenses involve receipt of a firearm, “use” necessarily includes receipt of a gun even in a barter transaction. The Government’s reliance on Smith for the proposition that the term must be given the same meaning in both subsections overreads Smith. The common verb “use” is not at odds in the two subsections but speaks to different issues in different voices and at different levels of specificity. Section 924(d)(1) indicates that a gun can be “used” in a receipt crime, but does not say whether both parties to a transfer use the gun, or only one, or which one; however, §924(c)(1)(A) requires just such a specific identification. Pp. 5–7. (c) Nor is the Government’s second effort to trump ordinary English persuasive. It claims that failing to treat receipt in trade as “use” would create unacceptable asymmetry with Smith; i.e., it would be strange to penalize one side of a gun-for-drugs exchange but not the other. The problem is not with Smith, however, but with the limited malleability of the language it construed, and policy-driven symmetry cannot turn “receipt-in-trade” into “use.” Whatever the tension between the prior result and the outcome here, law depends on respect for language and would be served better by statutory amendment than by racking statutory language to cover a policy it fails to reach. Pp. 8–9. 191 Fed. Appx. 326, reversed and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Thomas, Breyer, and Alito, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment. | The question is whether a person who trades his drugs for a gun “uses” a firearm “during and in relation to … [a] drug trafficking crime” within the meaning of 18 U. S. C. §924(c)(1)(A).[Footnote 1] We hold that he does not. I A Section 924(c)(1)(A) sets a mandatory minimum sentence, depending on the facts, for a defendant who, “during and in relation to any crime of violence or drug trafficking crime[,] … uses or carries a firearm.”[Footnote 2] The statute leaves the term “uses” undefined, though we have spoken to it twice before. Smith v. United States, 508 U. S. 223 (1993) raised the converse of today’s question, and held that “a criminal who trades his firearm for drugs ‘uses’ it during and in relation to a drug trafficking offense within the meaning of §924(c)(1).” Id., at 241. We rested primarily on the “ordinary or natural meaning” of the verb in context, id., at 228, and understood its common range as going beyond employment as a weapon: “it is both reasonable and normal to say that petitioner ‘used’ his MAC–10 in his drug trafficking offense by trading it for cocaine,” id., at 230. Two years later, the issue in Bailey v. United States, 516 U. S. 137 (1995) was whether possessing a firearm kept near the scene of drug trafficking is “use” under §924(c)(1). We looked again to “ordinary or natural” meaning, id., at 145, and decided that mere possession does not amount to “use”: “§924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense,” id., at 143.[Footnote 3] B This third case on the reach of §924(c)(1)(A) began to take shape when petitioner, Michael A. Watson, told a Government informant that he wanted to acquire a gun. On the matter of price, the informant quoted no dollar figure but suggested that Watson could pay in narcotics. Next, Watson met with the informant and an undercover law enforcement agent posing as a firearms dealer, to whom he gave 24 doses of oxycodone hydrocholoride (commonly, OxyContin) for a .50 caliber semiautomatic pistol. When law enforcement officers arrested Watson, they found the pistol in his car, and a later search of his house turned up a cache of prescription medicines, guns, and ammunition. Watson said he got the pistol “to protect his other firearms and drugs.” App. to Pet. for Cert. 11a. A federal grand jury indicted him for distributing a Schedule II controlled substance and for “using” the pistol during and in relation to that crime, in violation of §924(c)(1)(A).[Footnote 4] Watson pleaded guilty across the board, reserving the right to challenge the factual basis for a §924(c)(1)(A) conviction and the added consecutive sentence of 60 months for using the gun. The Court of Appeals affirmed, 191 Fed. Appx. 326 (CA5 2006) (per curiam), on Circuit precedent foreclosing any argument that Watson had not “used” a firearm, see id., at 327 (citing United States v. Ulloa, 94 F. 3d 949 (CA5 1996) and United States v. Zuniga, 18 F. 3d 1254 (CA5 1994)). We granted certiorari to resolve a conflict among the Circuits on whether a person “uses” a firearm within the meaning of 18 U. S. C. §924(c)(1)(A) when he trades narcotics to obtain a gun.[Footnote 5] 549 U. S. ___ (2007). We now reverse. II A The Government’s position that Watson “used” the pistol under §924(c)(1)(A) by receiving it for narcotics lacks authority in either precedent or regular English. To begin with, neither Smith nor Bailey implicitly decides this case. While Smith held that firearms may be “used” in a barter transaction, even with no violent employment, see 508 U. S., at 241, the case addressed only the trader who swaps his gun for drugs, not the trading partner who ends up with the gun. Bailey, too, is unhelpful, with its rule that a gun must be made use of actively to satisfy §924(c)(1)(A), as “an operative factor in relation to the predicate offense.” 516 U. S., at 143. The question here is whether it makes sense to say that Watson employed the gun at all; Bailey does not answer it. With no statutory definition or definitive clue, the meaning of the verb “uses” has to turn on the language as we normally speak it, see, e.g., Lopez v. Gonzales, 549 U. S. ___, ___ (2006) (slip op., at 5); Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187 (1995); FDIC v. Meyer, 510 U. S. 471, 476 (1994); there is no other source of a reasonable inference about what Congress understood when writing or what its words will bring to the mind of a careful reader. So, in Smith we looked for “everyday meaning,” 508 U. S., at 228, revealed in phraseology that strikes the ear as “both reasonable and normal,” id., at 230. See also Bailey, supra, at 145. This appeal to the ordinary leaves the Government without much of a case. The Government may say that a person “uses” a firearm simply by receiving it in a barter transaction, but no one else would. A boy who trades an apple to get a granola bar is sensibly said to use the apple, but one would never guess which way this commerce actually flowed from hearing that the boy used the granola. Cf. United States v. Stewart, 246 F. 3d 728, 731 (CADC 2001) (“[W]hen a person pays a cashier a dollar for a cup of coffee in the courthouse cafeteria, the customer has not used the coffee. He has only used the dollar bill”). So, when Watson handed over the drugs for the pistol, the informant or the agent[Footnote 6] “used” the pistol to get the drugs, just as Smith held, but regular speech would not say that Watson himself used the pistol in the trade. “A seller does not ‘use’ a buyer’s consideration,” United States v. Westmoreland, 122 F. 3d 431, 436 (CA7 1997), and the Government’s contrary position recalls another case; Lopez, supra, at ___ (slip op., at 7), rejected the Government’s interpretation of 18 U. S. C. §924(c)(2) because “we do not normally speak or write the Government’s way.”[Footnote 7] B The Government would trump ordinary English with two arguments. First, it relies on Smith for the pertinence of a neighboring provision, 18 U. S. C. §924(d)(1), which authorizes seizure and forfeiture of firearms “intended to be used in” certain criminal offenses listed in §924(d)(3). Some of those offenses involve receipt of a firearm,[Footnote 8] from which the Government infers that “use” under §924(d) necessarily includes receipt of a gun even in a barter transaction. Smith is cited for the proposition that the term must be given the same meaning in both subsections, and the Government urges us to import “use” as “receipt in barter” into §924(c)(1)(A). We agree with the Government that §924(d) calls for attention; the reference to intended use in a receipt crime carries some suggestion that receipt can be “use” (more of a hint, say, than speaking of intended “use” in a crime defined as exchange). But the suggestion is a tepid one and falls short of supporting what is really an attempt to draw a conclusion too specific from a premise too general. The Smith majority rested principally on ordinary speech in reasoning that §924(c)(1) extends beyond use as a weapon and includes use as an item of barter, see 508 U. S., at 228–230, and the Smith opinion looks to §924(d) only for its light on that conclusion. It notes that the “intended to be used” clause of §924(d)(1) refers to offenses where “the firearm is not used as a weapon but instead as an item of barter or commerce,” id., at 234, with the implication that Congress intended “use” to reach commercial transactions, not just gun violence, in §924(d) generally, see id., at 234–235. It was this breadth of treatment that led the Smith majority to say that, “[u]nless we are to hold that using a firearm has a different meaning in §924(c)(1) than it does in §924(d)—and clearly we should not—we must reject petitioner’s narrow interpretation.” Id., at 235 (citation omitted); see also Bailey, supra, at 146 (“[U]sing a firearm should not have a different meaning in §924(c)(1) than it does in §924(d)” (internal quotation marks omitted)). The Government overreads Smith. While the neighboring provision indicates that a firearm is “used” nonoffensively, and supports the conclusion that a gun can be “used” in barter, beyond that point its illumination fails. This is so because the utility of §924(d)(1) is limited by its generality and its passive voice; it tells us a gun can be “used” in a receipt crime, but not whether both parties to a transfer use the gun, or only one, or which one. The nearby subsection (c)(1)(A), however, requires just such a specific identification. It provides that a person who uses a gun in the circumstances described commits a crime, whose perpetrator must be clearly identifiable in advance. The agnosticism on the part of §924(d)(1) about who does the using is entirely consistent with common speech’s understanding that the first possessor is the one who “uses” the gun in the trade, and there is thus no cause to admonish us to adhere to the paradigm of a statute “as a symmetrical and coherent regulatory scheme, … in which the operative words have a consistent meaning throughout,” Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995), or to invoke the “standard principle of statutory construction … that identical words and phrases within the same statute should normally be given the same meaning,” Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. ___, ___ (2007) (slip op., at 7). Subsections (d)(1) and (c)(1)(A) as we read them are not at odds over the verb “use”; the point is merely that in the two subsections the common verb speaks to different issues in different voices and at different levels of specificity. The provisions do distinct jobs, but we do not make them guilty of employing the common verb inconsistently.[Footnote 9] C The second effort to trump regular English is the claim that failing to treat receipt in trade as “use” would create unacceptable asymmetry with Smith. At bottom, this atextual policy critique says it would be strange to penalize one side of a gun-for-drugs exchange but not the other: “[t]he danger to society is created not only by the person who brings the firearm to the drug transaction, but also by the drug dealer who takes the weapon in exchange for his drugs during the transaction,” Brief for United States 23. The position assumes that Smith must be respected, and we join the Government at least on this starting point. A difference of opinion within the Court (as in Smith) does not keep the door open for another try at statutory construction, where stare decisis has “special force [since] the legislative power is implicated, and Congress remains free to alter what we have done.” Patterson v. McLean Credit Union, 491 U. S. 164, 172–173 (1989). What is more, in 14 years Congress has taken no step to modify Smith’s holding, and this long congressional acquiescence “has enhanced even the usual precedential force” we accord to our interpretations of statutes, Shepard v. United States, 544 U. S. 13, 23 (2005). The problem, then, is not with the sturdiness of Smith but with the limited malleability of the language Smith construed, and policy-driven symmetry cannot turn “receipt-in-trade” into “use.” Whatever the tension between the prior result and the outcome here, law depends on respect for language and would be served better by statutory amendment (if Congress sees asymmetry) than by racking statutory language to cover a policy it fails to reach. The argument is a peculiar one, in fact, given the Government’s take on the current state of §924(c)(1)(A). It was amended after Bailey and now prohibits not only using a firearm during and in relation to a drug trafficking crime, but also possessing one “in furtherance of” such a crime. 18 U. S. C. §924(c)(1)(A); see n. 3, supra. The Government is confident that “a drug dealer who takes a firearm in exchange for his drugs generally will be subject to prosecution” under this new possession prong. Brief for United States 27; see Tr. of Oral Arg. 41 (Watson’s case “could have been charged as possession”); cf. United States v. Cox, 324 F. 3d 77, 83, n. 2 (CA2 2003) (“For defendants charged under §924(c) after [the post-Bailey] amendment, trading drugs for a gun will probably result in . . . possession [in furtherance of a drug trafficking crime]”). This view may or may not prevail, and we do not speak to it today, but it does leave the appeal to symmetry underwhelming in a contest with the English language, on the Government’s very terms. * * * Given ordinary meaning and the conventions of English, we hold that a person does not “use” a firearm under §924(c)(1)(A) when he receives it in trade for drugs. 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 Formerly 18 U. S. C. §924(c)(1) (1994 ed.). Footnote 2 Any violation of §924(c)(1)(A), for example, demands a mandatory minimum sentence of 5 years. See 18 U. S. C. §924(c)(1)(A)(i). If the firearm is brandished, the minimum goes up to 7 years, see §924(c)(1)(A)(ii); if the firearm is discharged, the minimum jumps to 10 years, see §924(c)(1)(A)(iii). Footnote 3 In 1998, Congress responded to Bailey by amending §924(c)(1). The amendment broadened the provision to cover a defendant who “in furtherance of any [crime of violence or drug trafficking] crime, possesses a firearm.” 18 U. S. C. §924(c)(1)(A). The amendment did not touch the “use” prong of §924(c)(1). Footnote 4 The grand jury also indicted Watson as a felon in possession of a firearm, in violation of §922(g)(1). This count referred to the five firearms found in Watson’s house, but not the pistol he got for the narcotics. Footnote 5 Compare United States v. Cotto, 456 F. 3d 25 (CA1 2006) (trading drugs for a firearm constitutes “use” of the firearm under §924(c)(1)(A)); United States v. Sumler, 294 F. 3d 579 (CA3 2002) (same); United States v. Ramirez-Rangel, 103 F. 3d 1501 (CA9 1997) (same); United States v. Ulloa, 94 F. 3d 949 (CA5 1996) (same); United States v. Cannon, 88 F. 3d 1495 (CA8 1996) (same), with United States v. Montano, 398 F. 3d 1276 (CA11 2005) (per curiam) (defendant did not “use” a firearm within the meaning of §924(c)(1)(A) when he traded drugs for a firearm); United States v. Stewart, 246 F. 3d 728 (CADC 2001) (same); United States v. Warwick, 167 F. 3d 965 (CA6 1999) (same); United States v. Westmoreland, 122 F. 3d 431 (CA7 1997) (same). The Fourth Circuit has held that a defendant “used” a firearm where he gave cocaine base to a compatriot in exchange for assistance in obtaining a gun. See United States v. Harris, 39 F. 3d 1262 (1994). Subsequent unpublished opinions in that Circuit have relied on Harris for the proposition that the receipt of a firearm in exchange for drugs constitutes use of the firearm. See, e.g., United States v. Belcher, No. 98–4845, 1999 WL 1080103 (CA4, Nov. 29, 1999) (per curiam). Footnote 6 The record does not say which. Footnote 7 Dictionaries confirm the conclusion. “Use” is concededly “elastic,” Smith v. United States, 508 U. S. 223, 241 (1993) (Scalia, J., dissenting), but none of its standard definitions stretch far enough to reach Watson’s conduct, see, e.g., Webster’s New International Dictionary of the English Language 2806 (2d ed. 1939) (“to employ”); The Random House Dictionary of the English Language 2097 (2d ed. 1987) (to “apply to one’s own purposes”; “put into service; make use of”); Black’s Law Dictionary 1541 (6th ed. 1990) (“[t]o avail oneself of; … to utilize”); see also Smith, supra, at 228–229 (listing various dictionary definitions). Footnote 8 See, e.g., 18 U. S. C. §922(j) (prohibiting, inter alia, the receipt of a stolen firearm in interstate commerce); §924(b) (prohibiting, inter alia, the receipt of a firearm in interstate commerce with the intent to commit a felony). Footnote 9 For that matter, the Government’s argument that “use” must always have an identical meaning in §§924(c)(1)(A) and 924(d)(1) would upend Bailey v. United States, 516 U. S. 137 (1995). One of the relevant predicate offenses referred to by §924(d)(1) is possession of “any stolen firearm … [in] interstate or foreign commerce.” 18 U. S. C. §922(j). If we were to hold that all criminal conduct covered by the “intended to be used” clause in §924(d)(1) is “use” for purposes of §924(c)(1)(A), it would follow that mere possession is use. But that would squarely conflict with our considered and unanimous decision in Bailey that “ ‘use’ must connote more than mere possession of a firearm.” 516 U. S., at 143. |
556.US.247 | Respondents are members of the Service Employees International Union, Local 32BJ (Union). Under the National Labor Relations Act, the Union is the exclusive bargaining representative of employees within the building-services industry in New York City, which includes building cleaners, porters, and doorpersons. The Union has exclusive authority to bargain on behalf of its members over their “rates of pay, wages, hours of employment, or other conditions of employment,” 29 U. S. C. §159(a), and engages in industry-wide collective bargaining with the Realty Advisory Board on Labor Relations, Inc. (RAB), a multiemployer bargaining association for the New York City real-estate industry. The agreement between the Union and the RAB is embodied in their Collective Bargaining Agreement for Contractors and Building Owners (CBA). The CBA requires union members to submit all claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures. Petitioner 14 Penn Plaza LLC is a member of the RAB. It owns and operates the New York City office building where respondents worked as night lobby watchmen and in other similar capacities. Respondents were directly employed by petitioner Temco Service Industries, Inc. (Temco), a maintenance service and cleaning contractor. After 14 Penn Plaza, with the Union’s consent, engaged a unionized security contractor affiliated with Temco to provide licensed security guards for the building, Temco reassigned respondents to jobs as porters and cleaners. Contending that these reassignments led to a loss in income, other damages, and were otherwise less desirable than their former positions, respondents asked the Union to file grievances alleging, among other things, that petitioners violated the CBA’s ban on workplace discrimination by reassigning respondents on the basis of their age in violation of Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. The Union requested arbitration under the CBA, but after the initial hearing, withdrew the age-discrimination claims on the ground that its consent to the new security contract precluded it from objecting to respondents’ reassignments as discriminatory. Respondents then filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners had violated their ADEA rights, and the EEOC issued each of them a right-to-sue notice. In the ensuing lawsuit, the District Court denied petitioners’ motion to compel arbitration of respondents’ age discrimination claims. The Second Circuit affirmed, holding that Alexander v. Gardner-Denver Co., 415 U. S. 36, forbids enforcement of collective-bargaining provisions requiring arbitration of ADEA claims. Held: A provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. Pp. 6–25. (a) Examination of the two federal statutes at issue here, the ADEA and the National Labor Relations Act (NLRA), yields a straightforward answer to the question presented. The Union and the RAB, negotiating on behalf of 14 Penn Plaza, collectively bargained in good faith and agreed that employment-related discrimination claims, including ADEA claims, would be resolved in arbitration. This freely negotiated contractual term easily qualifies as a “conditio[n] of employment” subject to mandatory bargaining under the NLRA, 29 U. S. C. §159(a). See, e.g., Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U. S. 190, 199. As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer, and courts generally may not interfere in this bargained-for exchange. See NLRB v. Magnavox Co., 415 U. S. 322, 328. Thus, the CBA’s arbitration provision must be honored unless the ADEA itself removes this particular class of grievances from the NLRA’s broad sweep. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 628. It does not. This Court has squarely held that the ADEA does not preclude arbitration of claims brought under the statute. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 26–33. Pp. 6–10. Accordingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely negotiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age-discrimination claims at issue in this appeal. Pp. 6–10. (b) The CBA’s arbitration provision is also fully enforceable under the Gardner-Denver line of cases. Respondents incorrectly interpret Gardner-Denver and its progeny as holding that an agreement to arbitrate ADEA claims provided for in a collective-bargaining agreement cannot waive an individual employee’s right to a judicial forum under federal antidiscrimination statutes.. Pp. 11–23. (i) The facts underlying Gardner-Denver and its progeny reveal the narrow scope of the legal rule they engendered. Those cases “did not involve the issue of the enforceability of an agreement to arbitrate statutory claims,” but “the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims.” Gilmer, supra, at 35. Gardner-Denver does not control the outcome where, as here, the collective-bargaining agreement’s arbitration provision expressly covers both statutory and contractual discrimination claims. Pp. 11–15. (ii) Apart from their narrow holdings, the Gardner-Denver line of cases included broad dicta highly critical of using arbitration to vindicate statutory antidiscrimination rights. That skepticism, however, rested on a misconceived view of arbitration that this Court has since abandoned. First, contrary to Gardner-Denver’s erroneous assumption, 415 U. S., at 51, the decision to resolve ADEA claims by way of arbitration instead of litigation does not waive the statutory right to be free from workplace age discrimination; it waives only the right to seek relief from a court in the first instance, see, e.g., Gilmer, supra, at 26. Second, Gardner-Denver’s mistaken suggestion that certain informal features of arbitration made it a forum “well suited to the resolution of contractual disputes,” but “a comparatively inappropriate forum for the final resolution of [employment] rights.” 415 U. S., at 56, has been corrected. See, e.g., Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 232. Third, Gardner-Denver’s concern that, in arbitration, a union may subordinate an individual employee’s interests to the collective interests of all employees in the bargaining unit, 415 U. S., at 58, n. 19, cannot be relied on to introduce a qualification into the ADEA that is not found in its text. Until Congress amends the ADEA to meet the conflict-of-interest concern identified in the Gardner-Denver dicta, there is “no reason to color the lens through which the arbitration clause is read.” Mitsubishi, supra, at 628. In any event, the conflict-of-interest argument amounts to an unsustainable collateral attack on the NLRA, see Emporium Capwell Co. v. Western Addition Community Organization, 420 U. S. 50, 62, and Congress has accounted for the conflict in several ways: union members may bring a duty of fair representation claim against the union; a union can be subjected to direct liability under the ADEA if it discriminates on the basis of age; and union members may also file age-discrimination claims with the EEOC and the National Labor Relations Board. Pp. 15–23. (c) Because respondents’ arguments that the CBA does not clearly and unmistakably require them to arbitrate their ADEA claims were not raised in the lower courts, they have been forfeited. Moreover, although a substantive waiver of federally protected civil rights will not be upheld, see, e.g., Mitsubishi, supra, at 637, and n. 19, this Court is not positioned to resolve in the first instance respondents’ claim that the CBA allows the Union to prevent them from effectively vindicating their federal statutory rights in the arbitral forum, given that this question would require resolution of contested factual allegations, was not fully briefed here or below, and is not fairly encompassed within the question presented. Resolution now would be particularly inappropriate in light of the Court’s hesitation to invalidate arbitration agreements based on speculation. See, e.g., Green Tree Financial Corp.-Ala. v. Randolph, 531 U. S. 79. Pp. 23–25. 498 F. 3d 88, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. | The question presented by this case is whether a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq., is enforceable. The United States Court of Appeals for the Second Circuit held that this Court’s decision in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), forbids enforcement of such arbitration provisions. We disagree and reverse the judgment of the Court of Appeals. I Respondents are members of the Service Employees International Union, Local 32BJ (Union). Under the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, the Union is the exclusive bargaining representative of employees within the building-services industry in New York City, which includes building cleaners, porters, and doorpersons. See 29 U. S. C. §159(a). In this role, the Union has exclusive authority to bargain on behalf of its members over their “rates of pay, wages, hours of employment, or other conditions of employment.” Ibid. Since the 1930’s, the Union has engaged in industry-wide collective bargaining with the Realty Advisory Board on Labor Relations, Inc. (RAB), a multiemployer bargaining association for the New York City real-estate industry. The agreement between the Union and the RAB is embodied in their Collective Bargaining Agreement for Contractors and Building Owners (CBA). The CBA requires union members to submit all claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures: “§30 NO DISCRIMINATION. There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, … or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.” App. to Pet. for Cert. 48a.[Footnote 1] Petitioner 14 Penn Plaza LLC is a member of the RAB. It owns and operates the New York City office building where, prior to August 2003, respondents worked as night lobby watchmen and in other similar capacities. Respondents were directly employed by petitioner Temco Service Industries, Inc. (Temco), a maintenance service and cleaning contractor. In August 2003, with the Union’s consent, 14 Penn Plaza engaged Spartan Security, a unionized security services contractor and affiliate of Temco, to provide licensed security guards to staff the lobby and entrances of its building. Because this rendered respondents’ lobby services unnecessary, Temco reassigned them to jobs as night porters and light duty cleaners in other locations in the building. Respondents contend that these reassignments led to a loss in income, caused them emotional distress, and were otherwise less desirable than their former positions. At respondents’ request, the Union filed grievances challenging the reassignments. The grievances alleged that petitioners: (1) violated the CBA’s ban on workplace discrimination by reassigning respondents on account of their age; (2) violated seniority rules by failing to promote one of the respondents to a handyman position; and (3) failed to equitably rotate overtime. After failing to obtain relief on any of these claims through the grievance process, the Union requested arbitration under the CBA. After the initial arbitration hearing, the Union withdrew the first set of respondents’ grievances—the age-discrimination claims—from arbitration. Because it had consented to the contract for new security personnel at 14 Penn Plaza, the Union believed that it could not legitimately object to respondents’ reassignments as discriminatory. But the Union continued to arbitrate the seniority and overtime claims, and, after several hearings, the claims were denied. In May 2004, while the arbitration was ongoing but after the Union withdrew the age-discrimination claims, respondents filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners had violated their rights under the ADEA. Approximately one month later, the EEOC issued a Dismissal and Notice of Rights, which explained that the agency’s “ ‘review of the evidence … fail[ed] to indicate that a violation ha[d] occurred,’ ” and notified each respondent of his right to sue. Pyett v. Pennsylvania Building Co., 498 F. 3d 88, 91 (CA2 2007). Respondents thereafter filed suit against petitioners in the United States District Court for the Southern District of New York, alleging that their reassignment violated the ADEA and state and local laws prohibiting age discrimination.[Footnote 2] Petitioners filed a motion to compel arbitration of respondents’ claims pursuant to §3 and §4 of the Federal Arbitration Act (FAA), 9 U. S. C. §§3, 4.[Footnote 3] The District Court denied the motion because under Second Circuit precedent, “even a clear and unmistakable union-negotiated waiver of a right to litigate certain federal and state statutory claims in a judicial forum is unenforceable.” App. to Pet. for Cert. 21a. Respondents immediately appealed the ruling under §16 of the FAA, which authorizes an interlocutory appeal of “an order … refusing a stay of any action under section 3 of this title” or “denying a petition under section 4 of this title to order arbitration to proceed.” 9 U. S. C. §§16(a)(1)(A)–(B). The Court of Appeals affirmed. 498 F. 3d 88. According to the Court of Appeals, it could not compel arbitration of the dispute because Gardner-Denver, which “remains good law,” held “that a collective bargaining agreement could not waive covered workers’ rights to a judicial forum for causes of action created by Congress.” 498 F. 3d, at 92, 91, n. 3 (citing Gardner-Denver, 415 U. S., at 49–51). The Court of Appeals observed that the Gardner-Denver decision was in tension with this Court’s more recent decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991), which “held that an individual employee who had agreed individually to waive his right to a federal forum could be compelled to arbitrate a federal age discrimination claim.” 498 F. 3d, at 91, n. 3 (citing Gilmer, supra, at 33–35; emphasis in original). The Court of Appeals also noted that this Court previously declined to resolve this tension in Wright v. Universal Maritime Service Corp., 525 U. S. 70, 82 (1998), where the waiver at issue was not “clear and unmistakable.” 498 F. 3d, at 91, n. 3. The Court of Appeals attempted to reconcile Gardner-Denver and Gilmer by holding that arbitration provisions in a collective-bargaining agreement, “which purport to waive employees’ rights to a federal forum with respect to statutory claims, are unenforceable.” 498 F. 3d, at 93–94. As a result, an individual employee would be free to choose compulsory arbitration under Gilmer, but a labor union could not collectively bargain for arbitration on behalf of its members. We granted certiorari, 552 U. S. ___ (2008), to address the issue left unresolved in Wright, which continues to divide the Courts of Appeals,[Footnote 4] and now reverse. II A The NLRA governs federal labor-relations law. As permitted by that statute, respondents designated the Union as their “exclusive representativ[e] … for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.” 29 U. S. C. §159(a). As the employees’ exclusive bargaining representative, the Union “enjoys broad authority … in the negotiation and administration of [the] collective bargaining contract.” Communications Workers v. Beck, 487 U. S. 735, 739 (1988) (internal quotation marks omitted). But this broad authority “is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation.” Humphrey v. Moore, 375 U. S. 335, 342 (1964). The employer has a corresponding duty under the NLRA to bargain in good faith “with the representatives of his employees” on wages, hours, and conditions of employment. 29 U. S. C. §158(a)(5); see also §158(d). In this instance, the Union and the RAB, negotiating on behalf of 14 Penn Plaza, collectively bargained in good faith and agreed that employment-related discrimination claims, including claims brought under the ADEA, would be resolved in arbitration. This freely negotiated term between the Union and the RAB easily qualifies as a “conditio[n] of employment” that is subject to mandatory bargaining under §159(a). See Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U. S. 190, 199 (1991) (“[A]rrangements for arbitration of disputes are a term or condition of employment and a mandatory subject of bargaining”); Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 578 (1960) (“[A]rbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself”); Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 455 (1957) (“Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike”). The decision to fashion a CBA to require arbitration of employment-discrimination claims is no different from the many other decisions made by parties in designing grievance machinery.[Footnote 5] Respondents, however, contend that the arbitration clause here is outside the permissible scope of the collective-bargaining process because it affects the “employees’ individual, non-economic statutory rights.” Brief for Respondents 22; see also post, at 5–6 (Souter, J., dissenting). We disagree. Parties generally favor arbitration precisely because of the economics of dispute resolution. See Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 123 (2001) (“Arbitration agreements allow parties to avoid the costs of litigation, a benefit that may be of particular importance in employment litigation, which often involves smaller sums of money than disputes concerning commercial contracts”). As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer. Courts generally may not interfere in this bargained-for exchange. “Judicial nullification of contractual concessions … is contrary to what the Court has recognized as one of the fundamental policies of the National Labor Relations Act—freedom of contract.” NLRB v. Magnavox Co., 415 U. S. 322, 328 (1974) (Stewart, J., concurring in part and dissenting in part) (internal quotation marks and brackets omitted). As a result, the CBA’s arbitration provision must be honored unless the ADEA itself removes this particular class of grievances from the NLRA’s broad sweep. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 628 (1985). It does not. This Court has squarely held that the ADEA does not preclude arbitration of claims brought under the statute. See Gilmer, 500 U. S., at 26–33. In Gilmer, the Court explained that “[a]lthough all statutory claims may not be appropriate for arbitration, ‘having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.’ ” Id., at 26 (quoting Mitsubishi Motors Corp., supra, at 628). And “if Congress intended the substantive protection afforded by the ADEA to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history.” 500 U. S., at 29 (internal quotation marks and brackets omitted). The Court determined that “nothing in the text of the ADEA or its legislative history explicitly precludes arbitration.” Id., at 26–27. The Court also concluded that arbitrating ADEA disputes would not undermine the statute’s “remedial and deterrent function.” Id., at 28 (internal quotation marks omitted). In the end, the employee’s “generalized attacks” on “the adequacy of arbitration procedures” were “insufficient to preclude arbitration of statutory claims,” id., at 30, because there was no evidence that “Congress, in enacting the ADEA, intended to preclude arbitration of claims under that Act,” id., at 35. The Gilmer Court’s interpretation of the ADEA fully applies in the collective-bargaining context. Nothing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative. This Court has required only that an agreement to arbitrate statutory antidiscrimination claims be “explicitly stated” in the collective-bargaining agreement. Wright, 525 U. S., at 80 (internal quotation marks omitted). The CBA under review here meets that obligation. Respondents incorrectly counter that an individual employee must personally “waive” a “[substantive] right” to proceed in court for a waiver to be “knowing and voluntary” under the ADEA. 29 U. S. C. §626(f)(1). As explained below, however, the agreement to arbitrate ADEA claims is not the waiver of a “substantive right” as that term is employed in the ADEA. Wright, supra, at 80; see infra, at 15–16. Indeed, if the “right” referred to in §626(f)(1) included the prospective waiver of the right to bring an ADEA claim in court, even a waiver signed by an individual employee would be invalid as the statute also prevents individuals from “waiv[ing] rights or claims that may arise after the date the waiver is executed.” §626(f)(1)(C).[Footnote 6] Examination of the two federal statutes at issue in this case, therefore, yields a straightforward answer to the question presented: The NLRA provided the Union and the RAB with statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not terminate that authority with respect to federal age-discrimination claims in the ADEA. Accordingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely negotiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age-discrimination claims at issue in this appeal. Congress has chosen to allow arbitration of ADEA claims. The Judiciary must respect that choice. B The CBA’s arbitration provision is also fully enforceable under the Gardner-Denver line of cases. Respondents interpret Gardner-Denver and its progeny to hold that “a union cannot waive an employee’s right to a judicial forum under the federal antidiscrimination statutes” because “allowing the union to waive this right would substitute the union’s interests for the employee’s antidiscrimination rights.” Brief for Respondents 12. The “combination of union control over the process and inherent conflict of interest with respect to discrimination claims,” they argue, “provided the foundation for the Court’s holding [in Gardner-Denver] that arbitration under a collective-bargaining agreement could not preclude an individual employee’s right to bring a lawsuit in court to vindicate a statutory discrimination claim.” Id., at 15. We disagree. 1 The holding of Gardner-Denver is not as broad as respondents suggest. The employee in that case was covered by a collective-bargaining agreement that prohibited “discrimination against any employee on account of race, color, religion, sex, national origin, or ancestry” and that guaranteed that “[n]o employee will be discharged … except for just cause.” 415 U. S., at 39 (internal quotation marks omitted). The agreement also included a “multistep grievance procedure” that culminated in compulsory arbitration for any “differences aris[ing] between the Company and the Union as to the meaning and application of the provisions of this Agreement” and “any trouble aris[ing] in the plant.” Id., at 40–41 (internal quotation marks omitted). The employee was discharged for allegedly producing too many defective parts while working for the respondent as a drill operator. He filed a grievance with his union claiming that he was “ ‘unjustly discharged’ ” in violation of the “ ‘just cause’ ” provision within the CBA. Then at the final prearbitration step of the grievance process, the employee added a claim that he was discharged because of his race. Id., at 38–42. The arbitrator ultimately ruled that the employee had been “ ‘discharged for just cause,’ ” but “made no reference to [the] claim of racial discrimination.” Id., at 42. After obtaining a right-to-sue letter from the EEOC, the employee filed a claim in Federal District Court, alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court issued a decision, affirmed by the Court of Appeals, which granted summary judgment to the employer because it concluded that “the claim of racial discrimination had been submitted to the arbitrator and resolved adversely to [the employee].” Id., at 43. In the District Court’s view, “having voluntarily elected to pursue his grievance to final arbitration under the nondiscrimination clause of the collective-bargaining agreement,” the employee was “bound by the arbitral decision” and precluded from suing his employer on any other grounds, such as a statutory claim under Title VII. Ibid. This Court reversed the judgment on the narrow ground that the arbitration was not preclusive because the collective-bargaining agreement did not cover statutory claims. As a result, the lower courts erred in relying on the “doctrine of election of remedies” to bar the employee’s Title VII claim. Id., at 49. “That doctrine, which refers to situations where an individual pursues remedies that are legally or factually inconsistent” with each other, did not apply to the employee’s dual pursuit of arbitration and a Title VII discrimination claim in district court. The employee’s collective-bargaining agreement did not mandate arbitration of statutory antidiscrimination claims. Id., at 49–50. “As the proctor of the bargain, the arbitrator’s task is to effectuate the intent of the parties.” Id., at 53. Because the collective-bargaining agreement gave the arbitrator “authority to resolve only questions of contractual rights,” his decision could not prevent the employee from bringing the Title VII claim in federal court “regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by Title VII.” Id., at 53–54; see also id., at 50. The Court also explained that the employee had not waived his right to pursue his Title VII claim in federal court by participating in an arbitration that was premised on the same underlying facts as the Title VII claim. See id., at 52. Thus, whether the legal theory of preclusion advanced by the employer rested on “the doctrines of election of remedies” or was recast “as resting instead on the doctrine of equitable estoppel and on themes of res judicata and collateral estoppel,” id., at 49, n. 10 (internal quotation marks omitted), it could not prevail in light of the collective-bargaining agreement’s failure to address arbitration of Title VII claims. See id., at 46, n. 6 (“[W]e hold that the federal policy favoring arbitration does not establish that an arbitrator’s resolution of a contractual claim is dispositive of a statutory claim under Title VII” (emphasis added)). The Court’s decisions following Gardner-Denver have not broadened its holding to make it applicable to the facts of this case. In Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 (1981), the Court considered “whether an employee may bring an action in federal district court, alleging a violation of the minimum wage provisions of the Fair Labor Standards Act, … after having unsuccessfully submitted a wage claim based on the same underlying facts to a joint grievance committee pursuant to the provisions of his union’s collective-bargaining agreement.” Id., at 729–730. The Court held that the unsuccessful arbitration did not preclude the federal lawsuit. Like the collective-bargaining agreement in Gardner-Denver, the arbitration provision under review in Barrentine did not expressly reference the statutory claim at issue. See 450 U. S., at 731, n. 5. The Court thus reiterated that an “arbitrator’s power is both derived from, and limited by, the collective-bargaining agreement” and “[h]is task is limited to construing the meaning of the collective-bargaining agreement so as to effectuate the collective intent of the parties.” Id., at 744. McDonald v. West Branch, 466 U. S. 284 (1984), was decided along similar lines. The question presented in that case was “whether a federal court may accord preclusive effect to an unappealed arbitration award in a case brought under [42 U. S. C. §1983].” Id., at 285. The Court declined to fashion such a rule, again explaining that “because an arbitrator’s authority derives solely from the contract, Barrentine, supra, at 744, an arbitrator may not have authority to enforce §1983” when that provision is left unaddressed by the arbitration agreement. Id., at 290. Accordingly, as in both Gardner-Denver and Barrentine, the Court’s decision in McDonald hinged on the scope of the collective-bargaining agreement and the arbitrator’s parallel mandate. The facts underlying Gardner-Denver, Barrentine, and McDonald reveal the narrow scope of the legal rule arising from that trilogy of decisions. Summarizing those opinions in Gilmer, this Court made clear that the Gardner-Denver line of cases “did not involve the issue of the enforceability of an agreement to arbitrate statutory claims.” 500 U. S., at 35. Those decisions instead “involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions.” Ibid.; see also Wright, 525 U. S., at 76; Livadas v. Bradshaw, 512 U. S. 107, 127, n. 21 (1994).[Footnote 7] Gardner-Denver and its progeny thus do not control the outcome where, as is the case here, the collective-bargaining agreement’s arbitration provision expressly covers both statutory and contractual discrimination claims.[Footnote 8] 2 We recognize that apart from their narrow holdings, the Gardner-Denver line of cases included broad dicta that was highly critical of the use of arbitration for the vindication of statutory antidiscrimination rights. That skepticism, however, rested on a misconceived view of arbitration that this Court has since abandoned. First, the Court in Gardner-Denver erroneously assumed that an agreement to submit statutory discrimination claims to arbitration was tantamount to a waiver of those rights. See 415 U. S., at 51. (“[T]here can be no prospective waiver of an employee’s rights under Title VII” (emphasis added)). For this reason, the Court stated, “the rights conferred [by Title VII] can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII.” Ibid.; see also id., at 56 (“we have long recognized that ‘the choice of forums inevitably affects the scope of the substantive right to be vindicated’ ” (quoting U. S. Bulk Carriers, Inc. v. Arguelles, 400 U. S. 351, 359–360 (1971) (Harlan, J., concurring))). The Court was correct in concluding that federal antidiscrimination rights may not be prospectively waived, see 29 U. S. C. §626(f)(1)(C); see supra, at 9, but it confused an agreement to arbitrate those statutory claims with a prospective waiver of the substantive right. The decision to resolve ADEA claims by way of arbitration instead of litigation does not waive the statutory right to be free from workplace age discrimination; it waives only the right to seek relief from a court in the first instance. See Gilmer, supra, at 26 (“ ‘[B]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum’ ” (quoting Mitsubishi Motors Corp., 473 U. S., at 628)). This “Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law.” Circuit City Stores, Inc., 532 U. S., at 123. The suggestion in Gardner-Denver that the decision to arbitrate statutory discrimination claims was tantamount to a substantive waiver of those rights, therefore, reveals a distorted understanding of the compromise made when an employee agrees to compulsory arbitration. In this respect, Gardner-Denver is a direct descendant of the Court’s decision in Wilko v. Swan, 346 U. S. 427 (1953), which held that an agreement to arbitrate claims under the Securities Act of 1933 was unenforceable. See id., at 438. The Court subsequently overruled Wilko and, in so doing, characterized the decision as “pervaded by … ‘the old judicial hostility to arbitration.’ ” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 480 (1989). The Court added: “To the extent that Wilko rested on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants, it has fallen far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Id., at 481; see also Mitsubishi Motors Corp., supra, at 626–627 (“[W]e are well past the time when judicial suspicion of the desirability of arbitration and of the competence of arbitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution”). The timeworn “mistrust of the arbitral process” harbored by the Court in Gardner-Denver thus weighs against reliance on anything more than its core holding. Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 231–232 (1987); see also Gilmer, 500 U. S., at 34, n. 5 (reiterating that Gardner-Denver’s view of arbitration “has been undermined by [the Court’s] recent arbitration decisions”). Indeed, in light of the “radical change, over two decades, in the Court’s receptivity to arbitration,” Wright, 525 U. S., at 77, reliance on any judicial decision similarly littered with Wilko’s overt hostility to the enforcement of arbitration agreements would be ill advised. [Footnote 9] Second, Gardner-Denver mistakenly suggested that certain features of arbitration made it a forum “well suited to the resolution of contractual disputes,” but “a comparatively inappropriate forum for the final resolution of rights created by Title VII.” 415 U. S., at 56. According to the Court, the “factfinding process in arbitration” is “not equivalent to judicial factfinding” and the “informality of arbitral procedure … makes arbitration a less appropriate forum for final resolution of Title VII issues than the federal courts.” Id., at 57, 58. The Court also questioned the competence of arbitrators to decide federal statutory claims. See id., at 57 (“[T]he specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land”); Barrentine, 450 U. S., at 743 (“Although an arbitrator may be competent to resolve many preliminary factual questions, such as whether the employee ‘punched in’ when he said he did, he may lack competence to decide the ultimate legal issue whether an employee’s right to a minimum wage or to overtime pay under the statute has been violated”). In the Court’s view, “the resolution of statutory or constitutional issues is a primary responsibility of courts, and judicial construction has proved especially necessary with respect to Title VII, whose broad language frequently can be given meaning only by reference to public law concepts.” Gardner-Denver, supra, at 57; see also McDonald, 466 U. S., at 290 (“An arbitrator may not … have the expertise required to resolve the complex legal questions that arise in §1983 actions”). These misconceptions have been corrected. For example, the Court has “recognized that arbitral tribunals are readily capable of handling the factual and legal complexities of antitrust claims, notwithstanding the absence of judicial instruction and supervision” and that “there is no reason to assume at the outset that arbitrators will not follow the law.” McMahon, supra, at 232; Mitsubishi Motors Corp., 473 U. S., at 634 (“We decline to indulge the presumption that the parties and arbitral body conducting a proceeding will be unable or unwilling to retain competent, conscientious, and impartial arbitrators”). An arbitrator’s capacity to resolve complex questions of fact and law extends with equal force to discrimination claims brought under the ADEA. Moreover, the recognition that arbitration procedures are more streamlined than federal litigation is not a basis for finding the forum somehow inadequate; the relative informality of arbitration is one of the chief reasons that parties select arbitration. Parties “trad[e] the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” Id., at 628. In any event, “[i]t is unlikely … that age discrimination claims require more extensive discovery than other claims that we have found to be arbitrable, such as RICO and antitrust claims.” Gilmer, 500 U. S., at 31. At bottom, objections centered on the nature of arbitration do not offer a credible basis for discrediting the choice of that forum to resolve statutory antidiscrimination claims.[Footnote 10] Third, the Court in Gardner-Denver raised in a footnote a “further concern” regarding “the union’s exclusive control over the manner and extent to which an individual grievance is presented.” 415 U. S., at 58, n. 19. The Court suggested that in arbitration, as in the collective-bargaining process, a union may subordinate the interests of an individual employee to the collective interests of all employees in the bargaining unit. Ibid.; see also McDonald, supra, at 291 (“The union’s interests and those of the individual employee are not always identical or even compatible. As a result, the union may present the employee’s grievance less vigorously, or make different strategic choices, than would the employee”); see also Barrentine, supra, at 742; post, at 8, n. 4 (Souter, J., dissenting). We cannot rely on this judicial policy concern as a source of authority for introducing a qualification into the ADEA that is not found in its text. Absent a constitutional barrier, “it is not for us to substitute our view of … policy for the legislation which has been passed by Congress.” Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip op., at 18) (internal quotation marks omitted). Congress is fully equipped “to identify any category of claims as to which agreements to arbitrate will be held unenforceable.” Mitsubishi Motors Corp., supra, at 627. Until Congress amends the ADEA to meet the conflict-of-interest concern identified in the Gardner-Denver dicta, and seized on by respondents here, there is “no reason to color the lens through which the arbitration clause is read” simply because of an alleged conflict of interest between a union and its members. Mitsubishi Motors Corp., supra, at 628. This is a “battl[e] that should be fought among the political branches and the industry. Those parties should not seek to amend the statute by appeal to the Judicial Branch.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 462 (2002). The conflict-of-interest argument also proves too much. Labor unions certainly balance the economic interests of some employees against the needs of the larger work force as they negotiate collective-bargain agreements and implement them on a daily basis. But this attribute of organized labor does not justify singling out an arbitration provision for disfavored treatment. This “principle of majority rule” to which respondents object is in fact the central premise of the NLRA. Emporium Capwell Co. v. Western Addition Community Organization, 420 U. S. 50, 62 (1975). “In establishing a regime of majority rule, Congress sought to secure to all members of the unit the benefits of their collective strength and bargaining power, in full awareness that the superior strength of some individuals or groups might be subordinated to the interest of the majority.” Ibid. (footnote omitted); see also Ford Motor Co. v. Huffman, 345 U. S. 330, 338 (1953) (“The complete satisfaction of all who are represented is hardly to be expected”); Pennsylvania R. Co. v. Rychlik, 352 U. S. 480, 498 (1957) (Frankfurter, J., concurring). It was Congress’ verdict that the benefits of organized labor outweigh the sacrifice of individual liberty that this system necessarily demands. Respondents’ argument that they were deprived of the right to pursue their ADEA claims in federal court by a labor union with a conflict of interest is therefore unsustainable; it amounts to a collateral attack on the NLRA. In any event, Congress has accounted for this conflict of interest in several ways. As indicated above, the NLRA has been interpreted to impose a “duty of fair representation” on labor unions, which a union breaches “when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith.” Marquez v. Screen Actors, 525 U. S. 33, 44 (1998). This duty extends to “challenges leveled not only at a union’s contract administration and enforcement efforts but at its negotiation activities as well.” Beck, 487 U. S., at 743 (citation omitted). Thus, a union is subject to liability under the NLRA if it illegally discriminates against older workers in either the formation or governance of the collective-bargaining agreement, such as by deciding not to pursue a grievance on behalf of one of its members for discriminatory reasons. See Vaca v. Sipes, 386 U. S. 171, 177 (1967) (describing the duty of fair representation as the “statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct” (emphasis added)). Respondents in fact brought a fair representation suit against the Union based on its withdrawal of support for their age-discrimination claims. See n. 2, supra. Given this avenue that Congress has made available to redress a union’s violation of its duty to its members, it is particularly inappropriate to ask this Court to impose an artificial limitation on the collective-bargaining process. In addition, a union is subject to liability under the ADEA if the union itself discriminates against its members on the basis of age. See 29 U. S. C. §623(d); see also 1 B. Lindemann & P. Grossman, Employment Discrimination Law 1575–1581 (4th ed. 2007) (explaining that a labor union may be held jointly liable with an employer under federal antidiscrimination laws for discriminating in the formation of a collective-bargaining agreement, knowingly acquiescing in the employer’s discrimination, or inducing the employer to discriminate); cf. Goodman v. Lukens Steel Co., 482 U. S. 656, 669 (1987). Union members may also file age-discrimination claims with the EEOC and the National Labor Relations Board, which may then seek judicial intervention under this Court’s precedent. See EEOC v. Waffle House, Inc., 534 U. S. 279, 295–296 (2002). In sum, Congress has provided remedies for the situation where a labor union is less than vigorous in defense of its members’ claims of discrimination under the ADEA. III Finally, respondents offer a series of arguments contending that the particular CBA at issue here does not clearly and unmistakably require them to arbitrate their ADEA claims. See Brief for Respondents 44–47. But respondents did not raise these contract-based arguments in the District Court or the Court of Appeals. To the contrary, respondents acknowledged on appeal that the CBA provision requiring arbitration of their federal antidiscrimination statutory claims “is sufficiently explicit” in precluding their federal lawsuit. Brief for Plaintiffs-Appellees in No. 06–3047–cv(L) etc. (CA2), p. 9. In light of respondents’ litigating position, both lower courts assumed that the CBA’s arbitration clause clearly applied to respondents and proceeded to decide the question left unresolved in Wright. We granted review of the question presented on that understanding. “Without cross-petitioning for certiorari, a prevailing party may, of course, ‘defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals.’ ” Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 38–39 (1989) (quoting Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U. S. 463, 476, n. 20 (1979)). But this Court will affirm on grounds that have “ ‘not been raised below … “only in exceptional cases.” ’ ” Nordberg, supra, at 39 (quoting Heckler v. Campbell, 461 U. S. 458, 468–469, n. 12 (1983)). This is not an “exceptional case.” As a result, we find that respondents’ alternative arguments for affirmance have been forfeited. See, e.g., Rita v. United States, 551 U. S. 338, 360 (2007); Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002). We will not resurrect them on respondents’ behalf. Respondents also argue that the CBA operates as a substantive waiver of their ADEA rights because it not only precludes a federal lawsuit, but also allows the Union to block arbitration of these claims. Brief for Respondents 28–30. Petitioners contest this characterization of the CBA, see Reply Brief for Petitioners 23–27, and offer record evidence suggesting that the Union has allowed respondents to continue with the arbitration even though the Union has declined to participate, see App. to Pet. for Cert. 42a. But not only does this question require resolution of contested factual allegations, it was not fully briefed to this or any court and is not fairly encompassed within the question presented, see this Court’s Rule 14.1(a). Thus, although a substantive waiver of federally protected civil rights will not be upheld, see Mitsubishi Motors Corp., 473 U. S., at 637, and n. 19; Gilmer, 500 U. S., at 29, we are not positioned to resolve in the first instance whether the CBA allows the Union to prevent respondents from “effectively vindicating” their “federal statutory rights in the arbitral forum,” Green Tree Financial Corp.-Ala. v. Randolph, 531 U. S. 79, 90 (2000). Resolution of this question at this juncture would be particularly inappropriate in light of our hesitation to invalidate arbitration agreements on the basis of speculation. See id., at 91. IV We hold that a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. 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 Article V establishes the grievance process, which applies to all claims regardless of whether they are subject to arbitration under the CBA. Article VI establishes the procedures for arbitration and postarbitration judicial review, and, in particular, provides that the arbitrator “shall … decide all differences arising between the parties as to interpretation, application or performance of any part of this Agreement and such other issues as the parties are expressly required to arbitrate before him under the terms of this Agreement.” App. to Pet. for Cert. 43a–47a. Footnote 2 Respondents also filed a “hybrid” lawsuit against the Union and petitioners under §301 of the Labor Management Relations Act, 1947, 29 U. S. C. §185, see also DelCostello v. Teamsters, 462 U. S. 151, 164–165 (1983), alleging that the Union breached its “duty of fair representation” under the NLRA by withdrawing support for the age-discrimination claims during the arbitration and that petitioners breached the CBA by reassigning respondents. Respondents later voluntarily dismissed this suit with prejudice. Footnote 3 Petitioners also filed a motion to dismiss the complaint for failure to state a claim. The District Court denied the motion, holding that respondents had sufficiently alleged an ADEA claim by claiming that they “were over the age of 40, … they were reassigned to positions which led to substantial losses in income, and … their replacements were both younger and had less seniority at the building.” App. to Pet. for Cert. 20a (footnote omitted). Petitioners have not appealed that ruling. Footnote 4 Compare, e.g., Rogers v. New York Univ., 220 F. 3d 73, 75 (CA2 2000) (per curiam); O’Brien v. Agawam, 350 F. 3d 279, 285 (CA1 2003); Mitchell v. Chapman, 343 F. 3d 811, 824 (CA6 2003); Tice v. American Airlines, Inc., 288 F. 3d 313, 317 (CA7 2002), with, e.g., Eastern Associated Coal Corp. v. Massey, 373 F. 3d 530, 533 (CA4 2004). Footnote 5 Justice Souter claims that this understanding is “impossible to square with our conclusion in [Alexander v.] Gardner-Denver [Co., 415 U. S. 36 (1974)] that ‘Title VII … stands on plainly different ground’ from ‘statutory rights related to collective activity’: ‘it concerns not majoritarian processes, but an individual’s right to equal employment opportunities.’ ” Post, at 5 (dissenting opinion) (quoting Gardner-Denver, 415 U. S., at 51). As explained below, however, Justice Souter repeats the key analytical mistake made in Gardner-Denver’s dicta by equating the decision to arbitrate Title VII and ADEA claims to a decision to forgo these substantive guarantees against workplace discrimination. See infra, at 15–17. The right to a judicial forum is not the nonwaivable “substantive” right protected by the ADEA. See infra, at 9, 24. Thus, although Title VII and ADEA rights may well stand on “different ground” than statutory rights that protect “majoritarian processes,” Gardner-Denver, supra, at 51, the voluntary decision to collectively bargain for arbitration does not deny those statutory antidiscrimination rights the full protection they are due. Footnote 6 Respondents’ contention that §118 of the Civil Rights Act of 1991, Pub. L. 102–166, 105 Stat. 1081, note following 42 U. S. C. §1981 (2000 ed.), precludes the enforcement of this arbitration agreement also is misplaced. See Brief for Respondents 31–32; see also post, at 8–9 (Souter, J., dissenting). Section 118 expresses Congress’ support for alternative dispute resolution: “Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including … arbitration, is encouraged to resolve disputes arising under” the ADEA. 105 Stat. 1081, note following 42 U. S.C. §1981. Respondents argue that the legislative history actually signals Congress’ intent to preclude arbitration waivers in the collective-bargaining context. In particular, respondents point to a House Report that, in spite of the statute’s plain language, interprets §118 to support their position. See H. R. Rep. No. 102–40, pt. 1, p. 97 (1991) (“[A]ny agreement to submit disputed issues to arbitration … in the context of a collective bargaining agreement … does not preclude the affected person from seeking relief under the enforcement provisions of Title VII. This view is consistent with the Supreme Court’s interpretation of Title VII in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974)”). But the legislative history mischaracterizes the holding of Gardner-Denver, which does not prohibit collective bargaining for arbitration of ADEA claims. See infra, at 11–14. Moreover, reading the legislative history in the manner suggested by respondents would create a direct conflict with the statutory text, which encourages the use of arbitration for dispute resolution without imposing any constraints on collective bargaining. In such a contest, the text must prevail. See Ratzlaf v. United States, 510 U. S. 135, 147–148 (1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear”). Footnote 7 Justice Souter’s reliance on Wright v. Universal Maritime Service Corp., 525 U. S. 70 (1998), to support its view of Gardner-Denver is misplaced. See post, at 5, 7. Wright identified the “tension” between the two lines of cases represented by Gardner-Denver and Gilmer, but found “it unnecessary to resolve the question of the validity of a union-negotiated waiver, since it [was] apparent … on the facts and arguments presented … that no such waiver [had] occurred.” 525 U. S., at 76–77. And although his dissent describes Wright’s characterization of Gardner-Denver as “raising a ‘seemingly absolute prohibition of union waiver of employees’ federal forum rights,’ ” post, at 7 (quoting Wright, 525 U. S., at 80), it wrenches the statement out of context: “Although [the right to a judicial forum] is not a substantive right, see Gilmer, 500 U. S., at 26, and whether or not Gardner-Denver’s seemingly absolute prohibition of union waiver of employees’ federal forum rights survives Gilmer, Gardner-Denver at least stands for the proposition that the right to a federal judicial forum is of sufficient importance to be protected against less-than-explicit union waiver in a CBA,” id., at 80 (emphasis added). Wright therefore neither endorsed Gardner-Denver’s broad language nor suggested a particular result in this case. Footnote 8 Because today’s decision does not contradict the holding of Gardner-Denver, we need not resolve the stare decisis concerns raised by the dissenting opinions. See post, at 4, 9 (opinion of Souter, J.); post, at 2–4 (opinion of Stevens, J.). But given the development of this Court’s arbitration jurisprudence in the intervening years, see infra, at 16–19, Gardner-Denver would appear to be a strong candidate for overruling if the dissents’ broad view of its holding, see post, at 6–7 (opinion of Souter, J.), were correct. See Patterson v. McLean Credit Union, 491 U. S. 164, 173 (1989) (explaining that it is appropriate to overrule a decision where there “has been [an] intervening development of the law” such that the earlier “decision [is] irreconcilable with competing legal doctrines and policies”). Footnote 9 Justice Stevens suggests that the Court is displacing its “earlier determination of the relevant provisions’ meaning” based on a “preference for arbitration.” Post, at 2. But his criticism lacks any basis. We are not revisiting a settled issue or disregarding an earlier determination; the Court is simply deciding the question identified in Wright as unresolved. See supra, at 5–6; see also infra, at 23–24. And, contrary to Justice Stevens’ accusation, it is the Court’s fidelity to the ADEA’s text—not an alleged preference for arbitration—that dictates the answer to the question presented. As Gilmer explained, nothing in the text of Title VII or the ADEA precludes contractual arbitration, see supra, at 8–9, and Justice Stevens has never suggested otherwise. Rather, he has always contended that permitting the “compulsory arbitration” of employment discrimination claims conflicts with his perception of “the congressional purpose animating the ADEA.” Gilmer, 500 U. S., at 41 (Stevens, J., dissenting); see also id., at 42 (“Plainly, it would not comport with the congressional objectives behind a statute seeking to enforce civil rights protected by Title VII to allow the very forces that had practiced discrimination to contract away the right to enforce civil rights in the courts” (internal quotation marks omitted)). The Gilmer Court did not adopt Justice Stevens’ personal view of the purposes underlying the ADEA, for good reason: That view is not embodied within the statute’s text. Accordingly, it is not the statutory text that Justice Stevens has sought to vindicate—it is instead his own “preference” for mandatory judicial review, which he disguises as a search for congressional purpose. This Court is not empowered to incorporate such a preference into the text of a federal statute. See infra, at 20–21. It is for this reason, and not because of a “policy favoring arbitration,” see post, at 1, 3 (Stevens, J., dissenting), that the Court overturned Wilko v. Swan, 346 U. S. 427 (1953). And it is why we disavow the antiarbitration dicta of Gardner-Denver and its progeny today. Footnote 10 Moreover, an arbitrator’s decision as to whether a unionized employee has been discriminated against on the basis of age in violation of the ADEA remains subject to judicial review under the FAA. 9 U. S. C. §10(a). “[A]lthough judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute.” Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 232 (1987). |
556.US.816 | A wiretap of Mohammed Said’s telephone recorded six calls in which petitioner Abuelhawa arranged to buy cocaine from Said in two separate 1-gram transactions. Those two purchases were misdemeanors under the Controlled Substances Act (CSA), 21 U. S. C. §844, while Said’s two sales were felonies, §841(a)(1) and (b). The Government charged Abuelhawa with six felonies on the theory that each of the phone calls, some placed by him, some by Said, violated §843(b), which makes it a felony “to use any communication facility in … facilitating” felony distribution and other drug crimes. The District Court denied Abuelhawa’s acquittal motion, in which he argued that his efforts to make misdemeanor purchases could not be treated as facilitating Said’s felonies. The jury convicted Abuelhawa on all six felony counts. The Fourth Circuit affirmed, reasoning that “facilitat[e]” should be given its ordinary meaning in §843(b) and that Abuelhawa’s use of a phone to buy cocaine counted as ordinary facilitation because it made Said’s distribution of the drug easier. Held: Using a telephone to make a misdemeanor drug purchase does not “facilitat[e]” felony drug distribution in violation of §843(b). Stopping with the plain meaning of “facilitate” here would ignore the rule that because statutes are not read as a collection of isolated phrases, “[a] word in a statute may or may not extend to the outer limits of its definitional possibilities.” Dolan v. Postal Service, 546 U. S. 481, 486. Here it does not. The literal sweep of “facilitat[e]” sits uncomfortably with common usage: Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the other’s conduct. The common usage has its parallel in cases holding that where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the legislature’s punishment calibration. In Gebardi v. United States, 287 U. S. 112, 119, for example, the Court held that a woman who voluntarily crossed a state line with a man to have sex could not be tagged with the Mann Act violation for “aid[ing] or assist[ing]” interstate transportation for immoral purposes because the statutory penalties were “clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation.” Such cases have a bearing here in two ways. First, given the presumption, see, e.g., Williams v. Taylor, 529 U. S. 362, 380–381, and n. 12, that the Congress that enacted §843(b) was familiar with the traditional judicial limitation on applying terms like “aid,” “abet,” and “assist,” it is likely the Legislature had a comparable scope in mind when it used “facilitate,” a word with equivalent meaning. Second, any broader reading would for practical purposes substantially skew the congressional calibration of respective buyer-seller penalties. Moreover, the statute’s history—which shows that in 1970 the CSA downgraded simple possession from a felony to a misdemeanor, §844(a), and simultaneously limited the communications provision’s prohibition of facilitating a drug “offense” to facilitating a “felony,” §843(b)—drives home what is clear from the statutory text: Congress meant to treat purchasing drugs for personal use more leniently than felony distribution, and to narrow the scope of the communications provision to cover only those who facilitate a felony. Yet, under the Government’s reading of §843(b), in a substantial number of cases Congress would for all practical purposes simultaneously have graded back up to felony status with the left hand the same offense, simple drug possession, it had dropped to a misdemeanor with the right. Given that Congress used no language spelling out a purpose so improbable, but legislated against a background usage of terms such as “aid,” “abet,” and “assist” that points in the opposite direction and accords with the CSA’s choice to classify small purchases as misdemeanors, the Government’s position is just too unlikely. Pp. 3–8. 523 F. 3d 415, reversed and remanded. Souter, J., delivered the opinion for a unanimous Court. | The Controlled Substances Act (CSA) makes it a felony “to use any communication facility in committing or in causing or facilitating” certain felonies prohibited by the statute. 84 Stat. 1263, 21 U. S. C. §843(b). The question here is whether someone violates §843(b) in making a misdemeanor drug purchase because his phone call to the dealer can be said to facilitate the felony of drug distribution. The answer is no. I FBI agents believed Mohammed Said was selling cocaine and got a warrant to tap his cell phone. In the course of listening in, they recorded six calls between Said and petitioner Salman Khade Abuelhawa, during which Abuelhawa arranged to buy cocaine from Said in two separate transactions, each time a single gram. Abuelhawa’s two purchases were misdemeanors, §844, while Said’s two sales were felonies, §841(a)(1) and (b). The Government nonetheless charged Abuelhawa with six felonies on the theory that each of the phone calls, whether placed by Abuelhawa or by Said, had been made “in causing or facilitating” Said’s felonies, in violation of §843(b).[Footnote 1] Abuelhawa moved for acquittal as a matter of law, arguing that his efforts to commit the misdemeanors of buying cocaine could not be treated as causing or facilitating Said’s felonies, but the District Court denied his motion, App. to Pet. for Cert. 20a–25a, and the jury convicted him on all six felony counts. Abuelhawa argued the same point to the Court of Appeals for the Fourth Circuit, with as much success. The Circuit reasoned that “for purposes of §843(b), ‘facilitate’ should be given its ‘common meaning—to make easier or less difficult, or to assist or aid.’ ” 523 F. 3d 415, 420 (2008) (quoting United States v. Lozano, 839 F. 2d 1020, 1023 (CA4 1988)). The court said Abuelhawa’s use of a phone to buy cocaine counted as ordinary facilitation because it “undoubtedly made Said’s cocaine distribution easier; in fact, ‘it made the sale possible.’ ” 523 F. 3d, at 421 (quoting United States v. Binkley, 903 F. 2d 1130, 1136 (CA7 1990) (emphasis deleted)). We granted certiorari, 555 U. S. ___ (2008), to resolve a split among the Courts of Appeals on the scope of §843(b),[Footnote 2] and we now reverse. II The Government’s argument is a reprise of the Fourth Circuit’s opinion, that Abuelhawa’s use of his cell phone satisfies the plain meaning of “facilitate” because it “allow[ed] the transaction to take place more efficiently, and with less risk of detection, than if the purchaser and seller had to meet in person.” Brief for United States 10. And of course on the literal plane, the phone calls could be described as “facilitating” drug distribution; they “undoubtedly made . . . distribution easier.” 523 F. 3d, at 421. But stopping there would ignore the rule that, because statutes are not read as a collection of isolated phrases, see United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 455 (1993), “[a] word in a statute may or may not extend to the outer limits of its definitional possibilities,” Dolan v. Postal Service, 546 U. S. 481, 486 (2006). We think the word here does not. To begin with, the Government’s literal sweep of “facilitate” sits uncomfortably with common usage. Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other. A buyer does not just make a sale easier; he makes the sale possible. No buyer, no sale; the buyer’s part is already implied by the term “sale,” and the word “facilitate” adds nothing. We would not say that the borrower facilitates the bank loan. The Government, however, replies that using the instrument of communication under §843(b) is different from borrowing the money or merely handing over the sale price for cocaine. Drugs can be sold without anyone’s mailing a letter or using a cell phone. Because cell phones, say, really do make it easier for dealers to break the law, Congress probably meant to ratchet up the culpability of the buyer who calls ahead. But we think that argument comes up short against several more reasons that count against the Government’s position. The common usage that limits “facilitate” to the efforts of someone other than a primary or necessary actor in the commission of a substantive crime has its parallel in the decided cases. The traditional law is that where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the calibration of punishment set by the legislature, a line of reasoning exemplified in the courts’ consistent refusal to treat noncriminal liquor purchases as falling under the prohibition against aiding or abetting the illegal sale of alcohol. See Lott v. United States, 205 F. 28, 29–31 (CA9 1913) (collecting cases). And this Court followed the same course in rejecting the broadest possible reading of a similar provision in Gebardi v. United States, 287 U. S. 112 (1932). The question there was whether a woman who voluntarily crossed a state line with a man to engage in “illicit sexual relations” could be tagged with “aid[ing] or assist[ing] in … transporting, in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or of debauchery, or for any other immoral purpose” in violation of the Mann Act, ch. 395, 36 Stat. 825. Gebardi, 287 U. S., at 116–118 (internal quotation marks omitted). Since the statutory penalties were “clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation,” we refused to “infer that the mere acquiescence of the woman transported was intended to be condemned by the general language punishing those who aid and assist the transporter, any more than it has been inferred that the purchaser of liquor was to be regarded as an abettor of the illegal sale.” Id., at 119 (footnote omitted). These cases do not strictly control the outcome of this one, but we think they have a bearing here, in two ways. As we have said many times, we presume legislatures act with case law in mind, e.g., Williams v. Taylor, 529 U. S. 362, 380–381, and n. 12 (2000), and we presume here that when Congress enacted §843(b), it was familiar with the traditional judicial limitation on applying terms like “aid,” “abet,” and “assist.” We thus think it likely that Congress had comparable scope in mind when it used the term “facilitate,” a word with equivalent meaning, compare Black’s Law Dictionary 76 (8th ed. 2004) (defining “aid and abet” as to “facilitate the commission of a crime”) with id., at 627 (defining “facilitation” as “[t]he act or an instance of aiding or helping; . . . the act of making it easier for another person to commit a crime”). And applying the presumption is supported significantly by the fact that here, as in the earlier cases, any broader reading of “facilitate” would for practical purposes skew the congressional calibration of respective buyer-seller penalties. When the statute was enacted, the use of land lines in drug transactions was common, and in these days when everyone over the age of three seems to carry a cell phone, the Government’s interpretation would skew the calibration of penalties very substantially. The respect owed to that penalty calibration cannot be minimized. Prior to 1970, Congress punished the receipt, concealment, purchase, or sale of any narcotic drug as a felony, see 21 U. S. C. §174 (1964 ed.) (repealed), and on top of that added a minimum of two years, and up to five, for using a communication facility in committing, causing, or facilitating, any drug “offense,” 18 U. S. C. §1403 (1964 ed.). In 1970, however, the CSA, 84 Stat. 1242, 21 U. S. C. §801 et seq., downgraded simple possession of a controlled substance to a misdemeanor, 21 U. S. C. §844(a) (2006 ed.), and simultaneously limited the communications provision to prohibiting only the facilitation of a drug “felony,” §843(b). This history drives home what is already clear in the current statutory text: Congress meant to treat purchasing drugs for personal use more leniently than the felony of distributing drugs, and to narrow the scope of the communications provision to cover only those who facilitate a drug felony. Yet, under the Government’s reading of §843(b), in a substantial number of cases Congress would for all practical purposes simultaneously have graded back up to felony status with the left hand the same offense it had dropped to a misdemeanor with the right. As the Government sees it, Abuelhawa’s use of a phone in making two small drug purchases would subject him, in fact, to six felony counts and a potential sentence of 24 years in prison, even though buying the same drugs minus the phone would have supported only two misdemeanor counts and two years of prison. Given the CSA’s distinction between simple possession and distribution, and the background history of these offenses, it is impossible to believe that Congress intended “facilitating” to cause that twelve-fold quantum leap in punishment for simple drug possessors.[Footnote 3] The Government suggests that this background usage and the 1970 choice to reduce culpability for possession is beside the point because Congress sometimes incorporates aggravating factors into the Criminal Code, and the phone use here is just one of them; the Government mentions possession by a prior drug offender, a felony punishable by up to two years’ imprisonment. And, for perspective, the Government points to unauthorized possession of flunitrazepim, a drug used to incapacitate rape victims, which is punishable by imprisonment up to three years. Brief for United States 20. It would not be strange, the Government says, for Congress to “decid[e] to treat the use of a communication facility in a drug transaction as a significant act warranting additional punishment” because “[t]oday’s communication facilities . . . make illicit drug transactions easier and more efficient . . . . [and] greatly reduce the risk that the participants will be detected while negotiating a transaction.” Id., at 23–24. We are skeptical. There is no question that Congress intended §843(b) to impede illicit drug transactions by penalizing the use of communication devices in coordinating illegal drug operations, and no doubt that its purpose will be served regardless of the outcome in this case. But it does not follow that Congress also meant a first-time buyer’s phone calls to get two small quantities of drugs for personal use to expose him to punishment 12 times more severe than a purchase by a recidivist offender and 8 times more severe than the unauthorized possession of a drug used by rapists.[Footnote 4] To the contrary, Congress used no language spelling out a purpose so improbable, but legislated against a background usage of terms such as “aid,” “abet,” and “assist” that points in the opposite direction and accords with the CSA’s choice to classify small purchases as misdemeanors. The Government’s position is just too unlikely.[Footnote 5] III The judgment of the 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 In full, §843(b) provides: “It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term ‘communication facility’ means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.” Section 843(d) provides, subject to exceptions not at issue here, that “any person who violates this section shall be sentenced to a term of imprisonment of not more than 4 years, a fine . . . , or both.” Footnote 2 Compare, e.g., United States v. Binkley, 903 F. 2d 1130, 1135–1136 (CA7 1990) (buyer’s use of phone in purchasing drugs facilitates seller’s drug distribution), with United States v. Baggett, 890 F. 2d 1095, 1097–1098 (CA10 1989) (buyer’s use of phone in purchasing drugs does not facilitate seller’s drug distribution); United States v. Martin, 599 F. 2d 880, 888–889 (CA9 1979) (same), overruled on other grounds, United States v. De Bright, 730 F. 2d 1255 (CA9 1984). Footnote 3 The Government’s suggestion that a result like this is not anomalous because a prosecutor could exercise his discretion to seek a lower sentence, see Tr. of Oral Arg. 41, simply begs the question. Of course, Congress legislates against a background assumption of prosecutorial discretion, but this tells us nothing about the boundaries of punishment within which Congress intended the discretion to be exercised; prosecutorial discretion is not a reason for courts to give improbable breadth to criminal statutes. And it ill behooves the Government to invoke discretionary power in this case, with the prosecutor seeking a sentencing potential of 24 years when the primary offense is the purchase of two ounces of cocaine. For that matter, see id., at 41–43 (concession by Government that current Department of Justice guidelines require individual prosecutors who bring charges to charge the maximum crime supported by the facts in a case). Footnote 4 The Government does nothing for its own cause by noting that 21 U. S. C. §856 makes it a felony to facilitate “the simple possession of drugs by others by making available for use . . . a place for the purpose of unlawfully using a controlled substance” even though the crime facilitated may be a mere misdemeanor. Brief for United States 21 (internal quotation marks and alterations omitted). This shows that Congress knew how to be clear in punishing the facilitation of a misdemeanor as a felony, and it only highlights Congress’s decision to limit §843(b) to the facilitation of a “felony.” Footnote 5 The Government asks us to affirm the Fourth Circuit on an alternative ground: that Abuelhawa used a communication facility “in causing” Said’s drug felony rather than “in . . . facilitating” the felony. But the Government’s argument on this point takes the same form as its argument about the term “facilitate,” and the reasons that lead us to reject the one argument apply just as well to the other. |
555.US.70 | Respondents, smokers of petitioners’ “light” cigarettes, filed suit, alleging that petitioners violated the Maine Unfair Trade Practices Act (MUTPA) by fraudulently advertising that their “light” cigarettes delivered less tar and nicotine than regular brands. The District Court granted summary judgment for petitioners, finding the state-law claim pre-empted by the Federal Cigarette Labeling and Advertising Act (Labeling Act). The First Circuit reversed, holding that the Labeling Act neither expressly nor impliedly pre-empts respondents’ fraud claim. Held: Neither the Labeling Act’s pre-emption provision nor the Federal Trade Commission’s actions in this field pre-empt respondents’ state-law fraud claim. Pp. 5–20. (a) Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose. See Jones v. Rath Packing Co., 430 U. S. 519, 525. When the text of an express pre-emption clause is susceptible of more than one plausible reading, courts ordinarily “accept the reading that disfavors pre-emption.” Bates v. Dow Agrosciences LLC, 544 U. S. 431, 449. The Labeling Act’s stated purposes are to inform the public of the health risks of smoking while protecting commerce and the economy from the ill effects of nonuniform requirements to the extent consistent with the first goal. Although fidelity to these purposes does not demand the pre-emption of state fraud rules, the principal question here is whether that result is nevertheless required by 15 U. S. C. §1334(b), which provides that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” Pp. 5–9. (b) Respondents’ claim is not expressly pre-empted by §1334(b). As determined in Cipollone v. Liggett Group, Inc., 505 U. S. 504, and Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, the phrase “based on smoking and health” modifies the state-law rule at issue rather than a particular application of that rule. The Cipollone plurality concluded that “the phrase ‘based on smoking and health’ fairly but narrowly construed” did not pre-empt the Cipollone plaintiff’s common-law claim that cigarette manufacturers had fraudulently misrepresented and concealed a material fact, because the claim alleged a violation of a duty not to deceive—a duty that is not “based on” smoking and health. 505 U. S., at 528–529. Respondents here also allege a violation of the duty not to deceive as codified in the MUTPA, which, like the common-law duty in Cipollone, has nothing to do with smoking and health. Respondents’ claim is not analogous to the “warning neutralization” claim found to be pre-empted in Cipollone. Reilly is consistent with Cipollone’s analysis. This Court disagrees with petitioners’ alternative argument that the express pre-emption framework of Cipollone and Reilly should be rejected. American Airlines, Inc. v. Wolens, 513 U. S. 219, and Riegel v. Medtronic, Inc., 552 U. S. ___, are distinguished. Pp. 9–16. (c) Various Federal Trade Commission decisions with respect to statements of tar and nicotine content do not impliedly pre-empt state deceptive practices rules like the MUTPA. Pp. 17–20. 501 F. 3d 29, affirmed and remanded. Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Alito, JJ., joined. | Respondents, who have for over 15 years smoked “light” cigarettes manufactured by petitioners, Philip Morris USA, Inc., and its parent company, Altria Group, Inc., claim that petitioners violated the Maine Unfair Trade Practices Act (MUTPA). Specifically, they allege that petitioners’ advertising fraudulently conveyed the message that their “light” cigarettes deliver less tar and nicotine to consumers than regular brands despite petitioners’ knowledge that the message was untrue. Petitioners deny the charge, asserting that their advertisements were factually accurate. The merits of the dispute are not before us because the District Court entered summary judgment in favor of petitioners on the ground that respondents’ state-law claim is pre-empted by the Federal Cigarette Labeling and Advertising Act, as amended (Labeling Act). The Court of Appeals reversed that judgment, and we granted certiorari to review its holding that the Labeling Act neither expressly nor impliedly pre-empts respondents’ fraud claim. We affirm. I Respondents are Maine residents and longtime smokers of Marlboro Lights and Cambridge Lights cigarettes, which are manufactured by petitioners. Invoking the diversity jurisdiction of the Federal District Court, respondents filed a complaint alleging that petitioners deliberately deceived them about the true and harmful nature of “light” cigarettes in violation of the MUTPA, Me. Rev. Stat. Ann., Tit. 5, §207 (Supp. 2008).[Footnote 1] Respondents claim that petitioners fraudulently marketed their cigarettes as being “light” and containing “ ‘[l]owered [t]ar and [n]icotine’ ” to convey to consumers that they deliver less tar and nicotine and are therefore less harmful than regular cigarettes. App. 28a–29a. Respondents acknowledge that testing pursuant to the Cambridge Filter Method[Footnote 2] indicates that tar and nicotine yields of Marlboro Lights and Cambridge Lights are lower than those of regular cigarettes. Id., at 30a. Respondents allege, however, that petitioners have known at all relevant times that human smokers unconsciously engage in compensatory behaviors not registered by Cambridge Filter Method testing that negate the effect of the tar- and nicotine-reducing features of “light” cigarettes. Id., at 30a–31a. By covering filter ventilation holes with their lips or fingers, taking larger or more frequent puffs, and holding the smoke in their lungs for a longer period of time, smokers of “light” cigarettes unknowingly inhale as much tar and nicotine as do smokers of regular cigarettes. Ibid. “Light” cigarettes are in fact more harmful because the increased ventilation that results from their unique design features produces smoke that is more mutagenic per milligram of tar than the smoke of regular cigarettes. Id., at 31a–32a. Respondents claim that petitioners violated the MUTPA by fraudulently concealing that information and by affirmatively representing, through the use of “light” and “lowered tar and nicotine” descriptors, that their cigarettes would pose fewer health risks. Id., at 32a, 33a. Petitioners moved for summary judgment on the ground that the Labeling Act, 15 U. S. C. §1334(b), expressly pre-empts respondents’ state-law cause of action. Relying on our decisions in Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992), and Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001), the District Court concluded that respondents’ MUTPA claim is pre-empted. The court recast respondents’ claim as a failure-to-warn or warning neutralization claim of the kind pre-empted in Cipollone: The claim charges petitioners with “produc[ing] a product it knew contained hidden risks … not apparent or known to the consumer”—a claim that “runs to what [petitioners] actually said about Lights and what [respondents] claim they should have said.” 436 F. Supp. 2d 132, 151 (Me. 2006). And the difference between what petitioners said and what respondents would have them say is “ ‘intertwined with the concern about cigarette smoking and health.’ ” Id., at 153 (quoting Reilly, 533 U. S., at 548). The District Court thus concluded that respondents’ claim rests on a state-law requirement based on smoking and health of precisely the kind that §1334(b) pre-empts, and it granted summary judgment for petitioners. Respondents appealed, and the Court of Appeals reversed. The Court of Appeals first rejected the District Court’s characterization of respondents’ claim as a warning neutralization claim akin to the pre-empted claim in Cipollone. 501 F. 3d 29, 37, 40 (CA1 2007). Instead, the court concluded that respondents’ claim is in substance a fraud claim that alleges that petitioners falsely represented their cigarettes as “light” or having “lowered tar and nicotine” even though they deliver to smokers the same quantities of those components as do regular cigarettes. Id., at 36. “The fact that these alleged misrepresentations were unaccompanied by additional statements in the nature of a warning does not transform the claimed fraud into failure to warn” or warning neutralization. Id., at 42–43. Finding respondents’ claim indistinguishable from the non-pre-empted fraud claim at issue in Cipollone, the Court of Appeals held that it is not expressly pre-empted. The court also rejected petitioners’ argument that respondents’ claim is impliedly pre-empted because their success on that claim would stand as an obstacle to the purported policy of the FTC allowing the use of descriptive terms that convey Cambridge Filter Method test results. Accordingly, it reversed the judgment of the District Court. In concluding that respondents’ claim is not expressly pre-empted, the Court of Appeals considered and rejected the Fifth Circuit’s reasoning in a similar case. 501 F. 3d, at 45. Unlike the court below, the Fifth Circuit likened the plaintiffs’ challenge to the use of “light” descriptors to Cipollone’s warning neutralization claim and thus found it expressly pre-empted. Brown v. Brown & Williamson Tobacco Corp., 479 F. 3d 383, 392–393 (2007). We granted the petition for certiorari to resolve this apparent conflict. 552 U. S. ___ (2008). II Article VI, cl. 2, of the Constitution provides that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Consistent with that command, we have long recognized that state laws that conflict with federal law are “without effect.” Maryland v. Louisiana, 451 U. S. 725, 746 (1981). Our inquiry into the scope of a statute’s pre-emptive effect is guided by the rule that “ ‘[t]he purpose of Congress is the ultimate touchstone’ in every pre-emption case.” Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) (quoting Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963)). Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose. See Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). If a federal law contains an express pre-emption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress’ displacement of state law still remains. Pre-emptive intent may also be inferred if the scope of the statute indicates that Congress intended federal law to occupy the legislative field, or if there is an actual conflict between state and federal law. Freightliner Corp. v. Myrick, 514 U. S. 280, 287 (1995). When addressing questions of express or implied pre-emption, we begin our analysis “with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). That assumption applies with particular force when Congress has legislated in a field traditionally occupied by the States. Lohr, 518 U. S., at 485; see also Reilly, 533 U. S., at 541–542 (“Because ‘federal law is said to bar state action in [a] fiel[d] of traditional state regulation,’ namely, advertising, we ‘wor[k] on the assumption that the historic police powers of the States [a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress’ ” (citation omitted)). Thus, when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily “accept the reading that disfavors pre-emption.” Bates v. Dow Agrosciences LLC, 544 U. S. 431, 449 (2005). Congress enacted the Labeling Act in 1965[Footnote 3] in response to the Surgeon General’s determination that cigarette smoking is harmful to health. The Act required that every package of cigarettes sold in the United States contain a conspicuous warning, and it pre-empted state-law positive enactments that added to the federally prescribed warning. 79 Stat. 283. Congress amended the Labeling Act a few years later by enacting the Public Health Cigarette Smoking Act of 1969.[Footnote 4] The amendments strengthened the language of the prescribed warning, 84 Stat. 88, and prohibited cigarette advertising in “any medium of electronic communication subject to [FCC] jurisdiction,” id., at 89. They also broadened the Labeling Act’s pre-emption provision. See Cipollone, 505 U. S., at 520 (plurality opinion) (discussing the difference in scope of the pre-emption clauses of the 1965 and 1969 Acts). The Labeling Act has since been amended further to require cigarette manufacturers to include four more explicit warnings in their packaging and advertisements on a rotating basis.[Footnote 5] The stated purpose of the Labeling Act is “to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby— “(1) the public may be adequately informed that cigarette smoking may be hazardous to health by inclusion of a warning to that effect on each package of cigarettes; and “(2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.” 79 Stat. 282, 15 U. S. C. §1331. The requirement that cigarette manufacturers include in their packaging and advertising the precise warnings mandated by Congress furthers the Act’s first purpose. And the Act’s pre-emption provisions promote its second purpose. As amended, the Labeling Act contains two express pre-emption provisions. Section 5(a) protects cigarette manufacturers from inconsistent state labeling laws by prohibiting the requirement of additional statements relating to smoking and health on cigarette packages. 15 U. S. C. §1334(a). Section 5(b), which is at issue in this case, provides that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” §1334(b). Together, the labeling requirement and pre-emption provisions express Congress’ determination that the prescribed federal warnings are both necessary and sufficient to achieve its purpose of informing the public of the health consequences of smoking. Because Congress has decided that no additional warning statement is needed to attain that goal, States may not impede commerce in cigarettes by enforcing rules that are based on an assumption that the federal warnings are inadequate. Although both of the Act’s purposes are furthered by prohibiting States from supplementing the federally prescribed warning, neither would be served by limiting the States’ authority to prohibit deceptive statements in cigarette advertising. Petitioners acknowledge that “Congress had no intention of insulating tobacco companies from liability for inaccurate statements about the relationship between smoking and health.” Brief for Petitioners 28. But they maintain that Congress could not have intended to permit the enforcement of state fraud rules because doing so would defeat the Labeling Act’s purpose of preventing nonuniform state warning requirements. 15 U. S. C. §1331.[Footnote 6] As we observed in Cipollone, however, fraud claims “rely only on a single, uniform standard: falsity.” 505 U. S., at 529 (plurality opinion). Although it is clear that fidelity to the Act’s purposes does not demand the pre-emption of state fraud rules, the principal question that we must decide is whether the text of §1334(b) nevertheless requires that result. III We have construed the operative phrases of §1334(b) in two prior cases: Cipollone, 505 U. S. 504, and Reilly, 533 U. S. 525. On both occasions we recognized that the phrase “based on smoking and health” modifies the state-law rule at issue rather than a particular application of that rule. In Cipollone, the plurality, which consisted of Chief Justice Rehnquist and Justices White, O’Connor, and Stevens, read the pre-emption provision in the 1969 amendments to the Labeling Act to pre-empt common-law rules as well as positive enactments. Unlike Justices Blackmun, Kennedy, and Souter, the plurality concluded that the provision does not preclude all common-law claims that have some relationship to smoking and health. 505 U. S., at 521–523. To determine whether a particular common-law claim is pre-empted, the plurality inquired “whether the legal duty that is the predicate of the common-law damages action constitutes a ‘requirement or prohibition based on smoking and health … with respect to … advertising or promotion,’ giving that clause a fair but narrow reading.” Id., at 524. Applying this standard, the plurality held that the plaintiff’s claim that cigarette manufacturers had fraudulently misrepresented and concealed a material fact was not pre-empted. That claim alleged a violation of the manufacturers’ duty not to deceive—a duty that is not “based on” smoking and health. Id., at 528–529. Respondents in this case also allege a violation of the duty not to deceive as that duty is codified in the MUTPA. The duty codified in that state statute, like the duty imposed by the state common-law rule at issue in Cipollone, has nothing to do with smoking and health.[Footnote 7] Petitioners endeavor to distance themselves from that holding by arguing that respondents’ claim is more analogous to the “warning neutralization” claim found to be pre-empted in Cipollone. Although the plurality understood the plaintiff to have presented that claim as a “theory of fraudulent misrepresentation,” id., at 528, the gravamen of the claim was the defendants’ failure to warn, as it was “predicated on a state-law prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking,” id., at 527. Thus understood, the Cipollone plurality’s analysis of the warning neutralization claim has no application in this case.[Footnote 8] Petitioners nonetheless contend that respondents’ claim is like the pre-empted warning neutralization claim because it is based on statements that “might create a false impression” rather than statements that are “inherently false.” Brief for Petitioners 39. But the extent of the falsehood alleged does not alter the nature of the claim. Nothing in the Labeling Act’s text or purpose or in the plurality opinion in Cipollone suggests that whether a claim is pre-empted turns in any way on the distinction between misleading and inherently false statements. Petitioners’ misunderstanding is the same one that led the Court of Appeals for the Fifth Circuit, when confronted with a “light” descriptors claim, to reach a result at odds with the Court of Appeals’ decision in this case. See Brown, 479 F. 3d, at 391–393. Certainly, the extent of the falsehood alleged may bear on whether a plaintiff can prove her fraud claim, but the merits of respondents’ claim are not before us. Once that erroneous distinction is set aside, it is clear that our holding in Cipollone that the common-law fraud claim was not pre-empted is directly applicable to the statutory claim at issue in this case. As was true of the claim in Cipollone, respondents’ claim that the deceptive statements “light” and “lowered tar and nicotine” induced them to purchase petitioners’ product alleges a breach of the duty not to deceive.[Footnote 9] To be sure, the presence of the federally mandated warnings may bear on the materiality of petitioners’ allegedly fraudulent statements, “but that possibility does not change [respondents’] case from one about the statements into one about the warnings.” 501 F. 3d, at 44.[Footnote 10] Our decision in Reilly is consistent with Cipollone’s analysis. Reilly involved regulations promulgated by the Massachusetts attorney general “ ‘in order to address the incidence of cigarette smoking and smokeless tobacco use by children under legal age … [and] in order to prevent access to such products by underage customers.’ ” 533 U. S., at 533 (quoting 940 Code Mass. Regs. §21.01 (2000)). The regulations did not pertain to the content of any advertising; rather, they placed a variety of restrictions on certain cigarette sales and the location of outdoor and point-of-sale cigarette advertising. The attorney general promulgated those restrictions pursuant to his statutory authority to prevent unfair or deceptive trade practices. Mass. Gen. Laws, ch. 93A, §2 (West 1996). But although the attorney general’s authority derived from a general deceptive practices statute like the one at issue in this case, the challenged regulations targeted advertising that tended to promote tobacco use by children instead of prohibiting false or misleading statements. Thus, whereas the “prohibition” in Cipollone was the common-law fraud rule, the “prohibitions” in Reilly were the targeted regulations. Accordingly, our holding in Reilly that the regulations were pre-empted provides no support for an argument that a general prohibition of deceptive practices is “based on” the harm caused by the specific kind of deception to which the prohibition is applied in a given case. It is true, as petitioners argue, that the appeal of their advertising is based on the relationship between smoking and health. And although respondents have expressly repudiated any claim for damages for personal injuries, see App. 26a, their actual injuries likely encompass harms to health as well as the monetary injuries they allege. These arguments are unavailing, however, because the text of §1334(b) does not refer to harms related to smoking and health. Rather, it pre-empts only requirements and prohibitions—i.e., rules—that are based on smoking and health. The MUTPA says nothing about either “smoking” or “health.” It is a general rule that creates a duty not to deceive and is therefore unlike the regulations at issue in Reilly.[Footnote 11] Petitioners argue in the alternative that we should reject the express pre-emption framework established by the Cipollone plurality and relied on by the Court in Reilly. In so doing, they invoke the reasons set forth in the separate opinions of Justice Blackmun (who especially criticized the plurality’s holding that the failure-to-warn claim was pre-empted) and Justice Scalia (who argued that the fraud claim also should be pre-empted). While we again acknowledge that our analysis of these claims may lack “theoretical elegance,” we remain persuaded that it represents “a fair understanding of congressional purpose.” Cipollone, 505 U. S., at 529–530, n. 27 (plurality opinion). Petitioners also contend that the plurality opinion is inconsistent with our decisions in American Airlines, Inc. v. Wolens, 513 U. S. 219 (1995), and Riegel v. Medtronic, Inc., 552 U. S. ___ (2008). Both cases, however, are inapposite—the first because it involved a pre-emption provision much broader than the Labeling Act’s, and the second because it involved precisely the type of state rule that Congress had intended to pre-empt. At issue in Wolens was the pre-emptive effect of the Airline Deregulation Act of 1978 (ADA), 49 U. S. C. App. §1305(a)(1) (1988 ed.), which prohibits States from enacting or enforcing any law “relating to rates, routes, or services of any air carrier.” The plaintiffs in that case sought to bring a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill. Comp. Stat., ch. 815, §505 (West 1992). Our conclusion that the state-law claim was pre-empted turned on the unusual breadth of the ADA’s pre-emption provision. We had previously held that the meaning of the key phrase in the ADA’s pre-emption provision, “ ‘relating to rates, routes, or services,’ ” is a broad one. Morales v. Trans World Airlines, Inc., 504 U. S. 374, 383–384 (1992) (emphasis added). Relying on precedents construing the pre-emptive effect of the same phrase in the Employee Retirement Income Security Act of 1974, 29 U. S. C. §1144(a), we concluded that the phrase “relating to” indicates Congress’ intent to pre-empt a large area of state law to further its purpose of deregulating the airline industry. 504 U. S., at 383–384.[Footnote 12] Unquestionably, the phrase “relating to” has a broader scope than the Labeling Act’s reference to rules “based on” smoking and health; whereas “relating to” is synonymous with “having a connection with,” id., at 384, “based on” describes a more direct relationship, see Safeco Ins. Co. of America v. Burr, 551 U. S. ___, ___ (2007) (slip op., at 13) (“In common talk, the phrase ‘based on’ indicates a but-for causal relationship and thus a necessary logical condition”). Petitioners’ reliance on Riegel is similarly misplaced. The plaintiffs in Riegel sought to bring common-law design, manufacturing, and labeling defect claims against the manufacturer of a faulty catheter. The case presented the question whether those claims were expressly pre-empted by the Medical Device Amendments of 1976 (MDA), 21 U. S. C. §360c et seq. The MDA’s pre-emption clause provides that no State “ ‘may establish or continue in effect with respect to a device … any requirement’ relating to safety or effectiveness that is different from, or in addition to, federal requirements.” Riegel, 552 U. S., at ___ (slip op., at 14) (quoting 21 U. S. C. §360k(a); emphasis deleted). The catheter at issue in Riegel had received premarket approval from the Food and Drug Administration (FDA). We concluded that premarket approval imposes “requirement[s] relating to safety [and] effectiveness” because the FDA requires a device that has received premarket approval to be made with almost no design, manufacturing, or labeling deviations from the specifications in its approved application. The plaintiffs’ products liability claims fell within the core of the MDA’s pre-emption provision because they sought to impose different requirements on precisely those aspects of the device that the FDA had approved. Unlike the Cipollone plaintiff’s fraud claim, which fell outside of the Labeling Act’s pre-emptive reach because it did not seek to impose a prohibition “based on smoking and health,” the Riegel plaintiffs’ common-law products liability claims unquestionably sought to enforce “requirement[s] relating to safety or effectiveness” under the MDA. That the “relating to” language of the MDA’s pre-emption provision is, like the ADA’s, much broader than the operative language of the Labeling Act provides an additional basis for distinguishing Riegel. Thus, contrary to petitioners’ suggestion, Riegel is entirely consistent with our holding in Cipollone. In sum, we conclude now, as the plurality did in Cipollone, that “the phrase ‘based on smoking and health’ fairly but narrowly construed does not encompass the more general duty not to make fraudulent statements.” 505 U. S., at 529. IV As an alternative to their express pre-emption argument, petitioners contend that respondents’ claim is impliedly pre-empted because, if allowed to proceed, it would present an obstacle to a longstanding policy of the FTC. According to petitioners, the FTC has for decades promoted the development and consumption of low tar cigarettes and has encouraged consumers to rely on representations of tar and nicotine content based on Cambridge Filter Method testing in choosing among cigarette brands. Even if such a regulatory policy could provide a basis for obstacle pre-emption, petitioners’ description of the FTC’s actions in this regard are inaccurate. The Government itself disavows any policy authorizing the use of “light” and “low tar” descriptors. Brief for United States as Amicus Curiae 16–33. In 1966, following the publication of the Surgeon General’s report on smoking and health, the FTC issued an industry guidance stating its view that “a factual statement of the tar and nicotine content (expressed in milligrams) of the mainstream smoke from a cigarette,” as measured by Cambridge Filter Method testing, would not violate the FTC Act. App. 478a. The Commission made clear, however, that the guidance applied only to factual assertions of tar and nicotine yields and did not invite “collateral representations … made, expressly or by implication, as to reduction or elimination of health hazards.” Id., at 479a. A year later, the FTC reiterated its position in a letter to the National Association of Broadcasters. The letter explained that, as a “general rule,” the Commission would not challenge statements of tar and nicotine content when “they are shown to be accurate and fully substantiated by tests conducted in accordance with the [Cambridge Filter Method].” Id., at 368a. In 1970, the FTC considered providing further guidance, proposing a rule that would have required manufacturers to disclose tar and nicotine yields as measured by Cambridge Filter Method testing. 35 Fed. Reg. 12671. The leading cigarette manufacturers responded by submitting a voluntary agreement under which they would disclose tar and nicotine content in their advertising, App. 899a–900a, and the FTC suspended its rulemaking, 36 Fed. Reg. 784 (1971). Based on these events, petitioners assert that “the FTC has required tobacco companies to disclose tar and nicotine yields in cigarette advertising using a government-mandated testing methodology and has authorized them to use descriptors as shorthand references to those numerical test results.” Brief for Petitioners 2 (emphasis in original). As the foregoing history shows, however, the FTC has in fact never required that cigarette manufacturers disclose tar and nicotine yields, nor has it condoned representations of those yields through the use of “light” or “low tar” descriptors. Subsequent Commission actions further undermine petitioners’ claim. After the tobacco companies agreed to report tar and nicotine yields as measured by the Cambridge Filter Method, the FTC continued to police cigarette companies’ misleading use of test results. In 1983, the FTC responded to findings that tar and nicotine yields for Barclay cigarettes obtained through Cambridge Filter Method testing were deceptive because the cigarettes in fact delivered disproportionately more tar to smokers than other cigarettes with similar Cambridge Filter Method ratings. 48 Fed. Reg. 15954. And in 1995, the FTC found that a manufacturer’s representation “that consumers will get less tar by smoking ten packs of Carlton brand cigarettes than by smoking a single pack of the other brands” was deceptive even though it was based on the results of Cambridge Filter Method testing. In re American Tobacco Co., 119 F. T. C. 3, 4. The FTC’s conclusion was based on its recognition that, “[i]n truth and in fact, consumers will not necessarily get less tar” due to “such behavior as compensatory smoking.” Ibid.[Footnote 13] This history shows that, contrary to petitioners’ suggestion, the FTC has no longstanding policy authorizing collateral representations based on Cambridge Filter Method test results. Rather, the FTC has endeavored to inform consumers of the comparative tar and nicotine content of different cigarette brands and has in some instances prevented misleading representations of Cambridge Filter Method test results. The FTC’s failure to require petitioners to correct their allegedly misleading use of “light” descriptors is not evidence to the contrary; agency nonenforcement of a federal statute is not the same as a policy of approval. Cf. Sprietsma v. Mercury Marine, 537 U. S. 51 (2002) (holding that the Coast Guard’s decision not to regulate propeller guards did not impliedly pre-empt petitioner’s tort claims).[Footnote 14] More telling are the FTC’s recent statements regarding the use of “light” and “low tar” descriptors. In 1997, the Commission observed that “[t]here are no official definitions for” the terms “light” and “low tar,” and it sought comments on whether “there [is] a need for official guidance with respect to the terms” and whether “the descriptors convey implied health claims.” 62 Fed. Reg. 48163. In November 2008, following public notice and comment, the Commission rescinded its 1966 guidance concerning the Cambridge Filter Method. 73 Fed. Reg. 74500. The rescission is a response to “a consensus among the public health and scientific communities that the Cambridge Filter method is sufficiently flawed that statements of tar and nicotine yields as measured by that method are not likely to help consumers make informed decisions.” Id., at 74503. The Commission’s notice of its proposal to rescind the guidance also reiterated the original limits of that guidance, noting that it “only addresse[d] simple factual statements of tar and nicotine yields. It d[id] not apply to other conduct or express or implied representations, even if they concern[ed] tar and nicotine yields.” Id., at 40351. In short, neither the handful of industry guidances and consent orders on which petitioners rely nor the FTC’s inaction with regard to “light” descriptors even arguably justifies the pre-emption of state deceptive practices rules like the MUTPA. V We conclude, as we did in Cipollone, that the Labeling Act does not pre-empt state-law claims like respondents’ that are predicated on the duty not to deceive. We also hold that the FTC’s various decisions with respect to statements of tar and nicotine content do not impliedly pre-empt respondents’ claim. Respondents still must prove that petitioners’ use of “light” and “lowered tar” descriptors in fact violated the state deceptive practices statute, but neither the Labeling Act’s pre-emption provision nor the FTC’s actions in this field prevent a jury from considering that claim. Accordingly, 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 MUTPA provides, as relevant, that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.” §207. In construing that section, courts are to “be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to Section 45(a)(1) of the Federal Trade Commission Act (15 United States Code 45(a)(1)), as from time to time amended.” §207(1). Footnote 2 The Cambridge Filter Method weighs and measures the tar and nicotine collected by a smoking machine that takes 35 milliliter puffs of two seconds’ duration every 60 seconds until the cigarette is smoked to a specified butt length. App. 294a, 668a. As discussed below, the Federal Trade Commission (FTC or Commission) signaled in 1966 that the Cambridge Filter Method was an acceptable means of measuring the tar and nicotine content of cigarettes, but it never required manufacturers to publish test results in their advertisements. Footnote 3 79 Stat. 282. Footnote 4 Pub. L. 91–222, 84 Stat. 87. Though actually enacted in 1970, Congress directed that it be cited as a “1969 Act.” Footnote 5 Comprehensive Smoking Education Act, Pub. L. 98–474, §4(a), 98 Stat. 2201, 15 U. S. C. §1333(a). Footnote 6 Petitioners also urge us to find support for their claim that Congress gave the FTC exclusive authority to police deceptive health-related claims in cigarette advertising in what they refer to as the Labeling Act’s “saving clause.” The clause provides that, apart from the warning requirement, nothing in the Act “shall be construed to limit, restrict, expand, or otherwise affect the authority of the Federal Trade Commission with respect to unfair or deceptive acts or practices in the advertising of cigarettes.” §1336. A plurality of this Court has previously read this clause to “indicat[e] that Congress intended the phrase ‘relating to smoking and health’ … to be construed narrowly, so as not to proscribe the regulation of deceptive advertising.” Cipollone v. Liggett Group, Inc., 505 U. S. 504, 528–529 (1992). Nothing in the clause suggests that Congress meant to proscribe the States’ historic regulation of deceptive advertising practices. The FTC has long depended on cooperative state regulation to achieve its mission because, although one of the smallest administrative agencies, it is charged with policing an enormous amount of activity. See 1 S. Kanwit, Federal Trade Commission §§1:1, 1:2 (2004 ed. and Supp. 2008). Moreover, when the Labeling Act was amended in 1969 it was not even clear that the FTC possessed rulemaking authority, see 84 Stat. 89, making it highly unlikely that Congress would have intended to assign exclusively to the FTC the substantial task of overseeing deceptive practices in cigarette advertisements. Footnote 7 In his dissent, Justice Thomas criticizes our reliance on the plurality opinion in Cipollone, post, at 6–8, 14–19, 22, and advocates adopting the analysis set forth by Justice Scalia in his opinion concurring in the judgment in part and dissenting in part in that case, post, at 3–6, 19–21. But Justice Scalia’s approach was rejected by seven Members of the Court, and in the almost 17 years since Cipollone was decided Congress has done nothing to indicate its approval of that approach. Moreover, Justice Thomas fails to explain why Congress would have intended the result that Justice Scalia’s approach would produce—namely, permitting cigarette manufacturers to engage in fraudulent advertising. As a majority of the Court concluded in Cipollone, nothing in the Labeling Act’s language or purpose supports that result. Footnote 8 The Cipollone plurality further stated that the warning neutralization claim was “merely the converse of a state-law requirement that warnings be included in advertising and promotional materials,” 505 U. S., at 527, evincing the plurality’s recognition that warning neutralization and failure-to-warn claims are two sides of the same coin. Justice Thomas’ criticism of the plurality’s treatment of the failure-to-warn claim, post, at 16, is beside the point, as no such claim is at issue in this litigation. Footnote 9 As the Court of Appeals observed, respondents’ allegations regarding petitioners’ use of the statements “light” and “lowered tar and nicotine” could also support a warning neutralization claim. But respondents did not bring such a claim, and the fact that they could have does not, as petitioners suggest, elevate form over substance. There is nothing new in the recognition that the same conduct might violate multiple proscriptions. Footnote 10 Justice Thomas contends that respondents’ fraud claim must be pre-empted because “[a] judgment in [their] favor will … result in a ‘requirement’ that petitioners represent the effects of smoking on health in a particular way in their advertising and promotion of light cigarettes.” Post, at 3. He further asserts that “respondents seek to require the cigarette manufacturers to provide additional warnings about compensatory behavior, or to prohibit them from selling these products with the ‘light’ or ‘low-tar’ descriptors.” Post, at 20. But this mischaracterizes the relief respondents seek. If respondents prevail at trial, petitioners will be prohibited from selling as “light” or “low tar” only those cigarettes that are not actually light and do not actually deliver less tar and nicotine. Barring intervening federal regulation, petitioners would remain free to make nonfraudulent use of the “light” and “low-tar” descriptors. Footnote 11 In implementing the MUTPA, neither the state legislature nor the state attorney general has enacted a set of special rules or guidelines targeted at cigarette advertising. As we noted in Cipollone, it was the threatened enactment of new state warning requirements rather than the enforcement of pre-existing general prohibitions against deceptive practices that prompted congressional action in 1969. 505 U. S., at 515, and n. 11. Footnote 12 Petitioners also point to Morales as evidence that our decision in Cipollone was wrong. But Morales predated Cipollone, and it is in any event even more easily distinguishable from this case than American Airlines, Inc. v. Wolens, 513 U. S.219 (1995). At issue in Morales were guidelines regarding the form and substance of airline fare advertising implemented by the National Association of Attorneys General to give content to state deceptive practices rules. 504 U. S., at 379. Like the regulations at issue in Reilly, the guidelines were industry-specific directives that targeted the subject matter made off-limits by the ADA’s express pre-emption provisions. See also Rowe v. New Hampshire Motor Transp. Assn., 552 U. S. ___ (2008) (holding that targeted ground carrier regulations were pre-empted by a statute modeled on the ADA). Footnote 13 In a different action, the FTC charged a cigarette manufacturer with violating the FTC Act by misleadingly advertising certain brands as “low in tar” even though they had a higher-than-average tar rating. See In re American Brands, Inc., 79 F. T. C. 255 (1971). The Commission and the manufacturer entered a consent order that prevented the manufacturer from making any such representations unless they were accompanied by a clear and conspicuous disclosure of the cigarettes’ tar and nicotine content as measured by the Cambridge Filter Method. Id., at 258. Petitioners offer this consent order as evidence that the FTC authorized the use of “light” and “low tar” descriptors as long as they accurately describe Cambridge Filter Method test results. As the Government observes, however, the decree only enjoined conduct. Brief for United States as Amicus Curiae 26. And a consent order is in any event only binding on the parties to the agreement. For all of these reasons, the consent order does not support the conclusion that respondents’ claim is impliedly pre-empted. Footnote 14 It seems particularly inappropriate to read a policy of authorization into the FTC’s inaction when that inaction is in part the result of petitioners’ failure to disclose study results showing that Cambridge Filter Method test results do not reflect the amount of tar and nicotine that consumers of “light” cigarettes actually inhale. See id., at 8–11. |
556.US.332 | Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. Reversing, the State Supreme Court distinguished New York v. Belton, 453 U. S. 454—which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant’s lawful arrest—on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U. S. 752, requires that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence and the circumstances of Gant’s arrest implicated neither of those interests, the State Supreme Court found the search unreasonable. Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Pp. 5–18. (a) Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357. The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U. S., at 763. This Court applied that exception to the automobile context in Belton, the holding of which rested in large part on the assumption that articles inside a vehicle’s passenger compartment are “generally … within ‘the area into which an arrestee might reach.’ ” 453 U. S., at 460. Pp. 5–8. (b) This Court rejects a broad reading of Belton that would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access. Although it does not follow from Chimel, circumstances unique to the automobile context also justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton v. United States, 541 U. S. 615, 632 (Scalia, J., concurring in judgment). Neither Chimel’s reaching-distance rule nor Thornton’s allowance for evidentiary searches authorized the search in this case. In contrast to Belton, which involved a single officer confronted with four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects in separate patrol cars before the search began. Gant clearly could not have accessed his car at the time of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were both arrested for drug offenses, but Gant was arrested for driving with a suspended license—an offense for which police could not reasonably expect to find evidence in Gant’s car. Cf. Knowles v. Iowa, 525 U. S. 113, 118. The search in this case was therefore unreasonable. Pp. 8–11. (c) This Court is unpersuaded by the State’s argument that its expansive reading of Belton correctly balances law enforcement interests with an arrestee’s limited privacy interest in his vehicle. The State seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. A narrow reading of Belton and Thornton, together with this Court’s other Fourth Amendment decisions, e.g., Michigan v. Long, 463 U. S. 103, and United States v. Ross, 456 U. S. 798, permit an officer to search a vehicle when safety or evidentiary concerns demand. Pp. 11–14. (d) Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28 years since Belton has shown that the generalization underpinning the broad reading of that decision is unfounded, and blind adherence to its faulty assumption would authorize myriad unconstitutional searches. Pp. 15–18. 216 Ariz. 1, 162 P. 3d 640, affirmed. Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Kennedy, J., joined, and in which Breyer, J., joined except as to Part II–E. | After Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat. Because Gant could not have accessed his car to retrieve weapons or evidence at the time of the search, the Arizona Supreme Court held that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v. California, 395 U. S. 752 (1969), and applied to vehicle searches in New York v. Belton, 453 U. S. 454 (1981), did not justify the search in this case. We agree with that conclusion. Under Chimel, police may search incident to arrest only the space within an arrestee’s “ ‘immediate control,’ ” meaning “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U. S., at 763. The safety and evidentiary justifications underlying Chimel’s reaching-distance rule determine Belton’s scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States, 541 U. S. 615 (2004), and following the suggestion in Justice Scalia’s opinion concurring in the judgment in that case, id., at 632, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. I On August 25, 1999, acting on an anonymous tip that the residence at 2524 North Walnut Avenue was being used to sell drugs, Tucson police officers Griffith and Reed knocked on the front door and asked to speak to the owner. Gant answered the door and, after identifying himself, stated that he expected the owner to return later. The officers left the residence and conducted a records check, which revealed that Gant’s driver’s license had been suspended and there was an outstanding warrant for his arrest for driving with a suspended license. When the officers returned to the house that evening, they found a man near the back of the house and a woman in a car parked in front of it. After a third officer arrived, they arrested the man for providing a false name and the woman for possessing drug paraphernalia. Both arrestees were handcuffed and secured in separate patrol cars when Gant arrived. The officers recognized his car as it entered the driveway, and Officer Griffith confirmed that Gant was the driver by shining a flashlight into the car as it drove by him. Gant parked at the end of the driveway, got out of his car, and shut the door. Griffith, who was about 30 feet away, called to Gant, and they approached each other, meeting 10-to-12 feet from Gant’s car. Griffith immediately arrested Gant and handcuffed him. Because the other arrestees were secured in the only patrol cars at the scene, Griffith called for backup. When two more officers arrived, they locked Gant in the backseat of their vehicle. After Gant had been handcuffed and placed in the back of a patrol car, two officers searched his car: One of them found a gun, and the other discovered a bag of cocaine in the pocket of a jacket on the backseat. Gant was charged with two offenses—possession of a narcotic drug for sale and possession of drug paraphernalia (i.e., the plastic bag in which the cocaine was found). He moved to suppress the evidence seized from his car on the ground that the warrantless search violated the Fourth Amendment. Among other things, Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. When asked at the suppression hearing why the search was conducted, Officer Griffith responded: “Because the law says we can do it.” App. 75. The trial court rejected the State’s contention that the officers had probable cause to search Gant’s car for contraband when the search began, id., at 18, 30, but it denied the motion to suppress. Relying on the fact that the police saw Gant commit the crime of driving without a license and apprehended him only shortly after he exited his car, the court held that the search was permissible as a search incident to arrest. Id., at 37. A jury found Gant guilty on both drug counts, and he was sentenced to a 3-year term of imprisonment. After protracted state-court proceedings, the Arizona Supreme Court concluded that the search of Gant’s car was unreasonable within the meaning of the Fourth Amendment. The court’s opinion discussed at length our decision in Belton, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant. 216 Ariz. 1, 3–4, 162 P. 3d 640, 642–643 (2007) (citing 453 U. S., at 460). The court distinguished Belton as a case concerning the permissible scope of a vehicle search incident to arrest and concluded that it did not answer “the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure.” 216 Ariz., at 4, 162 P. 3d, at 643. Relying on our earlier decision in Chimel, the court observed that the search-incident-to-arrest exception to the warrant requirement is justified by interests in officer safety and evidence preservation. 216 Ariz., at 4, 162 P. 3d, at 643. When “the justifications underlying Chimel no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer,” the court concluded, a “warrantless search of the arrestee’s car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence.” Id., at 5, 162 P. 3d, at 644. Accordingly, the court held that the search of Gant’s car was unreasonable. The dissenting justices would have upheld the search of Gant’s car based on their view that “the validity of a Belton search … clearly does not depend on the presence of the Chimel rationales in a particular case.” Id., at 8, 162 P. 3d, at 647. Although they disagreed with the majority’s view of Belton, the dissenting justices acknowledged that “[t]he bright-line rule embraced in Belton has long been criticized and probably merits reconsideration.” 216 Ariz., at 10, 162 P. 3d, at 649. They thus “add[ed their] voice[s] to the others that have urged the Supreme Court to revisit Belton.” Id., at 11, 163 P. 3d, at 650. The chorus that has called for us to revisit Belton includes courts, scholars, and Members of this Court who have questioned that decision’s clarity and its fidelity to Fourth Amendment principles. We therefore granted the State’s petition for certiorari. 552 U. S. ___ (2008). II Consistent with our precedent, our analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 (1967) (footnote omitted). Among the exceptions to the warrant requirement is a search incident to a lawful arrest. See Weeks v. United States, 232 U. S. 383, 392 (1914). The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. See United States v. Robinson, 414 U. S. 218, 230–234 (1973); Chimel, 395 U. S., at 763. In Chimel, we held that a search incident to arrest may only include “the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Ibid. That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. See ibid. (noting that searches incident to arrest are reasonable “in order to remove any weapons [the arrestee] might seek to use” and “in order to prevent [the] concealment or destruction” of evidence (emphasis added)). If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply. E.g., Preston v. United States, 376 U. S. 364, 367–368 (1964). In Belton, we considered Chimel’s application to the automobile context. A lone police officer in that case stopped a speeding car in which Belton was one of four occupants. While asking for the driver’s license and registration, the officer smelled burnt marijuana and observed an envelope on the car floor marked “Supergold”—a name he associated with marijuana. Thus having probable cause to believe the occupants had committed a drug offense, the officer ordered them out of the vehicle, placed them under arrest, and patted them down. Without handcuffing the arrestees,[Footnote 1] the officer “ ‘split them up into four separate areas of the Thruway … so they would not be in physical touching area of each other’ ” and searched the vehicle, including the pocket of a jacket on the backseat, in which he found cocaine. 453 U. S., at 456. The New York Court of Appeals found the search unconstitutional, concluding that after the occupants were arrested the vehicle and its contents were “safely within the exclusive custody and control of the police.” State v. Belton, 50 N. Y. 2d 447, 452, 407 N. E. 2d 420, 423 (1980). The State asked this Court to consider whether the exception recognized in Chimel permits an officer to search “a jacket found inside an automobile while the automobile’s four occupants, all under arrest, are standing unsecured around the vehicle.” Brief in No. 80–328, p. i. We granted certiorari because “courts ha[d] found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile.” 453 U. S., at 460. In its brief, the State argued that the Court of Appeals erred in concluding that the jacket was under the officer’s exclusive control. Focusing on the number of arrestees and their proximity to the vehicle, the State asserted that it was reasonable for the officer to believe the arrestees could have accessed the vehicle and its contents, making the search permissible under Chimel. Brief in No. 80–328, at 7–8. The United States, as amicus curiae in support of the State, argued for a more permissive standard, but it maintained that any search incident to arrest must be “ ‘substantially contemporaneous’ ” with the arrest—a requirement it deemed “satisfied if the search occurs during the period in which the arrest is being consummated and before the situation has so stabilized that it could be said that the arrest was completed.” Brief for United States as Amicus Curiae in New York v. Belton, O. T. 1980, No. 80–328, p. 14. There was no suggestion by the parties or amici that Chimel authorizes a vehicle search incident to arrest when there is no realistic possibility that an arrestee could access his vehicle. After considering these arguments, we held that when an officer lawfully arrests “the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” and any containers therein. Belton, 453 U. S., at 460 (footnote omitted). That holding was based in large part on our assumption “that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach.’ ” Ibid. The Arizona Supreme Court read our decision in Belton as merely delineating “the proper scope of a search of the interior of an automobile” incident to an arrest, id., at 459. That is, when the passenger compartment is within an arrestee’s reaching distance, Belton supplies the generalization that the entire compartment and any containers therein may be reached. On that view of Belton, the state court concluded that the search of Gant’s car was unreasonable because Gant clearly could not have accessed his car at the time of the search. It also found that no other exception to the warrant requirement applied in this case. Gant now urges us to adopt the reading of Belton followed by the Arizona Supreme Court. III Despite the textual and evidentiary support for the Arizona Supreme Court’s reading of Belton, our opinion has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. This reading may be attributable to Justice Brennan’s dissent in Belton, in which he characterized the Court’s holding as resting on the “fiction … that the interior of a car is always within the immediate control of an arrestee who has recently been in the car.” 453 U. S., at 466. Under the majority’s approach, he argued, “the result would presumably be the same even if [the officer] had handcuffed Belton and his companions in the patrol car” before conducting the search. Id., at 468. Since we decided Belton, Courts of Appeals have given different answers to the question whether a vehicle must be within an arrestee’s reach to justify a vehicle search incident to arrest,[Footnote 2] but Justice Brennan’s reading of the Court’s opinion has predominated. As Justice O’Connor observed, “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel.” Thornton, 541 U. S., at 624 (opinion concurring in part). Justice Scalia has similarly noted that, although it is improbable that an arrestee could gain access to weapons stored in his vehicle after he has been handcuffed and secured in the backseat of a patrol car, cases allowing a search in “this precise factual scenario … are legion.” Id., at 628 (opinion concurring in judgment) (collecting cases).[Footnote 3] Indeed, some courts have upheld searches under Belton “even when … the handcuffed arrestee has already left the scene.” 541 U. S., at 628 (same). Under this broad reading of Belton, a vehicle search would be authorized incident to every arrest of a recent occupant notwithstanding that in most cases the vehicle’s passenger compartment will not be within the arrestee’s reach at the time of the search. To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would thus untether the rule from the justifications underlying the Chimel exception—a result clearly incompatible with our statement in Belton that it “in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” 453 U. S., at 460, n. 3. Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.[Footnote 4] Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton, 541 U. S., at 632 (Scalia, J., concurring in judgment). In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. See, e.g., Atwater v. Lago Vista, 532 U. S. 318, 324 (2001); Knowles v. Iowa, 525 U. S. 113, 118 (1998). But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein. Neither the possibility of access nor the likelihood of discovering offense-related evidence authorized the search in this case. Unlike in Belton, which involved a single officer confronted with four unsecured arrestees, the five officers in this case outnumbered the three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched Gant’s car. Under those circumstances, Gant clearly was not within reaching distance of his car at the time of the search. An evidentiary basis for the search was also lacking in this case. Whereas Belton and Thornton were arrested for drug offenses, Gant was arrested for driving with a suspended license—an offense for which police could not expect to find evidence in the passenger compartment of Gant’s car. Cf. Knowles, 525 U. S., at 118. Because police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable. IV The State does not seriously disagree with the Arizona Supreme Court’s conclusion that Gant could not have accessed his vehicle at the time of the search, but it nevertheless asks us to uphold the search of his vehicle under the broad reading of Belton discussed above. The State argues that Belton searches are reasonable regardless of the possibility of access in a given case because that expansive rule correctly balances law enforcement interests, including the interest in a bright-line rule, with an arrestee’s limited privacy interest in his vehicle. For several reasons, we reject the State’s argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, see New York v. Class, 475 U. S. 106, 112–113 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles, 525 U. S., at 117. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.[Footnote 5] At the same time as it undervalues these privacy concerns, the State exaggerates the clarity that its reading of Belton provides. Courts that have read Belton expansively are at odds regarding how close in time to the arrest and how proximate to the arrestee’s vehicle an officer’s first contact with the arrestee must be to bring the encounter within Belton’s purview[Footnote 6] and whether a search is reasonable when it commences or continues after the arrestee has been removed from the scene.[Footnote 7] The rule has thus generated a great deal of uncertainty, particularly for a rule touted as providing a “bright line.” See 3 LaFave, §7.1(c), at 514–524. Contrary to the State’s suggestion, a broad reading of Belton is also unnecessary to protect law enforcement safety and evidentiary interests. Under our view, Belton and Thornton permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand. For instance, Michigan v. Long, 463 U. S. 1032 (1983), permits an officer to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is “dangerous” and might access the vehicle to “gain immediate control of weapons.” Id., at 1049 (citing Terry v. Ohio, 392 U. S. 1, 21 (1968)). If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U. S. 798, 820–821 (1982), authorizes a search of any area of the vehicle in which the evidence might be found. Unlike the searches permitted by Justice Scalia’s opinion concurring in the judgment in Thornton, which we conclude today are reasonable for purposes of the Fourth Amendment, Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader. Finally, there may be still other circumstances in which safety or evidentiary interests would justify a search. Cf. Maryland v. Buie, 494 U. S. 325, 334 (1990) (holding that, incident to arrest, an officer may conduct a limited protective sweep of those areas of a house in which he reasonably suspects a dangerous person may be hiding). These exceptions together ensure that officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle’s recent occupant justify a search. Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis. For these reasons, we are unpersuaded by the State’s arguments that a broad reading of Belton would meaningfully further law enforcement interests and justify a substantial intrusion on individuals’ privacy.[Footnote 8] V Our dissenting colleagues argue that the doctrine of stare decisis requires adherence to a broad reading of Belton even though the justifications for searching a vehicle incident to arrest are in most cases absent.[Footnote 9] The doctrine of stare decisis is of course “essential to the respect accorded to the judgments of the Court and to the stability of the law,” but it does not compel us to follow a past decision when its rationale no longer withstands “careful analysis.” Lawrence v. Texas, 539 U. S. 558, 577 (2003). We have never relied on stare decisis to justify the continuance of an unconstitutional police practice. And we would be particularly loath to uphold an unconstitutional result in a case that is so easily distinguished from the decisions that arguably compel it. The safety and evidentiary interests that supported the search in Belton simply are not present in this case. Indeed, it is hard to imagine two cases that are factually more distinct, as Belton involved one officer confronted by four unsecured arrestees suspected of committing a drug offense and this case involves several officers confronted with a securely detained arrestee apprehended for driving with a suspended license. This case is also distinguishable from Thornton, in which the petitioner was arrested for a drug offense. It is thus unsurprising that Members of this Court who concurred in the judgments in Belton and Thornton also concur in the decision in this case.[Footnote 10] We do not agree with the contention in Justice Alito’s dissent (hereinafter dissent) that consideration of police reliance interests requires a different result. Although it appears that the State’s reading of Belton has been widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years,[Footnote 11] many of these searches were not justified by the reasons underlying the Chimel exception. Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result. The fact that the law enforcement community may view the State’s version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement “entitlement” to its persistence. Cf. Mincey v. Arizona, 437 U. S. 385, 393 (1978) (“[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment”). The dissent’s reference in this regard to the reliance interests cited in Dickerson v. United States, 530 U. S. 428 (2000), is misplaced. See post, at 5. In observing that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture,” 530 U. S., at 443, the Court was referring not to police reliance on a rule requiring them to provide warnings but to the broader societal reliance on that individual right. The dissent also ignores the checkered history of the search-incident-to-arrest exception. Police authority to search the place in which a lawful arrest is made was broadly asserted in Marron v. United States, 275 U. S. 192 (1927), and limited a few years later in Go-Bart Importing Co. v. United States, 282 U. S. 344 (1931), and United States v. Lefkowitz, 285 U. S. 452 (1932). The limiting views expressed in Go-Bart and Lefokwitz were in turn abandoned in Harris v. United States, 331 U. S. 145 (1947), which upheld a search of a four-room apartment incident to the occupant’s arrest. Only a year later the Court in Trupiano v. United States, 334 U. S. 699, 708 (1948), retreated from that holding, noting that the search-incident-to-arrest exception is “a strictly limited” one that must be justified by “something more in the way of necessity than merely a lawful arrest.” And just two years after that, in United States v. Rabinowitz, 339 U. S. 56 (1950), the Court again reversed course and upheld the search of an entire apartment. Finally, our opinion in Chimel overruled Rabinowitz and what remained of Harris and established the present boundaries of the search-incident-to-arrest exception. Notably, none of the dissenters in Chimel or the cases that preceded it argued that law enforcement reliance interests outweighed the interest in protecting individual constitutional rights so as to warrant fidelity to an unjustifiable rule. The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely “within ‘the area into which an arrestee might reach,’ ” 453 U. S., at 460, and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis does not require us to approve routine constitutional violations. VI Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed. It is so ordered. Footnote 1 The officer was unable to handcuff the occupants because he had only one set of handcuffs. See Brief for Petitioner in New York v. Belton, O. T. 1980, No. 80–328, p. 3 (hereinafter Brief in No. 80–328). Footnote 2 Compare United States v. Green, 324 F. 3d 375, 379 (CA5 2003) (holding that Belton did not authorize a search of an arrestee’s vehicle when he was handcuffed and lying facedown on the ground surrounded by four police officers 6-to-10 feet from the vehicle), United States v. Edwards, 242 F. 3d 928, 938 (CA10 2001) (finding unauthorized a vehicle search conducted while the arrestee was handcuffed in the back of a patrol car), United States v. Vasey, 834 F. 2d 782, 787 (CA9 1987) (finding unauthorized a vehicle search conducted 30-to-45 minutes after an arrest and after the arrestee had been handcuffed and secured in the back of a police car), with United States v. Hrasky, 453 F. 3d 1099, 1102 (CA8 2006) (upholding a search conducted an hour after the arrestee was apprehended and after he had been handcuffed and placed in the back of a patrol car); United States v. Weaver, 433 F. 3d 1104, 1106 (CA9 2006) (upholding a search conducted 10-to-15 minutes after an arrest and after the arrestee had been handcuffed and secured in the back of a patrol car), and United States v. White, 871 F. 2d 41, 44 (CA6 1989) (upholding a search conducted after the arrestee had been handcuffed and secured in the back of a police cruiser). Footnote 3 The practice of searching vehicles incident to arrest after the arrestee has been handcuffed and secured in a patrol car has not abated since we decided Thornton. See, e.g., United States v. Murphy, 221 Fed. Appx. 715, 717 (CA10 2007); Hrasky, 453 F. 3d, at 1100; Weaver, 433 F. 3d, at 1105; United States v. Williams, 170 Fed. Appx. 399, 401 (CA6 2006); United States v. Dorsey, 418 F. 3d 1038, 1041 (CA9 2005); United States v. Osife, 398 F. 3d 1143, 1144 (CA9 2005); United States v. Sumrall, 115 Fed. Appx. 22, 24 (CA10 2004). Footnote 4 Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains. Cf. 3 W. LaFave, Search and Seizure §7.1(c), p. 525 (4th ed. 2004) (hereinafter LaFave) (noting that the availability of protective measures “ensur[es] the nonexistence of circumstances in which the arrestee’s ‘control’ of the car is in doubt”). But in such a case a search incident to arrest is reasonable under the Fourth Amendment. Footnote 5 See Maryland v. Garrison, 480 U. S. 79, 84 (1987); Chimel, 395 U. S., at 760–761; Stanford v. Texas, 379 U. S. 476, 480–484 (1965); Weeks v. United States, 232 U. S. 383, 389–392 (1914); Boyd v. United States, 116 U. S. 616, 624–625 (1886); see also 10 C. Adams, The Works of John Adams 247–248 (1856). Many have observed that a broad reading of Belton gives police limitless discretion to conduct exploratory searches. See 3 LaFave §7.1(c), at 527 (observing that Belton creates the risk “that police will make custodial arrests which they otherwise would not make as a cover for a search which the Fourth Amendment otherwise prohibits”); see also United States v. McLaughlin, 170 F. 3d 889, 894 (CA9 1999) (Trott, J., concurring) (observing that Belton has been applied to condone “purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find”); State v. Pallone, 2001 WI 77, ¶¶87–90, 236 Wis. 2d 162, 203–204, and n. 9, 613 N. W. 2d 568, 588, and n. 9 (2000) (Abrahamson, C. J., dissenting) (same); State v. Pierce, 136 N. J. 184, 211, 642 A. 2d 947, 961 (1994) (same). Footnote 6 Compare United States v. Caseres, 533 F. 3d 1064, 1072 (CA9 2008) (declining to apply Belton when the arrestee was approached by police after he had exited his vehicle and reached his residence), with Rainey v. Commonwealth, 197 S. W. 3d 89, 94–95 (Ky. 2006) (applying Belton when the arrestee was apprehended 50 feet from the vehicle), and Black v. State, 810 N. E. 2d 713, 716 (Ind. 2004) (applying Belton when the arrestee was apprehended inside an auto repair shop and the vehicle was parked outside). Footnote 7 Compare McLaughlin, 170 F. 3d, at 890–891 (upholding a search that commenced five minutes after the arrestee was removed from the scene), United States v. Snook, 88 F. 3d 605, 608 (CA8 1996) (same), and United States v. Doward, 41 F. 3d 789, 793 (CA1 1994) (upholding a search that continued after the arrestee was removed from the scene), with United States v. Lugo, 978 F. 2d 631, 634 (CA10 1992) (holding invalid a search that commenced after the arrestee was removed from the scene), and State v. Badgett, 200 Conn. 412, 427–428, 512 A. 2d 160, 169 (1986) (holding invalid a search that continued after the arrestee was removed from the scene). Footnote 8 At least eight States have reached the same conclusion. Vermont, New Jersey, New Mexico, Nevada, Pennsylvania, New York, Oregon, and Wyoming have declined to follow a broad reading of Belton under their state constitutions. See State v. Bauder, 181 Vt. 392, 401, 924 A. 2d 38, 46–47 (2007); State v. Eckel, 185 N. J. 523, 540, 888 A. 2d 1266, 1277 (2006); Camacho v. State, 119 Nev. 395, 399–400, 75 P. 3d 370, 373–374 (2003); Vasquez v. State, 990 P. 2d 476, 488–489 (Wyo. 1999); State v. Arredondo, 1997–NMCA–081, 123 N. M. 628, 636 (Ct. App.), overruled on other grounds by State v. Steinzig, 1999–NMCA–107, 127 N. M. 752 (Ct. App.); Commonwealth v. White, 543 Pa. 45, 57, 669 A. 2d 896, 902 (1995); People v. Blasich, 73 N. Y. 2d 673, 678, 541 N. E. 2d 40, 43 (1989); State v. Fesler, 68 Ore. App. 609, 612, 685 P. 2d 1014, 1016–1017 (1984). And a Massachusetts statute provides that a search incident to arrest may be made only for the purposes of seizing weapons or evidence of the offense of arrest. See Commonwealth v. Toole, 389 Mass. 159, 161–162, 448 N. E. 2d 1264, 1266–1267 (1983) (citing Mass. Gen. Laws, ch. 276, §1 (West 2007)). Footnote 9 Justice Alito’s dissenting opinion also accuses us of “overrul[ing]” Belton and Thornton v. United States, 541 U. S. 615 (2004), “even though respondent Gant has not asked us to do so.” Post, at 1. Contrary to that claim, the narrow reading of Belton we adopt today is precisely the result Gant has urged. That Justice Alito has chosen to describe this decision as overruling our earlier cases does not change the fact that the resulting rule of law is the one advocated by respondent. Footnote 10 Justice Stevens concurred in the judgment in Belton, 453 U. S., at 463, for the reasons stated in his dissenting opinion in Robbins v. California, 453 U. S. 420, 444 (1981), Justice Thomas joined the Court’s opinion in Thornton, 541 U. S. 615, and Justice Scalia and Justice Ginsburg concurred in the judgment in that case, id., at 625. Footnote 11 Because a broad reading of Belton has been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding. |
555.US.323 | In Terry v. Ohio, 392 U. S. 1, this Court held that a “stop and frisk” may be conducted without violating the Fourth Amendment’s ban on unreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a requirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk (patdown for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U. S. 249, 255. While patrolling near a Tucson neighborhood associated with the Crips gang, police officers serving on Arizona’s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to respondent Johnson, the back-seat passenger, whose behavior and clothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out of the hearing of the front-seat passenger, about his gang affiliation. Because she suspected that he was armed, she patted him down for safety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo handcuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor. The trial court denied his motion to suppress the evidence, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. Johnson was convicted. The Arizona Court of Appeals reversed. While recognizing that Johnson was lawfully seized, the court found that, prior to the frisk, the detention had evolved into a consensual conversation about his gang affiliation. Trevizo, the court therefore concluded, had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. The Arizona Supreme Court denied review. Held: Officer Trevizo’s patdown of Johnson did not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. Pp. 5–9. (a) Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must be positioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. 392 U. S., at 24. Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a patdown is constitutional. Id., at 23–24, 27, 30–31. Traffic stops, which “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U. S. 420, 439, n. 29, are “especially fraught with danger to police officers,” Michigan v. Long, 463 U. S. 1032, 1047, who may minimize the risk of harm by exercising “ ‘unquestioned command of the situation,’ ” Maryland v. Wilson, 519 U. S. 408, 414. Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U. S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110–111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. 434 U. S., at 112. Wilson, 519 U. S., at 413, held that the Mimms rule applies to passengers as well as drivers, based on “the same weighty interest in officer safety.” Brendlin, 551 U. S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U. S., at 414. And as “the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, “the additional intrusion on the passenger is minimal,” id., at 415. Pp. 5–7. (b) The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger, but concluded that once Officer Trevizo began questioning him on a matter unrelated to the traffic stop, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. The court portrayed the interrogation as consensual, and, Johnson emphasizes, Trevizo testified that Johnson could have refused to exit the vehicle and to submit to the patdown. But Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration. See Muehler v. Mena, 544 U. S. 93, 100–101. A reasonable passenger would understand that during the time a car is lawfully stopped, he or she is not free to terminate the encounter with the police and move about at will. Nothing occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Brendlin, 551 U. S., at 257. Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her. Pp. 7–9. 217 Ariz. 58, 170 P. 3d 667, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court. | This case concerns the authority of police officers to “stop and frisk” a passenger in a motor vehicle temporarily seized upon police detection of a traffic infraction. In a pathmarking decision, Terry v. Ohio, 392 U. S. 1 (1968), the Court considered whether an investigatory stop (temporary detention) and frisk (patdown for weapons) may be conducted without violating the Fourth Amendment’s ban on unreasonable searches and seizures. The Court upheld “stop and frisk” as constitutionally permissible if two conditions are met. First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, we recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U. S. 249, 255 (2007). Accordingly, we hold that, in a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous. I On April 19, 2002, Officer Maria Trevizo and Detectives Machado and Gittings, all members of Arizona’s gang task force, were on patrol in Tucson near a neighborhood associated with the Crips gang. At approximately 9 p.m., the officers pulled over an automobile after a license plate check revealed that the vehicle’s registration had been suspended for an insurance-related violation. Under Arizona law, the violation for which the vehicle was stopped constituted a civil infraction warranting a citation. At the time of the stop, the vehicle had three occupants—the driver, a front-seat passenger, and a passenger in the back seat, Lemon Montrea Johnson, the respondent here. In making the stop the officers had no reason to suspect anyone in the vehicle of criminal activity. See App. 29–30. The three officers left their patrol car and approached the stopped vehicle. Machado instructed all of the occupants to keep their hands visible. Id., at 14. He asked whether there were any weapons in the vehicle; all responded no. Id., at 15. Machado then directed the driver to get out of the car. Gittings dealt with the front-seat passenger, who stayed in the vehicle throughout the stop. See id., at 31. While Machado was getting the driver’s license and information about the vehicle’s registra- tion and insurance, see id., at 42–43, Trevizo attended to Johnson. Trevizo noticed that, as the police approached, Johnson looked back and kept his eyes on the officers. Id., at 12. When she drew near, she observed that Johnson was wearing clothing, including a blue bandana, that she considered consistent with Crips membership. Id., at 17. She also noticed a scanner in Johnson’s jacket pocket, which “struck [her] as highly unusual and cause [for] concern,” because “most people” would not carry around a scanner that way “unless they’re going to be involved in some kind of criminal activity or [are] going to try to evade the police by listening to the scanner.” Id., at 16. In response to Trevizo’s questions, Johnson provided his name and date of birth but said he had no identification with him. He volunteered that he was from Eloy, Arizona, a place Trevizo knew was home to a Crips gang. Johnson further told Trevizo that he had served time in prison for burglary and had been out for about a year. 217 Ariz. 58, 60, 170 P. 3d 667, 669 (App. 2007). Trevizo wanted to question Johnson away from the front-seat passenger to gain “intelligence about the gang [Johnson] might be in.” App. 19. For that reason, she asked him to get out of the car. Ibid. Johnson complied. Based on Trevizo’s observations and Johnson’s answers to her questions while he was still seated in the car, Trevizo suspected that “he might have a weapon on him.” Id., at 20. When he exited the vehicle, she therefore “patted him down for officer safety.” Ibid. During the patdown, Trevizo felt the butt of a gun near Johnson’s waist. 217 Ariz., at 60, 170 P. 3d, at 669. At that point Johnson began to struggle, and Trevizo placed him in handcuffs. Ibid. Johnson was charged in state court with, inter alia, possession of a weapon by a prohibited possessor. He moved to suppress the evidence as the fruit of an unlawful search. The trial court denied the motion, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. See App. 74–78. A jury convicted Johnson of the gun-possession charge. See 217 Ariz., at 60–61, 170 P. 3d, at 669–670. A divided panel of the Arizona Court of Appeals reversed Johnson’s conviction. Id., at 59, 170 P. 3d, at 668. Recognizing that “Johnson was [lawfully] seized when the officers stopped the car,” id., at 62, 170 P. 3d, at 671, the court nevertheless concluded that prior to the frisk the detention had “evolved into a separate, consensual encounter stemming from an unrelated investigation by Trevizo of Johnson’s possible gang affiliation,” id., at 64, 170 P. 3d, at 673. Absent “reason to believe Johnson was involved in criminal activity,” the Arizona appeals court held, Trevizo “had no right to pat him down for weapons, even if she had reason to suspect he was armed and dangerous.” Ibid. Judge Espinosa dissented. He found it “highly unrealistic to conclude that merely because [Trevizo] was courteous and Johnson cooperative, the ongoing and virtually simultaneous chain of events [had] somehow ‘evolved into a consensual encounter’ in the few short moments involved.” Id., at 66, 170 P. 3d, at 675. Throughout the episode, he stressed, Johnson remained “seized as part of [a] valid traffic stop.” Ibid. Further, he maintained, Trevizo “had a reasonable basis to consider [Johnson] dangerous,” id., at 67, 170 P. 3d, at 676, and could therefore ensure her own safety and that of others at the scene by patting down Johnson for weapons. The Arizona Supreme Court denied review. No. CR–07–0290–PR, 2007 Ariz. LEXIS 154 (Nov. 29, 2007). We granted certiorari, 554 U. S. ___ (2008), and now reverse the judgment of the Arizona Court of Appeals. II A We begin our consideration of the constitutionality of Officer Trevizo’s patdown of Johnson by looking back to the Court’s leading decision in Terry v. Ohio, 392 U. S. 1 (1968). Terry involved a stop for interrogation of men whose conduct had attracted the attention of a patrolling police officer. The officer’s observation led him reasonably to suspect that the men were casing a jewelry shop in preparation for a robbery. He conducted a patdown, which disclosed weapons concealed in the men’s overcoat pockets. This Court upheld the lower courts’ determinations that the interrogation was warranted and the patdown, permissible. See id., at 8. Terry established the legitimacy of an investigatory stop “in situations where [the police] may lack probable cause for an arrest.” Id., at 24. When the stop is justified by suspicion (reasonably grounded, but short of probable cause) that criminal activity is afoot, the Court explained, the police officer must be positioned to act instantly on reasonable suspicion that the persons temporarily detained are armed and dangerous. Ibid. Recognizing that a limited search of outer clothing for weapons serves to protect both the officer and the public, the Court held the patdown reasonable under the Fourth Amendment. Id., at 23–24, 27, 30–31. “[M]ost traffic stops,” this Court has observed, “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry.” Berkemer v. McCarty, 468 U. S. 420, 439, n. 29 (1984). Furthermore, the Court has recognized that traffic stops are “especially fraught with danger to police officers.” Michigan v. Long, 463 U. S. 1032, 1047 (1983). “ ‘The risk of harm to both the police and the occupants [of a stopped vehicle] is minimized,’ ” we have stressed, “ ‘if the officers routinely exercise unquestioned command of the situation.’ ” Maryland v. Wilson, 519 U. S. 408, 414 (1997) (quoting Michigan v. Summers, 452 U. S. 692, 702–703 (1981)); see Brendlin, 551 U. S., at 258. Three decisions cumulatively portray Terry’s application in a traffic-stop setting: Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per curiam); Maryland v. Wilson, 519 U. S. 408 (1997); and Brendlin v. California, 551 U. S. 249 (2007). In Mimms, the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” 434 U. S., at 111, n. 6. The government’s “legitimate and weighty” interest in officer safety, the Court said, outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle. Id., at 110–111. Citing Terry as controlling, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver “might be armed and presently dangerous.” 434 U. S., at 112. Wilson held that the Mimms rule applied to passengers as well as to drivers. Specifically, the Court instructed that “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” 519 U. S., at 415. “[T]he same weighty interest in officer safety,” the Court observed, “is present regardless of whether the occupant of the stopped car is a driver or passenger.” Id., at 413. It is true, the Court acknowledged, that in a lawful traffic stop, “[t]here is probable cause to believe that the driver has committed a minor vehicular offense,” but “there is no such reason to stop or detain the passengers.” Ibid. On the other hand, the Court emphasized, the risk of a violent encounter in a traffic-stop setting “stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.” Id., at 414. “[T]he motivation of a passenger to employ violence to prevent apprehension of such a crime,” the Court stated, “is every bit as great as that of the driver.” Ibid. Moreover, the Court noted, “as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, so “the additional intrusion on the passenger is minimal,” id., at 415. Completing the picture, Brendlin held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” 551 U. S., at 263. A passenger therefore has standing to challenge a stop’s constitutionality. Id., at 256–259. After Wilson, but before Brendlin, the Court had stated, in dictum, that officers who conduct “routine traffic stop[s]” may “perform a ‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.” Knowles v. Iowa, 525 U. S. 113, 117–118 (1998). That forecast, we now confirm, accurately captures the combined thrust of the Court’s decisions in Mimms, Wilson, and Brendlin. B The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger. See 217 Ariz., at 64, 170 P. 3d, at 673. But, that court concluded, once Officer Trevizo undertook to question Johnson on a matter unrelated to the traffic stop, i.e., Johnson’s gang affiliation, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. See id., at 65, 170 P. 3d, at 674. In support of the Arizona court’s portrayal of Trevizo’s interrogation of Johnson as “consensual,” Johnson emphasizes Trevizo’s testimony at the suppression hearing. Responding to the prosecutor’s questions, Trevizo affirmed her belief that Johnson could have “refused to get out of the car” and “to turn around for the pat down.” App. 41. It is not clear why the prosecutor, in opposing the suppression motion, sought to portray the episode as consensual. Cf. Florida v. Bostick, 501 U. S. 429 (1991) (holding that police officers’ search of a bus passenger’s luggage can be based on consent). In any event, Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. See App. 45. And during cross-examination, Trevizo did not disagree when defense counsel asked “in fact you weren’t seeking [Johnson’s] permission … ?” Id., at 36. As the dissenting judge observed, “consensual” is an “unrealistic” characterization of the Trevizo-Johnson interaction. “[T]he encounter … took place within minutes of the stop”; the patdown followed “within mere moments” of Johnson’s exit from the vehicle; beyond genuine debate, the point at which Johnson could have felt free to leave had not yet occurred. See 217 Ariz., at 66, 170 P. 3d, at 675.[Footnote 1] A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. See Brendlin, 551 U. S., at 258. An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. See Muehler v. Mena, 544 U. S. 93, 100–101 (2005). In sum, as stated in Brendlin, a traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will. See 551 U. S., at 257. Nothing occurred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” Ibid. Officer Trevizo surely was not constitutionally required to give Johnson an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.[Footnote 2] * * * For the reasons stated, the judgment of the Arizona Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 The Court of Appeals majority did not assert that Johnson reasonably could have felt free to leave. Instead, the court said “a reasonable person in Johnson’s position would have felt free to remain in the vehicle.” 217 Ariz. 58, 64, 170 P. 3d 667, 673 (2007). That position, however, appears at odds with our decision in Maryland v. Wilson, 519 U. S. 408 (1997). See supra, at 6–7. Footnote 2 The Arizona Court of Appeals assumed, “without deciding, that Trevizo had reasonable suspicion that Johnson was armed and dangerous.” 217 Ariz., at 64, 170 P. 3d, at 673. We do not foreclose the appeals court’s consideration of that issue on remand. |
556.US.624 | After consulting with petitioners, respondents Wayne Carlisle, James Bushman, and Gary Strassel used a shelter to minimize taxes from the sale of their company. Limited liability corporations created by Carlisle, Bushman, and Strassel (also respondents) entered into investment-management agreements with Bricolage Capital, LLC, that provided for arbitration of disputes. After the Internal Revenue Service found the tax shelter illegal, respondents filed a diversity suit against petitioners. Claiming that equitable estoppel required respondents to arbitrate their claims per the agreements with Bricolage, petitioners invoked §3 of the Federal Arbitration Act (FAA), 9 U. S. C. §3, which entitles litigants to stay an action that is “referable to arbitration under an agreement in writing.” Section 16(a)(1)(A) of the FAA allows an appeal from “an order … refusing a stay of any action under section 3.” The District Court denied petitioners’ stay motions, and the Sixth Circuit dismissed their interlocutory appeal for want of jurisdiction. Held: 1. The Sixth Circuit had jurisdiction to review the denial of petitioners’ requests for a §3 stay. By its clear and unambiguous terms, §16(a)(1)(A) entitles any litigant asking for a §3 stay to an immediate appeal from that motion’s denial—regardless of whether the litigant is in fact eligible for a stay. Jurisdiction over the appeal “must be determined by focusing upon the category of order appealed from, rather than upon the strength of the grounds for reversing the order,” Behrens v. Pelletier, 516 U. S. 299, 311. The statute unambiguously makes the underlying merits irrelevant, for even a request’s utter frivolousness cannot turn a denial into something other than “an order … refusing a stay of any action under section 3,” §16(a)(1)(A). Pp. 3–5. 2. A litigant who was not a party to the arbitration agreement may invoke §3 if the relevant state contract law allows him to enforce the agreement. Neither FAA §2—the substantive mandate making written arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of a contract”—nor §3 purports to alter state contract law regarding the scope of agreements. Accordingly, whenever the relevant state law would make a contract to arbitrate a particular dispute enforceable by a nonsignatory, that signatory is entitled to request and obtain a stay under §3 because that dispute is “referable to arbitration under an agreement in writing.” Because traditional state-law principles allow enforcement of contracts by (or against) nonparties through, e.g., assumption or third-party beneficiary theories, the Sixth Circuit erred in holding that §3 relief is categorically not available to nonsignatories. Questions as to the nature and scope of the applicable state contract law in the present case have not been briefed here and can be addressed on remand. Pp. 5–8 521 F. 3d 597, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Kennedy, Thomas, Ginsburg, Breyer, and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Roberts, C. J., and Stevens, J., joined. | Section 3 of the Federal Arbitration Act (FAA) entitles litigants in federal court to a stay of any action that is “referable to arbitration under an agreement in writing.” 9 U. S. C. §3. Section 16(a)(1)(A), in turn, allows an appeal from “an order … refusing a stay of any action under section 3.” We address in this case whether appellate courts have jurisdiction under §16(a) to review denials of stays requested by litigants who were not parties to the relevant arbitration agreement, and whether §3 can ever mandate a stay in such circumstances. I Respondents Wayne Carlisle, James Bushman, and Gary Strassel set out to minimize their taxes from the 1999 sale of their construction-equipment company. Arthur Andersen LLP, a firm that had long served as their company’s accountant, auditor, and tax adviser, introduced them to Bricolage Capital, LLC, which in turn referred them for legal advice to Curtis, Mallet-Prevost, Colt & Mosle, LLP. According to respondents, these advisers recommended a “leveraged option strategy” tax shelter designed to create illusory losses through foreign-currency-exchange options. As a part of the scheme, respondents invested in various stock warrants through newly created limited liability corporations (LLCs), which are also respondents in this case. The respondent LLCs entered into investment-management agreements with Bricolage, specifying that “[a]ny controversy arising out of or relating to this Agreement or the br[ea]ch thereof, shall be settled by arbitration conducted in New York, New York, in accordance with the Commercial Arbitration Rules of the American Arbitration Association.” App. 80–81, 99–100, 118–119. As with all that seems too good to be true, a controversy did indeed arise. The warrants respondents purchased turned out to be almost entirely worthless, and the Internal Revenue Service (IRS) determined in August 2000 that the “leveraged option strategy” scheme was an illegal tax shelter. The IRS initially offered conditional amnesty to taxpayers who had used such arrangements, but petitioners failed to inform respondents of that option. Respondents ultimately entered into a settlement program in which they paid the IRS all taxes, penalties, and interest owed. Respondents filed this diversity suit in the Eastern District of Kentucky against Bricolage, Arthur Andersen and others[Footnote 1] (all except Bricolage and its employees hereinafter referred to as petitioners), alleging fraud, civil conspiracy, malpractice, breach of fiduciary duty, and negligence. Petitioners moved to stay the action, invoking §3 of the FAA and arguing that the principles of equitable estoppel demanded that respondents arbitrate their claims under their investment agreements with Bricolage.[Footnote 2] The District Court denied the motions. Petitioners filed an interlocutory appeal, which the Court of Appeals for the Sixth Circuit dismissed for want of jurisdiction. Carlisle v. Curtis, Mallet-Prevost, Colt & Mosle, LLP, 521 F. 3d 597, 602 (2008). We granted certiorari, 555 U. S. ___ (2008). II Ordinarily, courts of appeals have jurisdiction only over “final decisions” of district courts. 28 U. S. C. §1291. The FAA, however, makes an exception to that finality requirement, providing that “an appeal may be taken from … an order … refusing a stay of any action under section 3 of this title.” 9 U. S. C. §16(a)(1)(A). By that provision’s clear and unambiguous terms, any litigant who asks for a stay under §3 is entitled to an immediate appeal from denial of that motion—regardless of whether the litigant is in fact eligible for a stay. Because each petitioner in this case explicitly asked for a stay pursuant to §3, App. 52, 54, 63, 65, the Sixth Circuit had jurisdiction to review the District Court’s denial. The courts that have declined jurisdiction over §3 appeals of the sort at issue here have done so by conflating the jurisdictional question with the merits of the appeal. They reason that because stay motions premised on equitable estoppel seek to expand (rather than simply vindicate) agreements, they are not cognizable under §§3 and 4, and therefore the relevant motions are not actually “under” those provisions. See, in addition to the opinion below, 521 F. 3d, at 602, DSMC Inc. v. Convera Corp., 349 F. 3d 679, 682–685 (CADC 2003); In re Universal Serv. Fund Tel. Billing Practice Litigation v. Sprint Communications Co., 428 F. 3d 940, 944–945 (CA10 2005). The dissent makes this step explicit, by reading the appellate jurisdictional provision of §16 as “calling for a look-through” to the substantive provisions of §3. Post, at 2. Jurisdiction over the appeal, however, “must be determined by focusing upon the category of order appealed from, rather than upon the strength of the grounds for reversing the order.” Behrens v. Pelletier, 516 U. S. 299, 311 (1996).[Footnote 3] The jurisdictional statute here unambiguously makes the underlying merits irrelevant, for even utter frivolousness of the underlying request for a §3 stay cannot turn a denial into something other than “an order … refusing a stay of any action under section 3.” 9 U. S. C. §16(a). Respondents argue that this reading of §16(a) will produce a long parade of horribles, enmeshing courts in fact-intensive jurisdictional inquiries and permitting frivolous interlocutory appeals. Even if these objections could surmount the plain language of the statute, we would not be persuaded. Determination of whether §3 was invoked in a denied stay request is immeasurably more simple and less factbound than the threshold determination respondents would replace it with: whether the litigant was a party to the contract (an especially difficult question when the written agreement is not signed). It is more appropriate to grapple with that merits question after the court has accepted jurisdiction over the case. Second, there are ways of minimizing the impact of abusive appeals. Appellate courts can streamline the disposition of meritless claims and even authorize the district court’s retention of jurisdiction when an appeal is certified as frivolous. See Behrens, supra, at 310–311. And, of course, those inclined to file dilatory appeals must be given pause by courts’ authority to “award just damages and single or double costs to the appellee” whenever an appeal is “frivolous.” Fed. Rule App. Proc. 38. III Even if the Court of Appeals were correct that it had no jurisdiction over meritless appeals, its ground for finding this appeal meritless was in error. We take the trouble to address that alternative ground, since if the Court of Appeals is correct on the merits point we will have awarded petitioners a remarkably hollow victory. We consider, therefore, the Sixth Circuit’s underlying determination that those who are not parties to a written arbitration agreement are categorically ineligible for relief. Section 2—the FAA’s substantive mandate—makes written arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of a contract.” That provision creates substantive federal law regarding the enforceability of arbitration agreements, requiring courts “to place such agreements upon the same footing as other contracts.” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 478 (1989) (internal quotation marks omitted). Section 3, in turn, allows litigants already in federal court to invoke agreements made enforceable by §2. That provision requires the court, “on application of one of the parties,”[Footnote 4] to stay the action if it involves an “issue referable to arbitration under an agreement in writing.” 9 U. S. C. §3. Neither provision purports to alter background principles of state contract law regarding the scope of agreements (including the question of who is bound by them). Indeed §2 explicitly retains an external body of law governing revocation (such grounds “as exist at law or in equity”).[Footnote 5] And we think §3 adds no substantive restriction to §2’s enforceability mandate. “[S]tate law,” therefore, is applicable to determine which contracts are binding under §2 and enforceable under §3 “if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.” Perry v. Thomas, 482 U. S. 483, 493, n. 9 (1987). See also First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944 (1995). Because “traditional principles” of state law allow a contract to be enforced by or against nonparties to the contract through “assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel,” 21 R. Lord, Williston on Contracts §57:19, p. 183 (4th ed. 2001), the Sixth Circuit’s holding that nonparties to a contract are categorically barred from §3 relief was error. Respondents argue that, as a matter of federal law, claims to arbitration by nonparties are not “referable to arbitration under an agreement in writing,” 9 U. S. C. §3 (emphasis added), because they “seek to bind a signatory to an arbitral obligation beyond that signatory’s strictly contractual obligation to arbitrate,” Brief for Respondents 26. Perhaps that would be true if §3 mandated stays only for disputes between parties to a written arbitration agreement. But that is not what the statute says. It says that stays are required if the claims are “referable to arbitration under an agreement in writing.” If a written arbitration provision is made enforceable against (or for the benefit of) a third party under state contract law, the statute’s terms are fulfilled.[Footnote 6] Respondents’ final fallback consists of reliance upon dicta in our opinions, such as the statement that “arbitration … is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration,” First Options, supra, at 943, and the statement that “[i]t goes without saying that a contract cannot bind a nonparty,” EEOC v. Waffle House, Inc., 534 U. S. 279, 294 (2002). The former statement pertained to issues parties agreed to arbitrate, and the latter referred to an entity (the Equal Employment Opportunity Commission) which obviously had no third-party obligations under the contract in question. Neither these nor any of our other cases have presented for decision the question whether arbitration agreements that are otherwise enforceable by (or against) third parties trigger protection under the FAA. Respondents may be correct in saying that courts’ application of equitable estoppel to impose an arbitration agreement upon strangers to the contract has been “somewhat loose.” Brief for Respondents 27, n. 15. But we need not decide here whether the relevant state contract law recognizes equitable estoppel as a ground for enforcing contracts against third parties, what standard it would apply, and whether petitioners would be entitled to relief under it. These questions have not been briefed before us and can be addressed on remand. It suffices to say that no federal law bars the State from allowing petitioners to enforce the arbitration agreement against respondents and that §3 would require a stay in this case if it did. * * * We hold that the Sixth Circuit had jurisdiction to review the denial of petitioners’ request for a §3 stay and that a litigant who was not a party to the relevant arbitration agreement may invoke §3 if the relevant state contract law allows him to enforce the agreement. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Also named in the suit were two employees of Bricolage (Andrew Beer and Samyak Veera); Curtis, Mallet-Prevost, Colt & Mosle, LLP; William Bricker (the lawyer respondents worked with at the law firm); Prism Connectivity Ventures, LLC (the entity from whom the worthless warrants were purchased); Integrated Capital Associates, Inc. (a prior owner of the worthless warrants who had also been a client of the law firm); and Intercontinental Pacific Group, Inc. (a firm with the same principals as Integrated Capital Associates). Footnote 2 Bricolage also moved for a stay under §3, but it filed for bankruptcy while its motion was pending, and the District Court denied the motion as moot. Footnote 3 Federal courts lack subject-matter jurisdiction when an asserted federal claim is “ ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.’ ” Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998) (quoting Oneida Indian Nation of N. Y. v. County of Oneida, 414 U. S. 661, 666 (1974)). Respondents have not relied upon this line of cases as an alternative rationale for rejection of jurisdiction, and there are good reasons for treating subject-matter jurisdiction differently, in that respect, from the appellate jurisdiction here conferred. A frivolous federal claim, if sufficient to confer jurisdiction, would give the court power to hear related state-law claims, see 28 U. S. C. §1367; no such collateral consequences are at issue here. And while an insubstantial federal claim can be said not to “aris[e] under the Constitution, laws, or treaties of the United States,” §1331, insubstantiality of the merits can hardly convert a judge’s “order … refusing a stay” into an “order … refusing” something else. But we need not resolve this question today. Footnote 4 Respondents do not contest that the term “parties” in §3 refers to parties to the litigation rather than parties to the contract. The adjacent provision, which explicitly refers to the “subject matter of a suit arising out of the controversy between the parties,” 9 U. S. C. §4, unambiguously refers to adversaries in the action, and “identical words and phrases within the same statute should normally be given the same meaning,” Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007). Even without benefit of that canon, we would not be disposed to believe that the statute allows a party to the contract who is not a party to the litigation to apply for a stay of the proceeding. Footnote 5 We have said many times that federal law requires that “questions of arbitrability … be addressed with a healthy regard for the federal policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24–25 (1983). Whatever the meaning of this vague prescription, it cannot possibly require the disregard of state law permitting arbitration by or against nonparties to the written arbitration agreement. Footnote 6 We thus reject the dissent’s contention that contract law’s longstanding endorsement of third-party enforcement is “a weak premise for inferring an intent to allow third parties to obtain a §3 stay,” post, at 2. It seems to us not weak at all, in light of the terms of the statute. There is no doubt that, where state law permits it, a third-party claim is “referable to arbitration under an agreement in writing.” It is not our role to conform an unambiguous statute to what we think “Congress probably intended,” post, at 2. |
556.US.662 | Following the September 11, 2001, terrorist attacks, respondent Iqbal, a Pakistani Muslim, was arrested on criminal charges and detained by federal officials under restrictive conditions. Iqbal filed a Bivens action against numerous federal officials, including petitioner Ashcroft, the former Attorney General, and petitioner Mueller, the Director of the Federal Bureau of Investigation (FBI). See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388. The complaint alleged, inter alia, that petitioners designated Iqbal a person “of high interest” on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments; that the FBI, under Mueller’s direction, arrested and detained thousands of Arab Muslim men as part of its September-11th investigation; that petitioners knew of, condoned, and willfully and maliciously agreed to subject Iqbal to harsh conditions of confinement as a matter of policy, solely on account of the prohibited factors and for no legitimate penological interest; and that Ashcroft was the policy’s “principal architect” and Mueller was “instrumental” in its adoption and execution. After the District Court denied petitioners’ motion to dismiss on qualified-immunity grounds, they invoked the collateral order doctrine to file an interlocutory appeal in the Second Circuit. Affirming, that court assumed without discussion that it had jurisdiction and focused on the standard set forth in Bell Atlantic Corp. v. Twombly, 550 U. S. 544, for evaluating whether a complaint is sufficient to survive a motion to dismiss. Concluding that Twombly’s “flexible plausibility standard” obliging a pleader to amplify a claim with factual allegations where necessary to render it plausible was inapplicable in the context of petitioners’ appeal, the court held that Iqbal’s complaint was adequate to allege petitioners’ personal involvement in discriminatory decisions which, if true, violated clearly established constitutional law. Held: 1. The Second Circuit had subject-matter jurisdiction to affirm the District Court’s order denying petitioners’ motion to dismiss. Pp. 6–10. (a) Denial of a qualified-immunity claim can fall within the narrow class of prejudgment orders reviewable under the collateral-order doctrine so long as the order “turns on an issue of law.” Mitchell v. Forsyth, 472 U. S. 511, 530. The doctrine’s applicability in this context is well established; an order rejecting qualified immunity at the motion-to-dismiss stage is a “final decision” under 28 U. S. C. §1291, which vests courts of appeals with “jurisdiction of appeals from all final decisions of the district courts.” Behrens v. Pelletier, 516 U. S. 299, 307. Pp. 7–8. (b) Under these principles, the Court of Appeals had, and this Court has, jurisdiction over the District Court’s order. Because the order turned on an issue of law and rejected the qualified-immunity defense, it was a final decision “subject to immediate appeal.” Behrens, supra, at 307. Pp. 8–10. 2. Iqbal’s complaint fails to plead sufficient facts to state a claim for purposeful and unlawful discrimination. Pp. 11–23. (a) This Court assumes, without deciding, that Iqbal’s First Amendment claim is actionable in a Bivens action, see Hartman v. Moore, 547 U. S. 250, 254, n. 2. Because vicarious liability is inapplicable to Bivens and §1983 suits, see, e.g., Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691, the plaintiff in a suit such as the present one must plead that each Government-official defendant, through his own individual actions, has violated the Constitution. Purposeful discrimination requires more than “intent as volition or intent as awareness of consequences”; it involves a decisionmaker’s undertaking a course of action “ ‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279. Iqbal must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason, but for the purpose of discriminating on account of race, religion, or national origin. Pp. 11–13. (b) Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” “[D]etailed factual allegations” are not required, Twombly, 550 U. S., at 555, but the Rule does call for sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face,” id., at 570. A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. Two working principles underlie Twombly. First, the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements. Id., at 555. Second, determining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense. Id., at 556. A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Pp. 13–16. (c) Iqbal’s pleadings do not comply with Rule 8 under Twombly. Several of his allegations—that petitioners agreed to subject him to harsh conditions as a matter of policy, solely on account of discriminatory factors and for no legitimate penological interest; that Ashcroft was that policy’s “principal architect”; and that Mueller was “instrumental” in its adoption and execution—are conclusory and not entitled to be assumed true. Moreover, the factual allegations that the FBI, under Mueller, arrested and detained thousands of Arab Muslim men, and that he and Ashcroft approved the detention policy, do not plausibly suggest that petitioners purposefully discriminated on prohibited grounds. Given that the September 11 attacks were perpetrated by Arab Muslims, it is not surprising that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the policy’s purpose was to target neither Arabs nor Muslims. Even if the complaint’s well-pleaded facts gave rise to a plausible inference that Iqbal’s arrest was the result of unconstitutional discrimination, that inference alone would not entitle him to relief: His claims against petitioners rest solely on their ostensible policy of holding detainees categorized as “of high interest,” but the complaint does not contain facts plausibly showing that their policy was based on discriminatory factors. Pp. 16–20. (d) Three of Iqbal’s arguments are rejected. Pp. 20–23. (i) His claim that Twombly should be limited to its antitrust context is not supported by that case or the Federal Rules. Because Twombly interpreted and applied Rule 8, which in turn governs the pleading standard “in all civil actions,” Rule 1, the case applies to antitrust and discrimination suits alike, see 550 U. S., at 555–556, and n. 14. P. 20. (ii) Rule 8’s pleading requirements need not be relaxed based on the Second Circuit’s instruction that the District Court cabin discovery to preserve petitioners’ qualified-immunity defense in anticipation of a summary judgment motion. The question presented by a motion to dismiss for insufficient pleadings does not turn on the controls placed on the discovery process. Twombly, supra, at 559. And because Iqbal’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise. Pp. 20–22. (iii) Rule 9(b)—which requires particularity when pleading “fraud or mistake” but allows “other conditions of a person’s mind [to] be alleged generally”—does not require courts to credit a complaint’s conclusory statements without reference to its factual context. Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade Rule 8’s less rigid, though still operative, strictures. Pp. 22–23. (e) The Second Circuit should decide in the first instance whether to remand to the District Court to allow Iqbal to seek leave to amend his deficient complaint. P. 23. 490 F. 3d 143, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion. | Respondent Javaid Iqbal is a citizen of Pakistan and a Muslim. In the wake of the September 11, 2001, terrorist attacks he was arrested in the United States on criminal charges and detained by federal officials. Respondent claims he was deprived of various constitutional protections while in federal custody. To redress the alleged deprivations, respondent filed a complaint against numerous federal officials, including John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation (FBI). Ashcroft and Mueller are the petitioners in the case now before us. As to these two petitioners, the complaint alleges that they adopted an unconstitutional policy that subjected respondent to harsh conditions of confinement on account of his race, religion, or national origin. In the District Court petitioners raised the defense of qualified immunity and moved to dismiss the suit, contending the complaint was not sufficient to state a claim against them. The District Court denied the motion to dismiss, concluding the complaint was sufficient to state a claim despite petitioners’ official status at the times in question. Petitioners brought an interlocutory appeal in the Court of Appeals for the Second Circuit. The court, without discussion, assumed it had jurisdiction over the order denying the motion to dismiss; and it affirmed the District Court’s decision. Respondent’s account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct by some governmental actors. But the allegations and pleadings with respect to these actors are not before us here. This case instead turns on a narrower question: Did respondent, as the plaintiff in the District Court, plead factual matter that, if taken as true, states a claim that petitioners deprived him of his clearly established constitutional rights. We hold respondent’s pleadings are insufficient. I Following the 2001 attacks, the FBI and other entities within the Department of Justice began an investigation of vast reach to identify the assailants and prevent them from attacking anew. The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the endeavor. By September 18 “the FBI had received more than 96,000 tips or potential leads from the public.” Dept. of Justice, Office of Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 1, 11–12 (Apr. 2003) (hereinafter OIG Report), http://www.usdoj.gov/oig/special/ 0306/full.pdf?bcsi_scan_61073EC0F74759AD=0&bcsi_scan_filename=full.pdf (as visited May 14, 2009, and available in Clerk of Court’s case file). In the ensuing months the FBI questioned more than 1,000 people with suspected links to the attacks in particular or to terrorism in general. Id., at 1. Of those individuals, some 762 were held on immigration charges; and a 184-member subset of that group was deemed to be “of ‘high interest’ ” to the investigation. Id., at 111. The high-interest detainees were held under restrictive conditions designed to prevent them from communicating with the general prison population or the outside world. Id., at 112–113. Respondent was one of the detainees. According to his complaint, in November 2001 agents of the FBI and Immigration and Naturalization Service arrested him on charges of fraud in relation to identification documents and conspiracy to defraud the United States. Iqbal v. Hasty, 490 F. 3d 143, 147–148 (CA2 2007). Pending trial for those crimes, respondent was housed at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Respondent was designated a person “of high interest” to the September 11 investigation and in January 2002 was placed in a section of the MDC known as the Administrative Maximum Special Housing Unit (ADMAX SHU). Id., at 148. As the facility’s name indicates, the ADMAX SHU incorporates the maximum security conditions allowable under Federal Bureau of Prison regulations. Ibid. ADMAX SHU detainees were kept in lockdown 23 hours a day, spending the remaining hour outside their cells in handcuffs and leg irons accompanied by a four-officer escort. Ibid. Respondent pleaded guilty to the criminal charges, served a term of imprisonment, and was removed to his native Pakistan. Id., at 149. He then filed a Bivens action in the United States District Court for the Eastern District of New York against 34 current and former federal officials and 19 “John Doe” federal corrections officers. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). The defendants range from the correctional officers who had day-to-day contact with respondent during the term of his confinement, to the wardens of the MDC facility, all the way to petitioners—officials who were at the highest level of the federal law enforcement hierarchy. First Amended Complaint in No. 04–CV–1809 (JG)(JA), ¶¶1011, App. to Pet. for Cert. 157a (hereinafter Complaint). The 21-cause-of-action complaint does not challenge respondent’s arrest or his confinement in the MDC’s general prison population. Rather, it concentrates on his treatment while confined to the ADMAX SHU. The complaint sets forth various claims against defendants who are not before us. For instance, the complaint alleges that respondent’s jailors “kicked him in the stomach, punched him in the face, and dragged him across” his cell without justification, id., ¶113, App. to Pet. for Cert. 176a; subjected him to serial strip and body-cavity searches when he posed no safety risk to himself or others, id., ¶¶143–145, App. to Pet. for Cert. 182a; and refused to let him and other Muslims pray because there would be “[n]o prayers for terrorists,” id., ¶154, App. to Pet. for Cert. 184a. The allegations against petitioners are the only ones relevant here. The complaint contends that petitioners designated respondent a person of high interest on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments to the Constitution. The complaint alleges that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11.” Id., ¶47, at 164a. It further alleges that “[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Id., ¶69, at 168a. Lastly, the complaint posits that petitioners “each knew of, condoned, and willfully and maliciously agreed to subject” respondent to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Id., ¶96, at 172a–173a. The pleading names Ashcroft as the “principal architect” of the policy, id., ¶10, at 157a, and identifies Mueller as “instrumental in [its] adoption, promulgation, and implementation.” Id., ¶11, at 157a. Petitioners moved to dismiss the complaint for failure to state sufficient allegations to show their own involvement in clearly established unconstitutional conduct. The District Court denied their motion. Accepting all of the allegations in respondent’s complaint as true, the court held that “it cannot be said that there [is] no set of facts on which [respondent] would be entitled to relief as against” petitioners. Id., at 136a–137a (relying on Conley v. Gibson, 355 U. S. 41 (1957)). Invoking the collateral-order doctrine petitioners filed an interlocutory appeal in the United States Court of Appeals for the Second Circuit. While that appeal was pending, this Court decided Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007), which discussed the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss. The Court of Appeals considered Twombly’s applicability to this case. Acknowledging that Twombly retired the Conley no-set-of-facts test relied upon by the District Court, the Court of Appeals’ opinion discussed at length how to apply this Court’s “standard for assessing the adequacy of pleadings.” 490 F. 3d, at 155. It concluded that Twombly called for a “flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” Id., at 157–158. The court found that petitioners’ appeal did not present one of “those contexts” requiring amplification. As a consequence, it held respondent’s pleading adequate to allege petitioners’ personal involvement in discriminatory decisions which, if true, violated clearly established constitutional law. Id., at 174. Judge Cabranes concurred. He agreed that the majority’s “discussion of the relevant pleading standards reflect[ed] the uneasy compromise … between a qualified immunity privilege rooted in the need to preserve the effectiveness of government as contemplated by our constitutional structure and the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.” Id., at 178 (internal quotation marks and citations omitted). Judge Cabranes nonetheless expressed concern at the prospect of subjecting high-ranking Government officials—entitled to assert the defense of qualified immunity and charged with responding to “a national and international security emergency unprecedented in the history of the American Republic”—to the burdens of discovery on the basis of a complaint as nonspecific as respondent’s. Id., at 179. Reluctant to vindicate that concern as a member of the Court of Appeals, ibid., Judge Cabranes urged this Court to address the appropriate pleading standard “at the earliest opportunity.” Id., at 178. We granted certiorari, 554 U. S. ___ (2008), and now reverse. II We first address whether the Court of Appeals had subject-matter jurisdiction to affirm the District Court’s order denying petitioners’ motion to dismiss. Respondent disputed subject-matter jurisdiction in the Court of Appeals, but the court hardly discussed the issue. We are not free to pretermit the question. Subject-matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt. Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006) (citing United States v. Cotton, 535 U. S. 625, 630 (2002)). According to respondent, the District Court’s order denying petitioners’ motion to dismiss is not appealable under the collateral-order doctrine. We disagree. A With exceptions inapplicable here, Congress has vested the courts of appeals with “jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U. S. C. §1291. Though the statute’s finality requirement ensures that “interlocutory appeals—appeals before the end of district court proceedings—are the exception, not the rule,” Johnson v. Jones, 515 U. S. 304, 309 (1995), it does not prevent “review of all prejudgment orders.” Behrens v. Pelletier, 516 U. S. 299, 305 (1996). Under the collateral-order doctrine a limited set of district-court orders are reviewable “though short of final judgment.” Ibid. The orders within this narrow category “are immediately appealable because they ‘finally determine claims of right separable from, and collateral to, rights asserted in the action, 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.’ ” Ibid. (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949)). A district-court decision denying a Government officer’s claim of qualified immunity can fall within the narrow class of appealable orders despite “the absence of a final judgment.” Mitchell v. Forsyth, 472 U. S. 511, 530 (1985). This is so because qualified immunity—which shields Government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights,” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)—is both a defense to liability and a limited “entitlement not to stand trial or face the other burdens of litigation.” Mitchell, supra, 472 U. S., at 526. Provided it “turns on an issue of law,” id., at 530, a district-court order denying qualified immunity “ ‘conclusively determine[s]’ ” that the defendant must bear the burdens of discovery; is “conceptually distinct from the merits of the plaintiff’s claim”; and would prove “effectively unreviewable on appeal from a final judgment.” Id., at 527528 (citing Cohen, supra, at 546). As a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in Cohen. But the applicability of the doctrine in the context of qualified-immunity claims is well established; and this Court has been careful to say that a district court’s order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a “final decision” within the meaning of §1291. Behrens, 516 U. S., at 307. B Applying these principles, we conclude that the Court of Appeals had jurisdiction to hear petitioners’ appeal. The District Court’s order denying petitioners’ motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore a final decision “subject to immediate appeal.” Ibid. Respondent says that “a qualified immunity appeal based solely on the complaint’s failure to state a claim, and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends the Court of Appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate jurisdiction is not so strictly confined. In Hartman v. Moore, 547 U. S. 250 (2006), the Court reviewed an interlocutory decision denying qualified immunity. The legal issue decided in Hartman concerned the elements a plaintiff “must plead and prove in order to win” a First Amendment retaliation claim. Id., at 257, n. 5. Similarly, two Terms ago in Wilkie v. Robbins, 551 U. S. 537 (2007), the Court considered another interlocutory order denying qualified immunity. The legal issue there was whether a Bivens action can be employed to challenge interference with property rights. 551 U. S., at 549, n. 4. These cases cannot be squared with respondent’s argument that the collateral-order doctrine restricts appellate jurisdiction to the “ultimate issu[e]” whether the legal wrong asserted was a violation of clearly established law while excluding the question whether the facts pleaded establish such a violation. Iqbal Brief 15. Indeed, the latter question is even more clearly within the category of appealable decisions than the questions presented in Hartman and Wilkie, since whether a particular complaint sufficiently alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded. In that sense the sufficiency of respondent’s pleadings is both “inextricably intertwined with,” Swint v. Chambers County Comm’n, 514 U. S. 35, 51 (1995), and “directly implicated by,” Hartman, supra, at 257, n. 5, the qualified immunity defense. Respondent counters that our holding in Johnson, 515 U. S. 304, confirms the want of subject-matter jurisdiction here. That is incorrect. The allegation in Johnson was that five defendants, all of them police officers, unlawfully beat the plaintiff. Johnson considered “the appealability of a portion of” the District Court’s summary judgment order that, “though entered in a ‘qualified immunity’ case, determine[d] only” that there was a genuine issue of material fact that three of the defendants participated in the beating. Id., at 313. In finding that order not a “final decision” for purposes of §1291, the Johnson Court cited Mitchell for the proposition that only decisions turning “ ‘on an issue of law’ ” are subject to immediate appeal. 515 U. S., at 313. Though determining whether there is a genuine issue of material fact at summary judgment is a question of law, it is a legal question that sits near the law-fact divide. Or as we said in Johnson, it is a “fact-related” legal inquiry. Id., at 314. To conduct it, a court of appeals may be required to consult a “vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials.” Id., at 316. That process generally involves matters more within a district court’s ken and may replicate inefficiently questions that will arise on appeal following final judgment. Ibid. Finding those concerns predominant, Johnson held that the collateral orders that are “final” under Mitchell turn on “abstract,” rather than “fact-based,” issues of law. 515 U. S., at 317. The concerns that animated the decision in Johnson are absent when an appellate court considers the disposition of a motion to dismiss a complaint for insufficient pleadings. True, the categories of “fact-based” and “abstract” legal questions used to guide the Court’s decision in Johnson are not well defined. Here, however, the order denying petitioners’ motion to dismiss falls well within the latter class. Reviewing that order, the Court of Appeals considered only the allegations contained within the four corners of respondent’s complaint; resort to a “vast pretrial record” on petitioners’ motion to dismiss was unnecessary. Id., at 316. And determining whether respondent’s complaint has the “heft” to state a claim is a task well within an appellate court’s core competency. Twombly, 550 U. S., at 557. Evaluating the sufficiency of a complaint is not a “fact-based” question of law, so the problem the Court sought to avoid in Johnson is not implicated here. The District Court’s order denying petitioners’ motion to dismiss is a final decision under the collateral-order doctrine over which the Court of Appeals had, and this Court has, jurisdiction. We proceed to consider the merits of petitioners’ appeal. III In Twombly, supra, at 553–554, the Court found it necessary first to discuss the antitrust principles implicated by the complaint. Here too we begin by taking note of the elements a plaintiff must plead to state a claim of unconstitutional discrimination against officials entitled to assert the defense of qualified immunity. In Bivens—proceeding on the theory that a right suggests a remedy—this Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 66 (2001). Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability “to any new context or new category of defendants.” 534 U. S., at 68. See also Wilkie, 551 U. S., at 549 –550. That reluctance might well have disposed of respondent’s First Amendment claim of religious discrimination. For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, see Davis v. Passman, 442 U. S. 228 (1979), we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment. Bush v. Lucas, 462 U. S. 367 (1983). Petitioners do not press this argument, however, so we assume, without deciding, that respondent’s First Amendment claim is actionable under Bivens. In the limited settings where Bivens does apply, the implied cause of action is the “federal analog to suits brought against state officials under Rev. Stat. §1979, 42 U. S. C. §1983.” Hartman, 547 U. S., at 254, n. 2. Cf. Wilson v. Layne, 526 U. S. 603, 609 (1999). Based on the rules our precedents establish, respondent correctly concedes that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Iqbal Brief 46 (“[I]t is undisputed that supervisory Bivens liability cannot be established solely on a theory of respondeat superior”). See Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691 (1978) (finding no vicarious liability for a municipal “person” under 42 U. S. C. §1983); see also Dunlop v. Munroe, 7 Cranch 242, 269 (1812) (a federal official’s liability “will only result from his own neglect in not properly superintending the discharge” of his subordinates’ duties); Robertson v. Sichel, 127 U. S. 507, 515–516 (1888) (“A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties”). Because vicarious liability is inapplicable to Bivens and §1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution. The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue. Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540–541 (1993) (First Amendment); Washington v. Davis, 426 U. S. 229, 240 (1976) (Fifth Amendment). Under extant precedent purposeful discrimination requires more than “intent as volition or intent as awareness of consequences.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979). It instead involves a decisionmaker’s undertaking a course of action “ ‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable group.” Ibid. It follows that, to state a claim based on a violation of a clearly established right, respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin. Respondent disagrees. He argues that, under a theory of “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” Iqbal Brief 45–46. That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities. IV A We turn to respondent’s complaint. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” As the Court held in Twombly, 550 U. S. 544, the pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555 (citing Papasan v. Allain, 478 U. S. 265, 286 (1986)). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” 550 U. S., at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id., at 557. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id., at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id., at 557 (brackets omitted). Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F. 3d, at 157–158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Our decision in Twombly illustrates the two-pronged approach. There, we considered the sufficiency of a complaint alleging that incumbent telecommunications providers had entered an agreement not to compete and to forestall competitive entry, in violation of the Sherman Act, 15 U. S. C. §1. Recognizing that §1 enjoins only anticompetitive conduct “effected by a contract, combination, or conspiracy,” Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 775 (1984), the plaintiffs in Twombly flatly pleaded that the defendants “ha[d] entered into a contract, combination or conspiracy to prevent competitive entry … and ha[d] agreed not to compete with one another.” 550 U. S., at 551 (internal quotation marks omitted). The complaint also alleged that the defendants’ “parallel course of conduct … to prevent competition” and inflate prices was indicative of the unlawful agreement alleged. Ibid. (internal quotation marks omitted). The Court held the plaintiffs’ complaint deficient under Rule 8. In doing so it first noted that the plaintiffs’ assertion of an unlawful agreement was a “ ‘legal conclusion’ ” and, as such, was not entitled to the assumption of truth. Id., at 555. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief and been entitled to proceed perforce. The Court next addressed the “nub” of the plaintiffs’ complaint—the well-pleaded, nonconclusory factual allegation of parallel behavior—to determine whether it gave rise to a “plausible suggestion of conspiracy.” Id., at 565–566. Acknowledging that parallel conduct was consistent with an unlawful agreement, the Court nevertheless concluded that it did not plausibly suggest an illicit accord because it was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed free-market behavior. Id., at 567. Because the well-pleaded fact of parallel conduct, accepted as true, did not plausibly suggest an unlawful agreement, the Court held the plaintiffs’ complaint must be dismissed. Id., at 570. B Under Twombly’s construction of Rule 8, we conclude that respondent’s complaint has not “nudged [his] claims” of invidious discrimination “across the line from conceivable to plausible.” Ibid. We begin our analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth. Respondent pleads that petitioners “knew of, condoned, and willfully and maliciously agreed to subject [him]” to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Complaint ¶96, App. to Pet. for Cert. 173a–174a. The complaint alleges that Ashcroft was the “principal architect” of this invidious policy, id., ¶10, at 157a, and that Mueller was “instrumental” in adopting and executing it, id., ¶11, at 157a. These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a “formulaic recitation of the elements” of a constitutional discrimination claim, 550 U. S., at 555, namely, that petitioners adopted a policy “ ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Feeney, 442 U. S., at 279. As such, the allegations are conclusory and not entitled to be assumed true. Twombly, supra, 550 U. S., at 554–555. To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected the plaintiffs’ express allegation of a “ ‘contract, combination or conspiracy to prevent competitive entry,’ ” id., at 551, because it thought that claim too chimerical to be maintained. It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth. We next consider the factual allegations in respondent’s complaint to determine if they plausibly suggest an entitlement to relief. The complaint alleges that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11.” Complaint ¶47, App. to Pet. for Cert. 164a. It further claims that “[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Id., ¶69, at 168a. Taken as true, these allegations are consistent with petitioners’ purposefully designating detainees “of high interest” because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose. The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that “obvious alternative explanation” for the arrests, Twombly, supra, at 567, and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion. But even if the complaint’s well-pleaded facts give rise to a plausible inference that respondent’s arrest was the result of unconstitutional discrimination, that inference alone would not entitle respondent to relief. It is important to recall that respondent’s complaint challenges neither the constitutionality of his arrest nor his initial detention in the MDC. Respondent’s constitutional claims against petitioners rest solely on their ostensible “policy of holding post-September-11th detainees” in the ADMAX SHU once they were categorized as “of high interest.” Complaint ¶69, App. to Pet. for Cert. 168a. To prevail on that theory, the complaint must contain facts plausibly showing that petitioners purposefully adopted a policy of classifying post-September-11 detainees as “of high interest” because of their race, religion, or national origin. This the complaint fails to do. Though respondent alleges that various other defendants, who are not before us, may have labeled him a person of “of high interest” for impermissible reasons, his only factual allegation against petitioners accuses them of adopting a policy approving “restrictive conditions of confinement” for post-September-11 detainees until they were “ ‘cleared’ by the FBI.” Ibid. Accepting the truth of that allegation, the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU due to their race, religion, or national origin. All it plausibly suggests is that the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity. Respondent does not argue, nor can he, that such a motive would violate petitioners’ constitutional obligations. He would need to allege more by way of factual content to “nudg[e]” his claim of purposeful discrimination “across the line from conceivable to plausible.” Twombly, 550 U. S., at 570. To be sure, respondent can attempt to draw certain contrasts between the pleadings the Court considered in Twombly and the pleadings at issue here. In Twombly, the complaint alleged general wrongdoing that extended over a period of years, id., at 551, whereas here the complaint alleges discrete wrongs—for instance, beatings—by lower level Government actors. The allegations here, if true, and if condoned by petitioners, could be the basis for some inference of wrongful intent on petitioners’ part. Despite these distinctions, respondent’s pleadings do not suffice to state a claim. Unlike in Twombly, where the doctrine of respondeat superior could bind the corporate defendant, here, as we have noted, petitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic. Yet respondent’s complaint does not contain any factual allegation sufficient to plausibly suggest petitioners’ discriminatory state of mind. His pleadings thus do not meet the standard necessary to comply with Rule 8. It is important to note, however, that we express no opinion concerning the sufficiency of respondent’s complaint against the defendants who are not before us. Respondent’s account of his prison ordeal alleges serious official misconduct that we need not address here. Our decision is limited to the determination that respondent’s complaint does not entitle him to relief from petitioners. C Respondent offers three arguments that bear on our disposition of his case, but none is persuasive. 1 Respondent first says that our decision in Twombly should be limited to pleadings made in the context of an antitrust dispute. Iqbal Brief 37–38. This argument is not supported by Twombly and is incompatible with the Federal Rules of Civil Procedure. Though Twombly determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and application of Rule 8. 550 U. S., at 554. That Rule in turn governs the pleading standard “in all civil actions and proceedings in the United States district courts.” Fed. Rule Civ. Proc. 1. Our decision in Twombly expounded the pleading standard for “all civil actions,” ibid., and it applies to antitrust and discrimination suits alike. See 550 U. S., at 555–556, and n. 3. 2 Respondent next implies that our construction of Rule 8 should be tempered where, as here, the Court of Appeals has “instructed the district court to cabin discovery in such a way as to preserve” petitioners’ defense of qualified immunity “as much as possible in anticipation of a summary judgment motion.” Iqbal Brief 27. We have held, however, that the question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process. Twombly, supra, at 559 (“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 given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side” (internal quotation marks and citation omitted)). Our rejection of the careful-case-management approach is especially important in suits where Government-official defendants are entitled to assert the defense of qualified immunity. The basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including “avoidance of disruptive discovery.” Siegert v. Gilley, 500 U. S. 226, 236 (1991) (Kennedy, J., concurring in judgment). There are serious and legitimate reasons for this. If a Government official is to devote time to his or her duties, and to the formulation of sound and responsible policies, it is counterproductive to require the substantial diversion that is attendant to participating in litigation and making informed decisions as to how it should proceed. Litigation, though necessary to ensure that officials comply with the law, exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of the Government. The costs of diversion are only magnified when Government officials are charged with responding to, as Judge Cabranes aptly put it, “a national and international security emergency unprecedented in the history of the American Republic.” 490 F. 3d, at 179. It is no answer to these concerns to say that discovery for petitioners can be deferred while pretrial proceedings continue for other defendants. It is quite likely that, when discovery as to the other parties proceeds, it would prove necessary for petitioners and their counsel to participate in the process to ensure the case does not develop in a misleading or slanted way that causes prejudice to their position. Even if petitioners are not yet themselves subject to discovery orders, then, they would not be free from the burdens of discovery. We decline respondent’s invitation to relax the pleading requirements on the ground that the Court of Appeals promises petitioners minimally intrusive discovery. That promise provides especially cold comfort in this pleading context, where we are impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from the vigorous performance of their duties. Because respondent’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise. 3 Respondent finally maintains that the Federal Rules expressly allow him to allege petitioners’ discriminatory intent “generally,” which he equates with a conclusory allegation. Iqbal Brief 32 (citing Fed. Rule Civ. Proc. 9). It follows, respondent says, that his complaint is sufficiently well pleaded because it claims that petitioners discriminated against him “on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Complaint ¶96, App. to Pet. for Cert. 172a–173a. Were we required to accept this allegation as true, respondent’s complaint would survive petitioners’ motion to dismiss. But the Federal Rules do not require courts to credit a complaint’s conclusory statements without reference to its factual context. It is true that Rule 9(b) requires particularity when pleading “fraud or mistake,” while allowing “[m]alice, intent, knowledge, and other conditions of a person’s mind [to] be alleged generally.” But “generally” is a relative term. In the context of Rule 9, it is to be compared to the particularity requirement applicable to fraud or mistake. Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade the less rigid—though still operative—strictures of Rule 8. See 5A C. Wright & A. Miller, Federal Practice and Procedure §1301, p. 291 (3d ed. 2004) (“[A] rigid rule requiring the detailed pleading of a condition of mind would be undesirable because, absent overriding considerations pressing for a specificity requirement, as in the case of averments of fraud or mistake, the general ‘short and plain statement of the claim’ mandate in Rule 8(a) … should control the second sentence of Rule 9(b)”). And Rule 8 does not empower respondent to plead the bare elements of his cause of action, affix the label “general allegation,” and expect his complaint to survive a motion to dismiss. V We hold that respondent’s complaint fails to plead sufficient facts to state a claim for purposeful and unlawful discrimination against petitioners. The Court of Appeals should decide in the first instance whether to remand to the District Court so that respondent can seek leave to amend his deficient complaint. 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. |
556.US.701 | Petitioner companies (collectively, AT&T) long based pension calculations on a seniority system that relied on years of service minus uncredited leave time, giving less retirement credit for pregnancy absences than for medical leave generally. In response to the ruling in General Elec. Co. v. Gilbert, 429 U. S. 125, that such differential treatment of pregnancy leave was not sex-based discrimination prohibited by Title VII of the Civil Rights Act of 1964, Congress added the Pregnancy Discrimination Act (PDA) to Title VII in 1978 to make it “clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions,” Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 684. On the PDA’s effective date, AT&T replaced its old plan with the Anticipated Disability Plan, which provided the same service credit for pregnancy leave as for other disabilities prospectively, but did not make any retroactive adjustments for the pre-PDA personnel policies. Each of the individual respondents therefore received less service credit for her pre-PDA pregnancy leave than she would have for general disability leave, resulting in a reduction in her total employment term and, consequently, smaller AT&T pensions. They, along with their union, also a respondent, filed Equal Employment Opportunity Commission charges alleging discrimination based on sex and pregnancy in violation of Title VII. The EEOC issued each respondent (collectively, Hulteen) a determination letter finding reasonable cause to believe AT&T had discriminated and a right-to-sue letter. Hulteen filed suit in the District Court, which held itself bound by a Ninth Circuit precedent finding a Title VII violation where post-PDA retirement eligibility calculations incorporated pre-PDA accrual rules that differentiated based on pregnancy. The Circuit affirmed. Held: An employer does not necessarily violate the PDA when it pays pension benefits calculated in part under an accrual rule, applied only pre-PDA, that gave less retirement credit for pregnancy than for medical leave generally. Because AT&T’s pension payments accord with a bona fide seniority system’s terms, they are insulated from challenge under Title VII §703(h). Pp. 4–14. (a) AT&T’s benefit calculation rule is protected by §703(h), which provides: “[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation … pursuant to a bona fide seniority … system … provided that such differences are not the result of an intention to discriminate because of … sex.” In Teamsters v. United States, 431 U. S. 324, 356, the Court held that a pre-Title VII seniority system that disproportionately advantaged white, as against minority, employees nevertheless exemplified a bona fide system without any discriminatory terms under §703(h), where the discrimination resulted from the employer’s hiring practices and job assignments. Because AT&T’s system must also be viewed as bona fide, i.e., as a system having no discriminatory terms, §703(h) controls the result here, just as it did in Teamsters. This Court held in Gilbert that an accrual rule limiting the seniority credit for time taken for pregnancy leave did not unlawfully discriminate on the basis of sex. As a matter of law, at that time, “an exclusion of pregnancy from a disability-benefits plan providing general coverage [was] not a gender-based discrimination at all.” 429 U. S., at 136. The only way to conclude that §703(h) does not protect AT&T’s system would be to read the PDA as applying retroactively to recharacterize AT&T’s acts as having been illegal when done. This is not a serious possibility. Generally, there is “a presumption against retroactivity [unless] Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” Landgraf v. USI Film Products, 511 U. S. 244, 272–273. There is no such clear intent here. Section 706(e)(2)—which details when “an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose”—has no application because Gilbert unquestionably held that the feature of AT&T’s seniority system at issue here was not discriminatory when adopted, let alone intentionally so. Nor can it be argued that because AT&T could have chosen to give post-PDA credit to pre-PDA pregnancy leave when Hulteen retired, its failure to do so was facially discriminatory at that time. If a choice to rely on a favorable statute turned every past differentiation into contemporary discrimination, §703(h) would never apply. Finally, Bazemore v. Friday, 478 U. S. 385—in which a pre-Title VII compensation plan giving black employees less pay than whites was held to violate Title VII on its effective date—is inapplicable because the Bazemore plan did not involve a seniority system subject to §703(h) and the employer there failed to eliminate the discriminatory practice when Title VII became law. Pp. 4–13. (b) A recent §706(e) amendment making it “an unlawful employment practice … when an individual is affected by application of a discriminatory compensation decision or other practice, including each time … benefits [are] paid, resulting … from such a decision,” §3(A), 123 Stat. 6, does not help Hulteen. AT&T’s pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory, with the consequence that Hulteen has not been “affected by application of a discriminatory compensation decision or other practice.” Pp. 13–14. 498 F. 3d 1001, reversed. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Thomas, and Alito, JJ., joined. Stevens, J., filed a concurring opinion. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined. | The question is whether an employer necessarily violates the Pregnancy Discrimination Act (PDA), 42 U. S. C. §2000e(k), when it pays pension benefits calculated in part under an accrual rule, applied only prior to the PDA, that gave less retirement credit for pregnancy leave than for medical leave generally. We hold there is no necessary violation; and the benefit calculation rule in this case is part of a bona fide seniority system under §703(h) of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e–2(h), which insulates it from challenge. I Since 1914, AT&T Corporation (then American Telephone & Telegraph Company) and its Bell System Operating Companies, including Pacific Telephone and Telegraph Company (hereinafter, collectively, AT&T),[Footnote 1] have provided pensions and other benefits based on a seniority system that relies upon an employee’s term of employment, understood as the period of service at the company minus uncredited leave time.[Footnote 2] In the 1960s and early to mid-1970s, AT&T employees on “disability” leave got full service credit for the entire periods of absence, but those who took “personal” leaves of absence received maximum service credit of 30 days. Leave for pregnancy was treated as personal, not disability. AT&T altered this practice in 1977 by adopting its Maternity Payment Plan (MPP), entitling pregnant employees to disability benefits and service credit for up to six weeks of leave. If the absence went beyond six weeks, however, it was treated as personal leave, with no further benefits or credit, whereas employees out on disability unrelated to pregnancy continued to receive full service credit for the duration of absence. This differential treatment of pregnancy leave, under both the pre-1977 plan and the MPP, was lawful: in General Elec. Co. v. Gilbert, 429 U. S. 125 (1976), this Court concluded that a disability benefit plan excluding disabilities related to pregnancy was not sex-based discrimination within the meaning of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. In 1978, Congress amended Title VII by passing the PDA, 92 Stat. 2076, 42 U. S. C. §2000e(k), which superseded Gilbert so as to make it “clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions.” Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 684 (1983). On April 29, 1979, the effective date of the PDA, AT&T adopted its Anticipated Disability Plan which replaced the MPP and provided service credit for pregnancy leave on the same basis as leave taken for other temporary disabilities. AT&T did not, however, make any retroactive adjustments to the service credit calculations of women who had been subject to the pre-PDA personnel policies. Four of those women are named respondents in this case. Each of them received less service credit for pregnancy leave than she would have accrued on the same leave for disability: seven months less for Noreen Hulteen; about six months for Eleanora Collet; and about two for Elizabeth Snyder and Linda Porter. Respondents Hulteen, Collet, and Snyder have retired from AT&T; respondent Porter has yet to. If her total term of employment had not been decreased due to her pregnancy leave, each would be entitled to a greater pension benefit. Eventually, each of the individual respondents and respondent Communications Workers of America (CWA), the collective-bargaining representative for the majority of AT&T’s nonmanagement employees, filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging discrimination on the basis of sex and pregnancy in violation of Title VII. In 1998, the EEOC issued a Letter of Determination finding reasonable cause to believe that AT&T had discriminated against respondent Hulteen and “a class of other similarly-situated female employees whose adjusted [commencement of service] date has been used to determine eligibility for a service or disability pension, the amount of pension benefits, and eligibility for certain other benefits and programs, including early retirement offerings.” App. 54–55. The EEOC issued a notice of right to sue to each named respondent and the CWA (collectively, Hulteen), and Hulteen filed suit in the United States District Court for the Northern District of California. On dueling motions for summary judgment, the District Court held itself bound by a prior Ninth Circuit decision, Pallas v. Pacific Bell, 940 F. 2d 1324 (1991), which found a Title VII violation where post-PDA retirement eligibility calculations incorporated pre-PDA accrual rules that differentiated on the basis of pregnancy. See App. to Pet. for Cert. 121a–122a. The Circuit, en banc, affirmed and held that Pallas’s conclusion that “calculation of service credit excluding time spent on pregnancy leave violates Title VII was, and is, correct.” 498 F. 3d 1001, 1003 (2007). The Ninth Circuit’s decision directly conflicts with the holdings of the Sixth and Seventh Circuits that reliance on a pre-PDA differential accrual rule to determine pension benefits does not constitute a current violation of Title VII. See Ameritech Benefit Plan Comm. v. Communication Workers of Am., 220 F. 3d 814 (CA7 2000) (finding no actionable Title VII violation given the existence of a bona fide seniority system); Leffman v. Sprint Corp., 481 F. 3d 428 (CA6 2007) (characterizing claim as challenging the continuing effects of past discrimination rather than alleging a current Title VII violation). We granted certiorari in order to resolve this split, 554 U. S. __ (2008), and now reverse the judgment of the Ninth Circuit. II Title VII makes it an “unlawful employment practice” for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.” 42 U. S. C. §2000e–2(a)(1). Generally, a claim under Title VII must be filed “within one hundred and eighty days after the alleged unlawful employment practice occurred,” §2000e–5(e)(1). In this case, Hulteen has identified the challenged practice as applying the terms of AT&T’s seniority system to calculate and pay pension benefits to women who took pregnancy leaves before April 29, 1979. She says the claim is timely because the old service credit differential for pregnancy leave was carried forward through the system’s calculations so as to produce an effect in the amount of the benefit when payments began. There is no question that the payment of pension benefits in this case is a function of a seniority system, given the fact that calculating benefits under the pension plan depends in part on an employee’s term of employment. As we have said, “[a] ‘seniority system’ is a scheme that, alone or in tandem with non-‘seniority’ criteria, allots to employees ever improving employment rights and benefits as their relative lengths of pertinent employment increase.” California Brewers Assn. v. Bryant, 444 U. S. 598, 605–606 (1980) (footnote omitted). Hulteen is also undoubtedly correct that AT&T’s personnel policies affecting the calculation of any employee’s start date should be considered “ancillary rules” and elements of the system, necessary for it to operate at all, being rules that “define which passages of time will ‘count’ towards the accrual of seniority and which will not.” Id., at 607. But contrary to Hulteen’s position, establishing the continuity of a seniority system whose results depend in part on obsolete rules entailing disadvantage to once-pregnant employees does not resolve this case. Although adopting a service credit rule unfavorable to those out on pregnancy leave would violate Title VII today, a seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA. “[S]eniority systems are afforded special treatment under Title VII,” Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 81 (1977), reflecting Congress’s understanding that their stability is valuable in its own right. Hence, §703(h): “Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority … system … provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin … .” 42 U. S. C. §2000e–2(h). Benefit differentials produced by a bona fide seniority-based pension plan are permitted unless they are “the result of an intention to discriminate.” Ibid.[Footnote 3] In Teamsters v. United States, 431 U. S. 324 (1977), advantages of a seniority system flowed disproportionately to white, as against minority, employees, because of an employer’s prior discrimination in job assignments. We recognized that this “disproportionate distribution of advantages does in a very real sense operate to freeze the status quo of prior discriminatory employment practices[,] [b]ut both the literal terms of §703(h) and the legislative history of Title VII demonstrate that Congress considered this very effect of many seniority systems and extended a measure of immunity to them.” Id., at 350 (internal quotation marks omitted). “[T]he unmistakable purpose of §703(h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII.” Id., at 352. The seniority system in Teamsters exemplified a bona fide system without any discriminatory terms (the discrimination having occurred in executive action hiring employees and assigning jobs), so that the Court could conclude that the system “did not have its genesis in … discrimination, and … has been maintained free from any illegal purpose.” Id., at 356. AT&T’s system must also be viewed as bona fide, that is, as a system that has no discriminatory terms, with the consequence that subsection (h) controls the result here, just as in Teamsters. It is true that in this case the pre-April 29, 1979 rule of differential treatment was an element of the seniority system itself; but it did not taint the system under the terms of subsection (h), because this Court held in Gilbert that an accrual rule limiting the seniority credit for time taken for pregnancy leave did not unlawfully discriminate on the basis of sex. As a matter of law, at that time, “an exclusion of pregnancy from a disability-benefits plan providing general coverage [was] not a gender-based discrimination at all.” 429 U. S., at 136.[Footnote 4] Although the PDA would have made it discriminatory to continue the accrual policies of the old rule, AT&T amended that rule as of the effective date of the Act, April 29, 1979; the new one, treating pregnancy and other temporary disabilities the same way, remains a part of AT&T’s seniority system today. This account of litigation, legislation, and the evolution of the system’s terms is the answer to Hulteen’s argument that Teamsters supports her position. She correctly points out that a “seniority system that perpetuates the effects of pre-Act discrimination cannot be bona fide if an intent to discriminate entered into its very adoption,” 431 U. S., at 346, n. 28, and she would characterize AT&T’s seniority system as intentionally discriminatory, on the theory that the accrual rule for pregnancy leave was facially discriminatory from the start. She claims further support from Automobile Workers v. Johnson Controls, Inc., 499 U. S. 187 (1991), in which we said that “explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination,” and that such facial discrimination is intentional discrimination even if not based on any underlying malevolence. Id., at 199. Hulteen accordingly claims that the superseded differential affecting current benefits was, and remains, “discriminatory in precisely the way the PDA prohibits,” Brief for Respondents 18. But Automobile Workers is not on point. The policy in that case, prohibiting women from working in jobs with lead exposure unless they could show themselves incapable of child bearing, was put in place after the PDA became law and under its terms was facially discriminatory. In this case, however, AT&T’s intent when it adopted the pregnancy leave rule (before the PDA) was to give differential treatment that as a matter of law, as Gilbert held, was not gender-based discrimination. Because AT&T’s differential accrual rule was therefore a permissible differentiation given the law at the time, there was nothing in the seniority system at odds with the subsection (h) bona fide requirement. The consequence is that subsection (h) is as applicable here as it was in Teamsters, and the calculations of credited service that determine pensions are the results of a permissibly different standard under subsection (h) today.[Footnote 5] The only way to conclude here that the subsection would not support the application of AT&T’s system would be to read the PDA as applying retroactively to recharacterize the acts as having been illegal when done, contra Gilbert.[Footnote 6] But this is not a serious possibility. As we have said, “[b]ecause it accords with widely held intuitions about how statutes ordinarily operate, a presumption against retroactivity will generally coincide with legislative and public expectations. Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” Landgraf v. USI Film Products, 511 U. S. 244, 272–273 (1994). There is no such clear intent here, indeed, no indication at all that Congress had retroactive application in mind; the evidence points the other way. Congress provided for the PDA to take effect on the date of enactment, except in its application to certain benefit programs, as to which effectiveness was held back 180 days. Act of Oct. 31, 1978, §2(b), 92 Stat. 2076, 42 U. S. C. §2000e(k) (1979 ed.). The House Report adverted to these benefit schemes: “As the Gilbert decision permits employers to exclude pregnancy-related coverage from employee benefit plans, [the bill] provides for [a] transition period of 180 days to allow employees [sic] to comply with the explicit provisions of this amendment. It is the committee’s intention to provide for an orderly and equitable transition, with the least disruption for employers and employees, consistent with the purposes of the bill.” H. R. Rep. No. 95–948, p. 8 (1978). This is the language of prospective intent, not retrospective revision. Hulteen argues that she nonetheless has a challenge to AT&T’s current payment of pension benefits under §706(e)(2) of Title VII, believing (again mistakenly) that this subsection affects the validity of any arrangement predating the PDA that would be facially discriminatory if instituted today. Brief for Respondents 27–29. Section 706(e)(2) provides that “an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this subchapter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.” 42 U. S. C. §2000e–5(e)(2). But, as the text makes clear, this subsection determines the moments at which a seniority system violates Title VII only if it is a system “adopted for an intentionally discriminatory purpose in violation of this subchapter.” As discussed above, the Court has unquestionably held that the feature of AT&T’s seniority system at issue was not discriminatory when adopted, let alone intentionally so in violation of this subchapter. That leaves §706(e)(2) without any application here. It is equally unsound for Hulteen to argue that when she retired AT&T could have chosen to give post-PDA credit to pre-PDA pregnancy leave, making its failure to do so facially discriminatory at that time.[Footnote 7] If a choice to rely on a favorable statute turned every past differentiation into contemporary discrimination, subsection (h) would never apply. Hulteen’s remaining argument (as of the time the case was submitted to us) is that our decision in Bazemore v. Friday, 478 U. S. 385 (1986) (per curiam), is on her side. In Bazemore, black employees of the North Carolina Agricultural Extension Service, who received less pay than comparable whites under a differential compensation plan extending back to pre-Title VII segregation, brought suit in 1971 claiming that pay disparities persisted. Id., at 389–391. We concluded that “[a] pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective, became a violation upon Title VII’s effective date, and to the extent an employer continued to engage in that act or practice, it is liable under that statute.” Id., at 395. Bazemore has nothing to say here. To begin with, it did not involve a seniority system subject to subsection (h); rather, the employer in Bazemore had a racially based pay structure under which black employees were paid less than white employees. Further, after Title VII became law, the employer failed to eliminate the discriminatory practice, even though the new statute had turned what once was legally permissible into something unlawful. Bazemore would be on point only if, after the PDA, AT&T continued to apply an unfavorable credit differential for pregnancy leave simply because it had begun to do that before the PDA. AT&T’s system, by contrast, provides future benefits based on past, completed events, that were entirely lawful at the time they occurred. III We have accepted supplemental briefing after the argument on the possible effect on this case of the recent amendment to §706(e) of Title VII, adopted in response to Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007), and dealing specifically with discrimination in compensation: “For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” Lilly Ledbetter Fair Pay Act of 2009, Pub. L. 111–2, §3(A), 123 Stat. 5–6. Hulteen argues that payment of the pension benefits at issue in this case marks the moment at which she “is affected by application of a discriminatory compensation decision or other practice,” and she reads the statute as providing that such a “decision or other practice” may not be applied to her disadvantage. But the answer to this claim is essentially the same as the answer to Hulteen’s argument that §706(e)(2) helps her, supra, at 11–12. For the reasons already discussed, AT&T’s pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory, with the consequence that Hulteen has not been “affected by application of a discriminatory compensation decision or other practice.” §3(A), 123 Stat. 6. IV Bona fide seniority systems allow, among other things, for predictable financial consequences, both for the employer who pays the bill and for the employee who gets the benefit. Cf. Central Laborers’ Pension Fund v. Heinz, 541 U. S. 739, 743 (2004) (noting that the central feature of the Employee Retirement Income Security Act of 1974, 29 U. S. C. §1001 et seq., is its “object of protecting employees’ justified expectations of receiving the benefits their employers promise them”). As §703(h) demonstrates, Congress recognized the salience of these reliance interests and, where not based upon or resulting from an intention to discriminate, gave them protection. Because the seniority system run by AT&T is bona fide, the judgment of the Court of Appeals for the Ninth Circuit is reversed. It is so ordered. Footnote 1 In 1982, a consent decree and Modified Final Judgment (MFJ) were entered to resolve the Government’s antitrust suit against American Telephone & Telegraph Company. The MFJ resulted in the break-up of American Telephone & Telegraph and the divestiture of the local Bell System Operating Companies, including Pacific Telephone and Telegraph Company (PT&T). Many employees of the former Bell System Operating Companies became employees of the new AT&T Corporation. The Plan of Reorganization, approved by the United States District Court for the District of Columbia, United States v. Western Elec. Co., 569 F. Supp. 1057, aff’d sub nom. California v. United States, 464 U. S. 1013 (1983), provided that “all employees will carry with them all pre-divestiture Bell System service regardless of the organizational unit or corporation by which they are employed immediately after divestiture.” App. 54. Respondents in this case were employed at PT&T. After the divestiture of the Bell Operating Companies in 1984, these women became employees of AT&T Corporation and their service calculations, as computed by PT&T under its accrual rules, were carried over to AT&T Corporation. Footnote 2 AT&T’s calculation of a term of employment is a more complicated endeavor, requiring the creation and maintenance of an individual “start date” for each employee, which is adjusted based on the relevant leave policy. Footnote 3 Section 701(k) of Title VII provides that “women affected by pregnancy, … shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section [703(h)] of this title shall be interpreted to permit otherwise.” 42 U. S. C. §2000e(k). Hulteen contends that, in light of this language, §703(h) does not apply at all to claims of fringe-benefit discrimination under the PDA. We cannot agree. Hulteen’s reading would result in the odd scenario that pregnancy discrimination, alone among all categories of discrimination (race, color, religion, other sex-based claims, and national origin), would receive dispensation from the general application of subsection (h). A better explanation is that §701(k) refers only to the final sentence of §703(h), which reads that “[i]t shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of title 29.” 42 U. S. C. §2000e–2(h). This final sentence of subsection (h), referred to as the Bennett Amendment, served to reconcile the Equal Pay Act of 1963, 77 Stat. 56, 29 U. S. C. §206(d), with Title VII. See County of Washington v. Gunther, 452 U. S. 161, 194 (1981) (Rehnquist, J., dissenting). In General Elec. Co. v. Gilbert, 429 U. S. 125 (1976), this Court had concluded that the amendment permitted wage discrimination based on pregnancy. Id., at 144–145. By adding the language, “nothing in section [703(h)] of this title shall be interpreted to permit otherwise,” to the PDA, 42 U. S. C. §2000e(k), Congress wanted to ensure that, in addition to replacing Gilbert with a rule that discrimination on the basis of pregnancy is sex discrimination, it foreclosed the possibility that this Court’s interpretation of the Bennett Amendment could be construed, going forward, to permit wage discrimination based on pregnancy. Footnote 4 Gilbert recognized that differential treatment could still represent intentionally discriminatory treatment if pretextual, 429 U. S., at 136, and that a forbidden discriminatory effect could result if a disability-benefits plan produced overall preferential treatment for one sex, id., at 138. Neither theory is advanced here. In Nashville Gas Co. v. Satty, 434 U. S. 136 (1977), we reaffirmed our holding in Gilbert that Title VII “did not require that greater economic benefits be paid to one sex or the other ‘because of their differing roles in “the scheme of human existence.” ’ ” Id., at 142 (quoting Gilbert, supra, at 139, n. 17). But we noted that Gilbert’s holding did not extend to “permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role.” Satty, supra, at 142. Cancellation of benefits previously accrued, therefore, was considered facially violative at the time, but such a situation is not presented here. Footnote 5 Although certain circuit courts had previously concluded that treating pregnancy leave less favorably than other disability leave constituted sex discrimination under Title VII, this Court in Gilbert clearly rejected that conclusion, 429 U. S., at 147 (Brennan, J., dissenting); see also id., at 162 (Stevens, J., dissenting). Gilbert declared the meaning and scope of sex discrimination under Title VII and held that previous views to the contrary were wrong as a matter of law. And “[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Express, Inc., 511 U. S. 298, 312–313 (1994); see also id., at 313, n. 12. It is therefore to no avail to argue that the pregnancy leave cap was unlawful before Gilbert and that the PDA returned the law to its prior state. Footnote 6 In so saying, we assume that §701(k) has no application, as explained in footnote 3, supra. Cf. post, at 4–6 (Ginsburg, J., dissenting). Footnote 7 To the extent Hulteen means to claim, as a factual matter, that the accrual rule was merely advisory, requiring a fresh choice to apply it in the benefit context, she points to nothing in the record supporting such a proposition. |
557.US.404 | Atlantic Sounding Co. allegedly refused to pay maintenance and cure to respondent Townsend for injuries he suffered while working on its tugboat, and then filed this declaratory relief action regarding its obligations. Townsend filed suit under the Jones Act and general maritime law, alleging, inter alia, arbitrary and willful failure to provide maintenance and cure. He filed similar counterclaims in the declaratory judgment action, seeking punitive damages for the maintenance and cure claim. The District Court denied petitioners’ motion to dismiss the punitive damages claim, but certified the question for interlocutory appeal. Following its precedent, the Eleventh Circuit held that punitive damages may be awarded for the willful withholding of maintenance and cure. Held: Because punitive damages have long been an accepted remedy under general maritime law, and because neither Miles v. Apex Marine Corp., 498 U. S. 19, nor the Jones Act altered this understanding, punitive damages for the willful and wanton disregard of the maintenance and cure obligation remain available as a matter of general maritime law. Pp. 2–19. (a) Settled legal principles establish three points central to this case. Pp. 2–9. (i) Punitive damages have long been an available remedy at common law for wanton, willful, or outrageous conduct. English law during the colonial era accorded juries the authority to award such damages when warranted. And American courts have likewise permitted such damages since at least 1784. This Court has also found punitive damages authorized as a matter of common-law doctrine. See, e.g., Day v. Woodworth, 13 How. 363. Pp. 3–5. (ii) The common-law punitive damages tradition extends to claims arising under federal maritime law. See Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101, 108. One of this Court’s first cases so indicating involved an action for marine trespass. See The Amiable Nancy, 3 Wheat. 546. And lower federal courts have found punitive damages available in maritime actions for particularly egregious tortious acts. Pp. 5–6. (iii) Nothing in maritime law undermines this general rule’s applicability in the maintenance and cure context. The maintenance and cure obligation dates back centuries as an aspect of general maritime law, and the failure of a seaman’s employers to provide adequate medical care was the basis for awarding punitive damages in cases decided in the 1800’s. This Court has since registered its agreement with such decisions and has subsequently found that in addition to wages, “maintenance” includes food and lodging at the ship’s expense, and “cure” refers to medical treatment, Lewis v. Lewis & Clark Marine, Inc., 531 U. S. 438, 441. Moreover, an owner’s failure to provide proper medical care for seamen has provided lower courts the impetus to award damages that appear to contain at least some punitive element. Pp. 7–8. (iv) Under these settled legal principles, respondent is entitled to pursue punitive damages unless Congress has enacted legislation that departs from the common-law understanding. P. 9. (b) The plain language of the Jones Act does not provide a basis for overturning the common-law rule. Congress enacted the Jones Act to overrule The Osceola, 189 U. S. 158, where the Court prohibited a seaman or his family from recovering for injuries or death suffered due to his employers’ negligence. To that end, the Act created a statutory negligence cause of action, but it did not eliminate pre-existing remedies available to seamen for the separate common-law cause of action based on maintenance and cure. The Act bestows the right to “elect” to bring a Jones Act claim, thereby indicating a choice of actions for seamen—not an exclusive remedy. Because the then-accepted remedies arose from general maritime law, it necessarily follows that Congress envisioned their continued availability. See Chandris, Inc. v. Latsis, 515 U. S. 347, 354. Had the Jones Act been the only remaining remedy available, there would have been no election to make. And, the only statutory restrictions on general maritime maintenance and cure claims were enacted long after the Jones Act’s passage and limit availability for only two discrete classes: foreign workers on offshore oil and mineral production facilities and sailing school students and instructors. This indicates that “Congress knows how to” restrict the traditional maintenance and cure remedy “when it wants to.” Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U. S. 97, 106. This Court has consistently observed that the Jones Act preserves common-law causes of action such as maintenance and cure, see. e.g., The Arizona v. Anelich, 298 U. S. 110, and its case law supports the view that punitive damages awards, in particular, continue to remain available in maintenance and cure actions, see Vaughan v. Atkinson, 369 U. S. 527. Pp. 9–13. (i) Contrary to petitioners’ argument, Miles does not limit recovery to the remedies available under the Jones Act. Miles does not address either maintenance and cure actions in general or the availability of punitive damages for such actions. Instead, it grappled with the entirely different question whether general maritime law should provide a cause of action for wrongful death based on unseaworthiness. The Court found that the Jones Act and the Death on the High Seas Act (DOHSA), along with state statutes, supported recognition of a general maritime rule for wrongful death of a seaman. However, since Congress had chosen to limit the damages available in the Jones Act and DOHSA, excluding damages for loss of society or lost future earnings, 498 U. S., at 21, 31–32, its judgment must control the availability of remedies for wrongful-death actions brought under general maritime law, id., at 32–36. Miles’ reasoning does not apply here. Unlike Miles’ situation, both the general maritime cause of action here (maintenance and cure) and the remedy (punitive damages) were well established before the Jones Act’s passage. And unlike Miles’ facts, the Jones Act does not address the general maritime cause of action here or its remedy. It is thus possible to adhere to the traditional understanding of maritime actions and remedies without abridging or violating the Jones Act; unlike wrongful-death actions, this traditional understanding is not a matter to which “Congress has spoken directly.” See id., at 31. Moreover, petitioners’ contrary view was directly rejected in Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U. S. 811, 820. If Miles presented no barrier to the Garris Court’s endorsement of a previously unrecognized maritime cause of action for negligent wrongful death, there is no legitimate basis for a contrary conclusion here. Like negligence, the duty of maintenance and cure and the general availability of punitive damages have been recognized “for more than a century,” 532 U. S., at 820. And because respondent does not ask this Court to alter statutory text or “expand” the maritime tort law’s general principles, Miles does not require eliminating the general maritime remedy of punitive damages for the willful or wanton failure to comply with the duty to pay maintenance and cure. The fact that seamen commonly seek to recover under the Jones Act for maintenance and cure claims, does not mean that the Jones Act provides the only remedy. See Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367, 374–375. The laudable quest for uniformity in admiralty does not require narrowing available damages to the lowest common denominator approved by Congress for distinct causes of action. Pp. 13–19. 496 F. 3d 1282, affirmed and remanded. Thomas, 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 Scalia and Kennedy, JJ., joined. | The question presented by this case is whether an injured seaman may recover punitive damages for his employer’s willful failure to pay maintenance and cure. Petitioners argue that under Miles v. Apex Marine Corp., 498 U. S. 19 (1990), seamen may recover only those damages available under the Jones Act, 46 U. S. C. §30104. We disagree. Historically, punitive damages have been available and awarded in general maritime actions, including some in maintenance and cure. We find that nothing in Miles or the Jones Act eliminates that availability. I Respondent Edgar L. Townsend was a crew member of the Motor Tug Thomas. After falling on the steel deck of the tugboat and injuring his arm and shoulder, respondent claimed that petitioner Atlantic Sounding,[Footnote 1] the owner of the tugboat, advised him that it would not provide maintenance and cure. See 496 F. 3d 1282, 1283 (CA11 2007). “A claim for maintenance and cure concerns the vessel owner’s obligation to provide food, lodging, and medical services to a seaman injured while serving the ship.” Lewis v. Lewis & Clark Marine, Inc., 531 U. S. 438, 441 (2001). Petitioners thereafter filed an action for declaratory relief regarding their obligations with respect to maintenance and cure. Respondent filed his own suit under the Jones Act and general maritime law, alleging negligence, unseaworthiness, arbitrary and willful failure to pay maintenance and cure, and wrongful termination. In addition, respondent filed similar counterclaims in the declaratory judgment action, seeking punitive damages for the denial of maintenance and cure. The District Court consolidated the cases. See 496 F. 3d, at 1283–1284. Petitioners moved to dismiss respondent’s punitive damages claim. The District Court denied the motion, holding that it was bound by the determination in Hines v. J. A. LaPorte, Inc., 820 F. 2d 1187, 1189 (CA11 1987) (per curiam), that punitive damages were available in an action for maintenance and cure. The court, however, agreed to certify the question for interlocutory appeal. See 496 F. 3d, at 1284. The United States Court of Appeals for the Eleventh Circuit agreed with the District Court that Hines controlled and held that respondent could pursue his punitive damages claim for the willful withholding of maintenance and cure. 496 F. 3d, at 1285–1286. The decision conflicted with those of other Courts of Appeals, see, e.g., Guevara v. Maritime Overseas Corp., 59 F. 3d 1496 (CA5 1995) (en banc); Glynn v. Roy Al Boat Management Corp., 57 F. 3d 1495 (CA9 1995), and we granted certiorari, 555 U. S. ___ (2008). II Respondent claims that he is entitled to seek punitive damages as a result of petitioners’ alleged breach of their “maintenance and cure” duty under general maritime law. We find no legal obstacle to his doing so. A Punitive damages have long been an available remedy at common law for wanton, willful, or outrageous conduct. Under English law during the colonial era, juries were accorded broad discretion to award damages as they saw fit. See, e.g., Lord Townsend v. Hughes, 2 Mod. 150, 86 Eng. Rep. 994 (C. P. 1676) (“[I]n civil actions the plaintiff is to recover by way of compensation for the damages he hath sustained, and the jury are the proper judges thereof” (emphasis in original)); 1 T. Sedgwick, Measure of Damages §349, p. 688 (9th ed. 1912) (hereinafter Sedgwick) (“Until comparatively recent times juries were as arbitrary judges of the amount of damages as of the facts”). The common-law view “was that ‘in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it.’ ” Feltner v. Columbia Pictures Television, Inc., 523 U. S. 340, 353 (1998) (quoting Dimick v. Schiedt, 293 U. S. 474, 480 (1935); alteration in original). The jury’s broad discretion to set damages included the authority to award punitive damages when the circumstances of the case warranted. Just before the ratification of the Constitution, Lord Chief Justice Pratt explained that “a jury ha[s] it in [its] power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself.” Wilkes v. Wood, Lofft 1, 18–19, 98 Eng. Rep. 489, 498–499 (C. P. 1763); see also Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 25 (1991) (Scalia, J., concurring in judgment) (“[P]unitive or ‘exemplary’ damages have long been a part of Anglo-American law”); Huckle v. Money, 2 Wils. 205, 207, 95 Eng. Rep. 768, 769 (C. P. 1763) (declining to grant a new trial because the jury “ha[s] done right in giving exemplary damages”). American courts have likewise permitted punitive damages awards in appropriate cases since at least 1784. See, e.g., Genay v. Norris, 1 S. C. L. 6, 7 (C. P. and Gen. Sess. 1784) (approving award of “very exemplary damages” because spiking wine represented a “very wanton outrage”); Coryell v. Colbaugh, 1 N. J. L. 77 (1791) (concluding that a breach of promise of marriage was “of the most atrocious and dishonourable nature” and supported “damages for example’s sake, to prevent such offences in future” (emphasis in original)). Although some States elected not to allow juries to make such awards, the vast majority permitted them. See 1 Sedgwick §§352, 354, at 694, 700. By the middle of the 19th century, “punitive damages were undoubtedly an established part of the American common law of torts [and] no particular procedures were deemed necessary to circumscribe a jury’s discretion regarding the award of such damages, or their amount.” Haslip, supra, at 26–27 (Scalia, J., concurring in judgment). This Court has also found the award of punitive damages to be authorized as a matter of common-law doctrine. In Day v. Woodworth, 13 How. 363 (1852), for example, the Court recognized the “well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant … .” Id., at 371; see also Philadelphia, W., & B. R. Co. v. Quigley, 21 How. 202, 214 (1859) (“Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person”); Barry v. Edmunds, 116 U. S. 550, 562 (1886) (“[A]ccording to the settled law of this court, [a plaintiff] might show himself, by proof of the circumstances, to be entitled to exemplary damages calculated to vindicate his right and protect it against future similar invasions”). B The general rule that punitive damages were available at common law extended to claims arising under federal maritime law. See Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101, 108 (1893) (“[C]ourts of admiralty … proceed, in cases of tort, upon the same principles as courts of common law, in allowing exemplary damages …”). One of this Court’s first cases indicating that punitive damages were available involved an action for marine trespass. See The Amiable Nancy, 3 Wheat. 546 (1818). In the course of deciding whether to uphold the jury’s award, Justice Story, writing for the Court, recognized that punitive damages are an available maritime remedy under the proper circumstances. Although the Court found that the particular facts of the case did not warrant such an award against the named defendants, it explained that “if this were a suit against the original wrong-doers, it might be proper to … visit upon them in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct.” Id., at 558; see also Barry, supra, at 563 (“In The Amiable Nancy, which was the case of a marine tort, Mr. Justice Story spoke of exemplary damages as ‘the proper punish- ment which belongs to … lawless misconduct’ ” (citation omitted)). The lower federal courts followed suit, finding that punitive damages were available in maritime actions for tortious acts of a particularly egregious nature. See, e.g., McGuire v. The Golden Gate, 16 F. Cas. 141, 143 (No. 8,815) (CC ND Cal. 1856) (“In an action against the perpetrator of the wrong, the aggrieved party would be entitled to recover not only actual damages but exemplary,—such as would vindicate his wrongs, and teach the tort feasor the necessity of reform”); Ralston v. The State Rights, 20 F. Cas. 201, 210 (No. 11,540) (DC ED Pa. 1836) (“[I]t is not legally correct … to say that a court cannot give exemplary damages, in a case like the present, against the owners of a vessel”); Boston Mfg. Co. v. Fiske, 3 F. Cas. 957 (No. 1,681) (CC Mass. 1820) (Story, J.) (“In cases of marine torts, or illegal captures, it is far from being uncommon in the admiralty to allow costs and expences, and to mulct the offending parties, even in exemplary damages, where the nature of the case requires it”). In short, prior to enactment of the Jones Act in 1920, “maritime jurisprudence was replete with judicial statements approving punitive damages, especially on behalf of passengers and seamen.” Robertson, Punitive Damages in American Maritime Law, 28 J. Mar. L. & Comm. 73, 115 (1997) (hereinafter Robertson); see also 2 Sedgwick §599b, at 1156 (“Exemplary damages are awarded in Admiralty, as in other jurisdictions”); 2 J. Sutherland, Law of Damages §392, p. 1272 (4th ed. 1916) (“As a rule a court of equity will not award [punitive] damages, but courts of admiralty will …” (footnote omitted)).[Footnote 2] C Nothing in maritime law undermines the applicability of this general rule in the maintenance and cure context. See G. Gilmore & C. Black, Law of Admiralty §6–13, p. 312 (2d ed. 1975) (hereinafter Gilmore & Black) (explaining that a seaman denied maintenance and cure “has a free option to claim damages (including punitive damages) under a general maritime law count”); Robertson 163 (concluding that breach of maintenance and cure is one of the particular torts for which general maritime law would most likely permit the awarding of punitive damages “assuming … the requisite level of blameworthiness”). Indeed, the legal obligation to provide maintenance and cure dates back centuries as an aspect of general maritime law, and the failure of a seaman’s employers to provide him with adequate medical care was the basis for awarding punitive damages in cases decided as early as the 1800’s. The right to receive maintenance and cure was first recognized in this country in two lower court decisions authored by Justice Story. See Harden v. Gordon, 11 F. Cas. 480 (No. 6,047) (CC Me. 1823); Reed v. Canfield, 20 F. Cas. 426 (No. 11,641) (CC Mass. 1832). According to Justice Story, this common-law obligation to seamen was justified on humanitarian and economic grounds: “If some provision be not made for [seamen] in sickness at the expense of the ship, they must often in foreign ports suffer the accumulated evils of disease, and poverty, and sometimes perish from the want of suitable nourishment… . [T]he merchant himself derives an ultimate benefit [because i]t encourages seamen to engage in perilous voyages with more promptitude, and at lower wages.” Harden, supra, at 483; see also Reed, supra, at 429 (“The seaman is to be cured at the expense of the ship, of the sickness or injury sustained in the ship’s service”). This Court has since registered its agreement with these decisions. “Upon a full review … of English and American authorities,” the Court concluded that “the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.” The Osceola, 189 U. S. 158, 175 (1903). Decisions following The Osceola have explained that in addition to wages, “maintenance” includes food and lodging at the expense of their ship, and “cure” refers to medical treatment. Lewis, 531 U. S., at 441; see also Gilmore & Black §6–12, at 267–268 (describing “maintenance and cure” as including medical expenses, a living allowance, and unearned wages). In addition, the failure of a vessel owner to provide proper medical care for seamen has provided the impetus for damages awards that appear to contain at least some punitive element. For example, in The City of Carlisle, 39 F. 807 (DC Ore. 1889), the court added $1,000 to its damages award to compensate an apprentice seaman for “gross neglect and cruel maltreatment of the [seaman] since his injury.” Id., at 809, 817. The court reviewed the indignities to which the apprentice had been subjected as he recovered without any serious medical attention, see id., at 810–812, and explained that “if owners do not wish to be mulct in damages for such misconduct, they should be careful to select men worthy to command their vessels and fit to be trusted with the safety and welfare of their crews, and particularly apprentice boys.” Id., at 817; see also The Troop, 118 F. 769, 770–771, 773 (DC Wash. 1902) (explaining that $4,000 was a reasonable award because the captain’s “failure to observe the dictates of humanity” and obtain prompt medical care for an injured seaman constituted a “monstrous wrong”).[Footnote 3] D The settled legal principles discussed above establish three points central to resolving this case. First, punitive damages have long been available at common law. Second, the common-law tradition of punitive damages extends to maritime claims.[Footnote 4] And third, there is no evidence that claims for maintenance and cure were excluded from this general admiralty rule. Instead, the pre-Jones Act evidence indicates that punitive damages remain available for such claims under the appropriate factual circumstances. As a result, respondent is entitled to pursue punitive damages unless Congress has enacted legislation departing from this common-law understanding. As explained below, it has not. III A The only statute that could serve as a basis for overturning the common-law rule in this case is the Jones Act. Congress enacted the Jones Act primarily to overrule The Osceola, supra, in which this Court prohibited a seaman or his family from recovering for injuries or death suffered due to his employers’ negligence. To this end, the statute provides in relevant part: “A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.” 46 U. S. C. §30104(a) (incorporating the Federal Employers’ Liability Act, 45 U. S. C. §§51–60). The Jones Act thus created a statutory cause of action for negligence, but it did not eliminate pre-existing remedies available to seamen for the separate common-law cause of action based on a seaman’s right to maintenance and cure. Section 30104 bestows upon the injured seaman the right to “elect” to bring a Jones Act claim, thereby indicating a choice of actions for seamen—not an exclusive remedy. See Funk & Wagnalls New Standard Dictionary of the English Language 798 (1913) (defining “elect” as “[t]o make choice of”); 1 Bouvier’s Law Dictionary 979 (8th ed. 1914) (defining “election” as “[c]hoice; selection”). Because the then-accepted remedies for injured seamen arose from general maritime law, see The Osceola, supra, at 175, it necessarily follows that Congress was envisioning the continued availability of those common-law causes of action. See Chandris, Inc. v. Latsis, 515 U. S. 347, 354 (1995) (“Congress enacted the Jones Act in 1920 to remove the bar to suit for negligence articulated in The Osceola, thereby completing the trilogy of heightened legal protections [including maintenance and cure] that seamen receive because of their exposure to the perils of the sea” (internal quotation marks omitted)); Stewart v. Dutra Constr. Co., 543 U. S. 481, 487 (2005) (describing the Jones Act as “remov[ing] this bar to negligence suits by seamen”). If the Jones Act had been the only remaining remedy available to injured seamen, there would have been no election to make. In addition, the only statutory restrictions expressly addressing general maritime claims for maintenance and cure were enacted long after the passage of the Jones Act. They limit its availability for two discrete classes of people: foreign workers on offshore oil and mineral production facilities, see §503(a)(2), 96 Stat. 1955, codified at 46 U. S. C. §30105(b), and sailing school students and instructors, §204, 96 Stat. 1589, codified at 46 U. S. C. §50504(b). These provisions indicate that “Congress knows how to” restrict the traditional remedy of maintenance and cure “when it wants to.” Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U. S. 97, 106 (1987). Thus, nothing in the statutory scheme for maritime recovery restricts the availability of punitive damages for maintenance and cure for those, like respondent, who are not precluded from asserting the general maritime claim. Further supporting this interpretation of the Jones Act, this Court has consistently recognized that the Act “was remedial, for the benefit and protection of seamen who are peculiarly the wards of admiralty. Its purpose was to enlarge that protection, not to narrow it.” The Arizona v. Anelich, 298 U. S. 110, 123 (1936); see also American Export Lines, Inc. v. Alvez, 446 U. S. 274, 282 (1980) (plurality opinion) (declining to “read the Jones Act as sweeping aside general maritime law remedies”); O’Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36, 43 (1943) (“It follows that the Jones Act, in extending a right of recovery to the seaman injured while in the service of his vessel by negligence, has done no more than supplement the remedy of maintenance and cure …”); Pacific S. S. Co. v. Peterson, 278 U. S. 130, 134, 138–139 (1928) (holding that the Jones Act “was not intended to restrict in any way the long-established right of a seaman to maintenance, cure and wages”). Not only have our decisions repeatedly observed that the Jones Act preserves common-law causes of action such as maintenance and cure, but our case law also supports the view that punitive damages awards, in particular, remain available in maintenance and cure actions after the Act’s passage. In Vaughan v. Atkinson, 369 U. S. 527 (1962), for example, the Court permitted the recovery of attorney’s fees for the “callous” and “willful and persistent” refusal to pay maintenance and cure. Id., at 529–531. In fact, even the Vaughan dissenters, who believed that such fees were generally unavailable, agreed that a seaman “would be entitled to exemplary damages in accord with traditional concepts of the law of damages” where a “shipowner’s refusal to pay maintenance stemmed from a wanton and intentional disregard of the legal rights of the seaman.” Id., at 540 (opinion of Stewart, J.); see also Fiske, 3 F. Cas., at 957 (Story, J.) (arguing that counsel fees are awardable in “[c]ourts of admiralty … not technically as costs, but upon the same principles, as they are often allowed damages in cases of torts, by courts of common law, as a recompense for injuries sustained, as exemplary damages, or as a remuneration for expences incurred, or losses sustained, by the misconduct of the other party”).[Footnote 5] Nothing in the text of the Jones Act or this Court’s decisions issued in the wake of its enactment undermines the continued existence of the common-law cause of action providing recovery for the delayed or improper provision of maintenance and cure. Petitioners do not deny the availability of punitive damages in general maritime law, or identify any cases establishing that such damages were historically unavailable for breach of the duty of maintenance and cure. The plain language of the Jones Act, then, does not provide the punitive damages bar that petitioners seek. B Petitioners nonetheless argue that the availability of punitive damages in this case is controlled by the Jones Act because of this Court’s decision in Miles, 498 U. S. 19; see also post, at 5–6 (opinion of Alito, J.). In Miles, petitioners argue, the Court limited recovery in maritime cases involving death or personal injury to the remedies available under the Jones Act and the Death on the High Seas Act (DOHSA), 46 U. S. C. §§30301–30306.[Footnote 6] Petitioners’ reading of Miles is far too broad. Miles does not address either maintenance and cure actions in general or the availability of punitive damages for such actions. The decision instead grapples with the entirely different question whether general maritime law should provide a cause of action for wrongful death based on unseaworthiness. By providing a remedy for wrongful death suffered on the high seas or in territorial waters, the Jones Act and DOHSA displaced a general maritime rule that denied any recovery for wrongful death. See Miles, 498 U. S., at 23–34. This Court, therefore, was called upon in Miles to decide whether these new statutes supported an expansion of the relief available under pre-existing general maritime law to harmonize it with a cause of action created by statute. The Court in Miles first concluded that the “unanimous legislative judgment behind the Jones Act, DOHSA, and the many state statutes” authorizing maritime wrongful-death actions, supported the recognition of a general maritime action for wrongful death of a seaman. Id., at 24 (discussing Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970), which overruled The Harrisburg, 119 U. S. 199 (1886)). Congress had chosen to limit, however, the damages available for wrongful-death actions under the Jones Act and DOHSA, such that damages were not statutorily available for loss of society or lost future earnings. See Miles, 498 U. S., at 21, 31–32. The Court thus concluded that Congress’ judgment must control the availability of remedies for wrongful-death actions brought under general maritime law, id., at 32–36. The reasoning of Miles remains sound. As the Court in that case explained, “[w]e no longer live in an era when seamen and their loved ones must look primarily to the courts as a source of substantive legal protection from injury and death; Congress and the States have legislated extensively in these areas.” Id., at 27. Furthermore, it was only because of congressional action that a general federal cause of action for wrongful death on the high seas and in territorial waters even existed; until then, there was no general common-law doctrine providing for such an action. As a result, to determine the remedies available under the common-law wrongful-death action, “an admiralty court should look primarily to these legislative enactments for policy guidance.” Ibid. It would have been illegitimate to create common-law remedies that exceeded those remedies statutorily available under the Jones Act and DOHSA. See id., at 36 (“We will not create, under our admiralty powers, a remedy … that goes well beyond the limits of Congress’ ordered system of recovery for seamen’s injury and death”). But application of that principle here does not lead to the outcome suggested by petitioners or the dissent. See post, at 2–3. Unlike the situation presented in Miles, both the general maritime cause of action (maintenance and cure) and the remedy (punitive damages) were well established before the passage of the Jones Act. See supra, at 3–8. Also unlike the facts presented by Miles, the Jones Act does not address maintenance and cure or its remedy.[Footnote 7] It is therefore possible to adhere to the traditional understanding of maritime actions and remedies without abridging or violating the Jones Act; unlike wrongful-death actions, this traditional understanding is not a matter to which “Congress has spoken directly.” See Miles, supra, at 31 (citing Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978)). Indeed, the Miles Court itself acknowledged that “[t]he Jones Act evinces no general hostility to recovery under maritime law,” 498 U. S., at 29, and noted that statutory remedy limitations “would not necessarily deter us, if recovery … were more consistent with the general principles of maritime tort law.” Id., at 35. The availability of punitive damages for maintenance and cure actions is entirely faithful to these “general principles of maritime tort law,” and no statute casts doubt on their availability under general maritime law. Moreover, petitioners’ contention that Miles precludes any action or remedy for personal injury beyond that made available under the Jones Act was directly rejected by this Court in Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U. S. 811, 818 (2001). That case involved the death of a harbor worker. Ibid. There, the Court recognized a maritime cause of action for wrongful death attributable to negligence although neither the Jones Act (which applies only to seamen) nor DOHSA (which does not cover territorial waters) provided such a remedy. Id., at 817–818. The Court acknowledged that “it will be the better course, in many cases that assert new claims beyond what those statutes have seen fit to allow, to leave further development to Congress.” Id., at 820. But the Court concluded that the cause of action at issue there was “new only in the most technical sense” because “[t]he general maritime law has recognized the tort of negligence for more than a century, and it has been clear since Moragne that breaches of a maritime duty are actionable when they cause death, as when they cause injury.” Ibid. The Court thus found that “Congress’s occupation of this field is not yet so extensive as to preclude us from recognizing what is already logically compelled by our precedents.” Ibid. Because Miles presented no barrier to this endorsement of a previously unrecognized maritime cause of action for negligent wrongful death, we see no legitimate basis for a contrary conclusion in the present case. Like negligence, “[t]he general maritime law has recognized … for more than a century” the duty of maintenance and cure and the general availability of punitive damages. See Garris, supra, at 820; see also supra, at 3–8. And because respondent does not ask this Court to alter statutory text or “expand” the general principles of maritime tort law, Miles does not require us to eliminate the general maritime remedy of punitive damages for the willful or wanton failure to comply with the duty to pay maintenance and cure. “We assume that Congress is aware of existing law when it passes legislation,” Miles, supra, at 32, and the available history suggests that punitive damages were an established part of the maritime law in 1920, see supra, at 5–8.[Footnote 8] It remains true, of course, that “[a]dmiralty is not created in a vacuum; legislation has always served as an important source of both common law and admiralty principles.” Miles, supra, at 24. And it also is true that the negligent denial of maintenance and cure may also be the subject of a Jones Act claim. See Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367 (1932).[Footnote 9] But the fact that seamen commonly seek to recover under the Jones Act for the wrongful withholding of maintenance and cure does not mean that the Jones Act provides the only remedy for maintenance and cure claims. Indeed, contrary to petitioners’ view that the Jones Act replaced in their entirety the remedies available at common law for maintenance and cure, the Cortes decision explicitly acknowledged a seaman’s right to choose among overlapping statutory and common-law remedies for injuries sustained by the denial of maintenance and cure. See 287 U. S., at 374–375 (A seaman’s “cause of action for personal injury created by the statute may have overlapped his cause of action for breach of the maritime duty of maintenance and cure … . In such circumstances it was his privilege, in so far as the causes of action covered the same ground, to sue indifferently on any one of them”).[Footnote 10] As this Court has repeatedly explained, “remedies for negligence, unseaworthiness, and maintenance and cure have different origins and may on occasion call for application of slightly different principles and procedures.” Fitzgerald v. United States Lines Co., 374 U. S. 16, 18 (1963); see also Peterson, 278 U. S., at 138, 139 (emphasizing that a seaman’s action for maintenance and cure is “independent” and “cumulative” from other claims such as negligence and that the maintenance and cure right is “in no sense inconsistent with, or an alternative of, the right to recover compensatory damages [under the Jones Act]”). See also Gilmore & Black §6–23, at 342 (“It is unquestioned law that both the Jones Act and the unseaworthiness remedies are additional to maintenance and cure: the seaman may have maintenance and cure and also one of the other two”). The laudable quest for uniformity in admiralty does not require the narrowing of available damages to the lowest common denominator approved by Congress for distinct causes of action.[Footnote 11] Although “ Congress … is free to say this much and no more,” Miles, 498 U. S., at 24 (internal quotation marks omitted), we will not attribute words to Congress that it has not written. IV Because punitive damages have long been an accepted remedy under general maritime law, and because nothing in the Jones Act altered this understanding, such damages for the willful and wanton disregard of the maintenance and cure obligation should remain available in the appropriate case as a matter of general maritime law.[Footnote 12] Limiting recovery for maintenance and cure to whatever is permitted by the Jones Act would give greater pre-emptive effect to the Act than is required by its text, Miles, or any of this Court’s other decisions interpreting the statute. For these reasons, we affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Atlantic Sounding Co., Inc., is a wholly owned subsidiary of Weeks Marine, Inc., the other petitioner in this case. Footnote 2 Although punitive damages awards were rarely upheld on judicial review, but see Roza v. Smith, 65 F. 592, 596–597 (DC ND Cal. 1895); Gallagher v. The Yankee, 9 F. Cas. 1091, 1093 (No. 5,196) (DC ND Cal. 1859), that fact does not draw into question the basic understanding that punitive damages were considered an available maritime remedy. Indeed, in several cases in which a judgment awarding punitive damage awards was overturned on appeal, the reversal was based on unrelated grounds. See, e.g., The Margharita, 140 F. 820, 824 (CA5 1905); Pacific Packing & Nav. Co. v. Fielding, 136 F. 577, 580 (CA9 1905); Latchtimacker v. Jacksonville Towing & Wrecking Co., 181 F. 276, 278 (CC SD Fla. 1910). Footnote 3 Although these cases do not refer to “punitive” or “exemplary” damages, scholars have characterized the awards authorized by these decisions as such. See Robertson 103–105; Edelman, Guevara v. Maritime Overseas Corp.: Opposing the Decision, 20 Tulane Mar. L. J. 349, 351, and n. 22 (1996). Footnote 4 The dissent correctly notes that the handful of early cases involving maintenance and cure, by themselves, do not definitively resolve the question of punitive damages availability in such cases. See post, at 6–8 (opinion of Alito, J.). However, it neglects to acknowledge that the general common-law rule made punitive damages available in maritime actions. See supra, at 5–6. Nor does the dissent explain why maintenance and cure actions should be excepted from this general rule. It is because of this rule, and the fact that these early cases support—rather than refute—its application to maintenance and cure actions, see supra, at 7–8, that the pre-Jones Act evidence supports the conclusion that punitive damages were available at common law where the denial of maintenance and cure involved wanton, willful, or outrageous conduct. Footnote 5 In the wake of Vaughan, a number of lower courts expressly held that punitive damages can be recovered for the denial of maintenance and cure. See, e.g., Hines v. J. A. Laporte, Inc., 820 F. 2d 1187, 1189 (CA11 1987) (per curiam) (upholding punitive damages award of $5,000 for an “arbitrary and bad faith breach of the duty to furnish maintenance and cure”); Robinson v. Pocahontas, Inc., 477 F. 2d 1048, 1049–1052 (CA1 1973) (affirming punitive damages award of $10,000 which was based, in part, on the defendant’s initial withholding of maintenance and cure on the pretext that the seaman had been fired for cause). Footnote 6 DOHSA applies only to individuals killed (not merely injured) by conduct on the high seas. See 46 U. S. C. §30302. Because this case involves injuries to a seaman, and not death on the high seas, DOHSA is not relevant. Footnote 7 Respondent’s claim is not affected by the statutory amendments to the Jones Act that limit maintenance and cure recovery in cases involving foreign workers on offshore oil and mineral production facilities, see 46 U. S. C. §30105, or sailing school students and instructors, §50504. See supra, at 11. Footnote 8 In light of the Court’s decision in Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U. S. 811, 818 (2001), our reading of Miles cannot, as the dissent contends, represent an “abrup[t]” change of course. See post, at 1. Footnote 9 For those maintenance and cure claims that do not involve personal injury (and thus cannot be asserted under the Jones Act), the dissent argues that punitive damages should be barred because such claims are based in contract, not tort. See post, at 8. But the right of maintenance and cure “was firmly established in the maritime law long before recognition of the distinction between tort and contract.” O’Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36, 42 (1943). Although the right has been described as incident to contract, it cannot be modified or waived. See Cortes v. Baltimore Insular Line, Inc., 287 U. S. 367, 372 (1932). Footnote 10 The fact that, in some cases, a violation of the duty of maintenance and cure may also give rise to a Jones Act claim, see post, at 3 (opinion of Alito, J.), is significant only in that it requires admiralty courts to ensure against double recovery. See Fitzgerald v. United States Lines Co., 374 U. S. 16, 18–19 (1963) (authorizing a jury trial when a maintenance and cure claim is joined with a Jones Act claim because, “[r]equiring a seaman to split up his lawsuit, submitting part of it to a jury and part to a judge … can easily result in too much or too little recovery”). Thus, a court may take steps to ensure that any award of damages for lost wages in a Jones Act negligence claim is offset by the amount of lost wages awarded as part of a recovery of maintenance and cure. See, e.g., Petition of Oskar Tiedemann & Co., 367 F. 2d 498, 505, n. 6 (CA3 1966); Crooks v. United States, 459 F. 2d 631, 633 (CA9 1972). Footnote 11 Although this Court has recognized that it may change maritime law in its operation as an admiralty court, see Edmonds v. Compagnie Generale Transatlantique, 443 U. S. 256, 271 (1979), petitioners have not asked the Court to do so in this case or pointed to any serious anomalies, with respect to the Jones Act or otherwise, that our holding may create. Nor have petitioners argued that the size of punitive damages awards in maintenance and cure cases necessitates a recovery cap, which the Court has elsewhere imposed. See Exxon Shipping Co. v. Baker, 554 U. S. ___, ___ (2008) (slip op., at 42) (imposing a punitive-to-compensatory ratio of 1:1). We do not decide these issues. Footnote 12 Because we hold that Miles does not render the Jones Act’s damages provision determinative of respondent’s remedies, we do not address the dissent’s argument that the Jones Act, by incorporating the provisions of the Federal Employers’ Liability Act, see 46 U. S. C. §30104(a), prohibits the recovery of punitive damages in actions under that statute. See post, at 3–5. |
556.US.1 | Despite the North Carolina Constitution’s “Whole County Provision” prohibiting the General Assembly from dividing counties when drawing its own legislative districts, in 1991 the legislature drew House District 18 to include portions of four counties, including Pender County, for the asserted purpose of satisfying §2 of the Voting Rights Act of 1965. At that time, District 18 was a geographically compact majority-minority district. By the time the district was to be redrawn in 2003, the African-American voting-age population in District 18 had fallen below 50 percent. Rather than redrawing the district to keep Pender County whole, the legislators split portions of it and another county. District 18’s African-American voting-age population is now 39.36 percent. Keeping Pender County whole would have resulted in an African-American voting-age population of 35.33 percent. The legislators’ rationale was that splitting Pender County gave African-American voters the potential to join with majority voters to elect the minority group’s candidate of choice, while leaving Pender County whole would have violated §2 of the Voting Rights Act. Pender County and others filed suit, alleging that the redistricting plan violated the Whole County Provision. The state-official defendants answered that dividing Pender County was required by §2. The trial court first considered whether the defendants had established the three threshold requirements for §2 liability under Thornburg v. Gingles, 478 U. S. 30, 51, only the first of which is relevant here: whether the minority group “is sufficiently large and geographically compact to constitute a majority in a single-member district.” The court concluded that although African-Americans were not a majority of District 18’s voting-age population, the district was a “de facto” majority-minority district because African-Americans could get enough support from crossover majority voters to elect their preferred candidate. The court ultimately determined, based on the totality of the circumstances, that §2 required that Pender County be split, and it sustained District 18’s lines on that rationale. The State Supreme Court reversed, holding that a minority group must constitute a numerical majority of the voting-age population in an area before §2 requires the creation of a legislative district to prevent dilution of that group’s votes. Because African-Americans did not have such a numerical majority in District 18, the court ordered the legislature to redraw the district. Held: The judgment is affirmed. 361 N. C. 491, 649 S. E. 2d 364, affirmed. Justice Kennedy, joined by The Chief Justice and Justice Alito, concluded that §2 does not require state officials to draw election-district lines to allow a racial minority that would make up less than 50 percent of the voting-age population in the redrawn district to join with crossover voters to elect the minority’s candidate of choice. Pp. 5–21. 1. As amended in 1982, §2 provides that a violation “is established if, based on the totality of circumstances, it is shown that the [election] processes … in the State or political subdivision are not equally open to participation by members of a [protected] class [who] 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). Construing the amended §2 in Gingles, supra, at 50–51, the Court identified three “necessary preconditions” for a claim that the use of multimember districts constituted actionable vote dilution. It later held that those requirements apply equally in §2 cases involving single-member districts. Growe v. Emison, 507 U. S. 25, 40–41. Only when a party has established the requirements does a court proceed to analyze whether a §2 violation has occurred based on the totality of the circumstances. See, e.g., Johnson v. De Grandy, 512 U. S. 997, 1013. Pp. 5–7. 2. Only when a geographically compact group of minority voters could form a majority in a single-member district has the first Gingles requirement been met. Pp. 7–21. (a) A party asserting §2 liability must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50 percent. The Court has held both that §2 can require the creation of a “majority-minority” district, in which a minority group composes a numerical, working majority of the voting-age population, see, e.g., Voinovich v. Quilter, 507 U. S. 146, 154–155, and that §2 does not require the creation of an “influence” district, in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected, see League of United Latin American Citizens v. Perry, 548 U. S. 399, ___ (LULAC). This case involves an intermediate, “crossover” district, in which the minority makes up less than a majority of the voting-age population, but is large enough to elect the candidate of its choice with help from majority voters who cross over to support the minority’s preferred candidate. Petitioners’ theory that such districts satisfy the first Gingles requirement is contrary to §2, which requires a showing that minorities “have less opportunity than other members of the electorate to … elect representatives of their choice,” 42 U. S. C. §1973(b). Because they form only 39 percent of District 18’s voting-age population, African-Americans standing alone have no better or worse opportunity to elect a candidate than any other group with the same relative voting strength. Recognizing a §2 claim where minority voters cannot elect their candidate of choice based on their own votes and without assistance from others would grant special protection to their right to form political coalitions that is not authorized by the section. Nor does the reasoning of this Court’s cases support petitioners’ claims. In Voinovich, for example, the Court stated that the first Gingles requirement “would have to be modified or eliminated” to allow crossover-district claims. 507 U. S., at 158. Indeed, mandatory recognition of such claims would create serious tension with the third Gingles requirement, that the majority votes as a bloc to defeat minority-preferred candidates, see 478 U. S., at 50–51, and would call into question the entire Gingles framework. On the other hand, the Court finds support for the clear line drawn by the majority-minority requirement in the need for workable standards and sound judicial and legislative administration. By contrast, if §2 required crossover districts, determining whether a §2 claim would lie would require courts to make complex political predictions and tie them to race-based assumptions. Heightening these concerns is the fact that because §2 applies nationwide to every jurisdiction required to draw election-district lines under state or local law, crossover-district claims would require courts to make predictive political judgments not only about familiar, two-party contests in large districts but also about regional and local elections. Unlike any of the standards proposed to allow crossover claims, the majority-minority rule relies on an objective, numerical test: Do minorities make up more than 50 percent of the voting-age population in the relevant geographic area? Given §2’s text, the Court’s cases interpreting that provision, and the many difficulties in assessing §2 claims without the restraint and guidance provided by the majority-minority rule, all of the federal courts of appeals that have interpreted the first Gingles factor have required a majority-minority standard. The Court declines to depart from that uniform interpretation, which has stood for more than 20 years. Because this case does not involve allegations of intentional and wrongful conduct, the Court need not consider whether intentional discrimination affects the Gingles analysis. Pp. 7–15. (b) Arguing for a less restrictive interpretation, petitioners point to §2’s guarantee that political processes be “equally open to participation” to protect minority voters’ “opportunity … to elect representatives of their choice,” 42 U. S. C. §1973(b), and assert that such “opportunit[ies]” occur in crossover districts and require protection. But petitioners emphasize the word “opportunity” at the expense of the word “equally.” The statute does not protect any possible opportunity through which minority voters could work with other constituencies to elect their candidate of choice. Section 2 does not guarantee minority voters an electoral advantage. Minority groups in crossover districts have the same opportunity to elect their candidate as any other political group with the same relative voting strength. The majority-minority rule, furthermore, is not at odds with §2’s totality-of-the-circumstances test. See, e.g., Growe, supra, at 40. Any doubt as to whether §2 calls for this rule is resolved by applying the canon of constitutional avoidance to steer clear of serious constitutional concerns under the Equal Protection Clause. See Clark v. Martinez, 543 U. S. 371, 381–382. Such concerns would be raised if §2 were interpreted to require crossover districts throughout the Nation, thereby “unnecessarily infus[ing] race into virtually every redistricting.” LULAC, supra, at 446. Pp. 16–18. (c) This holding does not consider the permissibility of crossover districts as a matter of legislative choice or discretion. Section 2 allows States to choose their own method of complying with the Voting Rights Act, which may include drawing crossover districts. See Georgia v. Ashcroft, 539 U. S. 461, 480–482. Moreover, the holding should not be interpreted to entrench majority-minority districts by statutory command, for that, too, could pose constitutional concerns. See, e.g., Miller v. Johnson, 515 U. S. 900. Such districts are only required if all three Gingles factors are met and if §2 applies based on the totality of the circumstances. A claim similar to petitioners’ assertion that the majority-minority rule is inconsistent with §5 was rejected in LULAC, supra, at ___. Pp. 19–21. Justice Thomas, joined by Justice Scalia, adhered to his view in Holder v. Hall, 512 U. S. 874, 891, 893 (opinion concurring in judgment), that the text of §2 of the Voting Rights Act of 1965 does not authorize any vote dilution claim, regardless of the size of the minority population in a given district. The Thornburg v. Gingles, 478 U. S. 30, framework for analyzing such claims has no basis in §2’s text and “has produced … a disastrous misadventure in judicial policymaking,” Holder, supra, at 893. P. 1. Kennedy, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Alito, J., joined. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Ginsburg, J., and Breyer, J., filed dissenting opinions. | (allowing influence-district claim to survive motion to dismiss but noting “there is tension in this case for plaintiffs in any effort to satisfy both the first and third prong of Gingles”). We find support for the majority-minority requirement in the need for workable standards and sound judicial and legislative administration. The rule draws clear lines for courts and legislatures alike. The same cannot be said of a less exacting standard that would mandate crossover districts under §2. Determining whether a §2 claim would lie—i.e., determining whether potential districts could function as crossover districts—would place courts in the untenable position of predicting many political variables and tying them to race-based assumptions. The judiciary would be directed to make predictions or adopt premises that even experienced polling analysts and political experts could not assess with certainty, particularly over the long term. For example, courts would be required to pursue these inquiries: What percentage of white voters supported minority-preferred candidates in the past? How reliable would the crossover votes be in future elections? What types of candidates have white and minority voters supported together in the past and will those trends continue? Were past crossover votes based on incumbency and did that depend on race? What are the historical turnout rates among white and minority voters and will they stay the same? Those questions are speculative, and the answers (if they could be supposed) would prove elusive. A requirement to draw election districts on answers to these and like inquiries ought not to be inferred from the text or purpose of §2. Though courts are capable of making refined and exacting factual inquiries, they “are inherently ill-equipped” to “make decisions based on highly political judgments” of the sort that crossover-district claims would require. Holder, 512 U. S., at 894 (Thomas, J., concurring in judgment). There is an underlying principle of fundamental importance: We must be most cautious before interpreting a statute to require courts to make inquiries based on racial classifications and race-based predictions. The statutory mandate petitioners urge us to find in §2 raises serious constitutional questions. See infra, at 16–18. Heightening these concerns even further is the fact that §2 applies nationwide to every jurisdiction that must draw lines for election districts required by state or local law. Crossover-district claims would require courts to make predictive political judgments not only about familiar, two-party contests in large districts but also about regional and local jurisdictions that often feature more than two parties or candidates. Under petitioners’ view courts would face the difficult task of discerning crossover patterns in nonpartisan contests for a city commission, a school board, or a local water authority. The political data necessary to make such determinations are nonexistent for elections in most of those jurisdictions. And predictions would be speculative at best given that, especially in the context of local elections, voters’ personal affiliations with candidates and views on particular issues can play a large role. Unlike any of the standards proposed to allow crossover-district claims, the majority-minority rule relies on an objective, numerical test: Do minorities make up more than 50 percent of the voting-age population in the relevant geographic area? That rule provides straightforward guidance to courts and to those officials charged with drawing district lines to comply with §2. See LULAC, supra, at 485 (opinion of Souter, J.) (recognizing need for “clear-edged rule”). Where an election district could be drawn in which minority voters form a majority but such a district is not drawn, or where a majority-minority district is cracked by assigning some voters elsewhere, then—assuming the other Gingles factors are also satisfied—denial of the opportunity to elect a candidate of choice is a present and discernible wrong that is not subject to the high degree of speculation and prediction attendant upon the analysis of crossover claims. Not an arbitrary invention, the majority-minority rule has its foundation in principles of democratic governance. The special significance, in the democratic process, of a majority means it is a special wrong when a minority group has 50 percent or more of the voting population and could constitute a compact voting majority but, despite racially polarized bloc voting, that group is not put into a district. Given the text of §2, our cases interpreting that provision, and the many difficulties in assessing §2 claims without the restraint and guidance provided by the majority-minority rule, no federal court of appeals has held that §2 requires creation of coalition districts. Instead, all to consider the question have interpreted the first Gingles factor to require a majority-minority standard. See Hall, 385 F. 3d, at 427–430 (CA4 2004), cert. denied, 544 U. S. 961 (2005); Valdespino v. Alamo Heights Independent School Dist., 168 F. 3d 848, 852–853 (CA5 1999), cert. denied, 528 U. S. 1114 (2000); Cousin v. Sundquist, 145 F. 3d 818, 828–829 (CA6 1998), cert. denied, 525 U. S. 1138 (1999); Sanchez v. Colorado, 97 F. 3d 1303, 1311–1312 (CA10 1996), cert. denied, 520 U. S. 1229 (1997); Romero v. Pomona, 883 F. 2d 1418, 1424, n. 7, 1425–1426 (CA9 1989), overruled on other grounds, 914 F. 2d 1136, 1141 (CA9 1990); McNeil v. Springfield Park Dist., 851 F. 2d 937, 947 (CA7 1988), cert. denied, 490 U. S. 1031 (1989). Cf. Metts, 363 F. 3d, at 11 (expressing unwillingness “at the complaint stage to foreclose the possibility” of influence-district claims). We decline to depart from the uniform interpretation of §2 that has guided federal courts and state and local officials for more than 20 years. To be sure, the Gingles requirements “cannot be applied mechanically and without regard to the nature of the claim.” Voinovich, 507 U. S., at 158. It remains the rule, however, that a party asserting §2 liability must show by a preponderance of the evidence that the minority population in the potential election district is greater than 50 percent. No one contends that the African-American voting-age population in District 18 exceeds that threshold. Nor does this case involve allegations of intentional and wrongful conduct. We therefore need not consider whether intentional discrimination affects the Gingles analysis. Cf. Brief for United States as Amicus Curiae 14 (evidence of discriminatory intent “tends to suggest that the jurisdiction is not providing an equal opportunity to minority voters to elect the representative of their choice, and it is therefore unnecessary to consider the majority-minority requirement before proceeding to the ultimate totality-of-the-circumstances analysis”); see also Garza v. County of Los Angeles, 918 F. 2d 763, 771 (CA9 1990). Our holding does not apply to cases in which there is intentional discrimination against a racial minority. B In arguing for a less restrictive interpretation of the first Gingles requirement petitioners point to the text of §2 and its guarantee that political processes be “equally open to participation” to protect minority voters’ “opportunity … to elect representatives of their choice.” 42 U. S. C. §1973(b) (2000 ed.). An “opportunity,” petitioners argue, occurs in crossover districts as well as majority-minority districts; and these extended opportunities, they say, require §2 protection. But petitioners put emphasis on the word “opportunity” at the expense of the word “equally.” The statute does not protect any possible opportunity or mechanism through which minority voters could work with other constituencies to elect their candidate of choice. Section 2 does not guarantee minority voters an electoral advantage. Minority groups in crossover districts cannot form a voting majority without crossover voters. In those districts minority voters have the same opportunity to elect their candidate as any other political group with the same relative voting strength. The majority-minority rule, furthermore, is not at odds with §2’s totality-of-the-circumstances test. The Court in De Grandy confirmed “the error of treating the three Gingles conditions as exhausting the enquiry required by §2.” 512 U. S., at 1013. Instead the Gingles requirements are preconditions, consistent with the text and purpose of §2, to help courts determine which claims could meet the totality-of-the-circumstances standard for a §2 violation. See Growe, 507 U. S., at 40 (describing the “Gingles threshold factors”). To the extent there is any doubt whether §2 calls for the majority-minority rule, we resolve that doubt by avoiding serious constitutional concerns under the Equal Protection Clause. See Clark v. Martinez, 543 U. S. 371, 381–382 (2005) (canon of constitutional avoidance is “a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts”). Of course, the “moral imperative of racial neutrality is the driving force of the Equal Protection Clause,” and racial classifications are permitted only “as a last resort.” Richmond v. J. A. Croson Co., 488 U. S. 469, 518, 519 (1989) (Kennedy, J., concurring in part and concurring in judgment). “Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire.” Shaw v. Reno, 509 U. S. 630, 657 (1993). If §2 were interpreted to require crossover districts throughout the Nation, “it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions.” LULAC, 548 U. S., at 446 (opinion of Kennedy, J.); see also Ashcroft, 539 U. S., at 491 (Kennedy, J., concurring). That interpretation would result in a substantial increase in the number of mandatory districts drawn with race as “the predominant factor motivating the legislature’s decision.” Miller v. Johnson, 515 U. S. 900, 916 (1995). On petitioners’ view of the case courts and legislatures would need to scrutinize every factor that enters into districting to gauge its effect on crossover voting. Injecting this racial measure into the nationwide districting process would be of particular concern with respect to consideration of party registration or party influence. The easiest and most likely alliance for a group of minority voters is one with a political party, and some have suggested using minority voters’ strength within a particular party as the proper yardstick under the first Gingles requirement. See, e.g., LULAC, supra, at 485–486 (opinion of Souter, J.) (requiring only “that minority voters … constitute a majority of those voting in the primary of … the party tending to win in the general election”). That approach would replace an objective, administrable rule with a difficult “judicial inquiry into party rules and local politics” to determine whether a minority group truly “controls” the dominant party’s primary process. McLoughlin, Gingles in Limbo: Coalitional Districts, Party Primaries and Manageable Vote Dilution Claims, 80 N. Y. U. L. Rev. 312, 349 (2005). More troubling still is the inquiry’s fusion of race and party affiliation as a determinant when partisan considerations themselves may be suspect in the drawing of district lines. See Vieth v. Jubelirer, 541 U. S. 267, 317 (2004) (Stevens, J., dissenting); id., at 316 (Kennedy, J., concurring in judgment); see also Pildes 1565 (crossover-district requirement would essentially result in political party “entitlement to … a certain number of seats”). Disregarding the majority-minority rule and relying on a combination of race and party to presume an effective majority would involve the law and courts in a perilous enterprise. It would rest on judicial predictions, as a matter of law, that race and party would hold together as an effective majority over time—at least for the decennial apportionment cycles and likely beyond. And thus would the relationship between race and party further distort and frustrate the search for neutral factors and principled rationales for districting. Petitioners’ approach would reverse the canon of avoidance. It invites the divisive constitutional questions that are both unnecessary and contrary to the purposes of our precedents under the Voting Rights Act. Given the consequences of extending racial considerations even further into the districting process, we must not interpret §2 to require crossover districts. C Our holding that §2 does not require crossover districts does not consider the permissibility of such districts as a matter of legislative choice or discretion. Assuming a majority-minority district with a substantial minority population, a legislative determination, based on proper factors, to create two crossover districts may serve to diminish the significance and influence of race by encouraging minority and majority voters to work together toward a common goal. The option to draw such districts gives legislatures a choice that can lead to less racial isolation, not more. And as the Court has noted in the context of §5 of the Voting Rights Act, “various studies have suggested that the most effective way to maximize minority voting strength may be to create more influence or [crossover] districts.” Ashcroft, 539 U. S., at 482. Much like §5, §2 allows States to choose their own method of complying with the Voting Rights Act, and we have said that may include drawing crossover districts. See id., at 480–483. When we address the mandate of §2, however, we must note it is not concerned with maximizing minority voting strength, De Grandy, 512 U. S., at 1022; and, as a statutory matter, §2 does not mandate creating or preserving crossover districts. Our holding also should not be interpreted to entrench majority-minority districts by statutory command, for that, too, could pose constitutional concerns. See Miller v. Johnson, supra; Shaw v. Reno, supra. States that wish to draw crossover districts are free to do so where no other prohibition exists. Majority-minority districts are only required if all three Gingles factors are met and if §2 applies based on a totality of the circumstances. In areas with substantial crossover voting it is unlikely that the plaintiffs would be able to establish the third Gingles precondition—bloc voting by majority voters. See supra, at 11. In those areas majority-minority districts would not be required in the first place; and in the exercise of lawful discretion States could draw crossover districts as they deemed appropriate. See Pildes 1567 (“Districts could still be designed in such places that encouraged coalitions across racial lines, but these districts would result from legislative choice, not … obligation”). States can—and in proper cases should—defend against alleged §2 violations by pointing to crossover voting patterns and to effective crossover districts. Those can be evidence, for example, of diminished bloc voting under the third Gingles factor or of equal political opportunity under the §2 totality-of-the-circumstances analysis. And if there were a showing that a State intentionally drew district lines in order to destroy otherwise effective crossover districts, that would raise serious questions under both the Fourteenth and Fifteenth Amendments. See Reno v. Bossier Parish School Bd., 520 U. S. 471, 481–482 (1997); Brief for United States as Amicus Curiae 13–14. There is no evidence of discriminatory intent in this case, however. Our holding recognizes only that there is no support for the claim that §2 can require the creation of crossover districts in the first instance. Petitioners claim the majority-minority rule is inconsistent with §5, but we rejected a similar argument in LULAC, 548 U. S., at 446 (opinion of Kennedy, J.). The inquiries under §§2 and 5 are different. Section 2 concerns minority groups’ opportunity “to elect representatives of their choice,” 42 U. S. C. §1973(b) (2000 ed.), while the more stringent §5 asks whether a change has the purpose or effect of “denying or abridging the right to vote,” §1973c. See LULAC, supra, at 446; Bossier Parish, supra, at 476–480. In LULAC, we held that although the presence of influence districts is relevant for the §5 retrogression analysis, “the lack of such districts cannot establish a §2 violation.” 548 U. S., at 446 (opinion of Kennedy, J.); see also Ashcroft, 539 U. S., at 482–483. The same analysis applies for crossover districts: Section 5 “leaves room” for States to employ crossover districts, id., at 483, but §2 does not require them. IV Some commentators suggest that racially polarized voting is waning—as evidenced by, for example, the election of minority candidates where a majority of voters are white. See Note, The Future of Majority-Minority Districts in Light of Declining Racially Polarized Voting, 116 Harv. L. Rev. 2208, 2209 (2003); see also id., at 2216–2222; Pildes 1529–1539; Bullock & Dunn, The Demise of Racial Districting and the Future of Black Representation, 48 Emory L. J. 1209 (1999). Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions; and §2 must be interpreted to ensure that continued progress. It would be an irony, however, if §2 were interpreted to entrench racial differences by expanding a “statute meant to hasten the waning of racism in American politics.” De Grandy, supra, at 1020. Crossover districts are, by definition, the result of white voters joining forces with minority voters to elect their preferred candidate. The Voting Rights Act was passed to foster this cooperation. We decline now to expand the reaches of §2 to require, by force of law, the voluntary cooperation our society has achieved. Only when a geographically compact group of minority voters could form a majority in a single-member district has the first Gingles requirement been met. The judgment of the Supreme Court of North Carolina is affirmed. It is so ordered. |
556.US.825 | In Atkins v. Virginia, 536 U. S. 304, this Court held that the Eighth Amendment bars execution of mentally retarded offenders. Prior to Atkins, mental retardation merited consideration as a mitigating factor, but did not bar imposition of the death penalty. See Penry v. Lynaugh, 492 U. S. 302. Nearly a decade before Atkins, respondent Bies was tried and convicted in Ohio of the aggravated murder, kidnaping, and attempted rape of a ten-year-old boy. Instructed at the sentencing stage to weigh mitigating circumstances (including evidence of Bies’ mild to borderline mental retardation) against aggravating factors (including the crime’s brutality), the jury recommended a death sentence, which the trial court imposed. Ohio’s Court of Appeals and Supreme Court affirmed the conviction and sentence, each concluding that Bies’ mental retardation was entitled to “some weight” as a mitigating factor, but that the aggravating circumstances outweighed the mitigating circumstances. Bies then filed an unsuccessful petition for state postconviction relief, contending for the first time that the Eighth Amendment prohibits execution of a mentally retarded defendant. Soon after Bies sought federal habeas relief, this Court decided Atkins. The opinion left to the States the task of developing appropriate ways to determine when a person claiming mental retardation would fall within Atkins’ compass. Ohio heeded Atkins’ call in State v. Lott. The District Court then stayed Bies’ federal habeas proceedings so that he could present an Atkins claim to the state postconviction court. Observing that Bies’ mental retardation had not previously been established under the Atkins-Lott framework, the state court denied Bies’ motion for summary judgment and ordered a full hearing on the Atkins claim. Rather than proceeding with that hearing, Bies returned to federal court, arguing that the Double Jeopardy Clause barred the State from relitigating the mental retardation issue. The District Court granted the habeas petition, and the Sixth Circuit affirmed. Relying on Ashe v. Swenson, 397 U. S. 436, the Court of Appeals determined that all requirements for the issue preclusion component of the Double Jeopardy Clause were met in Bies’ case. It concluded, inter alia, that the Ohio Supreme Court, on direct appeal, had decided the mental retardation issue under the same standard that court later adopted in Lott, and that the state court’s recognition of Bies’ mental state had been necessary to the death penalty judgment. When the Sixth Circuit denied the State’s petition for rehearing en banc, a concurring judge offered an alternative basis for decision. He opined that, under Sattazahn v. Pennsylvania, 537 U. S. 101, jeopardy attaches once a capital defendant is “acquitted” based on findings establishing an entitlement to a life sentence; reasoning that the Ohio courts’ mental retardation findings entitled Bies to a life sentence, he concluded that the Double Jeopardy Clause barred any renewed inquiry into Bies’ mental state. Held: The Double Jeopardy Clause does not bar the Ohio courts from conducting a full hearing on Bies’ mental capacity. Pp. 7–11. (a) The alternative basis for decision offered by the concurring opinion at the Sixth Circuit’s rehearing stage is rejected. The State did not “twice put [Bies] in jeopardy,” U. S. Const., Amdt. 5, in the core constitutional sense. Sattazahn offers Bies no aid, for there was no acquittal here. Bies’ jury voted to impose the death penalty. At issue is his attempt to vacate that sentence, not an effort by the State to retry him or to increase his punishment. Nor did the state courts’ mental retardation determinations entitle Bies to a life sentence. At the time of his sentencing and direct appeal, Penry, not Atkins, was the guiding decision, and the dispositive issue was whether the mitigating factors were outweighed by the aggravating circumstances beyond a reasonable doubt. Pp. 7–8. (b) The issue preclusion doctrine, on which the Sixth Circuit panel primarily relied, does not bar a full airing of the issue whether Bies qualifies as mentally retarded under Atkins and Lott. The doctrine bars relitigation of issues actually determined and necessary to the ultimate outcome of a prior proceeding. Initially, it is not clear that the issue of Bies’ mental retardation was actually determined under the Lott test at trial or on direct appeal. Nor did the State concede that Bies would succeed under Atkins and Lott, which had not then been decided. More fundamental, it is clear that the state courts’ statements regarding Bies’ mental capacity were not necessary to the judgments affirming his death sentence. Instead, those determinations cut against the ultimate outcome. In holding otherwise, the Sixth Circuit conflated a determination necessary to the bottom-line judgment with a subsidiary finding that, standing alone, is not outcome determinative. The Sixth Circuit also erred in relying on Ashe’s statement: “[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U. S., at 443. Bies’ case does not involve the kind of “ultimate fact” addressed in Ashe. There, the State was precluded from trying Ashe for robbing a poker player because he had already been acquitted of robbing a different player in the same poker game, and the acquittal was based on a determination that Ashe was not a participant in the poker game robbery. Bies, in contrast, was not acquitted, and determinations of his mental capacity were not necessary to the ultimate imposition of the death penalty. Moreover, even if the core issue preclusion requirements had been met, an exception to the doctrine’s application would be warranted due to the intervening Atkins decision. Mental retardation as a mitigator and mental retardation under Atkins and Lott are discrete legal issues. One difference is that mental retardation, urged as a mitigating factor, may instead “enhance the likelihood that [a jury will find] the aggravating factor of future dangerousness.” Atkins 536 U. S., at 521. This reality explains why prosecutors, pre-Atkins, had little incentive to contest retardation evidence. Because the change in law substantially altered the State’s incentive to contest Bies’ mental capacity, applying preclusion would not advance the equitable administration of the law. The federal courts’ intervention in this case derailed the state-court proceeding. Recourse first to Ohio’s courts is what this Court envisioned in remitting to the States responsibility for implementing Atkins. The State acknowledges that Bies is entitled to such recourse, but rightly seeks a full and fair opportunity to contest his plea under the Atkins and Lott precedents. Pp. 8–11. 519 F. 3d 324, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court. | In Atkins v. Virginia, 536 U. S. 304 (2002), this Court held that the Eighth Amendment’s prohibition of “cruel and unusual punishments” bars execution of mentally retarded offenders. Prior to Atkins, the Court had determined that mental retardation merited consideration as a mitigating factor, but did not bar imposition of the death penalty. See Penry v. Lynaugh, 492 U. S. 302 (1989). In 1992, nearly a decade before the Court’s decision in Atkins, respondent Michael Bies was tried and convicted in Ohio of the aggravated murder, kidnaping, and attempted rape of a ten-year-old boy. Instructed at the sentencing stage to weigh mitigating circumstances (including evidence of Bies’ mild to borderline mental retardation) against aggravating factors (including the brutality of the crime), the jury recommended a sentence of death, which the trial court imposed. Ohio’s appellate courts affirmed the conviction and sentence. The Ohio Supreme Court, in its 1996 opinion on direct review, observed that Bies’ “mild to borderline mental retardation merit[ed] some weight in mitigation,” but concluded that “the aggravating circumstances outweigh[ed] the mitigating factors beyond a reasonable doubt.” State v. Bies, 74 Ohio St. 3d 320, 328, 658 N. E. 2d 754, 761–762. After this Court decided Atkins, the Ohio trial court ordered a full hearing on the question of Bies’ mental capacity. The federal courts intervened, however, granting habeas relief to Bies, and ordering the vacation of his death sentence. Affirming the District Court’s judgment, the Sixth Circuit reasoned that the Ohio Supreme Court, in 1996, had definitively determined, as a matter of fact, Bies’ mental retardation. That finding, the Court of Appeals concluded, established Bies’ “legal entitlement to a life sentence.” Bies v. Bagley, 519 F. 3d 324, 334, n. 6 (CA6 2008). Therefore, the Sixth Circuit ruled, the Double Jeopardy Clause of the Federal Constitution barred any renewed inquiry into the matter of Bies’ mental state. We reverse the judgment of the Court of Appeals. The Sixth Circuit, in common with the District Court, fundamentally misperceived the application of the Double Jeopardy Clause and its issue preclusion (collateral estoppel) component.[Footnote 1] First, Bies was not “twice put in jeopardy.” He was sentenced to death, and Ohio sought no further prosecution or punishment. Instead of “serial prosecutions by the government[,] this case involves serial efforts by the defendant to vacate his capital sentence.” Bies v. Bagley, 535 F. 3d 520, 531–532 (CA6 2008) (Sutton, J., dissenting from denial of rehearing en banc) (internal quotation marks omitted). Further, mental retardation for purposes of Atkins, and mental retardation as one mitigator to be weighed against aggravators, are discrete issues. Most grave among the Sixth Circuit’s misunderstandings, issue preclusion is a plea available to prevailing parties. The doctrine bars relitigation of determinations necessary to the ultimate outcome of a prior proceeding. The Ohio courts’ recognition of Bies’ mental state as a mitigating factor was hardly essential to the death sentence he received. On the contrary, the retardation evidence cut against the final judgment. Issue preclusion, in short, does not transform final judgment losers, in civil or criminal proceedings, into partially prevailing parties. I For his part in brutally causing the death of a ten-year-old boy, Bies was convicted by an Ohio jury of attempted rape, kidnaping, and aggravated murder with three death penalty specifications. App. 85; Ohio Rev. Code Ann. §2929.04(A)(3), (7) (Lexis 2006). At sentencing, Bies presented testimony from clinical psychiatrist Donna E. Winter, who had evaluated him at the court’s order during the guilt phase and again before the mitigation hearing. App. 191, 202. Bies did not qualify for a plea of not guilty by reason of insanity, Dr. Winter concluded, because he knew the difference between right and wrong at the time of the offense. Id., at 36, 51, 198–200. Bies’ IQ, she further reported, fell in the 65–75 range, id., at 211–212, indicating that he is “mildly mentally retarded to borderline mentally retarded,” id., at 20–21, 32, 199–200, 213. Dr. Winter also observed: “[Bies] goes about the community, unassisted [and] carries out the activities of daily life fairly independently.” Id., at 199. The State responded to Bies’ mitigating evidence by emphasizing the brutality of the murder and the risk of Bies’ future dangerousness. Instructed to weigh the mitigating circumstances against aggravating factors, the jury recommended a death sentence, which the trial court imposed. Id., at 88–89. The Ohio Court of Appeals and Supreme Court each independently reviewed the evidence and affirmed. Id., at 84–108; Bies, 74 Ohio St. 3d 320, 658 N. E. 2d 754. Neither court devoted detailed attention to the issue of retardation. Both concluded that Bies’ mild to borderline mental retardation merited “some weight” in mitigation, as did his youth and lack of a criminal record. App. 105–106; 74 Ohio St. 3d, at 328, 658 N. E. 2d, at 762. The aggravating circumstances, each court found, overwhelmed the mitigating circumstances beyond a reasonable doubt. App. 106; 74 Ohio St. 3d, at 328, 658 N. E. 2d, at 762. We denied Bies’ petition for a writ of certiorari. Bies v. Ohio, 517 U. S. 1238 (1996). Bies then filed a petition for state postconviction relief, contending for the first time that the Eighth Amendment to the Federal Constitution prohibits execution of a mentally retarded defendant. The trial court agreed that Bies was “mildly mentally retarded,” but concluded that, under then-governing Ohio precedent, “a mildly mentally retarded defendant may be [p]unished by execution.” App. 153. The Ohio Court of Appeals affirmed the judgment, id., at 175–176, and the Ohio Supreme Court dismissed Bies’ appeal without an opinion, State v. Bies, 87 Ohio St. 3d 1440, 719 N. E. 2d 4 (1999) (Table). Bies next filed a federal habeas petition in the United States District Court for the Southern District of Ohio. Soon after that filing, this Court held, in Atkins v. Virginia, 536 U. S., at 321, that the Eighth Amendment prohibits execution of mentally retarded offenders. Our opinion did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation “will be so impaired as to fall [within Atkins’ compass].” We “ le[ft] to the States the task of developing appropriate ways to enforce the constitutional restriction.” Id., at 317 (internal quotation marks omitted). Ohio heeded Atkins’ call six months later in State v. Lott, 97 Ohio St. 3d 303, 2002–Ohio–6625, 779 N. E. 2d 1011 (per curiam). At an Atkins hearing, the Ohio Supreme Court held, a defendant must prove: “(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction, and (3) onset before the age of 18.” 97 Ohio St. 3d, at 305, 779 N. E. 2d, at 1014. “IQ tests,” the court stated, “are one of the many factors that need to be considered, [but] they alone are not sufficient to make a final determination [of retardation].” Ibid. The court also announced “a rebuttable presumption that a defendant is not mentally retarded if his or her IQ is above 70.” Ibid. The District Court stayed its proceedings on Bies’ federal habeas petition while Bies presented an Atkins claim to the state postconviction court. App. to Pet. for Cert. 83a. Bies there moved for summary judgment, arguing that the record established his mental retardation, and that the State was “precluded and estopped” from disputing it. Id., at 104a. The state court recognized that Atkins and Lott had materially changed the significance of a mental retardation finding. The court observed that mental retardation had not previously been established under the Atkins-Lott framework; given those precedent-setting decisions, the court concluded, “there is a serious issue as to Mr. Bies’ mental status.” App. to Pet. for Cert. 104a. Accordingly, the court denied summary judgment and ordered a full hearing on the Atkins claim. Rather than proceeding with the hearing directed by the state court, Bies returned to the Federal District Court. He argued that the Fifth Amendment’s Double Jeopardy Clause, made applicable to the States by the Fourteenth Amendment, barred the State from relitigating the issue of his mental condition. App. to Pet. for Cert. 81a. The District Court granted the habeas petition and ordered vacation of Bies’ death sentence. Id., at 68a. The Court of Appeals affirmed. 519 F. 3d 324, 342. It concluded that Bies’ case was “controlled by” Ashe v. Swenson, 397 U. S. 436 (1970), which held that the doctrine of issue preclusion “is embodied in the Fifth Amendment guarantee against double jeopardy.” 519 F. 3d, at 332 (quoting 397 U. S., at 445). The Court of Appeals found all requirements for issue preclusion met in Bies’ case. It concluded, inter alia, that the Ohio Supreme Court, in resolving Bies’ direct appeal, had decided the issue of Bies’ mental retardation under the same standard later adopted in Lott. 519 F. 3d, at 336. Further, the Court of Appeals held, the state court’s recognition that Bies qualified as mentally retarded had been necessary to the judgment imposing the death sentence. “[D]etermining which mitigating factors are actually present,” the court reasoned, “is a necessary first step to determining whether those factors outweigh the aggravating circumstances.” Id., at 337. The Court of Appeals denied the State’s petition for rehearing en banc. 535 F. 3d 520. Judge Clay, concurring, opined that Sattazahn v. Pennsylvania, 537 U. S. 101 (2003), provided an additional, independent basis for affirmance. 535 F. 3d, at 523–524. Under that decision, he noted, jeopardy attaches, and relitigation is precluded, once a judge or jury has “acquitted” a capital defendant “by entering findings sufficient to establish legal entitlement to [a] life sentence.” Id., at 522 (quoting Sattazahn, 537 U. S., at 108–109). In Bies’ case, Judge Clay concluded, the Ohio courts’ determination of mental retardation “entitle[d]” Bies to a life sentence, and thus the Double Jeopardy Clause barred the State from disputing the issue of Bies’ mental retardation. 535 F. 3d, at 523–524. Judge Sutton dissented from the denial of rehearing en banc. Sattazahn was inapposite, he maintained, because Bies was never “twice put in jeopardy.” 535 F. 3d, at 531 (internal quotation marks omitted). Nor, in Judge Sutton’s view, did Ashe support the panel’s decision, for issue preclusion did not come into play in Bies’ case. 535 F. 3d, at 532. We granted certiorari, 555 U. S. ___ (2009), and now reverse. II A The alternative basis for decision offered at the rehearing stage in the Court of Appeals can be rejected without extensive explanation. The State did not “twice put [Bies] in jeopardy,” U. S. Const., Amdt. 5, in the core constitutional sense. “[T]he touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal.’ ” Sattazahn, 537 U. S., at 109. Sattazahn offers Bies no aid. In that case, the defendant’s first capital jury had deadlocked at the penalty phase, and the court, as required by state law, entered a life sentence. Id., at 104–105. This Court held the Double Jeopardy Clause did not bar the State’s request for the death penalty at the defendant’s retrial, noting that “neither the judge nor the jury had acquitted the defendant in his first … proceeding by entering findings sufficient to establish legal entitlement to the life sentence.” Id., at 108–109 (internal quotation marks omitted). Here, as in Sattazahn, there was no acquittal. Bies’ jury voted to impose the death penalty. At issue now is Bies’ “second run at vacating his death sentence,” 535 F. 3d, at 531 (Sutton, J., dissenting from denial of rehearing en banc), not an effort by the State to retry him or to increase his punishment. Nor did any state-court determination of Bies’ mental retardation “entitl[e]” him to a life sentence. Cf. id., at 523 (Clay, J., concurring in denial of rehearing en banc). At the time Bies was sentenced and on direct appeal, Penry, not Atkins, was this Court’s guiding decision. Under Penry, no single mitigator or aggravator was determinative of the judgment. Instead, the dispositive issue, correctly comprehended by the Ohio courts, was whether “the aggravating circumstances outweigh[ed] the mitigating factors beyond a reasonable doubt.” Bies, 74 Ohio St. 3d, at 328, 658 N. E. 2d, at 762. B The Court of Appeals panel relied primarily on the doctrine of issue preclusion, recognized in Ashe to be “embodied in” the Double Jeopardy Clause. 397 U. S., at 445. Preclusion doctrine, however, does not bar a full airing of the issue whether Bies qualifies as mentally retarded under Atkins and Lott. Issue preclusion bars successive litigation of “an issue of fact or law” that “is actually litigated and determined by a valid and final judgment, and … is essential to the judgment.” Restatement (Second) of Judgments §27 (1980) (hereinafter Restatement). If a judgment does not depend on a given determination, relitigation of that determination is not precluded. Id., §27, Comment h. In addition, even where the core requirements of issue preclusion are met, an exception to the general rule may apply when a “change in [the] applicable legal context” intervenes. Id., §28, Comment c. As an initial matter, it is not clear from the spare statements of the Ohio appellate courts that the issue of Bies’ mental retardation under the Lott test was actually determined at trial or during Bies’ direct appeal. No court found, for example, that Bies suffered “significant limitations in two or more adaptive skills.” Lott, 97 Ohio St. 3d, at 305, 779 N. E. 2d, at 1014. Nor did the State concede that Bies would succeed under Atkins and Lott, which had not then been decided. More fundamental, it is clear that the courts’ statements regarding Bies’ mental capacity were not necessary to the judgments affirming his death sentence. A determination ranks as necessary or essential only when the final outcome hinges on it. See 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4421, p. 543 (2d ed. 2002). “Far from being necessary to the judgment, the Ohio courts’ mental&nbhyph;retardation findings cut against it—making them quintessentially the kinds of rulings not eligible for issue-preclusion treatment.” 535 F. 3d, at 533 (Sutton, J., dissenting from denial of rehearing en banc). In finding the state court’s determination “necessary to [the] judgment,” 519 F. 3d, at 342, the Court of Appeals panel reasoned that the Ohio courts determined Bies’ mental capacity pursuant to their “mandatory duty” to weigh the aggravating and mitigating circumstances. Id., at 338. “[W]eighing [aggravators against mitigators],” the panel explained, “could not have occurred unless the court first determined what to place on either side of the scale.” Ibid. This reasoning conflates a determination necessary to the bottom-line judgment with a subsidiary finding that, standing alone, is not outcome determinative. Issue preclusion cannot transform Bies’ loss at the sentencing phase into a partial victory. For the same reason, the Court of Appeals erred in its repeated reliance on the following passage in Ashe: “When an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 519 F. 3d, at 331–333 (quoting 397 U. S., at 443). Bies’ case does not involve an “ultimate fact” of the kind our decision in Ashe addressed. There, the State sought to try Ashe for robbing a poker player even though a jury had already acquitted him of robbing a different player in the same poker game. The State’s second attempt was precluded, we held, because the first jury had based its verdict of acquittal upon a determination that Ashe was not one of the participants in the poker game robbery. Id., at 445. Bies, in contrast, was not acquitted—and, as already observed, determinations of his mental capacity were not necessary to the ultimate imposition of the death penalty.[Footnote 2] Moreover, even if the core requirements for issue preclusion had been met, an exception to the doctrine’s application would be warranted due to this Court’s intervening decision in Atkins. Mental retardation as a mitigator and mental retardation under Atkins and Lott are discrete legal issues. The Atkins decision itself highlights one difference: “[R]eliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury.” 536 U. S., at 321. This reality explains why prosecutors, pre-Atkins, had little incentive vigorously to contest evidence of retardation. See App. 65 (excerpt from prosecutor’s closing argument describing as Bies’ “[c]hief characteristic” his “sensitivity to any kind of frustration and his rapid tendency to get enraged”); id., at 39–54 (cross-examination of Bies’ expert witness designed to emphasize Bies’ dangerousness to others). Because the change in law substantially altered the State’s incentive to contest Bies’ mental capacity, applying preclusion would not advance the equitable administration of the law. See Restatement §28, Comment c. The federal courts’ intervention in this case derailed a state trial court proceeding “designed to determine whether Bies ha[s] a successful Atkins claim.” 535 F. 3d, at 534 (Sutton, J., dissenting from denial of rehearing en banc). Recourse first to Ohio’s courts is just what this Court envisioned in remitting to the States responsibility for implementing the Atkins decision. The State acknowledges that Bies is entitled to such recourse, but it rightly seeks a full and fair opportunity to contest his plea under the postsentencing precedents set in Atkins and Lott. * * * 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. Footnote 1 “[R]eplac[ing] a more confusing lexicon,” the term “issue preclusion,” in current usage, “encompasses the doctrines [earlier called] ‘collateral estoppel’ and ‘direct estoppel.’ ” Taylor v. Sturgell, 553 U. S. ___, ___, n. 5 (2008) (slip op., at 9, n. 5). Footnote 2 This case, we note, is governed by the Antiterrorism and Effective Death Penalty Act of 1996. Bies plainly fails to qualify for relief under that Act: The Ohio courts’ decisions were not “contrary to, or … an unreasonable application of, clearly established Federal law,” 28 U. S. C. §2254(d)(1), and were not “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” §2254(d)(2). See also 535 F. 3d, at 534 (CA6 2008) (Sutton, J., dissenting from denial of rehearing en banc). |
556.US.938 | The evidence at petitioner Boyle’s trial for violating the Racketeer Influenced and Corrupt Organizations Act (RICO) provision forbidding “any person … 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,” 18 U. S. C. §1962(c), was sufficient to prove, among other things, that Boyle and others committed a series of bank thefts in several States; that the participants included a core group, along with others recruited from time to time; and that the core group was loosely and informally organized, lacking a leader, hierarchy, or any long-term master plan. Relying largely on United States v. Turkette, 452 U. S. 576, 583, the District Court instructed the jury that to establish a RICO association-in-fact “enterprise,” the Government must prove (1) an ongoing organization with a framework, formal or informal, for carrying out its objectives, and (2) that association members functioned as a continuing unit to achieve a common purpose. The court also told the jury that an association-in-fact’s existence is often more readily proved by what it does than by abstract analysis of its structure, and denied Boyle’s request for an instruction requiring the Government to prove that the enterprise had “an ascertainable structural hierarchy distinct from the charged predicate acts.” Boyle was convicted, and the Second Circuit affirmed. Held: 1. An association-in-fact enterprise under RICO must have a “structure,” but the pertinent jury instruction need not be framed in the precise language Boyle proposes, i.e., as having “an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages.” Pp. 4–12. (a) In light of RICO’s broad statement that an enterprise “includes any … group of individuals associated in fact although not a legal entity,” §1961(4), and the requirement that RICO be “liberally construed to effectuate its remedial purposes,” note following §1961, Turkette explained that “enterprise” reaches “a group of persons associated together for a common purpose of engaging in a course of conduct,” 452 U. S., at 583, and “is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Ibid. Pp. 4–5. (b) The question presented by this case is whether an association-in-fact enterprise must have “an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages.” Pet. for Cert. i. This question can be broken into three parts. First, the enterprise must have a “structure” that, under RICO’s terms, has at least three features: a purpose, relationships among the associates, and longevity sufficient to permit the associates to pursue the enterprise’s purpose. See Turkette, 452 U. S., at 583. The instructions need not actually use the term “structure,” however, so long as the relevant point’s substance is adequately expressed. Second, because a jury must find the existence of elements of a crime beyond a reasonable doubt, requiring a jury to find the existence of a structure that is ascertainable would be redundant and potentially misleading. Third, the phrase “beyond that inherent in the pattern of racketeering activity” is correctly interpreted to mean that the enterprise’s existence is a separate element that must be proved, not that such existence may never be inferred from the evidence showing that the associates engaged in a pattern of racketeering activity. See ibid. Pp. 6–8. (c) Boyle’s argument that an enterprise must have structural features additional to those that can be fairly inferred from RICO’s language—e.g., a hierarchical structure or chain of command; fixed roles for associates; and an enterprise name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies—has no basis in the statute’s text. As Turkette said, an association-in-fact enterprise is simply a continuing unit that functions with a common purpose. The breadth of RICO’s “enterprise” concept is highlighted by comparing the statute with other federal laws having much more stringent requirements for targeting organized criminal groups: E.g., §1955(b) defines an “illegal gambling business” as one that “involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business.” Pp. 8–10. (d) Rejection of Boyle’s argument does not lead to a merger of the §1962(c) crime and other federal offenses. For example, proof that a defendant violated §1955 does not necessarily establish that he conspired to participate in a gambling enterprise’s affairs through a pattern of racketeering activity. Rather, that would require the prosecution to prove either that the defendant committed a pattern of §1955 violations or a pattern of state-law gambling crimes. See §1961(1). Pp. 10–11. (e) Because RICO’s language is clear, the Court need not reach Boyle’s statutory purpose, legislative history, or rule-of-lenity arguments. Pp. 11–12. 2. The instructions below were correct and adequate. By explicitly telling jurors they could not convict on the RICO charges unless they found that the Government had proved the existence of an enterprise, the instructions made clear that this was a separate element from the pattern of racketeering activity. The jurors also were adequately told that the enterprise needed the structural attributes that may be inferred from the statutory language. Finally, the instruction that an enterprise’s existence “is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure” properly conveyed Turkette’s point that proof of a pattern of racketeering activity may be sufficient in a particular case to permit an inference of the enterprise’s existence. P. 12. 283 Fed. Appx. 825, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Stevens, J., filed a dissenting opinion, in which Breyer, J., joined. | We are asked in this case to decide whether an association-in-fact enterprise under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §1961 et seq., must have “an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages.” Pet. for Cert. i. We hold that such an enterprise must have a “structure” but that an instruction framed in this precise language is not necessary. The District Court properly instructed the jury in this case. We therefore affirm the judgment of the Court of Appeals. I A The evidence at petitioner’s trial was sufficient to prove the following: Petitioner and others participated in a series of bank thefts in New York, New Jersey, Ohio, and Wisconsin during the 1990’s. The participants in these crimes included a core group, along with others who were recruited from time to time. Although the participants sometimes attempted bank-vault burglaries and bank robberies, the group usually targeted cash-laden night-deposit boxes, which are often found in banks in retail areas. Each theft was typically carried out by a group of participants who met beforehand to plan the crime, gather tools (such as crowbars, fishing gaffs, and walkie-talkies), and assign the roles that each participant would play (such as lookout and driver). The participants generally split the proceeds from the thefts. The group was loosely and informally organized. It does not appear to have had a leader or hierarchy; nor does it appear that the participants ever formulated any long-term master plan or agreement. From 1991 to 1994, the core group was responsible for more than 30 night-deposit-box thefts. By 1994, petitioner had joined the group, and over the next five years, he participated in numerous attempted night-deposit-box thefts and at least two attempted bank-vault burglaries. In 2003, petitioner was indicted for participation in the conduct of the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U. S. C. §1962(c); conspiracy to commit that offense, in violation of §1962(d); conspiracy to commit bank burglary, in violation of §371; and nine counts of bank burglary and attempted bank burglary, in violation of §2113(a). B In instructing the jury on the meaning of a RICO “enterprise,” the District Court relied largely on language in United States v. Turkette, 452 U. S. 576 (1981). The court told the jurors that, in order to establish the existence of such an enterprise, the Government had to prove that: “(1) There [was] an ongoing organization with some sort of framework, formal or informal, for carrying out its objectives; and (2) the various members and associates of the association function[ed] as a continuing unit to achieve a common purpose.” App. 112. Over petitioner’s objection, the court also told the jury that it could “find an enterprise where an association of individuals, without structural hierarchy, form[ed] solely for the purpose of carrying out a pattern of racketeering acts” and that “[c]ommon sense suggests that the existence of an association-in-fact is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure.” Id., at 111–112.[Footnote 1] Petitioner requested an instruction that the Government was required to prove that the enterprise “had an ongoing organization, a core membership that functioned as a continuing unit, and an ascertainable structural hierarchy distinct from the charged predicate acts.” Id., at 95. The District Court refused to give that instruction. Petitioner was convicted on 11 of the 12 counts against him, including the RICO counts, and was sentenced to 151 months’ imprisonment. In a summary order, the Court of Appeals for the Second Circuit affirmed his conviction but vacated the sentence on a ground not relevant to the issues before us. 283 Fed. Appx. 825 (2007). The Court of Appeals did not specifically address the RICO jury instructions, stating only that the arguments not discussed in the order were “without merit.” Id., at 826. Petitioner was then resentenced, and we granted certiorari, 554 U. S. ___ (2008), to resolve conflicts among the Courts of Appeals concerning the meaning of a RICO enterprise. II A RICO 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.” 18 U. S. C. §1962(c) (emphasis added). The statute does not specifically define the outer boundaries of the “enterprise” concept but states that the term “includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” §1961(4).[Footnote 2] This enumeration of included enterprises is obviously broad, encompassing “any … group of individuals associated in fact.” Ibid. (emphasis added). The term “any” ensures that the definition has a wide reach, see, e.g., Ali v. Federal Bureau of Prisons, 552 U. S. ___, ___ (2008) (slip op., at 4–5), and the very concept of an association in fact is expansive. In addition, the RICO statute provides that its terms are to be “liberally construed to effectuate its remedial purposes.” §904(a), 84 Stat. 947, note following 18 U. S. C. §1961; see also, e.g., National Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 257 (1994) (“RICO broadly defines ‘enterprise’ ”); Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 497 (1985) (“RICO is to be read broadly”); Russello v. United States, 464 U. S. 16, 21 (1983) (noting “the pattern of the RICO statute in utilizing terms and concepts of breadth”). In light of these statutory features, we explained in Turkette that “an enterprise includes any union or group of individuals associated in fact” and that RICO reaches “a group of persons associated together for a common purpose of engaging in a course of conduct.” 452 U. S., at 580, 583. Such an enterprise, we said, “is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” Id., at 583. Notwithstanding these precedents, the dissent asserts that the definition of a RICO enterprise is limited to “business-like entities.” See post, at 1–5 (opinion of Stevens, J.). We see no basis to impose such an extratextual requirement.[Footnote 3] B As noted, the specific question on which we granted certiorari is whether an association-in-fact enterprise must have “an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages.” Pet. for Cert. i. We will break this question into three parts. First, must an association-in-fact enterprise have a “structure”? Second, must the structure be “ascertainable”? Third, must the “structure” go “beyond that inherent in the pattern of racketeering activity” in which its members engage? “Structure.” We agree with petitioner that an association-in-fact enterprise must have a structure. In the sense relevant here, the term “structure” means “[t]he way in which parts are arranged or put together to form a whole” and “[t]he interrelation or arrangement of parts in a complex entity.” American Heritage Dictionary 1718 (4th ed. 2000); see also Random House Dictionary of the English Language 1410 (1967) (defining structure to mean, among other things, “the pattern of relationships, as of status or friendship, existing among the members of a group or society”). From the terms of RICO, it is apparent that an association-in-fact enterprise must have at least three structural features: a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose. As we succinctly put it in Turkette, an association-in-fact enterprise is “a group of persons associated together for a common purpose of engaging in a course of conduct.” 452 U. S., at 583. That an “enterprise” must have a purpose is apparent from meaning of the term in ordinary usage, i.e., a “venture,” “undertaking,” or “project.” Webster’s Third New International Dictionary 757 (1976). The concept of “associat[ion]” requires both interpersonal relationships and a common interest. See id., at 132 (defining “association” as “an organization of persons having a common interest”); Black’s Law Dictionary 156 (rev. 4th ed. 1968) (defining “association” as a “collection of persons who have joined together for a certain object”). Section 1962(c) reinforces this conclusion and also shows that an “enterprise” must have some longevity, since the offense proscribed by that provision demands proof that the enterprise had “affairs” of sufficient duration to permit an associate to “participate” in those affairs through “a pattern of racketeering activity.” Although an association-in-fact enterprise must have these structural features, it does not follow that a district court must use the term “structure” in its jury instructions. A trial judge has considerable discretion in choosing the language of an instruction so long as the substance of the relevant point is adequately expressed. “Ascertainable.” Whenever a jury is told that it must find the existence of an element beyond a reasonable doubt, that element must be “ascertainable” or else the jury could not find that it was proved. Therefore, telling the members of the jury that they had to ascertain the existence of an “ascertainable structure” would have been redundant and potentially misleading. “Beyond that inherent in the pattern of racketeering activity.” This phrase may be interpreted in least two different ways, and its correctness depends on the particular sense in which the phrase is used. If the phrase is interpreted to mean that the existence of an enterprise is a separate element that must be proved, it is of course correct. As we explained in Turkette, the existence of an enterprise is an element distinct from the pattern of racketeering activity and “proof of one does not necessarily establish the other.”[Footnote 4] 452 U. S., at 583. On the other hand, if the phrase is used to mean that the existence of an enterprise may never be inferred from the evidence showing that persons associated with the enterprise engaged in a pattern of racketeering activity, it is incorrect. We recognized in Turkette that the evidence used to prove the pattern of racketeering activity and the evidence establishing an enterprise “may in particular cases coalesce.” Ibid. C The crux of petitioner’s argument is that a RICO enterprise must have structural features in addition to those that we think can be fairly inferred from the language of the statute. Although petitioner concedes that an association-in-fact enterprise may be an “ ‘informal’ ” group and that “not ‘much’ ” structure is needed, Reply Brief for Petitioner 24, he contends that such an enterprise must have at least some additional structural attributes, such as a structural “hierarchy,” “role differentiation,” a “unique modus operandi,” a “chain of command,” “professionalism and sophistication of organization,” “diversity and complexity of crimes,” “membership dues, rules and regulations,” “uncharged or additional crimes aside from predicate acts,” an “internal discipline mechanism,” “regular meetings regarding enterprise affairs,” an “enterprise ‘name,’ ” and “induction or initiation ceremonies and rituals.” Id., at 31–35; see also Brief for Petitioner 26–28, 33; Tr. of Oral Arg. 6, 8, 17. We see no basis in the language of RICO for the structural requirements that petitioner asks us to recognize. As we said in Turkette, an association-in-fact enterprise is simply a continuing unit that functions with a common purpose. Such a group need not have a hierarchical structure or a “chain of command”; decisions may be made on an ad hoc basis and by any number of methods—by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence. Nor is the statute limited to groups whose crimes are sophisticated, diverse, complex, or unique; for example, a group that does nothing but engage in extortion through old-fashioned, unsophisticated, and brutal means may fall squarely within the statute’s reach. The breadth of the “enterprise” concept in RICO is highlighted by comparing the statute with other federal statutes that target organized criminal groups. For example, 18 U. S. C. §1955(b), which was enacted together with RICO as part of the Organized Crime Control Act of 1970, 84 Stat. 922, defines an “illegal gambling business” as one that “involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business.” A “continuing criminal enterprise,” as defined in 21 U. S. C. §848(c), must involve more than five persons who act in concert and must have an “organizer,” supervisor, or other manager. Congress included no such requirements in RICO. III A Contrary to petitioner’s claims, rejection of his argument regarding these structural characteristics does not lead to a merger of the crime proscribed by 18 U. S. C. §1962(c) (participating in the affairs of an enterprise through a pattern of racketeering activity) and any of the following offenses: operating a gambling business, §1955; conspiring to commit one or more crimes that are listed as RICO predicate offenses, §371; or conspiring to violate the RICO statute, §1962(d). Proof that a defendant violated §1955 does not necessarily establish that the defendant conspired to participate in the affairs of a gambling enterprise through a pattern of racketeering activity. In order to prove the latter offense, the prosecution must prove either that the defendant committed a pattern of §1955 violations or a pattern of state-law gambling crimes. See §1961(1). No such proof is needed to establish a simple violation of §1955. Likewise, proof that a defendant conspired to commit a RICO predicate offense—for example, arson—does not necessarily establish that the defendant participated in the affairs of an arson enterprise through a pattern of arson crimes. Under §371, a conspiracy is an inchoate crime that may be completed in the brief period needed for the formation of the agreement and the commission of a single overt act in furtherance of the conspiracy. See United States v. Feola, 420 U. S. 671, 694 (1975). Section 1962(c) demands much more: the creation of an “enterprise”—a group with a common purpose and course of conduct—and the actual commission of a pattern of predicate offenses.[Footnote 5] Finally, while in practice the elements of a violation of §§1962(c) and (d) are similar, this overlap would persist even if petitioner’s conception of an association-in-fact enterprise were accepted. B Because the statutory language is clear, there is no need to reach petitioner’s remaining arguments based on statutory purpose, legislative history, or the rule of lenity. In prior cases, we have rejected similar arguments in favor of the clear but expansive text of the statute. See National Organization for Women, 510 U. S., at 262 (“The fact that RICO has been applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth” (quoting Sedima, 473 U. S., at 499, brackets and internal quotation marks omitted)); see also Turkette, 452 U. S., at 589–591. “We have repeatedly refused to adopt narrowing constructions of RICO in order to make it conform to a preconceived notion of what Congress intended to proscribe.” Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. ___, ___ (2008) (slip op., at 20); see also, e.g., National Organization for Women, supra, at 252 (rejecting the argument that “RICO requires proof that either the racketeering enterprise or the predicate acts of racketeering were motivated by an economic purpose”); H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 244 (1989) (declining to read “an organized crime limitation into RICO’s pattern concept”); Sedima, supra, at 481 (rejecting the view that RICO provides a private right of action “only against defendants who had been convicted on criminal charges, and only where there had occurred a ‘racketeering injury’ ”). IV The instructions the District Court judge gave to the jury in this case were correct and adequate. These instructions explicitly told the jurors that they could not convict on the RICO charges unless they found that the Government had proved the existence of an enterprise. See App. 111. The instructions made clear that this was a separate element from the pattern of racketeering activity. Ibid. The instructions also adequately told the jury that the enterprise needed to have the structural attributes that may be inferred from the statutory language. As noted, the trial judge told the jury that the Government was required to prove that there was “an ongoing organization with some sort of framework, formal or informal, for carrying out its objectives” and that “the various members and associates of the association function[ed] as a continuing unit to achieve a common purpose.” Id., at 112. Finally, the trial judge did not err in instructing the jury that “the existence of an association-in-fact is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure.” Id., at 111–112. This instruction properly conveyed the point we made in Turkette that proof of a pattern of racketeering activity may be sufficient in a particular case to permit a jury to infer the existence of an association-in-fact enterprise. We therefore affirm the judgment of the Court of Appeals. It is so ordered. Footnote 1 The relevant portion of the instructions was as follows: “The term ‘enterprise’ as used in these instructions may also include a group of people associated in fact, even though this association is not recognized as a legal entity. Indeed, an enterprise need not have a name. Thus, an enterprise need not be a form[al] business entity such as a corporation, but may be merely an informal association of individuals. A group or association of people can be an ‘enterprise’ if, among other requirements, these individuals ‘associate’ together for a purpose of engaging in a course of conduct. Common sense sug- gests that the existence of an association-in-fact is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure. “Moreover, you may find an enterprise where an association of individuals, without structural hierarchy, forms solely for the purpose of carrying out a pattern of racketeering acts. Such an association of persons may be established by evidence showing an ongoing organization, formal or informal, and . . . by evidence that the people making up the association functioned as a continuing unit. Therefore, in order to establish the existence of such an enterprise, the government must prove that: (1) There is an ongoing organization with some sort of framework, formal or informal, for carrying out its objectives; and (2) the various members and associates of the association function as a continuing unit to achieve a common purpose. “Regarding ‘organization,’ it is not necessary that the enterprise have any particular or formal structure, but it must have sufficient organization that its members functioned and operated in a coordinated manner in order to carry out the alleged common purpose or purposes of the enterprise.” App. 111–113 (emphasis added). Footnote 2 This provision does not purport to set out an exhaustive definition of the term “enterprise.” Compare §§1961(1)–(2) (defining what the terms “racketeering activity” and “State” mean) with §§1961(3)–(4) (defining what the terms “person” and “enterprise” include). Accordingly, this provision does not foreclose the possibility that the term might include, in addition to the specifically enumerated entities, others that fall within the ordinary meaning of the term “enterprise.” See H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 238 (1989) (explaining that the term “pattern” also retains its ordinary meaning notwithstanding the statutory definition in §1961(5)). Footnote 3 The dissent claims that the “business-like” limitation “is confirmed by the text of §1962(c) and our decision in Reves v. Ernst & Young, 507 U. S. 170 (1993).” Post, at 3. Section 1962(c), however, states only that one may not “conduct or participate, directly or indirectly, in the conduct of [an] enterprise’s affairs through a pattern of racketeering activity.” Whatever business-like characteristics the dissent has in mind, we do not see them in §1962(c). Furthermore, Reves v. Ernst & Young, 507 U. S. 170 (1993), is inapposite because that case turned on our interpretation of the participation requirement of §1962, not the definition of “enterprise.” See id., at 184–185. In any case, it would be an interpretive stretch to deduce from the requirement that an enterprise must be “directed” to impose the much broader, amorphous requirement that it be “business-like.” Footnote 4 It is easy to envision situations in which proof that individuals engaged in a pattern of racketeering activity would not establish the existence of an enterprise. For example, suppose that several individuals, independently and without coordination, engaged in a pattern of crimes listed as RICO predicates—for example, bribery or extortion. Proof of these patterns would not be enough to show that the individuals were members of an enterprise. Footnote 5 The dissent states that “[o]nly if proof of the enterprise element … requires evidence of activity or organization beyond that inherent in the pattern of predicate acts will RICO offenses retain an identity distinct from §371 offenses.” Post, at 7 (opinion of Stevens, J.). This is incorrect: Even if the same evidence may prove two separate elements, this does not mean that the two elements collapse into one. |
556.US.599 | The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is designed to promote the cleanup of hazardous waste sites and to ensure that cleanup costs are borne by those responsible for the contamination. In 1960, Brown & Bryant, Inc. (B&B), an agricultural chemical distributor, began operating on a parcel of land located in Arvin, California. B&B later expanded onto an adjacent parcel owned by petitioners Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Company (Railroads). As part of its business, B&B purchased and stored various hazardous chemicals, including the pesticide D–D, which it bought from petitioner Shell Oil Company (Shell). Over time, many of these chemicals spilled during transfers and deliveries, and as a result of equipment failures. Investigations of B&B by the California Department of Toxic Substances Control and the federal Environmental Protection Agency (Governments) revealed significant soil and ground water contamination and in 1989, the Governments exercised their CERCLA authority to clean up the Arvin site, spending over $8 million by 1998. Seeking to recover their costs, the Governments initiated legal action against Shell and the Railroads. The District Court ruled in favor of the Governments, finding that both the Railroads and Shell were potentially responsible parties under CERCLA—the Railroads because they owned part of the facility and Shell because it had “arranged for disposal … of hazardous substances,” 42 U. S. C. §9607(a)(3), through D–D’s sale and delivery. The District Court apportioned liability, holding the Railroads liable for 9% of the Governments’ total response costs, and Shell liable for 6%. On appeal, the Ninth Circuit agreed that Shell could be held liable as an arranger under §9607(a)(3) and affirmed the District Court’s decision in that respect. Although the Court of Appeals agreed that the harm in this case was theoretically capable of apportionment, it found the facts present in the record insufficient to support apportionment, and therefore held Shell and the Railroads jointly and severally liable for the Governments’ response costs. Held: 1. Shell is not liable as an arranger for the contamination at the Arvin facility. Section §9607(a)(3) liability may not extend beyond the limits of the statute itself. Because CERCLA does not specifically define what it means to “arrang[e] for” disposal of a hazardous substance, the phrase should be given its ordinary meaning. In common parlance, “arrange” implies action directed to a specific purpose. Thus, under §9607(a)(3)’s plain language, an entity may qualify as an arranger when it takes intentional steps to dispose of a hazardous substance. To qualify as an arranger, Shell must have entered into D–D sales with the intent that at least a portion of the product be disposed of during the transfer process by one or more of §6903(3)’s methods. The facts found by the District Court do not support such a conclusion. The evidence shows that Shell was aware that minor, accidental spills occurred during D–D’s transfer from the common carrier to B&B’s storage tanks after the product had come under B&B’s stewardship; however, it also reveals that Shell took numerous steps to encourage its distributors to reduce the likelihood of spills. Thus, Shell’s mere knowledge of continuing spills and leaks is insufficient grounds for concluding that it “arranged for” D–D’s disposal. Pp. 8–13. 2. The District Court reasonably apportioned the Railroads’ share of the site remediation costs at 9%. Calculating liability based on three figures—the percentage of the total area of the facility that was owned by the Railroads, the duration of B&B’s business divided by the term of the Railroads’ lease, and the court’s determination that only two polluting chemicals (not D–D) spilled on the leased parcel required remediation and that those chemicals were responsible for roughly two-thirds of the remediable site contamination—the District Court ultimately determined that the Railroads were responsible for 9% of the remediation costs. The District Court’s detailed findings show that the primary pollution at the site was on a portion of the facility most distant from the Railroad parcel and that the hazardous-chemical spills on the Railroad parcel contributed to no more than 10% of the total site contamination, some of which did not require remediation. Moreover, although the evidence adduced by the parties did not allow the District Court to calculate precisely the amount of hazardous chemicals contributed by the Railroad parcel to the total site contamination or the exact percentage of harm caused by each chemical, the evidence showed that fewer spills occurred on the Railroad parcel and that not all of them crossed to the B&B site, where most of the contamination originated, thus supporting the conclusion that the parcel contributed only two chemicals in quantities requiring remediation. Pp. 13–19. 520 F. 3d 918, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion. Together with No. 07–1607, Shell Oil Co. v. United States et al., also on certiorari to the same court. | In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 94 Stat. 2767, as amended, 42 U. S. C. §§9601–9675, in response to the serious environmental and health risks posed by industrial pollution. See United States v. Bestfoods, 524 U. S. 51, 55 (1998). The Act was designed to promote the “ ‘timely cleanup of hazardous waste sites’ ” and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination. Consolidated Edison Co. of N. Y. v. UGI Util., Inc., 423 F. 3d 90, 94 (CA2 2005); see also Meghrig v. KFC Western, Inc., 516 U. S. 479, 483 (1996); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F. 2d 1074, 1081 (CA1 1986). These cases raise the questions whether and to what extent a party associated with a contaminated site may be held responsible for the full costs of remediation. I In 1960, Brown & Bryant, Inc. (B&B), began operating an agricultural chemical distribution business, purchasing pesticides and other chemical products from suppliers such as Shell Oil Company (Shell). Using its own equipment, B&B applied its products to customers’ farms. B&B opened its business on a 3.8 acre parcel of former farmland in Arvin, California, and in 1975, expanded operations onto an adjacent .9 acre parcel of land owned jointly by the Atchison, Topeka & Santa Fe Railway Company, and the Southern Pacific Transportation Company (now known respectively as the Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Company) (Railroads). Both parcels of the Arvin facility were graded toward a sump and drainage pond located on the southeast corner of the primary parcel. See Appendix, infra. Neither the sump nor the drainage pond was lined until 1979, allowing waste water and chemical runoff from the facility to seep into the ground water below. During its years of operation, B&B stored and distributed various hazardous chemicals on its property. Among these were the herbicide dinoseb, sold by Dow Chemicals, and the pesticides D–D and Nemagon, both sold by Shell. Dinoseb was stored in 55-gallon drums and 5-gallon containers on a concrete slab outside B&B’s warehouse. Nemagon was stored in 30-gallon drums and 5-gallon containers inside the warehouse. Originally, B&B purchased D–D in 55-gallon drums; beginning in the mid-1960’s, however, Shell began requiring its distributors to maintain bulk storage facilities for D–D. From that time onward, B&B purchased D–D in bulk.[Footnote 1] When B&B purchased D–D, Shell would arrange for delivery by common carrier, f.o.b. destination.[Footnote 2] When the product arrived, it was transferred from tanker trucks to a bulk storage tank located on B&B’s primary parcel. From there, the chemical was transferred to bobtail trucks, nurse tanks, and pull rigs. During each of these transfers leaks and spills could—and often did—occur. Although the common carrier and B&B used buckets to catch spills from hoses and gaskets connecting the tanker trucks to its bulk storage tank, the buckets sometimes overflowed or were knocked over, causing D–D to spill onto the ground during the transfer process. Aware that spills of D–D were commonplace among its distributors, in the late 1970’s Shell took several steps to encourage the safe handling of its products. Shell provided distributors with detailed safety manuals and instituted a voluntary discount program for distributors that made improvements in their bulk handling and safety facilities. Later, Shell revised its program to require distributors to obtain an inspection by a qualified engineer and provide self-certification of compliance with applicable laws and regulations. B&B’s Arvin facility was inspected twice, and in 1981, B&B certified to Shell that it had made a number of recommended improvements to its facilities. Despite these improvements, B&B remained a “ ‘[s]loppy’ [o]perator.” App. to Pet. for Cert. in No. 07–1601, p. 130a. Over the course of B&B’s 28 years of operation, delivery spills, equipment failures, and the rinsing of tanks and trucks allowed Nemagon, D–D and dinoseb to seep into the soil and upper levels of ground water of the Arvin facility. In 1983, the California Department of Toxic Substances Control (DTSC) began investigating B&B’s violation of hazardous waste laws, and the United States Environmental Protection Agency (EPA) soon followed suit, discovering significant contamination of soil and ground water. Of particular concern was a plume of contaminated ground water located under the facility that threatened to leach into an adjacent supply of potential drinking water.[Footnote 3] Although B&B undertook some efforts at remediation, by 1989 it had become insolvent and ceased all operations. That same year, the Arvin facility was added to the National Priority List, see 54 Fed. Reg. 41027, and subsequently, DTSC and EPA (Governments) exercised their authority under 42 U. S. C. §9604 to undertake cleanup efforts at the site. By 1998, the Governments had spent more than $8 million responding to the site contamination; their costs have continued to accrue. In 1991, EPA issued an administrative order to the Railroads directing them, as owners of a portion of the property on which the Arvin facility was located, to perform certain remedial tasks in connection with the site. The Railroads did so, incurring expenses of more than $3 million in the process. Seeking to recover at least a portion of their response costs, in 1992 the Railroads brought suit against B&B in the United States District Court for the Eastern District of California. In 1996, that lawsuit was consolidated with two recovery actions brought by DTSC and EPA against Shell and the Railroads. The District Court conducted a 6-week bench trial in 1999 and four years later entered a judgment in favor of the Governments. In a lengthy order supported by 507 separate findings of fact and conclusions of law, the court held that both the Railroads and Shell were potentially responsible parties (PRPs) under CERCLA—the Railroads because they were owners of a portion of the facility, see 42 U. S. C. §§9607(a)(1)–(2), and Shell because it had “arranged for” the disposal of hazardous substances through its sale and delivery of D–D, see §9607(a)(3). Although the court found the parties liable, it did not impose joint and several liability on Shell and the Railroads for the entire response cost incurred by the Governments. The court found that the site contamination created a single harm but concluded that the harm was divisible and therefore capable of apportionment. Based on three figures—the percentage of the total area of the facility that was owned by the Railroads, the duration of B&B’s business divided by the term of the Railroads’ lease, and the Court’s determination that only two of three polluting chemicals spilled on the leased parcel required remediation and that those two chemicals were responsible for roughly two-thirds of the overall site contamination requiring remediation—the court apportioned the Railroads’ liability as 9% of the Governments’ total response cost.[Footnote 4] Based on estimations of chemicals spills of Shell products, the court held Shell liable for 6% of the total site response cost. The Governments appealed the District Court’s apportionment, and Shell cross-appealed the court’s finding of liability. The Court of Appeals acknowledged that Shell did not qualify as a “traditional” arranger under §9607(a)(3), insofar as it had not contracted with B&B to directly dispose of a hazardous waste product. 520 F. 3d 918, 948 (CA9 2008). Nevertheless, the court stated that Shell could still be held liable under a “ ‘broader’ category of arranger liability” if the “disposal of hazardous wastes [wa]s a foreseeable byproduct of, but not the purpose of, the transaction giving rise to” arranger liability. Ibid. Relying on CERCLA’s definition of “disposal,” which covers acts such as “leaking” and “spilling,” 42 U. S. C. §6903(3), the Ninth Circuit concluded that an entity could arrange for “disposal” “even if it did not intend to dispose” of a hazardous substance. 520 F. 3d, at 949. Applying that theory of arranger liability to the District Court’s findings of fact, the Ninth Circuit held that Shell arranged for the disposal of a hazardous substance through its sale and delivery of D–D: “Shell arranged for delivery of the substances to the site by its subcontractors; was aware of, and to some degree dictated, the transfer arrangements; knew that some leakage was likely in the transfer process; and provided advice and supervision concerning safe transfer and storage. Disposal of a hazardous substance was thus a necessary part of the sale and delivery process.” Id., at 950. Under such circumstances, the court concluded, arranger liability was not precluded by the fact that the purpose of Shell’s action had been to transport a useful and previously unused product to B&B for sale. On the subject of apportionment, the Court of Appeals found “no dispute” on the question whether the harm caused by Shell and the Railroads was capable of apportionment. Id., at 942. The court observed that a portion of the site contamination occurred before the Railroad parcel became part of the facility, only some of the hazardous substances were stored on the Railroad parcel, and “only some of the water on the facility washed over the Railroads’ site.” Ibid. With respect to Shell, the court noted that not all of the hazardous substances spilled on the facility had been sold by Shell. Given those facts, the court readily concluded that “the contamination traceable to the Railroads and Shell, with adequate information, would be allocable, as would be the cost of cleaning up that contamination.” Ibid. Nevertheless, the Court of Appeals held that the District Court erred in finding that the record established a reasonable basis for apportionment. Because the burden of proof on the question of apportionment rested with Shell and the Railroads, the Court of Appeals reversed the District Court’s apportionment of liability and held Shell and the Railroads jointly and severally liable for the Governments’ cost of responding to the contamination of the Arvin facility. The Railroads and Shell moved for rehearing en banc, which the Court of Appeals denied over the dissent of eight judges. See id., at 952 (Bea, J., dissenting). We granted certiorari to determine whether Shell was properly held liable as an entity that had “arranged for disposal” of hazardous substances within the meaning of §9607(a)(3), and whether Shell and the Railroads were properly held liable for all response costs incurred by EPA and the State of California. See 554 U. S. ___ (2008). Finding error on both points, we now reverse. II CERCLA imposes strict liability for environmental contamination upon four broad classes of PRPs: “(1) the owner and operator of a vessel or a facility, “(2) any person[[Footnote 5]] who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, “(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and “(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance… .” 42 U. S. C. §9607(a). Once an entity is identified as a PRP, it may be compelled to clean up a contaminated area or reimburse the Government for its past and future response costs. See Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004).[Footnote 6] In these cases, it is undisputed that the Railroads qualify as PRPs under both §§9607(a)(1) and 9607(a)(2) because they owned the land leased by B&B at the time of the contamination and continue to own it now. The more difficult question is whether Shell also qualifies as a PRP under §9607(a)(3) by virtue of the circumstances surrounding its sales to B&B. To determine whether Shell may be held liable as an arranger, we begin with the language of the statute. As relevant here, §9607(a)(3) applies to an entity that “arrange[s] for disposal . . . of hazardous substances.” It is plain from the language of the statute that CERCLA liability would attach under §9607(a)(3) if an entity were to enter into a transaction for the sole purpose of discarding a used and no longer useful hazardous substance. It is similarly clear that an entity could not be held liable as an arranger merely for selling a new and useful product if the purchaser of that product later, and unbeknownst to the seller, disposed of the product in a way that led to contamination. See Freeman v. Glaxo Wellcome, Inc., 189 F. 3d 160, 164 (CA2 1999); Florida Power & Light Co. v. Allis Chalmers Corp., 893 F. 2d 1313, 1318 (CA11 1990). Less clear is the liability attaching to the many permutations of “arrangements” that fall between these two extremes—cases in which the seller has some knowledge of the buyers’ planned disposal or whose motives for the “sale” of a hazardous substance are less than clear. In such cases, courts have concluded that the determination whether an entity is an arranger requires a fact-intensive inquiry that looks beyond the parties’ characterization of the transaction as a “disposal” or a “sale” and seeks to discern whether the arrangement was one Congress intended to fall within the scope of CERCLA’s strict-liability provisions. See Freeman, 189 F. 3d, at 164; Pneumo Abex Corp. v. High Point, Thomasville & Denton R. Co., 142 F. 3d 769, 775 (CA4 1998) (“ ‘[T]here is no bright line between a sale and a disposal under CERCLA. A party’s responsibility … must by necessity turn on a fact-specific inquiry into the nature of the transaction’ ” (quoting United States v. Petersen Sand & Gravel, 806 F. Supp. 1346, 1354 (ND Ill. 1992))); Florida Power & Light Co., 893 F. 2d, at 1318. Although we agree that the question whether §9607(a)(3) liability attaches is fact intensive and case specific, such liability may not extend beyond the limits of the statute itself. Because CERCLA does not specifically define what it means to “arrang[e] for” disposal of a hazardous substance, see, e.g., United States v. Cello-Foil Prods., Inc., 100 F. 3d 1227, 1231 (CA6 1996); Amcast Indus. Corp. v. Detrex Corp., 2 F. 3d 746, 751 (CA7 1993); Florida Power & Light Co., 893 F. 2d, at 1317, we give the phrase its ordinary meaning. Crawford v. Metropolitan Government of Nashville and Davidson Cty., 555 U. S. ____ (2009); Perrin v. United States, 444 U. S. 37, 42 (1979). In common parlance, the word “arrange” implies action directed to a specific purpose. See Merriam-Webster’s Collegiate Dictionary 64 (10th ed. 1993) (defining “arrange” as “to make preparations for: plan[;] . . . to bring about an agreement or understanding concerning”); see also Amcast Indus. Corp., 2 F. 3d, at 751 (words “ ‘arranged for’ . . . imply intentional action”). Consequently, under the plain language of the statute, an entity may qualify as an arranger under §9607(a)(3) when it takes intentional steps to dispose of a hazardous substance. See Cello-Foil Prods., Inc., 100 F. 3d, at 1231 (“[I]t would be error for us not to recognize the indispensable role that state of mind must play in determining whether a party has ‘otherwise arranged for disposal … of hazardous substances’ ”). The Governments do not deny that the statute requires an entity to “arrang[e] for” disposal; however, they interpret that phrase by reference to the statutory term “disposal,” which the Act broadly defines as “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water.” 42 U. S. C. §6903(3); see also §9601(29) (adopting the definition of “disposal” contained in the Solid Waste Disposal Act).[Footnote 7] The Governments assert that by including unintentional acts such as “spilling” and “leaking” in the definition of disposal, Congress intended to impose liability on entities not only when they directly dispose of waste products but also when they engage in legitimate sales of hazardous substances[Footnote 8] knowing that some disposal may occur as a collateral consequence of the sale itself. Applying that reading of the statute, the Governments contend that Shell arranged for the disposal of D–D within the meaning of §9607(a)(3) by shipping D–D to B&B under conditions it knew would result in the spilling of a portion of the hazardous substance by the purchaser or common carrier. See Brief for United States 24 (“Although the delivery of a useful product was the ultimate purpose of the arrangement, Shell’s continued participation in the delivery, with knowledge that spills and leaks would result, was sufficient to establish Shell’s intent to dispose of hazardous substances”). Because these spills resulted in wasted D–D, a result Shell anticipated, the Governments insist that Shell was properly found to have arranged for the disposal of D–D. While it is true that in some instances an entity’s knowledge that its product will be leaked, spilled, dumped, or otherwise discarded may provide evidence of the entity’s intent to dispose of its hazardous wastes, knowledge alone is insufficient to prove that an entity “planned for” the disposal, particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful product. In order to qualify as an arranger, Shell must have entered into the sale of D–D with the intention that at least a portion of the product be disposed of during the transfer process by one or more of the methods described in §6903(3). Here, the facts found by the District Court do not support such a conclusion. Although the evidence adduced at trial showed that Shell was aware that minor, accidental spills occurred during the transfer of D–D from the common carrier to B&B’s bulk storage tanks after the product had arrived at the Arvin facility and had come under B&B’s stewardship, the evidence does not support an inference that Shell intended such spills to occur. To the contrary, the evidence revealed that Shell took numerous steps to encourage its distributors to reduce the likelihood of such spills, providing them with detailed safety manuals, requiring them to maintain adequate storage facilities, and providing discounts for those that took safety precautions. Although Shell’s efforts were less than wholly successful, given these facts, Shell’s mere knowledge that spills and leaks continued to occur is insufficient grounds for concluding that Shell “arranged for” the disposal of D–D within the meaning of §9607(a)(3). Accordingly, we conclude that Shell was not liable as an arranger for the contamination that occurred at B&B’s Arvin facility. III Having concluded that Shell is not liable as an arranger, we need not decide whether the Court of Appeals erred in reversing the District Court’s apportionment of Shell’s liability for the cost of remediation. We must, however, determine whether the Railroads were properly held jointly and severally liable for the full cost of the Governments’ response efforts. The seminal opinion on the subject of apportionment in CERCLA actions was written in 1983 by Chief Judge Carl Rubin of the United States District Court for the Southern District of Ohio. United States v. Chem-Dyne Corp., 572 F. Supp. 802. After reviewing CERCLA’s history, Chief Judge Rubin concluded that although the Act imposed a “strict liability standard,” id., at 805, it did not mandate “joint and several” liability in every case. See id., at 807. Rather, Congress intended the scope of liability to “be determined from traditional and evolving principles of common law[.]” Id., at 808. The Chem-Dyne approach has been fully embraced by the Courts of Appeals. See, e.g., In re Bell Petroleum Services, Inc., 3 F. 3d 889, 901–902 (CA5 1993); United States v. Alcan Aluminum Corp., 964 F. 2d 252, 268 (CA3 1992); O’Neil v. Picillo, 883 F. 2d 176, 178 (CA1 1989); United States v. Monsanto Co., 858 F. 2d 160, 171–173 (CA4 1988). Following Chem-Dyne, the courts of appeals have acknowledged that “[t]he universal starting point for divisibility of harm analyses in CERCLA cases” is §433A of the Restatement (Second) of Torts. United States v. Hercules, Inc., 247 F. 3d 706, 717 (CA8 2001); Chem-Nuclear Systems, Inc. v. Bush, 292 F. 3d 254, 259 (CADC 2002); United States v. R. W. Meyer, Inc., 889 F. 2d 1497, 1507 (CA6 1989). Under the Restatement, “when two or more persons acting independently caus[e] a distinct or single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he has himself caused. Restatement (Second) of Torts, §§433A, 881 (1976); Prosser, Law of Torts, pp. 313–314 (4th ed. 1971) … . But where two or more persons cause a single and indivisible harm, each is subject to liability for the entire harm. Restatement (Second) of Torts, §875; Prosser, at 315–316.” Chem-Dyne Corp., 572 F. Supp., at 810. In other words, apportionment is proper when “there is a reasonable basis for determining the contribution of each cause to a single harm.” Restatement (Second) of Torts §433A(1)(b), p. 434 (1963–1964). Not all harms are capable of apportionment, however, and CERCLA defendants seeking to avoid joint and several liability bear the burden of proving that a reasonable basis for apportionment exists. See Chem-Dyne Corp., 572 F. Supp., at 810 (citing Restatement (Second) of Torts §433B (1976)) (placing burden of proof on party seeking apportionment). When two or more causes produce a single, indivisible harm, “courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm.” Restatement (Second) of Torts §433A, Comment i, p. 440 (1963–1964). Neither the parties nor the lower courts dispute the principles that govern apportionment in CERCLA cases, and both the District Court and Court of Appeals agreed that the harm created by the contamination of the Arvin site, although singular, was theoretically capable of apportionment. The question then is whether the record provided a reasonable basis for the District Court’s conclusion that the Railroads were liable for only 9% of the harm caused by contamination at the Arvin facility. The District Court criticized the Railroads for taking a “ ‘scorched earth,’ all-or-nothing approach to liability,” failing to acknowledge any responsibility for the release of hazardous substances that occurred on their parcel throughout the 13-year period of B&B’s lease. According to the District Court, the Railroads’ position on liability, combined with the Governments’ refusal to acknowledge the potential divisibility of the harm, complicated the apportioning of liability. See App. to Pet. for Cert. in No. 07–1601, at 236a–237a (“All parties … effectively abdicated providing any helpful arguments to the court and have left the court to independently perform the equitable apportionment analysis demanded by the circumstances of the case”).[Footnote 9] Yet despite the parties’ failure to assist the court in linking the evidence supporting apportionment to the proper allocation of liability, the District Court ultimately concluded that this was “a classic ‘divisible in terms of degree’ case, both as to the time period in which defendants’ conduct occurred, and ownership existed, and as to the estimated maximum contribution of each party’s activities that released hazardous substances that caused Site contamination.” Id., at 239a. Consequently, the District Court apportioned liability, assigning the Railroads 9% of the total remediation costs. The District Court calculated the Railroads’ liability based on three figures. First, the court noted that the Railroad parcel constituted only 19% of the surface area of the Arvin site. Second, the court observed that the Railroads had leased their parcel to B&B for 13 years, which was only 45% of the time B&B operated the Arvin facility. Finally, the court found that the volume of hazardous-substance-releasing activities on the B&B property was at least 10 times greater than the releases that occurred on the Railroad parcel, and it concluded that only spills of two chemicals, Nemagon and dinoseb (not D–D), substantially contributed to the contamination that had originated on the Railroad parcel and that those two chemicals had contributed to two-thirds of the overall site contamination requiring remediation. The court then multiplied .19 by .45 by .66 (two-thirds) and rounded up to determine that the Railroads were responsible for approximately 6% of the remediation costs. “Allowing for calculation errors up to 50%,” the court concluded that the Railroads could be held responsible for 9% of the total CERCLA response cost for the Arvin site. Id., at 252a. The Court of Appeals criticized the evidence on which the District Court’s conclusions rested, finding a lack of sufficient data to establish the precise proportion of contamination that occurred on the relative portions of the Arvin facility and the rate of contamination in the years prior to B&B’s addition of the Railroad parcel. The court noted that neither the duration of the lease nor the size of the leased area alone was a reliable measure of the harm caused by activities on the property owned by the Railroads, and—as the court’s upward adjustment confirmed—the court had relied on estimates rather than specific and detailed records as a basis for its conclusions. Despite these criticisms, we conclude that the facts contained in the record reasonably supported the apportionment of liability. The District Court’s detailed findings make it abundantly clear that the primary pollution at the Arvin facility was contained in an unlined sump and an unlined pond in the southeastern portion of the facility most distant from the Railroads’ parcel and that the spills of hazardous chemicals that occurred on the Railroad parcel contributed to no more than 10% of the total site contamination, see id., at 247a–248a, some of which did not require remediation. With those background facts in mind, we are persuaded that it was reasonable for the court to use the size of the leased parcel and the duration of the lease as the starting point for its analysis. Although the Court of Appeals faulted the District Court for relying on the “simplest of considerations: percentages of land area, time of ownership, and types of hazardous products,” 520 F. 3d, at 943, these were the same factors the court had earlier acknowledged were relevant to the apportionment analysis. See id., at 936, n.18 (“We of course agree with our sister circuits that, if adequate information is available, divisibility may be established by ‘volumetric, chronological, or other types of evidence,’ including appropriate geographic considerations” (citations omitted)). The Court of Appeals also criticized the District Court’s assumption that spills of Nemagon and dinoseb were responsible for only two-thirds of the chemical spills requiring remediation, observing that each PRP’s share of the total harm was not necessarily equal to the quantity of pollutants that were deposited on its portion of the total facility. Although the evidence adduced by the parties did not allow the court to calculate precisely the amount of hazardous chemicals contributed by the Railroad parcel to the total site contamination or the exact percentage of harm caused by each chemical, the evidence did show that fewer spills occurred on the Railroad parcel and that of those spills that occurred, not all were carried across the Railroad parcel to the B&B sump and pond from which most of the contamination originated. The fact that no D–D spills on the Railroad parcel required remediation lends strength to the District Court’s conclusion that the Railroad parcel contributed only Nemagon and dinoseb in quantities requiring remediation. The District Court’s conclusion that those two chemicals accounted for only two-thirds of the contamination requiring remediation finds less support in the record; however, any miscalculation on that point is harmless in light of the District Court’s ultimate allocation of liability, which included a 50% margin of error equal to the 3% reduction in liability the District Court provided based on its assessment of the effect of the Nemagon and dinoseb spills. Had the District Court limited its apportionment calculations to the amount of time the Railroad parcel was in use and the percentage of the facility located on that parcel, it would have assigned the Railroads 9% of the response cost. By including a two-thirds reduction in liability for the Nemagon and dinoseb with a 50% “margin of error,” the District Court reached the same result. Because the District Court’s ultimate allocation of liability is supported by the evidence and comports with the apportionment principles outlined above, we reverse the Court of Appeals’ conclusion that the Railroads are subject to joint and several liability for all response costs arising out of the contamination of the Arvin facility. IV For the foregoing reasons, we conclude that the Court of Appeals erred by holding Shell liable as an arranger under CERCLA for the costs of remediating environmental contamination at the Arvin, California facility. Furthermore, we conclude that the District Court reasonably apportioned the Railroads’ share of the site remediation costs at 9%. The judgment is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. APPENDIX Footnote 1 Because D–D is corrosive, bulk storage of the chemical led to numerous tank failures and spills as the chemical rusted tanks and eroded valves. Footnote 2 F.o.b. destination means “the seller must at his own expense and risk transport the goods to [the destination] and there tender delivery of them . . . .” U. C. C. §2–319(1)(b) (2001). The District Court found that B&B assumed “stewardship” over the D–D as soon as the common carrier entered the Arvin facility. App. to Pet. for Cert. in No. 07–1601, p. 124a. Footnote 3 The ground water at the Arvin site is divided into three zones. The A-zone is located 60–80 feet below the ground. It has been tested and found to have high levels of contamination. The B-zone is located 150 feet below ground. Although the B-zone is not currently used as a source of drinking water, it has the potential to serve as such a source. No contamination has yet been found in that zone. The C-zone is an aquifer located 200 feet below ground. It is the sole current source of drinking water and, thus far, has suffered no contamination from the Arvin site. Footnote 4 Although the Railroads did not produce precise figures regarding the exact quantity of chemical spills on each parcel in each year of the facility’s operation, the District Court found it “indisputable that the overwhelming majority of hazardous substances were released from the B&B parcel.” Id., at 248a. The court explained that “the predominant activities conducted on the Railroad parcel through the years were storage and some washing and rinsing of tanks, other receptacles, and chemical application vehicles. Mixing, formulating, loading, and unloading of ag-chemical hazardous substances, which contributed most of the liability causing releases, were predominantly carried out by B&B on the B&B parcel.” Id., at 247a–248a. Footnote 5 For purposes of the statute, a “person” is defined as “an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body.” 42 U. S. C. §9601(21). Footnote 6 Under CERCLA, PRPs are liable for: “(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; “(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; “(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and “(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.” §9607(a)(4). Footnote 7 “Hazardous waste” is defined as “a solid waste, or combination of solid wastes, which … may . . . pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.” §6903(5)(B); §9601(29). Footnote 8 CERCLA defines “hazardous substance” to include a variety of chemicals and toxins including those designated by EPA as air pollutants, water pollutants, and solid wastes. §9601(14). Footnote 9 As the Governments point out, insofar as the District Court made reference to equitable considerations favoring apportionment, it erred. Equitable considerations play no role in the apportionment analysis; rather, apportionment is proper only when the evidence supports the divisibility of the damages jointly caused by the PRPs. See generally United States v. Hercules, Inc., 247 F. 3d 706, 718–719 (CA8 2001); United States v. Brighton, 153 F. 3d 307, 318–319 (CA6 1998); Redwing Carriers, Inc. v. Saraland Apartments, 94 F. 3d 1489, 1513 (CA11 1996). As the Court of Appeals explained, “[a]pportionment . . . looks to whether defendants may avoid joint and several liability by establishing a fixed amount of damage for which they are liable,” while contribution actions allow jointly and severally liable PRPs to recover from each other on the basis of equitable considerations. 520 F. 3d 918, 939–940 (CA9 2008); see also 42 U. S. C. §9613(f)(1) (providing that, “[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate”). The error is of no consequence, however, because despite the District Court’s reference to equity, its actual apportionment decision was properly rooted in evidence that provided a reasonable basis for identifying the portion of the harm attributable to the Railroads. |
556.US.2008_08-22 | After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded petitioners (hereinafter Caperton) $50 million in damages, West Virginia held its 2004 judicial elections. Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey’s chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won by fewer than 50,000 votes. Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the conflict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant. The court then reversed the $50 million verdict. During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict. Four months later, Justice Benjamin filed a concurring opinion, defending the court’s opinion and his recusal decision. Held: In all the circumstances of this case, due process requires recusal. Pp. 6–20. (a) The Due Process Clause incorporated the common-law rule requiring recusal when a judge has “a direct, personal, substantial, pecuniary interest” in a case, Tumey v. Ohio, 273 U. S. 510, 523, but this Court has also identified additional instances which, as an objective matter, require recusal where “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable,” Withrow v. Larkin, 421 U. S. 35, 47. Two such instances place the present case in proper context. Pp. 6–11. (1) The first involved local tribunals in which a judge had a financial interest in a case’s outcome that was less than what would have been considered personal or direct at common law. In Tumey, a village mayor with authority to try those accused of violating a law prohibiting the possession of alcoholic beverages faced two potential conflicts: Because he received a salary supplement for performing judicial duties that was funded from the fines assessed, he received a supplement only upon a conviction; and sums from the fines were deposited to the village’s general treasury fund for village improvements and repairs. Disqualification was required under the principle that “[e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” 273 U. S.em>., at 532. In Ward v. Monroeville, 409 U. S. 57, a conviction in another mayor’s court was invalidated even though the fines assessed went only to the town’s general fisc, because the mayor faced a “ ‘ possible temptation’ ” created by his “executive responsibilities for village finances.” Id., at 60. Recusal was also required where an Alabama Supreme Court justice cast the deciding vote upholding a punitive damages award while he was the lead plaintiff in a nearly identical suit pending in Alabama’s lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813. The proper constitutional inquiry was not “whether in fact [the justice] was influenced,” id., at 825, but “whether sitting on [that] case … ‘ “would offer a possible temptation to the average … judge to … lead him not to hold the balance nice, clear and true,” ’ ” ibid. While the “degree or kind of interest … sufficient to disqualify a judge … ‘[could not] be defined with precision, ’ ” id., at 822, the test did have an objective component. Pp. 7–9. (2) The second instance emerged in the criminal contempt context, where a judge had no pecuniary interest in the case but had determined in an earlier proceeding whether criminal charges should be brought and then proceeded to try and convict the petitioners. In re Murchison, 349 U. S. 133. Finding that “no man can be a judge in his own case,” and “no man is permitted to try cases where he has an interest in the outcome,” id., at 136, the Court noted that the circumstances of the case and the prior relationship required recusal. The judge’s prior relationship with the defendant, as well as the information acquired from the prior proceeding, was critical. In reiterating that the rule that “a defendant in criminal contempt proceedings should be [tried] before a judge other than the one reviled by the contemnor,” Mayberry v. Pennsylvania, 400 U. S. 455, 466, rests on the relationship between the judge and the defendant, id., at 465, the Court noted that the objective inquiry is not whether the judge is actually biased, but whether the average judge in his position is likely to be neutral or there is an unconstitutional “ ‘potential for bias,’ ” id., at 466. Pp. 9–11. (b) Because the objective standards implementing the Due Process Clause do not require proof of actual bias, this Court does not question Justice Benjamin’s subjective findings of impartiality and propriety and need not determine whether there was actual bias. Rather, the question is whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, 421 U. S., at 47. There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The proper inquiry centers on the contribution’s relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin’s victory. In an election decided by fewer than 50,000 votes, Blankenship’s campaign contributions—compared to the total amount contributed to the campaign, as well as the total amount spent in the election—had a significant and disproportionate influence on the outcome. And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is to be adequately implemented.” Ibid. The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice. There is no allegation of a quid pro quo agreement, but the extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal. Pp. 11–16. (c) Massey and its amici err in predicting that this decision will lead to adverse consequences ranging from a flood of recusal motions to unnecessary interference with judicial elections. They point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case, which are extreme by any measure. And because the States may have codes of conduct with more rigorous recusal standards than due process requires, most recusal disputes will be resolved without resort to the Constitution, making the constitutional standard’s application rare. Pp. 16–20. ___ W. Va. ___, ___S. E. 2d ___, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion. | In this case the Supreme Court of Appeals of West Virginia reversed a trial court judgment, which had entered a jury verdict of $50 million. Five justices heard the case, and the vote to reverse was 3 to 2. The question presented is whether the Due Process Clause of the Fourteenth Amendment was violated when one of the justices in the majority denied a recusal motion. The basis for the motion was that the justice had received campaign contributions in an extraordinary amount from, and through the efforts of, the board chairman and principal officer of the corporation found liable for the damages. Under our precedents there are objective standards that require recusal when “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Withrow v. Larkin, 421 U. S. 35, 47 (1975). Applying those precedents, we find that, in all the circumstances of this case, due process requires recusal. I In August 2002 a West Virginia jury returned a verdict that found respondents A. T. Massey Coal Co. and its affiliates (hereinafter Massey) liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations. The jury awarded petitioners Hugh Caperton, Harman Development Corp., Harman Mining Corp., and Sovereign Coal Sales (hereinafter Caperton) the sum of $50 million in compensatory and punitive damages. In June 2004 the state trial court denied Massey’s post-trial motions challenging the verdict and the damages award, finding that Massey “intentionally acted in utter disregard of [Caperton’s] rights and ultimately destroyed [Caperton’s] businesses because, after conducting cost-benefit analyses, [Massey] concluded it was in its financial interest to do so.” App. 32a, ¶10(p). In March 2005 the trial court denied Massey’s motion for judgment as a matter of law. Don Blankenship is Massey’s chairman, chief executive officer, and president. After the verdict but before the appeal, West Virginia held its 2004 judicial elections. Knowing the Supreme Court of Appeals of West Virginia would consider the appeal in the case, Blankenship decided to support an attorney who sought to replace Justice McGraw. Justice McGraw was a candidate for reelection to that court. The attorney who sought to replace him was Brent Benjamin. In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to “And For The Sake Of The Kids,” a political organization formed under 26 U. S. C. §527. The §527 organization opposed McGraw and supported Benjamin. App. 672a–673a. Blankenship’s donations accounted for more than two-thirds of the total funds it raised. Id., at 150a. This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures—for direct mailings and letters soliciting donations as well as television and newspaper advertisements—“ ‘to support … Brent Benjamin.’ ” Id., at 184a, 186a, 200a (bold typeface omitted) (quoting Blankenship’s state campaign financial disclosure filings). To provide some perspective, Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Id., at 288a. Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined. Brief for Petitioners 28. Benjamin won. He received 382,036 votes (53.3%), and McGraw received 334,301 votes (46.7%). App. 677a. In October 2005, before Massey filed its petition for appeal in West Virginia’s highest court, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the West Virginia Code of Judicial Conduct, based on the conflict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion in April 2006. He indicated that he “carefully considered the bases and accompanying exhibits proffered by the movants.” But he found “no objective information … to show that this Justice has a bias for or against any litigant, that this Justice has prejudged the matters which comprise this litigation, or that this Justice will be anything but fair and impartial.” Id., at 336a–337a. In December 2006 Massey filed its petition for appeal to challenge the adverse jury verdict. The West Virginia Supreme Court of Appeals granted review. In November 2007 that court reversed the $50 million verdict against Massey. The majority opinion, authored by then-Chief Justice Davis and joined by Justices Benjamin and Maynard, found that “Massey’s conduct warranted the type of judgment rendered in this case.” Id., at 357a. It reversed, nevertheless, based on two independent grounds—first, that a forum-selection clause contained in a contract to which Massey was not a party barred the suit in West Virginia, and, second, that res judicata barred the suit due to an out-of-state judgment to which Massey was not a party. Id., at 345a. Justice Starcher dissented, stating that the “majority’s opinion is morally and legally wrong.” Id., at 420a–422a. Justice Albright also dissented, accusing the majority of “misapplying the law and introducing sweeping ‘new law’ into our jurisprudence that may well come back to haunt us.” Id., at 430a–431a. Caperton sought rehearing, and the parties moved for disqualification of three of the five justices who decided the appeal. Photos had surfaced of Justice Maynard vacationing with Blankenship in the French Riviera while the case was pending. Id., at 440a–441a, 456a. Justice Maynard granted Caperton’s recusal motion. On the other side Justice Starcher granted Massey’s recusal motion, apparently based on his public criticism of Blankenship’s role in the 2004 elections. In his recusal memorandum Justice Starcher urged Justice Benjamin to recuse himself as well. He noted that “Blankenship’s bestowal of his personal wealth, political tactics, and ‘friendship’ have created a cancer in the affairs of this Court.” Id., at 459a–460a. Justice Benjamin declined Justice Starcher’s suggestion and denied Caperton’s recusal motion. The court granted rehearing. Justice Benjamin, now in the capacity of acting chief justice, selected Judges Cookman and Fox to replace the recused justices. Caperton moved a third time for disqualification, arguing that Justice Benjamin had failed to apply the correct standard under West Virginia law—i.e., whether “a reasonable and prudent person, knowing these objective facts, would harbor doubts about Justice Benjamin’s ability to be fair and impartial.” Id., at 466a, ¶8. Caperton also included the results of a public opinion poll, which indicated that over 67% of West Virginians doubted Justice Benjamin would be fair and impartial. Justice Benjamin again refused to withdraw, noting that the “push poll” was “neither credible nor sufficiently reliable to serve as the basis for an elected judge’s disqualification.” Id., at 483a. In April 2008 a divided court again reversed the jury verdict, and again it was a 3-to-2 decision. Justice Davis filed a modified version of his prior opinion, repeating the two earlier holdings. She was joined by Justice Benjamin and Judge Fox. Justice Albright, joined by Judge Cookman, dissented: “Not only is the majority opinion unsupported by the facts and existing case law, but it is also fundamentally unfair. Sadly, justice was neither honored nor served by the majority.” ___ W. Va. ___, ___, ___ S. E. 2d ___, ___; App. 633a. The dissent also noted “genuine due process implications arising under federal law” with respect to Justice Benjamin’s failure to recuse himself. ___ W. Va., at ___, n. 16, ___ S. E. 2d, at ___, n. 16; App. 634a, n. 16 (citing Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 (1986); In re Murchison, 349 U. S. 133, 136 (1955)). Four months later—a month after the petition for writ of certiorari was filed in this Court—Justice Benjamin filed a concurring opinion. He defended the merits of the majority opinion as well as his decision not to recuse. He rejected Caperton’s challenge to his participation in the case under both the Due Process Clause and West Virginia law. Justice Benjamin reiterated that he had no “ ‘ direct, personal, substantial, pecuniary interest’ in this case.’ ” ___ W. Va., at ___, ___ S. E. 2d, at ___; App. 677a (quoting Lavoie, supra, at 822). Adopting “a standard merely of ‘appearances,’ ” he concluded, “seems little more than an invitation to subject West Virginia’s justice system to the vagaries of the day—a framework in which predictability and stability yield to supposition, innuendo, half-truths, and partisan manipulations.” ___ W. Va., at ___, ___ S. E. 2d, at ___; App. 692a. We granted certiorari. 555 U. S. ___ (2008). II It is axiomatic that “[a] fair trial in a fair tribunal is a basic requirement of due process.” Murchison, supra, at 136. As the Court has recognized, however, “most matters relating to judicial disqualification [do] not rise to a constitutional level.” FTC v. Cement Institute, 333 U. S. 683, 702 (1948). The early and leading case on the subject is Tumey v. Ohio, 273 U. S. 510 (1927). There, the Court stated that “matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.” Id., at 523. The Tumey Court concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has “a direct, personal, substantial, pecuniary interest” in a case. Ibid. This rule reflects the maxim that “[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The Federalist No. 10, p. 59 (J. Cooke ed. 1961) (J. Madison); see Frank, Disqualification of Judges, 56 Yale L. J. 605, 611–612 (1947) (same). Under this rule, “disqualification for bias or prejudice was not permitted”; those matters were left to statutes and judicial codes. Lavoie, supra, at 820; see also Part IV, infra (discussing judicial codes). Personal bias or prejudice “alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause.” Lavoie, supra, at 820. As new problems have emerged that were not discussed at common law, however, the Court has identified additional instances which, as an objective matter, require recusal. These are circumstances “in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Withrow, 421 U. S., at 47. To place the present case in proper context, two instances where the Court has required recusal merit further discussion. A The first involved the emergence of local tribunals where a judge had a financial interest in the outcome of a case, although the interest was less than what would have been considered personal or direct at common law. This was the problem addressed in Tumey. There, the mayor of a village had the authority to sit as a judge (with no jury) to try those accused of violating a state law prohibiting the possession of alcoholic beverages. Inherent in this structure were two potential conflicts. First, the mayor received a salary supplement for performing judicial duties, and the funds for that compensation derived from the fines assessed in a case. No fines were assessed upon acquittal. The mayor-judge thus received a salary supplement only if he convicted the defendant. 273 U. S., at 520. Second, sums from the criminal fines were deposited to the village’s general treasury fund for village improvements and repairs. Id., at 522. The Court held that the Due Process Clause required disqualification “both because of [the mayor-judge’s] direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village.” Id., at 535. It so held despite observing that “[t]here are doubtless mayors who would not allow such a consideration as $12 costs in each case to affect their judgment in it.” Id., at 532. The Court articulated the controlling principle: “Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” Ibid. The Court was thus concerned with more than the traditional common-law prohibition on direct pecuniary interest. It was also concerned with a more general concept of interests that tempt adjudicators to disregard neutrality. This concern with conflicts resulting from financial incentives was elaborated in Ward v. Monroeville, 409 U. S. 57 (1972), which invalidated a conviction in another mayor’s court. In Monroeville, unlike in Tumey, the mayor received no money; instead, the fines the mayor assessed went to the town’s general fisc. The Court held that “[t]he fact that the mayor [in Tumey] shared directly in the fees and costs did not define the limits of the principle.” 409 U. S., at 60. The principle, instead, turned on the “ ‘possible temptation’ ” the mayor might face; the mayor’s “executive responsibilities for village finances may make him partisan to maintain the high level of contribution [to those finances] from the mayor’s court.” Ibid. As the Court reiterated in another case that Term, “the [judge’s] financial stake need not be as direct or positive as it appeared to be in Tumey.” Gibson v. Berryhill, 411 U. S. 564, 579 (1973) (an administrative board composed of optometrists had a pecuniary interest of “sufficient substance” so that it could not preside over a hearing against competing optometrists). The Court in Lavoie further clarified the reach of the Due Process Clause regarding a judge’s financial interest in a case. There, a justice had cast the deciding vote on the Alabama Supreme Court to uphold a punitive damages award against an insurance company for bad-faith refusal to pay a claim. At the time of his vote, the justice was the lead plaintiff in a nearly identical lawsuit pending in Alabama’s lower courts. His deciding vote, this Court surmised, “undoubtedly ‘raised the stakes’ ” for the insurance defendant in the justice’s suit. 475 U. S., at 823–824. The Court stressed that it was “not required to decide whether in fact [the justice] was influenced.” Id., at 825. The proper constitutional inquiry is “whether sitting on the case then before the Supreme Court of Alabama ‘ “would offer a possible temptation to the average … judge to … lead him not to hold the balance nice, clear and true.” ’ ” Ibid. (quoting Monroeville, supra, at 60, in turn quoting Tumey, supra, at 532). The Court underscored that “what degree or kind of interest is sufficient to disqualify a judge from sitting ‘cannot be defined with precision.’ ” 475 U. S., at 822 (quoting Murchison, 349 U. S., at 136). In the Court’s view, however, it was important that the test have an objective component. The Lavoie Court proceeded to distinguish the state court justice’s particular interest in the case, which required recusal, from interests that were not a constitutional concern. For instance, “while [the other] justices might conceivably have had a slight pecuniary interest” due to their potential membership in a class-action suit against their own insurance companies, that interest is “ ‘too remote and insubstantial to violate the constitutional constraints.’ ” 475 U. S., at 825–826 (quoting Marshall v. Jerrico, Inc., 446 U. S. 238, 243 (1980)). B The second instance requiring recusal that was not discussed at common law emerged in the criminal contempt context, where a judge had no pecuniary interest in the case but was challenged because of a conflict arising from his participation in an earlier proceeding. This Court characterized that first proceeding (perhaps pejoratively) as a “ ‘one-man grand jury.’ ” Murchison, 349 U. S., at 133. In that first proceeding, and as provided by state law, a judge examined witnesses to determine whether criminal charges should be brought. The judge called the two petitioners before him. One petitioner answered questions, but the judge found him untruthful and charged him with perjury. The second declined to answer on the ground that he did not have counsel with him, as state law seemed to permit. The judge charged him with contempt. The judge proceeded to try and convict both petitioners. Id., at 134–135. This Court set aside the convictions on grounds that the judge had a conflict of interest at the trial stage because of his earlier participation followed by his decision to charge them. The Due Process Clause required disqualification. The Court recited the general rule that “no man can be a judge in his own case,” adding that “no man is permitted to try cases where he has an interest in the outcome.” Id., at 136. It noted that the disqualifying criteria “cannot be defined with precision. Circumstances and relationships must be considered.” Ibid. These circumstances and the prior relationship required recusal: “Having been a part of [the one-man grand jury] process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused.” Id., at 137. That is because “[a]s a practical matter it is difficult if not impossible for a judge to free himself from the influence of what took place in his ‘grand-jury’ secret session.” Id., at 138. The Murchison Court was careful to distinguish the circumstances and the relationship from those where the Constitution would not require recusal. It noted that the single-judge grand jury is “more a part of the accusatory process than an ordinary lay grand juror,” and that “adjudication by a trial judge of a contempt committed in [a judge’s] presence in open court cannot be likened to the proceedings here.” Id., at 137. The judge’s prior relationship with the defendant, as well as the information acquired from the prior proceeding, was of critical import. Following Murchison the Court held in Mayberry v. Pennsylvania, 400 U. S. 455, 466 (1971), “that by reason of the Due Process Clause of the Fourteenth Amendment a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one reviled by the contemnor.” The Court reiterated that this rule rests on the relationship between the judge and the defendant: “[A] judge, vilified as was this Pennsylvania judge, necessarily becomes embroiled in a running, bitter controversy. No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication.” Id., at 465. Again, the Court considered the specific circumstances presented by the case. It noted that “not every attack on a judge … disqualifies him from sitting.” Ibid. The Court distinguished the case from Ungar v. Sarafite, 376 U. S. 575 (1964), in which the Court had “ruled that a lawyer’s challenge, though ‘disruptive, recalcitrant and disagreeable commentary,’ was still not ‘an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.’ ” Mayberry, supra, at 465–466 (quoting Ungar, supra, at 584). The inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is “likely” to be neutral, or whether there is an unconstitutional “potential for bias.” III Based on the principles described in these cases we turn to the issue before us. This problem arises in the context of judicial elections, a framework not presented in the precedents we have reviewed and discussed. Caperton contends that Blankenship’s pivotal role in getting Justice Benjamin elected created a constitutionally intolerable probability of actual bias. Though not a bribe or criminal influence, Justice Benjamin would nevertheless feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected. That temptation, Caperton claims, is as strong and inherent in human nature as was the conflict the Court confronted in Tumey and Monroeville when a mayor-judge (or the city) benefited financially from a defendant’s conviction, as well as the conflict identified in Murchison and Mayberry when a judge was the object of a defendant’s contempt. Justice Benjamin was careful to address the recusal motions and explain his reasons why, on his view of the controlling standard, disqualification was not in order. In four separate opinions issued during the course of the appeal, he explained why no actual bias had been established. He found no basis for recusal because Caperton failed to provide “objective evidence” or “objective information,” but merely “subjective belief” of bias. ___ W. Va., at ___, ___–___, ___ S. E. 2d, at ___, ___–___; App. 336a, 337a–338a, 444a–445a. Nor could anyone “point to any actual conduct or activity on [his] part which could be termed ‘improper.’ ” ___ W. Va., at ___–___, ___ S. E. 2d, at ___–___; App. 655a–656a. In other words, based on the facts presented by Caperton, Justice Benjamin conducted a probing search into his actual motives and inclinations; and he found none to be improper. We do not question his subjective findings of impartiality and propriety. Nor do we determine whether there was actual bias. Following accepted principles of our legal tradition respecting the proper performance of judicial functions, judges often inquire into their subjective motives and purposes in the ordinary course of deciding a case. This does not mean the inquiry is a simple one. “The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth.” B. Cardozo, The Nature of the Judicial Process 9 (1921). The judge inquires into reasons that seem to be leading to a particular result. Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work. To bring coherence to the process, and to seek respect for the resulting judgment, judges often explain the reasons for their conclusions and rulings. There are instances when the introspection that often attends this process may reveal that what the judge had assumed to be a proper, controlling factor is not the real one at work. If the judge discovers that some personal bias or improper consideration seems to be the actuating cause of the decision or to be an influence so difficult to dispel that there is a real possibility of undermining neutrality, the judge may think it necessary to consider withdrawing from the case. The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case. The judge’s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. See Tumey, 273 U. S., at 532; Mayberry, 400 U. S., at 465–466; Lavoie, 475 U. S.em>., at 825. In defining these standards the Court has asked whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, 421 U. S., at 47. We turn to the influence at issue in this case. Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case. Cf. Mayberry, supra, at 465 (“It is, of course, not every attack on a judge that disqualifies him from sitting”); Lavoie, supra, at 825–826 (some pecuniary interests are “ ‘too remote and insubstantial’ ”). We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election. Applying this principle, we conclude that Blankenship’s campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case. Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin. His contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300% the amount spent by Benjamin’s campaign committee. App. 288a. Caperton claims Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined. Brief for Petitioners 28. Massey responds that Blankenship’s support, while significant, did not cause Benjamin’s victory. In the end the people of West Virginia elected him, and they did so based on many reasons other than Blankenship’s efforts. Massey points out that every major state newspaper, but one, endorsed Benjamin. Brief for Respondents 54. It also contends that then-Justice McGraw cost himself the election by giving a speech during the campaign, a speech the opposition seized upon for its own advantage. Ibid. Justice Benjamin raised similar arguments. He asserted that “the outcome of the 2004 election was due primarily to [his own] campaign’s message,” as well as McGraw’s “devastat[ing]” speech in which he “made a number of controversial claims which became a matter of statewide discussion in the media, on the internet, and elsewhere.” ___ W. Va., at ___, and n. 29, ___ S. E. 2d, at ___, and n. 29; App. 673a, 674a, and n. 29; see also ___ W. Va., at ___–___, and nn. 35–39, ___ S. E. 2d, at ___–___, and nn. 35–39; App. 677a–680a, and nn. 35–39. Whether Blankenship’s campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry. Much like determining whether a judge is actually biased, proving what ultimately drives the electorate to choose a particular candidate is a difficult endeavor, not likely to lend itself to a certain conclusion. This is particularly true where, as here, there is no procedure for judicial factfinding and the sole trier of fact is the one accused of bias. Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances “would offer a possible temptation to the average . . . judge to … lead him not to hold the balance nice, clear and true.” Tumey, supra, at 532. In an election decided by fewer than 50,000 votes (382,036 to 334,301), see ___ W. Va., at ___, ___ S. E. 2d, at ___; App. 677a, Blankenship’s campaign contributions—in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election—had a significant and disproportionate influence on the electoral outcome. And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, supra, at 47. The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical. It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice. The $50 million adverse jury verdict had been entered before the election, and the Supreme Court of Appeals was the next step once the state trial court dealt with post-trial motions. So it became at once apparent that, absent recusal, Justice Benjamin would review a judgment that cost his biggest donor’s company $50 million. Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal. Justice Benjamin did undertake an extensive search for actual bias. But, as we have indicated, that is just one step in the judicial process; objective standards may also require recusal whether or not actual bias exists or can be proved. Due process “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.” Murchison, 349 U. S., at 136. The failure to consider objective standards requiring recusal is not consistent with the imperatives of due process. We find that Blankenship’s significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—“ ‘ “offer a possible temptation to the average … judge to … lead him not to hold the balance nice, clear and true.” ’ ” Lavoie, 475 U. S.em>., at 825 (quoting Monroeville, 409 U. S., at 60, in turn quoting Tumey, 273 U. S., at 532). On these extreme facts the probability of actual bias rises to an unconstitutional level. IV Our decision today addresses an extraordinary situation where the Constitution requires recusal. Massey and its amici predict that various adverse consequences will follow from recognizing a constitutional violation here—ranging from a flood of recusal motions to unnecessary interference with judicial elections. We disagree. The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case. It is true that extreme cases often test the bounds of established legal principles, and sometimes no administrable standard may be available to address the perceived wrong. But it is also true that extreme cases are more likely to cross constitutional limits, requiring this Court’s intervention and formulation of objective standards. This is particularly true when due process is violated. See, e.g., County of Sacramento v. Lewis, 523 U. S. 833, 846–847 (1998) (reiterating the due-process prohibition on “executive abuse of power . . . which shocks the conscience”); id., at 858 (Kennedy, J., concurring) (explaining that “objective considerations, including history and precedent, are the controlling principle” of this due process standard). This Court’s recusal cases are illustrative. In each case the Court dealt with extreme facts that created an unconstitutional probability of bias that “ ‘cannot be defined with precision.’ ” Lavoie, 475 U. S., at 822 (quoting Murchison, 349 U. S., at 136). Yet the Court articulated an objective standard to protect the parties’ basic right to a fair trial in a fair tribunal. The Court was careful to distinguish the extreme facts of the cases before it from those interests that would not rise to a constitutional level. See, e.g., Lavoie, supra, at 825–826; Mayberry, 400 U. S., at 465–466; Murchison, supra, at 137; see also Part II, supra. In this case we do nothing more than what the Court has done before. As such, it is worth noting the effects, or lack thereof, of the Court’s prior decisions. Even though the standards announced in those cases raised questions similar to those that might be asked after our decision today, the Court was not flooded with Monroeville or Murchison motions. That is perhaps due in part to the extreme facts those standards sought to address. Courts proved quite capable of applying the standards to less extreme situations. One must also take into account the judicial reforms the States have implemented to eliminate even the appearance of partiality. Almost every State—West Virginia included—has adopted the American Bar Association’s objective standard: “A judge shall avoid impropriety and the appearance of impropriety.” ABA Annotated Model Code of Judicial Conduct, Canon 2 (2004); see Brief for American Bar Association as Amicus Curiae 14, and n. 29. The ABA Model Code’s test for appearance of impropriety is “whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.” Canon 2A, Commentary; see also W. Va. Code of Judicial Conduct, Canon 2A, and Commentary (2009) (same). The West Virginia Code of Judicial Conduct also requires a judge to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” Canon 3E(1); see also 28 U. S. C. §455(a) (“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”). Under Canon 3E(1), “ ‘[t]he question of disqualification focuses on whether an objective assessment of the judge’s conduct produces a reasonable question about impartiality, not on the judge’s subjective perception of the ability to act fairly.’ ” State ex rel. Brown v. Dietrick, 191 W. Va. 169, 174, n. 9, 444 S. E. 2d 47, 52, n. 9 (1994); see also Liteky v. United States, 510 U. S. 540, 558 (1994) (Kennedy, J., concurring in judgment) (“[U]nder [28 U. S. C.] §455(a), a judge should be disqualified only if it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set aside when judging the dispute”). Indeed, some States require recusal based on campaign contributions similar to those in this case. See, e.g., Ala. Code §§12–24–1, 12–24–2 (2006); Miss. Code of Judicial Conduct, Canon 3E(2) (2008). These codes of conduct serve to maintain the integrity of the judiciary and the rule of law. The Conference of the Chief Justices has underscored that the codes are “[t]he principal safeguard against judicial campaign abuses” that threaten to imperil “public confidence in the fairness and integrity of the nation’s elected judges.” Brief for Conference of Chief Justices as Amicus Curiae 4, 11. This is a vital state interest: “Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.” Republican Party of Minn. v. White, 536 U. S. 765, 793 (2002) (Kennedy, J., concurring). It is for this reason that States may choose to “adopt recusal standards more rigorous than due process requires.” Id., at 794; see also Bracy v. Gramley, 520 U. S. 899, 904 (1997) (distinguishing the “constitutional floor” from the ceiling set “by common law, statute, or the professional standards of the bench and bar”). “The Due Process Clause demarks only the outer boundaries of judicial disqualifications. Congress and the states, of course, remain free to impose more rigorous standards for judicial disqualification than those we find mandated here today.” Lavoie, supra, at 828. Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution. Application of the constitutional standard implicated in this case will thus be confined to rare instances. * * * The judgment of the Supreme Court of Appeals of West Virginia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. |
555.US.2008_07-526 | The Indian Reorganization Act (IRA), enacted in 1934, authorizes the Secretary of Interior, a respondent here, to acquire land and hold it in trust “for the purpose of providing land for Indians,” 25 U. S. C. §465, and defines “Indian” to “include all persons of Indian descent who are members of any recognized tribe now under Federal jurisdiction,” §479. The Narragansett Tribe was placed under the Colony of Rhode Island’s formal guardianship in 1709. It agreed to relinquish its tribal authority and sell all but two acres of its remaining reservation land in 1880, but then began trying to regain its land and tribal status. From 1927 to 1937, federal authorities declined to give it assistance because they considered the Tribe to be under state, not federal jurisdiction. In a 1978 agreement settling a dispute between the Tribe and Rhode Island, the Tribe received title to 1,800 acres of land in petitioner Charlestown in exchange for relinquishing claims to state land based on aboriginal title; and it agreed that the land would be subject to state law. The Tribe gained formal recognition from the Federal Government in 1983, and the Secretary of Interior accepted a deed of trust to the 1,800 acres in 1988. Subsequently, a dispute arose over whether the Tribe’s plans to build housing on an additional 31 acres of land it had purchased complied with local regulations. While litigation was pending, the Secretary accepted the 31-acre parcel into trust. The Interior Board of Indian Appeals upheld that decision, and petitioners sought review. The District Court granted summary judgment to the Secretary and other officials, determining that §479’s plain language defines “Indian” to include members of all tribes in existence in 1934, but does not require a tribe to have been federally recognized on that date; and concluding that, since the Tribe is currently federally recognized and was in existence in 1934, it is a tribe under §479. In affirming, the First Circuit found §479 ambiguous as to the meaning of “now under Federal jurisdiction,” applied the principles of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843, and deferred to the Secretary’s construction of the provision to allow the land to be taken into trust. Held: Because the term “now under federal jurisdiction” in §479 unambiguously refers to those tribes that were under federal jurisdiction when the IRA was enacted in 1934, and because the Narragansett Tribe was not under federal jurisdiction in 1934, the Secretary does not have the authority to take the 31-acre parcel into trust. Pp. 7–16. (a) When a statute’s text is plain and unambiguous, United States v. Gonzales, 520 U. S. 1, 4, the statute must be applied according to its terms, see, e.g., Dodd v. United States, 545 U. S. 353, 359. Here, whether the Secretary has authority to take the parcel into trust depends on whether the Narragansetts are members of a “recognized Indian Tribe now under Federal jurisdiction,” which, in turn, depends on whether “now” refers to 1998, when the Secretary accepted the parcel into trust, or 1934, when Congress enacted the IRA. The ordinary meaning of “now,” as understood at the time of enactment, was at “the present time; at this moment; at the time of speaking.” That definition is consistent with interpretations given “now” by this Court both before and after the IRA’s passage. See e.g., Franklin v. United States, 216 U. S. 559, 569; Montana v. Kennedy, 366 U. S. 308, 310–311. It also aligns with the word’s natural reading in the context of the IRA. Furthermore, the Secretary’s current interpretation is at odds with the Executive Branch’s construction of §479 at the time of enactment. The Secretary’s additional arguments in support of his contention that “now” is ambiguous are unpersuasive. There is also no need to consider the parties’ competing views on whether Congress had a policy justification for limiting the Secretary’s trust authority to tribes under federal jurisdiction in 1934, since Congress’ use of “now” in §479 speaks for itself and “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. Pp. 7–13. (b) The Court rejects alternative arguments by the Secretary and his amici that rely on statutory provisions other than §479 to support the Secretary’s decision to take the parcel into trust for the Narragansetts. Pp. 13–15. 497 F. 3d 15, reversed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, and Alito, JJ., joined. Breyer, J., filed a concurring opinion. Souter, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Stevens, J., filed a dissenting opinion. | The Indian Reorganization Act (IRA or Act) authorizes the Secretary of the Interior, a respondent in this case, to acquire land and hold it in trust “for the purpose of providing land for Indians.” Ch. 576, §5, 48 Stat. 985, 25 U. S. C. §465. The IRA defines the term “Indian” to “include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” §479. The Secretary notified petitioners—the State of Rhode Island, its Governor, and the town of Charlestown, Rhode Island—that he intended to accept in trust a parcel of land for use by the Narragansett Indian Tribe in accordance with his claimed authority under the statute. In proceedings before the Interior Board of Indian Appeals (IBIA), the District Court, and the Court of Appeals for the First Circuit, petitioners unsuccessfully challenged the Secretary’s authority to take the parcel into trust. In reviewing the determination of the Court of Appeals, we are asked to interpret the statutory phrase “now under Federal jurisdiction” in §479. Petitioners contend that the term “now” refers to the time of the statute’s enactment, and permits the Secretary to take land into trust for members of recognized tribes that were “under Federal jurisdiction” in 1934. The respondents argue that the word “now” is an ambiguous term that can reasonably be construed to authorize the Secretary to take land into trust for members of tribes that are “under Federal jurisdiction” at the time that the land is accepted into trust. We agree with petitioners and hold that, for purposes of §479, the phrase “now under Federal jurisdiction” refers to a tribe that was under federal jurisdiction at the time of the statute’s enactment. As a result, §479 limits the Secretary’s authority to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the IRA was enacted in June 1934. Because the record in this case establishes that the Narragansett Tribe was not under federal jurisdiction when the IRA was enacted, the Secretary does not have the authority to take the parcel at issue into trust. We reverse the judgment of the Court of Appeals. I At the time of colonial settlement, the Narragansett Indian Tribe was the indigenous occupant of much of what is now the State of Rhode Island. See Final Determination of Federal Acknowledgement of Narragansett Indian Tribe of Rhode Island, 48 Fed. Reg. 6177 (1983) (hereinafter Final Determination). Initial relations between colonial settlers, the Narragansett Tribe, and the other Indian tribes in the region were peaceful, but relations deteriorated in the late 17th century. The hostilities peaked in 1675 and 1676 during the 2-year armed conflict known as King Philip’s War. Hundreds of colonists and thousands of Indians died. See E. Schultz & M. Tougias, King Philip’s War 5 (1999). The Narragansett Tribe, having been decimated, was placed under formal guardianship by the Colony of Rhode Island in 1709. 48 Fed. Reg. 6177.[Footnote 1] Not quite two centuries later, in 1880, the State of Rhode Island convinced the Narragansett Tribe to relinquish its tribal authority as part of an effort to assimilate tribal members into the local population. See Narragansett Indian Tribe v. National Indian Gaming Comm’n, 158 F. 3d 1335, 1336 (CADC 1998). The Tribe also agreed to sell all but two acres of its remaining reservation land for $5,000. Ibid. Almost immediately, the Tribe regretted its decisions and embarked on a campaign to regain its land and tribal status. Ibid. In the early 20th century, members of the Tribe sought economic support and other assistance from the Federal Government. But, in correspondence spanning a 10-year period from 1927 to 1937, federal officials declined their request, noting that the Tribe was, and always had been, under the jurisdiction of the New England States, rather than the Federal Government. Having failed to gain recognition or assistance from the United States or from the State of Rhode Island, the Tribe filed suit in the 1970’s to recover its ancestral land, claiming that the State had misappropriated its territory in violation of the Indian Non-Intercourse Act, 25 U. S. C. §177.[Footnote 2] The claims were resolved in 1978 by enactment of the Rhode Island Indian Claims Settlement Act, 92 Stat. 813, 25 U. S. C. §1701 et seq. Under the agreement codified by the Settlement Act, the Tribe received title to 1,800 acres of land in Charlestown, Rhode Island, in exchange for relinquishing its past and future claims to land based on aboriginal title. The Tribe also agreed that the 1,800 acres of land received under the Settlement Act “shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island.” §1708(a); see also §1712(a). The Narragansett Tribe’s ongoing efforts to gain recognition from the United States Government finally succeeded in 1983. 48 Fed. Reg. 6177. In granting formal recognition, the Bureau of Indian Affairs (BIA) determined that “the Narragansett community and its predecessors have existed autonomously since first contact, despite undergoing many modifications.” Id., at 6178. The BIA referred to the Tribe’s “documented history dating from 1614” and noted that “all of the current membership are believed to be able to trace to at least one ancestor on the membership lists of the Narragansett community prepared after the 1880 Rhode Island ‘detribalization’ act.” Ibid. After obtaining federal recognition, the Tribe began urging the Secretary to accept a deed of trust to the 1,800 acres conveyed to it under the Rhode Island Indian Claims Settlement Act. 25 CFR §83.2 (2008) (providing that federal recognition is needed before an Indian tribe may seek “the protection, services, and benefits of the Federal government”). The Secretary acceded to the Tribe’s request in 1988. See Town of Charlestown, Rhode Island v. Eastern Area Director, Bur. of Indian Affairs, 18 IBIA 67, 69 (1989).[Footnote 3] In 1991, the Tribe’s housing authority purchased an additional 31 acres of land in the town of Charlestown adjacent to the Tribe’s 1,800 acres of settlement lands. Soon thereafter, a dispute arose about whether the Tribe’s planned construction of housing on that parcel had to comply with local regulations. Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F. 3d 908, 911–912 (CA1 1996). The Tribe’s primary argument for noncompliance—that its ownership of the parcel made it a “dependent Indian community” and thus “Indian country” under 18 U. S. C. §1151—ultimately failed. 89 F. 3d, at 913–922. But, while the litigation was pending, the Tribe sought an alternative solution to free itself from compliance with local regulations: It asked the Secretary to accept the 31-acre parcel into trust for the Tribe pursuant to 25 U. S. C. §465. By letter dated March 6, 1998, the Secretary notified petitioners of his acceptance of the Tribe’s land into trust. Petitioners appealed the Secretary’s decision to the IBIA, which upheld the Secretary’s decision. See Town of Charlestown, Rhode Island v. Eastern Area Director, Bureau of Indian Affairs, 35 IBIA 93 (2000). Petitioners sought review of the IBIA decision pursuant to the Administrative Procedure Act, 5 U. S. C. §702. The District Court granted summary judgment in favor of the Secretary and other Department of Interior officials. As relevant here, the District Court determined that the plain language of 25 U. S. C. §479 defines “Indian” to include members of all tribes in existence in 1934, but does not require a tribe to have been federally recognized on that date. Carcieri v. Norton, 290 F. Supp. 2d 167, 179–181 (RI 2003). According to the District Court, because it is currently “federally-recognized” and “existed at the time of the enactment of the IRA,” the Narragansett Tribe “qualifies as an ‘Indian tribe’ within the meaning of §479.” Id., at 181. As a result, “the secretary possesses authority under §465 to accept lands into trust for the benefit of the Narragansetts.” Ibid. The Court of Appeals for the First Circuit affirmed, first in a panel decision, Carcieri v. Norton, 423 F. 3d 45 (2005), and then sitting en banc, 497 F. 3d 15 (CA1 2008). Although the Court of Appeals acknowledged that “[o]ne might have an initial instinct to read the word ‘now’ [in §479] . . . to mean the date of [the] enactment of the statute, June 18, 1934,” the court concluded that there was “ambiguity as to whether to view the term … as operating at the moment Congress enacted it or at the moment the Secretary invokes it.” Id., at 26. The Court of Appeals noted that Congress has used the word “now” in other statutes to refer to the time of the statute’s application, not its enactment. Id., at 26–27. The Court of Appeals also found that the particular statutory context of §479 did not clarify the meaning of “now.” On one hand, the Court of Appeals noted that another provision within the IRA, 25 U. S. C. §472, uses the term “now or hereafter,” which supports petitioners’ argument that “now,” by itself, does not refer to future events. But on the other hand, §479 contains the particular application date of “June 1, 1934,” suggesting that if Congress had wanted to refer to the date of enactment, it could have done so more specifically. 497 F. 3d, at 27. The Court of Appeals further reasoned that both interpretations of “now” are supported by reasonable policy explanations, id., at 27–28, and it found that the legislative history failed to “clearly resolve the issue,” id., at 28. Having found the statute ambiguous, the Court of Appeals applied the principles set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984), and deferred to the Secretary’s construction of the provision. 497 F. 3d, at 30. The court rejected petitioners’ arguments that the Secretary’s interpretation was an impermissible construction of the statute. Id., at 30–34. It also held that petitioners had failed to demonstrate that the Secretary’s interpretation was inconsistent with earlier practices of the Department of Interior. Furthermore, the court determined that even if the interpretation were a departure from the Department’s prior practices, the decision should be affirmed based on the Secretary’s “reasoned explanation for his interpretation.” Id., at 34. We granted certiorari, 552 U. S. ___ (2008), and now reverse. II This case requires us to apply settled principles of statutory construction under which we must first determine whether the statutory text is plain and unambiguous. United States v. Gonzales, 520 U. S. 1, 4 (1997). If it is, we must apply the statute according to its terms. See, e.g., Dodd v. United States, 545 U. S. 353, 359 (2005); Lamie v. United States Trustee, 540 U. S. 526, 534 (2004); Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1, 6 (2000); Caminetti v. United States, 242 U. S. 470, 485 (1917). The Secretary may accept land into trust only for “the purpose of providing land for Indians.” 25 U. S. C. §465. “Indian” is defined by statute as follows: “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. . . . The term ‘tribe’ wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation… .” §479 (emphasis added). The parties are in agreement, as are we, that the Secretary’s authority to take the parcel in question into trust depends on whether the Narragansetts are members of a “recognized Indian Tribe now under Federal jurisdiction.” Ibid. That question, in turn, requires us to decide whether the word “now under Federal jurisdiction” refers to 1998, when the Secretary accepted the 31-acre parcel into trust, or 1934, when Congress enacted the IRA. We begin with the ordinary meaning of the word “now,” as understood when the IRA was enacted. Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U. S. 267, 272 (1994); Moskal v. United States, 498 U. S. 103, 108–109 (1990). At that time, the primary definition of “now” was “[a]t the present time; at this moment; at the time of speaking.” Webster’s New International Dictionary 1671 (2d ed. 1934); see also Black’s Law Dictionary 1262 (3d ed. 1933) (defining “now” to mean “[a]t this time, or at the present moment” and noting that “ ‘[n]ow’ as used in a statute ordinarily refers to the date of its taking effect …” (emphasis added)). This definition is consistent with interpretations given to the word “now” by this Court, both before and after passage of the IRA, with respect to its use in other statutes. See, e.g., Franklin v. United States, 216 U. S. 559, 568–569 (1910) (interpreting a federal criminal statute to have “adopted such punishment as the laws of the State in which such place is situated now provide for the like offense” (citing United States v. Paul, 6 Pet. 141 (1832) (internal quotation marks omitted))); Montana v. Kennedy, 366 U. S. 308, 310–311 (1961) (interpreting a statute granting citizenship status to foreign-born “children of persons who now are, or have been citizens of the United States” (internal quotation marks omitted; emphasis deleted)). It also aligns with the natural reading of the word within the context of the IRA. For example, in the original version of 25 U. S. C. §465, which provided the same authority to the Secretary to accept land into trust for “the purpose of providing land for Indians,” Congress explicitly referred to current events, stating “[t]hat no part of such funds shall be used to acquire additional land outside of the exterior boundaries of [the] Navajo Indian Reservation . . . in the event that the proposed Navajo boundary extension measures now pending in Congress … become law.” IRA, §5, 48 Stat. 985 (emphasis added).[Footnote 4] In addition, elsewhere in the IRA, Congress expressly drew into the statute contemporaneous and future events by using the phrase “now or hereafter.” See 25 U. S. C. §468 (referring to “the geographic boundaries of any Indian reservation now existing or established hereafter”); §472 (referring to “Indians who may be appointed . . . to the various positions maintained, now or hereafter, by the Indian Office”). Congress’ use of the word “now” in this provision, without the accompanying phrase “or hereafter,” thus provides further textual support for the conclusion that the term refers solely to events contemporaneous with the Act’s enactment. See Barnhart v. Sigmon Coal Co., 534 U. S. 438, 452 (2002) (“[W]hen 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)). Furthermore, the Secretary’s current interpretation is at odds with the Executive Branch’s construction of this provision at the time of enactment. In correspondence with those who would assist him in implementing the IRA, the Commissioner of Indian Affairs, John Collier, explained that: “Section 19 of the Indian Reorganization Act of June 18, 1934 (48 Stat. L., 988), provides, in effect, that the term ‘Indian’ as used therein shall include—(1) all persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Act … .” Letter from John Collier, Commissioner, to Superintendents (Mar. 7, 1936), Lodging of Respondents (emphasis added).[Footnote 5] Thus, although we do not defer to Commissioner Collier’s interpretation of this unambiguous statute, see Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 476 (1992), we agree with his conclusion that the word “now” in §479 limits the definition of “Indian,” and therefore limits the exercise of the Secretary’s trust authority under §465 to those members of tribes that were under federal jurisdiction at the time the IRA was enacted. The Secretary makes two other arguments in support of his contention that the term “now” as used in §479 is ambiguous. We reject them both. First, the Secretary argues that although the “use of ‘now’ can refer to the time of enactment” in the abstract, “it can also refer to the time of the statute’s application.” Brief for Respondents 18. But the susceptibility of the word “now” to alternative meanings “does not render the word . . . whenever it is used, ambiguous,” particularly where “all but one of the meanings is ordinarily eliminated by context.” Deal v. United States, 508 U. S. 129, 131–132 (1993). Here, the statutory context makes clear that “now” does not mean “now or hereafter” or “at the time of application.” Had Congress intended to legislate such a definition, it could have done so explicitly, as it did in §§468 and 472, or it could have omitted the word “now” altogether. Instead, Congress limited the statute by the word “now” and “we are obliged to give effect, if possible, to every word Congress used.” Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979). Second, the Secretary argues that §479 left a gap for the agency to fill by using the phrase “shall include” in its introductory clause. Brief for Respondents 26–27. The Secretary, in turn, claims to have permissibly filled that gap by defining “ ‘Tribe’ ” and “ ‘Individual Indian’ ” without reference to the date of the statute’s enactment. Id., at 28 (citing 25 CFR §§151.2(b), (c)(1) (2008)). But, as explained above, Congress left no gap in 25 U. S. C. §479 for the agency to fill. Rather, it explicitly and comprehensively defined the term by including only three discrete definitions: “[1] members of any recognized Indian tribe now under Federal jurisdiction, and [2] all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and . . . [3] all other persons of one-half or more Indian blood.” Ibid. In other statutory provisions, Congress chose to expand the Secretary’s authority to particular Indian tribes not necessarily encompassed within the definitions of “Indian” set forth in §479.[Footnote 6] Had it understood the word “include” in §479 to encompass tribes other than those satisfying one of the three §479 definitions, Congress would have not needed to enact these additional statutory references to specific Tribes. The Secretary and his amici also go beyond the statutory text to argue that Congress had no policy justification for limiting the Secretary’s trust authority to those tribes under federal jurisdiction in 1934, because the IRA was intended to strengthen Indian communities as a whole, regardless of their status in 1934. Petitioners counter that the main purpose of §465 was to reverse the loss of lands that Indians sustained under the General Allotment Act, see Atkinson Trading Co. v. Shirley, 532 U. S. 645, 650, n. 1 (2001), so the statute was limited to tribes under federal jurisdiction at that time because they were the tribes who lost their lands. We need not consider these competing policy views, because Congress’ use of the word “now” in §479 speaks for itself and “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).[Footnote 7] III The Secretary and his supporting amici also offer two alternative arguments that rely on statutory provisions other than the definition of “Indian” in §479 to support the Secretary’s decision to take this parcel into trust for the Narragansett Tribe. We reject both arguments. First, the Secretary and several amici argue that the definition of “Indian” in §479 is rendered irrelevant by the broader definition of “tribe” in §479 and by the fact that the statute authorizes the Secretary to take title to lands “in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired. ” §465 (emphasis added); Brief for Respondents 12–14. But the definition of “tribe” in §479 itself refers to “any Indian tribe” (emphasis added), and therefore is limited by the temporal restrictions that apply to §479’s definition of “Indian.” See §479 (“The term ‘tribe’ wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation” (emphasis added)). And, although §465 authorizes the United States to take land in trust for an Indian tribe, §465 limits the Secretary’s exercise of that authority “for the purpose of providing land for Indians.” There simply is no legitimate way to circumvent the definition of “Indian” in delineating the Secretary’s authority under §§ 465 and 479. [Footnote 8] Second, amicus National Congress of American Indians (NCAI) argues that 25 U. S. C. §2202, which was enacted as part of the Indian Land Consolidation Act (ILCA), Title II, 96 Stat. 2517, overcomes the limitations set forth in §479 and, in turn, authorizes the Secretary’s action. Section 2202 provides: “The provisions of section 465 of this title shall apply to all tribes notwithstanding the provisions of section 478 of this title: Provided, That nothing in this section is intended to supersede any other provision of Federal law which authorizes, prohibits, or restricts the acquisition of land for Indians with respect to any specific tribe, reservation, or state(s).” (Alteration in original.) NCAI argues that the “ILCA independently grants authority under Section 465 for the Secretary to execute the challenged trust acquisition.” NCAI Brief 8. We do not agree. The plain language of §2202 does not expand the power set forth in §465, which requires that the Secretary take land into trust only “for the purpose of providing land for Indians.” Nor does §2202 alter the definition of “Indian” in §479, which is limited to members of tribes that were under federal jurisdiction in 1934.[Footnote 9] See supra, at 7–12. Rather, §2202 by its terms simply ensures that tribes may benefit from §465 even if they opted out of the IRA pursuant to §478, which allowed tribal members to reject the application of the IRA to their tribe. §478 (“This Act shall not apply to any reservation wherein a majority of the adult Indians . . . shall vote against its application”). As a result, there is no conflict between §2202 and the limitation on the Secretary’s authority to take lands contained in §465. Rather, §2202 provides additional protections to those who satisfied the definition of “Indian” in §479 at the time of the statute’s enactment, but opted out of the IRA shortly thereafter. NCAI’s reading of §2202 also would nullify the plain meaning of the definition of “Indian” set forth in §479 and incorporated into §465. Consistent with our obligation to give effect to every provision of the statute, Reiter, 442 U. S., at 339, we will not assume that Congress repealed the plain and unambiguous restrictions on the Secretary’s exercise of trust authority in §§465 and 479 when it enacted §2202. “We have repeatedly stated . . . that absent ‘a clearly expressed congressional intention,’ . . . [a]n implied repeal will only be found where provisions in two statutes are in ‘irreconcilable conflict,’ or where the latter Act covers the whole subject of the earlier one and ‘is clearly intended as a substitute.’ ” Branch v. Smith, 538 U. S. 254, 273 (2003) (plurality opinion) (quoting Morton v. Mancari, 417 U. S. 535, 551 (1974), and Posadas v. National City Bank, 296 U. S. 497, 503 (1936)). IV We hold that the term “now under Federal jurisdiction” in §479 unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934. None of the parties or amici, including the Narragansett Tribe itself, has argued that the Tribe was under federal jurisdiction in 1934. And the evidence in the record is to the contrary. 48 Fed. Reg. 6177. Moreover, the petition for writ of certiorari filed in this case specifically represented that ‘‘[i]n 1934, the Narragansett Indian Tribe . . . was neither federally recognized nor under the jurisdiction of the federal government.’’ Pet. for Cert. 6. The respondents’ brief in opposition declined to contest this assertion. See Brief in Opposition 2–7. Under our rules, that alone is reason to accept this as fact for purposes of our decision in this case. See this Court’s Rule 15.2. We therefore reverse the judgment of the Court of Appeals. It is so ordered. Footnote 1 The Narragansett Tribe recognized today is the successor to two tribes, the Narragansett and the Niantic Tribes. The two predecessor Tribes shared territory and cultural traditions at the time of European settlement and effectively merged in the aftermath of King Philip’s War. See Final Determination, 48 Fed. Reg. 6177. Footnote 2 Title 25 U. S. C. §177 provides, in pertinent part, that “[n]o purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.” Footnote 3 The Tribe, the town, and the Secretary previously litigated issues relating to the Secretary’s acceptance of these 1,800 acres, and that matter is not presently before this Court. See generally Town of Charlestown, Rhode Island, 18 IBIA 67; Rhode Island v. Narragansett Indian Tribe, 19 F. 3d 685 (CA1 1994); Narragansett Indian Tribe v. Rhode Island, 449 F. 3d 16 (CA1 2006). Footnote 4 The current version of §465 provides “[t]hat no part of such funds shall be used to acquire additional land outside of the exterior boundaries of Navajo Indian Reservation . . . in the event that legislation to define the exterior boundaries of the Navajo Indian Reservation in New Mexico, and for other purposes, or similar legislation, becomes law.” Footnote 5 In addition to serving as Commissioner of Indian Affairs, John Collier was “a principal author of the [IRA].” United States v. Mitchell, 463 U. S. 206, 221, n. 21 (1983). And, as both parties note, he appears to have been responsible for the insertion of the words “now under Federal jurisdiction” into what is now 25 U. S. C. §479. See Hearings on S. 2755 et al.: A Bill to Grant Indians Living Under Federal Tutelage the Freedom to Organize for Purposes of Local Self-Government and Economic Enterprise, before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, p. 266 (1934). Also, the record contains a 1937 letter from Commissioner Collier in which, even after the passage of the IRA, he stated that the Federal Government still lacked any jurisdiction over the Narragansett Tribe. App. 23a–24a. Commissioner Collier’s responsibilities related to implementing the IRA make him an unusually persuasive source as to the meaning of the relevant statutory language and the Tribe’s status under it. See Christensen v. Harris County, 529 U. S. 576, 587 (2000) (explaining that an Executive Branch statutory interpretation that lacks the force of law is “entitled to respect . . . to the extent that those interpretations have the ‘power to persuade’ ” (internal quotation marks omitted)). Footnote 6 See, e.g., 25 U. S. C. §473a (“Sections . . . 465 . . . and 479 of this title shall after May 1, 1936, apply to the Territory of Alaska”); §1041e(a) (“The [Shawnee] Tribe shall be eligible to have land acquired in trust for its benefit pursuant to section 465 of this title . . .”); §1300b–14(a) (“[Sections 465 and 479 of this title are] hereby made applicable to the [Texas] Band [of Kickapoo Indians] . . .”); §1300g–2(a) (“[Sections 465 and 479] shall apply to the members of the [Ysleta Del Ser Pueblo] tribe, the tribe, and the reservation”). Footnote 7 Because we conclude that the language of §465 unambiguously precludes the Secretary’s action with respect to the parcel of land at issue in this case, we do not address petitioners’ alternative argument that the Rhode Island Indian Claims Settlement Act, 92 Stat. 813, 25 U. S. C. §1701 et seq., precludes the Secretary from exercising his authority under §465. Footnote 8 For this reason, we disagree with the argument made by Justice Stevens that the term “Indians” in §465 has a different meaning than the definition of “Indian” provided in §479, and that the term’s meaning in §465 is controlled by later-enacted regulations governing the Secretary’s recognition of tribes like the Narragansetts. See post, at 4–6, 9–11 (dissenting opinion). When Congress has enacted a definition with “detailed and unyielding provisions,” as it has in §479, this Court must give effect to that definition even when “ ‘it could be argued that the line should have been drawn at a different point.’ ” INS v. Hector, 479 U. S. 85, 88–89 (1986) (per curium) (quoting Fiallo v. Bell, 430 U. S. 787, 798 (1977)). Footnote 9 NCAI notes that the ILCA’s definition of “tribe” “means any Indian tribe, band, group, pueblo, or community for which, or for the members of which, the United States holds lands in trust.” §2201. But §2201 is, by its express terms, applicable only to Chapter 24 of Title 25 of the United States Code. Ibid. The IRA is codified in Chapter 14 of Title 25. See §465. Section 2201, therefore, does not itself alter the authority granted to the Secretary by §465. |
556.US.2008_07-1437 | Respondents filed a state-court suit alleging that petitioner had violated state and federal law in connection with a patent dispute. After removing the case to Federal District Court under 28 U. S. C. §1441(c), which allows removal if the case includes at least one claim over which the federal court has original jurisdiction, petitioner moved to dismiss the suit’s only federal claim, which arose under the Racketeer Influenced and Corrupt Organizations Act (RICO). Agreeing that respondents had failed to state a RICO claim upon which relief could be granted, the District Court dismissed the claim; declined to exercise supplemental jurisdiction over the remaining state-law claims under §1367(c)(3), which allows such a course if the court “has dismissed all claims over which it has original jurisdiction”; and remanded the case to state court. The Federal Circuit dismissed petitioner’s appeal, finding that the remand order could be colorably characterized as based on a “lack of subject matter jurisdiction” over the state-law claims, §1447(c), and was therefore “not reviewable on appeal,” §1447(d). Held: A district court’s order remanding a case to state court after declining to exercise supplemental jurisdiction over state-law claims is not a remand for lack of subject-matter jurisdiction for which appellate review is barred by §§1447(c) and (d). With respect to supplemental jurisdiction, a federal court has subject-matter jurisdiction over specified state-law claims, see §§1367(a), (c), and its decision whether to exercise that jurisdiction after dismissing every claim over which it had original jurisdiction is purely discretionary, see, e.g., Osborn v. Haley, 549 U. S. 225, 245. It is undisputed that when this case was removed, the District Court had original jurisdiction over the federal RICO claim under §1331 and supplemental jurisdiction over the state-law claims, which were “so related to claims … within such original jurisdiction that they form[ed] part of the same case or controversy,” §1367(a). On dismissing the RICO claim, the court retained its statutory supplemental jurisdiction over the state-law claims. Its decision not to exercise that statutory authority was not based on a jurisdictional defect, but on its discretionary choice. See Chicago v. International College of Surgeons, 522 U. S. 156, 173. Pp. 3–6. 508 F. 3d 659, reversed and remanded. Thomas, J., delivered the opinion for a unanimous Court. Stevens, J., and Scalia, J., filed concurring opinions. Breyer, J., filed a concurring opinion, in which Souter, J., joined. | In this case, we decide whether a federal court of appeals has jurisdiction to review a district court’s order that remands a case to state court after declining to exercise supplemental jurisdiction over state-law claims under 28 U. S. C. §1367(c). The Court of Appeals for the Federal Circuit held that appellate review of such an order is barred by §1447(d) because it viewed the remand order in this case as resting on the District Court’s lack of subject-matter jurisdiction over the state-law claims. We disagree and reverse the judgment of the Court of Appeals. I In 2005, respondents filed a complaint against petitioner and others in California state court, alleging that petitioner had violated state and federal law in connection with a patent dispute. Petitioner removed the case to the United States District Court for the Central District of California pursuant to §1441(c), which allows removal of an “entire case” when it includes at least one claim over which the federal district court has original jurisdiction. Petitioner then filed a motion to dismiss the only federal claim in the lawsuit, which arose under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§1961–1968, for failure to adequately allege a pattern of racketeering. HIF Bio, Inc. v. Yung Shin Pharmaceuticals Indus. Co., 508 F. 3d 659, 662 (CA Fed. 2007). The District Court agreed that respondents had failed to state a RICO claim upon which relief could be granted and dismissed the claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The District Court also declined to exercise supplemental jurisdiction over the remaining state-law claims pursuant to 28 U. S. C. §1367(c)(3), which provides that a district court “may decline to exercise supplemental jurisdiction over a claim” if “the district court has dismissed all claims over which it has original jurisdiction.” The District Court then remanded the case to state court as authorized by this Court’s decision in Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343 (1988). Petitioner appealed to the United States Court of Appeals for the Federal Circuit, arguing that the District Court should have exercised supplemental jurisdiction over the state-law claims because they implicate federal patent-law rights. 508 F. 3d, at 663. The Court of Appeals dismissed the appeal, finding that the remand order could “be colorably characterized as a remand based on lack of subject matter jurisdiction” and, therefore, could not be reviewed under §§1447(c) and (d), which provide in part that remands for “lack of subject matter jurisdiction” are “not reviewable on appeal or otherwise.” See id., at 667. This Court has not yet decided whether a district court’s order remanding a case to state court after declining to exercise supplemental jurisdiction is a remand for lack of subject-matter jurisdiction for which appellate review is barred by §§1447(c) and (d). See Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 235, n. 4 (2007) (“We have never passed on whether Cohill remands are subject-matter jurisdictional for purposes of … §1447(c) and §1447(d)”). We granted certiorari to resolve this question, 555 U. S. ___ (2008), and now hold that such remand orders are not based on a lack of subject-matter jurisdiction. Accordingly, we reverse the judgment of the Court of Appeals and remand for further proceedings. II Appellate review of remand orders is limited by 28 U. S. C. §1447(d), which states: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.” This Court has consistently held that §1447(d) must be read in pari materia with §1447(c), thus limiting the remands barred from appellate review by §1447(d) to those that are based on a ground specified in §1447(c). See Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336, 345–346 (1976); see also Powerex, supra, at 229; Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 711–712 (1996); Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 127 (1995).* One type of remand order governed by §1447(c)—the type at issue in this case—is a remand order based on a lack of “subject matter jurisdiction.” §1447(c) (providing, in relevant part, that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded”). The question presented in this case is whether the District Court’s remand order, which rested on its decision declining to exercise supplemental jurisdiction over respondents’ state-law claims, is a remand based on a “lack of subject matter jurisdiction” for purposes of §§1447(c) and (d). It is not. “Subject matter jurisdiction defines the court’s authority to hear a given type of case,” United States v. Morton, 467 U. S. 822, 828 (1984); it represents “the extent to which a court can rule on the conduct of persons or the status of things.” Black’s Law Dictionary 870 (8th ed. 2004). This Court’s precedent makes clear that whether a court has subject-matter jurisdiction over a claim is distinct from whether a court chooses to exercise that jurisdiction. See, e.g., Quackenbush, supra, at 712 (holding that an abstention-based remand is not a remand for “lack of subject matter jurisdiction” for purposes of §§1447(c) and (d)); Ankenbrandt v. Richards, 504 U. S. 689, 704 (1992) (questioning whether, “even though subject matter jurisdiction might be proper, sufficient grounds exist to warrant abstention from the exercise of that jurisdiction”); Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9, 16, n. 8 (1987) (referring to exhaustion requirement as “a matter of comity” that does “not deprive the federal courts of subject-matter jurisdiction” but does “rende[r] it appropriate for the federal courts to decline jurisdiction in certain circumstances”). With respect to supplemental jurisdiction in particular, a federal court has subject-matter jurisdiction over specified state-law claims, which it may (or may not) choose to exercise. See §§1367(a), (c). A district court’s decision whether to exercise that jurisdiction after dismissing every claim over which it had original jurisdiction is purely discretionary. See §1367(c) (“The district courts may decline to exercise supplemental jurisdiction over a claim … if … the district court has dismissed all claims over which it has original jurisdiction” (emphasis added)); Osborn v. Haley, 549 U. S. 225, 245 (2007) (“Even if only state-law claims remained after resolution of the federal question, the District Court would have discretion, consistent with Article III, to retain jurisdiction”); Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006) (“[W]hen 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 also 13D C. Wright, A. Miller, E. Cooper, & R. Freer, Federal Practice and Procedure §3567.3, pp. 428–432 (3d ed. 2008) (“Once it has dismissed the claims that invoked original bases of subject matter jurisdiction, all that remains before the federal court are state-law claims… . The district court retains discretion to exercise supplemental jurisdiction [over them]”). As a result, “the [district] court’s exercise of its discretion under §1367(c) is not a jurisdictional matter. Thus, the court’s determination may be reviewed for abuse of discretion, but may not be raised at any time as a jurisdictional defect.” 16 J. Moore et al., Moore’s Federal Practice §106.05[4], p. 106–27 (3d ed. 2009). It is undisputed that when this case was removed to federal court, the District Court had original jurisdiction over the federal RICO claim pursuant to 28 U. S. C. §1331 and supplemental jurisdiction over the state-law claims because they were “so related to claims in the action within such original jurisdiction that they form[ed] part of the same case or controversy under Article III of the United States Constitution.” §1367(a). Upon dismissal of the federal claim, the District Court retained its statutory supplemental jurisdiction over the state-law claims. Its decision declining to exercise that statutory authority was not based on a jurisdictional defect but on its discretionary choice not to hear the claims despite its subject-matter jurisdiction over them. See Chicago v. International College of Surgeons, 522 U. S. 156, 173 (1997) (“Depending on a host of factors, then—including the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims—district courts may decline to exercise jurisdiction over supplemental state law claims”). The remand order, therefore, is not based on a “lack of subject matter jurisdiction” for purposes of the bar to appellate review created by §§1447(c) and (d). The Court of Appeals held to the contrary based on its conclusion that “every §1367(c) remand necessarily involves a predicate finding that the claims at issue lack an independent basis of subject matter jurisdiction.” 508 F. 3d, at 667. But, as explained above, §§1367(a) and (c) provide a basis for subject-matter jurisdiction over any properly removed state claim. See Osborn, supra, at 245; Arbaugh, supra, at 514. We thus disagree with the Court of Appeals that the remand at issue here “can be colorably characterized as a lack of subject matter jurisdiction.” 508 F. 3d, at 667. * * * When a district court remands claims to a state court after declining to exercise supplemental jurisdiction, the remand order is not based on a lack of subject-matter jurisdiction for purposes of §§1447(c) and (d). The judgment of the Court of Appeals for the Federal Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. * We do not revisit today whether Thermtron was correctly decided. Neither the brief for petitioner nor the brief for respondents explicitly asked the Court to do so here, and counsel for both parties clearly stated at oral argument that they were not asking for Thermtron to be overruled. See Tr. of Oral Arg. 16, 22; cf. South Central Bell Telephone Co. v. Alabama, 526 U. S. 160, 171 (1999). We also note that the parties in Powerex, Quackenbush, and Things Remembered did not ask for Thermtron to be overruled. |
555.US.2008_06-11206 | The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory prison term on a felon unlawfully in possession of a firearm who has three prior convictions for committing certain drug crimes or “a violent felony,” 18 U. S. C. §924(e)(1), defined as a crime punishable by more than one year’s imprisonment that, inter alia, “involves conduct that presents a serious potential risk of physical injury to another,” §924(e)(2)(B)(ii). At petitioner Chambers’ sentencing for being a felon in possession of a firearm, the Government sought ACCA’s 15-year mandatory prison term. Chambers disputed one of his prior convictions—failing to report for weekend confinement—as falling outside the ACCA definition of “violent felony.” The District Court treated the failure to report as a form of what the relevant state statute calls “escape from [a] penal institution,” and held that it qualified as a “violent felony” under ACCA. The Seventh Circuit agreed. Held: Illinois’ crime of failure to report for penal confinement falls outside the scope of ACCA’s “violent felony” definition. Pp. 3–8. (a) For purposes of ACCA’s definitions, it is the generic crime that counts, not how the crime was committed on a particular occasion. Taylor v. United States, 495 U. S. 575, 602. This categorical approach requires courts to choose the right category, and sometimes the choice is not obvious. The nature of the behavior that likely underlies a statutory phrase matters in this respect. The state statute at issue places together in a single section several different kinds of behavior, which, as relevant here, may be categorized either as failure to report for detention or as escape from custody. Failure to report is a separate crime from escape. Its underlying behavior differs from the more aggressive behavior underlying escape, and it is listed separately in the statute’s title and body and is of a different felony class than escape. At the same time, the statutory phrases setting forth the various kinds of failure to report describe roughly similar forms of behavior, thus constituting a single category. Consequently, for ACCA purposes, the statute contains at least two separate crimes, escape and failure to report. Pp. 3–5. (b) The “failure to report” crime does not satisfy ACCA’s “violent felony” definition. Although it is punishable by imprisonment exceeding one year, it satisfies none of the other parts of the definition. Most critically, it does not “involv[e] conduct that presents a serious potential risk of physical injury to another.” Conceptually speaking, the crime amounts to a form of inaction, and there is no reason to believe that an offender who fails to report is otherwise doing something that poses a serious potential risk of physical injury. The Government’s argument that a failure to report reveals the offender’s special, strong aversion to penal custody—pointing to 3 state and federal cases over 30 years in which individuals shot at officers attempting to recapture them—is unconvincing. Even assuming the relevance of violence that may occur long after an offender fails to report, the offender’s aversion to penal custody is beside the point. The question is whether such an offender is significantly more likely than others to attack or resist an apprehender, thereby producing a serious risk of physical injury. Here a United States Sentencing Commission report, showing no violence in 160 federal failure-to-report cases over 2 recent years, helps provide a negative answer. The three reported cases to which the Government points do not show the contrary. Simple multiplication (2 years versus 30 years; federal alone versus federal-plus-state) suggests that they show only a statistically insignificant risk of physical violence. And the Government provides no other empirical information. Pp. 5–8. 473 F. 3d 724, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Thomas, JJ., joined. | The question before us is whether a “failure to report” for penal confinement is a “ ‘violent felony’ ” within the terms of the Armed Career Criminal Act. 18 U. S. C. §924(e). We hold that it is not. I The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory prison term on an individual convicted of being a felon in possession of a firearm if that individual has “three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” §924(e)(1). ACCA defines a “violent felony” as a “crime punishable by imprisonment for a term exceeding one year” that also either “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B). Clause (ii), ACCA’s so-called residual clause, is at issue here. II The petitioner, Deondery Chambers, pleaded guilty to a charge of being a felon unlawfully in possession of a firearm. §922(g). At sentencing the Government asked the District Court to apply ACCA’s 15-year mandatory prison term because, in its view, three of Chambers’ prior convictions qualified as an ACCA “serious drug offense” or “violent felony.” Chambers conceded that two of his prior convictions, namely a 1998 conviction for robbery and aggravated battery and a 1999 drug crime conviction, fell within ACCA’s definitions. But he disputed the Government’s claim as to a third conviction. That third conviction arose out of Chambers’ sentence for his 1998 robbery and battery offense. The sentence required Chambers to report to a local prison for 11 weekends of incarceration. He failed to report for weekend confinement on four occasions, and was later convicted of the crime of “fail[ing] to report to a penal institution.” Ill. Comp. Stat., ch. 720, §5/31–6(a) (West Supp. 2008). The District Court treated the “failure to report” as a form of what the relevant Illinois statute calls “escape from [a] penal institution,” ibid., and held that the crime qualified as a “violent felony” under ACCA. The Court of Appeals agreed. 473 F. 3d 724 (CA7 2007). In light of disagreement among the Circuits as to whether failure to report for imprisonment falls within the scope of ACCA’s definition of “violent felony,” we granted certiorari. Compare United States v. Winn, 364 F. 3d 7, 12 (CA1 2004) (failure to report is a “violent felony”), with United States v. Piccolo, 441 F. 3d 1084, 1088 (CA9 2006) (failure to report is not a “violent felony”). III We initially consider the classification of the crime. In ordinary speech, words such as “crime” and “felony” can refer not only to a generic set of acts, say, burglary in general, but also to a specific act committed on a particular occasion, say the burglary that the defendant engaged in last month. We have made clear, however, that, for purposes of ACCA’s definitions, it is the generic sense of the word “felony” that counts. Taylor v. United States, 495 U. S. 575, 602 (1990); see also Shepard v. United States, 544 U. S. 13, 16–17 (2005). The statute’s defining language, read naturally, uses “felony” to refer to a crime as generally committed. And by so construing the statute, one avoids the practical difficulty of trying to ascertain at sentencing, perhaps from a paper record mentioning only a guilty plea, whether the present defendant’s prior crime, as committed on a particular occasion, did or did not involve violent behavior. See id., at 20–21. Thus, to determine, for example, whether attempted burglary is a “violent felony,” we have had to examine, not the unsuccessful burglary the defendant attempted on a particular occasion, but the generic crime of attempted burglary. James v. United States, 550 U. S. 192, 204–206 (2007). This categorical approach requires courts to choose the right category. And sometimes the choice is not obvious. The nature of the behavior that likely underlies a statutory phrase matters in this respect. Where Massachusetts, for example, placed within a single, separately numbered statutory section (entitled “Breaking and entering at night,” Mass. Gen. Laws Ann., ch. 266, §16 (West 2008)) burglary of a “building, ship, vessel or vehicle,” this Court found that the behavior underlying, say, breaking into a building, differs so significantly from the behavior underlying, say, breaking into a vehicle, that for ACCA purposes a sentencing court must treat the two as different crimes. See Shepard, supra, at 16–17; see also Taylor, supra, at 598. The Illinois statute now before us, like the Massachusetts statute, places together in a single numbered statutory section several different kinds of behavior. It separately describes those behaviors as (1) escape from a penal institution, (2) escape from the custody of an employee of a penal institution, (3) failing to report to a penal institution, (4) failing to report for periodic imprisonment, (5) failing to return from furlough, (6) failing to return from work and day release, and (7) failing to abide by the terms of home confinement. Ill. Comp. Stat., ch. 720, §5/31–6(a); see Appendix A, infra. We know from the state-court information in the record that Chambers pleaded guilty to “knowingly fail[ing] to report” for periodic imprisonment “to the Jefferson County Jail, a penal institution.” App. 68; see Shepard, supra, at 25 (sentencing court may look, for example, to charging document, plea agreement, jury instructions, or transcript of plea colloquy to determine crime at issue). But we must decide whether for ACCA purposes a failure to report counts as a separate crime. Unlike the lower courts, we believe that a failure to report (as described in the statutory provision’s third, fourth, fifth, and sixth phrases) is a separate crime, different from escape (the subject matter of the statute’s first and second phrases), and from the potentially less serious failure to abide by the terms of home confinement (the subject of the final phrase). The behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody. See Begay v. United States, 553 U. S. ___, ___ (2008) (slip op., at 7). Moreover, the statute itself not only lists escape and failure to report separately (in its title and its body) but also places the behaviors in two different felony classes (Class Two and Class Three) of different degrees of seriousness. See Appendix A, infra. At the same time, we believe the statutory phrases setting forth various kinds of failure to report (or to return) describe roughly similar forms of behavior. Each is characterized by a failure to present oneself for detention on a specified occasion. All amount to variations on a single theme. For that reason we consider them as together constituting a single category. Cf. James, supra, at 207–209 (determining that where separately listed behaviors pose a similar degree of risk, sentencing courts may consider all listed behaviors as a single crime). We consequently treat the statute for ACCA purposes as containing at least two separate crimes, namely escape from custody on the one hand, and a failure to report on the other. Failure to abide by home confinement terms—potentially the least serious of the offenses—is not at issue here. IV We now must consider whether the “failure to report” crime satisfies ACCA’s “violent felony” definition. It clearly satisfies the first part of that definition, for it is a “crime punishable by imprisonment for a term exceeding one year.” 18 U. S. C. §924(e)(2)(B). But it satisfies none of the other parts. It does not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” §924(e)(2)(B)(i). It does not consist of “burglary, arson, or extortion,” or “involv[e] use of explosives.” §924(e)(2)(B)(ii). And, more critically for present purposes, it does not “ ‘involve conduct that presents a serious potential risk of physical injury to another.’ ” See Begay, 553 U. S., at ___ (slip op., at 2–4); id., at ___ (slip op., at 6) (Scalia, J., concurring in judgment) (treating serious risk of physical injury to another as critical definitional factor); id., at ___ (slip op., at 2) (Alito, J., dissenting) (same). Conceptually speaking, the crime amounts to a form of inaction, a far cry from the “purposeful, ‘violent,’ and ‘aggressive’ conduct” potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion. Cf. id., at ___ (slip op., at 7). While an offender who fails to report must of course be doing something at the relevant time, there is no reason to believe that the something poses a serious potential risk of physical injury. Cf. James, 550 U. S., at 203–204. To the contrary, an individual who fails to report would seem unlikely, not likely, to call attention to his whereabouts by simultaneously engaging in additional violent and unlawful conduct. The Government argues that a failure to report reveals the offender’s special, strong aversion to penal custody. And it points to three cases arising over a period of 30 years in which reported opinions indicate that individuals shot at officers attempting to recapture them. See United States v. Eaglin, 571 F. 2d 1069, 1072 (CA9 1977); State v. Johnson, 245 S. W. 3d 288, 291 (Mo. Ct. App. 2008); State v. Jones, 96 Wash. App. 369, 371–372, 979 P. 2d 898, 899 (1999). But even if we assume for argument’s sake the relevance of violence that may occur long after an offender fails to report, we are not convinced by the Government’s argument. The offender’s aversion to penal custody, even if special, is beside the point. The question is whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a “serious potential risk of physical injury.” §924(e)(2)(B)(ii). And here a United States Sentencing Commission report helps provide a conclusive, negative answer. See Report on Federal Escape Offenses in Fiscal Years 2006 and 2007, p. 6 (Nov. 2008) (hereinafter Commission’s Report), reprinted in part in Appendix B, infra. See also 473 F. 3d, at 727 (Posner, J.) (urging that such research be done). The Commission’s Report identifies every federal case in 2006 or 2007 in which a federal sentencing court applied the Sentencing Guideline, “Escape, Instigating or Assisting Escape,” 1 United States Sentencing Commission, Guidelines Manual §2P1.1 (Nov. 2008), and in which sufficient detail was provided, say, in the presentence report, about the circumstances of the crime to permit analysis. The analysis included calculation of the likelihood that violence would accompany commission of the escape or the offender’s later apprehension. Of 414 such cases, 160 involved a failure to report either for incarceration (42) or for custody after having been temporarily released (118). Commission’s Report 7; see also Appendix B, infra. Of these 160 cases, none at all involved violence—not during commission of the offense itself, not during the offender’s later apprehension—although in 5 instances (3.1%) the offenders were armed. Ibid. The upshot is that the study strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury. The three reported cases to which the Government points do not show the contrary. The Sentencing Commission culled its 160 instances from a set of federal sentences imposed over a period of 2 years. The Government apparently culled its three examples from a set of state and federal sentences imposed over a period of 30 years. Compare Eaglin, supra (CA9 1977) with Johnson, supra (Mo. Ct. App. 2008). Given the larger set, the presence of three instances of violence is consistent with the Commission’s data. Simple multiplication (2 years versus 30 years; federal alone versus federal-plus-state) suggests that they show only a small risk of physical violence (less than one in several thousand). And the Government provides no other empirical information. For these reasons we conclude that the crime here at issue falls outside the scope of ACCA’s definition of “violent felony.” §924(e)(2)(B)(ii). The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. APPENDIX A TO OPINION OF THE COURT “Escape; failure to report to a penal institution or to report for periodic imprisonment. “A person convicted of a felony, adjudicated a delinquent minor for the commission of a felony offense under the Juvenile Court Act of 1987, or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony; however, a person convicted of a felony or adjudicated a delinquent minor for the commission of a felony offense under the Juvenile Court Act of 1987 who knowingly fails to report to a penal institution or to report for periodic imprisonment at any time or knowingly fails to return from furlough or from work and day release or who knowingly fails to abide by the terms of home confinement is guilty of a Class 3 felony.” Ill. Comp. Stat., ch. 720, §5/31–6(a) (West Supp. 2008). APPENDIX B TO OPINION OF THE COURT Report on Federal Escape Offenses in Fiscal Years 2006 and 2007, p. 7, fig. 1 (Nov. 2008).* Leaving Secure Custody Leaving Law Enforce- ment Custody Leaving Nonsecure Custody Failing to Report Failing to Return Number of Cases 64 13 177 42 118 Force 10 (15.6%) 1 (7.7%) 3 (1.7%) 0 (0.0%) 0 (0.0%) Dangerous Weapon 20 (31.3%) 1 (7.7%) 4 (2.3%) 3 (7.1%) 2 (1.7%) Injury 7 (10.9%) 2 (15.4%) 3 (1.7%) 0 (0.0%) 0 (0.0%) * Cases can fall into more than one category. For example, one case could involve both force and injury. Such a case would be represented in the table for force and also for injury. Therefore, the reader should not aggregate the numbers in any column. |
558.US.2008_08-205 | As amended by §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate. 2 U. S. C. §441b. An electioneering communication is “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary election, §434(f)(3)(A), and that is “publicly distributed,” 11 CFR §100.29(a)(2), which in “the case of a candidate for nomination for President … means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election … is being held within 30 days,” §100.29(b)(3)(ii). Corporations and unions may establish a political action committee (PAC) for express advocacy or electioneering communications purposes. 2 U. S. C. §441b(b)(2). In McConnell v. Federal Election Comm’n, 540 U. S. 93, 203–209, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce, 494 U. S. 652, that political speech may be banned based on the speaker’s corporate identity. In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary) critical of then-Senator Hillary Clinton, a candidate for her party’s Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections, Citizens United produced television ads to run on broadcast and cable television. Concerned about possible civil and criminal penalties for violating §441b, it sought declaratory and injunctive relief, arguing that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA’s disclaimer, disclosure, and reporting requirements, BCRA §§201 and 311, were unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United a preliminary injunction and granted appellee Federal Election Commission (FEC) summary judgment. Held: 1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin. Pp. 5–20. (a) Citizen United’s narrower arguments—that Hillary is not an “electioneering communication” covered by §441b because it is not “publicly distributed” under 11 CFR §100.29(a)(2); that §441b may not be applied to Hillary under Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (WRTL), which found §441b unconstitutional as applied to speech that was not “express advocacy or its functional equivalent,” id., at 481 (opinion of Roberts, C. J.), determining that a communication “is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate,” id., at 469–470; that §441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has a lower risk of distorting the political process than do television ads; and that there should be an exception to §441b’s ban for nonprofit corporate political speech funded overwhelming by individuals—are not sustainable under a fair reading of the statute. Pp. 5–12. (b) Thus, this case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment’s meaning and purpose. Citizens United did not waive this challenge to Austin when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider Austin and §441b’s facial validity here because the District Court “passed upon” the issue, Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 379; (2) throughout the litigation, Citizens United has asserted a claim that the FEC has violated its right to free speech; and (3) the parties cannot enter into a stipulation that prevents the Court from considering remedies necessary to resolve a claim that has been preserved. Because Citizen United’s narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider §441b’s facial validity. Any other course would prolong the substantial, nationwide chilling effect caused by §441b’s corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertainty caused by the Government’s litigating position; (2) substantial time would be required to clarify §441b’s application on the points raised by the Government’s position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating political speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. The restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated. Pp. 12–20. 2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b’s restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures is also overruled. Pp. 20–51. (a) Although the First Amendment provides that “Congress shall make no law … abridging the freedom of speech,” §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion. Pp. 20–25. (b) The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 778, n. 14, and extended this protection to the context of political speech, see, e.g., NAACP v. Button, 371 U. S. 415, 428–429. Addressing challenges to the Federal Election Campaign Act of 1971, the Buckley Court upheld limits on direct contributions to candidates, 18 U. S. C. §608(b), recognizing a governmental interest in preventing quid pro quo corruption. 424 U. S., at 25–26. However, the Court invalidated §608(e)’s expenditure ban, which applied to individuals, corporations, and unions, because it “fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” id., at 47–48. While Buckley did not consider a separate ban on corporate and union independent expenditures found in §610, had that provision been challenged in Buckley’s wake, it could not have been squared with the precedent’s reasoning and analysis. The Buckley Court did not invoke the overbreadth doctrine to suggest that §608(e)’s expenditure ban would have been constitutional had it applied to corporations and unions but not individuals. Notwithstanding this precedent, Congress soon recodified §610’s corporate and union expenditure ban at 2 U. S. C. §441b, the provision at issue. Less than two years after Buckley, Bellotti reaffirmed the First Amendment principle that the Government lacks the power to restrict political speech based on the speaker’s corporate identity. 435 U.S., at 784–785. Thus the law stood until Austin upheld a corporate independent expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental interest in preventing “the corrosive and distorting effects of immense aggregations of [corporate] wealth … that have little or no correlation to the public’s support for the corporation’s political ideas.” 494 U. S., at 660. Pp. 25–32. (c) This Court is confronted with conflicting lines of precedent: a pre-Austin line forbidding speech restrictions based on the speaker’s corporate identity and a post-Austin line permitting them. Neither Austin’s antidistortion rationale nor the Government’s other justifications support §441b’s restrictions. Pp. 32–47. (1) The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form. Political speech is “indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation.” Bellotti, supra, at 777 (footnote omitted). This protection is inconsistent with Austin’s rationale, which is meant to prevent corporations from obtaining “ ‘an unfair advantage in the political marketplace’ ” by using “ ‘resources amassed in the economic marketplace.’ ” 494 U. S., at 659. First Amendment protections do not depend on the speaker’s “financial ability to engage in public discussion.” Buckley, supra, at 49. These conclusions were reaffirmed when the Court invalidated a BCRA provision that increased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. Davis v. Federal Election Comm’n, 554 U. S. ___, ___. Distinguishing wealthy individuals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Austin, supra, at 660. All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt from §441b, they accumulate wealth with the help of their corporate form, may have aggregations of wealth, and may express views “hav[ing] little or no correlation to the public’s support” for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment’s original meaning would permit suppressing media corporations’ political speech. Austin interferes with the “open marketplace” of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208. Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations. Pp. 32–40. (2) This reasoning also shows the invalidity of the Government’s other arguments. It reasons that corporate political speech can be banned to prevent corruption or its appearance. The Buckley Court found this rationale “sufficiently important” to allow contribution limits but refused to extend that reasoning to expenditure limits, 424 U.S., at 25, and the Court does not do so here. While a single Bellotti footnote purported to leave the question open, 435 U. S., at 788, n. 26, this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy. Caperton v. A. T. Massey Coal Co., 556 U. S. ___, distinguished. Pp. 40–45. (3) The Government’s asserted interest in protecting shareholders from being compelled to fund corporate speech, like the antidistortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time. It is also overinclusive because it covers all corporations, including those with one shareholder. P. 46. (4) Because §441b is not limited to corporations or associations created in foreign countries or funded predominately by foreign shareholders, it would be overbroad even if the Court were to recognize a compelling governmental interest in limiting foreign influence over the Nation’s political process. Pp. 46–47. (d) The relevant factors in deciding whether to adhere to stare decisis, beyond workability—the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned—counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is also undermined by experience since its announcement. Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. In addition, no serious reliance issues are at stake. Thus, due consideration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. Pp. 47–50. 3. BCRA §§201 and 311 are valid as applied to the ads for Hillary and to the movie itself. Pp. 50–57. (a) Disclaimer and disclosure requirements may burden the ability to speak, but they “impose no ceiling on campaign-related activities,” Buckley, 424 U. S., at 64, or “ ‘ “prevent anyone from speaking,” ’ ” McConnell, supra, at 201. The Buckley Court explained that disclosure can be justified by a governmental interest in providing “the electorate with information” about election-related spending sources. The McConnell Court applied this interest in rejecting facial challenges to §§201 and 311. 540 U. S., at 196. However, the Court acknowledged that as-applied challenges would be available if a group could show a “ ‘reasonable probability’ ” that disclosing its contributors’ names would “ ‘subject them to threats, harassment, or reprisals from either Government officials or private parties.’ ” Id., at 198. Pp. 50–52. (b) The disclaimer and disclosure requirements are valid as applied to Citizens United’s ads. They fall within BCRA’s “electioneering communication” definition: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at 196, and “insure that the voters are fully informed” about who is speaking, Buckley, supra, at 76. At the very least, they avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens United’s arguments that §311 is underinclusive because it requires disclaimers for broadcast advertisements but not for print or Internet advertising and that §311 decreases the quantity and effectiveness of the group’s speech were rejected in McConnell. This Court also rejects their contention that §201’s disclosure requirements must be confined to speech that is the functional equivalent of express advocacy under WRTL’s test for restrictions on independent expenditures, 551 U. S., at 469–476 (opinion of Roberts, C.J.). Disclosure is the less-restrictive alternative to more comprehensive speech regulations. Such requirements have been upheld in Buckley and McConnell. Citizens United’s argument that no informational interest justifies applying §201 to its ads is similar to the argument this Court rejected with regard to disclaimers. Citizens United finally claims that disclosure requirements can chill donations by exposing donors to retaliation, but offers no evidence that its members face the type of threats, harassment, or reprisals that might make §201 unconstitutional as applied. Pp. 52–55. (c) For these same reasons, this Court affirms the application of the §§201 and 311 disclaimer and disclosure requirements to Hillary. Pp. 55–56. Reversed in part, affirmed in part, and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia and Alito, JJ., joined, in which Thomas, J., joined as to all but Part IV, and in which Stevens, Ginsburg, Breyer, and Sotomayor, JJ., joined as to Part IV. Roberts, C. J., filed a concurring opinion, in which Alito, J., joined. Scalia, J., filed a concurring opinion, in which Alito, J., joined, and in which Thomas, J., joined in part. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, Breyer, and Sotomayor, JJ., joined. Thomas, J., filed an opinion concurring in part and dissenting in part. | Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. 2 U. S. C. §441b. Limits on electioneering communications were upheld in McConnell v. Federal Election Comm’n, 540 U. S. 93, 203–209 (2003). The holding of McConnell rested to a large extent on an earlier case, Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Austin had held that political speech may be banned based on the speaker’s corporate identity. In this case we are asked to reconsider Austin and, in effect, McConnell. It has been noted that “Austin was a significant departure from ancient First Amendment principles,” Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 490 (2007) (WRTL) (Scalia, J., concurring in part and concurring in judgment). We agree with that conclusion and hold that stare decisis does not compel the continued acceptance of Austin. The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. We turn to the case now before us. I A Citizens United is a nonprofit corporation. It brought this action in the United States District Court for the District of Columbia. A three-judge court later convened to hear the cause. The resulting judgment gives rise to this appeal. Citizens United has an annual budget of about $12 million. Most of its funds are from donations by individuals; but, in addition, it accepts a small portion of its funds from for-profit corporations. In January 2008, Citizens United released a film entitled Hillary: The Movie. We refer to the film as Hillary. It is a 90-minute documentary about then-Senator Hillary Clinton, who was a candidate in the Democratic Party’s 2008 Presidential primary elections. Hillary mentions Senator Clinton by name and depicts interviews with political commentators and other persons, most of them quite critical of Senator Clinton. Hillary was released in theaters and on DVD, but Citizens United wanted to increase distribution by making it available through video-on-demand. Video-on-demand allows digital cable subscribers to select programming from various menus, including movies, television shows, sports, news, and music. The viewer can watch the program at any time and can elect to rewind or pause the program. In December 2007, a cable company offered, for a payment of $1.2 million, to make Hillary available on a video-on-demand channel called “Elections ’08.” App. 255a–257a. Some video-on-demand services require viewers to pay a small fee to view a selected program, but here the proposal was to make Hillary available to viewers free of charge. To implement the proposal, Citizens United was prepared to pay for the video-on-demand; and to promote the film, it produced two 10-second ads and one 30-second ad for Hillary. Each ad includes a short (and, in our view, pejorative) statement about Senator Clinton, followed by the name of the movie and the movie’s Website address. Id., at 26a–27a. Citizens United desired to promote the video-on-demand offering by running advertisements on broadcast and cable television. B Before the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibited—and still does prohibit—corporations and unions from using general treasury funds to make direct contributions to candidates or independent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, in connection with certain qualified federal elections. 2 U. S. C. §441b (2000 ed.); see McConnell, supra, at 204, and n. 87; Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 249 (1986) (MCFL). BCRA §203 amended §441b to prohibit any “electioneering communication” as well. 2 U. S. C. §441b(b)(2) (2006 ed.). An electioneering communication is defined as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is made within 30 days of a primary or 60 days of a general election. §434(f)(3)(A). The Federal Election Commission’s (FEC) regulations further define an electioneering communication as a communication that is “publicly distributed.” 11 CFR §100.29(a)(2) (2009). “In the case of a candidate for nomination for President … publicly distributed means” that the communication “[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days.” §100.29(b)(3)(ii). Corporations and unions are barred from using their general treasury funds for express advocacy or electioneering communications. They may establish, however, a “separate segregated fund” (known as a political action committee, or PAC) for these purposes. 2 U. S. C. §441b(b)(2). The moneys received by the segregated fund are limited to donations from stockholders and employees of the corporation or, in the case of unions, members of the union. Ibid. C Citizens United wanted to make Hillary available through video-on-demand within 30 days of the 2008 primary elections. It feared, however, that both the film and the ads would be covered by §441b’s ban on corporate-funded independent expenditures, thus subjecting the corporation to civil and criminal penalties under §437g. In December 2007, Citizens United sought declaratory and injunctive relief against the FEC. It argued that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA’s disclaimer and disclosure requirements, BCRA §§201 and 311, are unconstitutional as applied to Hillary and to the three ads for the movie. The District Court denied Citizens United’s motion for a preliminary injunction, 530 F. Supp. 2d 274 (DC 2008) (per curiam), and then granted the FEC’s motion for summary judgment, App. 261a–262a. See id., at 261a (“Based on the reasoning of our prior opinion, we find that the [FEC] is entitled to judgment as a matter of law. See Citizen[s] United v. FEC, 530 F. Supp. 2d 274 (D.D.C. 2008) (denying Citizens United’s request for a preliminary injunction)”). The court held that §441b was facially constitutional under McConnell, and that §441b was constitutional as applied to Hillary because it was “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” 530 F. Supp. 2d, at 279. The court also rejected Citizens United’s challenge to BCRA’s disclaimer and disclosure requirements. It noted that “the Supreme Court has written approvingly of disclosure provisions triggered by political speech even though the speech itself was constitutionally protected under the First Amendment.” Id., at 281. We noted probable jurisdiction. 555 U. S. ___ (2008). The case was reargued in this Court after the Court asked the parties to file supplemental briefs addressing whether we should overrule either or both Austin and the part of McConnell which addresses the facial validity of 2 U. S. C. §441b. See 557 U. S. ___ (2009). II Before considering whether Austin should be overruled, we first address whether Citizens United’s claim that §441b cannot be applied to Hillary may be resolved on other, narrower grounds. A Citizens United contends that §441b does not cover Hillary, as a matter of statutory interpretation, because the film does not qualify as an “electioneering communication.” §441b(b)(2). Citizens United raises this issue for the first time before us, but we consider the issue because “it was addressed by the court below.” Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 379 (1995); see 530 F. Supp. 2d, at 277, n. 6. Under the definition of electioneering communication, the video-on-demand showing of Hillary on cable television would have been a “cable . . . communication” that “refer[red] to a clearly identified candidate for Federal office” and that was made within 30 days of a primary election. 2 U. S. C. §434(f)(3)(A)(i). Citizens United, however, argues that Hillary was not “publicly distributed,” because a single video-on-demand transmission is sent only to a requesting cable converter box and each separate transmission, in most instances, will be seen by just one household—not 50,000 or more persons. 11 CFR §100.29(a)(2); see §100.29(b)(3)(ii). This argument ignores the regulation’s instruction on how to determine whether a cable transmission “[c]an be received by 50,000 or more persons.” §100.29(b)(3)(ii). The regulation provides that the number of people who can receive a cable transmission is determined by the number of cable subscribers in the relevant area. §§100.29(b)(7)(i)(G), (ii). Here, Citizens United wanted to use a cable video-on-demand system that had 34.5 million subscribers nationwide. App. 256a. Thus, Hillary could have been received by 50,000 persons or more. One amici brief asks us, alternatively, to construe the condition that the communication “[c]an be received by 50,000 or more persons,” §100.29(b)(3)(ii)(A), to require “a plausible likelihood that the communication will be viewed by 50,000 or more potential voters”—as opposed to requiring only that the communication is “technologically capable” of being seen by that many people, Brief for Former Officials of the American Civil Liberties Union as Amici Curiae 5. Whether the population and demographic statistics in a proposed viewing area consisted of 50,000 registered voters—but not “infants, pre-teens, or otherwise electorally ineligible recipients”—would be a required determination, subject to judicial challenge and review, in any case where the issue was in doubt. Id., at 6. In our view the statute cannot be saved by limiting the reach of 2 U. S. C. §441b through this suggested interpretation. In addition to the costs and burdens of litigation, this result would require a calculation as to the number of people a particular communication is likely to reach, with an inaccurate estimate potentially subjecting the speaker to criminal sanctions. The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.” Connally v. General Constr. Co., 269 U. S. 385, 391 (1926). The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation. We must reject the approach suggested by the amici. Section 441b covers Hillary. B Citizens United next argues that §441b may not be applied to Hillary under the approach taken in WRTL. McConnell decided that §441b(b)(2)’s definition of an “electioneering communication” was facially constitutional insofar as it restricted speech that was “the functional equivalent of express advocacy” for or against a specific candidate. 540 U. S., at 206. WRTL then found an unconstitutional application of §441b where the speech was not “express advocacy or its functional equivalent.” 551 U. S., at 481 (opinion of Roberts, C. J.). As explained by The Chief Justice’s controlling opinion in WRTL, the functional-equivalent test is objective: “a court should find that [a communication] is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” Id., at 469–470. Under this test, Hillary is equivalent to express advocacy. The movie, in essence, is a feature-length negative advertisement that urges viewers to vote against Senator Clinton for President. In light of historical footage, interviews with persons critical of her, and voiceover narration, the film would be understood by most viewers as an extended criticism of Senator Clinton’s character and her fitness for the office of the Presidency. The narrative may contain more suggestions and arguments than facts, but there is little doubt that the thesis of the film is that she is unfit for the Presidency. The movie concentrates on alleged wrongdoing during the Clinton administration, Senator Clinton’s qualifications and fitness for office, and policies the commentators predict she would pursue if elected President. It calls Senator Clinton “Machiavellian,” App. 64a, and asks whether she is “the most qualified to hit the ground running if elected President,” id., at 88a. The narrator reminds viewers that “Americans have never been keen on dynasties” and that “a vote for Hillary is a vote to continue 20 years of a Bush or a Clinton in the White House,” id., at 143a–144a. Citizens United argues that Hillary is just “a documentary film that examines certain historical events.” Brief for Appellant 35. We disagree. The movie’s consistent emphasis is on the relevance of these events to Senator Clinton’s candidacy for President. The narrator begins by asking “could [Senator Clinton] become the first female President in the history of the United States?” App. 35a. And the narrator reiterates the movie’s message in his closing line: “Finally, before America decides on our next president, voters should need no reminders of … what’s at stake—the well being and prosperity of our nation.” Id., at 144a–145a. As the District Court found, there is no reasonable interpretation of Hillary other than as an appeal to vote against Senator Clinton. Under the standard stated in McConnell and further elaborated in WRTL, the film qualifies as the functional equivalent of express advocacy. C Citizens United further contends that §441b should be invalidated as applied to movies shown through video-on-demand, arguing that this delivery system has a lower risk of distorting the political process than do television ads. Cf. McConnell, supra, at 207. On what we might call conventional television, advertising spots reach viewers who have chosen a channel or a program for reasons unrelated to the advertising. With video-on-demand, by contrast, the viewer selects a program after taking “a series of affirmative steps”: subscribing to cable; navigating through various menus; and selecting the program. See Reno v. American Civil Liberties Union, 521 U. S. 844, 867 (1997). While some means of communication may be less effective than others at influencing the public in different contexts, any effort by the Judiciary to decide which means of communications are to be preferred for the particular type of message and speaker would raise questions as to the courts’ own lawful authority. Substantial questions would arise if courts were to begin saying what means of speech should be preferred or disfavored. And in all events, those differentiations might soon prove to be irrelevant or outdated by technologies that are in rapid flux. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 639 (1994). Courts, too, are bound by the First Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker. It must be noted, moreover, that this undertaking would require substantial litigation over an extended time, all to interpret a law that beyond doubt discloses serious First Amendment flaws. The interpretive process itself would create an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable. First Amendment standards, however, “must give the benefit of any doubt to protecting rather than stifling speech.” WRTL, 551 U. S., at 469 (opinion of Roberts, C. J.) (citing New York Times Co. v. Sullivan, 376 U. S. 254, 269–270 (1964)). D Citizens United also asks us to carve out an exception to §441b’s expenditure ban for nonprofit corporate political speech funded overwhelmingly by individuals. As an alternative to reconsidering Austin, the Government also seems to prefer this approach. This line of analysis, however, would be unavailing. In MCFL, the Court found unconstitutional §441b’s restrictions on corporate expenditures as applied to nonprofit corporations that were formed for the sole purpose of promoting political ideas, did not engage in business activities, and did not accept contributions from for-profit corporations or labor unions. 479 U. S., at 263–264; see also 11 CFR §114.10. BCRA’s so-called Wellstone Amendment applied §441b’s expenditure ban to all nonprofit corporations. See 2 U. S. C. §441b(c)(6); McConnell, 540 U. S., at 209. McConnell then interpreted the Wellstone Amendment to retain the MCFL exemption to §441b’s expenditure prohibition. 540 U. S., at 211. Citizens United does not qualify for the MCFL exemption, however, since some funds used to make the movie were donations from for-profit corporations. The Government suggests we could find BCRA’s Wellstone Amendment unconstitutional, sever it from the statute, and hold that Citizens United’s speech is exempt from §441b’s ban under BCRA’s Snowe-Jeffords Amendment, §441b(c)(2). See Tr. of Oral Arg. 37–38 (Sept. 9, 2009). The Snowe-Jeffords Amendment operates as a backup provision that only takes effect if the Wellstone Amendment is invalidated. See McConnell, supra, at 339 (Kennedy, J., concurring in judgment in part and dissenting in part). The Snowe-Jeffords Amendment would exempt from §441b’s expenditure ban the political speech of certain nonprofit corporations if the speech were funded “exclusively” by individual donors and the funds were maintained in a segregated account. §441b(c)(2). Citizens United would not qualify for the Snowe-Jeffords exemption, under its terms as written, because Hillary was funded in part with donations from for-profit corporations. Consequently, to hold for Citizens United on this argument, the Court would be required to revise the text of MCFL, sever BCRA’s Wellstone Amendment, §441b(c)(6), and ignore the plain text of BCRA’s Snowe-Jeffords Amendment, §441b(c)(2). If the Court decided to create a de minimis exception to MCFL or the Snowe-Jeffords Amendment, the result would be to allow for-profit corporate general treasury funds to be spent for independent expenditures that support candidates. There is no principled basis for doing this without rewriting Austin’s holding that the Government can restrict corporate independent expenditures for political speech. Though it is true that the Court should construe statutes as necessary to avoid constitutional questions, the series of steps suggested would be difficult to take in view of the language of the statute. In addition to those difficulties the Government’s suggestion is troubling for still another reason. The Government does not say that it agrees with the interpretation it wants us to consider. See Supp. Brief for Appellee 3, n. 1 (“Some courts” have implied a de minimis exception, and “appellant would appear to be covered by these decisions”). Presumably it would find textual difficulties in this approach too. The Government, like any party, can make arguments in the alternative; but it ought to say if there is merit to an alternative proposal instead of merely suggesting it. This is especially true in the context of the First Amendment. As the Government stated, this case “would require a remand” to apply a de minimis standard. Tr. of Oral Arg. 39 (Sept. 9, 2009). Applying this standard would thus require case-by-case determinations. But archetypical political speech would be chilled in the meantime. “ ‘First Amendment freedoms need breathing space to survive.’ ” WRTL, supra, at 468–469 (opinion of Roberts, C. J.) (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)). We decline to adopt an interpretation that requires intricate case-by-case determinations to verify whether political speech is banned, especially if we are convinced that, in the end, this corporation has a constitutional right to speak on this subject. E As the foregoing analysis confirms, the Court cannot resolve this case on a narrower ground without chilling political speech, speech that is central to the meaning and purpose of the First Amendment. See Morse v. Frederick, 551 U. S. 393, 403 (2007). It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling. Here, the lack of a valid basis for an alternative ruling requires full consideration of the continuing effect of the speech suppression upheld in Austin. Citizens United stipulated to dismissing count 5 of its complaint, which raised a facial challenge to §441b, even though count 3 raised an as-applied challenge. See App. 23a (count 3: “As applied to Hillary, [§441b] is unconstitutional under the First Amendment guarantees of free expression and association”). The Government argues that Citizens United waived its challenge to Austin by dismissing count 5. We disagree. First, even if a party could somehow waive a facial challenge while preserving an as-applied challenge, that would not prevent the Court from reconsidering Austin or addressing the facial validity of §441b in this case. “Our practice ‘permit[s] review of an issue not pressed [below] so long as it has been passed upon . . . .’ ” Lebron, 513 U. S., at 379 (quoting United States v. Williams, 504 U. S. 36, 41 (1992); first alteration in original). And here, the District Court addressed Citizens United’s facial challenge. See 530 F. Supp. 2d, at 278 (“Citizens wants us to enjoin the operation of BCRA §203 as a facially unconstitutional burden on the First Amendment right to freedom of speech”). In rejecting the claim, it noted that it “would have to overrule McConnell” for Citizens United to prevail on its facial challenge and that “[o]nly the Supreme Court may overrule its decisions.” Ibid. (citing Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989)). The District Court did not provide much analysis regarding the facial challenge because it could not ignore the controlling Supreme Court decisions in Austin or McConnell. Even so, the District Court did “ ‘pas[s] upon’ ” the issue. Lebron, supra, at 379. Furthermore, the District Court’s later opinion, which granted the FEC summary judgment, was “[b]ased on the reasoning of [its] prior opinion,” which included the discussion of the facial challenge. App. 261a (citing 530 F. Supp. 2d 274). After the District Court addressed the facial validity of the statute, Citizens United raised its challenge to Austin in this Court. See Brief for Appellant 30 (“Austin was wrongly decided and should be overruled”); id., at 30–32. In these circumstances, it is necessary to consider Citizens United’s challenge to Austin and the facial validity of §441b’s expenditure ban. Second, throughout the litigation, Citizens United has asserted a claim that the FEC has violated its First Amendment right to free speech. All concede that this claim is properly before us. And “ ‘[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.’ ” Lebron, supra, at 379 (quoting Yee v. Escondido, 503 U. S. 519, 534 (1992); alteration in original). Citizens United’s argument that Austin should be overruled is “not a new claim.” Lebron, 513 U. S., at 379. Rather, it is—at most—“a new argument to support what has been [a] consistent claim: that [the FEC] did not accord [Citizens United] the rights it was obliged to provide by the First Amendment.” Ibid. Third, the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge. The distinction is both instructive and necessary, for it goes to the breadth of the remedy employed by the Court, not what must be pleaded in a complaint. See United States v. Treasury Employees, 513 U. S. 454, 477–478 (1995) (contrasting “a facial challenge” with “a narrower remedy”). The parties cannot enter into a stipulation that prevents the Court from considering certain remedies if those remedies are necessary to resolve a claim that has been preserved. Citizens United has preserved its First Amendment challenge to §441b as applied to the facts of its case; and given all the circumstances, we cannot easily address that issue without assuming a premise—the permissibility of restricting corporate political speech—that is itself in doubt. See Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000) (“[O]nce a case is brought, no general categorical line bars a court from making broader pronouncements of invalidity in properly ‘as-applied’ cases”); id., at 1327–1328. As our request for supplemental briefing implied, Citizens United’s claim implicates the validity of Austin, which in turn implicates the facial validity of §441b. When the statute now at issue came before the Court in McConnell, both the majority and the dissenting opinions considered the question of its facial validity. The holding and validity of Austin were essential to the reasoning of the McConnell majority opinion, which upheld BCRA’s extension of §441b. See 540 U. S., at 205 (quoting Austin, 494 U. S., at 660). McConnell permitted federal felony punishment for speech by all corporations, including nonprofit ones, that speak on prohibited subjects shortly before federal elections. See 540 U. S., at 203–209. Four Members of the McConnell Court would have overruled Austin, including Chief Justice Rehnquist, who had joined the Court’s opinion in Austin but reconsidered that conclusion. See 540 U. S., at 256–262 (Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part); id., at 273–275 (Thomas, J., concurring in part, concurring in result in part, concurring in judgment in part, and dissenting in part); id., at 322–338 (opinion of Kennedy, J., joined by Rehnquist, C. J., and Scalia, J.). That inquiry into the facial validity of the statute was facilitated by the extensive record, which was “over 100,000 pages” long, made in the three-judge District Court. McConnell v. Federal Election Comm’n, 251 F. Supp. 2d 176, 209 (DC 2003) (per curiam) (McConnell I). It is not the case, then, that the Court today is premature in interpreting §441b “ ‘on the basis of [a] factually barebones recor[d].’ ” Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 450 (2008) (quoting Sabri v. United States, 541 U. S. 600, 609 (2004)). The McConnell majority considered whether the statute was facially invalid. An as-applied challenge was brought in Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U. S. 410, 411–412 (2006) (per curiam), and the Court confirmed that the challenge could be maintained. Then, in WRTL, the controlling opinion of the Court not only entertained an as-applied challenge but also sustained it. Three Justices noted that they would continue to maintain the position that the record in McConnell demonstrated the invalidity of the Act on its face. 551 U. S., at 485–504 (opinion of Scalia, J.). The controlling opinion in WRTL, which refrained from holding the statute invalid except as applied to the facts then before the Court, was a careful attempt to accept the essential elements of the Court’s opinion in McConnell, while vindicating the First Amendment arguments made by the WRTL parties. 551 U. S., at 482 (opinion of Roberts, C. J.). As noted above, Citizens United’s narrower arguments are not sustainable under a fair reading of the statute. In the exercise of its judicial responsibility, it is necessary then for the Court to consider the facial validity of §441b. Any other course of decision would prolong the substantial, nation-wide chilling effect caused by §441b’s prohibitions on corporate expenditures. Consideration of the facial validity of §441b is further supported by the following reasons. First is the uncertainty caused by the litigating position of the Government. As discussed above, see Part II–D, supra, the Government suggests, as an alternative argument, that an as-applied challenge might have merit. This argument proceeds on the premise that the nonprofit corporation involved here may have received only de minimis donations from for-profit corporations and that some nonprofit corporations may be exempted from the operation of the statute. The Government also suggests that an as-applied challenge to §441b’s ban on books may be successful, although it would defend §441b’s ban as applied to almost every other form of media including pamphlets. See Tr. of Oral Arg. 65–66 (Sept. 9, 2009). The Government thus, by its own position, contributes to the uncertainty that §441b causes. When the Government holds out the possibility of ruling for Citizens United on a narrow ground yet refrains from adopting that position, the added uncertainty demonstrates the necessity to address the question of statutory validity. Second, substantial time would be required to bring clarity to the application of the statutory provision on these points in order to avoid any chilling effect caused by some improper interpretation. See Part II–C, supra. It is well known that the public begins to concentrate on elections only in the weeks immediately before they are held. There are short timeframes in which speech can have influence. The need or relevance of the speech will often first be apparent at this stage in the campaign. The decision to speak is made in the heat of political campaigns, when speakers react to messages conveyed by others. A speaker’s ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit. By the time the lawsuit concludes, the election will be over and the litigants in most cases will have neither the incentive nor, perhaps, the resources to carry on, even if they could establish that the case is not moot because the issue is “capable of repetition, yet evading review.” WRTL, supra, at 462 (opinion of Roberts, C. J.) (citing Los Angeles v. Lyons, 461 U. S. 95, 109 (1983); Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911)). Here, Citizens United decided to litigate its case to the end. Today, Citizens United finally learns, two years after the fact, whether it could have spoken during the 2008 Presidential primary—long after the opportunity to persuade primary voters has passed. Third is the primary importance of speech itself to the integrity of the election process. As additional rules are created for regulating political speech, any speech arguably within their reach is chilled. See Part II–A, supra. Campaign finance regulations now impose “unique and complex rules” on “71 distinct entities.” Brief for Seven Former Chairmen of FEC et al. as Amici Curiae 11–12. These entities are subject to separate rules for 33 different types of political speech. Id., at 14–15, n. 10. The FEC has adopted 568 pages of regulations, 1,278 pages of explanations and justifications for those regulations, and 1,771 advisory opinions since 1975. See id., at 6, n. 7. In fact, after this Court in WRTL adopted an objective “appeal to vote” test for determining whether a communication was the functional equivalent of express advocacy, 551 U. S., at 470 (opinion of Roberts, C. J.), the FEC adopted a two-part, 11-factor balancing test to implement WRTL’s ruling. See 11 CFR §114.15; Brief for Wyoming Liberty Group et al. as Amici Curiae 17–27 (filed Jan. 15, 2009). This regulatory scheme may not be a prior restraint on speech in the strict sense of that term, for prospective speakers are not compelled by law to seek an advisory opinion from the FEC before the speech takes place. Cf. Near v. Minnesota ex rel. Olson, 283 U. S. 697, 712–713 (1931). As a practical matter, however, given the complexity of the regulations and the deference courts show to administrative determinations, a speaker who wants to avoid threats of criminal liability and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. See 2 U. S. C. §437f; 11 CFR §112.1. These onerous restrictions thus function as the equivalent of prior restraint by giving the FEC power analogous to licensing laws implemented in 16th- and 17th-century England, laws and governmental practices of the sort that the First Amendment was drawn to prohibit. See Thomas v. Chicago Park Dist., 534 U. S. 316, 320 (2002); Lovell v. City of Griffin, 303 U. S. 444, 451–452 (1938); Near, supra, at 713–714. Because the FEC’s “business is to censor, there inheres the danger that [it] may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression.” Freedman v. Maryland, 380 U. S. 51, 57–58 (1965). When the FEC issues advisory opinions that prohibit speech, “[m]any persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks, 539 U. S. 113, 119 (2003) (citation omitted). Consequently, “the censor’s determination may in practice be final.” Freedman, supra, at 58. This is precisely what WRTL sought to avoid. WRTL said that First Amendment standards “must eschew ‘the open-ended rough-and-tumble of factors,’ which ‘invit[es] complex argument in a trial court and a virtually inevitable appeal.’ ” 551 U. S., at 469 (opinion of Roberts, C. J.) (quoting Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 547 (1995); alteration in original). Yet, the FEC has created a regime that allows it to select what political speech is safe for public consumption by applying ambiguous tests. If parties want to avoid litigation and the possibility of civil and criminal penalties, they must either refrain from speaking or ask the FEC to issue an advisory opinion approving of the political speech in question. Government officials pore over each word of a text to see if, in their judgment, it accords with the 11-factor test they have promulgated. This is an unprecedented governmental intervention into the realm of speech. The ongoing chill upon speech that is beyond all doubt protected makes it necessary in this case to invoke the earlier precedents that a statute which chills speech can and must be invalidated where its facial invalidity has been demonstrated. See WRTL, supra, at 482–483 (Alito, J., concurring); Thornhill v. Alabama, 310 U. S. 88, 97–98 (1940). For these reasons we find it necessary to reconsider Austin. III The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” Laws enacted to control or suppress speech may operate at different points in the speech process. The following are just a few examples of restrictions that have been attempted at different stages of the speech process—all laws found to be invalid: restrictions requiring a permit at the outset, Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150, 153 (2002); imposing a burden by impounding proceeds on receipts or royalties, Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 108, 123 (1991); seeking to exact a cost after the speech occurs, New York Times Co. v. Sullivan, 376 U. S., at 267; and subjecting the speaker to criminal penalties, Brandenburg v. Ohio, 395 U. S. 444, 445 (1969) (per curiam). The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations—including nonprofit advocacy corporations—either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship. Section 441b is a ban on corporate speech notwithstanding the fact that a PAC created by a corporation can still speak. See McConnell, 540 U. S., at 330–333 (opinion of Kennedy, J.). A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expenditure ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation to speak—and it does not—the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive to administer and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the identities of the persons making donations, preserve receipts for three years, and file an organization statement and report changes to this information within 10 days. See id., at 330–332 (quoting MCFL, 479 U. S., at 253–254). And that is just the beginning. PACs must file detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur: “ ‘These reports must contain information regarding the amount of cash on hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate’s authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest or any other offset to operating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggregating over $200 have been made; persons to whom loan repayments or refunds have been made; the total sum of all contributions, operating expenses, outstanding debts and obligations, and the settlement terms of the retirement of any debt or obligation.’ ” 540 U. S., at 331–332 (quoting MCFL, supra, at 253–254). PACs have to comply with these regulations just to speak. This might explain why fewer than 2,000 of the millions of corporations in this country have PACs. See Brief for Seven Former Chairmen of FEC et al. as Amici Curiae 11 (citing FEC, Summary of PAC Activity 1990–2006, online at http://www.fec.gov/press/press2007/ 20071009pac/sumhistory.pdf); IRS, Statistics of Income: 2006, Corporation Income Tax Returns 2 (2009) (hereinafter Statistics of Income) (5.8 million for-profit corporations filed 2006 tax returns). PACs, furthermore, must exist before they can speak. Given the onerous restrictions, a corporation may not be able to establish a PAC in time to make its views known regarding candidates and issues in a current campaign. Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech. As a “restriction on the amount of money a person or group can spend on political communication during a campaign,” that statute “necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Buckley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. See McConnell, supra, at 251 (opinion of Scalia, J.) (Government could repress speech by “attacking all levels of the production and dissemination of ideas,” for “effective public communication requires the speaker to make use of the services of others”). If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restriction on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect. Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley, supra, at 14–15 (“In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential”). The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “ ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)); see Buckley, supra, at 14 (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution”). For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464 (opinion of Roberts, C. J.). While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, see Simon & Schuster, 502 U. S., at 124 (Kennedy, J., concurring in judgment), the quoted language from WRTL provides a sufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) (striking down content-based restriction). Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content. Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a constitutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each. The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 683 (1986) (protecting the “function of public school education”); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119, 129 (1977) (furthering “the legitimate penological objectives of the corrections system” (internal quotation marks omitted)); Parker v. Levy, 417 U. S. 733, 759 (1974) (ensuring “the capacity of the Government to discharge its [military] responsibilities” (internal quotation marks omitted)); Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 557 (1973) (“[F]ederal service should depend upon meritorious performance rather than political service”). The corporate independent expenditures at issue in this case, however, would not interfere with governmental functions, so these cases are inapposite. These precedents stand only for the proposition that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech. By contrast, it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes. At least before Austin, the Court had not allowed the exclusion of a class of speakers from the general public dialogue. We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion. A 1 The Court has recognized that First Amendment protection extends to corporations. Bellotti, supra, at 778, n. 14 (citing Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 (1977); Time, Inc. v. Firestone, 424 U. S. 448 (1976); Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254; Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952)); see, e.g., Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512 U. S. 622; Simon & Schuster, 502 U. S. 105; Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); Florida Star v. B. J. F., 491 U. S. 524 (1989); Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986); Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970). This protection has been extended by explicit holdings to the context of political speech. See, e.g., Button, 371 U. S., at 428–429; Grosjean v. American Press Co., 297 U. S. 233, 244 (1936). Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” Bellotti, supra, at 784; see Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 8 (1986) (plurality opinion) (“The identity of the speaker is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster” (quoting Bellotti, 435 U. S., at 783)). The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.” Id., at 776; see id., at 780, n. 16. Cf. id., at 828 (Rehnquist, J., dissenting). At least since the latter part of the 19th century, the laws of some States and of the United States imposed a ban on corporate direct contributions to candidates. See B. Smith, Unfree Speech: The Folly of Campaign Finance Reform 23 (2001). Yet not until 1947 did Congress first prohibit independent expenditures by corporations and labor unions in §304 of the Labor Management Relations Act 1947, 61 Stat. 159 (codified at 2 U. S. C. §251 (1946 ed., Supp. I)). In passing this Act Congress overrode the veto of President Truman, who warned that the expenditure ban was a “dangerous intrusion on free speech.” Message from the President of the United States, H. R. Doc. No. 334, 89th Cong., 1st Sess., 9 (1947). For almost three decades thereafter, the Court did not reach the question whether restrictions on corporate and union expenditures are constitutional. See WRTL, 551 U. S., at 502 (opinion of Scalia, J.). The question was in the background of United States v. CIO, 335 U. S. 106 (1948). There, a labor union endorsed a congressional candidate in its weekly periodical. The Court stated that “the gravest doubt would arise in our minds as to [the federal expenditure prohibition’s] constitutionality” if it were construed to suppress that writing. Id., at 121. The Court engaged in statutory interpretation and found the statute did not cover the publication. Id., at 121–122, and n. 20. Four Justices, however, said they would reach the constitutional question and invalidate the Labor Management Relations Act’s expenditure ban. Id., at 155 (Rutledge, J., joined by Black, Douglas, and Murphy, JJ., concurring in result). The concurrence explained that any “ ‘undue influence’ ” generated by a speaker’s “large expenditures” was outweighed “by the loss for democratic processes resulting from the restrictions upon free and full public discussion.” Id., at 143. In United States v. Automobile Workers, 352 U. S. 567 (1957), the Court again encountered the independent expenditure ban, which had been recodified at 18 U. S. C. §610 (1952 ed.). See 62 Stat. 723–724. After holding only that a union television broadcast that endorsed candidates was covered by the statute, the Court “[r]efus[ed] to anticipate constitutional questions” and remanded for the trial to proceed. 352 U. S., at 591. Three Justices dissented, arguing that the Court should have reached the constitutional question and that the ban on independent expenditures was unconstitutional: “Under our Constitution it is We The People who are sovereign. The people have the final say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important—vitally important—that all channels of communications be open to them during every election, that no point of view be restrained or barred, and that the people have access to the views of every group in the community.” Id., at 593 (opinion of Douglas, J., joined by Warren, C. J., and Black, J.). The dissent concluded that deeming a particular group “too powerful” was not a “justificatio[n] for withholding First Amendment rights from any group—labor or corporate.” Id., at 597. The Court did not get another opportunity to consider the constitutional question in that case; for after a remand, a jury found the defendants not guilty. See Hayward, Revisiting the Fable of Reform, 45 Harv. J. Legis. 421, 463 (2008). Later, in Pipefitters v. United States, 407 U. S. 385, 400–401 (1972), the Court reversed a conviction for expenditure of union funds for political speech—again without reaching the constitutional question. The Court would not resolve that question for another four years. 2 In Buckley, 424 U. S. 1, the Court addressed various challenges to the Federal Election Campaign Act of 1971 (FECA) as amended in 1974. These amendments created 18 U. S. C. §608(e) (1970 ed., Supp. V), see 88 Stat. 1265, an independent expenditure ban separate from §610 that applied to individuals as well as corporations and labor unions, Buckley, 424 U. S., at 23, 39, and n. 45. Before addressing the constitutionality of §608(e)’s independent expenditure ban, Buckley first upheld §608(b), FECA’s limits on direct contributions to candidates. The Buckley Court recognized a “sufficiently important” governmental interest in “the prevention of corruption and the appearance of corruption.” Id., at 25; see id., at 26. This followed from the Court’s concern that large contributions could be given “to secure a political quid pro quo.” Ibid. The Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures. The Court emphasized that “the independent expenditure ceiling … fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” id., at 47–48, because “[t]he absence of prearrangement and coordination . . . alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate,” id., at 47. Buckley invalidated §608(e)’s restrictions on independent expenditures, with only one Justice dissenting. See Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 491, n. 3 (1985) (NCPAC). Buckley did not consider §610’s separate ban on corporate and union independent expenditures, the prohibition that had also been in the background in CIO, Automobile Workers, and Pipefitters. Had §610 been challenged in the wake of Buckley, however, it could not have been squared with the reasoning and analysis of that precedent. See WRTL, supra, at 487 (opinion of Scalia, J.) (“Buckley might well have been the last word on limitations on independent expenditures”); Austin, 494 U. S., at 683 (Scalia, J., dissenting). The expenditure ban invalidated in Buckley, §608(e), applied to corporations and unions, 424 U. S., at 23, 39, n. 45; and some of the prevailing plaintiffs in Buckley were corporations, id., at 8. The Buckley Court did not invoke the First Amendment’s overbreadth doctrine, see Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973), to suggest that §608(e)’s expenditure ban would have been constitutional if it had applied only to corporations and not to individuals, 424 U. S., at 50. Buckley cited with approval the Automobile Workers dissent, which argued that §610 was unconstitutional. 424 U. S., at 43 (citing 352 U. S., at 595–596 (opinion of Douglas, J.)). Notwithstanding this precedent, Congress recodified §610’s corporate and union expenditure ban at 2 U. S. C. §441b four months after Buckley was decided. See 90 Stat. 490. Section 441b is the independent expenditure restriction challenged here. Less than two years after Buckley, Bellotti, 435 U. S. 765, reaffirmed the First Amendment principle that the Government cannot restrict political speech based on the speaker’s corporate identity. Bellotti could not have been clearer when it struck down a state-law prohibition on corporate independent expenditures related to referenda issues: “We thus find no support in the First . . . Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. . . . [That proposition] amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication. . . . . . “In the realm of protected speech, the legislature is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.” Id., at 784–785. It is important to note that the reasoning and holding of Bellotti did not rest on the existence of a viewpoint-discriminatory statute. It rested on the principle that the Government lacks the power to ban corporations from speaking. Bellotti did not address the constitutionality of the State’s ban on corporate independent expenditures to support candidates. In our view, however, that restriction would have been unconstitutional under Bellotti’s central principle: that the First Amendment does not allow political speech restrictions based on a speaker’s corporate identity. See ibid. 3 Thus the law stood until Austin. Austin “uph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Court’s] history.” 494 U. S., at 695 (Kennedy, J., dissenting). There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a specific candidate. Michigan law, however, prohibited corporate independent expenditures that supported or opposed any candidate for state office. A violation of the law was punishable as a felony. The Court sustained the speech prohibition. To bypass Buckley and Bellotti, the Austin Court identified a new governmental interest in limiting political speech: an antidistortion interest. Austin found a compelling governmental interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” 494 U. S., at 660; see id., at 659 (citing MCFL, 479 U. S., at 257; NCPAC, 470 U. S., at 500–501). B The Court is thus confronted with conflicting lines of precedent: a pre-Austin line that forbids restrictions on political speech based on the speaker’s corporate identity and a post-Austin line that permits them. No case before Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker’s corporate identity. Before Austin Congress had enacted legislation for this purpose, and the Government urged the same proposition before this Court. See MCFL, supra, at 257 (FEC posited that Congress intended to “curb the political influence of ‘those who exercise control over large aggregations of capital’ ” (quoting Automobile Workers, supra, at 585)); California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182, 201 (1981) (Congress believed that “differing structures and purposes” of corporations and unions “may require different forms of regulation in order to protect the integrity of the electoral process”). In neither of these cases did the Court adopt the proposition. In its defense of the corporate-speech restrictions in §441b, the Government notes the antidistortion rationale on which Austin and its progeny rest in part, yet it all but abandons reliance upon it. It argues instead that two other compelling interests support Austin’s holding that corporate expenditure restrictions are constitutional: an anticorruption interest, see 494 U. S., at 678 (Stevens, J., concurring), and a shareholder-protection interest, see id., at 674–675 (Brennan, J., concurring). We consider the three points in turn. 1 As for Austin’s antidistortion rationale, the Government does little to defend it. See Tr. of Oral Arg. 45–48 (Sept. 9, 2009). And with good reason, for the rationale cannot support §441b. If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form. The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation. See Part II–E, supra; Tr. of Oral Arg. 66 (Sept. 9, 2009); see also id., at 26–31 (Mar. 24, 2009). If Austin were correct, the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books. The Government responds “that the FEC has never applied this statute to a book,” and if it did, “there would be quite [a] good as-applied challenge.” Tr. of Oral Arg. 65 (Sept. 9, 2009). This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure. Political speech is “indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” Bellotti, 435 U. S., at 777 (footnote omitted); see ibid. (the worth of speech “does not depend upon the identity of its source, whether corporation, association, union, or individual”); Buckley, 424 U. S., at 48–49 (“[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment”); Automobile Workers, 352 U. S., at 597 (Douglas, J., dissenting); CIO, 335 U. S., at 154–155 (Rutledge, J., concurring in result). This protection for speech is inconsistent with Austin’s antidistortion rationale. Austin sought to defend the antidistortion rationale as a means to prevent corporations from obtaining “ ‘an unfair advantage in the political marketplace’ ” by using “ ‘resources amassed in the economic marketplace.’ ” 494 U. S., at 659 (quoting MCFL, supra, at 257). But Buckley rejected the premise that the Government has an interest “in equalizing the relative ability of individuals and groups to influence the outcome of elections.” 424 U. S., at 48; see Bellotti, supra, at 791, n. 30. Buckley was specific in stating that “the skyrocketing cost of political campaigns” could not sustain the governmental prohibition. 424 U. S., at 26. The First Amendment’s protections do not depend on the speaker’s “financial ability to engage in public discussion.” Id., at 49. The Court reaffirmed these conclusions when it invalidated the BCRA provision that increased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. See Davis v. Federal Election Comm’n, 554 U. S. ___, ___ (2008) (slip op., at 16) (“Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, §2, and it is a dangerous business for Congress to use the election laws to influence the voters’ choices”). The rule that political speech cannot be limited based on a speaker’s wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity. Either as support for its antidistortion rationale or as a further argument, the Austin majority undertook to distinguish wealthy individuals from corporations on the ground that “[s]tate law grants corporations special advantages—such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.” 494 U. S., at 658–659. This does not suffice, however, to allow laws prohibiting speech. “It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.” Id., at 680 (Scalia, J., dissenting). It is irrelevant for purposes of the First Amendment that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Id., at 660 (majority opinion). All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas. See id., at 707 (Kennedy, J., dissenting) (“Many persons can trace their funds to corporations, if not in the form of donations, then in the form of dividends, interest, or salary”). Austin’s antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations. See McConnell, 540 U. S., at 283 (opinion of Thomas, J.) (“The chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation of the press”). Cf. Tornillo, 418 U. S., at 250 (alleging the existence of “vast accumulations of unreviewable power in the modern media empires”). Media corporations are now exempt from §441b’s ban on corporate expenditures. See 2 U. S. C. §§431(9)(B)(i), 434(f)(3)(B)(i). Yet media corporations accumulate wealth with the help of the corporate form, the largest media corporations have “immense aggregations of wealth,” and the views expressed by media corporations often “have little or no correlation to the public’s support” for those views. Austin, 494 U. S., at 660. Thus, under the Government’s reasoning, wealthy media corporations could have their voices diminished to put them on par with other media entities. There is no precedent for permitting this under the First Amendment. The media exemption discloses further difficulties with the law now under consideration. There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not. “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” Id., at 691 (Scalia, J., dissenting) (citing Bellotti, 435 U. S., at 782); see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 784 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting); id., at 773 (White, J., concurring in judgment). With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred. The law’s exception for media corporations is, on its own terms, all but an admission of the invalidity of the antidistortion rationale. And the exemption results in a further, separate reason for finding this law invalid: Again by its own terms, the law exempts some corporations but covers others, even though both have the need or the motive to communicate their views. The exemption applies to media corporations owned or controlled by corporations that have diverse and substantial investments and participate in endeavors other than news. So even assuming the most doubtful proposition that a news organization has a right to speak when others do not, the exemption would allow a conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its overall business interest. At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue. This differential treatment cannot be squared with the First Amendment. There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations. The Framers may not have anticipated modern business and media corporations. See McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 360–361 (1995) (Thomas, J., concurring in judgment). Yet television networks and major newspapers owned by media corporations have become the most important means of mass communication in modern times. The First Amendment was certainly not understood to condone the suppression of political speech in society’s most salient media. It was understood as a response to the repression of speech and the press that had existed in England and the heavy taxes on the press that were imposed in the colonies. See McConnell, 540 U. S., at 252–253 (opinion of Scalia, J.); Grosjean, 297 U. S., at 245–248; Near, 283 U. S., at 713–714. The great debates between the Federalists and the Anti-Federalists over our founding document were published and expressed in the most important means of mass communication of that era—newspapers owned by individuals. See McIntyre, 514 U. S., at 341–343; id., at 367 (Thomas, J., concurring in judgment). At the founding, speech was open, comprehensive, and vital to society’s definition of itself; there were no limits on the sources of speech and knowledge. See B. Bailyn, Ideological Origins of the American Revolution 5 (1967) (“Any number of people could join in such proliferating polemics, and rebuttals could come from all sides”); G. Wood, Creation of the American Republic 1776–1787, p. 6 (1969) (“[I]t is not surprising that the intellectual sources of [the Americans’] Revolutionary thought were profuse and various”). The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted. Austin interferes with the “open marketplace” of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208 (2008); see ibid. (ideas “may compete” in this marketplace “without government interference”); McConnell, supra, at 274 (opinion of Thomas, J.). It permits the Government to ban the political speech of millions of associations of citizens. See Statistics of Income 2 (5.8 million for-profit corporations filed 2006 tax returns). Most of these are small corporations without large amounts of wealth. See Supp. Brief for Chamber of Commerce of the United States of America as Amicus Curiae 1, 3 (96% of the 3 million businesses that belong to the U. S. Chamber of Commerce have fewer than 100 employees); M. Keightley, Congressional Research Service Report for Congress, Business Organizational Choices: Taxation and Responses to Legislative Changes 10 (2009) (more than 75% of corporations whose income is taxed under federal law, see 26 U. S. C. §301, have less than $1 million in receipts per year). This fact belies the Government’s argument that the statute is justified on the ground that it prevents the “distorting effects of immense aggregations of wealth.” Austin, 494 U. S., at 660. It is not even aimed at amassed wealth. The censorship we now confront is vast in its reach. The Government has “muffle[d] the voices that best represent the most significant segments of the economy.” McConnell, supra, at 257–258 (opinion of Scalia, J.). And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” CIO, 335 U. S., at 144 (Rutledge, J., concurring in result). By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” The Federalist No. 10, p. 130 (B. Wright ed. 1961) (J. Madison). Factions should be checked by permitting them all to speak, see ibid., and by entrusting the people to judge what is true and what is false. The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public. This makes Austin’s antidistortion rationale all the more an aberration. “[T]he First Amendment protects the right of corporations to petition legislative and administrative bodies.” Bellotti, 435 U. S., at 792, n. 31 (citing California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 510–511 (1972); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, 137–138 (1961)). Corporate executives and employees counsel Members of Congress and Presidential administrations on many issues, as a matter of routine and often in private. An amici brief filed on behalf of Montana and 25 other States notes that lobbying and corporate communications with elected officials occur on a regular basis. Brief for State of Montana et al. as Amici Curiae 19. When that phenomenon is coupled with §441b, the result is that smaller or nonprofit corporations cannot raise a voice to object when other corporations, including those with vast wealth, are cooperating with the Government. That cooperation may sometimes be voluntary, or it may be at the demand of a Government official who uses his or her authority, influence, and power to threaten corporations to support the Government’s policies. Those kinds of interactions are often unknown and unseen. The speech that §441b forbids, though, is public, and all can judge its content and purpose. References to massive corporate treasuries should not mask the real operation of this law. Rhetoric ought not obscure reality. Even if §441b’s expenditure ban were constitutional, wealthy corporations could still lobby elected officials, although smaller corporations may not have the resources to do so. And wealthy individuals and unincorporated associations can spend unlimited amounts on independent expenditures. See, e.g., WRTL, 551 U. S., at 503–504 (opinion of Scalia, J.) (“In the 2004 election cycle, a mere 24 individuals contributed an astounding total of $142 million to [26 U. S. C. §527 organizations]”). Yet certain disfavored associations of citizens—those that have taken on the corporate form—are penalized for engaging in the same political speech. When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves. 2 What we have said also shows the invalidity of other arguments made by the Government. For the most part relinquishing the antidistortion rationale, the Government falls back on the argument that corporate political speech can be banned in order to prevent corruption or its appearance. In Buckley, the Court found this interest “sufficiently important” to allow limits on contributions but did not extend that reasoning to expenditure limits. 424 U. S., at 25. When Buckley examined an expenditure ban, it found “that the governmental interest in preventing corruption and the appearance of corruption [was] inadequate to justify [the ban] on independent expenditures.” Id., at 45. With regard to large direct contributions, Buckley reasoned that they could be given “to secure a political quid pro quo,” id., at 26, and that “the scope of such pernicious practices can never be reliably ascertained,” id., at 27. The practices Buckley noted would be covered by bribery laws, see, e.g., 18 U. S. C. §201, if a quid pro quo arrangement were proved. See Buckley, supra, at 27, and n. 28 (citing Buckley v. Valeo, 519 F. 2d 821, 839–840, and nn. 36–38 (CADC 1975) (en banc) (per curiam)). The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. MCFL, 479 U. S., at 260; NCPAC, 470 U. S., at 500; Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 210 (1982) (NRWC). The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the Court does not do so here. “The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” Buckley, 424 U. S., at 47; see ibid. (independent expenditures have a “substantially diminished potential for abuse”). Limits on independent expenditures, such as §441b, have a chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question. Indeed, 26 States do not restrict independent expenditures by for-profit corporations. The Government does not claim that these expenditures have corrupted the political process in those States. See Supp. Brief for Appellee 18, n. 3; Supp. Brief for Chamber of Commerce of the United States of America as Amicus Curiae 8–9, n. 5. A single footnote in Bellotti purported to leave open the possibility that corporate independent expenditures could be shown to cause corruption. 435 U. S., at 788, n. 26. For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. Dicta in Bellotti’s footnote suggested that “a corporation’s right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.” Ibid. Citing the portion of Buckley that invalidated the federal independent expenditure ban, 424 U. S., at 46, and a law review student comment, Bellotti surmised that “Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.” 435 U. S., at 788, n. 26. Buckley, however, struck down a ban on independent expenditures to support candidates that covered corporations, 424 U. S., at 23, 39, n. 45, and explained that “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application,” id., at 42. Bellotti’s dictum is thus supported only by a law review student comment, which misinterpreted Buckley. See Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U. Pa. L. Rev. 386, 408 (1977) (suggesting that “corporations and labor unions should be held to different and more stringent standards than an individual or other associations under a regulatory scheme for campaign financing”). Seizing on this aside in Bellotti’s footnote, the Court in NRWC did say there is a “sufficient” governmental interest in “ensur[ing] that substantial aggregations of wealth amassed” by corporations would not “be used to incur political debts from legislators who are aided by the contributions.” 459 U. S., at 207–208 (citing Automobile Workers, 352 U. S., at 579); see 459 U. S., at 210, and n. 7; NCPAC, supra, at 500–501 (NRWC suggested a governmental interest in restricting “the influence of political war chests funneled through the corporate form”). NRWC, however, has little relevance here. NRWC decided no more than that a restriction on a corporation’s ability to solicit funds for its segregated PAC, which made direct contributions to candidates, did not violate the First Amendment. 459 U. S., at 206. NRWC thus involved contribution limits, see NCPAC, supra, at 495–496, which, unlike limits on independent expenditures, have been an accepted means to prevent quid pro quo corruption, see McConnell, 540 U. S., at 136–138, and n. 40; MCFL, supra, at 259–260. Citizens United has not made direct contributions to candidates, and it has not suggested that the Court should reconsider whether contribution limits should be subjected to rigorous First Amendment scrutiny. When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption. See McConnell, supra, at 296–298 (opinion of Kennedy, J.) (citing Buckley, supra, at 26–28, 30, 46–48); NCPAC, 470 U. S., at 497 (“The hallmark of corruption is the financial quid pro quo: dollars for political favors”); id., at 498. The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt: “Favoritism and influence are not . . . avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.” McConnell, 540 U. S., at 297 (opinion of Kennedy, J.). Reliance on a “generic favoritism or influence theory . . . is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle.” Id., at 296. The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. See Buckley, supra, at 46. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the electorate will refuse “ ‘to take part in democratic governance’ ” because of additional political speech made by a corporation or any other speaker. McConnell, supra, at 144 (quoting Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 390 (2000)). Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009), is not to the contrary. Caperton held that a judge was required to recuse himself “when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” Id., at ___ (slip op., at 14). The remedy of recusal was based on a litigant’s due process right to a fair trial before an unbiased judge. See Withrow v. Larkin, 421 U. S. 35, 46 (1975). Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned. The McConnell record was “over 100,000 pages” long, McConnell I, 251 F. Supp. 2d, at 209, yet it “does not have any direct examples of votes being exchanged for . . . expenditures,” id., at 560 (opinion of Kollar-Kotelly, J.). This confirms Buckley’s reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate. See 251 F. Supp. 2d, at 555–557 (opinion of Kollar-Kotelly, J.). Ingratiation and access, in any event, are not corruption. The BCRA record establishes that certain donations to political parties, called “soft money,” were made to gain access to elected officials. McConnell, supra, at 125, 130–131, 146–152; see McConnell I, 251 F. Supp. 2d, at 471–481, 491–506 (opinion of Kollar-Kotelly, J.); id., at 842–843, 858–859 (opinion of Leon, J.). This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption. 3 The Government contends further that corporate independent expenditures can be limited because of its interest in protecting dissenting shareholders from being compelled to fund corporate political speech. This asserted interest, like Austin’s antidistortion rationale, would allow the Government to ban the political speech even of media corporations. See supra, at 35–37. Assume, for example, that a shareholder of a corporation that owns a newspaper disagrees with the political views the newspaper expresses. See Austin, 494 U. S., at 687 (Scalia, J., dissenting). Under the Government’s view, that potential disagreement could give the Government the authority to restrict the media corporation’s political speech. The First Amendment does not allow that power. There is, furthermore, little evidence of abuse that cannot be corrected by shareholders “through the procedures of corporate democracy.” Bellotti, 435 U. S., at 794; see id., at 794, n. 34. Those reasons are sufficient to reject this shareholder-protection interest; and, moreover, the statute is both underinclusive and overinclusive. As to the first, if Congress had been seeking to protect dissenting shareholders, it would not have banned corporate speech in only certain media within 30 or 60 days before an election. A dissenting shareholder’s interests would be implicated by speech in any media at any time. As to the second, the statute is overinclusive because it covers all corporations, including nonprofit corporations and for-profit corporations with only single shareholders. As to other corporations, the remedy is not to restrict speech but to consider and explore other regulatory mechanisms. The regulatory mechanism here, based on speech, contravenes the First Amendment. 4 We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process. Cf. 2 U. S. C. §441e (contribution and expenditure ban applied to “foreign national[s]”). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominately by foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Government has a compelling interest in limiting foreign influence over our political process. See Broadrick, 413 U. S., at 615. C Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error. “Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” Montejo v. Louisiana, 556 U. S. ___, ___ (2009) (slip op., at 13) (overruling Michigan v. Jackson, 475 U. S. 625 (1986)). We have also examined whether “experience has pointed up the precedent’s shortcomings.” Pearson v. Callahan, 555 U. S. ___, ___ (2009) (slip op., at 8) (overruling Saucier v. Katz, 533 U. S. 194 (2001)). These considerations counsel in favor of rejecting Austin, which itself contravened this Court’s earlier precedents in Buckley and Bellotti. “This Court has not hesitated to overrule decisions offensive to the First Amendment.” WRTL, 551 U. S., at 500 (opinion of Scalia, J.). “[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision.” Helvering v. Hallock, 309 U. S. 106, 119 (1940). For the reasons above, it must be concluded that Austin was not well reasoned. The Government defends Austin, relying almost entirely on “the quid pro quo interest, the corruption interest or the shareholder interest,” and not Austin’s expressed antidistortion rationale. Tr. of Oral Arg. 48 (Sept. 9, 2009); see id., at 45–46. When neither party defends the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished. Austin abandoned First Amendment principles, furthermore, by relying on language in some of our precedents that traces back to the Automobile Workers Court’s flawed historical account of campaign finance laws, see Brief for Campaign Finance Scholars as Amici Curiae; Hayward, 45 Harv. J. Legis. 421; R. Mutch, Campaigns, Congress, and Courts 33–35, 153–157 (1988). See Austin, supra, at 659 (quoting MCFL, 479 U. S., at 257–258; NCPAC, 470 U. S., at 500–501); MCFL, supra, at 257 (quoting Automobile Workers, 352 U. S., at 585); NCPAC, supra, at 500 (quoting NRWC, 459 U. S., at 210); id., at 208 (“The history of the movement to regulate the political contributions and expenditures of corporations and labor unions is set forth in great detail in [Automobile Workers], supra, at 570–584, and we need only summarize the development here”). Austin is undermined by experience since its announcement. Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws. See, e.g., McConnell, 540 U. S., at 176–177 (“Given BCRA’s tighter restrictions on the raising and spending of soft money, the incentives . . . to exploit [26 U. S. C. §527] organizations will only increase”). Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers have become adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. See Part II–C, supra. Today, 30-second television ads may be the most effective way to convey a political message. See McConnell, supra, at 261 (opinion of Scalia, J.). Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds. See 2 U. S. C. §441b(a); MCFL, supra, at 249. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech. No serious reliance interests are at stake. As the Court stated in Payne v. Tennessee, 501 U. S. 808, 828 (1991), reliance interests are important considerations in property and contract cases, where parties may have acted in conformance with existing legal rules in order to conduct transactions. Here, though, parties have been prevented from acting—corporations have been banned from making independent expenditures. Legislatures may have enacted bans on corporate expenditures believing that those bans were constitutional. This is not a compelling interest for stare decisis. If it were, legislative acts could prevent us from overruling our own precedents, thereby interfering with our duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Due consideration leads to this conclusion: Austin, 494 U. S. 652, should be and now is overruled. We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. D Austin is overruled, so it provides no basis for allowing the Government to limit corporate independent expenditures. As the Government appears to concede, overruling Austin “effectively invalidate[s] not only BCRA Section 203, but also 2 U. S. C. 441b’s prohibition on the use of corporate treasury funds for express advocacy.” Brief for Appellee 33, n. 12. Section 441b’s restrictions on corporate independent expenditures are therefore invalid and cannot be applied to Hillary. Given our conclusion we are further required to overrule the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on corporate independent expenditures. See 540 U. S., at 203–209. The McConnell Court relied on the antidistortion interest recognized in Austin to uphold a greater restriction on speech than the restriction upheld in Austin, see 540 U. S., at 205, and we have found this interest unconvincing and insufficient. This part of McConnell is now overruled. IV A Citizens United next challenges BCRA’s disclaimer and disclosure provisions as applied to Hillary and the three advertisements for the movie. Under BCRA §311, televised electioneering communications funded by anyone other than a candidate must include a disclaimer that “ ‘_______ is responsible for the content of this advertising.’ ” 2 U. S. C. §441d(d)(2). The required statement must be made in a “clearly spoken manner,” and displayed on the screen in a “clearly readable manner” for at least four seconds. Ibid. It must state that the communication “is not authorized by any candidate or candidate’s committee”; it must also display the name and address (or Web site address) of the person or group that funded the advertisement. §441d(a)(3). Under BCRA §201, any person who spends more than $10,000 on electioneering communications within a calendar year must file a disclosure statement with the FEC. 2 U. S. C. §434(f)(1). That statement must identify the person making the expenditure, the amount of the expenditure, the election to which the communication was directed, and the names of certain contributors. §434(f)(2). Disclaimer and disclosure requirements may burden the ability to speak, but they “impose no ceiling on campaign-related activities,” Buckley, 424 U. S., at 64, and “do not prevent anyone from speaking,” McConnell, supra, at 201 (internal quotation marks and brackets omitted). The Court has subjected these requirements to “exacting scrutiny,” which requires a “substantial relation” between the disclosure requirement and a “sufficiently important” governmental interest. Buckley, supra, at 64, 66 (internal quotation marks omitted); see McConnell, supra, at 231–232. In Buckley, the Court explained that disclosure could be justified based on a governmental interest in “provid[ing] the electorate with information” about the sources of election-related spending. 424 U. S., at 66. The McConnell Court applied this interest in rejecting facial challenges to BCRA §§201 and 311. 540 U. S., at 196. There was evidence in the record that independent groups were running election-related advertisements “ ‘while hiding behind dubious and misleading names.’ ” Id., at 197 (quoting McConnell I, 251 F. Supp. 2d, at 237). The Court therefore upheld BCRA §§201 and 311 on the ground that they would help citizens “ ‘make informed choices in the political marketplace.’ ” 540 U. S., at 197 (quoting McConnell I, supra, at 237); see 540 U. S., at 231. Although both provisions were facially upheld, the Court acknowledged that as-applied challenges would be available if a group could show a “ ‘reasonable probability’ ” that disclosure of its contributors’ names “ ‘will subject them to threats, harassment, or reprisals from either Government officials or private parties.’ ” Id., at 198 (quoting Buckley, supra, at 74). For the reasons stated below, we find the statute valid as applied to the ads for the movie and to the movie itself. B Citizens United sought to broadcast one 30-second and two 10-second ads to promote Hillary. Under FEC regulations, a communication that “[p]roposes a commercial transaction” was not subject to 2 U. S. C. §441b’s restrictions on corporate or union funding of electioneering communications. 11 CFR §114.15(b)(3)(ii). The regulations, however, do not exempt those communications from the disclaimer and disclosure requirements in BCRA §§201 and 311. See 72 Fed. Reg. 72901 (2007). Citizens United argues that the disclaimer requirements in §311 are unconstitutional as applied to its ads. It contends that the governmental interest in providing information to the electorate does not justify requiring disclaimers for any commercial advertisements, including the ones at issue here. We disagree. The ads fall within BCRA’s definition of an “electioneering communication”: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. See 530 F. Supp. 2d, at 276, nn. 2–4. The disclaimers required by §311 “provid[e] the electorate with information,” McConnell, supra, at 196, and “insure that the voters are fully informed” about the person or group who is speaking, Buckley, supra, at 76; see also Bellotti, 435 U. S., at 792, n. 32 (“Identification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected”). At the very least, the disclaimers avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens United argues that §311 is underinclusive because it requires disclaimers for broadcast advertisements but not for print or Internet advertising. It asserts that §311 decreases both the quantity and effectiveness of the group’s speech by forcing it to devote four seconds of each advertisement to the spoken disclaimer. We rejected these arguments in McConnell, supra, at 230–231. And we now adhere to that decision as it pertains to the disclosure provisions. As a final point, Citizens United claims that, in any event, the disclosure requirements in §201 must be confined to speech that is the functional equivalent of express advocacy. The principal opinion in WRTL limited 2 U. S. C. §441b’s restrictions on independent expenditures to express advocacy and its functional equivalent. 551 U. S., at 469–476 (opinion of Roberts, C. J.). Citizens United seeks to import a similar distinction into BCRA’s disclosure requirements. We reject this contention. The Court has explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech. See, e.g., MCFL, 479 U. S., at 262. In Buckley, the Court upheld a disclosure requirement for independent expenditures even though it invalidated a provision that imposed a ceiling on those expenditures. 424 U. S., at 75–76. In McConnell, three Justices who would have found §441b to be unconstitutional nonetheless voted to uphold BCRA’s disclosure and disclaimer requirements. 540 U. S., at 321 (opinion of Kennedy, J., joined by Rehnquist, C. J., and Scalia, J.). And the Court has upheld registration and disclosure requirements on lobbyists, even though Congress has no power to ban lobbying itself. United States v. Harriss, 347 U. S. 612, 625 (1954) (Congress “has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose”). For these reasons, we reject Citizens United’s contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy. Citizens United also disputes that an informational interest justifies the application of §201 to its ads, which only attempt to persuade viewers to see the film. Even if it disclosed the funding sources for the ads, Citizens United says, the information would not help viewers make informed choices in the political marketplace. This is similar to the argument rejected above with respect to disclaimers. Even if the ads only pertain to a commercial transaction, the public has an interest in knowing who is speaking about a candidate shortly before an election. Because the informational interest alone is sufficient to justify application of §201 to these ads, it is not necessary to consider the Government’s other asserted interests. Last, Citizens United argues that disclosure requirements can chill donations to an organization by exposing donors to retaliation. Some amici point to recent events in which donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation. See Brief for Institute for Justice as Amicus Curiae 13–16; Brief for Alliance Defense Fund as Amicus Curiae 16–22. In McConnell, the Court recognized that §201 would be unconstitutional as applied to an organization if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed. 540 U. S., at 198. The examples cited by amici are cause for concern. Citizens United, however, has offered no evidence that its members may face similar threats or reprisals. To the contrary, Citizens United has been disclosing its donors for years and has identified no instance of harassment or retaliation. Shareholder objections raised through the procedures of corporate democracy, see Bellotti, supra, at 794, and n. 34, can be more effective today because modern technology makes disclosures rapid and informative. A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today. It must be noted, furthermore, that many of Congress’ findings in passing BCRA were premised on a system without adequate disclosure. See McConnell, 540 U. S., at 128 (“[T]he public may not have been fully informed about the sponsorship of so-called issue ads”); id., at 196–197 (quoting McConnell I, 251 F. Supp. 2d, at 237). With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are “ ‘in the pocket’ of so-called moneyed interests.” 540 U. S., at 259 (opinion of Scalia, J.); see MCFL, supra, at 261. The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages. C For the same reasons we uphold the application of BCRA §§201 and 311 to the ads, we affirm their application to Hillary. We find no constitutional impediment to the application of BCRA’s disclaimer and disclosure requirements to a movie broadcast via video-on-demand. And there has been no showing that, as applied in this case, these requirements would impose a chill on speech or expression. V When word concerning the plot of the movie Mr. Smith Goes to Washington reached the circles of Government, some officials sought, by persuasion, to discourage its distribution. See Smoodin, “Compulsory” Viewing for Every Citizen: Mr. Smith and the Rhetoric of Reception, 35 Cinema Journal 3, 19, and n. 52 (Winter 1996) (citing Mr. Smith Riles Washington, Time, Oct. 30, 1939, p. 49); Nugent, Capra’s Capitol Offense, N. Y. Times, Oct. 29, 1939, p. X5. Under Austin, though, officials could have done more than discourage its distribution—they could have banned the film. After all, it, like Hillary, was speech funded by a corporation that was critical of Members of Congress. Mr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force. Modern day movies, television comedies, or skits on Youtube.com might portray public officials or public policies in unflattering ways. Yet if a covered transmission during the blackout period creates the background for candidate endorsement or opposition, a felony occurs solely because a corporation, other than an exempt media corporation, has made the “purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value” in order to engage in political speech. 2 U. S. C. §431(9)(A)(i). Speech would be suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election. Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime. Yet this is the statute’s purpose and design. Some members of the public might consider Hillary to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation’s course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make. “The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.” McConnell, supra, at 341 (opinion of Kennedy, J.). The judgment of the District Court is reversed with respect to the constitutionality of 2 U. S. C. §441b’s restrictions on corporate independent expenditures. The judgment is affirmed with respect to BCRA’s disclaimer and disclosure requirements. The case is remanded for further proceedings consistent with this opinion. It is so ordered. |
557.US.2008_07-984 | In reviving a closed Alaska gold mine using a “froth flotation” technique, petitioner Coeur Alaska, Inc., plans to dispose of the resulting waste material, a rock and water mixture called “slurry,” by pumping it into a nearby lake and then discharging purified lake water into a downstream creek. The Clean Water Act (CWA), inter alia, classifies crushed rock as a “pollutant,” §352(6); forbids its discharge “[e]xcept as in compliance” with the Act, §301(a); empowers the Army Corps of Engineers (Corps) to “issue permits … for the discharge of … fill material,” §404(a); and authorizes the Environmental Protection Agency (EPA) to “issue a permit for the discharge of any pollutant,” “[e]xcept as provided in [§404],” §402(a). The Corps and the EPA together define “fill material” as any “material [that] has the effect of … [c]hanging the bottom elevation” of water, including “slurry … or similar mining-related materials.” 40 CFR §232.2. Coeur Alaska obtained a §404 permit for the slurry discharge from the Corps and a §402 permit for the lake water discharge from the EPA. Respondent environmental groups (collectively, SEACC) sued the Corps and several of its officials under the Administrative Procedure Act, arguing that the CWA §404 permit was not “in accordance with law,” 5 U. S. C. §706(2)(A), because (1) Coeur Alaska should have sought a CWA §402 permit from the EPA instead, just as it did for the lake water discharge; and (2) the slurry discharge would violate the “new source performance standard” the EPA had promulgated under CWA §306(b), forbidding froth-flotation gold mines to discharge “process wastewater,” which includes solid wastes, 40 CFR §440.104(b)(1). Coeur Alaska and petitioner Alaska intervened as defendants. The District Court granted the defendants summary judgment, but the Ninth Circuit reversed, holding that the proposed slurry discharge would violate the EPA’s performance standard and §306(e). Held: 1. The Corps, not the EPA, has authority to permit the slurry discharge. Pp. 9–13. (a) By specifying that, “[e]xcept as provided in … [§404,]” the EPA “may … issue permit[s] for the discharge of any pollutant,” §402(a) forbids the EPA to issue permits for fill materials falling under the Corps’ §404 authority. Even if there were ambiguity on this point, it would be resolved by the EPA’s own regulation providing that “[d]ischarges of … fill material … which are regulated under section 404” “do not require [EPA §402] permits.” 40 CFR §122.3. The agencies have interpreted this regulation to essentially restate §402’s text, ibid., and the EPA has confirmed that reading before this Court. Because it is not “plainly erroneous or inconsistent with the regulation,” the Court accepts the EPA’s interpretation as correct. Auer v. Robbins, 519 U. S. 452, 461. Thus, the question whether the EPA is the proper agency to regulate the slurry discharge depends on whether the Corps has authority to do so. If so, the EPA may not regulate. Pp. 9–11. (b) Because §404(a) empowers the Corps to “issue permits … for the discharge of … fill material,” and the agencies’ joint regulation defines “fill material” to include “slurry … or similar mining-related materials” having the “effect of … [c]hanging the bottom elevation” of water, 40 CFR §232.2, the slurry Coeur Alaska wishes to discharge into the lake falls well within the Corps’ §404 permitting authority, rather than the EPA’s §402 authority. The CWA gives no indication that Congress intended to burden industry with the confusing division of permitting authority that SEACC’s contrary reading would create. Pp. 11–13. 2. The Corps acted in accordance with law in issuing the slurry discharge permit to Coeur Alaska. Pp. 13–28. (a) The CWA alone does not resolve these cases. Pp. 14–18. (i) SEACC contends that because the EPA’s performance standard forbids even minute solid waste discharges, 40 CFR §440.104(b)(1), it also forbids Coeur Alaska’s slurry discharge, 30% of which is solid waste, into the lake. Thus, says SEACC, the slurry discharge is “unlawful” under CWA §306(e), which prohibits “any owner … of any new source to operate such source in violation of any standard of performance applicable to such source.” Pp. 14–16. (ii) Petitioners and the federal agencies counter that CWA §404 grants the Corps authority to determine whether to issue a permit allowing the slurry discharge without regard to the EPA’s new source performance standard or §306(e)’s prohibition. Pp. 16–18. (iii) The CWA is ambiguous on the question whether §306 applies to discharges of fill material regulated under §404. On the one hand, §306 provides that a discharge that violates an EPA new source performance standard is “unlawful”—without an exception for fill material. On the other hand, §404 grants the Corps blanket authority to permit the discharge of fill material—without mentioning §306. This tension indicates that Congress has not “directly spoken” to the “precise question” at issue. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842. P. 18. (b) Although the agencies’ regulations construing the CWA are entitled to deference if they resolve the statutory ambiguity in a reasonable manner, see Chevron, supra, at 842, the regulations bearing on §§306 and 404, like the CWA itself, do not do so. For example, each of the two principal regulations seems to stand on its own without reference to the other. The EPA’s performance standard contains no exception for fill material, and it forbids any discharge of “process wastewater,” including solid wastes. 40 CFR §440.104(b)(1). The agencies’ joint regulation defining fill material includes “slurry or … similar mining-related materials,” §232.2, but contains no exception for slurry regulated by an EPA performance standard. Additional regulations noted by the parties offer no basis for reconciliation. Pp. 18–20. (c) In light of the ambiguities in the CWA and the pertinent regulations, the Court turns to the agencies’ subsequent interpretation of those regulations. Auer, supra, at 461. The question at issue is addressed and resolved in a reasonable and coherent way by the two agencies’ practice and policy, as recited in the EPA’s internal “Regas Memorandum” (Memorandum), which explains that the performance standard applies only to the discharge of water from the lake into the downstream creek, and not to the initial discharge of slurry into the lake. Though the Memorandum is not subject to sufficiently formal procedures to merit full Chevron deference, the Court defers to it because it is not “plainly erroneous or inconsistent with the regulation[s],” Auer, supra, at 461. Five factors inform that conclusion: The Memorandum (1) confines its own scope to closed bodies of water like the lake here, thereby preserving a role for the performance standards; (2) guards against the possibility of evasion of those standards; (3) employs the Corps’ expertise in evaluating the effects of fill material on the aquatic environment; (4) does not allow toxic compounds to be discharged into navigable waters; and (5) reconciles §§306, 402, and 404, and the regulations implementing them, better than any of the parties’ alternatives. The Court agrees with the parties that a two-permit regime is contrary to the statute and regulations. Pp. 20–23. (d) The Court rejects SEACC’s contention that the Regas Memorandum is not entitled to deference because it contradicts the agencies’ published statements and prior practice. Though SEACC cites three such statements, its arguments are not convincing. Pp. 23–28. (i) Although a 1986 memorandum of agreement (MOA) between the EPA and the Corps seeking to reconcile their then-differing “fill material” definitions suggests, as SEACC asserts, that §402 will “normally” apply to discharges of “suspended”—i.e., solid—pollutants, that statement is not contrary to the Regas Memorandum, which acknowledges that the EPA retains authority under §402 to regulate the discharge of suspended solids from the lake into downstream waters. The MOA does not address the question presented by these cases, and answered by the Regas Memorandum, and is, in fact, consistent with the agencies’ determination that the Corps regulates all discharges of fill material and that §306 does not apply to these discharges. Pp. 23–25. (ii) Despite SEACC’s assertion that the fill regulation’s preamble demonstrates that the fill rule was not intended to displace the pre-existing froth-flotation gold mine performance standard, the preamble is consistent with the Regas Memorandum when it explicitly notes that the EPA has “never sought to regulate fill material under effluent guidelines,” 67 Fed. Reg. 31135. If a discharge does not qualify as fill, the EPA’s new source performance standard applies. If the discharge qualifies as fill, the performance standard does not apply; and there was no earlier agency practice or policy to the contrary. Pp. 25–26. (iii) Remarks made by the two agencies in promulgating the fill regulation, which pledge that the EPA’s “previou[s] … determination[s]” with regard to the application of performance standards “remain vali[d],” are not conclusive of the question at issue. The Regas Memorandum has followed this policy by applying the performance standard to the discharge of water from the lake into the creek. The remarks do not state that the EPA will apply such standards to discharges of fill material. Pp. 26–27. (iv) While SEACC cites no instance in which the EPA has applied a performance standard to a discharge of fill material, Coeur Alaska cites two instances in which the Corps issued a §404 permit authorizing a mine to discharge solid waste as fill material. These permits illustrate that the agencies did not have a prior practice of applying EPA performance standards to discharges of mining wastes that qualify as fill material. Pp. 27–28. 486 F. 3d 638, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, and Alito, JJ., joined, and in which Scalia, J., joined in part. Breyer, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part and concurring in the judgment. Ginsburg, J., filed a dissenting opinion, in which Stevens and Souter, JJ., joined. Together with No. 07–990, Alaska v. Southeast Alaska Conservation Council et al., also on certiorari to the same court. | These cases require us to address two questions under the Clean Water Act (CWA or Act). The first is whether the Act gives authority to the United States Army Corps of Engineers, or instead to the Environmental Protection Agency (EPA), to issue a permit for the discharge of mining waste, called slurry. The Corps of Engineers has issued a permit to petitioner Coeur Alaska, Inc. (Coeur Alaska), for a discharge of slurry into a lake in Southeast Alaska. The second question is whether, when the Corps issued that permit, the agency acted in accordance with law. We conclude that the Corps was the appropriate agency to issue the permit and that the permit is lawful. With regard to the first question, §404(a) of the CWA grants the Corps the power to “issue permits … for the discharge of … fill material.” 86 Stat. 884; 33 U. S. C. §1344(a). But the EPA also has authority to issue permits for the discharge of pollutants. Section 402 of the Act grants the EPA authority to “issue a permit for the discharge of any pollutant” “[e]xcept as provided in” §404. 33 U. S. C. §1342(a). We conclude that because the slurry Coeur Alaska wishes to discharge is defined by regulation as “fill material,” 40 CFR §232.2 (2008), Coeur Alaska properly obtained its permit from the Corps of Engineers, under §404, rather than from the EPA, under §402. The second question is whether the Corps permit is lawful. Three environmental groups, respondents here, sued the Corps under the Administrative Procedure Act, arguing that the issuance of the permit by the Corps was “not in accordance with law.” 5 U. S. C. §706(2)(A). The environmental groups are Southeast Alaska Conservation Council, Sierra Club, and Lynn Canal Conservation (collectively, SEACC). The State of Alaska and Coeur Alaska are petitioners here. SEACC argues that the permit from the Corps is unlawful because the discharge of slurry would violate an EPA regulation promulgated under §306(b) of the CWA, 33 U. S. C. §1316(b). The EPA regulation, which is called a “new source performance standard,” forbids mines like Coeur Alaska’s from discharging “process wastewater” into the navigable waters. 40 CFR §440.104(b)(1). Coeur Alaska, the State of Alaska, and the federal agencies maintain that the Corps permit is lawful nonetheless because the EPA’s performance standard does not apply to discharges of fill material. Reversing the judgment of the District Court, the Court of Appeals held that the EPA’s performance standard applies to this discharge so that the permit from the Corps is unlawful. I A Petitioner Coeur Alaska plans to reopen the Kensington Gold Mine, located some 45 miles north of Juneau, Alaska. The mine has been closed since 1928, but Coeur Alaska seeks to make it profitable once more by using a technique known as “froth flotation.” Coeur Alaska will churn the mine’s crushed rock in tanks of frothing water. Chemicals in the water will cause gold-bearing minerals to float to the surface, where they will be skimmed off. At issue is Coeur Alaska’s plan to dispose of the mixture of crushed rock and water left behind in the tanks. This mixture is called slurry. Some 30 percent of the slurry’s volume is crushed rock, resembling wet sand, which is called tailings. The rest is water. The standard way to dispose of slurry is to pump it into a tailings pond. The slurry separates in the pond. Solid tailings sink to the bottom, and water on the surface returns to the mine to be used again. Rather than build a tailings pond, Coeur Alaska proposes to use Lower Slate Lake, located some three miles from the mine in the Tongass National Forest. This lake is small—800 feet at its widest crossing, 2,000 feet at its longest, and 23 acres in area. See App. 138a, 212a. Though small, the lake is 51 feet deep at its maximum. The parties agree the lake is a navigable water of the United States and so is subject to the CWA. They also agree there can be no discharge into the lake except as the CWA and any lawful permit allow. Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lakebed 50 feet—to what is now the lake’s surface—and will increase the lake’s area from 23 to about 60 acres. Id., at 361a (62 acres), 212a (56 acres). To contain this wider, shallower body of water, Coeur Alaska will dam the lake’s downstream shore. The transformed lake will be isolated from other surface water. Creeks and stormwater runoff will detour around it. Id., at 298a. Ultimately, lakewater will be cleaned by purification systems and will flow from the lake to a stream and thence onward. Id., at 309a–312a. B Numerous state and federal agencies reviewed and approved Coeur Alaska’s plans. At issue here are actions by two of those agencies: the Corps of Engineers and the EPA. 1 The CWA classifies crushed rock as a “pollutant.” 33 U. S. C. §1362(6). On the one hand, the Act forbids Coeur Alaska’s discharge of crushed rock “[e]xcept as in compliance” with the Act. CWA §301(a), 33 U. S. C. §1311(a). Section 404(a) of the CWA, on the other hand, empowers the Corps to authorize the discharge of “dredged or fill material.” 33 U. S. C. §1344(a). The Corps and the EPA have together defined “fill material” to mean any “material [that] has the effect of … [c]hanging the bottom elevation” of water. 40 CFR §232.2. The agencies have further defined the “discharge of fill material” to include “placement of … slurry, or tailings or similar mining-related materials.” Ibid. In these cases the Corps and the EPA agree that the slurry meets their regulatory definition of “fill material.” On that premise the Corps evaluated the mine’s plan for a §404 permit. After considering the environmental factors required by §404(b), the Corp issued Coeur Alaska a permit to pump the slurry into Lower Slate Lake. App. 340a–378a. In granting the permit the Corps followed the steps set forth by §404. Section 404(b) requires the Corps to consider the environmental consequences of every discharge it allows. 33 U. S. C. §1344(b). The Corps must apply guidelines written by the EPA pursuant to §404(b). See ibid.; 40 CFR pt. 230 (EPA guidelines). Applying those guidelines here, the Corps determined that Coeur Alaska’s plan to use Lower Slate Lake as a tailings pond was the “least environmentally damaging practicable” way to dispose of the tailings. App. 366a. To conduct that analysis, the Corps compared the plan to the proposed alternatives. The Corps determined that the environmental damage caused by placing slurry in the lake will be temporary. And during that temporary disruption, Coeur Alaska will divert waters around the lake through pipelines built for this purpose. Id., at 298a. Coeur Alaska will also treat water flowing from the lake into downstream waters, pursuant to strict EPA criteria. Ibid.; see Part I–B–2, infra. Though the slurry will at first destroy the lake’s small population of common fish, that population may later be replaced. After mining operations are completed, Coeur Alaska will help “recla[im]” the lake by “[c]apping” the tailings with about 4 inches of “native material.” App. 361a; id., at 309a. The Corps concluded that “[t]he reclamation of the lake will result in more emergent wetlands/vegetated shallows with moderate values for fish habitat, nutrient recycling, carbon/detrital export and sediment/toxicant retention, and high values for wildlife habitat.” Id., at 361a. If the tailings did not go into the lake, they would be placed on nearby wetlands. The resulting pile would rise twice as high as the Pentagon and cover three times as many acres. Reply Brief for Petitioner Coeur Alaska 27. If it were chosen, that alternative would destroy dozens of acres of wetlands—a permanent loss. App. 365a–366a. On the premise that when the mining ends the lake will be at least as environmentally hospitable, if not more so, than now, the Corps concluded that placing the tailings in the lake will cause less damage to the environment than storing them above ground: The reclaimed lake will be “more valuable to the aquatic ecosystem than a permanently filled wetland … that has lost all aquatic functions and values.” Id., at 361a; see also id., at 366a. 2 The EPA had the statutory authority to veto the Corps permit, and prohibit the discharge, if it found the plan to have “an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas … , wildlife, or recreational areas.” CWA §404(c), 33 U. S. C. §1344(c). After considering the Corps findings, the EPA did not veto the Corps permit, even though, in its view, placing the tailings in the lake was not the “environmentally preferable” means of disposing of them. App. 300a. By declining to exercise its veto, the EPA in effect deferred to the judgment of the Corps on this point. The EPA’s involvement extended beyond the agency’s veto consideration. The EPA also issued a permit of its own—not for the discharge from the mine into the lake but for the discharge from the lake into a downstream creek. Id., at 287a–331a. Section 402 grants the EPA authority to “issue a permit for the discharge of any pollutant,” “[e]xcept as provided in [CWA §404].” 33 U. S. C. §1342(a). The EPA’s §402 permit authorizes Coeur Alaska to discharge water from Lower Slate Lake into the downstream creek, subject to strict water-quality limits that Coeur Alaska must regularly monitor. App. 303a–304a, 309a. The EPA’s authority to regulate this discharge comes from a regulation, termed a “new source performance standard,” that it has promulgated under authority granted to it by §306(b) of the CWA. Section 306(b) gives the EPA authority to regulate the amount of pollutants that certain categories of new sources may discharge into the navigable waters of the United States. 33 U. S. C. §1316(b). Pursuant to this authority, the EPA in 1982 promulgated a new source performance standard restricting discharges from new froth-flotation gold mines like Coeur Alaska’s. The standard is stringent: It allows “no discharge of process wastewater” from these mines. 40 CFR §440.104(b)(1). Applying that standard to the discharge of water from Lower Slate Lake into the downstream creek, the EPA’s §402 permit sets strict limits on the amount of pollutants the water may contain. The permit requires Coeur Alaska to treat the water using “reverse osmosis” to remove aluminum, suspended solids, and other pollutants. App. 298a; id., at 304a. Coeur Alaska must monitor the water flowing from the lake to be sure that the pollutants are kept to low, specified minimums. Id., at 326a–330a. C SEACC brought suit against the Corps of Engineers and various of its officials in the United States District Court for the District of Alaska. The Corps permit was not in accordance with law, SEACC argued, for two reasons. First, in SEACC’s view, the permit was issued by the wrong agency—Coeur Alaska ought to have sought a §402 permit from the EPA, just as the company did for the discharge of water from the lake into the downstream creek. See Part I–B–2, supra. Second, SEACC contended that regardless of which agency issued the permit, the discharge itself is unlawful because it will violate the EPA new source performance standard for froth-flotation gold mines. (This is the same performance standard described above, which the EPA has already applied to the discharge of water from the lake into the downstream creek. See ibid.) SEACC argued that this performance standard also applies to the discharge of slurry into the lake. It contended further that the performance standard is a binding implementation of §306. Section 306(e) of the CWA makes it “unlawful” for Coeur Alaska to “operate” the mine “in violation of” the EPA’s performance standard. 33 U. S. C. §1316(e). Coeur Alaska and the State of Alaska intervened as defendants. Both sides moved for summary judgment. The District Court granted summary judgment in favor of the defendants. The Court of Appeals for the Ninth Circuit reversed and ordered the District Court to vacate the Corps of Engineers’ permit. Southeast Alaska Conservation Council v. United States Army Corps of Engs., 486 F. 3d 638, 654–655 (2007). The court acknowledged that Coeur Alaska’s slurry “facially meets the Corps’ current regulatory definition of ‘fill material,’ ” id., at 644, because it would have the effect of raising the lake’s bottom elevation. But the court also noted that the EPA’s new source performance standard “prohibits discharges from froth-flotation mills.” Ibid. The Court of Appeals concluded that “[b]oth of the regulations appear to apply in this case, yet they are at odds.” Ibid. To resolve the conflict, the court turned to what it viewed as “the plain language of the Clean Water Act.” Ibid. The court held that the EPA’s new source performance standard “applies to discharges from the froth-flotation mill at Coeur Alaska’s Kensington Gold Mine into Lower Slate Lake.” Ibid. In addition to the text of the CWA, the Court of Appeals also relied on the agencies’ statements made when promulgating their current and prior definitions of “fill material.” These statements, in the Court of Appeals’ view, demonstrated the agencies’ intent that the EPA’s new source performance standard govern discharges like Coeur Alaska’s. Id., at 648–654. The Court of Appeals concluded that Coeur Alaska required a §402 permit for its slurry discharge, that the Corps lacked authority to issue such a permit under §404, and that the proposed discharge was unlawful because it would violate the EPA new source performance standard and §306(e). The decision of the Court of Appeals in effect reallocated the division of responsibility that the Corps and the EPA had been following. The Court granted certiorari. 554 U. S. ___ (2008). We now hold that the decision of the Court of Appeals was incorrect. II The question of which agency has authority to consider whether to permit the slurry discharge is our beginning inquiry. We consider first the authority of the EPA and second the authority of the Corps. Our conclusion is that under the CWA the Corps had authority to determine whether Coeur Alaska was entitled to the permit governing this discharge. A Section 402 gives the EPA authority to issue “permit[s] for the discharge of any pollutant,” with one important exception: The EPA may not issue permits for fill material that fall under the Corps’ §404 permitting authority. Section 402(a) states: “Except as provided in … [CWA §404, 33 U. S. C. §1344], the Administrator may . . . issue a permit for the discharge of any pollutant, … notwithstanding [CWA §301(a), 33 U. S. C. §1311(a)], upon condition that such discharge will meet either (A) all applicable requirements under [CWA §301, 33 U. S. C. §1311(a); CWA §302, 33 U. S. C. §1312; CWA §306, 33 U. S. C. §1316; CWA §307, 33 U. S. C. §1317; CWA §308, 33 U. S. C. §1318; CWA §403, 33 U. S. C. §1343], or (B) prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter.” 33 U. S. C. §1342(a)(1) (emphasis added). Section 402 thus forbids the EPA from exercising permitting authority that is “provided [to the Corps] in” §404. This is not to say the EPA has no role with respect to the environmental consequences of fill. The EPA’s function is different, in regulating fill, from its function in regulating other pollutants, but the agency does exercise some authority. Section 404 assigns the EPA two tasks in regard to fill material. First, the EPA must write guidelines for the Corps to follow in determining whether to permit a discharge of fill material. CWA §404(b); 33 U. S. C. §1344(b). Second, the Act gives the EPA authority to “prohibit” any decision by the Corps to issue a permit for a particular disposal site. CWA §404(c); 33 U. S. C. §1344(c). We, and the parties, refer to this as the EPA’s power to veto a permit. The Act is best understood to provide that if the Corps has authority to issue a permit for a discharge under §404, then the EPA lacks authority to do so under §402. Even if there were ambiguity on this point, the EPA’s own regulations would resolve it. Those regulations provide that “[d]ischarges of dredged or fill material into waters of the United States which are regulated under section 404 of CWA” “do not require [§402] permits” from the EPA. 40 CFR §122.3. In SEACC’s view, this regulation implies that some “fill material” discharges are not regulated under §404—else, SEACC asks, why would the regulation lack a comma before the word “which,” and thereby imply that only a subset of “discharges of … fill material” are “regulated under section 404.” Ibid. The agencies, however, have interpreted this regulation otherwise. In the agencies’ view the regulation essentially restates the text of §402, and forbids the EPA from issuing permits for discharges that “are regulated under section 404.” 40 CFR §122.3(b); cf. CWA §402(a) (“[e]xcept as provided in … [§404], the Administrator may . . . issue a permit”). Before us, the EPA confirms this reading of the regulation. Brief for Federal Respondents 27. The agency’s interpretation is not “plainly erroneous or inconsistent with the regulation”; and so we accept it as correct. Auer v. Robbins, 519 U. S. 452, 461 (1997) (internal quotation marks omitted). The question whether the EPA is the proper agency to regulate the slurry discharge thus depends on whether the Corps of Engineers has authority to do so. If the Corps has authority to issue a permit, then the EPA may not do so. We turn to the Corps’ authority under §404. B Section 404(a) gives the Corps power to “issue permits … for the discharge of dredged or fill material.” 33 U. S. C. §1344(a). As all parties concede, the slurry meets the definition of fill material agreed upon by the agencies in a joint regulation promulgated in 2002. That regulation defines “fill material” to mean any “material [that] has the effect of … [c]hanging the bottom elevation” of water—a definition that includes “slurry, or tailings or similar mining-related materials.” 40 CFR §232.2. SEACC concedes that the slurry to be discharged meets the regulation’s definition of fill material. Brief for Respondent SEACC et al. 20. Its concession on this point is appropriate because slurry falls well within the central understanding of the term “fill,” as shown by the examples given by the regulation. See 40 CFR §232.2 (“Examples of such fill material include, but are not limited to: rock, sand, soil, clay … .”). The regulation further excludes “trash or garbage” from its definition. Ibid. SEACC expresses a concern that Coeur Alaska’s interpretation of the statute will lead to §404 permits authorizing the discharges of other solids that are now restricted by EPA standards. Brief for Respondent SEACC et al. 44–45 (listing, for example, “feces and uneaten feed,” “ litter, ” and waste produced in “battery manufacturing”). But these extreme instances are not presented by the cases now before us. If, in a future case, a discharger of one of these solids were to seek a §404 permit, the dispositive question for the agencies would be whether the solid at issue—for instance, “feces and uneaten feed”—came within the regulation’s definition of “fill.” SEACC cites no instance in which the agencies have so interpreted their fill regulation. If that instance did arise, and the agencies were to interpret the fill regulation as SEACC fears, then SEACC could challenge that decision as an unlawful interpretation of the fill regulation; or SEACC could claim that the fill regulation as interpreted is an unreasonable interpretation of §404. The difficulties are not presented here, however, because the slurry meets the regulation’s definition of fill. Rather than challenge the agencies’ decision to define the slurry as fill, SEACC instead contends that §404 contains an implicit exception. According to SEACC, §404 does not authorize the Corps to permit a discharge of fill material if that material is subject to an EPA new source performance standard. But §404’s text does not limit its grant of power in this way. Instead, §404 refers to all “fill material” without qualification. Nor do the EPA regulations support SEACC’s reading of §404. The EPA has enacted guidelines, pursuant to §404(b), to guide the Corps permitting decision. 40 CFR pt. 230. Those guidelines do not strip the Corps of power to issue permits for fill in cases where the fill is also subject to an EPA new source performance standard. SEACC’s reading of §404 would create numerous difficulties for the regulated industry. As the regulatory regime stands now, a discharger must ask a simple question—is the substance to be discharged fill material or not? The fill regulation, 40 CFR §232.2, offers a clear answer to that question; and under the agencies’ view, that answer decides the matter—if the discharge is fill, the discharger must seek a §404 permit from the Corps; if not, only then must the discharger consider whether any EPA performance standard applies, so that the discharger requires a §402 permit from the EPA. Under SEACC’s interpretation, however, the discharger would face a more difficult problem. The discharger would have to ask—is the fill material also subject to one of the many hundreds of EPA performance standards, so that the permit must come from the EPA, not the Corps? The statute gives no indication that Congress intended to burden industry with that confusing division of permit authority. The regulatory scheme discloses a defined, and workable, line for determining whether the Corps or the EPA has the permit authority. Under this framework, the Corps of Engineers, and not the EPA, has authority to permit Coeur Alaska’s discharge of the slurry. III A second question remains: In issuing the permit did the Corps act in violation of a statutory mandate so that the issuance was “not in accordance with law”? 5 U. S. C. §706(2)(A). SEACC contends that the slurry discharge will violate the EPA’s new source performance standard and that the Corps permit is made “unlawful” by CWA §306(e). Petitioners and the agencies argue that the permit is lawful because the EPA performance standard, and §306(e), do not apply to fill material regulated by the Corps. In order to determine whether the Corps permit is lawful we must answer the question: Do EPA performance standards, and §306(e), apply to discharges of fill material? We address in turn the statutory text of the CWA, the agencies’ regulations construing it, and the EPA’s subsequent interpretation of those regulations. Because Congress has not “directly spoken” to the “precise question” of whether an EPA performance standard applies to discharges of fill material, the statute alone does not resolve the case. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984). We look first to the agency regulations, which are entitled to deference if they resolve the ambiguity in a reasonable manner. Ibid.; see United States v. Mead Corp., 533 U. S. 218, 226–227 (2001). But the regulations, too, are ambiguous, so we next turn to the agencies’ subsequent interpretation of those regulations. Id., at 234–238; Auer, 519 U. S., at 461. In an internal memorandum the EPA explained that its performance standards do not apply to discharges of fill material. That interpretation is not “plainly erroneous or inconsistent with the regulation[s],” and so we accept it as correct. Ibid. (internal quotation marks omitted). Though SEACC contends that the agencies’ interpretation is not entitled to deference because it contradicts the agencies’ published statements and prior practice, we disagree with SEACC’s reading of those statements and of the regulatory record. A As for the statutory argument, SEACC claims the CWA §404 permit is unlawful because §306(e) forbids the slurry discharge. Petitioners and the federal agencies, in contrast, contend that §306(e) does not apply to the slurry discharge. 1 To address SEACC’s statutory argument, it is necessary to review the EPA’s responsibilities under the CWA. As noted, §306 empowers the EPA to regulate the froth-flotation gold mining industry. See 33 U. S. C. §1316(b). Pursuant to this authority, EPA promulgated the new source performance standard relied upon by SEACC. The standard is stringent. If it were to apply here, it would allow “no discharge of process wastewater” from the mine. 40 CFR §440.104(b)(1). The term “process wastewater” includes solid waste. So the regulation forbids not only pollutants that dissolve in water but also solid pollutants suspended in water—what the agency terms “total suspended solids,” or TSS. See §440.104(a) (limiting the amount of TSS from other kinds of mines); see also EPA Development Document for Effluent Limitations Guidelines and Standards for the Ore Mining and Dressing Point Source Category 157–158 (Nov. 1982) (the amount of TSS in “wastewater” from froth-flotation mines is “generally high”); id., at 175 (Table VI–6) (measuring the amounts of TSS in samples of froth-flotation mines’ discharges); id., at 194 (stating an intent to “regulat[e]” TSS); id., at 402 (evaluating the costs of constructing a “settling pond”); id., at 535 (concluding that even in mountainous regions, a froth-flotation mine will be able to construct a “tailings impoundment” to “provide a disposal area for mill tailings”). Were there any doubt about whether the EPA’s new source performance standard forbade solids as well as soluble pollutants, the agency’s action in these cases would resolve it. Here, the EPA’s §402 permit authorizes Coeur Alaska to discharge water from Lower Slate Lake into a downstream creek, provided the water meets the quality requirements set by the performance standard. This demonstrates that the performance standard regulates solid waste. The EPA’s permit not only restricts the amount of total suspended solids, App. 327a (Table 3), but also forbids the mine from allowing any “floating solids” to flow from the lake. Id., at 328a. No party disputes the EPA’s authority to regulate these discharges of solid mining waste; and no party questions the validity of the EPA’s new source performance standard when it is applicable. When the performance standard applies to a point source, §306(e) makes it “unlawful” for that point source to violate it: “[I]t shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.” CWA §306(e), 33 U. S. C. §1316(e). SEACC argues that this provision, §306(e), forbids the mine from discharging slurry into Lower Slate Lake. SEACC contends the new source performance standard is, in the words of §306(e), “applicable to” the mine. Both the text of the performance standard and the EPA’s application of it to the discharge of mining waste from Lower Slate Lake demonstrate that the performance standard is “applicable to” Coeur Alaska’s mine in some circumstances. And so, SEACC reasons, it follows that because the new source performance standard forbids even minute discharges of solid waste, it also forbids the slurry discharge, 30% of which is solid waste. 2 For their part, the State of Alaska and the federal agencies claim that the Act is unambiguous in the opposite direction. They rely on §404 of the Act. As explained above, that section authorizes the Corps of Engineers to determine whether to issue a permit allowing the discharge of the slurry. Petitioners and the agencies argue that §404 grants the Corps authority to do so without regard to the EPA’s new source performance standard or the §306(e) prohibition discussed above. Petitioners and the agencies make two statutory arguments based on §404’s silence in regard to §306. First, they note that nothing in §404 requires the Corps to consider the EPA’s new source performance standard or the §306(e) prohibition. That silence advances the argument that §404’s grant of authority to “issue permits” contradicts §306(e)’s declaration that discharges in violation of new source performance standards are “unlawful.” Second, petitioners and the agencies point to §404(p), which protects §404 permitees from enforcement actions by the EPA or private citizens: “Compliance with a permit issued pursuant to this section … shall be deemed compliance, for purposes of sections 1319 [CWA §309] and 1365 [CWA §505] of this title, with sections 1311 [CWA §301], 1317 [CWA §307], and 1343 [CWA §403] of this title.” 33 U. S. C. §1344(p). Here again, their argument is that silence is significant. Section 404(p) protects the permitee from lawsuits alleging violations of CWA §301 (which bars the discharge of “any pollutant” “except as in compliance” with the Act), §307 (which bars the discharge of “toxic pollutants”); and §403 (which bars discharges into the sea). But §404(p) does not in express terms protect the permitee from a lawsuit alleging a violation of §306(e) or of the EPA’s new source performance standards. Section 404(p)’s silence regarding §306 is made even more significant because a parallel provision in §402 does protect a §402 permitee from an enforcement action alleging a violation of §306. CWA §402(k), 33 U. S. C. §1342(k). In our view, Congress’ omission of §306 from §404, and its inclusion of §306 in §402(k), is evidence that Congress did not intend §306(e) to apply to Corps §404 permits or to discharges of fill material. If §306 did apply, then the Corps would be required to evaluate each permit application for compliance with §306, and issue a permit only if it found the discharge would comply with §306. But even if that finding were made, it is not clear that the §404 permitee would be protected from a suit seeking a judicial determination that the discharge violates §306. 3 The CWA is ambiguous on the question whether §306 applies to discharges of fill material regulated under §404. On the one hand, §306 provides that a discharge that violates an EPA new source performance standard is “unlawful”—without any exception for fill material. On the other hand, §404 grants the Corps blanket authority to permit the discharge of fill material—without any mention of §306. This tension indicates that Congress has not “directly spoken” to the “precise question” of whether §306 applies to discharges of fill material. Chevron, 467 U. S., at 842. B Before turning to how the agencies have resolved that question, we consider the formal regulations that bear on §§306 and 404. See Mead, 533 U. S., at 234–238. The regulations, like the statutes, do not address the question whether §306, and the EPA new source performance standards promulgated under it, apply to §404 permits and the discharges they authorize. There is no regulation, for example, interpreting §306(e)’s text—“standard of performance applicable to such source”—to mean that a performance standard ceases to be “applicable” the moment the discharge qualifies as fill material, which would resolve the cases in petitioners’ favor. Nor is there a regulation providing that the Corps, in deciding whether to grant a permit under §404, must deny that permit if the discharge would violate §306(e), which would decide the cases for SEACC. Rather than address the tension between §§306 and 404, the regulations instead implement the statutory framework without elaboration on this point. Each of the two principal regulations, which have been mentioned above, seems to stand on its own without reference to the other. The EPA’s new source performance standard contains no exception for fill material; and it forbids any discharge of “process wastewater,” a term that includes solid wastes. 40 CFR §440.104(b)(1); see Part III–A–1, supra. The agencies’ joint regulation defining fill material is also unqualified. It includes “slurry, or tailings or similar mining-related materials” in its definition of a “discharge of fill material,” 40 CFR §232.2; and it contains no exception for slurry that is regulated by an EPA performance standard. The parties point to additional regulations, but these provisions do not offer a clear basis of reconciliation. An EPA regulation, mentioned above, provides that “[d]ischarges of dredged or fill material into waters of the United States which are regulated under section 404 of CWA” “do not require [§402] permits” from the EPA. §122.3. As we have explained, however, this merely states that a permit for this discharge cannot be issued by the EPA. See Part II, supra. The regulation does not answer the question whether the EPA’s new source performance standard, and §306(e), apply to a discharge regulated by the Corps under §404. The agencies also direct us to the §404(b) guidelines written by the EPA to guide the Corps permitting decision. See 40 CFR pt. 230. The agencies note that these guidelines do not expressly require the Corps, in issuing a permit, to consider whether the discharge would violate EPA’s performance standards. Here we think failure to mention §306 or the EPA new source performance standards does offer some indication that these are not relevant to the §404 permit, though the argument falls short of being conclusive. The Corps’ own regulations require the agency to evaluate permit applications “for compliance with applicable [EPA] effluent limitations.” 33 CFR §320.4(d) (2008). The regulations do not answer whether the new source performance standard is “applicable” to a discharge of fill material. C The regulations do not give a definitive answer to the question whether §306 applies to discharges regulated by the Corps under §404, but we do find that agency interpretation and agency application of the regulations are instructive and to the point. Auer, 519 U. S., at 461. The question is addressed and resolved in a reasonable and coherent way by the practice and policy of the two agencies, all as recited in a memorandum written in May 2004 by Diane Regas, then the Director of the EPA’s Office of Wetlands, Oceans and Watersheds, to Randy Smith, the Director of the EPA’s regional Office of Water with responsibility over the mine. App. 141a–149a (Regas Memorandum). The Memorandum, though not subject to sufficiently formal procedures to merit Chevron deference, see Mead, supra, at 234–238, is entitled to a measure of deference because it interprets the agencies’ own regulatory scheme. See Auer, supra, at 461. The Regas Memorandum explains: “As a result [of the fact that the discharge is regulated under §404], the regulatory regime applicable to discharges under section 402, including effluent limitations guidelines and standards, such as those applicable to gold ore mining … do not apply to the placement of tailings into the proposed impoundment [of Lower Slate Lake]. See 40 CFR §122.3(b).” App. 144a–145a. The regulation that the Memorandum cites—40 CFR §122.3—is one we considered above and found ambiguous. That regulation provides: “[d]ischarges of dredged or fill material into waters of the United States which are regulated under section 404 of CWA” “do not require [§402] permits.” The Regas Memorandum takes an instructive interpretive step when it explains that because the discharge “do[es] not require” an EPA permit, ibid., the EPA’s performance standard “do[es] not apply” to the discharge. App. 145a. The Memorandum presents a reasonable interpretation of the regulatory regime. We defer to the interpretation because it is not “plainly erroneous or inconsistent with the regulation[s].” Auer, supra, at 461 (internal quotation marks omitted). Five factors inform that conclusion. First, the Memorandum preserves a role for the EPA’s performance standard. It confines the Memorandum’s scope to closed bodies of water, like the lake here. App. 142a–143a, n. 1. When slurry is discharged into a closed body of water, the Memorandum explains, the EPA’s performance standard retains an important role in regulating the discharge into surrounding waters. The Memorandum does not purport to invalidate the EPA’s performance standard. Second, the Memorandum acknowledges that this is not an instance in which the discharger attempts to evade the requirements of the EPA’s performance standard. The Kensington Mine is not, for example, a project that smuggles a discharge of EPA-regulated pollutants into a separate discharge of Corps-regulated fill material. The instant cases do not present a process or plan designed to manipulate the outer boundaries of the definition of “fill material” by labeling minute quantities of EPA-regulated solids as fill. The Memorandum states that when a discharge has only an “incidental filling effect,” the EPA’s performance standard continues to govern that discharge. Id., at 145a. Third, the Memorandum’s interpretation preserves the Corps’ authority to determine whether a discharge is in the public interest. See 33 CFR §320.4(a)(1); 40 CFR §230.10. The Corps has significant expertise in making this determination. Applying it, the Corps determined that placing slurry in the lake will improve that body of water by making it wider, shallower, and so more capable of sustaining aquatic life. The Corps determined, furthermore, that the alternative—a heap of tailings larger than the Pentagon placed upon wetlands—would cause more harm to the environment. Because the Memorandum preserves an important role for the Corps’ expertise, its conclusion that the EPA’s performance standard does not apply is a reasonable one. Fourth, the Regas Memorandum’s interpretation does not allow toxic pollutants (as distinguished from other, less dangerous pollutants, such as slurry) to enter the navigable waters. The EPA has regulated toxic pollutants under a separate provision, §307 of the CWA, and the EPA’s §404(b) guidelines require the Corps to deny a §404 permit for any discharge that would violate the EPA’s §307 toxic-effluent limitations. 40 CFR §230.10(b)(2). Fifth, as a final reason to defer to the Regas Memorandum, we find it a sensible and rational construction that reconciles §§306, 402, and 404, and the regulations implementing them, which the alternatives put forward by the parties do not. SEACC’s argument, that §402 applies to this discharge and not §404, is not consistent with the statute and regulations, as already noted. See Part II, supra. The Court requested the parties to submit supplemental briefs addressing whether the CWA contemplated that both agencies would issue a permit for a discharge. 556 U. S. ___ (2009). A two-permit regime would allow the EPA to apply its performance standard, while the Corps could apply its §404(b) criteria. The parties agree, however, that a two-permit regime is contrary to the statute and the regulations. We conclude that this is correct. A two-permit regime would cause confusion, delay, expense, and uncertainty in the permitting process. In agreement with all of the parties, we conclude that, when a permit is required to discharge fill material, either a §402 or a §404 permit is necessary. Here, we now hold, §404 applies, not §402. See Part II, supra. The Regas Memorandum’s interpretation of the agencies’ regulations is consistent with the regulatory scheme as a whole. The Memorandum preserves a role for the EPA’s performance standards; it guards against the possibility of evasion of those standards; it employs the Corps’ expertise in evaluating the effects of fill material on the aquatic environment; it does not allow toxic pollutants to be discharged; and we have been offered no better way to harmonize the regulations. We defer to the EPA’s conclusion that its performance standard does not apply to the initial discharge of slurry into the lake but applies only to the later discharge of water from the lake into the downstream creek. D SEACC argues against deference to the Regas Memorandum. In its view the Regas Memorandum is contrary to published agency statements and earlier agency practice. SEACC cites three agency statements: A 1986 “memorandum of understanding” between the EPA and the Corps regarding the definition of fill material; the preamble to the agencies’ current 2002 fill regulation; and comments made by the agencies in promulgating the 2002 fill regulation. These arguments are not convincing. 1 In 1986, to reconcile their then-differing definitions of “fill material,” the EPA and the Corps issued a “memorandum of agreement.” 51 Fed. Reg. 8871 (MOA). The memorandum was not made subject to notice-and-comment procedures, but it was published in the Federal Register. It defined the statutory term “fill material” until the current definition took effect in 2002. Brief for Federal Respondents 30–31, n. 8. SEACC points to paragraph B(5) of the MOA, which reads: “[A] pollutant (other than dredged material) will normally be considered by EPA and the Corps to be subject to section 402 if it is a discharge in liquid, semi-liquid, or suspended form or if it is a discharge of solid material of a homogeneous nature normally associated with single industry wastes . . . . These materials include placer mining wastes, phosphate mining wastes, titanium mining wastes, sand and gravel wastes, fly ash, and drilling muds. As appropriate, EPA and the Corps will identify additional such materials.” 51 Fed. Reg. 8872. It is true, as SEACC notes, that this passage suggests that §402 will “normally” apply to discharges of “suspended”—i.e., solid—pollutants. But that statement is not contrary to the Regas Memorandum, which acknowledges that the EPA retains authority under §402 to regulate the discharge of suspended solids from Lower Slate Lake into downstream waters. This passage does not address the question presented by these cases, and answered by the Regas Memorandum, as to whether the EPA’s performance standard applies when the discharge qualifies as fill material. In fact, the MOA’s preamble suggests that when a discharge qualifies as “fill material,” the Corps retains authority to regulate it under §404: “Discharges listed in the Corps definition of ‘discharge of fill material,’ … remain subject to section 404 even if they occur in association with discharges of wastes meeting the criteria in the agreement for section 402 discharges.” Id., at 8871. The MOA is quite consistent with the agencies’ determination that the Corps regulates all discharges of fill material and that §306 does not apply to these discharges. 2 SEACC draws our attention to the preamble of the current fill material regulation. 67 Fed. Reg. 31129 (2002) (final rule). It cites the opening passages of the preamble, which state: “[T]oday’s rule is generally consistent with current agency practice and so it does not expand the types of discharges that will be covered under section 404.” Id., at 31133. In SEACC’s view, this passage demonstrates that the fill rule was not intended to displace the pre-existing froth-flotation gold mine performance standard, which has been on the books since 1982. The preamble goes on to say, in a section entitled “Effluent Guideline Limitations and 402 Permits”: “[W]e emphasize that today’s rule generally is intended to maintain our existing approach to regulating pollutants under either section 402 or 404 of the CWA. Effluent limitation guidelines and new source performance standards (‘effluent guidelines’) promulgated under section 304 and 306 of the CWA establish limitations and standards for specified wastestreams from industrial categories, and those limitations and standards are incorporated into permits issued under section 402 of the Act. EPA has never sought to regulate fill material under effluent guidelines. Rather, effluent guidelines restrict discharges of pollutants from identified wastestreams based upon the pollutant reduction capabilities of available treatment technologies. Recognizing that some discharges (such as suspended or settleable solids) can have the associated effect, over time, of raising the bottom elevation of a water due to settling of waterborne pollutants, we do not consider such pollutants to be ‘fill material,’ and nothing in today’s rule changes that view. Nor does today’s rule change any determination we have made regarding discharges that are subject to an effluent limitation guideline and standards, which will continue to be regulated under section 402 of the CWA. Similarly, this rule does not alter the manner in which water quality standards currently apply under the section 402 or the section 404 programs.” Id., at 31135. Although the preamble asserts it does not change agency policy with regard to EPA performance standards and §402 permitting decisions, it is explicit in noting that the EPA has “never sought to regulate fill material under effluent guidelines.” Ibid. The preamble, then, is consistent with the Regas Memorandum. If a discharge does not qualify as fill material, the EPA’s new source performance standard applies. If the discharge qualifies as fill, the performance standard does not apply; and there was no earlier agency practice or policy to the contrary. 3 SEACC also cites remarks made by the agencies in response to public comments on the proposed fill material regulation. App. 22a–127a. These remarks were incorporated by reference into the administrative record. 67 Fed. Reg. 31131. Responding to a question about whether “mine tailings” would be “subject to section 404 regulation as opposed to section 402” under the 2002 fill regulation, the agencies stated: “Today’s final rule clarifies that any material that has the effect of fill is regulated under section 404 and further that the placement of ‘overburden, slurry, or tailings or similar mining-related materials’ is considered a discharge of fill material. Nevertheless, if EPA has previously determined that certain materials are subject to an [effluent limitation guideline] under specific circumstances, then that determination remains valid. Moreover, … permits issued pursuant to section 402 are intended to regulate process water and provide effluent limits that are protective of receiving water quality. This distinction provides the framework for today’s rule.” App. 48a. This statement is not conclusive of the issue. SEACC notes that this response, like the regulation’s preamble, pledges that EPA’s “previou[s] … determination[s]” with regard to the application of performance standards “remai[n] valid.” But, as noted above, the Regas Memorandum has followed this policy by applying the EPA’s performance standard to the discharge of water from the lake into the downstream creek. The response does not state that the EPA will apply its performance standards to discharges of fill material. 4 The agencies’ published statements indicate adherence to the EPA’s previous application and interpretation of its performance standards. SEACC cannot show that the agencies have changed their interpretation or application of their regulations. SEACC cites no instance in which the EPA has applied one of its performance standards to a discharge of fill material. By contrast, Coeur Alaska cites two instances in which the Corps issued a §404 permit authorizing a mine to discharge solid waste (tailings) as fill material. See Brief for Petitioner Coeur Alaska 40–42. SEACC objects that those two §404 permits authorized discharges that used the tailings to construct useful structures—a dam in one case, a tailings pond in another. Here, by contrast, SEACC contends that the primary purpose of the discharge is to use a navigable water to dispose of waste. Ibid. But that objection misses the point. The two §404 permits cited by Coeur Alaska illustrate that the agencies did not have a prior practice of applying EPA performance standards to discharges of mining wastes that qualify as fill material. SEACC has not demonstrated that the agencies have changed their policy, and it cannot show that the Regas Memorandum is contrary to the agencies’ published statements. * * * We accord deference to the agencies’ reasonable decision to continue their prior practice. The judgment of the Court of Appeals is reversed, and these cases are remanded for further proceedings consistent with this opinion. It is so ordered. |
556.US.2008_07-1114 | After the State discredited petitioner Cone’s defense that he killed two people while suffering from acute psychosis caused by drug addiction, he was convicted and sentenced to death. The Tennessee Supreme Court affirmed on direct appeal and the state courts denied postconviction relief. Later, in a second petition for state postconviction relief, Cone raised the claim that the State had violated Brady v. Maryland, 373 U. S. 83, by suppressing witness statements and police reports that would have corroborated his insanity defense and bolstered his case in mitigation of the death penalty. The postconviction court denied him a hearing on the ground that the Brady claim had been previously determined, either on direct appeal or in earlier collateral proceedings. The State Court of Criminal Appeals affirmed. Cone then filed a petition for a writ of habeas corpus in Federal District Court. That Court denied relief, holding the Brady claim procedurally barred because the state courts’ disposition rested on adequate and independent state grounds: Cone had waived it by failing to present his claim in state court. Even if he had not defaulted the claim, ruled the court, it would fail on its merits because none of the withheld evidence would have cast doubt on his guilt. The Sixth Circuit agreed with the latter conclusion, but considered itself barred from reaching the claim’s merits because the state courts had ruled the claim previously determined or waived under state law. Held: 1. The state courts’ rejection of Cone’s Brady claim does not rest on a ground that bars federal review. Neither of the State’s asserted justifications for such a bar—that the claim was decided by the State Supreme Court on direct review or that Cone had waived it by never properly raising it in state court—provides an independent and adequate state ground for denying review of Cone’s federal claim. The state postconviction court’s denial of the Brady claim on the ground it had been previously determined in state court rested on a false premise: Cone had not presented the claim in earlier proceedings and, consequently, the state courts had not passed on it. The Sixth Circuit’s rejection of the claim as procedurally defaulted because it had been twice presented to the Tennessee courts was thus erroneous. Also unpersuasive is the State’s alternative argument that federal review is barred because the Brady claim was properly dismissed by the state postconviction courts as waived. Those courts held only that the claim had been previously determined, and this Court will not second-guess their judgment. Because the claim was properly preserved and exhausted in state court, it is not defaulted. Pp. 15–19. 2. The lower federal courts failed to adequately consider whether the withheld documents were material to Cone’s sentence. Both the quantity and quality of the suppressed evidence lend support to Cone’s trial position that he habitually used excessive amounts of drugs, that his addiction affected his behavior during the murders, and that the State’s contrary arguments were false and misleading. Nevertheless, even when viewed in the light most favorable to Cone, the evidence does not sustain his insanity defense: His behavior before, during, and after the crimes was inconsistent with the contention that he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform it to the requirements of law. Because the likelihood that the suppressed evidence would have affected the jury’s verdict on the insanity issue is remote, the Sixth Circuit did not err by denying habeas relief on the ground that such evidence was immaterial to the jury’s guilt finding. The same cannot be said of that court’s summary treatment of Cone’s claim that the suppressed evidence would have influenced the jury’s sentencing recommendation. Because the suppressed evidence might have been material to the jury’s assessment of the proper punishment, a full review of that evidence and its effect on the sentencing verdict is warranted. Pp. 20–26. 492 F. 3d 743, vacated and remanded. Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed an opinion concurring in the judgment. Alito, J., filed an opinion concurring in part and dissenting in part. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined. | The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent with their sovereign obligation to ensure “that ‘justice shall be done’ ” in all criminal prosecutions. United States v. Agurs, 427 U. S. 97, 111 (1976) (quoting Berger v. United States, 295 U. S. 78, 88 (1935)). In Brady v. Maryland, 373 U. S. 83 (1963), we held that when a State suppresses evidence favorable to an accused that is material to guilt or to punishment, the State violates the defendant’s right to due process, “irrespective of the good faith or bad faith of the prosecution.” Id., at 87. In this case, Gary Cone, a Vietnam veteran sentenced to death, contends that the State of Tennessee violated his right to due process by suppressing witness statements and police reports that would have corroborated his trial defense and bolstered his case in mitigation of the death penalty. At his trial in 1982, Cone asserted an insanity defense, contending that he had killed two people while suffering from acute amphetamine psychosis, a disorder caused by drug addiction. The State of Tennessee discredited that defense, alleging that Cone’s drug addiction was “baloney.” Ten years later, Cone learned that the State had suppressed evidence supporting his claim of drug addiction. Cone presented his new evidence to the state courts in a petition for postconviction relief, but the Tennessee courts denied him a hearing on the ground that his Brady claim had been “previously determined,” either on direct appeal from his conviction or in earlier collateral proceedings. On application for a writ of habeas corpus pursuant to 28 U. S. C. §2254, the Federal District Court concluded that the state courts’ disposition rested on an adequate and independent state ground that barred further review in federal court, and the Court of Appeals for the Sixth Circuit agreed. Doubt concerning the correctness of that holding, coupled with conflicting decisions from other Courts of Appeals, prompted our grant of certiorari. After a complete review of the trial and postconviction proceedings, we conclude that the Tennessee courts’ rejection of petitioner’s Brady claim does not rest on a ground that bars federal review. Furthermore, although the District Court and the Court of Appeals passed briefly on the merits of Cone’s claim, neither court distinguished the materiality of the suppressed evidence with respect to Cone’s guilt from the materiality of the evidence with respect to his punishment. While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state, the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence. Therefore, we vacate the decision of the Court of Appeals and remand the case to the District Court to determine in the first instance whether there is a reasonable probability that the withheld evidence would have altered at least one juror’s assessment of the appropriate penalty for Cone’s crimes. I On the afternoon of Saturday, August 10, 1980, Cone robbed a jewelry store in downtown Memphis, Tennessee. Fleeing the scene by car, he led police on a high-speed chase into a residential neighborhood. Once there, he abandoned his vehicle and shot a police officer.[Footnote 1] When a bystander tried to impede his escape, Cone shot him, too, before escaping on foot. A short time later, Cone tried to hijack a nearby car. When that attempt failed (because the driver refused to surrender his keys), Cone tried to shoot the driver and a hovering police helicopter before realizing he had run out of ammunition. He then fled the scene. Although police conducted a thorough search, Cone was nowhere to be found. Early the next morning, Cone reappeared in the same neighborhood at the door of an elderly woman. He asked to use her telephone, and when she refused, he drew a gun. Before he was able to gain entry, the woman slammed the door and called the police. By the time officers arrived, however, Cone had once again disappeared. That afternoon, Cone gained entry to the home of 93-year-old Shipley Todd and his wife, 79-year-old Cleopatra Todd. Cone beat the couple to death with a blunt instrument and ransacked the first floor of their home. Later, he shaved his beard and escaped to the airport without being caught. Cone then traveled to Florida, where he was arrested several days later after robbing a drugstore in Pompano Beach. A Tennessee grand jury charged Cone with two counts of first-degree murder, two counts of murder in the perpetration of a burglary, three counts of assault with intent to murder, and one count of robbery by use of deadly force. At his jury trial in 1982, Cone did not challenge the overwhelming physical and testimonial evidence supporting the charges against him. His sole defense was that he was not guilty by reason of insanity. Cone’s counsel portrayed his client as suffering from severe drug addiction attributable to trauma Cone had experienced in Vietnam. Counsel argued that Cone had committed his crimes while suffering from chronic amphetamine psychosis, a disorder brought about by his drug abuse. That defense was supported by the testimony of three witnesses. First was Cone’s mother, who described her son as an honorably discharged Vietnam veteran who had changed following his return from service. She recalled Cone describing “how terrible” it had been to handle the bodies of dead soldiers, and she explained that Cone slept restlessly and sometimes “holler[ed]” in his sleep. Tr. 1643–1645 (Apr. 20, 1982). She also described one occasion, following Cone’s return from service, when a package was shipped to him that contained marijuana. Before the war, she asserted, Cone had not used drugs of any kind. Two expert witnesses testified on Cone’s behalf. Matthew Jaremko, a clinical psychologist, testified that Cone suffered from substance abuse and posttraumatic stress disorders related to his military service in Vietnam. Jaremko testified that Cone had expressed remorse for the murders, and he opined that Cone’s mental disorder rendered him substantially incapable of conforming his conduct to the law. Jonathan Lipman, a neuropharmacologist, recounted at length Cone’s history of illicit drug use, which began after Cone joined the Army and escalated to the point where Cone was consuming “rather horrific” quantities of drugs daily. App. 100. According to Lipman, Cone’s drug abuse had led to chronic amphetamine psychosis, a disorder manifested through hallucinations and ongoing paranoia that prevented Cone from obeying the law and appreciating the wrongfulness of his actions. In rebutting Cone’s insanity defense the State’s strategy throughout trial was to present Cone as a calculating, intelligent criminal who was fully in control of his decisions and actions at the time of the crimes. A key component of that strategy involved discrediting Cone’s claims of drug use.[Footnote 2] Through cross-examination, the State established that both defense experts’ opinions were based solely on Cone’s representations to them about his drug use rather than on any independently corroborated sources, such as medical records or interviews with family or friends. The prosecution also adduced expert and lay testimony to establish that Cone was not addicted to drugs and had acted rationally and intentionally before, during, and after the Todd murders. Particularly damaging to Cone’s defense was the testimony of rebuttal witness Ilene Blankman, who had spent time with Cone several months before the murders and at whose home Cone had stayed in the days leading up to his arrest in Florida. Blankman admitted to being a former heroin addict but testified that she no longer used drugs and tried to stay away from people who did. She testified that she had never seen Cone use drugs, had never observed track marks on his body, and had never seen him exhibit signs of paranoia. Emphasizing the State’s position with respect to Cone’s alleged addiction, the prosecutor told the jury during closing argument, “[Y]ou’re not dealing with a crazy person, an insane man. A man … out of his mind. You’re dealing, I submit to you, with a premeditated, cool, deliberate—and even cowardly, really—murderer.” Tr. 2084 (Apr. 22, 1982). Pointing to the quantity of drugs found in Cone’s car, the prosecutor suggested that far from being a drug addict, Cone was actually a drug dealer. The prosecutor argued, “I’m not trying to be absurd, but he says he’s a drug addict. I say baloney. He’s a drug seller. Doesn’t the proof show that?” Id., at 107.[Footnote 3] The jury rejected Cone’s insanity defense and found him guilty on all counts. At the penalty hearing, the prosecution asked the jury to find that Cone’s crime met the criteria for four different statutory aggravating factors, any one of which would render him eligible for a capital sentence.[Footnote 4] Cone’s counsel called no witnesses but instead rested on the evidence adduced during the guilt phase proceedings. Acknowledging that the prosecution’s experts had disputed the existence of Cone’s alleged mental disorder, counsel nevertheless urged the jury to consider Cone’s drug addiction when weighing the aggravating and mitigating factors in the case.[Footnote 5] The jury found all four aggravating factors and unanimously returned a sentence of death.[Footnote 6] II On direct appeal Cone raised numerous challenges to his conviction and sentence. Among those was a claim that the prosecution violated state law by failing to disclose a tape-recorded statement and police reports relating to several trial witnesses. See App. 114–117. The Tennessee Supreme Court rejected each of Cone’s claims, and affirmed his conviction and sentence. State v. Cone, 665 S. W. 2d 87 (1984).[Footnote 7] Cone then filed a petition for postconviction relief, primarily raising claims that his trial counsel had been ineffective; the Tennessee Court of Criminal Appeals affirmed the denial of that petition in 1987. Cone v. State, 747 S. W. 2d 353. In 1989, Cone, acting pro se, filed a second petition for postconviction relief, raising myriad claims of error. Among these was a claim that the State had failed to disclose evidence in violation of his rights under the United States Constitution. At the State’s behest, the postconviction court summarily denied the petition, concluding that all the claims raised in it had either been “previously determined” or “waived.” Order Dismissing Petition for Post-Conviction Relief in Cone v. State, No. P–06874 (Crim. Ct. Shelby Cty., Tenn., Jan. 2, 1990).[Footnote 8] At that time, the court did not specify which claims fell into which category. Cone appealed the denial of his petition to the Tennessee Court of Criminal Appeals, asserting that the postconviction court had erred by dismissing 13 claims—his Brady claim among them—as previously determined when, in fact, they had not been “previously addressed or determined by any court.” Brief for Petitioner-Appellant Gary Bradford Cone in No. P–06874, pp. 23–24, and n. 11. In addition Cone urged the court to remand the case to allow him, with the assistance of counsel, to rebut the presumption that he had waived any of his claims by not raising them at an earlier stage in the litigation. Id., at 24.[Footnote 9] The court agreed and remanded the case for further proceedings. On remand counsel was appointed and an amended petition was filed. The State once again urged the postconviction court to dismiss Cone’s petition. Apparently conflating the state-law disclosure claim Cone had raised on direct appeal with his newly filed Brady claim, the State represented that the Tennessee Supreme Court had already decided the Brady issue and that Cone was therefore barred from relitigating it. See App. 15–16. While that petition remained pending before the postconviction court, the Tennessee Court of Appeals held for the first time that the State’s Public Records Act allowed a criminal defendant to review the prosecutor’s file in his case. See Capital Case Resource Center of Tenn., Inc. v. Woodall, No. 01–A–01–9104–CH–00150, 1992 WL 12217 (Jan. 29, 1992). Based on that holding, Cone obtained access to the prosecutor’s files, in which he found proof that evidence had indeed been withheld from him at trial. Among the undisclosed documents Cone discovered were statements from witnesses who had seen him several days before and several days after the murders. The witnesses described Cone’s appearance as “wild eyed,” App. 50, and his behavior as “real weird,” id., at 49. One witness affirmed that Cone had appeared “to be drunk or high.” Ibid. The file also contained a police report describing Cone’s arrest in Florida following the murders. In that report, a police officer described Cone looking around “in a frenzied manner,” and “walking in [an] agitated manner” prior to his apprehension. Id., at 53. Multiple police bulletins describing Cone as a “drug user” and a “heavy drug user” were also among the undisclosed evidence. See id., at 55–59. With the newly discovered evidence in hand, Cone amended his postconviction petition once again in October 1993, expanding his Brady claim to allege more specifically that the State had withheld exculpatory evidence demonstrating that he “did in fact suffer drug problems and/or drug withdrawal or psychosis both at the time of the offense and in the past.” App. at 20. Cone pointed to specific examples of evidence that had been withheld, alleging the evidence was “exculpatory to both the jury’s determination of petitioner’s guilt and its consideration of the proper sentence,” and that there was “a reasonable probability that, had the evidence not been withheld, the jurors would not have convicted [him] and would not have sentenced him to death.” Id., at 20–21.[Footnote 10] In a lengthy affidavit submitted with his amended petition, Cone explained that he had not raised his Brady claim in earlier proceedings because the facts underlying it “ha[d] been revealed through disclosure of the State’s files, which occurred after the first post-conviction proceeding.” App. 18. After denying Cone’s request for an evidentiary hearing, the postconviction court denied relief on each claim presented in the amended petition. Many of the claims were dismissed on the ground that they had been waived by Cone’s failure to raise them in earlier proceedings; however, consistent with the position urged by the State, the court dismissed many others, including the Brady claim, as mere “re-statements of previous grounds heretofore determined and denied by the Tennessee Supreme Court upon Direct Appeal or the Court of Criminal Appeals upon the First Petition.” App. 22. Noting that “the findings of the trial court in post-conviction hearings are conclusive on appeal unless the evidence preponderates against the judgment,” the Tennessee Court of Criminal Appeals affirmed. Cone v. State, 927 S. W. 2d 579, 581–582 (1995). The court concluded that Cone had “failed to rebut the presumption of waiver as to all claims raised in his second petition for post-conviction relief which had not been previously determined.” Id., at 582 (emphasis added). Cone unsuccessfully petitioned for review in the Tennessee Supreme Court, and we denied certiorari. Cone v. Tennessee, 519 U. S. 934 (1996). III In 1997, Cone filed a petition for a federal writ of habeas corpus. Without disclosing to the District Court the contrary position it had taken in the state-court proceedings, the State acknowledged that Cone’s Brady claim had not been raised prior to the filing of his second postconviction petition. However, wrenching out of context the state appellate court’s holding that Cone had “waived ‘all claims … which had not been previously determined,’ ” the State now asserted the Brady claim had been waived. App. 39 (quoting Cone, 927 S. W. 2d, at 581–582). In May 1998, the District Court denied Cone’s request for an evidentiary hearing on his Brady claim. Lamenting that its consideration of Cone’s claims had been “made more difficult” by the parties’ failure to articulate the state procedural rules under which each of Cone’s claims had allegedly been defaulted, App. to Pet. for Cert. 98a, the District Court nevertheless held that the Brady claim was procedurally barred. After parsing the claim into 11 separate subclaims based on 11 pieces of withheld evidence identified in the habeas petition, the District Court concluded that Cone had waived each subclaim by failing to present or adequately develop it in state court. App. to Pet. for Cert. 112a–113a. Moreover, the court concluded that even if Cone had not defaulted his Brady claim, it would fail on its merits because none of the withheld evidence would have cast doubt on Cone’s guilt. App. to Pet. for Cert. 116a–119a. Throughout its opinion the District Court repeatedly referenced factual allegations contained in early versions of Cone’s second petition for postconviction relief rather than the amended version of the petition upon which the state court’s decision had rested. See, e.g., id., at 112a. After the District Court dismissed the remainder of Cone’s federal claims, the Court of Appeals for the Sixth Circuit granted him permission to appeal several issues, including the alleged suppression of Brady material. Before the Court of Appeals, the State shifted its procedural default argument once more, this time contending that Cone had “simply never raised” his Brady claim in the state court because he failed to make adequate factual allegations to support that claim in his second petition for postconviction relief. App. 41. Repeating the District Court’s error, the State directed the Court of Appeals’ attention to Cone’s pro se petition and to the petition Cone’s counsel filed before he gained access to the prosecution’s case file. Id., at 41–42, and n. 7. In other words, instead of citing the October 1993 amended petition on which the state court’s decision had been based and to which its order explicitly referred, the State pointed the court to earlier, less developed versions of the same claim. The Court of Appeals concluded that Cone had procedurally defaulted his Brady claim and had failed to show cause and prejudice to overcome the default. Cone v. Bell, 243 F. 3d 961, 968 (2001). The court acknowledged that Cone had raised his Brady claim. 243 F. 3d, at 969. Nevertheless, the court considered itself barred from reaching the merits of the claim because the Tennessee courts had concluded the claim was “previously determined or waived under Tenn. Code Ann. §40–30–112.” Ibid. Briefly mentioning several isolated pieces of suppressed evidence, the court summarily concluded that even if Cone’s Brady claim had not been defaulted, the suppressed evidence would not undermine confidence in the verdict (and hence was not Brady material) “because of the overwhelming evidence of Cone’s guilt.” 243 F. 3d, at 968. The court did not discuss whether any of the undisclosed evidence was material with respect to Cone’s sentencing proceedings. Although the Court of Appeals rejected Cone’s Brady claim, it held that he was entitled to have his death sentence vacated because of his counsel’s ineffective assistance at sentencing. See 243 F. 3d, at 975. In 2002, this Court reversed that holding after concluding that the Tennessee courts’ rejection of Cone’s ineffective-assistance-of-counsel claim was not “objectively unreasonable” within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Bell v. Cone, 535 U. S. 685, 699. In 2004, following our remand, the Court of Appeals again entered judgment ordering a new sentencing hearing, this time based on the purported invalidity of an aggravating circumstance found by the jury. Cone v. Bell, 359 F. 3d 785. Again we granted certiorari and reversed, relying in part on the deferential standard that governs our review of state-court decisions under AEDPA. See Bell v. Cone, 543 U. S. 447, 452–458 (2005) (per curiam). Following our second remand, the Court of Appeals revisited Cone’s Brady claim. This time, the court divided the claim into four separate subclaims: “(1) evidence regarding [Cone’s] drug use; (2) evidence that might have been useful to impeach the testimony and credibility of prosecution witness Sergeant Ralph Roby; (3) FBI reports;[[Footnote 11]] and (4) evidence showing that prosecution witness Ilene Blankman was untruthful and biased.” 492 F. 3d 743, 753 (2007). Noting that it had previously found all four subclaims to be procedurally defaulted, the court declined to reconsider its earlier decision. See ibid. (citing Cone, 243 F. 3d, at 968–970). At the same time, the court reiterated that the withheld evidence “would not have overcome the overwhelming evidence of Cone’s guilt in committing a brutal double murder and the persuasive testimony that Cone was not under the influence of drugs.” 492 F. 3d, at 756. Summarily discounting Cone’s contention that the withheld evidence was material with respect to his sentence, the court concluded that the introduction of the suppressed evidence would not have altered the jurors’ finding that Cone’s alleged drug use did not “vitiate his specific intent to murder his victims and did not mitigate his culpability sufficient to avoid the death sentence.” Id., at 757. Judge Merritt dissented. He castigated the State not only for withholding documents relevant to Cone’s sole defense and plea for mitigation, but also for its “falsification of the procedural record … concerning the State’s procedural default defense to the Brady claim.” Id., at 760. Over the dissent of seven judges, Cone’s petition for rehearing en banc was denied. 505 F. 3d 610 (2007). We granted certiorari, 554 U. S. ___ (2008), to answer the question whether a federal habeas claim is “procedurally defaulted” when it is twice presented to the state courts. IV During the state and federal proceedings below, the State of Tennessee offered two different justifications for denying review of the merits of Cone’s Brady claim. First, in connection with Cone’s amended petition for state postconviction relief, the State argued that the Brady claim was barred because it had been decided on direct appeal. See App. 15–16. Then, in connection with Cone’s federal habeas petition, the State argued that Cone’s claim was waived because it had never been properly raised before the state courts. See id., at 39. The District Court and the Court of Appeals agreed that Cone’s claim was procedurally barred, but for different reasons. The District Court held that the claim had been waived, App. to Pet. for Cert. 102a, while the Court of Appeals held that the claim had been either waived or previously determined, Cone, 243 F. 3d, at 969. We now conclude that neither prior determination nor waiver provides an independent and adequate state ground for denying Cone review of his federal claim. It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court’s decision rests upon a state-law ground that “is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U. S. 722, 729 (1991); Lee v. Kemna, 534 U. S. 362, 375 (2002). In the context of federal habeas proceedings, the independent and adequate state ground doctrine is designed to “ensur[e] that the States’ interest in correcting their own mistakes is respected in all federal habeas cases.” Coleman, 501 U. S., at 732. When a petitioner fails to properly raise his federal claims in state court, he deprives the State of “an opportunity to address those claims in the first instance” and frustrates the State’s ability to honor his constitutional rights. Id., at 732, 748. Therefore, consistent with the longstanding requirement that habeas petitioners must exhaust available state remedies before seeking relief in federal court, we have held that when a petitioner fails to raise his federal claims in compliance with relevant state procedural rules, the state court’s refusal to adjudicate the claim ordinarily qualifies as an independent and adequate state ground for denying federal review. See id., at 731. That does not mean, however, that federal habeas review is barred every time a state court invokes a procedural rule to limit its review of a state prisoner’s claims. We have recognized that “ ‘the adequacy of state procedural bars to the assertion of federal questions’ … is not within the State’s prerogative finally to decide; rather, adequacy ‘is itself a federal question.’ ” Lee, 534 U. S., at 375 (quoting Douglas v. Alabama, 380 U. S. 415, 422 (1965)); see also Coleman, 501 U. S., at 736 (“[F]ederal habeas courts must ascertain for themselves if the petitioner is in custody pursuant to a state court judgment that rests on independent and adequate state grounds”). The question before us now is whether federal review of Cone’s Brady claim is procedurally barred either because the claim was twice presented to the state courts or because it was waived, and thus not presented at all. First, we address the contention that the repeated presentation of a claim in state court bars later federal review. The Tennessee postconviction court denied Cone’s Brady claim after concluding it had been previously determined following a full and fair hearing in state court. See Tenn. Code Ann. §40–30–112(a) (1982). That conclusion rested on a false premise: Contrary to the state courts’ finding, Cone had not presented his Brady claim in earlier proceedings and, consequently, the state courts had not passed on it. The Sixth Circuit recognized that Cone’s Brady claim had not been decided on direct appeal, see Cone, 243 F. 3d, at 969, but felt constrained by the state courts’ refusal to reach the merits of that claim on postconviction review. The Court of Appeals concluded that because the state postconviction courts had applied a state procedural law to avoid reaching the merits of Cone’s Brady claim, “an ‘independent and adequate’ state ground” barred federal habeas review. 243 F. 3d, at 969. In this Court the State does not defend that aspect of the Court of Appeals’ holding, and rightly so. When a state court declines to review the merits of a petitioner’s claim on the ground that it has done so already, it creates no bar to federal habeas review. In Ylst v. Nunnemaker, 501 U. S. 797, 804, n. 3 (1991), we observed in passing that when a state court declines to revisit a claim it has already adjudicated, the effect of the later decision upon the availability of federal habeas is “nil” because “a later state decision based upon ineligibility for further state review neither rests upon procedural default nor lifts a pre-existing procedural default.”[Footnote 12] When a state court refuses to readjudicate a claim on the ground that it has been previously determined, the court’s decision does not indicate that the claim has been procedurally defaulted. To the contrary, it provides strong evidence that the claim has already been given full consideration by the state courts and thus is ripe for federal adjudication. See 28 U. S. C. §2254(b)(1)(A) (permitting issuance of a writ of habeas corpus only after “the applicant has exhausted the remedies available in the courts of the State”). A claim is procedurally barred when it has not been fairly presented to the state courts for their initial consideration—not when the claim has been presented more than once. Accordingly, insofar as the Court of Appeals rejected Cone’s Brady claim as procedurally defaulted because the claim had been twice presented to the Tennessee courts, its decision was erroneous. As an alternative (and contradictory) ground for barring review of Cone’s Brady claim, the State has argued that Cone’s claim was properly dismissed by the state postconviction court on the ground it had been waived. We are not persuaded. The state appellate court affirmed the denial of Cone’s Brady claim on the same mistaken ground offered by the lower court—that the claim had been previously determined.[Footnote 13] Contrary to the State’s assertion, the Tennessee appellate court did not hold that Cone’s Brady claim was waived. When a state court declines to find that a claim has been waived by a petitioner’s alleged failure to comply with state procedural rules, our respect for the state-court judgment counsels us to do the same. Although we have an independent duty to scrutinize the application of state rules that bar our review of federal claims, Lee, 534 U. S., at 375, we have no concomitant duty to apply state procedural bars where state courts have themselves declined to do so. The Tennessee courts did not hold that Cone waived his Brady claim, and we will not second-guess their judgment.[Footnote 14] The State’s procedural objections to federal review of the merits of Cone’s claim have resulted in a significant delay in bringing this unusually protracted case to a conclusion. Ultimately, however, they provide no obstacle to judicial review. Cone properly preserved and exhausted his Brady claim in the state court; therefore, it is not defaulted. We turn now to the merits of that claim. V Although the State is obliged to “prosecute with earnestness and vigor,” it “is as much [its] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger, 295 U. S., at 88. Accordingly, we have held that when the State withholds from a criminal defendant evidence that is material to his guilt or punishment, it violates his right to due process of law in violation of the Fourteenth Amendment. See Brady, 373 U. S., at 87. In United States v. Bagley, 473 U. S. 667, 682 (1985) (opinion of Blackmun, J.), we explained that evidence is “material” within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. In other words, favorable evidence is subject to constitutionally mandated disclosure when it “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U. S. 419, 435 (1995); accord, Banks v. Dretke, 540 U. S. 668, 698–699 (2004); Strickler v. Greene, 527 U. S. 263, 290 (1999).[Footnote 15] The documents suppressed by the State vary in kind, but they share a common feature: Each strengthens the inference that Cone was impaired by his use of drugs around the time his crimes were committed. The suppressed evidence includes statements by witnesses acknowledging that Cone appeared to be “drunk or high,” App. 49, “acted real weird,” ibid., and “looked wild eyed,” id., at 50, in the two days preceding the murders.[Footnote 16] It also includes documents that could have been used to impeach witnesses whose trial testimony cast doubt on Cone’s drug addiction. For example, Memphis police officer Ralph Roby testified at trial that Cone had no needle marks on his body when he was arrested—an observation that bolstered the State’s argument that Cone was not a drug user. The suppressed evidence reveals, however, that Roby authorized multiple teletypes to law enforcement agencies in the days following the murders in which he described Cone as a “drug user” and a “heavy drug user.” See id., at 55–58.[Footnote 17] A suppressed statement made by the chief of police of Cone’s hometown also describes Cone as a serious drug user. See Cone, 243 F. 3d, at 968. And undisclosed notes of a police interview with Ilene Blankman conducted several days after the murders reveal discrepancies between her initial statement and her trial testimony relevant to Cone’s alleged drug use. App. 72–73. In sum, both the quantity and the quality of the suppressed evidence lends support to Cone’s position at trial that he habitually used excessive amounts of drugs, that his addiction affected his behavior during his crime spree, and that the State’s arguments to the contrary were false and misleading. Thus, the federal question that must be decided is whether the suppression of that probative evidence deprived Cone of his right to a fair trial. See Agurs, 427 U. S., at 108. Because the Tennessee courts did not reach the merits of Cone’s Brady claim, federal habeas review is not subject to the deferential standard that applies under AEDPA to “any claim that was adjudicated on the merits in State court proceedings.” 28 U. S. C. §2254(d). Instead, the claim is reviewed de novo. See, e.g., Rompilla v. Beard, 545 U. S. 374, 390 (2005) (de novo review where state courts did not reach prejudice prong under Strickland v. Washington, 466 U. S. 668 (1984)); Wiggins v. Smith, 539 U. S. 510, 534 (2003) (same). Contending that the Federal District Court and Court of Appeals adequately and correctly resolved the merits of that claim, the State urges us to affirm the Sixth Circuit’s denial of habeas relief. In assessing the materiality of the evidence suppressed by the State, the Court of Appeals suggested that two facts outweighed the potential force of the suppressed evidence. First, the evidence of Cone’s guilt was overwhelming. Second, the evidence of Cone’s drug use was cumulative because the jury had heard evidence of Cone’s alleged addiction from witnesses and from officers who interviewed Cone and recovered drugs from his vehicle.[Footnote 18] The Court of Appeals did not thoroughly review the suppressed evidence or consider what its cumulative effect on the jury would have been. Moreover, in concluding that the suppressed evidence was not material within the meaning of Brady, the court did not distinguish between the materiality of the evidence with respect to guilt and the materiality of the evidence with respect to punishment—an omission we find significant. Evidence that is material to guilt will often be material for sentencing purposes as well; the converse is not always true, however, as Brady itself demonstrates. In our seminal case on the disclosure of prosecutorial evidence, defendant John Brady was indicted for robbery and capital murder. At trial, Brady took the stand and confessed to robbing the victim and being present at the murder but testified that his accomplice had actually strangled the victim. Brady v. State, 226 Md. 422, 425, 174 A. 2d 167, 168 (1961). After Brady was convicted and sentenced to death he discovered that the State had suppressed the confession of his accomplice, which included incriminating statements consistent with Brady’s version of events. Id., at 426, 174 A. 2d, at 169. The Maryland Court of Appeals concluded that Brady’s due process rights were violated by the suppression of the accomplice’s confession but declined to order a new trial on guilt. Observing that nothing in the accomplice’s confession “could have reduced … Brady’s offense below murder in the first degree,” the state court ordered a new trial on the question of punishment only. Id., at 430, 174 A. 2d, at 171. We granted certiorari and affirmed, rejecting Brady’s contention that the state court’s limited remand violated his constitutional rights. 373 U. S., at 88. As in Brady, the distinction between the materiality of the suppressed evidence with respect to guilt and punishment is significant in this case. During the guilt phase of Cone’s trial, the only dispute was whether Cone was “sane under the law,” Tr. 2040 (Apr. 22, 1982), as his counsel described the issue, or “criminally responsible” for his conduct, App. 110, as the prosecutor argued. Under Tennessee law, Cone could not be held criminally responsible for the murders if, “at the time of [his] conduct as a result of mental disease or defect he lack[ed] substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” Graham v. State, 547 S. W. 2d 531, 543 (Tenn. 1977). Although we take exception to the Court of Appeals’ failure to assess the effect of the suppressed evidence “collectively” rather than “item by item,” see Kyles, 514 U. S., at 436, we nevertheless agree that even when viewed in the light most favorable to Cone, the evidence falls short of being sufficient to sustain his insanity defense. Cone’s experts testified that his drug addiction and posttraumatic stress disorder originated during his service in Vietnam, more than 13 years before the Todds were murdered. During those years, despite Cone’s drug use and mental disorder, he managed to successfully complete his education, travel, and (when not incarcerated) function in civil society. The suppressed evidence may have strengthened the inference that Cone was on drugs or suffering from withdrawal at the time of the murders, but his behavior before, during, and after the crimes was inconsistent with the contention that he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. See Graham, 547 S. W. 2d, at 543. The likelihood that the suppressed evidence would have affected the jury’s verdict on the issue of insanity is therefore remote. Accordingly, we conclude that the Sixth Circuit did not err by denying habeas relief on the ground that the suppressed evidence was immaterial to the jury’s finding of guilt. The same cannot be said of the Court of Appeals’ summary treatment of Cone’s claim that the suppressed evidence influenced the jury’s sentencing recommendation. There is a critical difference between the high standard Cone was required to satisfy to establish insanity as a matter of Tennessee law and the far lesser standard that a defendant must satisfy to qualify evidence as mitigating in a penalty hearing in a capital case. See Bell, 535 U. S., at 712 (Stevens, J., dissenting) (“[T]here is a vast difference between insanity—which the defense utterly failed to prove—and the possible mitigating effect of drug addiction incurred as a result of honorable service in the military”). As defense counsel emphasized in his brief opening statement during penalty phase proceedings, the jury was statutorily required to consider whether Cone’s “capacity … to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication which was insufficient to establish a defense to the crime but which substantially affected his judgment.” Tenn. Code Ann. §39–2–203(j)(8) (1982). It is possible that the suppressed evidence, viewed cumulatively, may have persuaded the jury that Cone had a far more serious drug problem than the prosecution was prepared to acknowledge, and that Cone’s drug use played a mitigating, though not exculpating, role in the crimes he committed.[Footnote 19] The evidence might also have rebutted the State’s suggestion that Cone had manipulated his expert witnesses into falsely believing he was a drug addict when in fact he did not struggle with substance abuse. Neither the Court of Appeals nor the District Court fully considered whether the suppressed evidence might have persuaded one or more jurors that Cone’s drug addiction—especially if attributable to honorable service of his country in Vietnam—was sufficiently serious to justify a decision to imprison him for life rather than sentence him to death. Because the evidence suppressed at Cone’s trial may well have been material to the jury’s assessment of the proper punishment in this case, we conclude that a full review of the suppressed evidence and its effect is warranted. VI In the 27 years since Gary Cone was convicted of murder and sentenced to death, no Tennessee court has reached the merits of his claim that state prosecutors withheld evidence that would have bolstered his defense and rebutted the State’s attempts to cast doubt on his alleged drug addiction. Today we hold that the Tennessee courts’ procedural rejection of Cone’s Brady claim does not bar federal habeas review of the merits of that claim. Although we conclude that the suppressed evidence was not material to Cone’s conviction for first-degree murder, the lower courts erred in failing to assess the cumulative effect of the suppressed evidence with respect to Cone’s capital sentence. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court with instructions to give full consideration to the merits of Cone’s Brady claim. It is so ordered. Footnote 1 From the abandoned vehicle, police recovered stolen jewelry, large quantities of illegal and prescription drugs, and approximately $2,400 in cash. Much of the cash was later connected to a grocery store robbery that had occurred on the previous day. Footnote 2 The State also cast doubt on Cone’s defense by eliciting testimony that Cone had enrolled in college following his return from Vietnam and had graduated with high honors. Later, after serving time in prison for an armed robbery, Cone gained admission to the University of Arkansas Law School. The State suggested that Cone’s academic success provided further proof that he was not impaired following his return from war. Footnote 3 In his closing rebuttal argument, the prosecutor continued to press the point, asserting: “There aren’t any charges for drug sales, but that doesn’t mean that you can’t look and question in deciding whether or not this man was, in fact, a drug user, or why he had those drugs. Did he just have those drugs, or did he have those drugs and thousands of dollars in that car? Among those drugs are there only the drugs he used? How do we know if he used drugs? The only thing that we ever had that he used drugs, period, is the fact that those drugs were in the car and what he told people. What he told people. But according to even what he told people, there are drugs in there he didn’t even use.” Tr. 2068 (Apr. 22, 1982). Footnote 4 The jury could impose a capital sentence only if it unanimously determined that one or more statutory aggravating circumstances had been proved by the State beyond a reasonable doubt, and that the mitigating circumstances of the case did not outweigh any statutory aggravating factors. Tenn. Code Ann. §39–2–203(g) (1982). Footnote 5 As defense counsel emphasized to the jury, one of the statutory mitigating factors it was required to consider was whether “[t]he capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication which was insufficient to establish a defense to the crime but which substantially affected his judgment.” §39–2404(j)(8). Footnote 6 Specifically, the jury found Cone had committed one or more prior felonies involving the use or threat of violence, see §39–2404(i)(2); the murders had been committed for the purpose of avoiding, interfering with, or preventing Cone’s lawful arrest or prosecution, see §39–2404(i)(6); the murders were especially heinous, atrocious, or cruel in that they involved torture and depravity of mind, see §39–2404(i)(5); and Cone had knowingly created a risk of death to two or more persons, other than the victim murdered, during his act of murder, see §39–2404(i)(3). The Tennessee Supreme Court later observed that by finding Cone guilty of murder in the first degree during the perpetration of a burglary, the jury implicitly found the existence of an additional statutory aggravating factor: that the murders occurred while Cone was committing a burglary, §39–2404(i)(7). State v. Cone, 665 S. W. 2d 87, 94 (1984). Footnote 7 In summarizing the trial proceedings the Tennessee Supreme Court observed: “The only defense interposed on [Cone’s] behalf was that of insanity, or lack of mental capacity, due to drug abuse and to stress arising out of his previous service in the Vietnamese war, some eleven years prior to the events involved in this case. This proved to be a tenuous defense, at best, since neither of the expert witnesses who testified on his behalf had ever seen or heard of him until a few weeks prior to the trial. Neither was a medical doctor or psychiatrist, and neither had purported to treat him as a patient. Their testimony that he lacked mental capacity was based purely upon his personal recitation to them of his history of military service and drug abuse.” Id., at 90. Footnote 8 Under Tennessee law in effect at the time a criminal defendant was entitled to collateral relief if his conviction or sentence violated “any right guaranteed by the constitution of [Tennessee] or the Constitution of the United States.” Tenn. Code Ann. §40–30–105 (1982); see also §40–30–102. Any hearing on a petition for postconviction relief was limited, however, to claims that had not been “waived or previously determined.” See §40–30–111. A ground for relief was “previously determined” if “a court of competent jurisdiction ha[d] ruled on the merits [of the claim] after a full and fair hearing.” §40–30–112(a). The claim was waived “if the petitioner knowingly and understandingly failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented.” §40–30–112(b)(1). Footnote 9 See Swanson v. State, 749 S. W. 2d 731, 734 (Tenn. 1988) (courts should not dismiss postconviction petitions on technical grounds unless the petitioner has first had “reasonable opportunity, with aid of counsel, to file amendments” and rebut presumption of waiver (internal quotation marks omitted)). Footnote 10 As examples of evidence that had been withheld, Cone pointed to “statements of Charles and Debbie Slaughter, statements of Sue Cone, statements of Lucille Tuech, statements of Herschel Dalton, and patrolman Collins” and “statements contained in official police reports.” App. 20. Footnote 11 In the course of federal habeas proceedings, Cone had obtained access to files from the Federal Bureau of Investigation where he found additional previously undisclosed evidence not contained in the state prosecutor’s case file. The suppressed FBI documents make repeated reference to Cone’s drug use and corroborate his expert’s representation that he had used drugs during his prior incarceration for armed robbery. See id., at 26–28. Footnote 12 With the exception of the Sixth Circuit, all Courts of Appeals to have directly confronted the question both before and after Ylst, 501 U. S. 797, have agreed that a state court’s successive rejection of a federal claim does not bar federal habeas review. See, e.g., Page v. Frank, 343 F. 3d 901, 907 (CA7 2003); Brecheen v. Reynolds, 41 F. 3d 1343, 1358 (CA10 1994); Bennett v. Whitley, 41 F. 3d 1581, 1582 (CA5 1994); Silverstein v. Henderson, 706 F. 2d 361, 368 (CA2 1983). See also Lambright v. Stewart, 241 F. 3d 1201, 1206 (CA9 2001). Footnote 13 As recounted earlier, Cone’s state postconviction petition contained numerous claims of error. The state postconviction court dismissed some of those claims as waived and others, including the Brady claim, as having been previously determined. In affirming the denial of Cone’s petition the Tennessee Court of Criminal Appeals summarily stated that Cone had “failed to rebut the presumption of waiver as to all claims raised in his second petition for post-conviction relief which had not been previously determined.” Cone v. State, 927 S. W. 2d 579, 582 (1995). Pointing to that language, the State asserts that the Tennessee Court of Criminal Appeals denied Cone’s Brady claim not because it had been previously determined, but because it was waived in the postconviction court proceedings. Not so. Without questioning the trial court’s finding that Cone’s Brady claim had been previously determined, the Court of Criminal Appeals affirmed the denial of Cone’s postconviction petition in its entirety. Nothing in that decision suggests the appellate court believed the Brady claim had been waived in the court below. Similarly, while Justice Alito’s parsing of the record persuades him that Cone failed to adequately raise his Brady claim to the Tennessee Court of Criminal Appeals, he does not argue that the court expressly held that Cone waived the claim. A review of Cone’s opening brief reveals that he made a broad challenge to the postconviction court’s dismissal of his petition and plainly asserted that the court erred by dismissing claims as previously determined on direct appeal or in his initial postconviction petition. See Brief for Petitioner-Appellant in No. 02–C–01–9403–CR–00052 (Tenn. Crim. App.), pp. 7, 14. The state appellate court did not state or suggest that Cone had waived his Brady claim. Rather, after commending the postconviction court for its “exemplary and meticulous treatment of the appellant’s petition,” Cone, 927 S. W. 2d, at 581, the appellate court simply adopted without modification the lower court’s findings with respect to the application of Tenn. Code Ann. §40–30–112 to the facts of this case. The best reading of the Tennessee Court of Criminal Appeals’ decision is that it was based on an approval of the postconviction court’s reasoning rather than on an unmentioned failure by Cone to adequately challenge the dismissal of his Brady claim on appeal. Footnote 14 Setting aside the state courts’ mistaken belief that Cone’s Brady claim had been previously determined, there are many reasons the state courts might have rejected the State’s waiver argument. The record establishes that the suppressed documents which form the basis for Cone’s claim were not available to him until the Tennessee Court of Appeals’ 1992 decision interpreting the State’s Public Records Act as authorizing the disclosure of prosecutorial records. Soon after obtaining access to the prosecutor’s file and discovering within it documents that had not been disclosed prior to trial, Cone amended his petition for postconviction relief, adding detailed allegations regarding the suppressed evidence recovered from the file, along with an affidavit explaining the reason why his claim had not been filed sooner. See App. 13, 18. The State did not oppose the amendment of Cone’s petition on the ground that it was untimely, and it appears undisputed that there would have been no basis under state law for doing so. See Brief for Petitioner 7, n. 1. Footnote 15 Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations. See Kyles, 514 U. S., at 437 (“[T]he rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice Prosecution Function and Defense Function 3–3.11(a) (3d ed. 1993)”). See also ABA Model Rule of Professional Conduct 3.8(d) (2008) (“The prosecutor in a criminal case shall” “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal”). As we have often observed, the prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure. See Kyles, 514 U. S., at 439; United States v. Bagley, 473 U. S. 667, 711, n. 4 (1985) (Stevens, J., dissenting); United States v. Agurs, 427 U. S. 97, 108 (1976). Footnote 16 The State contends that the statements were made by witnesses who observed Cone during and immediately after he committed robberies; therefore, it is not surprising that Cone appeared less than “serene.” See Brief for Respondent 46. Although a jury would have been free to infer that Cone’s behavior was attributable to his criminal activity, the evidence is also consistent with Cone’s assertion that he was suffering from chronic amphetamine psychosis at the time of the crimes. Footnote 17 As the dissent points out, Roby did not testify directly that Cone was not a drug user and FBI Agent Eugene Flynn testified that, at the time of Cone’s arrest in Pompano Beach, Cone reported that he had used cocaine, Dilaudid, and Demerol and was suffering from “slight withdrawal symptoms.” See post, at 7, 11. See also Tr. 1916, 1920 (Apr. 22, 1982). It is important to note, however, that neither Flynn nor Roby corroborated Cone’s account of alleged drug use. Taken in context, Roby’s statement that he had not observed any needle marks on Cone’s body invited the jury to infer that Cone’s self-reported drug use was either minimal or contrived. See id., at 1939. Therefore, although the suppressed evidence does not directly contradict Roby’s trial testimony, it does place it in a different light. Footnote 18 In pointing to the trial evidence of Cone’s drug use, the Court of Appeals made no mention of the fact that the State had discredited the testimony of Cone’s experts on the ground that no independent evidence corroborated Cone’s alleged addiction and that the State had argued that the drugs in Cone’s car were intended for resale, rather than personal use. Footnote 19 We agree with the dissent that the standard to be applied by the District Court in evaluating the merits of Cone’s Brady claim on remand is whether there is a reasonable probability that, had the suppressed evidence been disclosed, the result of the proceeding would have been different. See post, at 5. Because neither the District Court nor the Court of Appeals considered the merits of Cone’s claim with respect to the effect of the withheld evidence on his sentence, it is appropriate for the District Court, rather than this Court, to do so in the first instance. |
556.US.2008_07-10441 | McNabb v. United States, 318 U. S. 332, and Mallory v. United States, 354 U. S. 449, “generally rende[r] inadmissible confessions made during periods of detention that violat[e] the prompt presentment requirement of [Federal Rule of Criminal Procedure] 5(a).” United States v. Alvarez-Sanchez, 511 U. S. 350, 354. Rule 5(a), in turn, provides that a “person making an arrest … must take the defendant without unnecessary delay before a magistrate judge … .” Congress enacted 18 U. S. C. §3501 in response to Miranda v. Arizona, 384 U. S. 436, and some applications of the McNabb-Mallory rule. In an attempt to eliminate Miranda, §3501(a) provides that “a confession … shall be admissible in evidence if it is voluntarily given,” and §3501(b) lists several considerations for courts to address in assessing voluntariness. Subsection (c), which focuses on McNabb-Mallory, provides that “a confession made … by … a defendant … , while … under arrest … , shall not be inadmissible solely because of delay in bringing such person before a magistrate judge … if such confession is found by the trial judge to have been made voluntarily and … within six hours [of arrest]”; it extends that time limit when further delay is “reasonable considering the means of transportation and the distance to … the nearest available [magistrate].” Petitioner Corley was arrested for assaulting a federal officer at about 8 a.m. Around 11:45 FBI agents took him to a Philadelphia hospital to treat a minor injury. At 3:30 p.m. he was taken from the hospital to the local FBI office and told that he was a suspect in a bank robbery. Though the office was in the same building as the nearest magistrate judges, the agents did not bring him before a magistrate judge, but questioned him, hoping for a confession. At 5:27 p.m., some 9.5 hours after his arrest, Corley began an oral confession that he robbed the bank. He asked for a break at 6:30 and was held overnight. The interrogation resumed the next morning, ending with his signed written confession. He was finally presented to a Magistrate Judge at 1:30 p.m., 29.5 hours after his arrest, and charged with armed bank robbery and related charges. The District Court denied his motion to suppress his confessions under Rule 5(a) and McNabb-Mallory. It reasoned that the oral confession occurred within §3501(c)’s six-hour window because the time of Corley’s medical treatment should be excluded from the delay. It also found the written confession admissible, explaining there was no unreasonable delay under Rule 5(a) because Corley had requested the break. He was convicted of conspiracy and bank robbery. The Third Circuit affirmed. Relying on Circuit precedent to the effect that §3501 abrogated McNabb-Mallory and replaced it with a pure voluntariness test, it concluded that if a district court found a confession voluntary after considering the points listed in §3501(b), it would be admissible, even if the presentment delay was unreasonable. Held: Section 3501 modified McNabb-Mallory but did not supplant it. Pp. 8–18. (a) The Government claims that because §3501(a) makes a confession “admissible” “if it is voluntarily given,” it entirely eliminates McNabb-Mallory with its bar to admitting even a voluntary confession if given during an unreasonable presentment delay. Corley argues that §3501(a) was only meant to overrule Miranda, and notes that only §3501(c) touches on McNabb-Mallory, making the rule inapplicable to confessions given within six hours of an arrest. He has the better argument. Pp. 8–16. (1) The Government’s reading renders §3501(c) nonsensical and superfluous. If subsection (a) really meant that any voluntary confession was admissible, then subsection (c) would add nothing; if a confession was “made voluntarily” it would be admissible, period, and never “inadmissible solely because of delay,” even a delay beyond six hours. The Government’s reading is thus at odds with the basic interpretive canon that “ ‘[a] statute should be construed [to give effect] to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’ ” Hibbs v. Winn, 542 U. S. 88, 101. The Government claims that in providing that a confession “shall not be admissible,” Congress meant that a confession “shall not be [involuntary].” Thus read, (c) would specify a bright-line rule applying (a) to cases of delay: it would tell courts that delay alone does not make a confession involuntary unless the delay exceeds six hours. But “ ‘Congress did not write the statute that way.’ ” Russello v. United States, 464 U. S. 16, 23. The terms “inadmissible” and “involuntary” are not synonymous. Congress used both in (c), and this Court “would not presume to ascribe this difference to a simple mistake in draftsmanship.” Ibid. There is also every reason to believe that Congress used the distinct terms deliberately, specifying two criteria that must be satisfied to prevent a confession from being “inadmissible solely because of delay”: the confession must be “[1] made voluntarily and … [2] within six hours [of arrest].” Moreover, under the McNabb-Mallory rule, “inadmissible” and “involuntary” mean different things. Corley’s position, in contrast, gives effect to both (c) and (a), by reading (a) as overruling Miranda and (c) as qualifying McNabb-Mallory. The Government’s counterargument—that Corley’s reading would also create a conflict, since (a) makes all voluntary confessions admissible while (c) would leave some voluntary confessions inadmissible—falls short. First, (a) is a broad directive while (c) aims only at McNabb-Mallory, and “a more specific statute [is] given precedence over a more general one.” Busic v. United States, 446 U. S. 398, 406. Second, reading (a) to create a conflict with (c) not only would make (c) superfluous, but would also create conflicts with so many other Rules of Evidence that the subsection cannot possibly be given its literal scope. Pp. 8–12. (2) The legislative history strongly favors Corley’s reading. The Government points to nothing in this history supporting its contrary view. Pp. 13–15. (3) The Government’s position would leave the Rule 5 presentment requirement without teeth, for if there is no McNabb-Mallory there is no apparent remedy for a presentment delay. The prompt presentment requirement is not just an administrative nicety. It dates back to the common law. Under Rule 5, presentment is the point at which the judge must take several key steps to foreclose Government overreaching: e.g., informing the defendant of the charges against him and giving the defendant a chance to consult with counsel. Without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, even though “custodial police interrogation, by its very nature, isolates and pressures the individual,” Dickerson v. United States, 530 U. S. 428, 435, inducing people to confess to crimes they never committed. Pp. 15–16. (b) There is no merit to the Government’s fallback claim that even if §3501 preserved a limited version of McNabb-Mallory, Congress cut it out by enacting Federal Rule of Evidence 402, which provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court … .” The Advisory Committee’s Notes expressly identified McNabb-Mallory as a statutorily authorized rule that would survive Rule 402, and the Government has previously conceded before this Court that Rule 402 preserved McNabb-Mallory. Pp. 16–18. 500 F. 3d 210, vacated and remanded. Souter, J., delivered the opinion of the Court, in which Stevens, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined. | The question here is whether Congress intended 18 U. S. C. §3501 to discard, or merely to narrow, the rule in McNabb v. United States, 318 U. S. 332 (1943), and Mallory v. United States, 354 U. S. 449 (1957), under which an arrested person’s confession is inadmissible if given after an unreasonable delay in bringing him before a judge. We hold that Congress meant to limit, not eliminate, McNabb-Mallory. I A The common law obliged an arresting officer to bring his prisoner before a magistrate as soon as he reasonably could. See County of Riverside v. McLaughlin, 500 U. S. 44, 61–62 (1991) (Scalia, J., dissenting). This “presentment” requirement tended to prevent secret detention and served to inform a suspect of the charges against him, and it was the law in nearly every American State and the National Government. See id., at 60–61; McNabb, supra, at 342, and n. 7. McNabb v. United States raised the question of how to enforce a number of federal statutes codifying the presentment rule. 318 U. S., at 342 (citing, among others, 18 U. S. C. §595 (1940 ed.), which provided that “ ‘[i]t shall be the duty of the marshal … who may arrest a person … to take the defendant before the nearest … judicial officer … for a hearing’ ”). There, federal agents flouted the requirement by interrogating several murder suspects for days before bringing them before a magistrate, and then only after they had given the confessions that convicted them. 318 U. S., at 334–338, 344–345. On the defendants’ motions to exclude the confessions from evidence, we saw no need to reach any constitutional issue. Instead we invoked the supervisory power to establish and maintain “civilized standards of procedure and evidence” in federal courts, id., at 340, which we exercised for the sake of making good on the traditional obligation embodied in the federal presentment legislation. We saw both the statutes and the traditional rule as aimed not only at checking the likelihood of resort to the third degree but meant generally to “avoid all the evil implications of secret interrogation of persons accused of crime.” Id., at 344. We acknowledged that “Congress ha[d] not explicitly forbidden the use of evidence … procured” in derogation of the presentment obligation, id., at 345, but we realized that “permit[ting] such evidence to be made the basis of a conviction in the federal courts would stultify the policy which Congress ha[d] enacted into law,” ibid., and in the exercise of supervisory authority we held confessions inadmissible when obtained during unreasonable presentment delay. Shortly after McNabb, the combined action of the Judicial Conference of the United States and Congress produced Federal Rule of Criminal Procedure 5(a), which pulled the several statutory presentment provisions together in one place. See Mallory, supra, at 452 (describing Rule 5(a) as “a compendious restatement, without substantive change, of several prior specific federal statutory provisions”). As first enacted, the rule told “[a]n officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant [to] take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States.” Fed. Rule Crim. Proc. 5(a) (1946). The rule remains much the same today: “A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge … .” Fed. Rule Crim. Proc. 5(a)(1)(A) (2007). A case for applying McNabb and Rule 5(a) together soon arose in Upshaw v. United States, 335 U. S. 410 (1948). Despite the Government’s confession of error, the D. C. Circuit had thought McNabb’s exclusionary rule applied only to involuntary confessions obtained by coercion during the period of delay, 335 U. S., at 411–412, and so held the defendant’s voluntary confession admissible into evidence. This was error, and we reiterated the reasoning of a few years earlier. “In the McNabb case we held that the plain purpose of the requirement that prisoners should promptly be taken before committing magistrates was to check resort by officers to ‘secret interrogation of persons accused of crime.’ ” Id., at 412 (quoting McNabb, supra, at 344). Upshaw consequently emphasized that even voluntary confessions are inadmissible if given after an unreasonable delay in presentment. 335 U. S., at 413. We applied Rule 5(a) again in Mallory v. United States, holding a confession given seven hours after arrest inadmissible for “unnecessary delay” in presenting the suspect to a magistrate, where the police questioned the suspect for hours “within the vicinity of numerous committing magistrates.” 354 U. S., at 455. Again, we repeated the reasons for the rule and explained, as we had before and have since, that delay for the purpose of interrogation is the epitome of “unnecessary delay.” Id., at 455–456; see also McLaughlin, 500 U. S., at 61 (Scalia, J., dissenting) (“It was clear” at common law “that the only element bearing upon the reasonableness of delay was not such circumstances as the pressing need to conduct further investigation, but the arresting officer’s ability, once the prisoner had been secured, to reach a magistrate”); Upshaw, supra, at 414. Thus, the rule known simply as McNabb-Mallory “generally render[s] inadmissible confessions made during periods of detention that violat[e] the prompt presentment requirement of Rule 5(a).” United States v. Alvarez-Sanchez, 511 U. S. 350, 354 (1994). There the law remained until 1968, when Congress enacted 18 U. S. C. §3501 in response to Miranda v. Arizona, 384 U. S. 436 (1966), and to the application of McNabb-Mallory in some federal courts. Subsections (a) and (b) of §3501 were meant to eliminate Miranda.[Footnote 1] See Dickerson v. United States, 530 U. S. 428, 435–437 (2000); infra, at 13–14. Subsection (a) provides that “[i]n any criminal prosecution brought by the United States … , a confession . . . shall be admissible in evidence if it is voluntarily given,” while subsection (b) lists several considerations for courts to address in assessing voluntariness.[Footnote 2] Subsection (c), which focused on McNabb-Mallory, see infra, at 13–14, provides that in any federal prosecution, “a confession made … by … a defendant therein, while such person was under arrest … , shall not be inadmissible solely because of delay in bringing such person before a magistrate judge … if such confession is found by the trial judge to have been made voluntarily … and if such confession was made . . . within six hours [of arrest]”; the six-hour time limit is extended when further delay is “reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate].”[Footnote 3] The issue in this case is whether Congress intended §3501(a) to sweep McNabb-Mallory’s exclusionary rule aside entirely, or merely meant §3501(c) to provide immunization to voluntary confessions given within six hours of a suspect’s arrest. B Petitioner Johnnie Corley was suspected of robbing a bank in Norristown, Pennsylvania. After federal agents learned that Corley was subject to arrest on an unrelated local matter, some federal and state officers went together to execute the state warrant on September 17, 2003, and found him just as he was pulling out of a driveway in his car. Corley nearly ran over one officer, then jumped out of the car, pushed the officer down, and ran. The agents gave chase and caught and arrested him for assaulting a federal officer. The arrest occurred about 8 a.m. 500 F. 3d 210, 212 (CA3 2007). FBI agents first kept Corley at a local police station while they questioned residents near the place he was captured. Around 11:45 a.m. they took him to a Philadelphia hospital to treat a minor cut on his hand that he got during the chase. At 3:30 p.m. the agents took him from the hospital to the Philadelphia FBI office and told him that he was a suspect in the Norristown bank robbery. Though the office was in the same building as the chambers of the nearest magistrate judges, the agents did not bring Corley before a magistrate, but questioned him instead, in hopes of getting a confession. App. 68–69, 83, 138–139. The agents’ repeated arguments sold Corley on the benefits of cooperating with the Government, and he signed a form waiving his Miranda rights. At 5:27 p.m., some 9.5 hours after his arrest, Corley began an oral confession that he robbed the bank, id., at 62, and spoke on in this vein until about 6:30, when agents asked him to put it all in writing. Corley said he was tired and wanted a break, so the agents decided to hold him overnight and take the written statement the next morning. At 10:30 a.m. on September 18 they began the interrogation again, which ended when Corley signed a written confession. He was finally presented to a magistrate at 1:30 p.m. that day, 29.5 hours after his arrest. 500 F. 3d, at 212. Corley was charged with armed bank robbery, 18 U. S. C. §2113(a), (d), conspiracy to commit armed bank robbery, §371, and using a firearm in furtherance of a crime of violence, §924(c). When he moved to suppress his oral and written confessions under Rule 5(a) and McNabb-Mallory, the District Court denied the motion, with the explanation that the time Corley was receiving medical treatment should be excluded from the delay, and that the oral confession was thus given within the six-hour window of §3501(c). Crim. No. 03–775 (ED Pa., May 10, 2004), App. 97. The District Court also held Corley’s written confession admissible, reasoning that “a break from interrogation requested by an arrestee who has already begun his confession does not constitute unreasonable delay under Rule 5(a).” Id., at 97–98. Corley was convicted of conspiracy and armed robbery but acquitted of using a firearm during a crime of violence. 500 F. 3d, at 212–213. A divided panel of the Court of Appeals for the Third Circuit affirmed the conviction, though its rationale for rejecting Corley’s Rule 5(a) argument was different from the District Court’s. The panel majority considered itself bound by Circuit precedent to the effect that §3501 entirely abrogated the McNabb-Mallory rule and replaced it with a pure voluntariness test. See 500 F. 3d, at 212 (citing Government of the Virgin Islands v. Gereau, 502 F. 2d 914 (CA3 1974)). As the majority saw it, if a district court found a confession voluntary after considering the points listed in §3501(b), it would be admissible, regardless of whether delay in presentment was unnecessary or unreasonable. 500 F. 3d, at 217. Judge Sloviter read Gereau differently and dissented with an opinion that “§3501 does not displace Rule 5(a)” or abrogate McNabb-Mallory for presentment delays beyond six hours. 500 F. 3d, at 236. We granted certiorari to resolve a division in the Circuit Courts on the reach of §3501. 554 U. S. ___ (2008). Compare United States v. Glover, 104 F. 3d 1570, 1583 (CA10 1997) (§3501 entirely supplanted McNabb-Mallory); United States v. Christopher, 956 F. 2d 536, 538–539 (CA6 1991) (same), with United States v. Mansoori, 304 F. 3d 635, 660 (CA7 2002) (§3501 limited the McNabb-Mallory rule to periods more than six hours after arrest); United States v. Perez, 733 F. 2d 1026, 1031–1032 (CA2 1984) (same).[Footnote 4] We now vacate and remand. II The Government’s argument focuses on §3501(a), which provides that any confession “shall be admissible in evidence” in federal court “if it is voluntarily given.” To the Government, subsection (a) means that once a district court looks to the considerations in §3501(b) and finds a confession voluntary, in it comes; (a) entirely eliminates McNabb-Mallory with its bar to admitting even a voluntary confession if given during an unreasonable delay in presentment. Corley argues that §3501(a) was meant to overrule Miranda and nothing more, with no effect on McNabb-Mallory, which §3501 touches only in subsection (c). By providing that a confession “shall not be inadmissible solely because of delay” in presentment if “made voluntarily and … within six hours [of arrest],” subsection (c) leaves McNabb-Mallory inapplicable to confessions given within the six hours, but when a confession comes even later, the exclusionary rule applies and courts have to see whether the delay was unnecessary or unreasonable. Corley has the better argument. A The fundamental problem with the Government’s reading of §3501 is that it renders §3501(c) nonsensical and superfluous. Subsection (c) provides that a confession “shall not be inadmissible solely because of delay” in presentment if the confession is “made voluntarily and . . . within six hours [of arrest].” If (a) really meant that any voluntary confession was admissible, as the Government contends, then (c) would add nothing; if a confession was “made voluntarily” it would be admissible, period, and never “inadmissible solely because of delay,” no matter whether the delay went beyond six hours. There is no way out of this, and the Government concedes it. Tr. of Oral Arg. 33 (“Congress never needed (c); (c) in the [G]overnment’s view was always superfluous”). The Government’s reading is thus at odds with one of the most basic interpretive canons, that “ ‘[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant … .’ ” Hibbs v. Winn, 542 U. S. 88, 101 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction §46.06, pp.181–186 (rev. 6th ed. 2000)).[Footnote 5] The Government attempts to mitigate its problem by rewriting (c) into a clarifying, if not strictly necessary, provision: although Congress wrote that a confession “shall not be inadmissible solely because of delay” if the confession is “made voluntarily and . . . within six hours [of arrest],” the Government tells us that Congress actually meant that a confession “shall not be [involuntary] solely because of delay” if the confession is “[otherwise voluntary] and . . . [made] within six hours [of arrest].” Thus rewritten, (c) would coexist peacefully (albeit inelegantly) with (a), with (c) simply specifying a bright-line rule applying (a) to cases of delay: it would tell courts that delay alone does not make a confession involuntary unless the delay exceeds six hours. To this proposal, “ ‘[t]he short answer is that Congress did not write the statute that way.’ ” Russello v. United States, 464 U. S. 16, 23 (1983) (quoting United States v. Naftalin, 441 U. S. 768, 773 (1979)). The Government may say that we can sensibly read “inadmissible” as “involuntary” because the words are “virtually synonymous … in this statutory context,” Brief for United States 23, but this is simply not so. To begin with, Congress used both terms in (c) itself, and “[w]e would not presume to ascribe this difference to a simple mistake in draftsmanship.” Russello, supra, at 23. And there is, in fact, every reason to believe that Congress used the distinct terms very deliberately. Subsection (c) specifies two criteria that must be satisfied to prevent a confession from being “inadmissible solely because of delay”: the confession must be “[1] made voluntarily and … [2] within six hours [of arrest].” Because voluntariness is thus only one of several criteria for admissibility under (c), “involuntary” and “inadmissible” plainly cannot be synonymous. What is more, the Government’s argument ignores the fact that under the McNabb-Mallory rule, which we presume Congress was aware of, Cannon v. University of Chicago, 441 U. S. 677, 699 (1979), “inadmissible” and “involuntary” mean different things. As we explained before and as the Government concedes, McNabb-Mallory makes even voluntary confessions inadmissible if given after an unreasonable delay in presentment, Upshaw, 335 U. S., at 413; Tr. of Oral Arg. 33 (“[I]t was well understood that McNabb-Mallory … excluded totally voluntary confessions”). So we cannot accept the Government’s attempt to confuse the critically distinct terms “involuntary” and “inadmissible” by rewriting (c) into a bright-line rule doing nothing more than applying (a). Corley’s position, in contrast, gives effect to both (c) and (a), by reading (a) as overruling Miranda and (c) as qualifying McNabb-Mallory. The Government answers, however, that accepting Corley’s argument would result in a different problem: it would create a conflict between (c) and (a), since (a) provides that all voluntary confessions are admissible while Corley’s reading of (c) leaves some voluntary confessions inadmissible. But the Government’s counterargument falls short for two reasons. First, even if (a) is read to be at odds with (c), the conflict is resolved by recognizing that (a) is a broad directive while (c) aims only at McNabb-Mallory, and “a more specific statute will be given precedence over a more general one … .” Busic v. United States, 446 U. S. 398, 406 (1980). Second, and more fundamentally, (a) cannot prudently be read to create a conflict with (c), not only because it would make (c) superfluous, as explained, but simply because reading (a) that way would create conflicts with so many other rules that the subsection cannot possibly be given its literal scope. Subsection (a) provides that “[i]n any criminal prosecution brought by the United States … , a confession … shall be admissible in evidence if it is voluntarily given,” and §3501(e) defines “confession” as “any confession of guilt of any criminal offense or any self-incriminating statement made or given orally or in writing.” Thus, if the Government seriously urged a literal reading, (a) would mean that “in any criminal prosecution brought by the United States … , [‘any self-incriminating statement’ with respect to ‘any criminal offense’] … shall be admissible in evidence if it is voluntarily given.” Thus would many a Rule of Evidence be overridden in case after case: a defendant’s self-incriminating statement to his lawyer would be admissible despite his insistence on attorney-client privilege; a fourth-hand hearsay statement the defendant allegedly made would come in; and a defendant’s confession to an entirely unrelated crime committed years earlier would be admissible without more. These are some of the absurdities of literalism that show that Congress could not have been writing in a literalistic frame of mind.[Footnote 6] B As it turns out, there is more than reductio ad absurdum and the antisuperfluousness canon to confirm that subsection (a) leaves McNabb-Mallory alone, for that is what legislative history says. In fact, the Government concedes that subsections (a) and (b) were aimed at Miranda, while subsection (c) was meant to modify the presentment exclusionary rule. Tr. of Oral Arg. 38 (“I will concede to you … that section (a) was considered to overrule Miranda, and subsection (c) was addressed to McNabb-Mallory”). The concession is unavoidable. The Senate, where §3501 originated, split the provision into two parts: Division 1 contained subsections (a) and (b), and Division 2 contained subsection (c). 114 Cong. Rec. 14171 (1968). In the debate on the Senate floor immediately before voting on these proposals, several Senators, including the section’s prime sponsor, Senator McClellan, explained that Division 1 “has to do with the Miranda decision,” while Division 2 related to Mallory. 114 Cong. Rec. 14171–14172. This distinct intent was confirmed by the separate Senate votes adopting the two measures, Division 1 by 55 to 29 and Division 2 by 58 to 26, id., at 14171–14172, 14174–14175; if (a) did abrogate McNabb-Mallory, as the Government claims, then voting for Division 2 would have been entirely superfluous, for the Division 1 vote would already have done the job. That aside, a sponsor’s statement to the full Senate carries considerable weight, and Senator McClellan’s explanation that Division 1 was specifically addressed to Miranda confirms that (a) and (b) were never meant to reach far enough to abrogate other background evidentiary rules including McNabb-Mallory. Further legislative history not only drives that point home, but conclusively shows an intent that subsection (c) limit McNabb-Mallory, not replace it. In its original draft, subsection (c) would indeed have done away with McNabb-Mallory completely, for the bill as first written would have provided that “[i]n any criminal prosecution by the United States … , a confession made or given by a person who is a defendant therein … shall not be inadmissible solely because of delay in bringing such person before a [magistrate] if such confession is … made voluntarily.” S. 917, 90th Cong., 2d Sess., 44–45 (1968) (as reported by Senate Committee on the Judiciary); 114 Cong. Rec. 14172. The provision so conceived was resisted, however, by a number of Senators worried about allowing indefinite presentment delays. See, e.g., id., at 11740, 13990 (Sen. Tydings) (the provision would “permit Federal criminal suspects to be questioned indefinitely before they are presented to a committing magistrate”); id., at 12290 (Sen. Fong) (the provision “would open the doors to such practices as holding suspects incommunicado for an indefinite period”). After Senator Tydings proposed striking (c) from the bill altogether, id., at 13651 (Amendment No. 788), Senator Scott introduced the compromise of qualifying (c) with the words: “ ‘and if such confession was made or given by such person within six hours following his arrest or other detention.’ ” Id., at 14184–14185 (Amendment No. 805).[Footnote 7] The amendment was intended to confine McNabb-Mallory to excluding only confessions given after more than six hours of delay, see 114 Cong. Rec. 14184 (remarks of Sen. Scott) (“My amendment provides that the period during which confessions may be received … shall in no case exceed 6 hours”), and it was explicitly modeled on the provision Congress had passed just months earlier to govern presentment practice in the District of Columbia, Title III of An Act Relating to Crime and Criminal Procedure in the District of Columbia (D. C. Crime Act), §301(b), 81 Stat. 735–736, see, e.g., 114 Cong. Rec. 14184 (remarks of Sen. Scott) (“My amendment is an attempt to conform, as nearly as practicable, to Title III of [the D. C. Crime Act]”). By the terms of that Act, “[a]ny statement, admission, or confession made by an arrested person within three hours immediately following his arrest shall not be excluded from evidence in the courts of the District of Columbia solely because of delay in presentment.” §301(b), 81 Stat. 735–736. Given the clear intent that Title III modify but not eliminate McNabb-Mallory in the District of Columbia, see, e.g., S. Rep. No. 912, 90th Cong., 1st Sess., 17–18 (1967), using it as a model plainly shows how Congress meant as much but no more in §3501(c). In sum, the legislative history strongly favors Corley’s reading. The Government points to nothing in this history supporting its view that (c) created a bright-line rule for applying (a) in cases with a presentment issue. C It also counts heavily against the position of the United States that it would leave the Rule 5 presentment requirement without any teeth, for as the Government again is forced to admit, if there is no McNabb-Mallory there is no apparent remedy for delay in presentment. Tr. of Oral Arg. 25. One might not care if the prompt presentment requirement were just some administrative nicety, but in fact the rule has always mattered in very practical ways and still does. As we said, it stretches back to the common law, when it was “one of the most important” protections “against unlawful arrest.” McLaughlin, 500 U. S., at 60–61 (Scalia, J., dissenting). Today presentment is the point at which the judge is required to take several key steps to foreclose Government overreaching: informing the defendant of the charges against him, his right to remain silent, his right to counsel, the availability of bail, and any right to a preliminary hearing; giving the defendant a chance to consult with counsel; and deciding between detention or release. Fed. Rule Crim. Proc. 5(d); see also Rule 58(b)(2). In a world without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to. See McNabb, 318 U. S. 332. No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. “[C]ustodial police interrogation, by its very nature, isolates and pressures the individual,” Dickerson, 530 U. S., at 435, and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed, see, e.g., Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N. C. L. Rev. 891, 906–907 (2004). Justice Frankfurter’s point in McNabb is as fresh as ever: “The history of liberty has largely been the history of observance of procedural safeguards.” 318 U. S., at 347. McNabb-Mallory is one of them, and neither the text nor the history of §3501 makes out a case that Congress meant to do away with it. III The Government’s fallback claim is that even if §3501 preserved a limited version of McNabb-Mallory, Congress cut out the rule altogether by enacting Federal Rule of Evidence 402 in 1975. Act of Jan. 2, Pub. L. 93–595, 88 Stat. 1926. So far as it might matter here, that rule provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.” The Government says that McNabb-Mallory excludes relevant evidence in a way not “otherwise provided by” any of these four authorities, and so has fallen to the scythe. The Government never raised this argument in the Third Circuit or the District Court, which would justify refusing to consider it here, but in any event it has no merit. The Advisory Committee’s Notes on Rule 402, which were before Congress when it enacted the Rules of Evidence and which we have relied on in the past to interpret the rules, Tome v. United States, 513 U. S. 150, 160 (1995) (plurality opinion), expressly identified McNabb-Mallory as a statutorily authorized rule that would survive Rule 402: “The Rules of Civil and Criminal Procedure in some instances require the exclusion of relevant evidence. For example, … the effective enforcement of … Rule 5(a) … is held to require the exclusion of statements elicited during detention in violation thereof.” 28 U. S. C. App., pp. 325–326 (citing Mallory, 354 U. S. 449, and 18 U. S. C. §3501(c)); see also Mallory, supra, at 451 (“Th[is] case calls for a proper application of Rule 5(a) of the Federal Rules of Criminal Procedure …”). Indeed, the Government has previously conceded before this Court that Rule 402 preserved McNabb-Mallory. Brief for United States in United States v. Payner, O. T. 1979, No. 78–1729, p. 32, and n. 13 (1979) (saying that Rule 402 “left to the courts … questions concerning the propriety of excluding relevant evidence as a method of implementing the Constitution, a federal statute, or a statutorily authorized rule,” and citing McNabb-Mallory as an example). The Government was right the first time, and it would be bizarre to hold that Congress adopted Rule 402 with a purpose exactly opposite to what the Advisory Committee Notes said the rule would do. IV We hold that §3501 modified McNabb-Mallory without supplanting it. Under the rule as revised by §3501(c), a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was “reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]”). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was “made voluntarily and … the weight to be given [it] is left to the jury.” Ibid. If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed. In this case, the Third Circuit did not apply this rule and in consequence never conclusively determined whether Corley’s oral confession “should be treated as having been made within six hours of arrest,” as the District Court held. 500 F. 3d, at 220, n. 7. Nor did the Circuit consider the justifiability of any delay beyond six hours if the oral confession should be treated as given outside the six-hour window; and it did not make this enquiry with respect to Corley’s written confession. We therefore vacate the judgment of the Court of Appeals and remand the case for consideration of those issues in the first instance, consistent with this opinion. It is so ordered. Footnote 1 We rejected this attempt to overrule Miranda in Dickerson v. United States, 530 U. S. 428 (2000). Footnote 2 In full, subsections (a) and (b) provide: “(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances. “(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. “The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.” Footnote 3 In full, subsection (c) provides: “In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate judge or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate judge or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate judge or other officer.” Footnote 4 We granted certiorari to resolve this question once before, in United States v. Alvarez-Sanchez, 511 U. S. 350 (1994), but ultimately resolved that case on a different ground, id., at 355–360. Footnote 5 The dissent says that the antisuperfluousness canon has no place here because “there is nothing ambiguous about the language of §3501(a).” Post, at 2 (opinion of Alito, J.). But this response violates “the cardinal rule that a statute is to be read as a whole,” King v. St. Vincent’s Hospital, 502 U. S. 215, 221 (1991). Subsection 3501(a) seems clear only if one ignores the absurd results of a literal reading, infra, at 11–12, and only until one reads §3501(c) and recognizes that if (a) means what it literally says, (c) serves no purpose. Even the dissent concedes that when (a) and (c) are read together, “[t]here is simply no perfect solution to the problem before us.” Post, at 4. Thus, the dissent’s point that subsection (a) seems clear when read in isolation proves nothing, for “[t]he meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132 (2000). When subsection (a) is read in context, there is no avoiding the question, “What could Congress have been getting at with both (a) and (c)?” The better answer is that Congress meant to do just what Members explicitly said in the legislative record. See infra, at 13–15. Footnote 6 The dissent seeks to avoid these absurd results by claiming that “§3501(a) does not supersede ordinary evidence Rules,” post, at 10, but its only argument for this conclusion is that “there is no reason to suppose that Congress meant any such thing,” post, at 9. The dissent is certainly correct that there is no reason to suppose that Congress meant any such thing; that is what our reductio ad absurdum shows. But that leaves the dissent saying, “§3501(a) must be read literally” (rendering §3501(c) superfluous), “but not too literally” (so that it would override other Rules of Evidence). The dissent cannot have it both ways. If it means to profess literalism it will have to take the absurdity that literalism brings with it; “credo quia absurdum” (as Tertullian may have said). If it will not take the absurd, then its literalism is no alternative to our reading of the statute. Footnote 7 The proviso at the end of (c) relating to reasonable delays caused by the means of transportation and distance to be traveled came later by separate amendment. 114 Cong. Rec. 14787. |
555.US.2008_06-1595 | In response to questions from an official of respondent local government (Metro) during an internal investigation into rumors of sexual harassment by the Metro School District employee relations director (Hughes), petitioner Crawford, a 30-year employee, reported that Hughes had sexually harassed her. Metro took no action against Hughes, but soon fired Crawford, alleging embezzlement. She filed suit under Title VII of the Civil Rights Act of 1964, claiming that Metro was retaliating for her report of Hughes’s behavior, in violation of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any … employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter” (opposition clause), or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (participation clause). The court granted Metro summary judgment, and the Sixth Circuit affirmed, holding that the opposition clause demanded “active, consistent” opposing activities, whereas Crawford had not initiated any complaint prior to the investigation, and finding that the participation clause did not cover Metro’s internal investigation because it was not conducted pursuant to a Title VII charge pending with the Equal Employment Opportunity Commission. Held: The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. Because “oppose” is undefined by statute, it carries its ordinary dictionary meaning of resisting or contending against. Crawford’s statement is thus covered by the opposition clause, as an ostensibly disapproving account of Hughes’s sexually obnoxious behavior toward her. “Oppose” goes beyond “active, consistent” behavior in ordinary discourse, and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it. Thus, a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion. Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question. Metro unconvincingly argues for the Sixth Circuit’s active, consistent opposition rule, claiming that employers will be less likely to raise questions about possible discrimination if a retaliation charge is easy to raise when things go badly for an employee who responded to enquiries. Employers, however, have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 765, and Faragher v. Boca Raton, 524 U. S. 775, 807, hold “[a]n employer … subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with … authority over the employee.” The Circuit’s rule could undermine the Ellerth-Faragher scheme, along with the statute’s “ ‘primary objective’ ” of “avoid[ing] harm” to employees, Faragher, supra, at 806, for if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses. Because Crawford’s conduct is covered by the opposition clause, this Court does not reach her argument that the Sixth Circuit also misread the participation clause. Metro’s other defenses to the retaliation claim were never reached by the District Court, and thus remain open on remand. Pp. 3–8. 211 Fed. Appx. 373, reversed and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. | Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. (2000 ed. and Supp. V), forbids retaliation by employers against employees who report workplace race or gender discrimination. The question here is whether this protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. We hold that it does. I In 2002, respondent Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), began looking into rumors of sexual harassment by the Metro School District’s employee relations director, Gene Hughes.[Footnote 1] 211 Fed. Appx. 373, 374 (CA6 2006). When Veronica Frazier, a Metro human resources officer, asked petitioner Vicky Crawford, a 30-year Metro employee, whether she had witnessed “inappropriate behavior” on the part of Hughes, id., at 374–375, Crawford described several instances of sexually harassing behavior: once, Hughes had answered her greeting, “ ‘Hey Dr. Hughes, what’s up?,’ ” by grabbing his crotch and saying “ ‘[Y]ou know what’s up’ ”; he had repeatedly “ ‘put his crotch up to [her] window’ ”; and on one occasion he had entered her office and “ ‘grabbed her head and pulled it to his crotch,’ ” id., at 375, and n. 1. Two other employees also reported being sexually harassed by Hughes. Id., at 375. Although Metro took no action against Hughes, it did fire Crawford and the two other accusers soon after finishing the investigation, saying in Crawford’s case that it was for embezzlement. Ibid. Crawford claimed Metro was retaliating for her report of Hughes’s behavior and filed a charge of a Title VII violation with the Equal Employment Opportunity Commission (EEOC), followed by this suit in the United States District Court for the Middle District of Tennessee. Ibid. The Title VII antiretaliation provision has two clauses, making it “an unlawful employment practice for an employer to discriminate against any of his employees … [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U. S. C. §2000e–3(a). The one is known as the “opposition clause,” the other as the “participation clause,” and Crawford accused Metro of violating both. The District Court granted summary judgment for Metro. It held that Crawford could not satisfy the opposition clause because she had not “instigated or initiated any complaint,” but had “merely answered questions by investigators in an already-pending internal investigation, initiated by someone else.” Memorandum Opinion, No. 3:03–cv–00996 (MD Tenn., Jan. 6, 2005), App. C to Pet. for Cert. 16a–17a. It concluded that her claim also failed under the participation clause, which Sixth Circuit precedent confined to protecting “ ‘an employee’s participation in an employer’s internal investigation … where that investigation occurs pursuant to a pending EEOC charge’ ” (not the case here). Id., at 15a (emphasis omitted) (quoting Abbott v. Crown Motor Co., 348 F. 3d 537, 543 (CA6 2003)). The Court of Appeals affirmed on the same grounds, holding that the opposition clause “ ‘demands active, consistent “opposing” activities to warrant … protection against retaliation,’ ” 211 Fed. Appx., at 376 (quoting Bell v. Safety Grooving & Grinding, LP, 107 Fed. Appx. 607, 610 (CA6 2004)), whereas Crawford did “not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing.” 211 Fed. Appx., at 376. Again like the trial judge, the Court of Appeals understood that Crawford could show no violation of the participation clause because her “ ‘employer’s internal investigation’ ” was not conducted “ ‘pursuant to a pending EEOC charge.’ ” Ibid. (quoting Abbott, supra, at 543). Because the Sixth Circuit’s decision conflicts with those of other Circuits, particularly as to the opposition clause, see, e.g., McDonnell v. Cisneros, 84 F. 3d 256, 262 (CA7 1996), we granted Crawford’s petition for certiorari. 552 U. S. ___ (2008). We now reverse and remand for further proceedings. II The opposition clause makes it “unlawful … for an employer to discriminate against any … employe[e] … because he has opposed any practice made … unlawful … by this subchapter.” §2000e–3(a). The term “oppose,” being left undefined by the statute, carries its ordinary meaning, Perrin v. United States, 444 U. S. 37, 42 (1979): “to resist or antagonize … ; to contend against; to confront; resist; withstand,” Webster’s New International Dictionary 1710 (2d ed. 1958). Although these actions entail varying expenditures of energy, “resist frequently implies more active striving than oppose.” Ibid.; see also Random House Dictionary of the English Language 1359 (2d ed. 1987) (defining “oppose” as “to be hostile or adverse to, as in opinion”). The statement Crawford says she gave to Frazier is thus covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense. Crawford’s description of the louche goings-on would certainly qualify in the minds of reasonable jurors as “resist[ant]” or “antagoni[stic]” to Hughes’s treatment, if for no other reason than the point argued by the Government and explained by an EEOC guideline: “When an employee communicates to her employer a belief that the employer has engaged in … a form of employment discrimination, that communication” virtually always “constitutes the employee’s opposition to the activity.” Brief for United States as Amicus Curiae 9 (citing 2 EEOC Compliance Manual §§8–II–B(1), (2), p. 614:0003 (Mar. 2003)); see also Federal Express Corp. v. Holowecki, 552 U. S. ___, ___ (2008) (slip op., at 8) (explaining that EEOC compliance manuals “reflect ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance’ ” (quoting Bragdon v. Abbott, 524 U. S. 624, 642 (1998))). It is true that one can imagine exceptions, like an employee’s description of a supervisor’s racist joke as hilarious, but these will be eccentric cases, and this is not one of them.[Footnote 2] The Sixth Circuit thought answering questions fell short of opposition, taking the view that the clause “ ‘demands active, consistent “opposing” activities to warrant … protection against retaliation,’ ” 211 Fed. Appx., at 376 (quoting Bell, supra, at 610), and that an employee must “instigat[e] or initiat[e]” a complaint to be covered, 211 Fed. Appx., at 376. But though these requirements obviously exemplify opposition as commonly understood, they are not limits of it. “Oppose” goes beyond “active, consistent” behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to “oppose” slavery before Emancipation, or are said to “oppose” capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it “opposition” if an employee took a stand against an employer’s discriminatory practices not by “instigating” action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons. Cf. McDonnell, supra, at 262 (finding employee covered by Title VII of the Civil Rights Act of 1964 where his employer retaliated against him for failing to prevent his subordinate from filing an EEOC charge). There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question. Metro and its amici support the Circuit panel’s insistence on “active” and “consistent” opposition by arguing that the lower the bar for retaliation claims, the less likely it is that employers will look into what may be happening outside the executive suite. As they see it, if retaliation is an easy charge when things go bad for an employee who responded to enquiries, employers will avoid the headache by refusing to raise questions about possible discrimination. The argument is unconvincing, for we think it underestimates the incentive to enquire that follows from our decisions in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998). Ellerth and Faragher hold “[a]n employer … subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with … authority over the employee.” Ellerth, supra, at 765; Faragher, supra, at 807. Although there is no affirmative defense if the hostile environment “culminates in a tangible employment action” against the employee, Ellerth, 524 U. S., at 765, an employer does have a defense “[w]hen no tangible employment action is taken” if it “exercised reasonable care to prevent and correct promptly any” discriminatory conduct and “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” ibid. Employers are thus subject to a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability. Ibid.; see also Brief for Petitioner 24–28, and nn. 31–35 (citing studies demonstrating that Ellerth and Faragher have prompted many employers to adopt or strengthen procedures for investigating, preventing, and correcting discriminatory conduct). The possibility that an employer might someday want to fire someone who might charge discrimination traceable to an internal investigation does not strike us as likely to diminish the attraction of an Ellerth-Faragher affirmative defense. That aside, we find it hard to see why the Sixth Circuit’s rule would not itself largely undermine the Ellerth-Faragher scheme, along with the statute’s “ ‘primary objective’ ” of “avoid[ing] harm” to employees. Faragher, supra, at 806 (quoting Albemarle Paper Co. v. Moody, 422 U. S. 405, 417 (1975)). If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others. This is no imaginary horrible given the documented indications that “[f]ear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” Brake, Retaliation, 90 Minn. L. Rev. 18, 20 (2005); see also id., at 37, and n. 58 (compiling studies). The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of … preventive or corrective opportunities provided by the employer.” Ellerth, supra, at 765. Nothing in the statute’s text or our precedent supports this catch-22.[Footnote 3] Because Crawford’s conduct is covered by the opposition clause, we do not reach her argument that the Sixth Circuit misread the participation clause as well. But that does not mean the end of this case, for Metro’s motion for summary judgment raised several defenses to the retaliation charge besides the scope of the two clauses; the District Court never reached these others owing to its ruling on the elements of retaliation, and they remain open on remand. III The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Because this case arises out of the District Court’s grant of summary judgment for Metro, “we are required to view all facts and draw all reasonable inferences in favor of the nonmoving party, [Crawford].” Brosseau v. Haugen, 543 U. S. 194, 195, n. 2 (2004) (per curiam). Footnote 2 Metro suggests in passing that it was unclear whether Crawford actually opposed Hughes’s behavior because some of her defensive responses were “inappropriate,” such as telling Hughes to “bite me” and “flip[ping] him a bird.” Brief for Respondent 1–2 (internal quotation marks omitted). This argument fails not only because at the summary judgment stage we must “view all facts and draw all reasonable inferences in [Crawford’s] favor,” Brosseau, 543 U. S., at 195, n. 2, but also because Crawford gave no indication that Hughes’s gross clowning was anything but offensive to her. Footnote 3 Metro also argues that “[r]equiring the employee to actually initiate a complaint … conforms with the employee’s ‘obligation of reasonable care to avoid harm’ articulated in Faragher and Ellerth.” Brief for Respondent 28 (quoting Faragher v. Boca Raton, 524 U. S. 775, 807 (1998)). But that mitigation requirement only applies to employees who are suffering discrimination and have the opportunity to fix it by “tak[ing] advantage of any preventive or corrective opportunities provided by the employer,” ibid.; it is based on the general principle “that a victim has a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize … damages,’ ” id., at 806 (quoting Ford Motor Co. v. EEOC, 458 U. S. 219, 231, n. 15 (1982)). We have never suggested that employees have a legal obligation to report discrimination against others to their employer on their own initiative, let alone lose statutory protection by failing to speak. Extending the mitigation requirement so far would make no sense; employees will often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered by others. Thus, they are not “victims” of anything until they are retaliated against, and it would be absurd to require them to “mitigate” damages they may be unaware they will suffer. |
557.US.2008_08-453 | To determine whether various national banks had violated New York’s fair-lending laws, the State’s Attorney General, whose successor in office is the petitioner here, sent them letters in 2005 requesting “in lieu of subpoena” that they provide certain nonpublic information about their lending practices. Respondents, the federal Office of the Comptroller of the Currency (Comptroller or OCC) and a banking trade group, brought suit to enjoin the information request, claiming that the Comptroller’s regulation promulgated under the National Bank Act (NBA) prohibits that form of state law enforcement against national banks. The District Court entered an injunction prohibiting the Attorney General from enforcing state fair-lending laws through demands for records or judicial proceedings. The Second Circuit affirmed. Held: The Comptroller’s regulation purporting to pre-empt state law enforcement is not a reasonable interpretation of the NBA. Pp. 2–15. (a) Evidence from the time of the NBA’s enactment, this Court’s cases, and application of normal construction principles make clear that the NBA does not prohibit ordinary enforcement of state law. Pp. 2–11. (i) The NBA provides: “No national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts … , or … directed by Congress.” 12 U. S. C. §484(a). Among other things, the Comptroller’s regulation implementing §484(a) forbids States to “exercise visitorial powers with respect to national banks, such as conducting examinations, inspecting or requiring the production of books or records,” or, as here pertinent, “prosecuting enforcement actions” “except in limited circumstances authorized by federal law.” 12 CFR §7.4000(a)(1). There is some ambiguity in the NBA’s term “visitorial powers,” and the Comptroller can give authoritative meaning to the term within the bounds of that uncertainty. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837. However, the presence of some uncertainty does not expand Chevron deference to cover virtually any interpretation of the NBA. Pp. 2–3. (ii) When the NBA was enacted in 1864, scholars and courts understood “visitation” to refer to the sovereign’s supervisory power over the manner in which corporations conducted business, see, e.g., Guthrie v. Harkness, 199 U. S. 148, 157. That power allowed the States to use the prerogative writs to exercise control if a corporation abused its lawful power, acted adversely to the public, or created a nuisance. Pp. 3–4. (iii) This Court’s consistent teaching, both before and after the NBA’s enactment, is that a sovereign’s “visitorial powers” and its power to enforce the law are two different things. See, e.g., Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 676, 681; Guthrie, supra, at 159, 157; First Nat. Bank in St. Louis v. Missouri, 263 U. S. 640, 660. Watters v. Wachovia Bank, N. A., 550 U. S. 1, 21, distinguished. And contrary to the Comptroller’s regulation, the NBA pre-empts only the former. Pp. 4–7. (iv) The regulation’s consequences also cast its validity into doubt: Even the OCC acknowledges that the NBA leaves in place some state substantive laws affecting banks, yet the Comptroller’s rule says that the State may not enforce its valid, non-pre-empted laws against national banks. “To demonstrate the binding quality of a statute but deny the power of enforcement involves a fallacy made apparent by the mere statement of the proposition, for such power is essentially inherent in the very conception of law.” St. Louis, supra, at 660. In contrast, channeling state attorneys general into judicial law-enforcement proceedings (rather than allowing them to exercise “visitorial” oversight) would preserve a regime of exclusive administrative oversight by the Comptroller while honoring in fact rather than merely in theory Congress’s decision not to pre-empt substantive state law. This reading is also suggested by §484(a)’s otherwise inexplicable reservation of state powers “vested in the courts of justice.” And on a pragmatic level, the difference between visitation and law enforcement is clear: If a State chooses to pursue enforcement of its laws in court, its targets are protected by discovery and procedural rules. Pp. 7–9. (b) The Comptroller’s interpretation of the regulation demonstrates its own flaw: the Comptroller is forced to limit the regulation’s sweep in areas such as contract enforcement and debt collection, but those exceptions rest upon neither the regulation’s nor the NBA’s text. Pp. 9–11. (c) The dissent’s objections are addressed and rejected. Pp. 11–13. (d) Under the foregoing principles, the Comptroller reasonably interpreted the NBA’s “visitorial powers” term to include “conducting examinations [and] inspecting or requiring the production of books or records of national banks,” when the State conducts those activities as supervisor of corporations. When, however, a state attorney general brings suit to enforce state law against a national bank, he is not acting in the role of sovereign-as-supervisor, but rather sovereign-as-law-enforcer. Because such a lawsuit is not an exercise of “visitorial powers,” the Comptroller erred by extending that term to include “prosecuting enforcement actions” in state courts. In this case, the Attorney General’s threatened action was not the bringing of a civil suit, or the obtaining of a judicial search warrant based on probable cause, but the issuance of subpoena on his own authority if his request for information was not voluntarily honored. That is not the exercise of the law enforcement power “vested in the courts of justice,” which the NBA exempts from the ban on the exercise of supervisory power. Accordingly, the injunction below is affirmed as applied to the Attorney General’s threatened issuance of executive subpoenas, but vacated insofar as it prohibits the Attorney General from bringing judicial enforcement actions. Pp. 13–15. 510 F. 3d 105, affirmed in part and reversed in part. Scalia, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Roberts, C. J., and Kennedy and Alito, JJ., joined. | In 2005, Eliot Spitzer, Attorney General for the State of New York, sent letters to several national banks making a request “in lieu of subpoena” that they provide certain non-public information about their lending practices. He sought this information to determine whether the banks had violated the State’s fair-lending laws. Spitzer’s successor in office, Andrew Cuomo, is the petitioner here. Respondents, the federal Office of the Comptroller of the Currency (“Comptroller” or “OCC”) and the Clearing House Association, a banking trade group, brought suit to enjoin the information request, claiming that the Comptroller’s regulation promulgated under the National Bank Act prohibits that form of state law enforcement against national banks. The United States District Court for the Southern District of New York entered an injunction in favor of respondents, prohibiting the attorney general from enforcing state fair-lending laws through demands for records or judicial proceedings. The United States Court of Appeals for the Second Circuit affirmed. 510 F. 3d 105 (2007). We granted certiorari. 555 U. S. ___ (2009). The question presented is whether the Comptroller’s regulation purporting to pre-empt state law enforcement can be upheld as a reasonable interpretation of the National Bank Act. I Section 484(a) of Title 12, U. S. C., a provision of the National Bank Act, 13 Stat. 99, reads as follows: “No national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice or such as shall be, or have been exercised or directed by Congress or by either House thereof or by any committee of Congress or of either House duly authorized.” The Comptroller, charged with administering the National Bank Act, adopted, through notice-and-comment rulemaking, the regulation at issue here designed to implement the statutory provision. Its principal provisions read as follows: “§7.4000 Visitorial powers. “(a) General rule. (1) Only the OCC or an authorized representative of the OCC may exercise visitorial powers with respect to national banks, except as provided in paragraph (b) of this section. State officials may not exercise visitorial powers with respect to national banks, such as conducting examinations, inspecting or requiring the production of books or records of national banks, or prosecuting enforcement actions, except in limited circumstances authorized by federal law. However, production of a bank’s records (other than non-public OCC information under 12 CFR part 4, subpart C) may be required under normal judicial procedures. “(2) For purposes of this section, visitorial powers include: “(i) Examination of a bank; “(ii) Inspection of a bank’s books and records; “(iii) Regulation and supervision of activities authorized or permitted pursuant to federal banking law; and “(iv) Enforcing compliance with any applicable federal or state laws concerning those activities.” 12 CFR §7.4000 (2009). By its clear text, this regulation prohibits the States from “prosecuting enforcement actions” except in “limited circumstances authorized by federal law.” Under the familiar Chevron framework, we defer to an agency’s reasonable interpretation of a statute it is charged with administering. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). There is necessarily some ambiguity as to the meaning of the statutory term “visitorial powers,” especially since we are working in an era when the prerogative writs—through which visitorial powers were traditionally enforced—are not in vogue. The Comptroller can give authoritative meaning to the statute within the bounds of that uncertainty. But the presence of some uncertainty does not expand Chevron deference to cover virtually any interpretation of the National Bank Act. We can discern the outer limits of the term “visitorial powers” even through the clouded lens of history. They do not include, as the Comptroller’s expansive regulation would provide, ordinary enforcement of the law. Evidence from the time of the statute’s enactment, a long line of our own cases, and application of normal principles of construction to the National Bank Act make that clear. A Historically, the sovereign’s right of visitation over corporations paralleled the right of the church to supervise its institutions and the right of the founder of a charitable institution “to see that [his] property [was] rightly employed,” 1 W. Blackstone, Commentaries on the Laws of England 469 (1765). By extension of this principle, “[t]he king [was] by law the visitor of all civil corporations,” ibid. A visitor could inspect and control the visited institution at will. When the National Bank Act was enacted in 1864, “visitation” was accordingly understood as “[t]he act of examining into the affairs of a corporation” by “the government itself.” 2 J. Bouvier, A Law Dictionary 790 (15th ed. 1883). Lower courts understood “visitation” to mean “the act of a superior or superintending officer, who visits a corporation to examine into its manner of conducting business, and enforce an observance of its laws and regulations.” First Nat. Bank of Youngstown v. Hughes, 6 F. 737, 740 (CC ND Ohio 1881). A State was the “visitor” of all companies incorporated in the State, simply by virtue of the State’s role as sovereign: The “legislature is the visitor of all corporations founded by it.” Guthrie v. Harkness, 199 U. S. 148, 157 (1905) (internal quotation marks omitted). This relationship between sovereign and corporation was understood to allow the States to use prerogative writs—such as mandamus and quo warranto—to exercise control “whenever a corporation [wa]s abusing the power given it, or, … or acting adversely to the public, or creating a nuisance.” H. Wilgus, Private Corporations, in 8 American Law and Procedure §157, pp. 224–225 (1910). State visitorial commissions were authorized to “exercise a general supervision” over companies in the State. I. Wormser, Private Corporations §80, pp. 100, 101, in 4 Modern American Law (1921). B Our cases have always understood “visitation” as this right to oversee corporate affairs, quite separate from the power to enforce the law. In the famous Dartmouth College case, Justice Story, describing visitation of a charitable corporation, wrote that Dartmouth was “subject to the controlling authority of its legal visitor, who … may amend and repeal its statutes, remove its officers, correct abuses, and generally superintend the management of [its] trusts,” and who are “liable to no supervision or control.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 676, 681 (1819) (concurring opinion). This power of “genera[l] superintend[ence]” stood in contrast to action by the court of chancery, which acted “not as itself possessing a visitorial power … but as possessing a general jurisdiction … to redress grievances, and frauds.” Id., at 676.[Footnote 1] In Guthrie, supra, we held that a shareholder acting in his role as a private individual was not exercising a “visitorial power” under the National Bank Act when he petitioned a court to force the production of corporate records, id., at 159. “[C]ontrol in the courts of justice,” we said, is not visitorial, and we drew a contrast between the nonvisitorial act of “su[ing] in the courts of the State” and the visitorial “supervision of the Comptroller of the Currency,” id., at 159, 157. In First Nat. Bank in St. Louis v. Missouri, 263 U. S. 640 (1924), we upheld the right of the Attorney General of Missouri to bring suit to enforce a state anti-bank-branching law against a national bank. We said that only the United States may perform visitorial administrative oversight, such as “inquir[ing] by quo warranto whether a national bank is acting in excess of its charter powers.” Id., at 660. But if a state statute of general applicability is not substantively pre-empted, then “the power of enforcement must rest with the [State] and not with” the National Government, ibid.[Footnote 2] Our most recent decision, Watters v. Wachovia Bank, N. A., 550 U. S. 1 (2007), does not, as the dissent contends, post, at 18, “suppor[t] OCC’s construction of the statute.” To the contrary, it is fully in accord with the well established distinction between supervision and law enforcement. Watters held that a State may not exercise “ ‘general supervision and control’ ” over a subsidiary of a national bank, 550 U. S., at 8, because “multiple audits and surveillance under rival oversight regimes” would cause uncertainty, id., at 21. “[G]eneral supervision and control” and “oversight” are worlds apart from law enforcement. All parties to the case agreed that Michigan’s general oversight regime could not be imposed on national banks; the sole question was whether operating subsidiaries of national banks enjoyed the same immunity from state visitation. The opinion addresses and answers no other question. The foregoing cases all involve enforcement of state law. But if the Comptroller’s exclusive exercise of visitorial powers precluded law enforcement by the States, it would also preclude law enforcement by federal agencies. Of course it does not. See, e.g., Bank of America Nat. Trust & Sav. Assn. v. Douglas, 105 F. 2d 100, 105–106 (CADC 1939) (Securities Exchange Commission investigation of bank fraud is not an exercise of “visitorial powers”); Peoples Bank of Danville v. Williams, 449 F. Supp. 254, 260 (WD Va. 1978) (same). In sum, the unmistakable and utterly consistent teaching of our jurisprudence, both before and after enactment of the National Bank Act, is that a sovereign’s “visitorial powers” and its power to enforce the law are two different things. There is not a credible argument to the contrary. And contrary to what the Comptroller’s regulation says, the National Bank Act pre-empts only the former. C The consequences of the regulation also cast doubt upon its validity. No one denies that the National Bank Act leaves in place some state substantive laws affecting banks. See Brief for Federal Respondent 20; Brief for Respondent Clearing House Association, L. L. C. 29; post, at 16–17. But the Comptroller’s rule says that the State may not enforce its valid, non-pre-empted laws against national banks. Ibid. The bark remains, but the bite does not. The dissent admits, with considerable understatement, that such a result is “unusual,” ibid. “Bizarre” would be more apt. As the Court said in St. Louis: “To demonstrate the binding quality of a statute but deny the power of enforcement involves a fallacy made apparent by the mere statement of the proposition, for such power is essentially inherent in the very conception of law.” 263 U. S., at 660. In sharp contrast to the “unusual” reading propounded by the Comptroller’s regulation, reading “visitorial powers” as limiting only sovereign oversight and supervision would produce an entirely commonplace result—the precise result contemplated by our opinion in St. Louis, which said that if a state statute is valid as to national banks, “the corollary that it is obligatory and enforceable necessarily results.” Id., at 659–660 (emphasis added). Channeling state attorneys general into judicial law-enforcement proceedings (rather than allowing them to exercise “visitorial” oversight) would preserve a regime of exclusive administrative oversight by the Comptroller while honoring in fact rather than merely in theory Congress’s decision not to pre-empt substantive state law. This system echoes many other mixed state/federal regimes in which the Federal Government exercises general oversight while leaving state substantive law in place. See, e.g., Wyeth v. Levine, 555 U. S. ___ (2009). This reading is also suggested by §484(a)’s otherwise inexplicable reservation of state powers “vested in the courts of justice.” As described earlier, visitation was normally conducted through use of the prerogative writs of mandamus and quo warranto. The exception could not possibly exempt that manner of exercising visitation, or else the exception would swallow the rule. Its only conceivable purpose is to preserve normal civil and criminal lawsuits. To be sure, the reservation of powers “vested in the courts of justice” is phrased as an exception from the prohibition of visitorial powers. But as we have just discussed, it cannot possibly be that, and it is explicable only as an attempt to make clear that the courts’ ordinary powers of enforcing the law are not affected. [Footnote 3] On a pragmatic level, the difference between visitation and law enforcement is clear. If a State chooses to pursue enforcement of its laws in court, then it is not exercising its power of visitation and will be treated like a litigant. An attorney general acting as a civil litigant must file a lawsuit, survive a motion to dismiss, endure the rules of procedure and discovery, and risk sanctions if his claim is frivolous or his discovery tactics abusive. Judges are trusted to prevent “fishing expeditions” or an undirected rummaging through bank books and records for evidence of some unknown wrongdoing. In New York, civil discovery is far more limited than the full range of “visitorial powers” that may be exercised by a sovereign. Courts may enter protective orders to prevent “unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice,” N. Y. Civ. Prac. Law Ann. §3103(a) (West 2005), and may supervise discovery sua sponte, §3104(a). A visitor, by contrast, may inspect books and records at any time for any or no reason. II The Comptroller’s regulation, therefore, does not comport with the statute. Neither does the Comptroller’s interpretation of its regulation, which differs from the text and must be discussed separately. Evidently realizing that exclusion of state enforcement of all state laws against national banks is too extreme to be contemplated, the Comptroller sought to limit the sweep of its regulation by the following passage set forth in the agency’s statement of basis and purpose in the Federal Register: “What the case law does recognize is that ‘states retain some power to regulate national banks in areas such as contracts, debt collection, acquisition and transfer of property, and taxation, zoning, criminal, and tort law.’ [citing a Ninth Circuit case.] Application of these laws to national banks and their implementation by state authorities typically does not affect the content or extent of the Federally-authorized business of banking . . . but rather establishes the legal infrastructure that surrounds and supports the ability of national banks … to do business.” 69 Fed. Reg. 1896 (2004) (footnote omitted). This cannot be reconciled with the regulation’s almost categorical prohibition in 12 CFR §7.4000(a)(1) of “prosecuting enforcement actions.”[Footnote 4] Nor can it be justified by the provision in subsection (a)(2)(iv) which defines visitorial powers to include “[e]nforcing compliance with any applicable … state laws concerning” “activities authorized or permitted pursuant to federal banking law,” §7.4000(a)(2)(iii). The latter phrase cannot be interpreted to include only distinctively banking activities (leaving the States free to enforce nonbanking state laws), because if it were so interpreted subsection (a)(2)(iii), which uses the same terminology, would limit the Comptroller’s exclusive visitorial power of “regulation and supervision” to distinctively banking activities—which no one thinks is the case. Anyway, the National Bank Act does specifically authorize and permit activities that fall within what the statement of basis and purpose calls “the legal infrastructure that surrounds and supports the ability of national banks … to do business.” See, e.g., 12 U. S. C. §24 Third (power to make contracts); §24 Seventh (“all such incidental powers as shall be necessary to carry on the business of banking”). And of course a distinction between “implementation” of “infrastructure” and judicial enforcement of other laws can be found nowhere within the text of the statute. This passage in the statement of basis and purpose, resting upon neither the text of the regulation nor the text of the statute, attempts to do what Congress declined to do: exempt national banks from all state banking laws, or at least state enforcement of those laws. III The dissent fails to persuade us. Its fundamental contention—that the exclusive grant of visitorial powers can be interpreted to preclude state enforcement of state laws—rests upon a logical fallacy. The dissent establishes, post, at 8–9 (and we do not at all contest), that in the course of exercising visitation powers the sovereign can compel compliance with the law. But it concludes from that, post, at 11, that any sovereign attempt to compel compliance with the law can be deemed an exercise of the visitation power. That conclusion obviously does not follow. For example, in the course of exercising its visitation powers, the sovereign can assuredly compel a bank to honor obligations that are in default. Does that mean that the sovereign’s taking the same action in executing a civil judgment for payment of those obligations can be considered an exercise of the visitation power? Of course not. Many things can be compelled through the visitation power that can be compelled through the exercise of other sovereign power as well. The critical question is not what is being compelled, but what sovereign power has been invoked to compel it. And the power to enforce the law exists separate and apart from the power of visitation. The dissent argues that the Comptroller’s expansive reading of “visitorial powers” does not intrude upon the, “ ‘the historic police powers of the States,’ ” post, at 20, (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)), because, like federal maritime law, federal involvement in this field dates to “ ‘the earliest days of the Republic,’ ” post, at 21 (quoting United States v. Locke, 529 U. S. 89, 108 (2000). For that reason, the dissent concludes, this case does not raise the sort of federalism concerns that prompt a presumption against pre-emption. We have not invoked the presumption against pre-emption, and think it unnecessary to do so in giving force to the plain terms of the National Bank Act. Neither, however, should the incursion that the Comptroller’s regulation makes upon traditional state powers be minimized. Although the sovereign visitorial power of assuring national-bank compliance with all laws inhered in the Federal Government from the time of its creation of national banks, the Comptroller was not given authority to enforce nonpre-empted state laws until 1966. See Financial Institutions Supervisory Act of 1966, Tit. III, 80 Stat. 1046–1055. A power first exercised during the lifetime of every current Justice is hardly involvement “from the earliest days of the Republic.” States, on the other hand, have always enforced their general laws against national banks—and have enforced their banking-related laws against national banks for at least 85 years, as evidenced by St. Louis, in which we upheld enforcement of a state anti-bank-branching law, 263 U. S., at 656. See also Anderson Nat. Bank v. Luckett, 321 U. S. 233, 237, 248–249 (1944) (state commissioner of revenue may enforce abandoned-bank-deposit law against national bank through “judicial proceedings”); State by Lord v. First Nat. Bank of St. Paul, 313 N. W. 2d 390, 393 (Minn. 1981) (state treasurer may enforce general unclaimed-property law with “specific provisions directed toward” banks against national bank); Clovis Nat. Bank v. Callaway, 69 N. M. 119, 130–132, 364 P. 2d 748, 756 (1961) (state treasurer may enforce unclaimed-property law against national bank deposits); State v. First Nat. Bank of Portland, 61 Ore. 551, 554–557, 123 P. 712, 714 (1912) (state attorney general may enforce bank-specific escheat law against national bank).[Footnote 5] The dissent seeks to minimize the regulation’s incursion upon state powers by claiming that the regulation does not “declare the pre-emptive scope of the [National Bank Act]” but merely “interpret[s] the term ‘visitorial powers.’ ” Post, at 20. That is much too kind. It is not without reason that the regulation is contained within a subpart of the Comptroller’s regulations on Bank Activities and Operations that is entitled “Preemption.” The purpose and function of the statutory term “visitorial powers” is to define and thereby limit the category of action reserved to the Federal Government and forbidden to the States. Any interpretation of “visitorial powers” necessarily “declares the pre-emptive scope of the NBA,” ibid. What is clear from logic is also clear in application: The regulation declares that “[s]tate officials may not … prosecut[e] enforcement actions.” 12 CFR §7.4000(a). If that is not pre-emption, nothing is. IV Applying the foregoing principles to this case is not difficult. “Visitorial powers” in the National Bank Act refers to a sovereign’s supervisory powers over corporations. They include any form of administrative oversight that allows a sovereign to inspect books and records on demand, even if the process is mediated by a court through prerogative writs or similar means. The Comptroller reasonably interpreted this statutory term to include “conducting examinations [and] inspecting or requiring the production of books or records of national banks,” §7.4000, when the State conducts those activities in its capacity as supervisor of corporations. When, however, a state attorney general brings suit to enforce state law against a national bank, he is not acting in the role of sovereign-as-supervisor, but rather in the role of sovereign-as-law-enforcer. Such a lawsuit is not an exercise of “visitorial powers” and thus the Comptroller erred by extending the definition of “visitorial powers” to include “prosecuting enforcement actions” in state courts, §7.4000. The request for information in the present case was stated to be “in lieu of” other action; implicit was the threat that if the request was not voluntarily honored, that other action would be taken. All parties have assumed, and we agree, that if the threatened action would have been unlawful the request-cum-threat could be enjoined. Here the threatened action was not the bringing of a civil suit, or the obtaining of a judicial search warrant based on probable cause, but rather the Attorney General’s issuance of subpoena on his own authority under New York Executive Law, which permits such subpoenas in connection with his investigation of “repeated fraudulent or illegal acts . . . in the carrying on, conducting or transaction of business.” See N. Y. Exec. Law Ann. §63(12) (West 2002). That is not the exercise of the power of law enforcement “vested in the courts of justice” which 12 U. S. C. §484(a) exempts from the ban on exercise of supervisory power. Accordingly, the injunction below is affirmed as applied to the threatened issuance of executive subpoenas by the Attorney General for the State of New York, but vacated insofar as it prohibits the Attorney General from bringing judicial enforcement actions. * * * The judgment of the Court of Appeals is affirmed in part and reversed in part. It is so ordered. Footnote 1 Justice Thomas’s opinion concurring in part and dissenting in part (hereinafter the dissent) attempts to distinguish Dartmouth College on the ground that the college was a charitable corporation, whose visitors (unlike the State as visitor of for-profit corporations) had no law-enforcement power. See post, at 7, n. 1. We doubt that was so. As Justice Story’s opinion in Dartmouth College stated, visitors of charitable corporations had “power . . . to correct all irregularities and abuses,” 4 Wheat., at 673, which would surely include operations in violation of law. But whether or not visitors of charitable corporations had law-enforcement powers, the powers that they did possess demonstrate that visitation is different from ordinary law enforcement. Indeed, if those powers did not include the power to assure compliance with law that demonstration would be all the more forceful. Footnote 2 The dissent attempts to distinguish St. Louis by invoking the principle that an agency is free to depart from a court’s interpretation of the law. Post, at 16–17 (citing National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 982 (2005)). This again misses the point. St. Louis is relevant to proper interpretation of 12 U. S. C. §484(a) not because it is authoritative on the question whether States can enforce their banking laws, but because it is one in a long and unbroken line of cases distinguishing visitation from law enforcement. Respondents contend that St. Louis holds only that States can enforce their law when federal law grants the national bank no authority to engage in the activity at issue. Even if that were true it would make no difference. The case would still stand for the proposition that the exclusive federal power of visitation does not prevent States from enforcing their law. Footnote 3 We reject respondents’ contention that the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, §102(f)(1)(B), 108 Stat. 2349, 2350, 12 U. S. C. §36(f)(1)(B), establishes that the Comptroller’s visitorial power pre-empts state law enforcement. That provision states that some state laws respecting bank branching “shall be enforced” by the Comptroller. We need not decide here whether converting the Comptroller’s visitorial power to assure compliance with all applicable laws, see infra, at 12, into an obligation to assure compliance with certain state laws preempts state enforcement of those particular laws. Even if it had that effect it would shed no light on the meaning of “visitorial powers” in the National Bank Act, a statute that it does not refer to and that was enacted more than a century earlier. Footnote 4 The prohibition is not entirely categorical only because it is subject to the phrase at the end of the sentence (applicable to all of the regulation’s enumerated “visitorial powers” forbidden to the States): “except in limited circumstances authorized by federal law.” This replicates a similar exception contained in §484(a) itself (“No national bank shall be subject to any visitorial powers except as authorized by Federal law”), and certainly does not refer to case law finding state action nonpre-empted. If it meant that, §484(a)’s apparent limitation of visitorial powers would be illusory—saying, in effect, that national banks are subject to only those visitorial powers that the courts say they are subject to. Cases that find state action nonpre-empted might perhaps be described as “permitting” the state action in question, but hardly as “authorizing” it. In both the statutory and regulation context, “federal law” obviously means federal statutes. Footnote 5 All of these cases were decided before Congress added to §484 its current subsection (b), which authorizes “State auditors and examiners” to review national-bank records to assure compliance with state unclaimed-property and escheat laws. See 96 Stat. 1521. |
556.US.2008_08-5274 | An individual convicted for using or carrying a firearm during and in relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime, receives a 5-year mandatory minimum sentence, in addition to the punishment for the underlying crime. 18 U. S. C. §924(c)(1)(A)(i). The mandatory minimum increases to 7 years “if the firearm is brandished” and to 10 years “if the firearm is discharged.” §§924(c)(1)(A)(ii), (iii). Petitioner Dean was convicted of conspiring to commit a bank robbery and discharging a firearm during an armed robbery. Because the firearm was “discharged” during the robbery, Dean was sentenced to a 10-year mandatory minimum prison term on the firearm count. §924(c)(1)(A)(iii). On appeal, he contended that the discharge was accidental, and that §924(c)(1)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Eleventh Circuit affirmed, holding that no proof of intent is required. Held: Section 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident. Pp. 2–9. (a) Subsection (iii) provides a minimum 10-year sentence “if the firearm is discharged.” It does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation. This Court “ordinarily resist[s] reading words or elements into a statute that do not appear on its face.” Bates v. United States, 522 U. S. 23, 29. Congress’s use of the passive voice further indicates that subsection (iii) does not require proof of intent. Cf. Watson v. United States, 552 U. S. ___, ___. The statute’s structure also suggests no such limitation. Congress expressly included an intent requirement for the 7-year mandatory minimum for brandishing a firearm by separately defining “brandish” to require that the firearm be displayed “in order to intimidate” another person. §924(c)(4). Congress did not, however, separately define “discharge” to include an intent requirement. It is generally presumed that Congress acts intentionally when including particular language in one section of a statute but not in another. Russello v. United States, 464 U. S. 16, 23. Contrary to Dean’s contention, the phrase “during and in relation to” in the opening paragraph of §924(c)(1)(A) does not modify “is discharged,” which appears in a separate subsection and in a different voice than the principal paragraph. “[I]n relation to” is most naturally read to modify only the nearby verbs “uses” and “carries.” This reading will not lead to the absurd results posited by Dean. Pp. 3–6. (b) Dean argues that subsection (iii) must be limited to intentional discharges in order to give effect to the statute’s progression of harsher penalties for increasingly culpable conduct. While it is unusual to impose criminal punishment for the consequences of purely accidental conduct, it is not unusual to punish individuals for the unintended consequences of their unlawful acts. The fact that the discharge may be accidental does not mean that the defendant is blameless. The sentencing enhancement accounts for the risk of harm resulting from the manner in which the crime is carried out, for which the defendant is responsible. See Harris v. United States, 536 U. S. 545, 553. An individual bringing a loaded weapon to commit a crime runs the risk that the gun will discharge accidentally. A gunshot—whether accidental or intended—increases the risk that others will be injured, that people will panic, or that violence will be used in response. It also traumatizes bystanders, as it did here. Pp. 6–9. (c) Because the statutory text and structure demonstrate that the discharge provision does not contain an intent requirement, the rule of lenity is not implicated in this case. 517 F. 3d 1224, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Souter, Thomas, Ginsburg, and Alito, JJ., joined. Stevens, J., and Breyer, J., filed dissenting opinions. | Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns. The question here is whether extra punishment Congress imposed for the discharge of a gun during certain crimes applies when the gun goes off accidentally. I Title 18 U. S. C. §924(c)(1)(A) criminalizes using or carrying a firearm during and in relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime. An individual convicted of that offense receives a 5-year mandatory minimum sentence, in addition to the punishment for the underlying crime. §924(c)(1)(A)(i). The mandatory minimum increases to 7 years “if the firearm is brandished” and to 10 years “if the firearm is discharged.” §§924(c)(1)(A)(ii), (iii). In this case, a masked man entered a bank, waved a gun, and yelled at everyone to get down. He then walked behind the teller counter and started removing money from the teller stations. He grabbed bills with his left hand, holding the gun in his right. At one point, he reached over a teller to remove money from her drawer. As he was collecting the money, the gun discharged, leaving a bullet hole in the partition between two stations. The robber cursed and dashed out of the bank. Witnesses later testified that he seemed surprised that the gun had gone off. No one was hurt. App. 16–19, 24, 27, 47–48, 79. Police arrested Christopher Michael Dean and Ricardo Curtis Lopez for the crime. Both defendants were charged with conspiracy to commit a robbery affecting interstate commerce, in violation of 18 U. S. C. §1951(a), and aiding and abetting each other in using, carrying, possessing, and discharging a firearm during an armed robbery, in violation of §924(c)(1)(A)(iii) and §2. App. 11–12. At trial, Dean admitted that he had committed the robbery, id., at 76–81, and a jury found him guilty on both the robbery and firearm counts. The District Court sentenced Dean to a mandatory minimum term of 10 years in prison on the firearm count, because the firearm “discharged” during the robbery. §924(c)(1)(A)(iii); App. 136. Dean appealed, contending that the discharge was accidental, and that the sentencing enhancement in §924(c)(1)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Court of Appeals affirmed, holding that separate proof of intent was not required. 517 F. 3d 1224, 1229 (CA11 2008). That decision created a conflict among the Circuits over whether the accidental discharge of a firearm during the specified crimes gives rise to the 10-year mandatory minimum. See United States v. Brown, 449 F. 3d 154 (CADC 2006) (holding that it does not). We granted certiorari to resolve that conflict. 555 U. S. ____ (2008). II Section 924(c)(1)(A) provides: “[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime— “(i) be sentenced to a term of imprisonment of not less than 5 years; “(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and “(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.” The principal paragraph defines a complete offense and the subsections “explain how defendants are to ‘be sentenced.’ ” Harris v. United States, 536 U. S. 545, 552 (2002). Subsection (i) “sets a catchall minimum” sentence of not less than five years. Id., at 552–553. Subsections (ii) and (iii) increase the minimum penalty if the firearm “is brandished” or “is discharged.” See id., at 553. The parties disagree over whether §924(c)(1)(A)(iii) contains a requirement that the defendant intend to discharge the firearm. We hold that it does not. A “We start, as always, with the language of the statute.” Williams v. Taylor, 529 U. S. 420, 431 (2000). The text of subsection (iii) provides that a defendant shall be sentenced to a minimum of 10 years “if the firearm is discharged.” It does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation. As we explained in Bates v. United States, 522 U. S. 23 (1997), in declining to infer an “ ‘intent to defraud’ ” requirement into a statute, “we ordinarily resist reading words or elements into a statute that do not appear on its face.” Id., at 29. Congress’s use of the passive voice further indicates that subsection (iii) does not require proof of intent. The passive voice focuses on an event that occurs without respect to a specific actor, and therefore without respect to any actor’s intent or culpability. Cf. Watson v. United States, 552 U. S. ___, ___ (2007) (slip op., at 7) (use of passive voice in statutory phrase “to be used” in 18 U. S. C. §924(d)(1) reflects “agnosticism … about who does the using”). It is whether something happened—not how or why it happened—that matters. The structure of the statute also suggests that subsection (iii) is not limited to the intentional discharge of a firearm. Subsection (ii) provides a 7-year mandatory minimum sentence if the firearm “is brandished.” Congress expressly included an intent requirement for that provision, by defining “brandish” to mean “to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person.” §924(c)(4) (emphasis added). The defendant must have intended to brandish the firearm, because the brandishing must have been done for a specific purpose. Congress did not, however, separately define “discharge” to include an intent requirement. “[W]here 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.” Russello v. United States, 464 U. S. 16, 23 (1983) (internal quotation marks omitted). Dean argues that the statute is not silent on the question presented. Congress, he contends, included an intent element in the opening paragraph of §924(c)(1)(A), and that element extends to the sentencing enhancements. Section 924(c)(1)(A) criminalizes using or carrying a firearm “during and in relation to” any violent or drug trafficking crime. In Smith v. United States, 508 U. S. 223 (1993), we stated that the phrase “in relation to” means “that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.” Id., at 238. Dean argues that the adverbial phrase thus necessarily embodies an intent requirement, and that the phrase modifies all the verbs in the statute—not only use, carry, and possess, but also brandish and discharge. Such a reading requires that a perpetrator knowingly discharge the firearm for the enhancement to apply. If the discharge is accidental, Dean argues, it is not “in relation to” the underlying crime. The most natural reading of the statute, however, is that “in relation to” modifies only the nearby verbs “uses” and “carries.” The next verb—“possesses”—is modified by its own adverbial clause, “in furtherance of.” The last two verbs—“is brandished” and “is discharged”—appear in separate subsections and are in a different voice than the verbs in the principal paragraph. There is no basis for reading “in relation to” to extend all the way down to modify “is discharged.” The better reading of the statute is that the adverbial phrases in the opening paragraph—“in relation to” and “in furtherance of”—modify their respective nearby verbs, and that neither phrase extends to the sentencing factors. But, Dean argues, such a reading will lead to absurd results. The discharge provision on its face contains no temporal or causal limitations. In the absence of an intent requirement, the enhancement would apply “regardless of when the actions occur, or by whom or for what reason they are taken.” Brief for Petitioner 11–12. It would, for example, apply if the gun used during the crime were discharged “weeks (or years) before or after the crime.” Reply Brief for Petitioner 11. We do not agree that implying an intent requirement is necessary to address such concerns. As the Government recognizes, sentencing factors such as the one here “often involve . . . special features of the manner in which a basic crime was carried out.” Brief for United States 29 (quoting Harris, 536 U. S., at 553; internal quotation marks omitted). The basic crime here is using or carrying a firearm during and in relation to a violent or drug trafficking crime, or possessing a firearm in furtherance of any such crime. Fanciful hypotheticals testing whether the discharge was a “special featur[e]” of how the “basic crime was carried out,” Harris, 536 U. S., at 553 (internal quotation marks omitted), are best addressed in those terms, not by contorting and stretching the statutory language to imply an intent requirement. B Dean further argues that even if the statute is viewed as silent on the intent question, that silence compels a ruling in his favor. There is, he notes, a presumption that criminal prohibitions include a requirement that the Government prove the defendant intended the conduct made criminal. In light of this presumption, we have “on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide.” United States v. United States Gypsum Co., 438 U. S. 422, 437 (1978). “[S]ome indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Staples v. United States, 511 U. S. 600, 606 (1994). Dean argues that the presumption is especially strong in this case, given the structure and purpose of the statute. In his view, the three subsections are intended to provide harsher penalties for increasingly culpable conduct: a 5-year minimum for using, carrying, or possessing a firearm; a 7-year minimum for brandishing a firearm; and a 10-year minimum for discharging a firearm. Incorporating an intent requirement into the discharge provision is necessary to give effect to that progression, because an accidental discharge is less culpable than intentional brandishment. See Brown, 449 F. 3d, at 156. It is unusual to impose criminal punishment for the consequences of purely accidental conduct. But it is not unusual to punish individuals for the unintended consequences of their unlawful acts. See 2 W. LaFave, Substantive Criminal Law §14.4, pp. 436–437 (2d ed. 2003). The felony-murder rule is a familiar example: If a defendant commits an unintended homicide while committing another felony, the defendant can be convicted of murder. See 18 U. S. C. §1111. The Sentencing Guidelines reflect the same principle. See United States Sentencing Commission, Guidelines Manual §2A2.2(b)(3) (Nov. 2008) (USSG) (increasing offense level for aggravated assault according to the seriousness of the injury); §2D2.3 (increasing offense level for operating or directing the operation of a common carrier under the influence of alcohol or drugs if death or serious bodily injury results). Blackstone expressed the idea in the following terms: “[I]f any accidental mischief happens to follow from the performance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour.” 4 W. Blackstone, Commentaries on the Laws of England 26–27 (1769). Here the defendant is already guilty of unlawful conduct twice over: a violent or drug trafficking offense and the use, carrying, or possession of a firearm in the course of that offense. That unlawful conduct was not an accident. See Smith, 508 U. S., at 238. The fact that the actual discharge of a gun covered under §924(c)(1)(A)(iii) may be accidental does not mean that the defendant is blameless. The sentencing enhancement in subsection (iii) accounts for the risk of harm resulting from the manner in which the crime is carried out, for which the defendant is responsible. See Harris, supra, at 553. An individual who brings a loaded weapon to commit a crime runs the risk that the gun will discharge accidentally. A gunshot in such circumstances—whether accidental or intended—increases the risk that others will be injured, that people will panic, or that violence (with its own danger to those nearby) will be used in response. Those criminals wishing to avoid the penalty for an inadvertent discharge can lock or unload the firearm, handle it with care during the underlying violent or drug trafficking crime, leave the gun at home, or—best yet—avoid committing the felony in the first place. Justice Stevens contends that the statute should be read to require a showing of intent because harm resulting from a discharge may be punishable under other provisions, such as the Sentencing Guidelines (but only if “bodily injury” results). Post, at 6 (dissenting opinion) (citing USSG §2B3.1(b)(3)). But Congress in §924(c)(1)(A)(iii) elected to impose a mandatory term, without regard to more generally applicable sentencing provisions. Punishment available under such provisions therefore does not suggest that the statute at issue here is limited to intentional discharges. And although the point is not relevant under the correct reading of the statute, it is wrong to assert that the gunshot here “caused no harm.” Post, at 1. By pure luck, no one was killed or wounded. But the gunshot plainly added to the trauma experienced by those held during the armed robbery. See, e.g., App. 22 (the gunshot “shook us all”); ibid. (“Melissa in the lobby popped up and said, ‘oh, my God, has he shot Nora?’ ”). C Dean finally argues that any doubts about the proper interpretation of the statute should be resolved in his favor under the rule of lenity. See Brief for Petitioner 6. “The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.” Muscarello v. United States, 524 U. S. 125, 138 (1998); see also Smith, supra, at 239 (“The mere possibility of articulating a narrower construction, however, does not by itself make the rule of lenity applicable”). “To invoke the rule, we must conclude that there is a grievous ambiguity or uncertainty in the statute.” Muscarello, supra, at 138–139 (internal quotation marks omitted). In this case, the statutory text and structure convince us that the discharge provision does not contain an intent requirement. Dean’s contrary arguments are not enough to render the statute grievously ambiguous. * * * Section 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug traffick- ing crime, whether on purpose or by accident. The judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. |
556.US.2008_07-588 | Petitioners’ powerplants have “cooling water intake structures” that threaten the environment by squashing against intake screens (“impingement”) or suctioning into the cooling system (“entrainment”) aquatic organisms from the water sources tapped to cool the plants. Thus, the facilities are subject to regulation under the Clean Water Act, which mandates that “[a]ny standard established pursuant to section 1311 … or section 1316 … and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” 33 U. S. C. §1326(b). Sections 1311 and 1316, in turn, employ a variety of “best technology” standards to regulate effluent discharge into the Nation’s waters. The Environmental Protection Agency (EPA) promulgated the §1326(b) regulations at issue after nearly three decades of making the “best technology available” determination on a case-by-case basis. Its “Phase I” regulations govern new cooling water intake structures, while the “Phase II” rules at issue apply to certain large existing facilities. In the latter rules, the EPA set “national performance standards,” requiring most Phase II facilities to reduce “impingement mortality for [aquatic organisms] by 80 to 95 percent from the calculation baseline,” and requiring a subset of facilities to reduce entrainment of such organisms by “60 to 90 percent from [that] baseline.” 40 CFR §125.94(b)(1), (2). However, the EPA expressly declined to mandate closed-cycle cooling systems, or equivalent reductions in impingement and entrainment, as it had done in its Phase I rules, in part because the cost of rendering existing facilities closed-cycle compliant would be nine times the estimated cost of compliance with the Phase II performance standards, and because other technologies could approach the performance of closed-cycle operation. The Phase II rules also permit site-specific variances from the national performance standards, provided that the permit-issuing authority imposes remedial measures that yield results “as close as practicable to the applicable performance standards.” §125.94(a)(5)(i), (ii). Respondents—environmental groups and various States—challenged the Phase II regulations. Concluding that cost-benefit analysis is impermissible under 33 U. S. C. §1326(b), the Second Circuit found the site-specific cost-benefit variance provision unlawful and remanded the regulations to the EPA for it to clarify whether it had relied on cost-benefit analysis in setting the national performance standards. Held: The EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. Pp. 7–16. (a) The EPA’s view that §1326(b)’s “best technology available for minimizing adverse environmental impact” standard permits consideration of the technology’s costs and of the relationship between those costs and the environmental benefits produced governs if it is a reasonable interpretation of the statute—not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844. The Second Circuit took “best technology” to mean the technology that achieves the greatest reduction in adverse environmental impacts at a reasonable cost to the industry, but it may also describe the technology that most efficiently produces a good, even if it produces a lesser quantity of that good than other available technologies. This reading is not precluded by the phrase “for minimizing adverse environmental impact.” Minimizing admits of degree and is not necessarily used to refer exclusively to the “greatest possible reduction.” Other Clean Water Act provisions show that when Congress wished to mandate the greatest feasible reduction in water pollution, it used plain language, e.g., “elimination of discharges of all pollutants,” §1311(b)(2)(A). Thus, §1326(b)’s use of the less ambitious goal of “minimizing adverse environmental impact” suggests that the EPA has some discretion to determine the extent of reduction warranted under the circumstances, plausibly involving a consideration of the benefits derived from reductions and the costs of achieving them. Pp. 7–9. (b) Considering §1326(b)’s text, and comparing it with the text and statutory factors applicable to parallel Clean Water Act provisions, prompts the conclusion that it was well within the bounds of reasonable interpretation for the EPA to conclude that cost-benefit analysis is not categorically forbidden. In the Phase II rules the EPA sought only to avoid extreme disparities between costs and benefits, limiting variances from Phase II’s “national performance standards” to circumstances where the costs are “significantly greater than the benefits” of compliance. 40 CFR §125.94(a)(5)(ii). In defining “national performance standards” the EPA assumed the application of technologies whose benefits approach those estimated for closed-cycle cooling systems at a fraction of the cost. That the EPA has for over thirty years interpreted §1326(b) to permit a comparison of costs and benefits, while not conclusive, also tends to show that its interpretation is reasonable and hence a legitimate exercise of its discretion. Even respondents and the Second Circuit ultimately recognize that some comparison of costs and benefits is permitted. The Second Circuit held that §1326(b) mandates only those technologies whose costs can be reasonably borne by the industry. But whether it is reasonable to bear a particular cost can very well depend on the resulting benefits. Likewise, respondents concede that the EPA need not require that industry spend billions to save one more fish. This concedes the principle, and there is no statutory basis for limiting the comparison of costs and benefits to situations where the benefits are de minimis rather than significantly disproportionate. Pp. 9–16. 475 F. 3d 83, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined. Together with No. 07–589, PSEG Fossil LLC et al. v. Riverkeeper, Inc., et al., and No. 07–597, Utility Water Act Group v. Riverkeeper, Inc., et al., also on certiorari to the same court. | These cases concern a set of regulations adopted by the Environmental Protection Agency (EPA or agency) under §316(b) of the Clean Water Act, 33 U. S. C. §1326(b). 69 Fed. Reg. 41576 (2004). Respondents—environmental groups and various States[Footnote 1]—challenged those regulations, and the Second Circuit set them aside. Riverkeeper, Inc. v. EPA, 475 F. 3d 83, 99–100 (2007). The issue for our decision is whether, as the Second Circuit held, the EPA is not permitted to use cost-benefit analysis in determining the content of regulations promulgated under §1326(b). I Petitioners operate—or represent those who operate—large powerplants. In the course of generating power, those plants also generate large amounts of heat. To cool their facilities, petitioners employ “cooling water intake structures” that extract water from nearby water sources. These structures pose various threats to the environment, chief among them the squashing against intake screens (elegantly called “impingement”) or suction into the cooling system (“entrainment”) of aquatic organisms that live in the affected water sources. See 69 Fed. Reg. 41586. Accordingly, the facilities are subject to regulation under the Clean Water Act, 33 U. S. C. §1251 et seq., which mandates: “Any standard established pursuant to section 1311 of this title or section 1316 of this title and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” §1326(b). Sections 1311 and 1316, in turn, employ a variety of “best technology” standards to regulate the discharge of effluents into the Nation’s waters. The §1326(b) regulations at issue here were promulgated by the EPA after nearly three decades in which the determination of the “best technology available for minimizing [cooling water intake structures’] adverse environmental impact” was made by permit-issuing authorities on a case-by-case basis, without benefit of a governing regulation. The EPA’s initial attempt at such a regulation came to nought when the Fourth Circuit determined that the agency had failed to adhere to the procedural requirements of the Administrative Procedure Act. Appalachian Power Co. v. Train, 566 F. 2d 451, 457 (1977). The EPA withdrew the regulation, 44 Fed. Reg. 32956 (1979), and instead published “draft guidance” for use in implementing §1326(b)’s requirements via site-specific permit decisions under §1342. See EPA, Office of Water Enforcement Permits Div., <{>Draft<}> Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316(b) P. L. 92–500, (May 1, 1977), at http://www.epa.gov/waterscience/316b/files/1977AEIguid.pdf, (all Internet materials as visited Mar. 30, 2009, and available in Clerk of Court’s case file); 69 Fed. Reg. 41584 (describing system of case-by-case permits under the draft guidance). In 1995, the EPA entered into a consent decree which, as subsequently amended, set a multiphase timetable for the EPA to promulgate regulations under §1326(b). See Riverkeeper, Inc. v. Whitman, No. 93 Civ. 0314 (AGS), 2001 WL 1505497, *1 (SDNY, Nov. 27, 2001). In the first phase the EPA adopted regulations governing certain new, large cooling water intake structures. 66 Fed. Reg. 65256 (2001) (Phase I rules); see 40 CFR §§125.80(a), 125.81(a) (2008). Those rules require new facilities with water-intake flow greater than 10 million gallons per day to, among other things, restrict their inflow “to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system.”[Footnote 2] §125.84(b)(1). New facilities with water-intake flow between 2 million and 10 million gallons per day may alternatively comply by, among other things, reducing the volume and velocity of water removal to certain levels. §125.84(c). And all facilities may alternatively comply by demonstrating, among other things, “that the technologies employed will reduce the level of adverse environmental impact … to a comparable level” to what would be achieved by using a closed-cycle cooling system. §125.84(d). These regulations were upheld in large part by the Second Circuit in Riverkeeper, Inc. v. EPA, 358 F. 3d 174 (2004). The EPA then adopted the so-called “Phase II” rules at issue here.[Footnote 3] 69 Fed. Reg. 41576. They apply to existing facilities that are point sources, whose primary activity is the generation and transmission (or sale for transmission) of electricity, and whose water-intake flow is more than 50 million gallons of water per day, at least 25 percent of which is used for cooling purposes. Ibid. Over 500 facilities, accounting for approximately 53 percent of the Nation’s electric-power generating capacity, fall within Phase II’s ambit. See EPA, Economic and Benefits Analysis for the Final Section 316(b) Phase II Existing Facilities Rule, A3–13, Table A3–4 (Feb. 2004), online at http://www. epa.gov/waterscience/316b/phase2/econbenefits/final/a3.pdf. Those facilities remove on average more than 214 billion gallons of water per day, causing impingement and entrainment of over 3.4 billion aquatic organisms per year. 69 Fed. Reg. 41586. To address those environmental impacts, the EPA set “national performance standards,” requiring Phase II facilities (with some exceptions) to reduce “impingement mortality for all life stages of fish and shellfish by 80 to 95 percent from the calculation baseline”; a subset of facilities must also reduce entrainment of such aquatic organisms by “60 to 90 percent from the calculation baseline.” 40 CFR §125.94(b)(1), (2); see §125.93 (defining “calculation baseline”). Those targets are based on the environmental improvements achievable through deployment of a mix of remedial technologies, 69 Fed. Reg. 41599, which the EPA determined were “commercially available and economically practicable,” id., at 41602. In its Phase II rules, however, the EPA expressly declined to mandate adoption of closed-cycle cooling systems or equivalent reductions in impingement and entrainment, as it had done for new facilities subject to the Phase I rules. Id., at 41601. It refused to take that step in part because of the “generally high costs” of converting existing facilities to closed-cycle operation, and because “other technologies approach the performance of this option.” Id., at 41605. Thus, while closed-cycle cooling systems could reduce impingement and entrainment mortality by up to 98 percent, id., at 41601, (compared to the Phase II targets of 80 to 95 percent impingement reduction), the cost of rendering all Phase II facilities closed-cycle-compliant would be approximately $3.5 billion per year, id., at 41605, nine times the estimated cost of compliance with the Phase II performance standards, id., at 41666. Moreover, Phase II facilities compelled to convert to closed-cycle cooling systems “would produce 2.4 percent to 4.0 percent less electricity even while burning the same amount of coal,” possibly requiring the construction of “20 additional 400–MW plants … to replace the generating capacity lost.” Id., at 41605. The EPA thus concluded that “[a]lthough not identical, the ranges of impingement and entrainment reduction are similar under both options… . [Benefits of compliance with the Phase II rules] can approach those of closed-cycle recirculating at less cost with fewer implementation problems.” Id., at 41606. The regulations permit the issuance of site-specific variances from the national performance standards if a facility can demonstrate either that the costs of compliance are “significantly greater than” the costs considered by the agency in setting the standards, 40 CFR §125.94(a)(5)(i), or that the costs of compliance “would be significantly greater than the benefits of complying with the applicable performance standards,” §125.94(a)(5)(ii). Where a variance is warranted, the permit-issuing authority must impose remedial measures that yield results “as close as practicable to the applicable performance standards.” §125.94(a)(5)(i), (ii). Respondents challenged the EPA’s Phase II regulations, and the Second Circuit granted their petition for review and remanded the regulations to the EPA. The Second Circuit identified two ways in which the EPA could permissibly consider costs under 33 U. S. C. §1326(b): (1) in determining whether the costs of remediation “can be ‘reasonably borne’ by the industry,” and (2) in determining which remedial technologies are the most cost-effective, that is, the technologies that reach a specified level of benefit at the lowest cost. 475 F. 3d, at 99–100. See also id., at 98, and n. 10. It concluded, however, that cost-benefit analysis, which “compares the costs and benefits of various ends, and chooses the end with the best net benefits,” id., at 98, is impermissible under §1326(b), id., at 100. The Court of Appeals held the site-specific cost-benefit variance provision to be unlawful. Id., at 114. Finding it unclear whether the EPA had relied on cost-benefit analysis in setting the national performance standards, or had only used cost-effectiveness analysis, it remanded to the agency for clarification of that point. Id., at 104–105. (The remand was also based on other grounds which are not at issue here.) The EPA suspended operation of the Phase II rules pending further rulemaking. 72 Fed. Reg. 37107 (2007). We then granted certiorari limited to the following question: “Whether [§1326(b)] … authorizes the [EPA] to compare costs with benefits in determining ‘the best technology available for minimizing adverse environmental impact’ at cooling water intake structures.” 552 U. S. ___ (2008). II In setting the Phase II national performance standards and providing for site-specific cost-benefit variances, the EPA relied on its view that §1326(b)’s “best technology available” standard permits consideration of the technology’s costs, 69 Fed. Reg. 41626, and of the relationship between those costs and the environmental benefits produced, id., at 41603. That view governs if it is a reasonable interpretation of the statute—not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844 (1984).[Footnote 4] As we have described, §1326(b) instructs the EPA to set standards for cooling water intake structures that reflect “the best technology available for minimizing adverse environmental impact.” The Second Circuit took that language to mean the technology that achieves the greatest reduction in adverse environmental impacts at a cost that can reasonably be borne by the industry. 475 F. 3d, at 99–100. That is certainly a plausible interpretation of the statute. The “best” technology—that which is “most advantageous,” Webster’s New International Dictionary 258 (2d ed. 1953)—may well be the one that produces the most of some good, here a reduction in adverse environmental impact. But “best technology” may also describe the technology that most efficiently produces some good. In common parlance one could certainly use the phrase “best technology” to refer to that which produces a good at the lowest per-unit cost, even if it produces a lesser quantity of that good than other available technologies. Respondents contend that this latter reading is precluded by the statute’s use of the phrase “for minimizing adverse environmental impact.” Minimizing, they argue, means reducing to the smallest amount possible, and the “best technology available for minimizing adverse environmental impacts,” must be the economically feasible technology that achieves the greatest possible reduction in environmental harm. Brief for Respondents Riverkeeper, Inc. et al. 25–26. But “minimize” is a term that admits of degree and is not necessarily used to refer exclusively to the “greatest possible reduction.” For example, elsewhere in the Clean Water Act, Congress declared that the procedures implementing the Act “shall encourage the drastic minimization of paperwork and interagency decision procedures.” 33 U. S. C. §1251(f). If respondents’ definition of the term “minimize” is correct, the statute’s use of the modifier “drastic” is superfluous. Other provisions in the Clean Water Act also suggest the agency’s interpretation. When Congress wished to mandate the greatest feasible reduction in water pollution, it did so in plain language: The provision governing the discharge of toxic pollutants into the Nation’s waters requires the EPA to set “effluent limitations [which] shall require the elimination of discharges of all pollutants if the Administrator finds … that such elimination is technologically and economically achievable,” §1311(b)(2)(A) (emphasis added). See also §1316(a)(1) (mandating “where practicable, a standard [for new point sources] permitting no discharge of pollutants” (emphasis added)). Section 1326(b)’s use of the less ambitious goal of “minimizing adverse environmental impact” suggests, we think, that the agency retains some discretion to determine the extent of reduction that is warranted under the circumstances. That determination could plausibly involve a consideration of the benefits derived from reductions and the costs of achieving them. Cf. 40 CFR §125.83 (defining “minimize” for purposes of the Phase I regulations as “reduc[ing] to the smallest amount, extent, or degree reasonably possible”). It seems to us, therefore, that the phrase “best technology available,” even with the added specification “for minimizing adverse environmental impact,” does not unambiguously preclude cost-benefit analysis.[Footnote 5] Respondents’ alternative (and, alas, also more complex) argument rests upon the structure of the Clean Water Act. The Act provided that during its initial implementation period existing “point sources”—discrete conveyances from which pollutants are or may be discharged, 33 U. S. C. §1362(14)—were subject to “effluent limitations … which shall require the application of the best practicable control technology currently available.” §1311(b)(1)(A) (emphasis added). (We shall call this the “BPT” test.) Following that transition period, the Act initially mandated adoption, by July 1, 1983 (later extended to March 31, 1989), of stricter effluent limitations requiring “application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants.” §1311(b)(2)(A) (emphasis added); see EPA v. National Crushed Stone Assn., 449 U. S. 64, 69–70 (1980). (We shall call this the “BATEA” test.) Subsequent amendment limited application of this standard to toxic and nonconventional pollutants, and for the remainder established a (presumably laxer) test of “best conventional-pollutant control technology.” §1311(b)(2)(E).[Footnote 6] (We shall call this “BCT.”) Finally, §1316 subjected certain categories of new point sources to “the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology.” §1316(a)(1) (emphasis added); §1316(b)(1)(B). (We shall call this the “BADT” test.) The provision at issue here, applicable not to effluents but to cooling water intake structures, requires, as we have described, “the best technology available for minimizing adverse environmental impact,” §1326(b) (emphasis added). (We shall call this the “BTA” test.) The first four of these tests are elucidated by statutory factor lists that guide their implementation. To take the standards in (presumed) order of increasing stringency, see Crushed Stone, supra, at 69–70: In applying the BPT test the EPA is instructed to consider, among other factors, “the total cost of application of technology in relation to the effluent reduction benefits to be achieved.” §1314(b)(1)(B). In applying the BCT test it is instructed to consider “the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived.” §1314(b)(4)(B) (emphasis added). And in applying the BATEA and BADT tests the EPA is instructed to consider the “cost of achieving such effluent reduction.” §§1314(b)(2)(B), 1316(b)(1)(B). There is no such elucidating language applicable to the BTA test at issue here. To facilitate comparison, the texts of these five tests, the clarifying factors applicable to them, and the entities to which they apply are set forth in the Appendix, infra. The Second Circuit, in rejecting the EPA’s use of cost-benefit analysis, relied in part on the propositions that (1) cost-benefit analysis is precluded under the BATEA and BADT tests; and (2) that, insofar as the permissibility of cost-benefit analysis is concerned, the BTA test (the one at issue here) is to be treated the same as those two. See 475 F. 3d, at 98. It is not obvious to us that the first of these propositions is correct, but we need not pursue that point, since we assuredly do not agree with the second. It is certainly reasonable for the agency to conclude that the BTA test need not be interpreted to permit only what those other two tests permit. Its text is not identical to theirs. It has the relatively modest goal of “minimizing adverse environmental impact” as compared with the BATEA’s goal of “eliminating the discharge of all pollutants.” And it is unencumbered by specified statutory factors of the sort provided for those other two tests, which omission can reasonably be interpreted to suggest that the EPA is accorded greater discretion in determining its precise content. Respondents and the dissent argue that the mere fact that §1326(b) does not expressly authorize cost-benefit analysis for the BTA test, though it does so for two of the other tests, displays an intent to forbid its use. This surely proves too much. For while it is true that two of the other tests authorize cost-benefit analysis, it is also true that all four of the other tests expressly authorize some consideration of costs. Thus, if respondents’ and the dissent’s conclusion regarding the import of §1326(b)’s silence is correct, it is a fortiori true that the BTA test permits no consideration of cost whatsoever, not even the “cost-effectiveness” and “feasibility” analysis that the Second Circuit approved, see supra, at 6, that the dissent would approve, post, at 1–2, and that respondents acknowledge. The inference that respondents and the dissent would draw from the silence is, in any event, implausible, as §1326(b) is silent not only with respect to cost-benefit analysis but with respect to all potentially relevant factors. If silence here implies prohibition, then the EPA could not consider any factors in implementing §1326(b)—an obvious logical impossibility. It is eminently reasonable to conclude that §1326(b)’s silence is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree. Contrary to the dissent’s suggestion, see post, at 3–4, our decisions in Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), and American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490 (1981), do not undermine this conclusion. In American Trucking, we held that the text of §109 of the Clean Air Act, “interpreted in its statutory and historical context … unambiguously bars cost considerations” in setting air quality standards under that provision. 531 U. S., at 471. The relevant “statutory context” included other provisions in the Clean Air Act that expressly authorized consideration of costs, whereas §109 did not. Id., at 467–468. American Trucking thus stands for the rather unremarkable proposition that sometimes statutory silence, when viewed in context, is best interpreted as limiting agency discretion. For the reasons discussed earlier, §1326(b)’s silence cannot bear that interpretation. In American Textile, the Court relied in part on a statute’s failure to mention cost-benefit analysis in holding that the relevant agency was not required to engage in cost-benefit analysis in setting certain health and safety standards. 452 U. S., at 510–512. But under Chevron, that an agency is not required to do so does not mean that an agency is not permitted to do so. This extended consideration of the text of §1326(b), and comparison of that with the text and statutory factors applicable to four parallel provisions of the Clean Water Act, lead us to the conclusion that it was well within the bounds of reasonable interpretation for the EPA to conclude that cost-benefit analysis is not categorically forbidden. Other arguments may be available to preclude such a rigorous form of cost-benefit analysis as that which was prescribed under the statute’s former BPT standard, which required weighing “the total cost of application of technology” against “the … benefits to be achieved.” See, supra, at 10. But that question is not before us. In the Phase II requirements challenged here the EPA sought only to avoid extreme disparities between costs and benefits. The agency limited variances from the Phase II “national performance standards” to circumstances where the costs are “significantly greater than the benefits” of compliance. 40 CFR §125.94(a)(5)(ii). In defining the “national performance standards” themselves the EPA assumed the application of technologies whose benefits “approach those estimated” for closed-cycle cooling systems at a fraction of the cost: $389 million per year, 69 Fed. Reg. 41666, as compared with (1) at least $3.5 billion per year to operate compliant closed-cycle cooling systems, id., at 41605 (or $1 billion per year to impose similar requirements on a subset of Phase II facilities, id., at 41606), and (2) significant reduction in the energy output of the altered facilities, id., at 41605. And finally, EPA’s assessment of the relatively meager financial benefits of the Phase II regulations that it adopted—reduced impingement and entrainment of 1.4 billion aquatic organisms, id., at 41661, Exh. XII–6, with annualized use-benefits of $83 million, id., at 41662, and non-use benefits of indeterminate value, id., at 41660–41661—when compared to annual costs of $389 million, demonstrates quite clearly that the agency did not select the Phase II regulatory requirements because their benefits equaled their costs. While not conclusive, it surely tends to show that the EPA’s current practice is a reasonable and hence legitimate exercise of its discretion to weigh benefits against costs that the agency has been proceeding in essentially this fashion for over 30 years. See Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461, 487 (2004); Barnhart v. Walton, 535 U. S. 212, 219–220 (2002). As early as 1977, the agency determined that, while §1326(b) does not require cost-benefit analysis, it is also not reasonable to “interpret Section [1326(b)] as requiring use of technology whose cost is wholly disproportionate to the environmental benefit to be gained.” In re Public Service Co. of New Hampshire, 1 E. A. D. 332, 340 (1977). See also In re Central Hudson Gas and Electric Corp., EPA Decision of the General Counsel, NPDES Permits, No. 63, pp. 371, 381 (July 29, 1977) (“EPA ultimately must demonstrate that the present value of the cumulative annual cost of modifications to cooling water intake structures is not wholly out of proportion to the magnitude of the estimated environmental gains”); Seacoast Anti-Pollution League v. Costle, 597 F. 2d 306, 311 (CA1 1979) (rejecting challenge to an EPA permit decision that was based in part on the agency’s determination that further restrictions would be “ ‘wholly disproportionate to any environmental benefit’ ”). While the EPA’s prior “wholly disproportionate” standard may be somewhat different from its current “significantly greater than” standard, there is nothing in the statute that would indicate that the former is a permissible interpretation while the latter is not. Indeed, in its review of the EPA’s Phase I regulations, the Second Circuit seemed to recognize that §1326(b) permits some form of cost-benefit analysis. In considering a challenge to the EPA’s rejection of dry cooling systems[Footnote 7] as the “best technology available” for Phase I facilities the Second Circuit noted that “while it certainly sounds substantial that dry cooling is 95 percent more effective than closed-cycle cooling, it is undeniably relevant that that difference represents a relatively small improvement over closed-cycle cooling at a very significant cost.” Riverkeeper, 358 F. 3d, at 194, n. 22. And in the decision below rejecting the use of cost-benefit analysis in the Phase II regulations, the Second Circuit nonetheless interpreted “best technology available” as mandating only those technologies that can “be reasonably borne by the industry.” 475 F. 3d, at 99. But whether it is “reasonable” to bear a particular cost may well depend on the resulting benefits; if the only relevant factor was the feasibility of the costs, their reasonableness would be irrelevant. In the last analysis, even respondents ultimately recognize that some form of cost-benefit analysis is permissible. They acknowledge that the statute’s language is “plainly not so constricted as to require EPA to require industry petitioners to spend billions to save one more fish or plankton.” Brief for Respondents Riverkeeper, Inc. et al. 29. This concedes the principle—the permissibility of at least some cost-benefit analysis—and we see no statutory basis for limiting its use to situations where the benefits are de minimis rather than significantly disproportionate. * * * We conclude that the EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. The Court of Appeals’ reliance in part on the agency’s use of cost-benefit analysis in invalidating the site-specific cost-benefit variance provision, 475 F. 3d, at 114, was therefore in error, as was its remand of the national performance standards for clarification of whether cost-benefit analysis was impermissibly used, id., at 104–105. We of course express no view on the remaining bases for the Second Circuit’s remand which did not depend on the permissibility of cost-benefit analysis. See id., at 108, 110, 113, 115, 117, 120.[Footnote 8] The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT Statutory Standard Statutorily Mandated Factors Entities Subject to Regulation BPT: “[E]ffluent limitations … which shall require the application of the best practicable control technology currently available.” 33 U. S. C. §1311(b)(1)(A) (emphasis added). “Factors relating to the assessment of best practicable control technology currently available … shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved.” 33 U. S. C. §1314(b)(1)(B). Existing point sources during the Clean Water Act’s initial implementation phase. BCT: “[E]ffluent limitations … which shall require application of the best conventional pollutant control technology.” 33 U. S. C. §1311(b)(2)(E) (emphasis added). “Factors relating to the assessment of best conventional pollutant control technology … shall include consideration of the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived.” 33 U. S. C. §1314(b)(4)(B). Existing point sources that discharge “conventional pollutants” as defined by the EPA under 33 U. S. C. §1314(a)(4). BATEA: “[E]ffluent limitations … which … shall require application of the best available technology economically achievable … which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants.” 33 U. S. C. §1311(b)(2)(A) (emphasis added). “Factors relating to the assessment of best available technology shall take into account … the cost of achieving such effluent reduction.” 33 U. S. C. §1314(b)(2)(B). Existing point sources that discharge toxic pollutants and non-conventional pollutants. BADT: “[A] standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction with the Administrator determines to be achievable through application of the best available demonstrated control technology.” 33 U. S. C. §1316(a)(1) (emphasis added). “[T]he Administrator shall take into consideration the cost of achieving such effluent reduction, and any non-water quality environmental impact and energy requirements.” 33 U. S. C. §1316(b)(1)(B). New point sources within the categories of sources identified by the EPA under 33 U. S. C. §1316(b)(1)(A). BTA: “Any standard … applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” 33 U. S. C. §1326(b). N/A Point sources that operate cooling water intake structures. Footnote 1 The EPA and its Administrator appeared as respondents in support of petitioners. See Brief for Federal Parties as Respondents Supporting Petitioners. References to “respondents” throughout the opinion refer only to those parties challenging the EPA rules at issue in these cases. Footnote 2 Closed-cycle cooling systems recirculate the water used to cool the facility, and consequently extract less water from the adjacent waterway, proportionately reducing impingement and entrainment. Riverkeeper, Inc. v. EPA, 358 F. 3d 174, 182, n. 5 (CA2 2004); 69 Fed. Reg. 41601, and n. 44 (2004). Footnote 3 The EPA has also adopted Phase III rules for facilities not subject to the Phase I and Phase II regulations. 71 Fed. Reg. 35006 (2006). A challenge to those regulations is currently before the Fifth Circuit, where proceedings have been stayed pending disposition of these cases. See ConocoPhillips Co. v. EPA, No. 06–60662. Footnote 4 The dissent finds it “puzzling” that we invoke this proposition (that a reasonable agency interpretation prevails) at the “outset,” omitting the supposedly prior inquiry of “ ‘whether Congress has directly spoken to the precise question at issue.’ ” Post, at 6, n. 5 (opinion of Stevens, J.) (quoting Chevron, 467 U. S., at 842). But surely if Congress has directly spoken to an issue then any agency interpretation contradicting what Congress has said would be unreasonable. What is truly “puzzling” is the dissent’s accompanying charge that the Court’s failure to conduct the Chevron step-one inquiry at the outset “reflects [its] reluctance to consider the possibility … that Congress’ silence may have meant to foreclose cost-benefit analysis.” Post, at 6, n. 5. Our discussion of that issue, infra, at 11, speaks for itself. Footnote 5 Respondents concede that the term “available” is ambiguous, as it could mean either technologically feasible or economically feasible. But any ambiguity in the term “available” is largely irrelevant. Regardless of the criteria that render a technology “available,” the EPA would still have to determine which available technology is the “best” one. And as discussed above, that determination may well involve consideration of the technology’s relative costs and benefits. Footnote 6 The statute does not contain a hyphen between the words “conventional” and “pollutant.” “Conventional pollutant” is a statutory term, however, see 33 U. S. C. §1314(a)(4), and it is clear that in §1311(b)(2)(E) the adjective modifies “pollutant” rather than “control technology.” The hyphen makes that clear. Footnote 7 Dry cooling systems use air drafts to remove heat, and accordingly remove little or no water from surrounding water sources. See 66 Fed. Reg. 65282 (2001). Footnote 8 Justice Breyer would remand for the additional reason of what he regards as the agency’s inadequate explanation of the change in its criterion for variances—from a relationship of costs to benefits that is “ ‘wholly disproportionate’ ” to one that is “ ‘significantly greater.’ ” Post, at 7–8 (opinion concurring in part and dissenting in part). That question can have no bearing upon whether the EPA can use cost-benefit analysis, which is the only question presented here. It seems to us, in any case, that the EPA’s explanation was ample. It explained that the “wholly out of proportion” standard was inappropriate for the existing facilities subject to the Phase II rules because those facilities lack “the greater flexibility available to new facilities for selecting the location of their intakes and installing technologies at lower costs relative to the costs associated with retrofitting existing facilities,” and because “economically impracticable impacts on energy prices, production costs, and energy production … could occur if large numbers of Phase II existing facilities incurred costs that were more than ‘significantly greater’ than but not ‘wholly out of proportion’ to the costs in the EPA’s record.” 68 Fed. Reg. 13541 (2003). |
556.US.2008_07-582 | Federal law bans the broadcasting of “any … indecent … language,” 18 U. S. C. §1464, which includes references to sexual or excretory activity or organs, see FCC v. Pacifica Foundation, 438 U. S. 726. Having first defined the prohibited speech in 1975, the Federal Communications Commission (FCC) took a cautious, but gradually expanding, approach to enforcing the statutory prohibition. In 2004, the FCC’s Golden Globes Order declared for the first time that an expletive (nonliteral) use of the F-Word or the S-Word could be actionably indecent, even when the word is used only once. This case concerns isolated utterances of the F- and S-Words during two live broadcasts aired by Fox Television Stations, Inc. In its order upholding the indecency findings, the FCC, inter alia, stated that the Golden Globes Order eliminated any doubt that fleeting expletives could be actionable; declared that under the new policy, a lack of repetition weighs against a finding of indecency, but is not a safe harbor; and held that both broadcasts met the new test because one involved a literal description of excrement and both invoked the F-Word. The order did not impose sanctions for either broadcast. The Second Circuit set aside the agency action, declining to address the constitutionality of the FCC’s action but finding the FCC’s reasoning inadequate under the Administrative Procedure Act (APA). Held: The judgment is reversed, and the case is remanded. 489 F. 3d 444, reversed and remanded. Justice Scalia delivered the opinion of the Court, except as to Part III–E, concluding: 1. The FCC’s orders are neither “arbitrary” nor “capricious” within the meaning of the APA, 5 U. S. C. §706(2)(A). Pp. 9–19. (a) Under the APA standard, an agency must “examine the relevant data and articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43. In overturning the FCC’s judgment, the Second Circuit relied in part on its precedent interpreting the APA and State Farm to require a more substantial explanation for agency action that changes prior policy. There is, however, no basis in the Act or this Court’s opinions for a requirement that all agency change be subjected to more searching review. Although an agency must ordinarily display awareness that it is changing position, see United States v. Nixon, 418 U. S. 683, 696, and may sometimes need to account for prior factfinding or certain reliance interests created by a prior policy, it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one. It suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change adequately indicates. Pp. 9–12. (b) Under these standards, the FCC’s new policy and its order finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious. First, the FCC forthrightly acknowledged that its recent actions have broken new ground, taking account of inconsistent prior FCC and staff actions, and explicitly disavowing them as no longer good law. The agency’s reasons for expanding its enforcement activity, moreover, were entirely rational. Even when used as an expletive, the F-Word’s power to insult and offend derives from its sexual meaning. And the decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with Pacifica’s context-based approach. Because the FCC’s prior safe-harbor-for-single-words approach would likely lead to more widespread use, and in light of technological advances reducing the costs of bleeping offending words, it was rational for the agency to step away from its old regime. The FCC’s decision not to impose sanctions precludes any argument that it is arbitrarily punishing parties without notice of their actions’ potential consequences. Pp. 13–15. (c) None of the Second Circuit’s grounds for finding the FCC’s action arbitrary and capricious is valid. First, the FCC did not need empirical evidence proving that fleeting expletives constitute harmful “first blows” to children; it suffices to know that children mimic behavior they observe. Second, the court of appeals’ finding that fidelity to the FCC’s “first blow” theory would require a categorical ban on all broadcasts of expletives is not responsive to the actual policy under review since the FCC has always evaluated the patent offensiveness of words and statements in relation to the context in which they were broadcast. The FCC’s decision to retain some discretion in less egregious cases does not invalidate its regulation of the broadcasts under review. Third, the FCC’s prediction that a per se exemption for fleeting expletives would lead to their increased use merits deference and makes entire sense. Pp. 15–18. (d) Fox’s additional arguments are not tenable grounds for affirmance. Fox misconstrues the agency’s orders when it argues that that the new policy is a presumption of indecency for certain words. It reads more into Pacifica than is there by arguing that the FCC failed adequately to explain how this regulation is consistent with that case. And Fox’s argument that the FCC’s repeated appeal to “context” is a smokescreen for a standardless regime of unbridled discretion ignores the fact that the opinion in Pacifica endorsed a context-based approach. Pp. 18–19. 2. Absent a lower court opinion on the matter, this Court declines to address the FCC orders’ constitutionality. P. 26. Scalia, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III–A through III–D, and IV, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined, and an opinion with respect to Part III–E, in which Roberts, C. J., and Thomas and Alito, JJ., joined. Thomas, J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in part and concurring in the judgment. Stevens, J., and Ginsburg, J., filed dissenting opinions. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined. | except as to Part III–E. Federal law prohibits the broadcasting of “any … indecent … language,” 18 U. S. C. §1464, which includes expletives referring to sexual or excretory activity or organs, see FCC v. Pacifica Foundation, 438 U. S. 726 (1978). This case concerns the adequacy of the Federal Communications Commission’s explanation of its decision that this sometimes forbids the broadcasting of indecent expletives even when the offensive words are not repeated. I. Statutory and Regulatory Background The Communications Act of 1934, 48 Stat. 1064, 47 U. S. C. §151 et seq. (2000 ed. and Supp. V), established a system of limited-term broadcast licenses subject to various “conditions” designed “to maintain the control of the United States over all the channels of radio transmission,” §301 (2000 ed.). Twenty-seven years ago we said that “[a] licensed broadcaster is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations.” CBS, Inc. v. FCC, 453 U. S. 367, 395 (1981) (internal quotation marks omitted). One of the burdens that licensees shoulder is the indecency ban—the statutory proscription against “utter[ing] any obscene, indecent, or profane language by means of radio communication,” 18 U. S. C. §1464—which Congress has instructed the Commission to enforce between the hours of 6 a.m. and 10 p.m. Public Telecommunications Act of 1992, §16(a), 106 Stat. 954, note following 47 U. S. C. §303.[Footnote 1] Congress has given the Commission various means of enforcing the indecency ban, including civil fines, see §503(b)(1), and license revocations or the denial of license renewals, see §§309(k), 312(a)(6). The Commission first invoked the statutory ban on indecent broadcasts in 1975, declaring a daytime broadcast of George Carlin’s “Filthy Words” monologue actionably indecent. Pacifica Foundation, 56 F. C. C. 2d 94. At that time, the Commission announced the definition of indecent speech that it uses to this day, prohibiting “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, at times of the day when there is a reasonable risk that children may be in the audience.” Id., at 98. In FCC v. Pacifica Foundation, supra, we upheld the Commission’s order against statutory and constitutional challenge. We rejected the broadcasters’ argument that the statutory proscription applied only to speech appealing to the prurient interest, noting that “the normal definition of ‘indecent’ merely refers to nonconformance with accepted standards of morality.” Id., at 740. And we held that the First Amendment allowed Carlin’s monologue to be banned in light of the “uniquely pervasive presence” of the medium and the fact that broadcast programming is “uniquely accessible to children.” Id., at 748–749. In the ensuing years, the Commission took a cautious, but gradually expanding, approach to enforcing the statutory prohibition against indecent broadcasts. Shortly after Pacifica, 438 U. S. 726, the Commission expressed its “inten[tion] strictly to observe the narrowness of the Pacifica holding,” which “relied in part on the repetitive occurrence of the ‘indecent’ words” contained in Carlin’s monologue. In re Application of WGBH Educ. Foundation, 69 F. C. C. 2d 1250, 1254, ¶10 (1978). When the full Commission next considered its indecency standard, however, it repudiated the view that its enforcement power was limited to “deliberate, repetitive use of the seven words actually contained in the George Carlin monologue.” In re Pacifica Foundation, Inc., 2 FCC Rcd. 2698, 2699, ¶12 (1987). The Commission determined that such a “highly restricted enforcement standard … was unduly narrow as a matter of law and inconsistent with [the Commission’s] enforcement responsibilities under Section 1464.” In re Infinity Broadcasting Corp. of Pa., 3 FCC Rcd. 930, ¶5 (1987). The Court of Appeals for the District of Columbia Circuit upheld this expanded enforcement standard against constitutional and Administrative Procedure Act challenge. See Action for Children’s Television v. FCC, 852 F. 2d 1332 (1988) (R. Ginsburg, J.), superseded in part by Action for Children’s Television v. FCC, 58 F. 3d 654 (1995) (en banc). Although the Commission had expanded its enforcement beyond the “repetitive use of specific words or phrases,” it preserved a distinction between literal and nonliteral (or “expletive”) uses of evocative language. In re Pacifica Foundation, Inc., 2 FCC Rcd., at 2699, ¶13. The Commission explained that each literal “description or depiction of sexual or excretory functions must be examined in context to determine whether it is patently offensive,” but that “deliberate and repetitive use … is a requisite to a finding of indecency” when a complaint focuses solely on the use of nonliteral expletives. Ibid. Over a decade later, the Commission emphasized that the “full context” in which particular materials appear is “critically important,” but that a few “principal” factors guide the inquiry, such as the “explicitness or graphic nature” of the material, the extent to which the material “dwells on or repeats” the offensive material, and the extent to which the material was presented to “pander,” to “titillate,” or to “shock.” In re Industry Guidance On the Commission’s Case Law Interpreting 18 U. S. C. §1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999, 8002, ¶9, 8003, ¶10 (2001) (emphasis deleted). “No single factor,” the Commission said, “generally provides the basis for an indecency finding,” but “where sexual or excretory references have been made once or have been passing or fleeting in nature, this characteristic has tended to weigh against a finding of indecency.” Id., at 8003, ¶10, 8008, ¶17. In 2004, the Commission took one step further by declaring for the first time that a nonliteral (expletive) use of the F- and S-Words could be actionably indecent, even when the word is used only once. The first order to this effect dealt with an NBC broadcast of the Golden Globe Awards, in which the performer Bono commented, “ ‘This is really, really, f***ing brilliant.’ ” In re Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 FCC Rcd. 4975, 4976, n. 4 (2004) (Golden Globes Order). Although the Commission had received numerous complaints directed at the broadcast, its enforcement bureau had concluded that the material was not indecent because “Bono did not describe, in context, sexual or excretory organs or activities and … the utterance was fleeting and isolated.” Id., at 4975–4976, ¶3. The full Commission reviewed and reversed the staff ruling. The Commission first declared that Bono’s use of the F-Word fell within its indecency definition, even though the word was used as an intensifier rather than a literal descriptor. “[G]iven the core meaning of the ‘F-Word,’ ” it said, “any use of that word … inherently has a sexual connotation.” Id., at 4978, ¶8. The Commission determined, moreover, that the broadcast was “patently offensive” because the F-Word “is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” because “[i]ts use invariably invokes a coarse sexual image,” and because Bono’s use of the word was entirely “shocking and gratuitous.” Id., at 4979, ¶9. The Commission observed that categorically exempting such language from enforcement actions would “likely lead to more widespread use.” Ibid. Commission action was necessary to “safeguard the well-being of the nation’s children from the most objectionable, most offensive language.” Ibid. The order noted that technological advances have made it far easier to delete (“bleep out”) a “single and gratuitous use of a vulgar expletive,” without adulterating the content of a broadcast. Id., at 4980, ¶11. The order acknowledged that “prior Commission and staff action have indicated that isolated or fleeting broadcasts of the ‘F-Word’ … are not indecent or would not be acted upon.” It explicitly ruled that “any such interpretation is no longer good law.” Ibid., ¶12. It “clarif[ied] … that the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent.” Ibid. Because, however, “existing precedent would have permitted this broadcast,” the Commission determined that “NBC and its affiliates necessarily did not have the requisite notice to justify a penalty.” Id., at 4981–4982, ¶15. II. The Present Case This case concerns utterances in two live broadcasts aired by Fox Television Stations, Inc., and its affiliates prior to the Commission’s Golden Globes Order. The first occurred during the 2002 Billboard Music Awards, when the singer Cher exclaimed, “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.” Brief for Petitioners 9. The second involved a segment of the 2003 Billboard Music Awards, during the presentation of an award by Nicole Richie and Paris Hilton, principals in a Fox television series called “The Simple Life.” Ms. Hilton began their interchange by reminding Ms. Richie to “watch the bad language,” but Ms. Richie proceeded to ask the audience, “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.” Id., at 9–10. Following each of these broadcasts, the Commission received numerous complaints from parents whose children were exposed to the language. On March 15, 2006, the Commission released Notices of Apparent Liability for a number of broadcasts that the Commission deemed actionably indecent, including the two described above. In re Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005, 21 FCC Rcd. 2664 (2006). Multiple parties petitioned the Court of Appeals for the Second Circuit for judicial review of the order, asserting a variety of constitutional and statutory challenges. Since the order had declined to impose sanctions, the Commission had not previously given the broadcasters an opportunity to respond to the indecency charges. It therefore requested and obtained from the Court of Appeals a voluntary remand so that the parties could air their objections. 489 F. 3d 444, 453 (2007). The Commission’s order on remand upheld the indecency findings for the broadcasts described above. See In re Complaints Regarding Various Television Broadcasts Between February 2, 2002, and March 8, 2005, 21 FCC Rcd. 13299 (2006) (Remand Order). The order first explained that both broadcasts fell comfortably within the subject-matter scope of the Commission’s indecency test because the 2003 broadcast involved a literal description of excrement and both broadcasts invoked the “F-Word,” which inherently has a sexual connotation. Id., at 13304, ¶16, 13323, ¶58. The order next determined that the broadcasts were patently offensive under community standards for the medium. Both broadcasts, it noted, involved entirely gratuitous uses of “one of the most vulgar, graphic, and explicit words for sexual activity in the English language.” Id., at 13305, ¶17, 13324, ¶59. It found Ms. Richie’s use of the “F-Word” and her “explicit description of the handling of excrement” to be “vulgar and shocking,” as well as to constitute “pandering,” after Ms. Hilton had playfully warned her to “ ‘watch the bad language.’ ” Id., at 13305, ¶17. And it found Cher’s statement patently offensive in part because she metaphorically suggested a sexual act as a means of expressing hostility to her critics. Id., at 13324, ¶60. The order relied upon the “critically important” context of the utterances, id., at 13304, ¶15, noting that they were aired during prime-time awards shows “designed to draw a large nationwide audience that could be expected to include many children interested in seeing their favorite music stars,” id., at 13305, ¶18, 13324, ¶59. Indeed, approximately 2.5 million minors witnessed each of the broadcasts. Id., at 13306, ¶18, 13326, ¶65. The order asserted that both broadcasts under review would have been actionably indecent under the staff rulings and Commission dicta in effect prior to the Golden Globes Order—the 2003 broadcast because it involved a literal description of excrement, rather than a mere expletive, because it used more than one offensive word, and because it was planned, 21 FCC Rcd., at 13307, ¶22; and the 2002 broadcast because Cher used the F-Word not as a mere intensifier, but as a description of the sexual act to express hostility to her critics, id., at 13324, ¶60. The order stated, however, that the pre-Golden Globes regime of immunity for isolated indecent expletives rested only upon staff rulings and Commission dicta, and that the Commission itself had never held “that the isolated use of an expletive … was not indecent or could not be indecent,” 21 FCC Rcd., at 13307, ¶21. In any event, the order made clear, the Golden Globes Order eliminated any doubt that fleeting expletives could be actionably indecent, 21 FCC Rcd., at 13308, ¶23, 13325, ¶61, and the Commission disavowed the bureau-level decisions and its own dicta that had said otherwise, id., at 13306–13307, ¶¶20, 21. Under the new policy, a lack of repetition “weigh[s] against a finding of indecency,” id., at 13325, ¶61, but is not a safe harbor. The order explained that the Commission’s prior “strict dichotomy between ‘expletives’ and ‘descriptions or depictions of sexual or excretory functions’ is artificial and does not make sense in light of the fact that an ‘expletive’s’ power to offend derives from its sexual or excretory meaning.” Id., at 13308, ¶23. In the Commission’s view, “granting an automatic exemption for ‘isolated or fleeting’ expletives unfairly forces viewers (including children)” to take “ ‘the first blow’ ” and would allow broadcasters “to air expletives at all hours of a day so long as they did so one at a time.” Id., at 13309, ¶25. Although the Commission determined that Fox encouraged the offensive language by using suggestive scripting in the 2003 broadcast, and unreasonably failed to take adequate precautions in both broadcasts, id., at 13311–13314, ¶¶31–37, the order again declined to impose any forfeiture or other sanction for either of the broadcasts, id., at 13321, ¶53, 13326, ¶66. Fox returned to the Second Circuit for review of the Remand Order, and various intervenors including CBS, NBC, and ABC joined the action. The Court of Appeals reversed the agency’s orders, finding the Commission’s reasoning inadequate under the Administrative Procedure Act. 489 F. 3d 444. The majority was “skeptical that the Commission [could] provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster,” but it declined to reach the constitutional question. Id., at 462. Judge Leval dissented, id., at 467. We granted certiorari, 552 U. S. ___ (2008). III. Analysis A. Governing Principles The Administrative Procedure Act, 5 U. S. C. §551 et seq., which sets forth the full extent of judicial authority to review executive agency action for procedural correctness, see Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 545–549 (1978), permits (insofar as relevant here) the setting aside of agency action that is “arbitrary” or “capricious,” 5 U. S. C. §706(2)(A). Under what we have called this “narrow” standard of review, we insist that an agency “examine the relevant data and articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983). We have made clear, however, that “a court is not to substitute its judgment for that of the agency,” ibid., and should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286 (1974). In overturning the Commission’s judgment, the Court of Appeals here relied in part on Circuit precedent requiring a more substantial explanation for agency action that changes prior policy. The Second Circuit has interpreted the Administrative Procedure Act and our opinion in State Farm as requiring agencies to make clear “ ‘why the original reasons for adopting the [displaced] rule or policy are no longer dispositive’ ” as well as “ ‘why the new rule effectuates the statute as well as or better than the old rule.’ ” 489 F. 3d, at 456–457 (quoting New York Council, Assn. of Civilian Technicians v. FLRA, 757 F. 2d 502, 508 (CA2 1985); emphasis deleted). The Court of Appeals for the District of Columbia Circuit has similarly indicated that a court’s standard of review is “heightened somewhat” when an agency reverses course. NAACP v. FCC, 682 F. 2d 993, 998 (1982). We find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review. The Act mentions no such heightened standard. And our opinion in State Farm neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance. That case, which involved the rescission of a prior regulation, said only that such action requires “a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.” 463 U. S., at 42 (emphasis added).[Footnote 2] Treating failures to act and rescissions of prior action differently for purposes of the standard of review makes good sense, and has basis in the text of the statute, which likewise treats the two separately. It instructs a reviewing court to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U. S. C. §706(1), and to “hold unlawful and set aside agency action, findings, and conclusions found to be [among other things] … arbitrary [or] capricious,” §706(2)(A). The statute makes no distinction, however, between initial agency action and subsequent agency action undoing or revising that action. To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books. See United States v. Nixon, 418 U. S. 683, 696 (1974). And of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates. This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate. Sometimes it must—when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). It would be arbitrary or capricious to ignore such matters. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy. In this appeal from the Second Circuit’s setting aside of Commission action for failure to comply with a procedural requirement of the Administrative Procedure Act, the broadcasters’ arguments have repeatedly referred to the First Amendment. If they mean to invite us to apply a more stringent arbitrary-and-capricious review to agency actions that implicate constitutional liberties, we reject the invitation. The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). We know of no precedent for applying it to limit the scope of authorized executive action. In the same section authorizing courts to set aside “arbitrary [or] capricious” agency action, the Administrative Procedure Act separately provides for setting aside agency action that is “unlawful,” 5 U. S. C. §706(2)(A), which of course includes unconstitutional action. We think that is the only context in which constitutionality bears upon judicial review of authorized agency action. If the Commission’s action here was not arbitrary or capricious in the ordinary sense, it satisfies the Administrative Procedure Act’s “arbitrary [or] capricious” standard; its lawfulness under the Constitution is a separate question to be addressed in a constitutional challenge.[Footnote 3] B. Application to This Case Judged under the above described standards, the Commission’s new enforcement policy and its order finding the broadcasts actionably indecent were neither arbitrary nor capricious. First, the Commission forthrightly acknowledged that its recent actions have broken new ground, taking account of inconsistent “prior Commission and staff action” and explicitly disavowing them as “no longer good law.” Golden Globes Order, 19 FCC Rcd., at 4980, ¶12. To be sure, the (superfluous) explanation in its Remand Order of why the Cher broadcast would even have violated its earlier policy may not be entirely convincing. But that unnecessary detour is irrelevant. There is no doubt that the Commission knew it was making a change. That is why it declined to assess penalties; and it relied on the Golden Globes Order as removing any lingering doubt. Remand Order, 21 FCC Rcd., at 13308, ¶23, 13325, ¶61. Moreover, the agency’s reasons for expanding the scope of its enforcement activity were entirely rational. It was certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latter indecent. As the Commission said with regard to expletive use of the F-Word, “the word’s power to insult and offend derives from its sexual meaning.” Id., at 13323, ¶58. And the Commission’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we sanctioned in Pacifica, 438 U. S., at 750. Even isolated utterances can be made in “pander[ing,] … vulgar and shocking” manners, Remand Order, 21 FCC Rcd., at 13305, ¶17, and can constitute harmful “ ‘first blow[s]’ ” to children, id., at 13309, ¶25. It is surely rational (if not inescapable) to believe that a safe harbor for single words would “likely lead to more widespread use of the offensive language,” Golden Globes Order, supra, at 4979, ¶9. When confronting other requests for per se rules governing its enforcement of the indecency prohibition, the Commission has declined to create safe harbors for particular types of broadcasts. See In re Pacifica Foundation, Inc., 2 FCC Rcd., at 2699, ¶12 (repudiating the view that the Commission’s enforcement power was limited to “deliberate, repetitive use of the seven words actually contained in the George Carlin monologue”); In re Infinity Broadcasting Corp. of Pa., 3 FCC Rcd., at 932, ¶17 (“reject[ing] an approach that would hold that if a work has merit, it is per se not indecent”). The Commission could rationally decide it needed to step away from its old regime where nonrepetitive use of an expletive was per se nonactionable because that was “at odds with the Commission’s overall enforcement policy.” Remand Order, supra, at 13308, ¶23. The fact that technological advances have made it easier for broadcasters to bleep out offending words further supports the Commission’s stepped-up enforcement policy. Golden Globes Order, supra, at 4980, ¶11. And the agency’s decision not to impose any forfeiture or other sanction precludes any argument that it is arbitrarily punishing parties without notice of the potential consequences of their action. C. The Court of Appeals’ Reasoning The Court of Appeals found the Commission’s action arbitrary and capricious on three grounds. First, the court criticized the Commission for failing to explain why it had not previously banned fleeting expletives as “harmful ‘first blow[s].’ ” 489 F. 3d, at 458. In the majority’s view, without “evidence that suggests a fleeting expletive is harmful [and] … serious enough to warrant government regulation,” the agency could not regulate more broadly. Id., at 461. As explained above, the fact that an agency had a prior stance does not alone prevent it from changing its view or create a higher hurdle for doing so. And it is not the Commission, but Congress that has proscribed “any … indecent … language.” 18 U. S. C. §1464. There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them. One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts (and insulated from all other indecency), and others are shielded from all indecency. It is one thing to set aside agency action under the Administrative Procedure Act because of failure to adduce empirical data that can readily be obtained. See, e.g., State Farm, 463 U. S., at 46–56 (addressing the costs and benefits of mandatory passive restraints for automobiles). It is something else to insist upon obtaining the unobtainable. Here it suffices to know that children mimic the behavior they observe—or at least the behavior that is presented to them as normal and appropriate. Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives. Congress has made the determination that indecent material is harmful to children, and has left enforcement of the ban to the Commission. If enforcement had to be supported by empirical data, the ban would effectively be a nullity. The Commission had adduced no quantifiable measure of the harm caused by the language in Pacifica, and we nonetheless held that the “government’s interest in the ‘well-being of its youth’ … justified the regulation of otherwise protected expression.” 438 U. S., at 749 (quoting Ginsberg v. New York, 390 U. S. 629, 640, 639 (1968)). If the Constitution itself demands of agencies no more scientifically certain criteria to comply with the First Amendment, neither does the Administrative Procedure Act to comply with the requirement of reasoned decisionmaking. The court’s second objection is that fidelity to the agency’s “first blow” theory of harm would require a categorical ban on all broadcasts of expletives; the Commission’s failure to go to this extreme thus undermined the coherence of its rationale. 489 F. 3d, at 458–459. This objection, however, is not responsive to the Commission’s actual policy under review—the decision to include patently offensive fleeting expletives within the definition of indecency. The Commission’s prior enforcement practice, unchallenged here, already drew distinctions between the offensiveness of particular words based upon the context in which they appeared. Any complaint about the Commission’s failure to ban only some fleeting expletives is better directed at the agency’s context-based system generally rather than its inclusion of isolated expletives. More fundamentally, however, the agency’s decision to consider the patent offensiveness of isolated expletives on a case-by-case basis is not arbitrary or capricious. “Even a prime-time recitation of Geoffrey Chaucer’s Miller’s Tale,” we have explained, “would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected.” Pacifica, supra, at 750, n. 29. The same rationale could support the Commission’s finding that a broadcast of the film Saving Private Ryan was not indecent—a finding to which the broadcasters point as supposed evidence of the Commission’s inconsistency. The frightening suspense and the graphic violence in the movie could well dissuade the most vulnerable from watching and would put parents on notice of potentially objectionable material. See In re Complaints Against Various Television Licensees Regarding Their Broadcast on Nov. 11, 2004 of the ABC Television Network’s Presentation of the Film “Saving Private Ryan,” 20 FCC Rcd. 4507, 4513, ¶15 (2005) (noting that the broadcast was not “intended as family entertainment”). The agency’s decision to retain some discretion does not render arbitrary or capricious its regulation of the deliberate and shocking uses of offensive language at the award shows under review—shows that were expected to (and did) draw the attention of millions of children. Finally, the Court of Appeals found unconvincing the agency’s prediction (without any evidence) that a per se exemption for fleeting expletives would lead to increased use of expletives one at a time. 489 F. 3d, at 460. But even in the absence of evidence, the agency’s predictive judgment (which merits deference) makes entire sense. To predict that complete immunity for fleeting expletives, ardently desired by broadcasters, will lead to a substantial increase in fleeting expletives seems to us an exercise in logic rather than clairvoyance. The Court of Appeals was perhaps correct that the Commission’s prior policy had not yet caused broadcasters to “barrag[e] the airwaves with expletives,” ibid. That may have been because its prior permissive policy had been confirmed (save in dicta) only at the staff level. In any event, as the Golden Globes order demonstrated, it did produce more expletives than the Commission (which has the first call in this matter) deemed in conformity with the statute. D. Respondents’ Arguments Respondents press some arguments that the court did not adopt. They claim that the Commission failed to acknowledge its change in enforcement policy. That contention is not tenable in light of the Golden Globes Order’s specific declaration that its prior rulings were no longer good law, 19 FCC Rcd., at 4980, ¶12, and the Remand Order’s disavowal of those staff rulings and Commission dicta as “seriously flawed,” 21 FCC Rcd., at 13308, ¶23. The broadcasters also try to recharacterize the nature of the Commission’s shift, contending that the old policy was not actually a per se rule against liability for isolated expletives and that the new policy is a presumption of indecency for certain words. This description of the prior agency policy conflicts with the broadcasters’ own prior position in this case. See, e.g., Brief in Opposition for Respondent Fox Television Stations, Inc., et al. 4 (“For almost 30 years following Pacifica, the FCC did not consider fleeting, isolated or inadvertent expletives to be indecent”). And we find no basis for the contention that the Commission has now adopted a presumption of indecency; its repeated reliance on context refutes this claim. The broadcasters also make much of the fact that the Commission has gone beyond the scope of authority approved in Pacifica, which it once regarded as the farthest extent of its power. But we have never held that Pacifica represented the outer limits of permissible regulation, so that fleeting expletives may not be forbidden. To the contrary, we explicitly left for another day whether “an occasional expletive” in “a telecast of an Elizabethan comedy” could be prohibited. 438 U. S., at 748. By using the narrowness of Pacifica’s holding to require empirical evidence of harm before the Commission regulates more broadly, the broadcasters attempt to turn the sword of Pacifica, which allowed some regulation of broadcast indecency, into an administrative-law shield preventing any regulation beyond what Pacifica sanctioned. Nothing prohibits federal agencies from moving in an incremental manner. Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 1002 (2005). Finally, the broadcasters claim that the Commission’s repeated appeal to “context” is simply a smokescreen for a standardless regime of unbridled discretion. But we have previously approved Commission regulation based “on a nuisance rationale under which context is all-important,” Pacifica, supra, at 750, and we find no basis in the Administrative Procedure Act for mandating anything different. E. The Dissents’ Arguments Justice Breyer purports to “begin with applicable law,” post, at 1, but in fact begins by stacking the deck. He claims that the FCC’s status as an “independent” agency sheltered from political oversight requires courts to be “all the more” vigilant in ensuring “that major policy decisions be based upon articulable reasons.” Post, at 1, 2. Not so. The independent agencies are sheltered not from politics but from the President, and it has often been observed that their freedom from presidential oversight (and protection) has simply been replaced by increased subservience to congressional direction. See, e.g., In re Sealed Case, 838 F. 2d 476, 507–508 (CADC) (Silberman, J.), rev’d sub nom. Morrison v. Olson, 487 U. S. 654 (1988); Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2271, n. 93 (2001); Calabresi & Prakash, The President’s Power to Execute the Laws, 104 Yale L. J. 541, 583 (1994); Easterbrook, The State of Madison’s Vision of the State: A Public Choice Perspective, 107 Harv. L. Rev. 1328, 1341 (1994). Indeed, the precise policy change at issue here was spurred by significant political pressure from Congress.[Footnote 4] Justice Stevens apparently recognizes this political control by Congress, and indeed sees it as the manifestation of a principal-agency relationship. In his judgment, the FCC is “better viewed as an agent of Congress” than as part of the Executive. Post, at 3 (dissenting opinion). He nonetheless argues that this is a good reason for requiring the FCC to explain “why its prior policy is no longer sound before allowing it to change course.” Post, at 4. Leaving aside the unconstitutionality of a scheme giving the power to enforce laws to agents of Congress, see Bowsher v. Synar, 478 U. S. 714, 726 (1986), it seems to us that Justice Stevens’ conclusion does not follow from his premise. If the FCC is indeed an agent of Congress, it would seem an adequate explanation of its change of position that Congress made clear its wishes for stricter enforcement, see n. 4, supra.[Footnote 5] The Administrative Procedure Act, after all, does not apply to Congress and its agencies.[Footnote 6] Regardless, it is assuredly not “applicable law” that rulemaking by independent regulatory agencies is subject to heightened scrutiny. The Administrative Procedure Act, which provides judicial review, makes no distinction between independent and other agencies, neither in its definition of agency, 5 U. S. C. §701(b)(1), nor in the standards for reviewing agency action, §706. Nor does any case of ours express or reflect the “heightened scrutiny” Justice Breyer and Justice Stevens would impose. Indeed, it is hard to imagine any closer scrutiny than that we have given to the Environmental Protection Agency, which is not an independent agency. See Massachusetts v. EPA, 549 U. S. 497, 533–535 (2007); Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 481–486 (2001). There is no reason to magnify the separation-of-powers dilemma posed by the Headless Fourth Branch, see Freytag v. Commissioner, 501 U. S. 868, 921 (1991) (Scalia, J., concurring in part and concurring in judgment), by letting Article III judges—like jackals stealing the lion’s kill—expropriate some of the power that Congress has wrested from the unitary Executive. Justice Breyer and Justice Stevens rely upon two supposed omissions in the FCC’s analysis that they believe preclude a finding that the agency did not act arbitrarily. Neither of these omissions could undermine the coherence of the rationale the agency gave, but the dissenters’ evaluation of each is flawed in its own right. First, both claim that the Commission failed adequately to explain its consideration of the constitutional issues inherent in its regulation, post, at 7–11 (opinion of Breyer, J.); post, at 4–7 (opinion of Stevens, J.). We are unaware that we have ever before reversed an executive agency, not for violating our cases, but for failure to discuss them adequately. But leave that aside. According to Justice Breyer, the agency said “next to nothing about the relation between the change it made in its prior ‘fleeting expletive’ policy and the First-Amendment-related need to avoid ‘censorship,’ ” post, at 7–8. The Remand Order does, however, devote four full pages of small-type, single-spaced text (over 1,300 words not counting the footnotes) to explaining why the Commission believes that its indecency-enforcement regime (which includes its change in policy) is consistent with the First Amendment—and therefore not censorship as the term is understood. More specifically, Justice Breyer faults the FCC for “not explain[ing] why the agency changed its mind about the line that Pacifica draws or its policy’s relation to that line,” post, at 10. But in fact (and as the Commission explained) this Court’s holding in Pacifica, 438 U. S. 726, drew no constitutional line; to the contrary, it expressly declined to express any view on the constitutionality of prohibiting isolated indecency. Justice Breyer and Justice Stevens evidently believe that when an agency has obtained this Court’s determination that a less restrictive rule is constitutional, its successors acquire some special burden to explain why a more restrictive rule is not unconstitutional. We know of no such principle.[Footnote 7] Second, Justice Breyer looks over the vast field of particular factual scenarios unaddressed by the FCC’s 35-page Remand Order and finds one that is fatal: the plight of the small local broadcaster who cannot afford the new technology that enables the screening of live broadcasts for indecent utterances. Cf. post, at 11–16. The Commission has failed to address the fate of this unfortunate, who will, he believes, be subject to sanction. We doubt, to begin with, that small-town broadcasters run a heightened risk of liability for indecent utterances. In programming that they originate, their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood. Their main exposure with regard to self-originated programming is live coverage of news and public affairs. But the Remand Order went out of its way to note that the case at hand did not involve “breaking news coverage,” and that “it may be inequitable to hold a licensee responsible for airing offensive speech during live coverage of a public event,” 21 FCC Rcd., at 13311, ¶33. As for the programming that small stations receive on a network “feed”: This will be cleansed by the expensive technology small stations (by Justice Breyer’s hypothesis) cannot afford. But never mind the detail of whether small broadcasters are uniquely subject to a great risk of punishment for fleeting expletives. The fundamental fallacy of Justice Breyer’s small-broadcaster gloomyscenario is its demonstrably false assumption that the Remand Order makes no provision for the avoidance of unfairness—that the single-utterance prohibition will be invoked uniformly, in all situations. The Remand Order made very clear that this is not the case. It said that in determining “what, if any, remedy is appropriate” the Commission would consider the facts of each individual case, such as the “possibility of human error in using delay equipment,” id., at 13313, ¶35. Thus, the fact that the agency believed that Fox (a large broadcaster that used suggestive scripting and a deficient delay system to air a prime-time awards show aimed at millions of children) “fail[ed] to exercise ‘reasonable judgment, responsibility and sensitivity,’ ” id., at 13311, ¶33, and n. 91 (quoting Pacifica Foundation, Inc., 2 FCC Rcd., at 2700, ¶18), says little about how the Commission would treat smaller broadcasters who cannot afford screening equipment. Indeed, that they would not be punished for failing to purchase equipment they cannot afford is positively suggested by the Remand Order’s statement that “[h]olding Fox responsible for airing indecent material in this case does not … impose undue burdens on broadcasters.” 21 FCC Rcd., at 13313, ¶36. There was, in sum, no need for the Commission to compose a special treatise on local broadcasters.[Footnote 8] And Justice Breyer can safely defer his concern for those yeomen of the airwaves until we have before us a case that involves one. IV. Constitutionality The Second Circuit did not definitively rule on the constitutionality of the Commission’s orders, but respondents nonetheless ask us to decide their validity under the First Amendment. This Court, however, is one of final review, “not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material “surely lie at the periphery of First Amendment concern,” Pacifica, 438 U. S., at 743 (plurality opinion of Stevens, J.). We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time. * * * The Second Circuit believed that children today “likely hear this language far more often from other sources than they did in the 1970’s when the Commission first began sanctioning indecent speech,” and that this cuts against more stringent regulation of broadcasts. 489 F. 3d, at 461. Assuming the premise is true (for this point the Second Circuit did not demand empirical evidence) the conclusion does not necessarily follow. The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children. In the end, the Second Circuit and the broadcasters quibble with the Commission’s policy choices and not with the explanation it has given. We decline to “substitute [our] judgment for that of the agency,” State Farm, 463 U. S., at 43, and we find the Commission’s orders neither arbitrary nor capricious. The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The statutory prohibition applicable to commercial radio and television stations extends by its terms from 6 a.m. to 12 midnight. The Court of Appeals for the District of Columbia Circuit held, however, that because “Congress and the Commission [had] backed away from the consequences of their own reasoning,” by allowing some public broadcasters to air indecent speech after 10 p.m., the court was forced “to hold that the section is unconstitutional insofar as it bars the broadcasting of indecent speech between the hours of 10:00 p.m. and midnight.” Action for Children’s Television v. FCC, 58 F. 3d 654, 669 (1995) (en banc), cert. denied, 516 U. S. 1043 (1996). Footnote 2 Justice Breyer’s contention that State Farm did anything more, post, at 4–6 (dissenting opinion), rests upon his failure to observe the italicized phrase and upon a passage quoted in State Farm from a plurality opinion in Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U. S. 800 (1973). That passage referred to “a presumption that [congressional] policies will be carried out best if the settled rule is adhered to.” Id., at 807–808 (opinion of Marshall, J.). But the Atchison plurality made this statement in the context of requiring the agency to provide some explanation for a change, “so that the reviewing court may understand the basis of the agency’s action and so may judge the consistency of that action with the agency’s mandate,” id., at 808. The opinion did not assert the authority of a court to demand explanation sufficient to enable it to weigh (by its own lights) the merits of the agency’s change. Nor did our opinion in State Farm. Footnote 3 Justice Breyer claims that “[t]he Court has often applied [the doctrine of constitutional avoidance] where an agency’s regulation relies on a plausible but constitutionally suspect interpretation of a statute.” Post, at 21. The cases he cites, however, set aside an agency regulation because, applying the doctrine of constitutional avoidance to the ambiguous statute under which the agency acted, the Court found the agency’s interpretation of the statute erroneous. See Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 174 (2001); NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 507 (1979). But Justice Breyer does not urge that we issue such a holding, evidently agreeing that we should limit our review to what the Court of Appeals decided, see Part IV, infra—which included only the adequacy of the Commission’s rulemaking procedure, and not the statutory question. Rather, Justice Breyer seeks a “remand [that] would do no more than ask the agency to reconsider its policy decision in light of” constitutional concerns. Post, at 21. That strange and novel disposition would be entirely unrelated to the doctrine of constitutional avoidance, and would better be termed the doctrine of judicial arm-twisting or appellate review by the wagged finger. Footnote 4 A Subcommittee of the FCC’s House oversight Committee held hearings on the FCC’s broadcast indecency enforcement on January 28, 2004. “Can You Say That on TV?”: An Examination of the FCC’s Enforcement with respect to Broadcast Indecency, Hearing before the Subcommittee on Telecommunications and the Internet of the House Committee on Energy and Commerce, 108th Cong., 2d Sess. Members of the Subcommittee specifically “called on the full Commission to reverse [the staff ruling in the Golden Globes case]” because they perceived a “feeling amongst many Americans that some broadcasters are engaged in a race to the bottom, pushing the decency envelope to distinguish themselves in the increasingly crowded entertainment field.” Id., at 2 (statement of Rep. Upton); see also, e.g., id., at 17 (statement of Rep. Terry), 19 (statement of Rep. Pitts). They repeatedly expressed disapproval of the FCC’s enforcement policies, see, e.g., id., at 3 (statement of Rep. Upton) (“At some point we have to ask the FCC: How much is enough? When will it revoke a license?”); id., at 4 (statement of Rep. Markey) (“Today’s hearing will allow us to explore the FCC’s lackluster enforcement record with respect to these violations”). About two weeks later, on February 11, 2004, the same Subcommittee held hearings on a bill increasing the fines for indecency violations. Hearings on H. R 3717 before the Subcommittee on Telecommunications and the Internet of the House Committee on Energy and Commerce, 108th Cong., 2d Sess. All five Commissioners were present and were grilled about enforcement shortcomings. See, e.g., id., at 124 (statement of Rep. Terry) (“Chairman Powell, … it seems like common sense that if we had … more frequent enforcement instead of a few examples of fines … that would be a deterrent in itself”); id., at 7 (statement of Rep. Dingell) (“I see that apparently … there is no enforcement of regulations at the FCC”). Certain statements, moreover, indicate that the political pressure applied by Congress had its desired effect. See ibid. (“I think our committee’s work has gotten the attention of FCC Chairman Powell and the Bush Administration. And I’m happy to see the FCC now being brought to a state of apparent alert on these matters”); see also id., at 124 (statement of Michael Copps, FCC Commissioner) (noting “positive” change in other Commissioners’ willingness to step up enforcement in light of proposed congressional action). A version of the bill ultimately became law as the Broadcast Decency Enforcement Act of 2005, 120 Stat. 491. The FCC adopted the change that is the subject of this litigation on March 3, 2004, about three weeks after this second hearing. See Golden Globes Order, 19 FCC Rcd. 4975. Footnote 5 Justice Stevens accuses us of equating statements made in a congressional hearing with the intent of Congress. Post, at 4, n. 3. In this opinion, we do not. The intent of the full Congress (or at least a majority of each House) is thought relevant to the interpretation of statutes, since they must be passed by the entire Congress. See U. S. Const., Art. I, §7. It is quite irrelevant, however, to the extrastatutory influence Congress exerts over agencies of the Executive Branch, which is exerted by the congressional committees responsible for oversight and appropriations with respect to the relevant agency. That is a major reason why committee assignments are important, and committee chairmanships powerful. Surely Justice Stevens knows this. Footnote 6 The Administrative Procedure Act defines “agency” to mean “each authority of the Government of the United States,” 5 U. S. C. §551(1), but specifically excludes “the Congress,” §551(1)(A). The Court of Appeals for the District of Columbia Circuit has “interpreted [this] exemption for ‘the Congress’ to mean the entire legislative branch,” Washington Legal Foundation v. United States Sentencing Comm’n, 17 F. 3d 1446, 1449 (1994); see also Ethnic Employees of Library of Congress v. Boorstin, 751 F. 2d 1405, 1416, n. 15 (CADC 1985) (holding that the Library of Congress is not an “agency” under the Act). Footnote 7 Justice Stevens criticizes us for “assuming that Pacifica endorsed” the enforcement at issue here. Post, at 4. We do nothing of the sort. We rely on the fact that certain aspects of the agency’s decision mirror the context-based approach Pacifica approved, supra, at 14, but that goes to our holding on administrative law, and says nothing about constitutionality. Justice Stevens also argues that heightened deference should be due the FCC’s prior policy because the “FCC’s initial views … reflect the views of the Congress that delegated the Commission authority to flesh out details not fully defined in the enacting statute.” Post, at 3. We do not believe that the dead hand of a departed Congressional oversight Committee should constrain the discretion that the text of a statute confers—but the point is in any event irrelevant in this appeal, which concerns not whether the agency has exceeded its statutory mandate but whether the reasons for its actions are adequate. Footnote 8 Justice Breyer posits that the FCC would have been required to give more explanation had it used notice-and-comment rulemaking, which “should lead us to the same conclusion” in this review of the agency’s change through adjudication. Post, at 17. Even assuming the premise, there is no basis for incorporating all of the Administrative Procedure Act’s notice-and-comment procedural requirements into arbitrary-and-capricious review of adjudicatory decisions. Cf. Vermont Yankee, 435 U. S., at 545–549. |
555.US.2008_07-1125 | Petitioners filed suit against respondents, the local school district’s governing board and superintendent, alleging that their response to allegations of sexual harassment of petitioners’ daughter by an older student was inadequate, raising claims under, inter alia, Title IX of the Education Amendments of 1972, 20 U. S. C. §1681(a), and 42 U. S. C. §1983 for violation of the Equal Protection Clause of the Fourteenth Amendment. Among its rulings, the District Court dismissed the §1983 claim. The First Circuit affirmed, holding that, under this Court’s precedents, Title IX’s implied private remedy was sufficiently comprehensive to preclude the use of §1983 to advance constitutional claims. Held: 1. Title IX does not preclude a §1983 action alleging unconstitutional gender discrimination in schools. Pp. 4–12. (a) In Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1; Smith v. Robinson, 468 U. S. 992; and Rancho Palos Verdes v. Abrams, 544 U. S. 113, this Court found that particular statutory enactments precluded §1983 claims where it was established that Congress intended the statute’s remedial scheme to “be the exclusive avenue through which a plaintiff may assert [such] claims,” Smith, supra, at 1009. In determining whether Congress intended for a subsequent statute to preclude the enforcement of a federal right under §1983, the Court has placed primary emphasis on the nature and extent of that statute’s remedial scheme. See Sea Clammers, 453 U. S., at 20. Where the §1983 claim alleges a constitutional violation, a lack of congressional intent to preclude may also be inferred from a comparison of the rights and protections of the other statute and those existing under the Constitution. Pp. 4–7. (b) In the absence of a comprehensive remedial scheme comparable to those at issue in Sea Clammers, Smith, and Rancho Palos Verdes, and in light of the divergent coverage of Title IX and the Equal Protection Clause, it must be concluded that Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for §1983 suits as a means of enforcing constitutional rights. Pp. 7–12. (i) Title IX’s only express enforcement mechanism, 20 U. S. C. §1682, is an administrative procedure resulting in the withdrawal of federal funding from noncompliant institutions. This Court has also recognized an implied private right of action, Cannon v. University of Chicago, 441 U. S. 677, 717, for which both injunctive relief and damages are available, Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 76. These remedies stand in stark contrast to the “unusually elaborate,” “carefully tailored,” and “restrictive” enforcement schemes of the statutes in Sea Clammers, Smith, and Rancho Palos Verdes. Unlike those statutes, Title IX has no administrative exhaustion requirement and no notice provisions. Plaintiffs can file directly in court under its implied private right of action and can obtain the full range of remedies. Accordingly, parallel and concurrent §1983 claims will neither circumvent required procedures nor allow access to new remedies. Moreover, under Rancho Palos Verdes, “[t]he provision of an express, private means of redress in the statute itself” is a key consideration in determining congressional intent, and “the existence of a more restrictive private remedy for statutory violations has been the dividing line between those cases in which … an action would lie under §1983 and those in which we have held that it would not.” 544 U. S., at 121. Title IX contains no express private remedy, much less a more restrictive one. Pp. 7–9. (ii) Because Title IX’s protections are narrower in some respects and broader in others than those guaranteed under the Equal Protection Clause, the Court cannot agree with the First Circuit that Congress saw Title IX as the sole means of correcting unconstitutional gender discrimination in schools. Title IX reaches institutions and programs that receive federal funds, 20 U. S. C. §1681(a), which may include nonpublic institutions, §1681(c), but it has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals. Moreover, while the constitutional provision reaches only state actors, §1983 equal protection claims may be brought against individuals as well as state entities. West v. Atkins, 487 U. S. 42, 48–51. And Title IX exempts from its restrictions several activities that may be challenged on constitutional grounds. See, e.g., §1681(a)(5). Even where particular activities and particular defendants are subject to both Title IX and the Equal Protection Clause, the standards for establishing liability may not be wholly congruent. Compare Gebser v. Lago Vista Independent School Dist., 524 U. S. 274, 290, with Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694. Pp. 9–11. (iii) The Court’s conclusion is consistent with Title IX’s context and history. Because the Congress that enacted Title IX authorized the Attorney General to intervene in private suits alleging sex discrimination violative of the Equal Protection Clause, 42 U. S. C. §2000h–2, Congress must have explicitly envisioned that private plaintiffs would bring constitutional claims to challenge gender discrimination via §1983. Moreover, Title IX was modeled after Title VI of the Civil Rights Act of 1964, Cannon, supra, at 694–695, and, at the time of Title IX’s 1972 enactment, the lower courts routinely interpreted Title VI to allow for parallel and concurrent §1983 claims. Absent contrary evidence, it follows that Congress intended Title IX to be interpreted similarly to allow for parallel and concurrent §1983 claims. Pp. 11–12. 2. As neither of the courts below addressed the merits of petitioners’ constitutional claims or even the sufficiency of their pleadings, this Court will not do so in the first instance here. Pp. 12–13. 504 F. 3d 165, reversed and remanded. Alito, J., delivered the opinion for a unanimous Court. | The issue in this case of peer-on-peer sexual harassment is whether Title IX of the Education Amendments of 1972, 86 Stat. 373, 20 U. S. C. §1681(a), precludes an action under Rev. Stat. §1979, 42 U. S. C. §1983, alleging unconstitutional gender discrimination in schools. The Court of Appeals for the First Circuit held that it does. 504 F. 3d 165 (2007). We reverse. I Because this case comes to us on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we assume the truth of the facts as alleged in petitioners’ complaint. During the 2000–2001 school year, the daughter of petitioners Lisa and Robert Fitzgerald was a kindergarten student in the Barnstable, Massachusetts, school system, and rode the bus to school each morning. One day she told her parents that, whenever she wore a dress, a third-grade boy on the school bus would bully her into lifting her skirt. Lisa Fitzgerald immediately called the school principal, Frederick Scully, who arranged a meeting later that day with the Fitzgeralds, their daughter, and another school official, Lynda Day. Scully and Day then questioned the alleged bully, who denied the allegations. Day also interviewed the bus driver and several students who rode the bus. She concluded that she could not corroborate the girl’s version of the events. The Fitzgeralds’ daughter then provided new details of the alleged abuse to her parents, who relayed them to Scully. Specifically, she told her parents that in addition to bullying her into raising her skirt, the boy coerced her into pulling down her underpants and spreading her legs. Scully scheduled a second meeting with the Fitzgeralds to discuss the additional details and again questioned the boy and other students. Meanwhile, the local police department conducted an independent investigation and concluded there was insufficient evidence to bring criminal charges against the boy. Based partly on the police investigation and partly on the school’s own investigation, Scully similarly concluded there was insufficient evidence to warrant discipline. Scully did propose remedial measures to the Fitzgeralds. He suggested transferring their daughter to a different bus or leaving rows of empty seats between the kindergarteners and older students on the original bus. The Fitzgeralds felt that these proposals punished their daughter instead of the boy and countered with alternative proposals. They suggested transferring the boy to a different bus or placing a monitor on the original bus. The Barnstable school system’s superintendent, Russell Dever, did not act on these proposals. The Fitzgeralds began driving their daughter to school to avoid further bullying on the bus, but she continued to report unsettling incidents at school. The Fitzgeralds reported each incident to Scully. The Fitzgeralds’ daughter had an unusual number of absences during the remainder of the school year. In April 2002, the Fitzgeralds filed suit in District Court, alleging that the school system’s response to their allegations of sexual harassment had been inadequate, resulting in further harassment to their daughter. Their complaint included: (1) a claim for violation of Title IX against the Barnstable School Committee (the school system’s governing body), (2) claims under 42 U. S. C. §1983 for violations of Title IX and the Equal Protection Clause of the Fourteenth Amendment against the school committee and Dever, and (3) Massachusetts state-law claims against the school committee and Dever. The school committee and Dever (respondents here), filed a motion to dismiss, which the District Court granted as to the §1983 claims and the state-law claims. On the Title IX claim, the school committee filed a motion for summary judgment, which the District Court also granted. Hunter v. Barnstable School Committee, 456 F. Supp. 2d 255, 266 (Mass. 2006). The Court of Appeals for the First Circuit affirmed. 504 F. 3d 165. Turning first to the Title IX claim against the school committee, the court noted three points that were not in dispute: (1) the school committee was the recipient of federal funds and was therefore subject to Title IX, (2) the school committee had actual knowledge of the harassment the Fitzgeralds’ daughter suffered, and (3) if the allegations of the complaint were true, the harassment was “severe, pervasive and objectively offensive.” Id., at 172. The court concluded that the Fitzgeralds’ Title IX claim lacked merit, however, because the response of the school committee and Dever to the reported harassment had been objectively reasonable. Id., at 175. The Court of Appeals turned next to the Fitzgeralds’ §1983 claims. Relying on this Court’s precedents in Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1 (1981), Smith v. Robinson, 468 U. S. 992 (1984), and Rancho Palos Verdes v. Abrams, 544 U. S. 113 (2005), the court characterized Title IX’s implied private remedy as “sufficiently comprehensive” to preclude use of §1983 to advance statutory claims based on Title IX itself. 504 F. 3d, at 179. This reasoning, the court held, “appl[ied] with equal force” to the constitutional claims. Ibid. The court concluded that “Congress saw Title IX as the sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions.” Ibid. The Court of Appeals’ decision deepened a conflict among the Circuits regarding whether Title IX precludes use of §1983 to redress unconstitutional gender discrimination in schools. Compare Bruneau ex rel. Schofield v. South Kortright Central School Dist., 163 F. 3d 749, 758–759 (CA2 1998); Waid v. Merrill Area Public Schools 91 F. 3d 857, 862–863 (CA7 1996); Pfeiffer v. Marion Center Area School Dist., 917 F. 2d 779, 789 (CA3 1990), with Communities for Equity v. Michigan High School Athletic Assn., 459 F. 3d 676, 691 (CA6 2006); Crawford v. Davis, 109 F. 3d 1281, 1284 (CA8 1997); Seamons v. Snow, 84 F. 3d 1226, 1234 (CA10 1996). We granted certiorari to resolve this conflict, 553 U. S. ___ (2008), and we now reverse. II A In relevant part, 42 U. S. C. §1983, provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” In three cases, this Court has found that statutory enactments precluded claims under this statute. Sea Clammers, supra; Smith, supra; Rancho Palos Verdes, supra. These cases establish that “[t]he crucial consideration is what Congress intended.” Smith, 468 U. S., at 1012. If Congress intended a statute’s remedial scheme to “be the exclusive avenue through which a plaintiff may assert [the] claim,” id., at 1009, the §1983 claims are precluded. See Rancho Palos Verdes, 544 U. S., at 120–121 (“The critical question, then, is whether Congress meant the judicial remedy authorized by [the statute] to coexist with an alternative remedy available in a §1983 action”). In those cases in which the §1983 claim is based on a statutory right, “evidence of such congressional intent may be found directly in the statute creating the right, or inferred from the statute’s creation of a comprehensive enforcement scheme that is incompatible with individual enforcement under §1983.” Id., at 120 (internal quotation marks omitted). In cases in which the §1983 claim alleges a constitutional violation, lack of congressional intent may be inferred from a comparison of the rights and protections of the statute and those existing under the Constitution. Where the contours of such rights and protections diverge in significant ways, it is not likely that Congress intended to displace §1983 suits enforcing constitutional rights. Our conclusions regarding congressional intent can be confirmed by a statute’s context. Id., at 127 (Breyer, J., concurring) (“[C]ontext, not just literal text, will often lead a court to Congress’ intent in respect to a particular statute”). In determining whether a subsequent statute precludes the enforcement of a federal right under §1983, we have placed primary emphasis on the nature and extent of that statute’s remedial scheme. See Sea Clammers, supra, at 20 (“When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under §1983”). Sea Clammers illustrates this approach. The plaintiffs brought suit under §1983 for violations of the Federal Water Pollution Control Act and the Marine Protection, Research, and Sanctuaries Act of 1972. This Court’s analysis focused on these two statutes’ “unusually elaborate enforcement provisions,” which authorized the Environmental Protection Agency to seek civil and criminal penalties for violations, permitted “ ‘any interested person’ ” to seek judicial review, and contained detailed citizen suit provisions allowing for injunctive relief. 453 U. S., at 13–14. Allowing parallel §1983 claims to proceed, we concluded, would have thwarted Congress’ intent in formulating and detailing these provisions. In Smith, the plaintiffs alleged deprivation of a free, appropriate public education for their handicapped child, in violation of the Education of the Handicapped Act (EHA) and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Departing from the pattern of the plaintiffs in Sea Clammers, the Smith plaintiffs relied on §1983 to assert independent constitutional rights, not to assert the statutory rights guaranteed by the EHA. As in Sea Clammers, however, this Court focused on the statute’s detailed remedial scheme in concluding that Congress intended the statute to provide the sole avenue for relief. Smith, 468 U. S., at 1011 (noting “the comprehensive nature of the procedures and guarantees set out in the [the statute] and Congress’ express efforts to place on local and state educational agencies the primary responsibility for developing a plan to accommodate the needs of each individual handicapped child”). In Rancho Palos Verdes, we again focused on a statute’s remedial scheme in inferring congressional intent for exclusivity. After being denied a permit to build a radio tower on his property, the plaintiff brought claims for injunctive relief under the Telecommunications Act of 1996 (TCA) and for damages and attorney’s fees under §1983. Noting that the TCA provides highly detailed and restrictive administrative and judicial remedies, and explaining that “limitations upon the remedy contained in the statute are deliberate and are not to be evaded through §1983,” we again concluded that Congress must have intended the statutory remedies to be exclusive. 544 U. S., at 124. In all three cases, the statutes at issue required plaintiffs to comply with particular procedures and/or to exhaust particular administrative remedies prior to filing suit. Sea Clammers, supra, at 6; Smith, supra, at 1011–1012; Rancho Palos Verdes, supra, at 122. Offering plaintiffs a direct route to court via §1983 would have circumvented these procedures and given plaintiffs access to tangible benefits—such as damages, attorney’s fees, and costs—that were unavailable under the statutes.[Footnote 1] “Allowing a plaintiff to circumvent” the statutes’ provisions in this way would have been “inconsistent with Congress’ carefully tailored scheme.” Smith, supra, at 1012. B 1 Section 901(a) of Title IX provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U. S. C. §1681(a). The statute’s only express enforcement mechanism, §1682, is an administrative procedure resulting in the withdrawal of federal funding from institutions that are not in compliance. In addition, this Court has recognized an implied private right of action. Cannon v. University of Chicago, 441 U. S. 677, 717 (1979). In a suit brought pursuant to this private right, both injunctive relief and damages are available. Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 76 (1992). These remedies—withdrawal of federal funds and an implied cause of action—stand in stark contrast to the “unusually elaborate,” “carefully tailored,” and “restrictive” enforcement schemes of the statutes at issue in Sea Clammers, Smith, and Rancho Palos Verdes. Unlike those statutes, Title IX has no administrative exhaustion requirement and no notice provisions. Under its implied private right of action, plaintiffs can file directly in court, Cannon, supra, at 717, and can obtain the full range of remedies, see Franklin, supra, at 72 (concluding that “Congress did not intend to limit the remedies available in a suit brought under Title IX”). As a result, parallel and concurrent §1983 claims will neither circumvent required procedures, nor allow access to new remedies. Moreover, this Court explained in Rancho Palos Verdes that “[t]he provision of an express, private means of redress in the statute itself” is a key consideration in determining congressional intent, and that “the existence of a more restrictive private remedy for statutory violations has been the dividing line between those cases in which we have held that an action would lie under §1983 and those in which we have held that it would not.” 544 U. S., at 121 (emphasis added). As noted, Title IX contains no express private remedy, much less a more restrictive one. This Court has never held that an implied right of action had the effect of precluding suit under §1983, likely because of the difficulty of discerning congressional intent in such a situation. See Franklin, supra, at 76 (Scalia, J., concurring in judgment) (“Quite obviously, the search for what was Congress’ remedial intent as to a right whose very existence Congress did not expressly acknowledge is unlikely to succeed”). Mindful that we should “not lightly conclude that Congress intended to preclude reliance on §1983 as a remedy for a substantial equal protection claim,” Smith, 468 U. S., at 1012, we see no basis for doing so here. 2 A comparison of the substantive rights and protections guaranteed under Title IX and under the Equal Protection Clause lends further support to the conclusion that Congress did not intend Title IX to preclude §1983 constitutional suits. Title IX’s protections are narrower in some respects and broader in others. Because the protections guaranteed by the two sources of law diverge in this way, we cannot agree with the Court of Appeals that “Congress saw Title IX as the sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions.” 504 F. 3d, at 179. Title IX reaches institutions and programs that receive federal funds, 20 U. S. C. §1681(a), which may include nonpublic institutions, §1681(c), but it has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals, see, e.g., Hartley v. Parnell, 193 F. 3d 1263, 1270 (CA11 1999). The Equal Protection Clause reaches only state actors, but §1983 equal protection claims may be brought against individuals as well as municipalities and certain other state entities. West v. Atkins, 487 U. S. 42, 48–51 (1988). Title IX exempts from its restrictions several activities that may be challenged on constitutional grounds. For example, Title IX exempts elementary and secondary schools from its prohibition against discrimination in admissions, §1681(a)(1); it exempts military service schools and traditionally single-sex public colleges from all of its provisions, §§1681(a)(4)–(5). Some exempted activities may form the basis of equal protection claims. See United States v. Virginia, 518 U. S. 515, 534 (1996) (men-only admissions policy at Virginia Military Institute violated the Equal Protection Clause); Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 731 (1982) (women-only admission policy at a traditionally single-sex public college violated the Equal Protection Clause). Even where particular activities and particular defendants are subject to both Title IX and the Equal Protection Clause, the standards for establishing liability may not be wholly congruent. For example, a Title IX plaintiff can establish school district liability by showing that a single school administrator with authority to take corrective action responded to harassment with deliberate indifference. Gebser v. Lago Vista Independent School Dist., 524 U. S. 274, 290 (1998). A plaintiff stating a similar claim via §1983 for violation of the Equal Protection Clause by a school district or other municipal entity must show that the harassment was the result of municipal custom, policy, or practice. Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694 (1978). In light of the divergent coverage of Title IX and the Equal Protection Clause, as well as the absence of a comprehensive remedial scheme comparable to those at issue in Sea Clammers, Smith, and Rancho Palos Verdes, we conclude that Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for §1983 suits as a means of enforcing constitutional rights. Accordingly, we hold that §1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools. 3 This conclusion is consistent with Title IX’s context and history. In enacting Title IX, Congress amended §902, 78 Stat. 266–267, 42 U. S. C. §2000h–2 to authorize the Attorney General to intervene in private suits alleging discrimination on the basis of sex in violation of the Equal Protection Clause. See §906, 86 Stat. 375 (adding the term “sex” to the listed grounds, which already included race, color, religion or national origin). Accordingly, it appears that the Congress that enacted Title IX explicitly envisioned that private plaintiffs would bring constitutional claims to challenge gender discrimination; it must have recognized that plaintiffs would do so via 42 U. S. C. §1983. Moreover, Congress modeled Title IX after Title VI of the Civil Rights Act of 1964, Cannon, 441 U. S., at 694–695, and passed Title IX with the explicit understanding that it would be interpreted as Title VI was, id., at 696. At the time of Title IX’s enactment in 1972, Title VI was routinely interpreted to allow for parallel and concurrent §1983 claims, see, e.g., Alvarado v. El Paso Independent School Dist., 445 F. 2d 1011 (CA5 1971); Nashville I–40 Steering Comm. v. Ellington, 387 F. 2d 179 (CA6 1967); Bossier Parish School Bd. v. Lemon, 370 F. 2d 847 (CA5 1967), and we presume Congress was aware of this when it passed Title IX, see Franklin, 503 U. S., at 71 (in assessing Congress’ intent, “we evaluate the state of the law when the Legislature passed Title IX”). In the absence of any contrary evidence, it follows that Congress intended Title IX to be interpreted similarly to allow for parallel and concurrent §1983 claims. At the least, this indicates that Congress did not affirmatively intend Title IX to preclude such claims.[Footnote 2] III One matter remains. Respondents contend that the judgment of the Court of Appeals should be affirmed on independent grounds—namely, that the Fitzgeralds have no actionable §1983 claim on which to proceed. They contend that the Court of Appeals’ holding that neither the school committee nor Dever acted with deliberate indifference is conclusive and forecloses a §1983 constitutional claim based on a similar theory of liability. They contend that all other §1983 constitutional claims on these facts are precluded by the Fitzgeralds’ failure to allege such claims adequately or to preserve them on appeal. The Fitzgeralds respond that they have no intention of relitigating the issue of deliberate indifference. They intend, they say, to advance claims of discriminatory treatment in the investigation of student behavior and in the treatment of student complaints, which they were foreclosed from developing at the earliest stages of litigation by the dismissal of the §1983 claims. As the Fitzgeralds note, no court has addressed the merits of their constitutional claims or even the sufficiency of their pleadings. Ordinarily, “we do not decide in the first instance issues not decided below,” National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999), and we see no reason for doing so here. Accordingly, we reverse the Court of Appeals’ judgment that the District Court’s dismissal of the §1983 claims was proper and remand this case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The statutes at issue in Sea Clammers and Smith did not allow for damages. The statute at issue in Rancho Palos Verdes did not expressly allow for damages, but some lower courts interpreted it to do so. The statutes at issue in Smith and Rancho Palos Verdes did not allow for attorney’s fees and costs. See Sea Clammers, 453 U. S., at 6–7, 13–14 (addressing the Federal Water Pollution Control Act, 86 Stat. 816, as amended, 33 U. S. C. §1251 et seq., and the Marine Protection, Research, and Sanctuaries Act of 1972, 86 Stat. 1052, as amended, 33 U. S. C. §1401 et seq.); Smith, 468 U. S., at 1010–1011 (addressing the Education of the Handicapped Act, 84 Stat. 175, as amended, 20 U. S. C. §1400 et seq.); Rancho Palos Verdes, 544 U. S., at 122–123, and nn. 3, 4 (addressing the Telecommunications Act of 1996, 110 Stat. 56, 47 U. S. C. §332(c)(7)). Footnote 2 Respondents argue that constitutional protections against gender discrimination were minimal in 1972, as the only gender-based equal protection case this Court had decided employed a rational basis standard. Reed v. Reed, 404 U. S. 71, 76 (1971). But see Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for Newer Equal Protection, 86 Harv. L. Rev. 1, 34 (1972) (Reed exemplified the application of rationality review “with bite”). They further argue that because Congress could not have viewed the Equal Protection Clause as offering a meaningful remedy for sex discrimination by schools, it could not have envisioned and intended for Title IX and §1983 constitutional claims to proceed side by side. But the relevant question is not whether Congress envisioned that the two types of claims would proceed together in addressing gender discrimination in schools; it is whether Congress affirmatively intended to preclude this result. The limited nature of constitutional protections against gender discrimination in 1972 offers no evidence that Congress did. |
556.US.2008_08-108 | A federal statute forbidding “[a]ggravated identity theft” imposes a mandatory consecutive 2-year prison term on an individual convicted of certain predicate crimes if, during (or in relation to) the commission of those other crimes, the offender “knowingly … uses, without lawful authority, a means of identification of another person.” 18 U. S. C. §1028A(a)(1) (emphasis added). After petitioner Flores-Figueroa, a Mexican citizen, gave his employer counterfeit Social Security and alien registration cards containing his name but other people’s identification numbers, he was arrested and charged with two immigration offenses and aggravated identity theft. Flores moved for acquittal on the latter charge, claiming that the Government could not prove that he knew that the documents’ numbers were assigned to other people. The District Court agreed with the Government that the word “knowingly” in §1028A(a)(1) does not modify the statute’s last three words, “of another person,” and, after trial, found Flores guilty on all counts. The Eighth Circuit affirmed. Held: Section §1028(a)(1) requires the Government to show that the defendant knew that the means of identification at issue belonged to another person. As a matter of ordinary English grammar, “knowingly” is naturally read as applying to all the subsequently listed elements of the crime. Where a transitive verb has an object, listeners in most contexts assume that an adverb (such as “knowingly”) that modifies the verb tells the listener how the subject performed the entire action, including the object. The Government does not provide a single example of a sentence that, when used in typical fashion, would lead the hearer to a contrary understanding. And courts ordinarily interpret criminal statutes consistently with the ordinary English usage. See, e.g., Liparota v. United States, 471 U. S. 419. The Government argues that this position is incorrect because it would either require the same language to be interpreted differently in a neighboring provision or would render the language in that provision superfluous. This argument fails for two reasons. Finally, the Government’s arguments based on the statute’s purpose and on the practical problems of enforcing it are not sufficient to overcome the ordinary meaning, in English or through ordinary interpretive practice, of Congress’ words. Pp. 4–11. 274 Fed. Appx. 501, reversed 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 part and concurring in the judgment, in which Thomas, J., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment. | A federal criminal statute forbidding “[a]ggravated identity theft” imposes a mandatory consecutive 2-year prison term upon individuals convicted of certain other crimes if, during (or in relation to) the commission of those other crimes, the offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” 18 U. S. C. §1028A(a)(1) (emphasis added). The question is whether the statute requires the Government to show that the defendant knew that the “means of identification” he or she unlawfully transferred, possessed, or used, in fact, belonged to “another person.” We conclude that it does. I A The statutory provision in question references a set of predicate crimes, including, for example, theft of government property, fraud, or engaging in various unlawful activities related to passports, visas, and immigration. §1028A(c). It then provides that if any person who commits any of those other crimes (in doing so) “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person,” the judge must add two years’ imprisonment to the offender’s underlying sentence. §1028A(a)(1). All parties agree that the provision applies only where the offender knows that he is transferring, possessing, or using something. And the Government reluctantly concedes that the offender likely must know that he is transferring, possessing, or using that something without lawful authority. But they do not agree whether the provision requires that a defendant also know that the something he has unlawfully transferred is, for example, a real ID belonging to another person rather than, say, a fake ID (i.e., a group of numbers that does not correspond to any real Social Security number). Petitioner Ignacio Flores-Figueroa argues that the statute requires that the Government prove that he knew that the “means of identification” belonged to someone else, i.e., was “a means of identification of another person.” The Government argues that the statute does not impose this particular knowledge requirement. The Government concedes that the statute uses the word “knowingly,” but that word, the Government claims, does not modify the statute’s last phrase (“a means of identification of another person”) or, at the least, it does not modify the last three words of that phrase (“of another person”). B The facts of this case illustrate the legal problem. Ignacio Flores-Figueroa is a citizen of Mexico. In 2000, to secure employment, Flores gave his employer a false name, birth date, and Social Security number, along with a counterfeit alien registration card. The Social Security number and the number on the alien registration card were not those of a real person. In 2006, Flores presented his employer with new counterfeit Social Security and alien registration cards; these cards (unlike Flores’ old alien registration card) used his real name. But this time the numbers on both cards were in fact numbers assigned to other people. Flores’ employer reported his request to U. S. Immigration and Customs Enforcement. Customs discovered that the numbers on Flores’ new documents belonged to other people. The United States then charged Flores with two predicate crimes, namely, entering the United States without inspection, 8 U. S. C. §1325(a), and misusing immigration documents, 18 U. S. C. §1546(a). And it charged him with aggravated identity theft, 18 U. S. C. §1028A(a)(1), the crime at issue here. Flores moved for a judgment of acquittal on the “aggravated identity theft” counts. He claimed that the Government could not prove that he knew that the numbers on the counterfeit documents were numbers assigned to other people. The Government replied that it need not prove that knowledge, and the District Court accepted the Government’s argument. After a bench trial, the court found Flores guilty of the predicate crimes and aggravated identity theft. The Court of Appeals upheld the District Court’s determination. 274 Fed. Appx. 501 (CA8 2008) (per curiam). And we granted certiorari to consider the “knowledge” issue—a matter about which the Circuits have disagreed. Compare United States v. Godin, 534 F. 3d 51 (CA1 2008) (knowledge requirement applies to “of another person”); United States v. Miranda-Lopez, 532 F. 3d 1034 (CA9 2008) (same); United States v. Villanueva-Sotelo, 515 F. 3d 1234 (CADC 2008) (same), with United States v. Mendoza-Gonzalez, 520 F. 3d 912 (CA8 2008) (knowledge requirement does not apply to “of another person”); United States v. Hurtado, 508 F. 3d 603 (CA11 2007) (per curiam) (same); United States v. Montejo, 442 F. 3d 213 (CA4 2006) (same). II There are strong textual reasons for rejecting the Government’s position. As a matter of ordinary English grammar, it seems natural to read the statute’s word “knowingly” as applying to all the subsequently listed elements of the crime. The Government cannot easily claim that the word “knowingly” applies only to the statutes first four words, or even its first seven. It makes little sense to read the provision’s language as heavily penalizing a person who “transfers, possesses, or uses, without lawful authority” a something, but does not know, at the very least, that the “something” (perhaps inside a box) is a “means of identification.” Would we apply a statute that makes it unlawful “knowingly to possess drugs” to a person who steals a passenger’s bag without knowing that the bag has drugs inside? The Government claims more forcefully that the word “knowingly” applies to all but the statute’s last three words, i.e., “of another person.” The statute, the Government says, does not require a prosecutor to show that the defendant knows that the means of identification the defendant has unlawfully used in fact belongs to another person. But how are we to square this reading with the statute’s language? In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence. Thus, if a bank official says, “Smith knowingly transferred the funds to his brother’s account,” we would normally understand the bank official’s statement as telling us that Smith knew the account was his brother’s. Nor would it matter if the bank official said “Smith knowingly transferred the funds to the account of his brother.” In either instance, if the bank official later told us that Smith did not know the account belonged to Smith’s brother, we should be surprised. Of course, a statement that does not use the word “knowingly” may be unclear about just what Smith knows. Suppose Smith mails his bank draft to Tegucigalpa, which (perhaps unbeknownst to Smith) is the capital of Honduras. If the bank official says, “Smith sent a bank draft to the capital of Honduras,” he has expressed next to nothing about Smith’s knowledge of that geographic identity. But if the official were to say, “Smith knowingly sent a bank draft to the capital of Honduras,” then the official has suggested that Smith knows his geography. Similar examples abound. If a child knowingly takes a toy that belongs to his sibling, we assume that the child not only knows that he is taking something, but that he also knows that what he is taking is a toy and that the toy belongs to his sibling. If we say that someone knowingly ate a sandwich with cheese, we normally assume that the person knew both that he was eating a sandwich and that it contained cheese. Or consider the Government’s own example, “ ‘John knowingly discarded the homework of his sister.’ ” Brief for United States 9. The Government rightly points out that this sentence “does not necessarily” imply that John knew whom the homework belonged to. Ibid. (emphasis added). But that is what the sentence, as ordinarily used, does imply. At the same time, dissimilar examples are not easy to find. The Government says that “knowingly” modifies only the verbs in the statute, while remaining indifferent to the subject’s knowledge of at least part of the transitive verb’s object. In certain contexts, a listener might understand the word “knowingly” to be used in that way. But the Government has not provided us with a single example of a sentence that, when used in typical fashion, would lead the hearer to believe that the word “knowingly” modifies only a transitive verb without the full object, i.e., that it leaves the hearer gravely uncertain about the subject’s state of mind in respect to the full object of the transitive verb in the sentence. The likely reason is that such sentences typically involve special contexts or themselves provide a more detailed explanation of background circumstances that call for such a reading. As Justice Alito notes, the inquiry into a sentence’s meaning is a contextual one. See post, at 3 (opinion concurring in part and concurring in judgment). No special context is present here. See infra, at 8–10. The manner in which the courts ordinarily interpret criminal statutes is fully consistent with this ordinary English usage. That is to say courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word “knowingly” as applying that word to each element. United States v. X-Citement Video, Inc., 513 U. S. 64, 79 (1994) (Stevens, J., concurring). For example, in Liparota v. United States, 471 U. S. 419 (1985), this Court interpreted a federal food stamp statute that said, “ ‘whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [law]’ ” is subject to imprisonment. Id., at 420, n. 1. The question was whether the word “knowingly” applied to the phrase “in any manner not authorized by [law].” Id., at 423. The Court held that it did, id., at 433, despite the legal cliche “ignorance of the law is no excuse.” More recently, we had to interpret a statute that penalizes “[a]ny person who—(1) knowingly transports or ships using any means or facility of interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct.” 18 U. S. C. §2252(a)(1)(A); X-Citement Video, supra. In issue was whether the term “knowingly” in paragraph (1) modified the phrase “the use of a minor” in subparagraph (A). Id., at 69. The language in issue in X-Citement Video (like the language in Liparota) was more ambiguous than the language here not only because the phrase “the use of a minor” was not the direct object of the verbs modified by “knowingly,” but also because it appeared in a different subsection. 513 U. S., at 68–69. Moreover, the fact that many sex crimes involving minors do not ordinarily require that a perpetrator know that his victim is a minor supported the Government’s position. Nonetheless, we again found that the intent element applied to “the use of a minor.” Id., at 72, and n. 2. Again the Government, while pointing to what it believes are special features of each of these cases, provides us with no convincing counterexample, although there may be such statutory instances. The Government correctly points out that in these cases more was at issue than proper use of the English language. But if more is at issue here, what is it? The Government makes a further textual argument, a complex argument based upon a related provision of the statute. That provision applies “[a]ggravated identity theft” where the predicate crime is terrorism. See §1028A(a)(2). The provision uses the same language as the provision before us up to the end, where it adds the words “or a false identification document.” Thus, it penalizes anyone who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person or a false identification document.” §1028A(a)(2). The Government’s argument has four steps. Step One: We should not interpret a statute in a manner that makes some of its language superfluous. See, e.g., TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001). Step Two: A person who knows that he is transferring, possessing, or using a “ ‘means of identification’ ” “ ‘without lawful authority,’ ” must know that the document either (a) belongs “ ‘to another person’ ” or (b) is a “ ‘false identification document’ ” because “ ‘there are no other choices.’ ” Brief for United States 14 (emphasis added). Step Three: Requiring the offender to know that the “means of identification” belongs to another person would consequently be superfluous in this terrorism provision. Step Four: We should not interpret the same phrase (“of another person”) in the two related sections differently. If we understand the argument correctly, it seems to suffer two serious flaws. If the two listed circumstances (where the ID belongs to another person; where the ID is false) are the only two circumstances possibly present when a defendant (in this particular context) unlawfully uses a “means of identification,” then why list them at all? Why not just stop after criminalizing the knowing unlawful use of a “means of identification”? (Why specify that Congress does not mean the statute to cover, say, the use of dog tags?) The fact is, however, that the Government’s reasoning at Step Two is faulty. The two listed circumstances are not the only two circumstances possibly present when a defendant unlawfully uses a “means of identification.” One could, for example, verbally provide a seller or an employer with a made-up Social Security number, not an “identification document,” and the number verbally transmitted to the seller or employer might, or might not, turn out to belong to another person. The word “knowingly” applied to the “other person” requirement (even in a statute that similarly penalizes use of a “false identification document”) would not be surplus. The Government also considers the statute’s purpose to be a circumstance showing that the linguistic context here is special. It describes that purpose as “provid[ing] enhanced protection for individuals whose identifying information is used to facilitate the commission of crimes.” Id., at 5. And it points out that without the knowledge requirement, potential offenders will take great care to avoid wrongly using IDs that belong to others, thereby enhancing the protection that the statute offers. The question, however, is whether Congress intended to achieve this enhanced protection by permitting conviction of those who do not know the ID they unlawfully use refers to a real person, i.e., those who do not intend to cause this further harm. And, in respect to this latter point, the statute’s history (outside of the statute’s language) is inconclusive. On the one hand, some statements in the legislative history offer the Government a degree of support. The relevant House Report refers, for example, both to “identity theft” (use of an ID belonging to someone else) and to “identity fraud” (use of a false ID), often without distinguishing between the two. See, e.g., H. R. Rep. No. 108–528, p. 25 (2004) (statement of Rep. Coble). And, in equating fraud and theft, Congress might have meant the statute to cover both—at least where the fraud takes the form of using an ID that (without the offender’s knowledge) belongs to someone else. On the other hand, Congress separated the fraud crime from the theft crime in the statute itself. The title of one provision (not here at issue) is “Fraud and related activity in connection with identification documents, authentication features, and information.” 18 U. S. C. §1028. The title of another provision (the provision here at issue) uses the words “identity theft.” §1028A (emphasis added). Moreover, the examples of theft that Congress gives in the legislative history all involve instances where the offender would know that what he has taken identifies a different real person. H. R. Rep. No. 108–528, at 4–5 (identifying as examples of “identity theft” “ ‘dumpster diving,’ ” “accessing information that was originally collected for an authorized purpose,” “hack[ing] into computers,” and “steal[ing] paperwork likely to contain personal information”). Finally, and perhaps of greatest practical importance, there is the difficulty in many circumstances of proving beyond a reasonable doubt that a defendant has the necessary knowledge. Take an instance in which an alien who unlawfully entered the United States gives an employer identification documents that in fact belong to others. How is the Government to prove that the defendant knew that this was so? The Government may be able to show that such a defendant knew the papers were not his. But perhaps the defendant did not care whether the papers (1) were real papers belonging to another person or (2) were simply counterfeit papers. The difficulties of proof along with the defendant’s necessary guilt of a predicate crime and the defendant’s necessary knowledge that he has acted “without lawful authority,” make it reasonable, in the Government’s view, to read the statute’s language as dispensing with the knowledge requirement. We do not find this argument sufficient, however, to turn the tide in the Government’s favor. For one thing, in the classic case of identity theft, intent is generally not difficult to prove. For example, where a defendant has used another person’s identification information to get access to that person’s bank account, the Government can prove knowledge with little difficulty. The same is true when the defendant has gone through someone else’s trash to find discarded credit card and bank statements, or pretends to be from the victim’s bank and requests personal identifying information. Indeed, the examples of identity theft in the legislative history (dumpster diving, computer hacking, and the like) are all examples of the types of classic identity theft where intent should be relatively easy to prove, and there will be no practical enforcement problem. For another thing, to the extent that Congress may have been concerned about criminalizing the conduct of a broader class of individuals, the concerns about practical enforceability are insufficient to outweigh the clarity of the text. Similar interpretations that we have given other similarly phrased statutes also created practical enforcement problems. See, e.g., X-Citement Video, 513 U. S. 64; Liparota, 471 U. S. 419. But had Congress placed conclusive weight upon practical enforcement, the statute would likely not read the way it now reads. Instead, Congress used the word “knowingly” followed by a list of offense elements. And we cannot find indications in statements of its purpose or in the practical problems of enforcement sufficient to overcome the ordinary meaning, in English or through ordinary interpretive practice, of the words that it wrote. We conclude that §1028A(a)(1) requires the Government to show that the defendant knew that the means of identification at issue belonged to another person. 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. |
557.US.2008_08-305 | After a private specialist diagnosed respondent with learning disabilities, his parents unilaterally removed him from petitioner public school district (School District), enrolled him in a private academy, and requested an administrative hearing on his eligibility for special-education services under the Individuals with Disabilities Education Act (IDEA), 20 U. S. C. §1400 et seq. The School District found respondent ineligible for such services and declined to offer him an individualized education program (IEP). Concluding that the School District had failed to provide respondent a “free appropriate public education” as required by IDEA, §1412(a)(1)(A), and that respondent’s private-school placement was appropriate, the hearing officer ordered the School District to reimburse his parents for his private-school tuition. The District Court set aside the award, holding that the IDEA Amendments of 1997 (Amendments) categorically bar reimbursement unless a child has “previously received special education or related services under the [school’s] authority.” §1412(a)(10)(C)(ii). Reversing, the Ninth Circuit concluded that the Amendments did not diminish the authority of courts to grant reimbursement as “appropriate” relief pursuant to §1415(i)(2)(C)(iii). See School Comm. of Burlington v. Department of Ed. of Mass., 471 U. S. 359, 370. Held: IDEA authorizes reimbursement for private special-education services when a public school fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special-education services through the public school. Pp. 6–17. (a) This Court held in Burlington and Florence County School Dist. Four v. Carter, 510 U. S. 7, that §1415(i)(2)(C)(iii) authorizes courts to reimburse parents for the cost of private-school tuition when a school district fails to provide a child a FAPE and the private-school placement is appropriate. That Burlington and Carter involved the deficiency of a proposed IEP does not distinguish this case, nor does the fact that the children in Burlington and Carter had previously received special-education services; the Court’s decision in those cases depended on the Act’s language and purpose rather than the particular facts involved. Thus, the reasoning of Burlington and Carter applies unless the 1997 Amendments require a different result. Pp. 6–8. (b) The 1997 Amendments do not impose a categorical bar to reimbursement. The Amendments made no change to the central purpose of IDEA or the text of §1415(i)(2)(C)(iii). Because Congress is presumed to be aware of, and to adopt, a judicial interpretation of a statute when it reenacts that law without change, Lorillard v. Pons, 434 U. S. 575, 580, this Court will continue to read §1415(i)(2)(C)(iii) to authorize reimbursement absent a clear indication that Congress intended to repeal the provision or abrogate Burlington and Carter. The School District’s argument that §1412(a)(10)(C)(ii) limits reimbursement to children who have previously received public special-education services is unpersuasive for several reasons: It is not supported by IDEA’s text, as the 1997 Amendments do not expressly prohibit reimbursement in this case and the School District offers no evidence that Congress intended to supersede Burlington and Carter; it is at odds with IDEA’s remedial purpose of “ensur[ing] that all children with disabilities have available to them a [FAPE] that emphasizes special education … designed to meet their unique needs,” §1400(d)(1)(A); and it would produce a rule bordering on the irrational by providing a remedy when a school offers a child inadequate special-education services but leaving parents remediless when the school unreasonably denies access to such services altogether. Pp. 8–15. (c) The School District’s argument that any conditions on accepting IDEA funds must be stated unambiguously is clearly satisfied here, as States have been on notice at least since Burlington that IDEA authorizes courts to order reimbursement. The School District’s claims that respondent’s reading will impose a heavy financial burden on public schools and encourage parents to enroll their children in private school without first trying to cooperate with public-school authorities are also unpersuasive in light of the restrictions on reimbursement awards identified in Burlington and the fact that parents unilaterally change their child’s placement at their own financial risk. See, e.g., Carter, 510 U. S., at 15. Pp. 15–16. 523 F. 3d 1078, affirmed. Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined. | The Individuals with Disabilities Education Act (IDEA or Act), 84 Stat. 175, as amended, 20 U. S. C. §1400 et seq., requires States receiving federal funding to make a “free appropriate public education” (FAPE) available to all children with disabilities residing in the State, §1412(a)(1)(A). We have previously held that when a public school fails to provide a FAPE and a child’s parents place the child in an appropriate private school without the school district’s consent, a court may require the district to reimburse the parents for the cost of the private education. See School Comm. of Burlington v. Department of Ed. of Mass., 471 U. S. 359, 370 (1985). The question presented in this case is whether the IDEA Amendments of 1997 (Amendments), 111 Stat. 37, categorically prohibit reimbursement for private-education costs if a child has not “previously received special education and related services under the authority of a public agency.” §1412(a)(10)(C)(ii). We hold that the Amendments impose no such categorical bar. I Respondent T. A. attended public schools in the Forest Grove School District (School District or District) from the time he was in kindergarten through the winter of his junior year of high school. From kindergarten through eighth grade, respondent’s teachers observed that he had trouble paying attention in class and completing his assignments. When respondent entered high school, his difficulties increased. In December 2000, during respondent’s freshman year, his mother contacted the school counselor to discuss respondent’s problems with his schoolwork. At the end of the school year, respondent was evaluated by a school psychologist. After interviewing him, examining his school records, and administering cognitive ability tests, the psychologist concluded that respondent did not need further testing for any learning disabilities or other health impairments, including attention deficit hyperactivity disorder (ADHD). The psychologist and two other school officials discussed the evaluation results with respondent’s mother in June 2001, and all agreed that respondent did not qualify for special-education services. Respondent’s parents did not seek review of that decision, although the hearing examiner later found that the School District’s evaluation was legally inadequate because it failed to address all areas of suspected disability, including ADHD. With extensive help from his family, respondent completed his sophomore year at Forest Grove High School, but his problems worsened during his junior year. In February 2003, respondent’s parents discussed with the School District the possibility of respondent completing high school through a partnership program with the local community college. They also sought private professional advice, and in March 2003 respondent was diagnosed with ADHD and a number of disabilities related to learning and memory. Advised by the private specialist that respondent would do best in a structured, residential learning environment, respondent’s parents enrolled him at a private academy that focuses on educating children with special needs. Four days after enrolling him in private school, respondent’s parents hired a lawyer to ascertain their rights and to give the School District written notice of respondent’s private placement. A few weeks later, in April 2003, respondent’s parents requested an administrative due process hearing regarding respondent’s eligibility for special-education services. In June 2003, the District engaged a school psychologist to assist in determining whether respondent had a disability that significantly interfered with his educational performance. Respondent’s parents cooperated with the District during the evaluation process. In July 2003, a multidisciplinary team met to discuss whether respondent satisfied IDEA’s disability criteria and concluded that he did not because his ADHD did not have a sufficiently significant adverse impact on his educational performance. Because the School District maintained that respondent was not eligible for special-education services and therefore declined to provide an individualized education program (IEP),[Footnote 1] respondent’s parents left him enrolled at the private academy for his senior year. The administrative review process resumed in September 2003. After considering the parties’ evidence, including the testimony of numerous experts, the hearing officer issued a decision in January 2004 finding that respondent’s ADHD adversely affected his educational performance and that the School District failed to meet its obligations under IDEA in not identifying respondent as a student eligible for special-education services. Because the District did not offer respondent a FAPE and his private-school placement was appropriate under IDEA, the hearing officer ordered the District to reimburse respondent’s parents for the cost of the private-school tuition.[Footnote 2] The School District sought judicial review pursuant to §1415(i)(2), arguing that the hearing officer erred in granting reimbursement. The District Court accepted the hearing officer’s findings of fact but set aside the reimbursement award after finding that the 1997 Amendments categorically bar reimbursement of private-school tuition for students who have not “previously received special education and related services under the authority of a public agency.” §612(a)(10)(C)(ii), 111 Stat. 63, 20 U. S. C. §1412(a)(10)(C)(ii). The District Court further held that, “[e]ven assuming that tuition reimbursement may be ordered in an extreme case for a student not receiving special education services, under general principles of equity where the need for special education was obvious to school authorities,” the facts of this case do not support equitable relief. App. to Pet. for Cert. 53a. The Court of Appeals for the Ninth Circuit reversed and remanded for further proceedings. The court first noted that, prior to the 1997 Amendments, “IDEA was silent on the subject of private school reimbursement, but courts had granted such reimbursement as ‘appropriate’ relief under principles of equity pursuant to 20 U. S. C. §1415(i)(2)(C).” 523 F. 3d 1078, 1085 (2008) (citing Burlington, 471 U. S., at 370). It then held that the Amendments do not impose a categorical bar to reimbursement when a parent unilaterally places in private school a child who has not previously received special-education services through the public school. Rather, such students “are eligible for reimbursement, to the same extent as before the 1997 amendments, as ‘appropriate’ relief pursuant to §1415(i)(2)(C).” 523 F. 3d, at 1087–1088. The Court of Appeals also rejected the District Court’s analysis of the equities as resting on two legal errors. First, because it found that §1412(a)(10)(C)(ii) generally bars relief in these circumstances, the District Court wrongly stated that relief was appropriate only if the equities were sufficient to “ ‘override’ ” that statutory limitation. The District Court also erred in asserting that reimbursement is limited to “ ‘extreme’ ” cases. Id., at 1088 (emphasis deleted). The Court of Appeals therefore remanded with instructions to reexamine the equities, including the failure of respondent’s parents to notify the School District before removing respondent from public school. In dissent, Judge Rymer stated her view that reimbursement is not available as an equitable remedy in this case because respondent’s parents did not request an IEP before removing him from public school and respondent’s right to a FAPE was therefore not at issue. Because the Courts of Appeals that have considered this question have reached inconsistent results,[Footnote 3] we granted certiorari to determine whether §1412(a)(10)(C) establishes a categorical bar to tuition reimbursement for students who have not previously received special-education services under the authority of a public education agency. 555 U. S. ___ (2009).[Footnote 4] II Justice Rehnquist’s opinion for a unanimous Court in Burlington provides the pertinent background for our analysis of the question presented. In that case, respondent challenged the appropriateness of the IEP developed for his child by public-school officials. The child had previously received special-education services through the public school. While administrative review was pending, private specialists advised respondent that the child would do best in a specialized private educational setting, and respondent enrolled the child in private school without the school district’s consent. The hearing officer concluded that the IEP was not adequate to meet the child’s educational needs and that the school district therefore failed to provide the child a FAPE. Finding also that the private-school placement was appropriate under IDEA, the hearing officer ordered the school district to reimburse respondent for the cost of the private-school tuition. We granted certiorari in Burlington to determine whether IDEA authorizes reimbursement for the cost of private education when a parent or guardian unilaterally enrolls a child in private school because the public school has proposed an inadequate IEP and thus failed to provide a FAPE. The Act at that time made no express reference to the possibility of reimbursement, but it authorized a court to “grant such relief as the court determines is appropriate.” §1415(i)(2)(C)(iii).[Footnote 5] In determining the scope of the relief authorized, we noted that “the ordinary meaning of these words confers broad discretion on the court” and that, absent any indication to the contrary, what relief is “appropriate” must be determined in light of the Act’s broad purpose of providing children with disabilities a FAPE, including through publicly funded private-school placements when necessary. 471 U. S., at 369. Accordingly, we held that the provision’s grant of authority includes “the power to order school authorities to reimburse parents for their expenditures on private special-education services if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act.” Ibid. Our decision rested in part on the fact that administrative and judicial review of a parent’s complaint often takes years. We concluded that, having mandated that participating States provide a FAPE for every student, Congress could not have intended to require parents to either accept an inadequate public-school education pending adjudication of their claim or bear the cost of a private education if the court ultimately determined that the private placement was proper under the Act. Id., at 370. Eight years later, we unanimously reaffirmed the availability of reimbursement in Florence County School Dist. Four v. Carter, 510 U. S. 7 (1993) (holding that reimbursement may be appropriate even when a child is placed in a private school that has not been approved by the State). The dispute giving rise to the present litigation differs from those in Burlington and Carter in that it concerns not the adequacy of a proposed IEP but the School District’s failure to provide an IEP at all. And, unlike respondent, the children in those cases had previously received public special-education services. These differences are insignificant, however, because our analysis in the earlier cases depended on the language and purpose of the Act and not the particular facts involved. Moreover, when a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP. It is thus clear that the reasoning of Burlington and Carter applies equally to this case. The only question is whether the 1997 Amendments require a different result. III Congress enacted IDEA in 1970[Footnote 6] to ensure that all children with disabilities are provided “ ‘a free appropriate public education which emphasizes special education and related services designed to meet their unique needs [and] to assure that the rights of [such] children and their parents or guardians are protected.’ ” Burlington, 471 U. S., at 367 (quoting 20 U. S. C. §1400(c) (1982 ed.), now codified as amended at §§1400(d)(1)(A), (B)). After examining the States’ progress under IDEA, Congress found in 1997 that substantial gains had been made in the area of special education but that more needed to be done to guarantee children with disabilities adequate access to appropriate services. See S. Rep. No. 105–17, p. 5 (1997). The 1997 Amendments were intended “to place greater emphasis on improving student performance and ensuring that children with disabilities receive a quality public education.” Id., at 3. Consistent with that goal, the Amendments preserved the Act’s purpose of providing a FAPE to all children with disabilities. And they did not change the text of the provision we considered in Burlington, §1415(i)(2)(C)(iii), which gives courts broad authority to grant “appropriate” relief, including reimbursement for the cost of private special education when a school district fails to provide a FAPE. “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U. S. 575, 580 (1978). Accordingly, absent a clear expression elsewhere in the Amendments of Congress’ intent to repeal some portion of that provision or to abrogate our decisions in Burlington and Carter, we will continue to read §1415(i)(2)(C)(iii) to authorize the relief respondent seeks. The School District and the dissent argue that one of the provisions enacted by the Amendments, §1412(a)(10)(C), effects such a repeal. Section 1412(a)(10)(C) is entitled “Payment for education of children enrolled in private schools without consent of or referral by the public agency,” and it sets forth a number of principles applicable to public reimbursement for the costs of unilateral private-school placements. Section 1412(a)(10)(C)(i) states that IDEA “does not require a local educational agency to pay for the cost of education … of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child” and his parents nevertheless elected to place him in a private school. Section 1412(a)(10)(C)(ii) then provides that a “court or hearing officer may require [a public] agency to reimburse the parents for the cost of [private-school] enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available” and the child has “previously received special education and related services under the authority of [the] agency.” Finally, §1412(a)(10)(C)(iii) discusses circumstances under which the “cost of reimbursement described in clause (ii) may be reduced or denied,” as when a parent fails to give 10 days’ notice before removing a child from public school or refuses to make a child available for evaluation, and §1412(a)(10)(C)(iv) lists circumstances in which a parent’s failure to give notice may or must be excused.[Footnote 7] Looking primarily to clauses (i) and (ii), the School District argues that Congress intended §1412(a)(10)(C) to provide the exclusive source of authority for courts to order reimbursement when parents unilaterally enroll a child in private school. According to the District, clause (i) provides a safe harbor for school districts that provide a FAPE by foreclosing reimbursement in those circumstances. Clause (ii) then sets forth the circumstance in which reimbursement is appropriate—namely, when a school district fails to provide a FAPE to a child who has previously received special-education services through the public school. The District contends that because §1412(a)(10)(C) only discusses reimbursement for children who have previously received special-education services through the public school, IDEA only authorizes reimbursement in that circumstance. The dissent agrees. For several reasons, we find this argument unpersuasive. First, the School District’s reading of the Act is not supported by its text and context, as the 1997 Amendments do not expressly prohibit reimbursement under the circumstances of this case, and the District offers no evidence that Congress intended to supersede our decisions in Burlington and Carter. Clause (i)’s safe harbor explicitly bars reimbursement only when a school district makes a FAPE available by correctly identifying a child as having a disability and proposing an IEP adequate to meet the child’s needs. The clause says nothing about the availability of reimbursement when a school district fails to provide a FAPE. Indeed, its statement that reimbursement is not authorized when a school district provides a FAPE could be read to indicate that reimbursement is authorized when a school district does not fulfill that obligation. Clause (ii) likewise does not support the District’s position. Because that clause is phrased permissively, stating only that courts “may require” reimbursement in those circumstances, it does not foreclose reimbursement awards in other circumstances. Together with clauses (iii) and (iv), clause (ii) is best read as elaborating on the general rule that courts may order reimbursement when a school district fails to provide a FAPE by listing factors that may affect a reimbursement award in the common situation in which a school district has provided a child with some special-education services and the child’s parents believe those services are inadequate. Referring as they do to students who have previously received special-education services through a public school, clauses (ii) through (iv) are premised on a history of cooperation and together encourage school districts and parents to continue to cooperate in developing and implementing an appropriate IEP before resorting to a unilateral private placement.[Footnote 8] The clauses of §1412(a)(10)(C) are thus best read as elucidative rather than exhaustive. Cf. United States v. Atlantic Research Corp., 551 U. S. 128, 137 (2007) (noting that statutory language may “perfor[m] a significant function simply by clarifying” a provision’s meaning).[Footnote 9] This reading of §1412(a)(10)(C) is necessary to avoid the conclusion that Congress abrogated sub silentio our decisions in Burlington and Carter. In those cases, we construed §1415(i)(2)(C)(iii) to authorize reimbursement when a school district fails to provide a FAPE and a child’s private-school placement is appropriate, without regard to the child’s prior receipt of services.[Footnote 10] It would take more than Congress’ failure to comment on the category of cases in which a child has not previously received special-education services for us to conclude that the Amendments substantially superseded our decisions and in large part repealed §1415(i)(2)(C)(iii). See Branch v. Smith, 538 U. S. 254, 273 (2003) (“[A]bsent a clearly expressed congressional intention, repeals by implication are not favored” (internal quotation marks and citation omitted)).[Footnote 11] We accordingly adopt the reading of §1412(a)(10)(C) that is consistent with those decisions.[Footnote 12] The School District’s reading of §1412(a)(10)(C) is also at odds with the general remedial purpose underlying IDEA and the 1997 Amendments. The express purpose of the Act is to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs,” §1400(d)(1)(A)—a factor we took into account in construing the scope of §1415(i)(2)(C)(iii), see Burlington, 471 U. S., at 369. Without the remedy respondent seeks, a “child’s right to a free appropriate education … would be less than complete.” Id., at 370. The District’s position similarly conflicts with IDEA’s “child find” requirement, pursuant to which States are obligated to “identif[y], locat[e], and evaluat[e]” “[a]ll children with disabilities residing in the State” to ensure that they receive needed special-education services. §1412(a)(3)(A); see §1412(a)(10)(A)(ii). A reading of the Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowledgment of the paramount importance of properly identifying each child eligible for services. Indeed, by immunizing a school district’s refusal to find a child eligible for special-education services no matter how compelling the child’s need, the School District’s interpretation of §1412(a)(10)(C) would produce a rule bordering on the irrational. It would be particularly strange for the Act to provide a remedy, as all agree it does, when a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether. That IDEA affords parents substantial procedural safeguards, including the right to challenge a school district’s eligibility determination and obtain prospective relief, see post, at 11, is no answer. We roundly rejected that argument in Burlington, observing that the “review process is ponderous” and therefore inadequate to ensure that a school’s failure to provide a FAPE is remedied with the speed necessary to avoid detriment to the child’s education. 471 U. S., at 370. Like Burlington, see ibid., this case vividly demonstrates the problem of delay, as respondent’s parents first sought a due process hearing in April 2003, and the District Court issued its decision in May 2005—almost a year after respondent graduated from high school. The dissent all but ignores these shortcomings of IDEA’s procedural safeguards. IV The School District advances two additional arguments for reading the Act to foreclose reimbursement in this case. First, the District contends that because IDEA was an exercise of Congress’ authority under the Spending Clause, U. S. Const., Art. I, §8, cl. 1, any conditions attached to a State’s acceptance of funds must be stated unambiguously. See Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981). Applying that principle, we held in Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 304 (2006), that IDEA’s fee-shifting provision, §1415(i)(3)(B), does not authorize courts to award expert-services fees to prevailing parents in IDEA actions because the Act does not put States on notice of the possibility of such awards. But Arlington is readily distinguishable from this case. In accepting IDEA funding, States expressly agree to provide a FAPE to all children with disabilities. See §1412(a)(1)(A). An order awarding reimbursement of private-education costs when a school district fails to provide a FAPE merely requires the district “to belatedly pay expenses that it should have paid all along.” Burlington, 471 U. S., at 370–371. And States have in any event been on notice at least since our decision in Burlington that IDEA authorizes courts to order reimbursement of the costs of private special-education services in appropriate circumstances. Pennhurst’s notice requirement is thus clearly satisfied. Finally, the District urges that respondent’s reading of the Act will impose a substantial financial burden on public school districts and encourage parents to immediately enroll their children in private school without first endeavoring to cooperate with the school district. The dissent echoes this concern. See post, at 10. For several reasons, those fears are unfounded. Parents “are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act.” Carter, 510 U. S., at 15. And even then courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant—for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school. In considering the equities, courts should generally presume that public-school officials are properly performing their obligations under IDEA. See Schaffer v. Weast, 546 U. S. 49, 62–63 (2005) (Stevens, J., concurring). As a result of these criteria and the fact that parents who “ ‘unilaterally change their child’s placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk,’ ” Carter, 510 U. S., at 15 (quoting Burlington, 471 U. S., at 373–374), the incidence of private-school placement at public expense is quite small, see Brief for National Disability Rights Network et al. as Amici Curiae 13–14. V The IDEA Amendments of 1997 did not modify the text of §1415(i)(2)(C)(iii), and we do not read §1412(a)(10)(C) to alter that provision’s meaning. Consistent with our decisions in Burlington and Carter, we conclude that IDEA authorizes reimbursement for the cost of private special-education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school. When a court or hearing officer concludes that a school district failed to provide a FAPE and the private placement was suitable, it must consider all relevant factors, including the notice provided by the parents and the school district’s opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child’s private education is warranted. As the Court of Appeals noted, the District Court did not properly consider the equities in this case and will need to undertake that analysis on remand. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. APPENDIX Title 20 U. S. C. §1412(a)(10)(C) provides: “(C) Payment for education of children enrolled in private schools without consent of or referral by the public agency “(i) In general “Subject to subparagraph (A), this subchapter does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child and the parents elected to place the child in such private school or facility. “(ii) Reimbursement for private school placement “If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. “(iii) Limitation on reimbursement “The cost of reimbursement described in clause (ii) may be reduced or denied— “(I) if— “(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or “(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa); “(II) if, prior to the parents’ removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 1415(b)(3) of this title, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or “(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.” Footnote 1 An IEP is an education plan tailored to a child’s unique needs that is designed by the school district in consultation with the child’s parents after the child is identified as eligible for special-education services. See 20 U. S. C. §§1412(a)(4), 1414(d). Footnote 2 Although it was respondent’s parents who initially sought reimbursement, when respondent reached the age of majority in 2003 his parents’ rights under IDEA transferred to him pursuant to Ore. Admin. Rule 581–015–2325(1) (2008). Footnote 3 Compare Frank G. v. Board of Ed. of Hyde Park, 459 F. 3d 356, 376 (CA2 2006) (holding that §1412(a)(10)(C)(ii) does not bar reimbursement for students who have not previously received public special-education services), and M. M. v. School Bd. of Miami-Dade Cty., Fla., 437 F. 3d 1085, 1099 (CA11 2006) (per curiam) (same), with Greenland School Dist. v. Amy N., 358 F. 3d 150, 159–160 (CA1 2004) (finding reimbursement barred in those circumstances). Footnote 4 We previously granted certiorari to address this question in Board of Ed. of City School Dist. of New York v. Tom F., 552 U. S. 1 (2007), in which we affirmed without opinion the judgment of the Court of Appeals for the Second Circuit by an equally divided vote. Footnote 5 At the time we decided Burlington, that provision was codified at §1415(e)(2). The 1997 Amendments renumbered the provision but did not alter its text. For ease of reference, we refer to the provision by its current section number, §1415(i)(2)(C)(iii). Footnote 6 The legislation was enacted as the Education of the Handicapped Act, title VI of Pub. L. 91–230, 84 Stat. 175, and was renamed the Individuals with Disabilities Education Act in 1990, see §901(a)(3), Pub. L. 101–476, 104 Stat. 1142. Footnote 7 The full text of §1412(a)(10)(C) is set forth in the Appendix, infra, at 18. Footnote 8 The dissent asserts that, under this reading of the Act, “Congress has called for reducing reimbursement only for the most deserving … but provided no mechanism to reduce reimbursement to the least deserving.” Post, at 6 (opinion of Souter, J.). In addition to making unsubstantiated generalizations about the desert of parents whose children have been denied public special-education services, the dissent grossly mischaracterizes our view of §1412(a)(10)(C). The fact that clause (iii) permits a court to reduce a reimbursement award when a parent whose child has previously received special-education services fails to give the school adequate notice of an intended private placement does not mean that it prohibits courts from similarly reducing the amount of reimbursement when a parent whose child has not previously received services fails to give such notice. Like clause (ii), clause (iii) provides guidance regarding the appropriateness of relief in a common factual scenario, and its instructions should not be understood to preclude courts and hearing officers from considering similar factors in other scenarios. Footnote 9 In arguing that §1412(a)(10)(C) is the exclusive source of authority for granting reimbursement awards to parents who unilaterally place a child in private school, the dissent neglects to explain that provision’s failure to limit the type of private-school placements for which parents may be reimbursed. School Comm. of Burlington v. Department of Ed. of Mass. held that courts may grant reimbursement under §1415(i)(2)(C)(iii) only when a school district fails to provide a FAPE and the private-school placement is appropriate. See 471 U. S. 359, 369 (1985); see Florence County School Dist. Four v. Carter, 510 U. S. 7, 12–13 (1993). The latter requirement is essential to ensuring that reimbursement awards are granted only when such relief furthers the purposes of the Act. See Burlington, 471 U. S., at 369. That §1412(a)(10)(C) did not codify that requirement further indicates that Congress did not intend that provision to supplant §1415(i)(2)(C)(iii) as the sole authority on reimbursement awards but rather meant to augment the latter provision and our decisions construing it. Footnote 10 As discussed above, although the children in Burlington and Carter had previously received special-education services in public school, our decisions in no way depended on their prior receipt of services. Those holdings rested instead on the breadth of the authority conferred by §1415(i)(2)(C)(iii), the interest in providing relief consistent with the Act’s purpose, and the injustice that a contrary reading would produce, see Burlington, 471 U. S., at 369–370; see also Carter, 510 U. S., at 12–14—considerations that were not altered by the 1997 Amendments. Footnote 11 For the same reason, we reject the District’s argument that because §1412(a)(10)(C)(ii) authorizes “a court or a hearing officer” to award reimbursement for private-school tuition, whereas §1415(i)(2)(C)(iii) only provides a general grant of remedial authority to “court[s],” the latter section cannot be read to authorize hearing officers to award reimbursement. That argument ignores our decision in Burlington, 471 U. S., at 363, 370, which interpreted §1415(i)(2)(C)(iii) to authorize hearing officers as well as courts to award reimbursement notwithstanding the provision’s silence with regard to hearing officers. When Congress amended IDEA without altering the text of §1415(i)(2)(C)(iii), it implicitly adopted that construction of the statute. See Lorillard v. Pons, 434 U. S. 575, 580–581 (1978). Footnote 12 Looking to the Amendments’ legislative history for support, the School District cites two House and Senate Reports that essentially restate the text of §1412(a)(10)(C)(ii), H. R. Rep. No. 105–95, pp. 92–93 (1997); S. Rep. No. 105–17, p. 13 (1997), and a floor statement by Representative Mike Castle, 143 Cong. Rec. 8013 (1997) (stating that the “bill makes it harder for parents to unilaterally place a child in elite private schools at public taxpayer expense, lowering costs to local school districts”). Those ambiguous references do not undermine the meaning that we discern from the statute’s language and context. Notably, the agency charged with implementing IDEA has adopted respondent’s reading of the statute. In commentary to regulations implementing the 1997 Amendments, the Department of Education stated that “hearing officers and courts retain their authority, recognized in Burlington … to award ‘appropriate’ relief if a public agency has failed to provide FAPE, including reimbursement … in instances in which the child has not yet received special education and related services.” 64 Fed. Reg. 12602 (1999); see 71 Fed. Reg. 46599 (2006). |
557.US.2008_08-441 | Petitioner Gross filed suit, alleging that respondent (FBL) demoted him in violation of the Age Discrimination in Employment Act of 1967 (ADEA), which makes it unlawful for an employer to take adverse action against an employee “because of such individual’s age,” 29 U. S. C. §623(a). At the close of trial, and over FBL’s objections, the District Court instructed the jury to enter a verdict for Gross if he proved, by a preponderance of the evidence, that he was demoted and his age was a motivating factor in the demotion decision, and told the jury that age was a motivating factor if it played a part in the demotion. It also instructed the jury to return a verdict for FBL if it proved that it would have demoted Gross regardless of age. The jury returned a verdict for Gross. The Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U. S. 228, for cases under Title VII of the Civil Rights Act of 1964 when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations—i.e., a “mixed-motives” case. Held: A plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Pp. 4–12. (a) Because Title VII is materially different with respect to the relevant burden of persuasion, this Court’s interpretation of the ADEA is not governed by Title VII decisions such as Price Waterhouse and Desert Palace, Inc. v. Costa, 539 U. S. 90, 94–95. This Court has never applied Title VII’s burden-shifting framework to ADEA claims and declines to do so now. When conducting statutory interpretation, the Court “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Federal Express Corp. v. Holowecki, 552 U. S. ___, ___. Unlike Title VII, which has been amended to explicitly authorize discrimination claims where an improper consideration was “a motivating factor” for the adverse action, see 42 U. S. C. §§2000e–2(m) and 2000e–5(g)(2)(B), the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it added §§2000e–2(m) and 2000e–5(g)(2)(B) to Title VII, even though it contemporaneously amended the ADEA in several ways. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally, see EEOC v. Arabian American Oil Co., 499 U. S. 244, 256, and “negative implications raised by disparate provisions are strongest” where the provisions were “considered simultaneously when the language raising the implication was inserted,” Lindh v. Murphy, 521 U. S. 320, 330. Pp. 5–6. (b) The ADEA’s text does not authorize an alleged mixed-motives age discrimination claim. The ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U. S. 604, 610. To establish a disparate-treatment claim under this plain language, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision. See Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. ___, ___. It follows that under §623(a)(1), the plaintiff retains the burden of persuasion to establish that “but-for” cause. This Court has previously held this to be the burden’s proper allocation in ADEA cases, see, e.g., Kentucky Retirement Systems v. EEOC, 554 U. S. ___, ___–___, ___–___, and nothing in the statute’s text indicates that Congress has carved out an exception for a subset of ADEA cases. Where a statute is “silent on the allocation of the burden of persuasion,” “the ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims.” Schaffer v. Weast, 546 U. S. 49, 56. Hence, the burden of persuasion is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. Pp. 7–9. (c) This Court rejects petitioner’s contention that the proper interpretation of the ADEA is nonetheless controlled by Price Waterhouse, which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims. It is far from clear that the Court would have the same approach were it to consider the question today in the first instance. Whatever Price Waterhouse’s deficiencies in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply. The problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims. Cf. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 47. Pp. 10–11. 526 F. 3d 356, vacated and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined. | The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq. Because we hold that such a jury instruction is never proper in an ADEA case, we vacate the decision below. I Petitioner Jack Gross began working for respondent FBL Financial Group, Inc. (FBL), in 1971. As of 2001, Gross held the position of claims administration director. But in 2003, when he was 54 years old, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross’ job responsibilities to a newly created position—claims administration manager. That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. App. to Pet. for Cert. 23a (District Court opinion). Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL’s reallocation of his former job responsibilities to Kneeskern. In April 2004, Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated the ADEA, which makes it unlawful for an employer to take adverse action against an employee “because of such individual’s age.” 29 U. S. C. §623(a). The case proceeded to trial, where Gross introduced evidence suggesting that his reassignment was based at least in part on his age. FBL defended its decision on the grounds that Gross’ reassignment was part of a corporate restructuring and that Gross’ new position was better suited to his skills. See App. to Pet. for Cert. 23a (District Court opinion). At the close of trial, and over FBL’s objections, the District Court instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that FBL “demoted [him] to claims projec[t] coordinator” and that his “age was a motivating factor” in FBL’s decision to demote him. App. 9–10. The jury was further instructed that Gross’ age would qualify as a “ ‘motivating factor,’ if [it] played a part or a role in [FBL]’s decision to demote [him].” Id., at 10. The jury was also instructed regarding FBL’s burden of proof. According to the District Court, the “verdict must be for [FBL] … if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age.” Ibid. The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. Id., at 8. FBL challenged the jury instructions on appeal. The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). See 526 F. 3d 356, 358 (2008). In Price Waterhouse, this Court addressed the proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations—i.e., a “mixed-motives” case. 490 U. S., at 232, 244–247 (plurality opinion). The Price Waterhouse decision was splintered. Four Justices joined a plurality opinion, see id., at 231–258, Justices White and O’Connor separately concurred in the judgment, see id., at 258–261 (opinion of White, J.); id., at 261–279 (opinion of O’Connor, J.), and three Justices dissented, see id., at 279–295 (opinion of Kennedy, J.). Six Justices ultimately agreed that if a Title VII plaintiff shows that discrimination was a “motivating” or a “ ‘substantial’ ” factor in the employer’s action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration. See id., at 258 (plurality opinion); id., at 259–260 (opinion of White, J.); id., at 276 (opinion of O’Connor, J.). Justice O’Connor further found that to shift the burden of persuasion to the employer, the employee must present “direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision.” Id., at 276. In accordance with Circuit precedent, the Court of Appeals identified Justice O’Connor’s opinion as controlling. See 526 F. 3d, at 359 (citing Erickson v. Farmland Industries, Inc., 271 F. 3d 718, 724 (CA8 2001)). Applying that standard, the Court of Appeals found that Gross needed to present “[d]irect evidence … sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” 526 F. 3d, at 359 (internal quotation marks omitted). In the Court of Appeals’ view, “direct evidence” is only that evidence that “show[s] a specific link between the alleged discriminatory animus and the challenged decision.” Ibid. (internal quotation marks omitted). Only upon a presentation of such evidence, the Court of Appeals held, should the burden shift to the employer “ ‘to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor.’ ” Ibid. (quoting Price Waterhouse, supra, at 276 (opinion of O’Connor, J.)). The Court of Appeals thus concluded that the District Court’s jury instructions were flawed because they allowed the burden to shift to FBL upon a presentation of a preponderance of any category of evidence showing that age was a motivating factor—not just “direct evidence” related to FBL’s alleged consideration of age. See 526 F. 3d, at 360. Because Gross conceded that he had not presented direct evidence of discrimination, the Court of Appeals held that the District Court should not have given the mixed-motives instruction. Ibid. Rather, Gross should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims; the jury thus should have been instructed only to determine whether Gross had carried his burden of “prov[ing] that age was the determining factor in FBL’s employment action.” See ibid. We granted certiorari, 555 U. S. ___ (2008), and now vacate the decision of the Court of Appeals. II The parties have asked us to decide whether a plaintiff must “present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.” Pet. for Cert. i. Before reaching this question, however, we must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.[Footnote 1] We hold that it does not. A Petitioner relies on this Court’s decisions construing Title VII for his interpretation of the ADEA. Because Title VII is materially different with respect to the relevant burden of persuasion, however, these decisions do not control our construction of the ADEA. In Price Waterhouse, a plurality of the Court and two Justices concurring in the judgment determined that once a “plaintiff in a Title VII case proves that [the plaintiff’s membership in a protected class] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [that factor] into account.” 490 U. S., at 258; see also id., at 259–260 (opinion of White, J.); id., at 276 (opinion of O’Connor, J.). But as we explained in Desert Palace, Inc. v. Costa, 539 U. S. 90, 94–95 (2003), Congress has since amended Title VII by explicitly authorizing discrimination claims in which an improper consideration was “a motivating factor” for an adverse employment decision. See 42 U. S. C. §2000e–2(m) (providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice” (emphasis added)); §2000e–5(g)(2)(B) (restricting the remedies available to plaintiffs proving violations of §2000e–2(m)). This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now. When conducting statutory interpretation, we “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Federal Express Corp. v. Holowecki, 552 U. S. ___, ___ (2008) (slip op., at 2). Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§2000e–2(m) and 2000e–5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, §115, 105 Stat. 1079; id., §302, at 1088. We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. See EEOC v. Arabian American Oil Co., 499 U. S. 244, 256 (1991). Furthermore, as the Court has explained, “negative implications raised by disparate provisions are strongest” when the provisions were “considered simultaneously when the language raising the implication was inserted.” Lindh v. Murphy, 521 U. S. 320, 330 (1997). As a result, the Court’s interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace and Price Waterhouse.[Footnote 2] B Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not. “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U. S. 246, 252 (2004) (internal quotation marks omitted). The ADEA provides, in relevant part, that “[i]t shall be unlawful for an employer … to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U. S. C. §623(a)(1) (emphasis added). The words “because of” mean “by reason of: on account of.” 1 Webster’s Third New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746 (1933) (defining “because of” to mean “By reason of, on account of” (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining “because” to mean “by reason; on account”). Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993) (explaining that the claim “cannot succeed unless the employee’s protected trait actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome” (emphasis added)). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision. See Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. ___, ___ (2008) (slip op., at 14) (recognizing that the phrase, “by reason of,” requires at least a showing of “but for” causation (internal quotation marks omitted)); Safeco Ins. Co. of America v. Burr, 551 U. S. 47, 63–64, and n. 14 (2007) (observing that “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship and thus a necessary logical condition” and that the statutory phrase, “based on,” has the same meaning as the phrase, “because of” (internal quotation marks omitted)); cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984) (“An act or omission is not regarded as a cause of an event if the particular event would have occurred without it”).[Footnote 3] It follows, then, that under §623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the “but-for” cause of the employer’s adverse action. Indeed, we have previously held that the burden is allocated in this manner in ADEA cases. See Kentucky Retirement Systems v. EEOC, 554 U. S. ___, ___–___, ___–___ (2008) (slip op., at 2–4, 11–13); Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 141, 143 (2000). And nothing in the statute’s text indicates that Congress has carved out an exception to that rule for a subset of ADEA cases. Where the statutory text is “silent on the allocation of the burden of persuasion,” we “begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.” Schaffer v. Weast, 546 U. S. 49, 56 (2005); see also Meacham v. Knolls Atomic Power Laboratory, 554 U. S. ___, ___ (2008) (slip op., at 6) (“Absent some reason to believe that Congress intended otherwise, … we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief” (internal quotation marks omitted)). We have no warrant to depart from the general rule in this setting. Hence, the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the “but-for” cause of the challenged employer decision. See Reeves, supra, at 141–143, 147.[Footnote 4] III Finally, we reject petitioner’s contention that our interpretation of the ADEA is controlled by Price Waterhouse, which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims.[Footnote 5] In any event, it is far from clear that the Court would have the same approach were it to consider the question today in the first instance. Cf. 14 Penn Plaza LLC v. Pyett, 556 U. S. ___, ___ (2009) (slip op., at 21) (declining to “introduc[e] a qualification into the ADEA that is not found in its text”); Meacham, supra, at ___ (slip op., at 16) (explaining that the ADEA must be “read … the way Congress wrote it”). Whatever the deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply. For example, in cases tried to a jury, courts have found it particularly difficult to craft an instruction to explain its burden-shifting framework. See, e.g., Tyler v. Bethlehem Steel Corp., 958 F. 2d 1176, 1179 (CA2 1992) (referring to “the murky water of shifting burdens in discrimination cases”); Visser v. Packer Engineering Associates, Inc., 924 F. 2d 655, 661 (CA7 1991) (en banc) (Flaum, J., dissenting) (“The difficulty judges have in formulating [burden-shifting] instructions and jurors have in applying them can be seen in the fact that jury verdicts in ADEA cases are supplanted by judgments notwithstanding the verdict or reversed on appeal more frequently than jury verdicts generally”). Thus, even if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims. Cf. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 47 (1977) (reevaluating precedent that was subject to criticism and “continuing controversy and confusion”); Payne v. Tennessee, 501 U. S. 808, 839–844 (1991) (Souter, J., concurring).[Footnote 6] IV We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Although the parties did not specifically frame the question to include this threshold inquiry, “[t]he statement of any question presented is deemed to comprise every subsidiary question fairly included therein.” This Court’s Rule 14.1; see also City of Sherrill v. Oneida Indian Nation of N. Y., 544 U. S. 197, 214, n. 8 (2005) (“ ‘Questions not explicitly mentioned but essential to the analysis of the decisions below or to the correct disposition of the other issues have been treated as subsidiary issues fairly comprised by the question presented’ ” (quoting R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 414 (8th ed. 2002))); Ballard v. Commissioner, 544 U. S. 40, 46–47, and n. 2 (2005) (evaluating “a question anterior” to the “questions the parties raised”). Footnote 2 Justice Stevens argues that the Court must incorporate its past interpretations of Title VII into the ADEA because “the substantive provisions of the ADEA were derived in haec verba from Title VII,” post, at 4 (dissenting opinion) (internal quotation marks omitted), and because the Court has frequently applied its interpretations of Title VII to the ADEA, see post, at 4–6. But the Court’s approach to interpreting the ADEA in light of Title VII has not been uniform. In General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 (2004), for example, the Court declined to interpret the phrase “because of … age” in 29 U. S. C. §623(a) to bar discrimination against people of all ages, even though the Court had previously interpreted “because of … race [or] sex” in Title VII to bar discrimination against people of all races and both sexes, see 540 U. S., at 584, 592, n. 5. And the Court has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), utilized in Title VII cases is appropriate in the ADEA context. See Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 142 (2000); O’Connor v. Consolidated Coin Caterers Corp., 517 U. S. 308, 311 (1996). In this instance, it is the textual differences between Title VII and the ADEA that prevent us from applying Price Waterhouse and Desert Palace to federal age discrimination claims. Footnote 3 Justice Breyer contends that there is “nothing unfair or impractical” about hinging liability on whether “forbidden motive … play[ed] a role in the employer’s decision.” Post, at 2–3 (dissenting opinion). But that is a decision for Congress to make. See Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip op., at 18). Congress amended Title VII to allow for employer liability when discrimination “was a motivating factor for any employment practice, even though other factors also motivated the practice,” 42 U. S. C. §2000e–2(m) (emphasis added), but did not similarly amend the ADEA, see supra, at 5–6. We must give effect to Congress’ choice. See 14 Penn Plaza LLC v. Pyett, 556 U. S. ___, ___ (2009) (slip op., at 21). Footnote 4 Because we hold that ADEA plaintiffs retain the burden of persuasion to prove all disparate-treatment claims, we do not need to address whether plaintiffs must present direct, rather than circumstantial, evidence to obtain a burden-shifting instruction. There is no heightened evidentiary requirement for ADEA plaintiffs to satisfy their burden of persuasion that age was the “but-for” cause of their employer’s adverse action, see 29 U. S. C. §623(a), and we will imply none. “Congress has been unequivocal when imposing heightened proof requirements” in other statutory contexts, including in other subsections within Title 29, when it has seen fit. See Desert Palace, Inc. v. Costa, 539 U. S. 90, 99 (2003); see also, e.g., 25 U. S. C. §2504(b)(2)(B) (imposing “clear and convincing evidence” standard); 29 U. S. C. §722(a)(2)(A) (same). Footnote 5 Justice Stevens also contends that we must apply Price Waterhouse under the reasoning of Smith v. City of Jackson, 544 U. S. 228 (2005). See post, at 7. In Smith, the Court applied to the ADEA its pre-1991 interpretation of Title VII with respect to disparate-impact claims despite Congress’ 1991 amendment adding disparate-impact claims to Title VII but not the ADEA. 544 U. S., at 240. But the amendments made by Congress in this same legislation, which added the “motivating factor” language to Title VII, undermine Justice Stevens’ argument. Congress not only explicitly added “motivating factor” liability to Title VII, see supra, at 5–6, but it also partially abrogated Price Waterhouse’s holding by eliminating an employer’s complete affirmative defense to “motivating factor” claims, see 42 U. S. C. §2000e–5(g)(2)(B). If such “motivating factor” claims were already part of Title VII, the addition of §2000e–5(g)(2)(B) alone would have been sufficient. Congress’ careful tailoring of the “motivating factor” claim in Title VII, as well as the absence of a provision parallel to §2000e–2(m) in the ADEA, confirms that we cannot transfer the Price Waterhouse burden-shifting framework into the ADEA. Footnote 6 Gross points out that the Court has also applied a burden-shifting framework to certain claims brought in contexts other than pursuant to Title VII. See Brief for Petitioner 54–55 (citing, inter alia, NLRB v. Transportation Management Corp., 462 U. S. 393, 401–403 (1983) (claims brought under the National Labor Relations Act (NLRA)); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977) (constitutional claims)). These cases, however, do not require the Court to adopt his contra statutory position. The case involving the NLRA did not require the Court to decide in the first instance whether burden shifting should apply as the Court instead deferred to the National Labor Relation Board’s determination that such a framework was appropriate. See NLRB, supra, at 400–403. And the constitutional cases such as Mt. Healthy have no bearing on the correct interpretation of ADEA claims, which are governed by statutory text. |
556.US.2008_07-8521 | After the Tennessee state courts rejected petitioner Harbison’s conviction and death sentence challenges, the Federal District Court appointed a federal public defender to represent him in filing a habeas petition under 28 U. S. C. §2254. That petition was denied. Harbison then sought appointment of counsel for state clemency proceedings. Because Tennessee law no longer authorizes the appointment of state public defenders as clemency counsel, his federal counsel moved to expand the scope of her representation to include the state proceedings. In denying the motion, the District Court relied on Circuit precedent construing 18 U. S. C. §3599, which provides for the appointment of federal counsel. The Sixth Circuit affirmed. Held: 1. A certificate of appealability pursuant to 28 U. S. C. §2253(c)(1)(A) is not required to appeal an order denying a request for federally appointed counsel under §3599 because §2253(c)(1)(A) governs only final orders that dispose of a habeas corpus proceeding’s merits. Pp. 2–3. 2. Section 3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation. Pp. 3–14. (a) Section 3599(a)(2), which refers to both §2254 and §2255 proceedings, triggers the appointment of counsel for both state and federal postconviction litigants, and §3599(e) governs the scope of appointed counsel’s duties. Thus, federally funded counsel appointed to represent a state prisoner in §2254 proceedings “shall also represent the defendant in such … proceedings for executive or other clemency as may be available to the defendant.” §3599(e). Because state clemency proceedings are “available” to state petitioners who obtain subsection (a)(2) representation, the statute’s plain language indicates that appointed counsel’s authorized representation includes such proceedings. Moreover, subsection (e)’s reference to “proceedings for … other clemency” refers to state proceedings, as federal clemency is exclusively executive, while States administer clemency in various ways. The Government is correct that appointed counsel is not expected to provide each service enumerated in subsection (e) for every client. Rather, counsel’s representation includes only those judicial proceedings transpiring “subsequent” to her appointment, which under subsection (a)(2) begins with the §2254 or §2255 “post-conviction process.” Pp. 3–8. (b) The Government’s attempts to overcome §3599’s plain language are not persuasive. First, our reading of the statute does not produce absurd results. Contrary to the Government’s contention, a lawyer is not required to represent her client during a state retrial following postconviction relief because the retrial marks the commencement of new judicial proceedings, not a subsequent stage of existing proceedings; state postconviction proceedings are also not “subsequent” to federal habeas proceedings. Second, the legislative history does not support the Government's argument that Congress intended §3599 to apply only to federal defendants. Congress’ decision to furnish counsel for state clemency proceedings reflects both clemency’s role as the “ ‘fail safe’ of our criminal justice system,” Herrera v. Collins, 506 U. S. 390, 415, and the fact that federal habeas counsel are well positioned to represent their clients in clemency proceedings. Pp. 8–14. 503 F. 3d 566, reversed. Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., and Thomas, J., filed opinions concurring in the judgment. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Alito, J., joined. | Petitioner Edward Jerome Harbison was sentenced to death by a Tennessee court in 1983. In 1997, after the state courts rejected challenges to his conviction and sentence, the Federal District Court appointed the Federal Defender Services of Eastern Tennessee to represent him in filing a petition for a writ of habeas corpus pursuant to 28 U. S. C. §2254.[Footnote 1] During the course of that representation, counsel developed substantial evidence relating both to Harbison’s culpability and to the appropriateness of his sentence. Although the courts did not order relief, the evidence proved persuasive to one Circuit Judge. See 408 F. 3d 823, 837–846 (CA6 2005) (Clay, J., dissenting). Shortly after his habeas corpus petition was denied, Harbison requested counsel for state clemency proceedings. In 2006, the Tennessee Supreme Court held that state law does not authorize the appointment of state public defenders as clemency counsel. State v. Johnson, No. M1987–00072–SC–DPE–DD (per curiam), 2006 Tenn. Lexis 1236, at *3 (2006). Thereafter, Harbison’s federally appointed counsel moved to expand the authorized scope of her representation to include state clemency proceedings. Relying on Circuit precedent construing 18 U. S. C. §3599, which provides for the appointment of federal counsel, the District Court denied the motion, and the Court of Appeals affirmed. 503 F. 3d 566 (CA6 2007). We granted certiorari, 554 U. S. ___ (2008), to decide two questions: (1) whether a certificate of appealability (COA) is required to appeal an order denying a request for federally appointed counsel pursuant to §3599, and (2) whether §3599(e)’s reference to “proceedings for executive or other clemency as may be available to the defendant” encompasses state clemency proceedings. We conclude that a COA is not necessary and that §3599 authorizes federally appointed counsel to represent clients in state clemency proceedings. I We first consider whether Harbison was required to obtain a COA to appeal the District Court’s order. The State of Tennessee and the United States as amicus curiae agree with Harbison that he was not. The District Court’s denial of Harbison’s motion to authorize his federal counsel to represent him in state clemency proceedings was clearly an appealable order under 28 U. S. C. §1291. See, e.g., McFarland v. Scott, 512 U. S. 849 (1994) (reviewing the Court of Appeals’ judgment denying a petition for the appointment of counsel pursuant to the statute now codified at 18 U. S. C. §3599). The question is whether Harbison’s failure to obtain a COA pursuant to 28 U. S. C. §2253(c)(1)(A) deprived the Court of Appeals of jurisdiction over the appeal. Section 2253(c)(1)(A) provides that unless a circuit justice or judge issues a COA, an appeal may not be taken from “the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court.” This provision governs final orders that dispose of the merits of a habeas corpus proceeding—a proceeding challenging the lawfulness of the petitioner’s detention. See generally Slack v. McDaniel, 529 U. S. 473, 484–485 (2000); Wilkinson v. Dotson, 544 U. S. 74, 78–83 (2005). An order that merely denies a motion to enlarge the authority of appointed counsel (or that denies a motion for appointment of counsel) is not such an order and is therefore not subject to the COA requirement. II The central question presented by this case is whether 18 U. S. C. §3599 authorizes counsel appointed to represent a state petitioner in 28 U. S. C. §2254 proceedings to represent him in subsequent state clemency proceedings. Although Tennessee takes no position on this question, the Government defends the judgment of the Court of Appeals that the statute does not authorize such representation. We begin with the language of the statute. Section 3599, titled “Counsel for financially unable defendants,” provides for the appointment of counsel for two classes of indigents, described, respectively, in subsections (a)(1) and (a)(2). The former states: “[I]n every criminal action in which a defendant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services at any time either— “(A) before judgment; or “(B) after the entry of a judgment imposing a sentence of death but before the execution of that judgment; “shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).” Subsection (a)(2) states: “In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).” The parties agree that subsections (a)(1) and (a)(2) make two different groups eligible for federally appointed counsel: (a)(1) describes federal capital defendants, while (a)(2) describes state and federal postconviction litigants, as indicated by its reference to both §2254 and §2255 proceedings.[Footnote 2] After subsections (b) through (d) discuss counsel’s necessary qualifications, subsection (e) sets forth counsel’s responsibilities. It provides: “Unless replaced by similarly qualified counsel upon the attorney’s own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriations motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.” (Emphasis added.) Focusing on the italicized clause of subsection (e), Harbison contends that the plain language of the statute dictates the outcome of this case. We are persuaded by his argument. Under a straightforward reading of the statute, subsection (a)(2) triggers the appointment of counsel for habeas petitioners, and subsection (e) governs the scope of appointed counsel’s duties. See §3599(a)(2) (stating that habeas petitioners challenging a death sentence shall be entitled to “the furnishing of … services in accordance with subsections (b) through (f)”). Thus, once federally funded counsel is appointed to represent a state prisoner in §2254 proceedings, she “shall also represent the defendant in such … proceedings for executive or other clemency as may be available to the defendant.” §3599(e). Because state clemency proceedings are “available” to state petitioners who obtain representation pursuant to subsection (a)(2), the statutory language indicates that appointed counsel’s authorized representation includes such proceedings. The Government contends that, fairly read, the statute as a whole is intended to furnish representation only in federal proceedings and that all proceedings listed in subsection (e), including clemency proceedings, should be understood to be federal. The absence of the word “federal” in this subsection is not dispositive, it maintains, because subsection (a)(1) likewise does not use the word “federal” yet the parties agree that provision concerns only federal defendants. Just as “federal” is implied by context in subsection (a)(1), so too, the Government says, is it implied in subsection (e). According to the Government, the repeated use of the word “available” supports this reading: Congress contemplated that not all catalogued proceedings would be available to any given client, and clemency proceedings are simply not available to state petitioners because they are ineligible for federal clemency. The Government’s argument is not convincing. Subsection (a)(1) is properly understood as describing federal defendants because the statute is primarily concerned with federal criminal actions[Footnote 3] and (a)(1) includes no language suggesting that it applies more broadly. By contrast, subsection (a)(2) refers to state litigants, and it in turn provides that subsection (e) applies to such litigants. There is therefore no basis for assuming that Congress intended “proceedings for executive or other clemency as may be available to the defendant” in subsection (e) to indicate only federal clemency. To the contrary, the reference to “proceedings for executive or other clemency,” §3599(e) (emphasis added), reveals that Congress intended to include state clemency proceedings within the statute’s reach.[Footnote 4] Federal clemency is exclusively executive: Only the President has the power to grant clemency for offenses under federal law. U. S. Const., Art. II, §2, cl. 1.[Footnote 5] By contrast, the States administer clemency in a variety of ways. See, e.g., Ga. Const., Art. IV, §2 (independent board has clemency authority); Nev. Const., Art. 5, §14 (governor, supreme court justices, and attorney general share clemency power); Fla. Const., Art. IV, §8 (legislature has clemency authority for treasonous offenses); McLaughlin v. Bronson, 206 Conn. 267, 271, 537 A. 2d 1004, 1006–1007 (1988) (“In Connecticut, the pardoning power is vested in the legislature, which has delegated its exercise to the board of pardons” (citation omitted)). Congress’ reference to “other clemency” thus does not refer to federal clemency but instead encompasses the various forms of state clemency.[Footnote 6] The Government’s reliance on the word “available” is also misplaced. While it maintains that Congress’ repeated use of the word shows that various §3599(e) procedures do not apply to particular indigents, the term instead indicates the breadth of the representation contemplated. The directive that counsel “shall represent the defendant throughout every subsequent stage of available judicial proceedings, including … all available post-conviction process,” for example, hardly suggests a limitation on the scope of representation. The Government is correct that appointed counsel is not expected to provide each service enumerated in subsection (e) for every client. But that limitation does not follow from the word “available”; it follows from the word “subsequent” and the organization of subsection (e) to mirror the ordinary course of proceedings for capital defendants. Counsel’s responsibilities commence at a different part of subsection (e) depending on whether she is appointed pursuant to subsection (a)(1)(A), (a)(1)(B), or (a)(2). When she is appointed pursuant to (a)(1)(A), she is charged with representing her client in all listed proceedings. When she is appointed pursuant to (a)(1)(B) (i.e., after the entry of a federal death sentence), her representation begins with “appeals.” And when she is appointed pursuant to (a)(2), her representation begins with the §2254 or §2255 “post-conviction process.” Thus, counsel’s representation includes only those judicial proceedings transpiring “subsequent” to her appointment. It is the sequential organization of the statute and the term “subsequent” that circumscribe counsel’s representation, not a strict division between federal and state proceedings. III In an attempt to overcome the plain language of §3599, the Government advances two additional arguments that merit discussion. First, it contends that a literal reading of subsection (e) would lead to unacceptable results: It would require a federal lawyer who obtained relief for her client in §2254 proceedings to continue to represent him during his state retrial; similarly, it would require federal counsel to represent her client in any state habeas proceeding following her appointment. Second, the Government claims that the statute’s legislative history shows that Congress did not intend to include state clemency proceedings within §3599(e)’s coverage. Neither argument is persuasive. The Government suggests that reading §3599(e) to authorize federally funded counsel for state clemency proceedings would require a lawyer who succeeded in setting aside a state death sentence during postconviction proceedings to represent her client during an ensuing state retrial. We do not read subsection (e) to apply to state-court proceedings that follow the issuance of a federal writ of habeas corpus. When a retrial occurs after postconviction relief, it is not properly understood as a “subsequent stage” of judicial proceedings but rather as the commencement of new judicial proceedings. Moreover, subsection (a)(2) provides for counsel only when a state petitioner is unable to obtain adequate representation. States are constitutionally required to provide trial counsel for indigent defendants. Thus, when a state prisoner is granted a new trial following §2254 proceedings, his state-furnished representation renders him ineligible for §3599 counsel until the commencement of new §2254 proceedings. The Government likewise argues that our reading of §3599(e) would require federally funded counsel to represent her client in any state habeas proceeding occurring after her appointment because such proceedings are also “available post-conviction process.” But as we have previously noted, subsection (e) authorizes counsel to represent her client in “subsequent” stages of available judicial proceedings. State habeas is not a stage “subsequent” to federal habeas. Just the opposite: Petitioners must exhaust their claims in state court before seeking federal habeas relief. See §2254(b)(1). That state postconviction litigation sometimes follows the initiation of federal habeas because a petitioner has failed to exhaust does not change the order of proceedings contemplated by the statute.[Footnote 7] The Government also argues that §3599(e) should not be interpreted as including state-clemency proceedings because it was drafted to apply only to federal defendants. Section 3599 was originally enacted as part of the Anti-Drug Abuse Act of 1988, §7001(b), 102 Stat. 4388 (codified at 21 U. S. C. §§848(q)(4)–(10)), which created a federal capital offense of drug-related homicide. In 2006, the death penalty procedures specified in that Act were repealed and recodified without change at 18 U. S. C. §3599. Based on the 1988 legislative history, the Government argues that subsection (e) was not written to apply to state petitioners at all. In its telling, the subsection was drafted when the bill covered only federal defendants; state litigants were added, by means of what is now subsection (a)(2), just a few hours before the bill passed in rushed end-of-session proceedings; and Congress simply did not attend to the fact that this amendment applied what is now subsection (e) to state litigants. While the legislative history is regrettably thin, the evidence that is available does not support the Government’s argument. State petitioners were a part of the Anti-Drug Abuse Act from the first day the House of Representatives took up the bill. In the amendment authorizing the death penalty for drug-related homicides, Representative George Gekas included a provision that closely resembles the current §3599(a)(2): “In any post-conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, the court shall appoint counsel to represent any defendant who is or becomes financially unable to obtain adequate representation.” 134 Cong. Rec. 22984 (1988) (emphasis added). Following passage of the Gekas amendment, Representative John Conyers proposed replacing its provisions on appellate and collateral process (including the above-quoted provision) with language comprising the provisions now codified at §§3599(a)(1), (b), (c), and (e). Because his amendment introduced the §3599(e) language and did not refer specifically to §2254 proceedings, the Government and Justice Scalia argue that Representative Conyers drafted subsection (e) to apply only to federal defendants. But his floor statements evince his particular concern for state prisoners. He explained that his amendment filed a gap because “[w]hile State courts appoint lawyers for indigent defendants, there is no legal representation automatically provided once the case i[s] appealed to the Federal level.” Id., at 22996.[Footnote 8] He then cited discussions by the Chief Judge of the Eleventh Circuit and the NAACP devoted exclusively to errors found by federal courts during habeas corpus review of state capital cases. Ibid. In the Senate, Representative Conyers’ language was first replaced with Representative Gekas’ provision for counsel for §2254 and §2255 petitioners, and then a subsequent amendment substituted the text of the Conyers amendment. See id., at 30401, 30746. Thereafter, the House amended the bill a final time to insert the language now codified at §3599(a)(2) while leaving the Conyers language in place. See id., at 33215. The Government argues that this late amendment marked the first occasion on which state prisoners were brought within the bill’s compass. But Representative Gekas’ initial amendment explicitly referenced §2254 petitioners, and Representative Conyers’ proposal sought to provide additional protections for all capital defendants. The House’s final amendment is therefore best understood not as altering the bill’s scope, but as clarifying it. The Government’s arguments about §3599’s history and purposes are laced with the suggestion that Congress simply would not have intended to fund clemency counsel for indigent state prisoners because clemency proceedings are a matter of grace entirely distinct from judicial proceedings.[Footnote 9] As this Court has recognized, however, “[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” Herrera v. Collins, 506 U. S. 390, 411–412 (1993) (footnote omitted). Far from regarding clemency as a matter of mercy alone, we have called it “the ‘fail safe’ in our criminal justice system.” Id., at 415.[Footnote 10] Congress’ decision to furnish counsel for clemency proceedings demonstrates that it, too, recognized the importance of such process to death-sentenced prisoners, and its reference to “other clemency,” §3599(e), shows that it was familiar with the availability of state as well as federal clemency proceedings. Moreover, Congress’ sequential enumeration suggests an awareness that clemency proceedings are not as divorced from judicial proceedings as the Government submits. Subsection (e) emphasizes continuity of counsel, and Congress likely appreciated that federal habeas counsel are well positioned to represent their clients in the state clemency proceedings that typically follow the conclusion of §2254 litigation. Indeed, as the history of this case demonstrates, the work of competent counsel during habeas corpus representation may provide the basis for a persuasive clemency application. Harbison’s federally appointed counsel developed extensive information about his life history and cognitive impairments that was not presented during his trial or appeals. She also litigated a claim under Brady v. Maryland, 373 U. S. 83 (1963), based on police records that had been suppressed for 14 years. One Court of Appeals judge concluded that the nondisclosure of these records “undermine[d] confidence in Harbison’s guilty verdict” because the evidence contained therein could have supported a colorable defense that a third party murdered the victim and that Harbison’s codefendant falsely implicated him. 408 F. 3d, at 840 (Clay, J., dissenting). Although the Court of Appeals concluded that Harbison’s Brady claim was procedurally defaulted, the information contained in the police records could be marshaled together with information about Harbison’s background in a clemency application to the Tennessee Board of Probation and Parole and the Governor. Harbison’s case underscores why it is “entirely plausible that Congress did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.” Hain v. Mullin, 436 F. 3d 1168 (CA10 2006) (en banc). In authorizing federally funded counsel to represent their state clients in clemency proceedings, Congress ensured that no prisoner would be put to death without meaningful access to the “ ‘fail-safe’ ” of our justice system. Herrera, 506 U. S., at 415. IV We conclude that a COA is not required to appeal an order denying a motion for federally appointed counsel. We further hold that §3599 authorizes federally appointed counsel to represent their clients in state clemency proceedings and entitles them to compensation for that representation. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Footnote 1 Federal Defender Services of Eastern Tennessee is a nonprofit organization established pursuant to the Criminal Justice Act of 1964, 18 U. S. C. §3006A(g)(2)(B). Footnote 2 We note that §3599 uses the term “defendant” to describe postconviction litigants. Footnote 3 As we discuss below, §3599 was originally enacted as part of a statute creating a new federal capital offense, Anti-Drug Abuse Act of 1988, §7001(b), 102 Stat. 4388, and it is now codified in Title 18, which principally addresses federal criminal proceedings. Footnote 4 Justice Scalia argues that subsection (e), including the reference to “other clemency,” was drafted to apply only to federal defendants, but this is not correct, as we discuss infra, at 10–12. Footnote 5 The Government suggests that Congress might have referred to “other clemency” to encompass the Executive’s use of other persons to assist him in reviewing clemency applications. But as the Government concedes, see Tr. of Oral Arg. 43—and as Members of Congress would have known—regardless of what assistance the President seeks, the federal proceeding is one for executive clemency under the Constitution. Footnote 6 We also note that the Government’s proposal to read the word “federal” into §3599(e) would lead to absurd results. It is clear, for example, that a state inmate faced with an imminent execution might be required to apply for a stay from a state court before seeking such relief in a federal court. On our reading of the statute, federally appointed counsel would be permitted to represent her client pursuant to subsection (e)’s reference to “applications for stays of execution and other appropriate motions and procedures.” But on the Government’s reading, the inmate would have to secure new counsel to file the stay request because his federal counsel would not be authorized to represent him. Such a rigid limit on the authority of appointed federal counsel would be inconsistent with the basic purpose of the statute. Cf. McFarland v. Scott, 512 U. S. 849, 854–857 (1994). Footnote 7 Pursuant to §3599(e)’s provision that counsel may represent her client in “other appropriate motions and procedures,” a district court may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course of her federal habeas representation. This is not the same as classifying state habeas proceedings as “available post-conviction process” within the meaning of the statute. Footnote 8 Despite his reference to “defendants” and “appealed,” Representative Conyers was clearly discussing state prisoners seeking federal habeas relief. Representative Gekas’ amendment similarly referred to postconviction litigants as “defendants,” and the relevant portion of his amendment was titled “Appeal in Capital Cases” even though it incorporated §2254 and §2255 proceedings. 134 Cong. Rec. 22984. As codified, §3599(a)(2) likewise uses the term “defendant” to refer to habeas petitioners. The Government is incorrect to suggest that the statute’s use of this term illustrates that it was not written to apply to postconviction litigants. Footnote 9 The Government also submits that providing federally funded counsel for state clemency proceedings would raise “unique federalism concerns.” Brief for United States as Amicus Curiae 31. But Tennessee’s position belies that claim. Following other States that have litigated the question, Tennessee has expressed “no view” on the statute’s scope because it “has no real stake in whether an inmate receives federal funding for clemency counsel.” Brief for Respondent 7; see also Brief for Current and Former Governors as Amici Curiae 18 (“Contrary to the view of the Solicitor General … , the fact that counsel is appointed by a federal court does not reflect an intrusion on state sovereignty”). Footnote 10 See also Kansas v. Marsh, 548 U. S. 163, 193 (2006) (Scalia, J., concurring) (“Reversal of an erroneous conviction on appeal or on habeas, or the pardoning of an innocent condemnee through executive clemency, demonstrates not the failure of the system but its success. Those devices are part and parcel of the multiple assurances that are applied before a death sentence is carried out”); Dretke v. Haley, 541 U. S. 386, 399 (2004) (Kennedy, J., dissenting) (“Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal process seems unable or unwilling to consider”). |
556.US.2008_07-1372 | After the overthrow of the Hawaiian monarchy in 1893, Congress annexed the Territory of Hawaii pursuant to the Newlands Resolution, under which Hawaii ceded to the United States the “absolute fee” and ownership of all public, government, and crown lands. In 1959, the Admission Act made Hawaii a State, granting it “all the public lands … held by the United States,” §5(b), and requiring these lands, “together with the proceeds from [their] sale … , [to] be held by [the] State as a public trust,” §5(f). Hawaii state law also authorizes the State to use or sell the ceded lands, provided the proceeds are held in trust for Hawaiian citizens. In 1993, Congress’ joint Apology Resolution “apologize[d]” for this country’s role in overthrowing the Hawaiian monarchy, §1, and declared that nothing in the resolution was “intended to serve as a settlement of any claims against the United States,” §3. The “Leiali’i parcel,” a Maui tract of former crown land, was ceded to the United States at annexation and has been held by the State since 1959 as part of the Admission Act §5(f) trust. Hawaii’s affordable housing agency (HFDC) received approval to remove the parcel from the trust and redevelop it upon compensating respondent Office of Hawaiian Affairs (OHA), which manages funds from the use or sale of ceded lands for the benefit of native Hawaiians. After HFDC refused OHA’s demand that the payment include a disclaimer preserving any native Hawaiian claims to lands transferred from the trust for redevelopment, respondents sued to enjoin the sale or transfer of the Leiali’i parcel and any other of the ceded lands until final determination of native Hawaiians’ claims. The state trial court entered judgment against respondents, but the Hawaiian Supreme Court vacated that ruling. Relying on the Apology Resolution, the court granted the injunction that respondents requested, rejecting petitioners’ argument that the Admission Act and state law give the State explicit power to sell ceded lands. Held: 1. This Court has jurisdiction. Respondents argue to no avail that the case does not raise a federal question because the State Supreme Court merely held that the sale of ceded lands would constitute a breach of the State’s fiduciary duty to Native Hawaiians under state law. The Court has jurisdiction whenever “a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law.” Michigan v. Long, 463 U. S. 1032, 1040. Far from providing a plain statement that its decision rested on state law, the state court plainly held that the decision was dictated by federal law, particularly the Apology Resolution. Pp. 6–7. 2. The Apology Resolution did not strip Hawaii of its sovereign authority to alienate the lands the United States held in absolute fee and granted to the State upon its admission to the Union. Pp. 7–12. (a) Neither of the resolution’s substantive provisions justifies the judgment below. The first such provision’s six verbs—i.e., Congress “acknowledge[d] the historical significance” of the monarchy’s overthrow, “recognize[d] and commend[ed] efforts of reconciliation” with native Hawaiians, “apologize[d] to [them]” for the overthrow, “expresse[d] [the] commitment to acknowledge [the overthrow’s] ramifications,” and “urge[d] the President … to also acknowledge [those] ramifications,” §1—are all conciliatory or precatory. This is not the kind of language Congress uses to create substantive rights, especially rights enforceable against the cosovereign States. See, e.g., Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17–18. The resolution’s second substantive provision, the §3 disclaimer, by its terms speaks only to those who may or may not have “claims against the United States.” The State Supreme Court, however, read §3 as a congressional recognition—and preservation—of claims against Hawaii. There is no justification for turning an express disclaimer of claims against one sovereign into an affirmative recognition of claims against another. Pp. 8–10. (b) The State Supreme Court’s conclusion that the 37 “whereas” clauses prefacing the Apology Resolution clearly recognize native Hawaiians’ “unrelinquished” claims over the ceded lands is wrong for at least three reasons. First, such “whereas” clauses cannot bear the weight that the lower court placed on them. See, e.g., District of Columbia v. Heller, 554 U. S. ___, ___, n. 3. Second, even if the clauses had some legal effect, they did not restructure Hawaii’s rights and obligations, as the lower court found. “[R]epeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest.” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, ___. The Apology Resolution reveals no such intention, much less a clear and manifest one. Third, because the resolution would raise grave constitutional concerns if it purported to “cloud” Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union, see, e.g., Idaho v. United States, 533 U. S. 262, 280, n. 9, the Court refuses to read the nonsubstantive “whereas” clauses to create such a “cloud” retroactively, see, e.g., Clark v. Martinez, 543 U. S. 371, 381–382. Pp. 10–12. 117 Haw. 174, 177 P. 3d 884, reversed and remanded. Alito, J., delivered the opinion for a unanimous Court. | This case presents the question whether Congress stripped the State of Hawaii of its authority to alienate its sovereign territory by passing a joint resolution to apologize for the role that the United States played in overthrowing the Hawaiian monarchy in the late 19th century. Relying on Congress’ joint resolution, the Supreme Court of Hawaii permanently enjoined the State from alienating certain of its lands, pending resolution of native Hawaiians’ land claims that the court described as “unrelinquished.” We reverse. I A In 1893, “[a] so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.” Rice v. Cayetano, 528 U. S. 495, 504–505 (2000). “That government sought annexation by the United States,” id., at 505, which the United States granted, see Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, No. 55, 30 Stat. 750 (hereinafter Newlands Resolution). Pursuant to the Newlands Resolution, the Republic of Hawaii “cede[d] absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind” and further “cede[d] and transfer[red] to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining” (hereinafter ceded lands).[Footnote 1] Ibid. The Newlands Resolution further provided that all “property and rights” in the ceded lands “are vested in the United States of America.” Ibid. Two years later, Congress established a government for the Territory of Hawaii. See Act of Apr. 30, 1900, ch. 339, 31 Stat. 141 (hereinafter Organic Act). The Organic Act reiterated the Newlands Resolution and made clear that the new Territory consisted of the land that the United States acquired in “absolute fee” under that resolution. See §2, ibid. The Organic Act further provided: “[T]he portion of the public domain heretofore known as Crown land is hereby declared to have been, on [the effective date of the Newlands Resolution], and prior thereto, the property of the Hawaiian government, and to be free and clear from any trust of or concerning the same, and from all claim of any nature whatsoever, upon the rents, issues, and profits thereof. It shall be subject to alienation and other uses as may be provided by law.” §99, id., at 161; see also §91, id., at 159. In 1959, Congress admitted Hawaii to the Union. See Pub. L. 86–3, 73 Stat. 4 (hereinafter Admission Act). Under the Admission Act, with exceptions not relevant here, “the United States grant[ed] to the State of Hawaii, effective upon its admission into the Union, the United States’ title to all the public lands and other public property within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union.” §5(b), id., at 5. These lands, “together with the proceeds from the sale or other disposition of [these] lands and the income therefrom, shall be held by [the] State as a public trust” to promote various public purposes, including supporting public education, bettering conditions of Native Hawaiians, developing home ownership, making public improvements, and providing lands for public use. §5(f), id., at 6. Hawaii state law also authorizes the State to use or sell the ceded lands, provided that the proceeds are held in trust for the benefit of the citizens of Hawaii. See, e.g., Haw. Rev. Stat. §§171–45, 171–18 (1993). In 1993, Congress enacted a joint resolution “to acknowledge the historic significance of the illegal overthrow of the Kingdom of Hawaii, to express its deep regret to the Native Hawaiian people, and to support the reconciliation efforts of the State of Hawaii and the United Church of Christ with Native Hawaiians.” Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. 103–150, 107 Stat. 1510, 1513 (hereinafter Apology Resolution). In a series of the preambular “whereas” clauses, Congress made various observations about Hawaii’s history. For example, the Apology Resolution states that “the indigenous Hawaiian people never directly relinquished their claims … over their national lands to the United States” and that “the health and well-being of the Native Hawaiian people is intrinsically tied to their deep feelings and attachment to the land.” Id., at 1512. In the same vein, the resolution’s only substantive section—entitled “Acknowledgement and Apology”—states that Congress: “(1) … acknowledges the historical significance of this event which resulted in the suppression of the inherent sovereignty of the Native Hawaiian people; “(2) recognizes and commends efforts of reconciliation initiated by the State of Hawaii and the United Church of Christ with Native Hawaiians; “(3) apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination; “(4) expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people; and “(5) urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and the Native Hawaiian people.” Id., at 1513. Finally, §3 of the Apology Resolution states that “Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.” Id., at 1514. B This suit involves a tract of former crown land on Maui, now known as the “Leiali’i parcel,” that was ceded in “absolute fee” to the United States at annexation and has been held by the State since 1959 as part of the trust established by §5(f) of the Admission Act. The Housing Finance and Development Corporation (HFDC)—Hawaii’s affordable housing agency—received approval to remove the Leiali’i parcel from the §5(f) trust and redevelop it. In order to transfer the Leiali’i parcel out of the public trust, HFDC was required to compensate respondent Office of Hawaiian Affairs (OHA), which was established to receive and manage funds from the use or sale of the ceded lands for the benefit of native Hawaiians. Haw. Const., Art. XII, §§4–6. In this case, however, OHA demanded more than monetary compensation. Relying on the Apology Resolution, respondent OHA demanded that HFDC include a disclaimer preserving any native Hawaiian claims to ownership of lands transferred from the public trust for redevelopment. HFDC declined to include the requested disclaimer because “to do so would place a cloud on title, rendering title insurance unavailable.” App. to Pet. for Cert. 207a. Again relying on the Apology Resolution, respondents then sued the State, its Governor, HFDC (since renamed), and its officials. Respondents sought “to enjoin the defendants from selling or otherwise transferring the Leiali’i parcel to third parties and selling or otherwise transferring to third parties any of the ceded lands in general until a determination of the native Hawaiians’ claims to the ceded lands is made.” Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, 117 Haw. 174, 189, 177 P. 3d 884, 899 (2008). Respondents “alleged that an injunction was proper because, in light of the Apology Resolution, any transfer of ceded lands by the State to third-parties would amount to a breach of trust … .” Id., at 188, 177 P. 3d, at 898. The state trial court entered judgment against respondents, but the Supreme Court of Hawaii vacated the lower court’s ruling. Relying on a “plain reading of the Apology Resolution,” which “dictate[d]” its conclusion, id., at 212, 177 P. 3d, at 988, the State Supreme Court ordered “an injunction against the defendants from selling or otherwise transferring to third parties (1) the Leiali’i parcel and (2) any other ceded lands from the public lands trust until the claims of the native Hawaiians to the ceded lands have been resolved,” id., at 218, 177 P. 3d, at 928. In doing so, the court rejected petitioners’ argument that “the State has the undoubted and explicit power to sell ceded lands pursuant to the terms of the Admission Act and pursuant to state law.” Id., at 211, 177 P. 3d, at 920 (internal quotation marks and alterations omitted). We granted certiorari. 555 U. S. ___ (2008). II Before turning to the merits, we first must address our jurisdiction. According to respondents, the Supreme Court of Hawaii “merely held that, in light of the ongoing reconciliation process, the sale of ceded lands would constitute a breach of the State’s fiduciary duty to Native Hawaiians under state law.” Brief for Respondents 17. Because respondents believe that this case does not raise a federal question, they urge us to dismiss for lack of jurisdiction. Although respondents dwell at length on that argument, see id., at 19–34, we need not tarry long to reject it. This Court has jurisdiction whenever “a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Michigan v. Long, 463 U. S. 1032, 1040–1041 (1983). Far from providing a “plain statement” that its decision rested on state law, id., at 1041, the State Supreme Court plainly held that its decision was “dictate[d]” by federal law—in particular, the Apology Resolution, see 117 Haw., at 212, 177 P. 3d, at 922. Indeed, the court explained that the Apology Resolution lies “[a]t the heart of [respondents’] claims,” that respondents’ “current claim for injunctive relief is … based largely upon the Apology Resolution,” and that respondents’ arguments presuppose that the Apology Resolution “changed the legal landscape and restructured the rights and obligations of the State.” Id., at 189–190, 177 P. 3d, at 899–900 (internal quotation marks omitted). The court noted that “[t]he primary question before this court on appeal is whether, in light of the Apology Resolution, this court should issue an injunction” against sale of the trust lands, id., at 210, 177 P. 3d, at 920, and it concluded, “[b]ased on a plain reading” of the Apology Resolution, that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands,” id., at 191, 177 P. 3d, at 901. Based on these and the remainder of the State Supreme Court’s 77 references to the Apology Resolution, we have no doubt that the decision below rested on federal law.[Footnote 2] We are therefore satisfied that this Court has jurisdiction. See 28 U. S. C. §1257. III Turning to the merits, we must decide whether the Apology Resolution “strips Hawaii of its sovereign authority to sell, exchange, or transfer” (Pet. for Cert. i) the lands that the United States held in “absolute fee” (30 Stat. 750) and “grant[ed] to the State of Hawaii, effective upon its admission into the Union” (73 Stat. 5). We conclude that the Apology Resolution has no such effect. A “We begin, as always, with the text of the statute.” Permanent Mission of India to United Nations v. City of New York, 551 U. S. 193, 197 (2007). The Apology Resolution contains two substantive provisions. See 107 Stat. 1513–1514. Neither justifies the judgment below. The resolution’s first substantive provision uses six verbs, all of which are conciliatory or precatory. Specifically, Congress “acknowledge[d] the historical significance” of the Hawaiian monarchy’s overthrow, “recognize[d] and commend[ed] efforts of reconciliation” with native Hawaiians, “apologize[d] to [n]ative Hawaiians” for the monarchy’s overthrow, “expresse[d] [Congress’s] commitment to acknowledge the ramifications of the overthrow,” and “urge[d] the President of the United States to also acknowledge the ramifications of the overthrow … .” §1. Such terms are not the kind that Congress uses to create substantive rights—especially those that are enforceable against the cosovereign States. See, e.g., Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17–18 (1981).[Footnote 3] The Apology Resolution’s second and final substantive provision is a disclaimer, which provides: “Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.” §3. By its terms, §3 speaks only to those who may or may not have “claims against the United States.” The court below, however, held that the only way to save §3 from superfluity is to construe it as a congressional recognition—and preservation—of claims against Hawaii and as “the foundation (or starting point) for reconciliation” between the State and native Hawaiians. 117 Haw., at 192, 177 P. 3d, at 902. “We must have regard to all the words used by Congress, and as far as possible give effect to them,” Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, 475 (1911), but that maxim is not a judicial license to turn an irrelevant statutory provision into a relevant one. And we know of no justification for turning an express disclaimer of claims against one sovereign into an affirmative recognition of claims against another.[Footnote 4] Cf. Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U. S. ___, ___ (2009) (slip op., at 17) (“Two wrong claims do not make one that is right”). The Supreme Court of Hawaii erred in reading §3 as recognizing claims inconsistent with the title held in “absolute fee” by the United States (30 Stat. 750) and conveyed to the State of Hawaii at statehood. See supra, at 2–3. B Rather than focusing on the operative words of the law, the court below directed its attention to the 37 “whereas” clauses that preface the Apology Resolution. See 107 Stat. 1510–1513. “Based on a plain reading of” the “whereas” clauses, the Supreme Court of Hawaii held that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands.” 117 Haw., at 191, 177 P. 3d, at 901. That conclusion is wrong for at least three reasons. First, “whereas” clauses like those in the Apology Resolution cannot bear the weight that the lower court placed on them. As we recently explained in a different context, “where the text of a clause itself indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation … , a court has no license to make it do what it was not designed to do.” District of Columbia v. Heller, 554 U. S. ___, ___, n. 3 (2008) (slip op., at 4, n. 3). See also Yazoo & Mississippi Valley R. Co. v. Thomas, 132 U. S. 174, 188 (1889) (“[A]s the preamble is no part of the act, and cannot enlarge or confer powers, nor control the words of the act, unless they are doubtful or ambiguous, the necessity of resorting to it to assist in ascertaining the true intent and meaning of the legislature is in itself fatal to the claim set up”). Second, even if the “whereas” clauses had some legal effect, they did not “chang[e] the legal landscape and restructur[e] the rights and obligations of the State.” 117 Haw., at 190, 177 P. 3d, at 900. As we have emphasized, “repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest.” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 662 (2007) (internal quotation marks omitted). The Apology Resolution reveals no indication—much less a “clear and manifest” one—that Congress intended to amend or repeal the State’s rights and obligations under Admission Act (or any other federal law); nor does the Apology Resolution reveal any evidence that Congress intended sub silentio to “cloud” the title that the United States held in “absolute fee” and transferred to the State in 1959. On that score, we find it telling that even respondent OHA has now abandoned its argument, made below, that “Congress … enacted the Apology Resolution and thus … change[d]” the Admission Act. App. 114a; see also Tr. of Oral Arg. 31, 37–38. Third, the Apology Resolution would raise grave constitutional concerns if it purported to “cloud” Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. We have emphasized that “Congress cannot, after statehood, reserve or convey submerged lands that have already been bestowed upon a State.” Idaho v. United States, 533 U. S. 262, 280, n. 9 (2001) (internal quotation marks and alteration omitted); see also id., at 284 (Rehnquist, C. J., dissenting) (“[T]he consequences of admission are instantaneous, and it ignores the uniquely sovereign character of that event … to suggest that subsequent events somehow can diminish what has already been bestowed”). And that proposition applies a fortiori where virtually all of the State’s public lands—not just its submerged ones—are at stake. In light of those concerns, we must not read the Apology Resolution’s nonsubstantive “whereas” clauses to create a retroactive “cloud” on the title that Congress granted to the State of Hawaii in 1959. See, e.g., Clark v. Martinez, 543 U. S. 371, 381–382 (2005) (the canon of constitutional avoidance “is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts”). * * * When a state supreme court incorrectly bases a decision on federal law, the court’s decision improperly prevents the citizens of the State from addressing the issue in question through the processes provided by the State’s constitution. Here, the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State. Respondents defend that decision by arguing that they have both state-law property rights in the land in question and “broader moral and political claims for compensation for the wrongs of the past.” Brief for Respondents 18. But we have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judgment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 “Crown lands” were lands formerly held by the Hawaiian monarchy. “Public” and “Government” lands were other lands held by the Hawaiian government. Footnote 2 Respondents argue that the Supreme Court of Hawaii relied on the Apology Resolution “simply to support its factual determination that Native Hawaiians have unresolved claims to the ceded lands.” Brief for Respondents 21. Regardless of its factual determinations, however, the lower court’s legal conclusions were, at the very least, “interwoven with the federal law.” Michigan v. Long, 463 U. S. 1032, 1040 (1983). See Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, 117 Haw. 174, 217, 218, 177 P. 3d 884, 927, 928 (2008) (“hold[ing]” that respondents’ legal claim “arose” only when “the Apology Resolution was signed into law on November 23, 1993”); id., at 211, n. 25, 177 P. 3d, at 921, n. 25 (emphasizing that “our holding is grounded in Hawai‘i and federal law”). See also n. 4, infra. Footnote 3 The Apology Resolution’s operative provisions thus stand in sharp contrast with those of other “apologies,” which Congress intended to have substantive effect. See, e.g., Civil Liberties Act of 1988, 102 Stat. 903, 50 U. S. C. App. §1989 (2000 ed.) (acknowledging and apologizing “for the evacuation, relocation and internment” of Japanese citizens during World War II and providing $20,000 in restitution to each eligible individual); Radiation Exposure Compensation Act, 104 Stat. 920, notes following 42 U. S. C. §2210 (2000 ed. and Supp. V) (“apologiz[ing] on behalf of the Nation … for the hardships” endured by those exposed to radiation from above-ground nuclear testing facilities and providing $100,000 in compensation to each eligible individual). Footnote 4 The court below held that respondents “prevailed on the merits” by showing that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands, which were taken without consent or compensation and which the native Hawaiian people are determined to preserve, develop, and transmit to future generations.” 117 Haw., at 212, 177 P. 3d, at 922. And it further held that petitioners failed to show that the State has the “power to sell ceded lands pursuant to the terms of the Admission Act.” Id., at 211, 177 P. 3d, at 921 (internal quotation marks and alterations omitted). Respondents now insist, however, that their claims are “nonjusticiable” to the extent that they are grounded on “broader moral and political” bases. Brief for Respondents 18. No matter how respondents characterize their claims, it is undeniable that they have asserted title to the ceded lands throughout this litigation, see id., at 40, n. 15 (conceding the point), and it is undeniable that the Supreme Court of Hawaii relied on those claims in issuing an injunction, which is a legal (and hence justiciable) remedy—not a moral, political, or nonjusticiable one. |
556.US.2008_07-10374 | Believing that damages suits filed by prisoners against state correction officers were largely frivolous and vexatious, New York passed Correction Law §24, which divested state courts of general jurisdiction of their jurisdiction over such suits, including those filed under 42 U. S. C. §1983, and replaced those claims with the State’s preferred alternative. Thereunder, a prisoner will have his claim against a correction officer dismissed for want of jurisdiction and will be left to pursue a damages claim against the State in the Court of Claims, a court of limited jurisdiction in which the prisoner will not be entitled to attorney’s fees, punitive damages, or injunctive relief. Petitioner filed two §1983 damages actions against correction employees in state court. Finding that it lacked jurisdiction under Correction Law §24, the trial court dismissed the actions. Affirming, the State Court of Appeals rejected petitioner’s claim that the state statute’s jurisdictional limitation violated the Supremacy Clause. It reasoned that because that law treats state and federal damages actions against correction officers equally—i.e., neither can be brought in New York courts—it was a neutral rule of judicial administration and thus a valid excuse for the State’s refusal to entertain the federal cause of action. Held: Correction Law §24, as applied to §1983 claims, violates the Supremacy Clause. Pp. 5–13. (a) Federal and state law “together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are … courts of the same country, having jurisdiction partly different and partly concurrent.” Claflin v. Houseman, 93 U. S. 130, 136–137. Both state and federal courts have jurisdiction over §1983 suits. So strong is the presumption of concurrency that it is defeated only when Congress expressly ousts state courts of jurisdiction, see e.g., id., at 136; or “[w]hen a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts,” Howlett v. Rose, 496 U. S. 356, 372. As to whether a state law qualifies as such a neutral rule, States retain substantial leeway to establish the contours of their judicial systems, but lack authority to nullify a federal right or cause of action they believe is inconsistent with their local policies. Whatever its merits, New York’s policy of shielding correction officers from liability when sued for damages arising out of conduct performed in the scope of their employment is contrary to Congress’ judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages. “A State may not … relieve congestion in its courts by declaring a whole category of federal claims to be frivolous.” Id., at 380. Pp. 5–8. (b) The New York Court of Appeals’ holding was based on the misunderstanding that Correction Law §24’s equal treatment of federal and state claims would guarantee that the statute would pass constitutional muster. Although the absence of discrimination is essential to this Court’s finding a state law neutral, nondiscrimination alone is not sufficient to guarantee that a state law will be deemed neutral. In addition to this misplaced reliance on equality, respondents mistakenly treat this case as implicating the “great latitude [States enjoy] to establish the structure and jurisdiction of their own courts.” Howlett, 496 U. S., at 372. However, this Court need not decide whether Congress can compel a State to offer a forum, otherwise unavailable under state law, to hear §1983 suits, because New York has courts of general jurisdiction that routinely sit to hear analogous §1983 actions. Pp. 8–13. 9 N. Y. 3d 481, 881 N. E. 2d 180, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Alito, JJ., joined as to Part III. | In our federal system of government, state as well as federal courts have jurisdiction over suits brought pursuant to 42 U. S. C. §1983, the statute that creates a remedy for violations of federal rights committed by persons acting under color of state law.[Footnote 1] While that rule is generally applicable to New York’s supreme courts—the State’s trial courts of general jurisdiction—New York’s Correction Law §24 divests those courts of jurisdiction over §1983 suits that seek money damages from correction officers. New York thus prohibits the trial courts that generally exercise jurisdiction over §1983 suits brought against other state officials from hearing virtually all such suits brought against state correction officers. The question presented is whether that exceptional treatment of a limited category of §1983 claims is consistent with the Supremacy Clause of the United States Constitution. [Footnote 2] I Petitioner, an inmate in New York’s Attica Correctional Facility, commenced two §1983 actions against several correction employees alleging that they violated his civil rights in connection with three prisoner disciplinary proceedings and an altercation. Proceeding pro se, petitioner filed his claims in State Supreme Court and sought punitive damages and attorney’s fees. The trial court dismissed the actions on the ground that, under N. Y. Correct. Law Ann. §24 (West 1987) (hereinafter Correction Law §24), it lacked jurisdiction to entertain any suit arising under state or federal law seeking money damages from correction officers for actions taken in the scope of their employment. The intermediate appellate court summarily affirmed the trial court. 35 App. Div. 3d 1290, 826 N. Y. S. 2d 542 (2006). The New York Court of Appeals, by a 4-to-3 vote, also affirmed the dismissal of petitioner’s damages action. The Court of Appeals rejected petitioner’s argument that Correction Law §24’s jurisdictional limitation interfered with §1983 and therefore ran afoul of the Supremacy Clause of the United States Constitution. The majority reasoned that, because Correction Law §24 treats state and federal damages actions against correction officers equally (that is, neither can be brought in New York courts), the statute should be properly characterized as a “neutral state rule regarding the administration of the courts” and therefore a “valid excuse” for the State’s refusal to entertain the federal cause of action. 9 N. Y. 3d 481, 487, 881 N. E. 2d 180, 183, 184 (2007) (quoting Howlett v. Rose, 496 U. S. 356, 369, 372 (1990) (internal quotation marks omitted)). The majority understood our Supremacy Clause precedents to set forth the general rule that so long as a State does not refuse to hear a federal claim for the “sole reason that the cause of action arises under federal law,” its withdrawal of jurisdiction will be deemed constitutional. 9 N. Y. 3d, at 488, 881 N. E. 2d, at 184. So read, discrimination vel non is the focal point of Supremacy Clause analysis. In dissent, Judge Jones argued that Correction Law §24 is not a neutral rule of judicial administration. Noting that the State’s trial courts handle all other §1983 damages actions, he concluded that the State had created courts of competent jurisdiction to entertain §1983 suits. In his view, “once a state opens its courts to hear section 1983 actions, it may not selectively exclude section 1983 actions by denominating state policies as jurisdictional.” Id., at 497, 881 N. E. 2d, at 191. Recognizing the importance of the question decided by the New York Court of Appeals, we granted certiorari. 554 U. S. ___ (2008). We now reverse. II Motivated by the belief that damages suits filed by prisoners against state correction officers were by and large frivolous and vexatious, New York passed Correction Law §24.[Footnote 3] The statute employs a two-step process to strip its courts of jurisdiction over such damages claims and to replace those claims with the State’s preferred alternative. The provision states in full: “1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of employment and in the discharge of the duties by such officer or employee. “2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state.” Thus, under this scheme, a prisoner seeking damages from a correction officer will have his claim dismissed for want of jurisdiction and will be left, instead, to pursue a claim for damages against an entirely different party (the State) in the Court of Claims—a court of limited jurisdiction.[Footnote 4] See N. Y. Const., Art. VI, §9; N. Y. Ct. Clms. Law Ann. §9 (West 1989) (hereinafter Court of Claims Act). For prisoners seeking redress, pursuing the Court of Claims alternative comes with strict conditions. In addition to facing a different defendant, plaintiffs in that Court are not provided with the same relief, or the same procedural protections, made available in §1983 actions brought in state courts of general jurisdiction. Specifically, under New York law, plaintiffs in the Court of Claims must comply with a 90-day notice requirement, Court of Claims Act §9; are not entitled to a jury trial, §12; have no right to attorney’s fees, §27; and may not seek punitive damages or injunctive relief, Sharapata v. Town of Islip, 56 N. Y. 2d 332, 334, 437 N. E. 2d 1104, 1105 (1982). We must decide whether Correction Law §24, as applied to §1983 claims, violates the Supremacy Clause. III This Court has long made clear that federal law is as much the law of the several States as are the laws passed by their legislatures. Federal and state law “together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent.” Claflin v. Houseman, 93 U. S. 130, 136–137 (1876); see Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211, 222 (1916); The Federalist No. 82, p. 132 (E. Bourne ed. 1947) (A. Hamilton) (“[T]he inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited”). Although §1983, a Reconstruction-era statute, was passed “to interpose the federal courts between the States and the people, as guardians of the people’s federal rights,” Mitchum v. Foster, 407 U. S. 225, 242 (1972), state courts as well as federal courts are entrusted with providing a forum for the vindication of federal rights violated by state or local officials acting under color of state law. See Patsy v. Board of Regents of Fla., 457 U. S. 496, 506–507 (1982) (canvassing the legislative debates of the 1871 Congress and noting that “many legislators interpreted [§1983] to provide dual or concurrent forums in the state and federal system, enabling the plaintiff to choose the forum in which to seek relief”); Maine v. Thiboutot, 448 U. S. 1, 3, n. 1 (1980). So strong is the presumption of concurrency that it is defeated only in two narrowly defined circumstances: first, when Congress expressly ousts state courts of jurisdiction, see Bombolis, 241 U. S., at 221; Claflin, 93 U. S., at 136; and second, “[w]hen a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts,” Howlett, 496 U. S., at 372. Focusing on the latter circumstance, we have emphasized that only a neutral jurisdictional rule will be deemed a “valid excuse” for departing from the default assumption that “state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.” Tafflin v. Levitt, 493 U. S. 455, 458 (1990). In determining whether a state law qualifies as a neutral rule of judicial administration, our cases have established that a State cannot employ a jurisdictional rule “to dissociate [itself] from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.” Howlett, 496 U. S., at 371. In other words, although States retain substantial leeway to establish the contours of their judicial systems, they lack authority to nullify a federal right or cause of action they believe is inconsistent with their local policies. “The suggestion that [an] act of Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist.” Second Employers’ Liability Cases, 223 U. S. 1, 57 (1912). It is principally on this basis that Correction Law §24 violates the Supremacy Clause. In passing Correction Law §24, New York made the judgment that correction officers should not be burdened with suits for damages arising out of conduct performed in the scope of their employment. Because it regards these suits as too numerous or too frivolous (or both), the State’s longstanding policy has been to shield this narrow class of defendants from liability when sued for damages.[Footnote 5] The State’s policy, whatever its merits, is contrary to Congress’ judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages. As we have unanimously recognized, “[a] State may not … relieve congestion in its courts by declaring a whole category of federal claims to be frivolous. Until it has been proved that the claim has no merit, that judgment is not up to the States to make.” Howlett, 496 U. S., at 380; Burnett v. Grattan, 468 U. S. 42, 55 (1984) (rejecting as “manifestly inconsistent with the central objective of the Reconstruction–Era civil rights statutes” the judgment “that factors such as minimizing the diversion of state officials’ attention from their duties outweigh the interest in providing employees ready access to a forum to resolve valid claims”). That New York strongly favors a rule shielding correction officers from personal damages liability and substituting the State as the party responsible for compensating individual victims is irrelevant. The State cannot condition its enforcement of federal law on the demand that those individuals whose conduct federal law seeks to regulate must nevertheless escape liability. IV While our cases have uniformly applied the principle that a State cannot simply refuse to entertain a federal claim based on a policy disagreement, we have yet to confront a statute like New York’s that registers its dissent by divesting its courts of jurisdiction over a disfavored federal claim in addition to an identical state claim. The New York Court of Appeals’ holding was based on the misunderstanding that this equal treatment of federal and state claims rendered Correction Law §24 constitutional. 9 N. Y. 3d, at 489, 881 N. E. 2d, at 185 (“Put simply, because Correction Law §24 does not treat section 1983 claims differently than it treats related state law causes of action, the Supremacy Clause is not offended”). To the extent our cases have created this misperception, we now make clear that equality of treatment does not ensure that a state law will be deemed a neutral rule of judicial administration and therefore a valid excuse for refusing to entertain a federal cause of action. Respondents correctly observe that, in the handful of cases in which this Court has found a valid excuse, the state rule at issue treated state and federal claims equally. In Douglas v. New York, N. H. & H. R. Co., 279 U. S. 377 (1929), we upheld a state law that granted state courts discretion to decline jurisdiction over state and federal claims alike when neither party was a resident of the State. Later, in Herb v. Pitcairn, 324 U. S. 117 (1945), a city court dismissed an action brought under the Federal Employers’ Liability Act (FELA), 45 U. S. C. §51 et seq., for want of jurisdiction because the cause of action arose outside the court’s territorial jurisdiction. We upheld the dismissal on the ground that the State’s venue laws were not being applied in a way that discriminated against the federal claim. 324 U. S., at 123. In a third case, Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1 (1950), we held that a State’s application of the forum non conveniens doctrine to bar adjudication of a FELA case brought by nonresidents was constitutionally sound as long as the policy was enforced impartially. Id., at 4. And our most recent decision finding a valid excuse, Johnson v. Fankell, 520 U. S. 911 (1997), rested largely on the fact that Idaho’s rule limiting interlocutory jurisdiction did not discriminate against §1983 actions. See id., at 918. Although the absence of discrimination is necessary to our finding a state law neutral, it is not sufficient. A jurisdictional rule cannot be used as a device to undermine federal law, no matter how evenhanded it may appear. As we made clear in Howlett, “[t]he fact that a rule is denominated jurisdictional does not provide a court an excuse to avoid the obligation to enforce federal law if the rule does not reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect.” 496 U. S., at 381. Ensuring equality of treatment is thus the beginning, not the end, of the Supremacy Clause analysis. In addition to giving too much weight to equality of treatment, respondents mistakenly treat this case as implicating the “great latitude [States enjoy] to establish the structure and jurisdiction of their own courts.” Id., at 372. Although Correction Law §24 denies state courts authority to entertain damages actions against correction officers, this case does not require us to decide whether Congress may compel a State to offer a forum, otherwise unavailable under state law, to hear suits brought pursuant to §1983. The State of New York has made this inquiry unnecessary by creating courts of general jurisdiction that routinely sit to hear analogous §1983 actions. New York’s constitution vests the state supreme courts with general original jurisdiction, N. Y. Const., Art. VI, §7(a), and the “inviolate authority to hear and resolve all causes in law and equity.” Pollicina v. Misericordia Hospital Medical Center, 82 N. Y. 2d 332, 339, 624 N. E. 2d 974, 977 (1993). For instance, if petitioner had attempted to sue a police officer for damages under §1983, the suit would be properly adjudicated by a state supreme court. Similarly, if petitioner had sought declaratory or injunctive relief against a correction officer, that suit would be heard in a state supreme court. It is only a particular species of suits—those seeking damages relief against correction officers—that the State deems inappropriate for its trial courts.[Footnote 6] We therefore hold that, having made the decision to create courts of general jurisdiction that regularly sit to entertain analogous suits, New York is not at liberty to shut the courthouse door to federal claims that it considers at odds with its local policy.[Footnote 7] A State’s authority to organize its courts, while considerable, remains subject to the strictures of the Constitution. See, e.g., McKnett v. St. Louis & San Francisco R. Co., 292 U. S. 230, 233 (1934). We have never treated a State’s invocation of “jurisdiction” as a trump that ends the Supremacy Clause inquiry, see Howlett, 496 U. S., at 382–383, and we decline to do so in this case. Because New York’s supreme courts generally have personal jurisdiction over the parties in §1983 suits brought by prisoners against correction officers and because they hear the lion’s share of all other §1983 actions, we find little concerning “power over the person and competence over the subject matter” in Correction Law §24. Id., at 381; see id., at 378 (conducting a similar analysis and concluding that the Florida courts of general jurisdiction were “fully competent to provide the remedies [§1983] requires”).[Footnote 8] Accordingly, the dissent’s fear that “no state jurisdictional rule will be upheld as constitutional” is entirely unfounded. Post, at 29, n. 10. Our holding addresses only the unique scheme adopted by the State of New York—a law designed to shield a particular class of defendants (correction officers) from a particular type of liability (damages) brought by a particular class of plaintiffs (prisoners). Based on the belief that damages suits against correction officers are frivolous and vexatious, see supra, at 3–4, n. 3, Correction Law §24 is effectively an immunity statute cloaked in jurisdictional garb. Finding this scheme unconstitutional merely confirms that the Supremacy Clause cannot be evaded by formalism.[Footnote 9] V The judgment of the New York Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Section 1 of the Civil Rights Act of 1871, Rev. Stat. §1979, as amended, 42 U. S. C. §1983, provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” Footnote 2 The Supremacy Clause, Art. VI, cl. 2, provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Footnote 3 The New York Attorney General described Correction Law §24 as “further[ing] New York’s legitimate interest in minimizing the disruptive effect of prisoner damages claims against correction employees, many of which are frivolous and vexatious.” Brief in Opposition 10; see also Artega v. State, 72 N. Y. 2d 212, 219, 527 N. E. 2d 1194, 1198 (1988) (“In carrying out their duties relating to security and discipline in the difficult and sometimes highly stressful prison environment, correction employees … should not be inhibited because their conduct could be the basis of a damage claim”). Footnote 4 Although the State has waived its sovereign immunity from liability by allowing itself to be sued in the Court of Claims, a plaintiff seeking damages against the State in that court cannot use §1983 as a vehicle for redress because a State is not a “person” under §1983. See Will v. Michigan Dept. of State Police, 491 U. S. 58, 66 (1989). Footnote 5 In many respects, Correction Law §24 operates more as an immunity-from-damages provision than as a jurisdictional rule. Indeed, the original version of the statute gave correction officers qualified immunity, providing that no officer would be “liable for damages if he shall have acted in good faith, with reasonable care and upon probable cause.” N. Y. Correct. Law. §6–b (McKinney Supp. 1947). And, more recently, a state legislative proposal seeking to extend Correction Law §24’s scheme to other state employees explained that its purpose was to grant “the same immunity from civil damage actions as all other State employees who work in the prisons.” App. 85. In Howlett v. Rose, 496 U. S. 356 (1990), we considered the question whether a Florida school board could assert a state-law immunity defense in a §1983 action brought in state court when the defense would not have been available if the action had been brought in federal court. We unanimously held that the State’s decision to extend immunity “over and above [that which is] already provided in §1983 … directly violates federal law,” and explained that the “elements of, and the defenses to, a federal cause of action are defined by federal law.” Id., at 375; Owen v. Independence, 445 U. S. 622, 647, n. 30 (1980); see also R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 1122 (5th ed. 2003) (“Federal law governs the immunity in [§1983] actions, even when brought against state officials”). Thus, if Correction Law §24 were understood as offering an immunity defense, Howlett would compel the conclusion that it violates the Supremacy Clause. Footnote 6 While we have looked to a State’s “common-law tort analogues” in deciding whether a state procedural rule is neutral, see Felder v. Casey, 487 U. S. 131, 146, n. 3 (1988), we have never equated “analogous claims” with “identical claims.” Instead, we have searched for a similar claim under state law to determine whether a State has established courts of adequate and appropriate jurisdiction capable of hearing a §1983 suit. See Testa v. Katt, 330 U. S. 386, 388, 394 (1947); Martinez v. California, 444 U. S. 277, 283–284, n. 7 (1980) (“[W]here the same type of claim, if arising under state law, would be enforced in the state courts, the state courts are generally not free to refuse enforcement of the federal claim” (emphasis added)). Section 1983 damages claims against other state officials and equitable claims against correction officers are both sufficiently analogous to petitioner’s §1983 claims. Footnote 7 The dissent’s contrary view is based on its belief that “States have unfettered authority to determine whether their local courts may entertain a federal cause of action.” Post, at 8 (opinion of Thomas, J.). But this theory of the Supremacy Clause was raised and squarely rejected in Howlett. Respondents in that case “argued that a federal court has no power to compel a state court to entertain a claim over which the state court has no jurisdiction as a matter of state law.” 496 U. S., at 381; see also Brief for National Association of Counties et al. as Amici Curiae in Howlett v. Rose, O. T. 1989, No. 89–5383, pp. 11–13 (“[S]tate courts are under no obligation to disregard even-handed jurisdictional limitations that exclude both state and federal claims”). We declared that this argument had “no merit” and explained that it ignored other provisions of the Constitution, including the Full Faith and Credit Clause and the Privileges and Immunities Clause, which compel States to open their courts to causes of action over which they would normally lack jurisdiction. See 496 U. S., at 381–382; see also Hughes v. Fetter, 341 U. S. 609, 611 (1951) (interpreting the Full Faith and Credit Clause and concluding that a State cannot “escape [its] constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent”); Angel v. Bullington, 330 U. S. 183, 188 (1947) (noting that the Constitution may “fetter the freedom of a State to deny access to its courts howsoever much it may regard such withdrawal of jurisdiction ‘the adjective law of the State’, or the exercise of its right to regulate ‘the practice and procedure’ of its courts”). We saw no reason to treat the Supremacy Clause differently. Howlett, 496 U. S., at 382–383. Thus, to the extent the dissent resurrects this argument, we again reject it. Footnote 8 The dissent’s proposed solution would create a blind spot in the Supremacy Clause. If New York had decided to employ a procedural rule to burden the enforcement of federal law, the dissent would find the scheme unconstitutional. Yet simply because New York has decided to impose an even greater burden on a federal cause of action by selectively withdrawing the jurisdiction of its courts, the dissent detects no constitutional violation. Thus, in the dissent’s conception of the Supremacy Clause, a State could express its disagreement with (and even open hostility to) a federal cause of action, declare a desire to thwart its enforcement, and achieve that goal by removing the disfavored category of claims from its courts’ jurisdiction. If this view were adopted, the lesson of our precedents would be that other States with unconstitutionally burdensome procedural rules did not go far enough “to avoid the obligation to enforce federal law.” Howlett, 469 U. S., at 381. Footnote 9 A contrary conclusion would permit a State to withhold a forum for the adjudication of any federal cause of action with which it disagreed as long as the policy took the form of a jurisdictional rule. That outcome, in turn, would provide a roadmap for States wishing to circumvent our prior decisions. See id., at 383 (rejecting a similar argument that would have allowed “the State of Wisconsin [to] overrule our decision in Felder … by simply amending its notice-of-claim statute to provide that no state court would have jurisdiction of an action in which the plaintiff failed to give the required notice”). |
555.US.2008_07-513 | Officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County’s database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database. Herring was indicted on federal gun and drug possession charges and moved to suppress the evidence on the ground that his initial arrest had been illegal. Assuming that there was a Fourth Amendment violation, the District Court concluded that the exclusionary rule did not apply and denied the motion to suppress. The Eleventh Circuit affirmed, finding that the arresting officers were innocent of any wrongdoing, and that Dale County’s failure to update the records was merely negligent. The court therefore concluded that the benefit of suppression would be marginal or nonexistent and that the evidence was admissible under the good-faith rule of United States v. Leon, 468 U. S. 897. Held: When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply. Pp. 4–13. (a) The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213, 223. The rule is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free. Leon, 468 U. S., at 908–909. For example, it does not apply if police acted “in objectively reasonable reliance” on an invalid warrant. Id., at 922. In applying Leon’s good-faith rule to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding, Arizona v. Evans, 514 U. S. 1, 14–15, the Court left unresolved the issue confronted here: whether evidence should be suppressed if the police committed the error, id., at 16, n. 5. Pp. 4–7. (b) The extent to which the exclusionary rule is justified by its deterrent effect varies with the degree of law enforcement culpability. See, e.g., Leon, supra, at 911. Indeed, the abuses that gave rise to the rule featured intentional conduct that was patently unconstitutional. See, e.g., Weeks v. United States, 232 U. S.383. An error arising from nonrecurring and attenuated negligence is far removed from the core concerns that led to the rule’s adoption. Pp. 7–9. (c) To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. The pertinent analysis is objective, not an inquiry into the arresting officers’ subjective awareness. See, e.g., Leon, supra, at 922, n. 23. Pp. 9–11. (d) The conduct here was not so objectively culpable as to require exclusion. The marginal benefits that might follow from suppressing evidence obtained in these circumstances cannot justify the substantial costs of exclusion. Leon, supra, at 922. Pp. 11–13. 492 F. 3d 1212, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Souter, J., joined. | The Fourth Amendment forbids “unreasonable searches and seizures,” and this usually requires the police to have probable cause or a warrant before making an arrest. What if an officer reasonably believes there is an outstanding arrest warrant, but that belief turns out to be wrong because of a negligent bookkeeping error by another police employee? The parties here agree that the ensuing arrest is still a violation of the Fourth Amendment, but dispute whether contraband found during a search incident to that arrest must be excluded in a later prosecution. Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence. I On July 7, 2004, Investigator Mark Anderson learned that Bennie Dean Herring had driven to the Coffee County Sheriff’s Department to retrieve something from his impounded truck. Herring was no stranger to law enforcement, and Anderson asked the county’s warrant clerk, Sandy Pope, to check for any outstanding warrants for Herring’s arrest. When she found none, Anderson asked Pope to check with Sharon Morgan, her counterpart in neighboring Dale County. After checking Dale County’s computer database, Morgan replied that there was an active arrest warrant for Herring’s failure to appear on a felony charge. Pope relayed the information to Anderson and asked Morgan to fax over a copy of the warrant as confirmation. Anderson and a deputy followed Herring as he left the impound lot, pulled him over, and arrested him. A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle. App. 17–23. There had, however, been a mistake about the warrant. The Dale County sheriff’s computer records are supposed to correspond to actual arrest warrants, which the office also maintains. But when Morgan went to the files to retrieve the actual warrant to fax to Pope, Morgan was unable to find it. She called a court clerk and learned that the warrant had been recalled five months earlier. Normally when a warrant is recalled the court clerk’s office or a judge’s chambers calls Morgan, who enters the information in the sheriff’s computer database and disposes of the physical copy. For whatever reason, the information about the recall of the warrant for Herring did not appear in the database. Morgan immediately called Pope to alert her to the mixup, and Pope contacted Anderson over a secure radio. This all unfolded in 10 to 15 minutes, but Herring had already been arrested and found with the gun and drugs, just a few hundred yards from the sheriff’s office. Id., at 26, 35–42, 54–55. Herring was indicted in the District Court for the Middle District of Alabama for illegally possessing the gun and drugs, violations of 18 U. S. C. §922(g)(1) and 21 U. S. C. §844(a). He moved to suppress the evidence on the ground that his initial arrest had been illegal because the warrant had been rescinded. The Magistrate Judge recommended denying the motion because the arresting officers had acted in a good-faith belief that the warrant was still outstanding. Thus, even if there were a Fourth Amendment violation, there was “no reason to believe that application of the exclusionary rule here would deter the occurrence of any future mistakes.” App. 70. The District Court adopted the Magistrate Judge’s recommendation, 451 F. Supp. 2d 1290 (2005), and the Court of Appeals for the Eleventh Circuit affirmed, 492 F. 3d 1212 (2007). The Eleventh Circuit found that the arresting officers in Coffee County “were entirely innocent of any wrongdoing or carelessness.” id., at 1218. The court assumed that whoever failed to update the Dale County sheriff’s records was also a law enforcement official, but noted that “the conduct in question [wa]s a negligent failure to act, not a deliberate or tactical choice to act.” Ibid. Because the error was merely negligent and attenuated from the arrest, the Eleventh Circuit concluded that the benefit of suppressing the evidence “would be marginal or nonexistent,” ibid. (internal quotation marks omitted), and the evidence was therefore admissible under the good-faith rule of United States v. Leon, 468 U. S. 897 (1984). Other courts have required exclusion of evidence obtained through similar police errors, e.g., Hoay v. State, 348 Ark. 80, 86–87, 71 S. W. 3d 573, 577 (2002), so we granted Herring’s petition for certiorari to resolve the conflict, 552 U. S. ___ (2008). We now affirm the Eleventh Circuit’s judgment. II When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation. The very phrase “probable cause” confirms that the Fourth Amendment does not demand all possible precision. And whether the error can be traced to a mistake by a state actor or some other source may bear on the analysis. For purposes of deciding this case, however, we accept the parties’ assumption that there was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied. A The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” but “contains no provision expressly precluding the use of evidence obtained in violation of its commands,” Arizona v. Evans, 514 U. S. 1, 10 (1995). Nonetheless, our decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial. See, e.g., Weeks v. United States, 232 U. S. 383, 398 (1914). We have stated that this judicially created rule is “designed to safeguard Fourth Amendment rights generally through its deterrent effect.” United States v. Calandra, 414 U. S. 338, 348 (1974). In analyzing the applicability of the rule, Leon admonished that we must consider the actions of all the police officers involved. 468 U. S., at 923, n. 24 (“It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable-cause determination”). The Coffee County officers did nothing improper. Indeed, the error was noticed so quickly because Coffee County requested a faxed confirmation of the warrant. The Eleventh Circuit concluded, however, that somebody in Dale County should have updated the computer database to reflect the recall of the arrest warrant. The court also concluded that this error was negligent, but did not find it to be reckless or deliberate. 492 F. 3d, at 1218.[Footnote 1] That fact is crucial to our holding that this error is not enough by itself to require “the extreme sanction of exclusion.” Leon, supra, at 916. B 1. The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213, 223 (1983). Indeed, exclusion “has always been our last resort, not our first impulse,” Hudson v. Michigan, 547 U. S. 586, 591 (2006), and our precedents establish important principles that constrain application of the exclusionary rule. First, the exclusionary rule is not an individual right and applies only where it “ ‘result[s] in appreciable deterrence.’ ” Leon, supra, at 909 (quoting United States v. Janis, 428 U. S. 433, 454 (1976)). We have repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation. Leon, supra, at 905–906; Evans, supra, at 13–14; Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 363 (1998). Instead we have focused on the efficacy of the rule in deterring Fourth Amendment violations in the future. See Calandra, supra, at 347–355; Stone v. Powell, 428 U. S. 465, 486 (1976).[Footnote 2] In addition, the benefits of deterrence must outweigh the costs. Leon, supra, at 910. “We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.” Scott, supra, at 368. “[T]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial social costs.” Illinois v. Krull, 480 U. S. 340, 352–353 (1987) (internal quotation marks omitted). The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that “offends basic concepts of the criminal justice system.” Leon, supra, at 908. “[T]he rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.” Scott, supra, at 364–365 (internal quotation marks omitted); see also United States v. Havens, 446 U. S. 620, 626–627 (1980); United States v. Payner, 447 U. S. 727, 734 (1980). These principles are reflected in the holding of Leon: When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted “in objectively reasonable reliance” on the subsequently invalidated search warrant. 468 U. S., at 922. We (perhaps confusingly) called this objectively reasonable reliance “good faith.” Ibid., n. 23. In a companion case, Massachusetts v. Sheppard, 468 U. S. 981 (1984), we held that the exclusionary rule did not apply when a warrant was invalid because a judge forgot to make “clerical corrections” to it. Id., at 991. Shortly thereafter we extended these holdings to warrantless administrative searches performed in good-faith reliance on a statute later declared unconstitutional. Krull, supra, at 349–350. Finally, in Evans, 514 U. S. 1, we applied this good-faith rule to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding. We held that a mistake made by a judicial employee could not give rise to exclusion for three reasons: The exclusionary rule was crafted to curb police rather than judicial misconduct; court employees were unlikely to try to subvert the Fourth Amendment; and “most important, there [was] no basis for believing that application of the exclusionary rule in [those] circumstances” would have any significant effect in deterring the errors. Id., at 15. Evans left unresolved “whether the evidence should be suppressed if police personnel were responsible for the error,”[Footnote 3] an issue not argued by the State in that case, id., at 16, n. 5, but one that we now confront. 2. The extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct. As we said in Leon, “an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus” of applying the exclusionary rule. 468 U. S., at 911. Similarly, in Krull we elaborated that “evidence should be suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’ ” 480 U. S., at 348–349 (quoting United States v. Peltier, 422 U. S. 531, 542 (1975)). Anticipating the good-faith exception to the exclusionary rule, Judge Friendly wrote that “[t]he beneficent aim of the exclusionary rule to deter police misconduct can be sufficiently accomplished by a practice . . . outlawing evidence obtained by flagrant or deliberate violation of rights.” The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 953 (1965) (footnotes omitted); see also Brown v. Illinois, 422 U. S. 590, 610–611 (1975) (Powell, J., concurring in part) (“[T]he deterrent value of the exclusionary rule is most likely to be effective” when “official conduct was flagrantly abusive of Fourth Amendment rights”). Indeed, the abuses that gave rise to the exclusionary rule featured intentional conduct that was patently unconstitutional. In Weeks, 232 U. S. 383, a foundational exclusionary rule case, the officers had broken into the defendant’s home (using a key shown to them by a neighbor), confiscated incriminating papers, then returned again with a U. S. Marshal to confiscate even more. Id., at 386. Not only did they have no search warrant, which the Court held was required, but they could not have gotten one had they tried. They were so lacking in sworn and particularized information that “not even an order of court would have justified such procedure.” Id., at 393–394. Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920), on which petitioner repeatedly relies, was similar; federal officials “without a shadow of authority” went to the defendants’ office and “made a clean sweep” of every paper they could find. Id., at 390. Even the Government seemed to acknowledge that the “seizure was an outrage.” Id., at 391. Equally flagrant conduct was at issue in Mapp v. Ohio, 367 U. S. 643 (1961), which overruled Wolf v. Colorado, 338 U. S. 25 (1949), and extended the exclusionary rule to the States. Officers forced open a door to Ms. Mapp’s house, kept her lawyer from entering, brandished what the court concluded was a false warrant, then forced her into handcuffs and canvassed the house for obscenity. 367 U. S., at 644–645. See Friendly, supra, at 953, and n. 127 (“[T]he situation in Mapp” featured a “flagrant or deliberate violation of rights”). An error that arises from nonrecurring and attenuated negligence is thus far removed from the core concerns that led us to adopt the rule in the first place. And in fact since Leon, we have never applied the rule to exclude evidence obtained in violation of the Fourth Amendment, where the police conduct was no more intentional or culpable than this. 3. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.[Footnote 4] Our decision in Franks v. Delaware, 438 U. S. 154 (1978), provides an analogy. Cf. Leon, supra, at 914. In Franks, we held that police negligence in obtaining a warrant did not even rise to the level of a Fourth Amendment violation, let alone meet the more stringent test for triggering the exclusionary rule. We held that the Constitution allowed defendants, in some circumstances, “to challenge the truthfulness of factual statements made in an affidavit supporting the warrant,” even after the warrant had issued. 438 U. S., at 155–156. If those false statements were necessary to the Magistrate Judge’s probable-cause determination, the warrant would be “voided.” Ibid. But we did not find all false statements relevant: “There must be allegations of deliberate falsehood or of reckless disregard for the truth,” and “[a]llegations of negligence or innocent mistake are insufficient.” Id., at 171. Both this case and Franks concern false information provided by police. Under Franks, negligent police miscommunications in the course of acquiring a warrant do not provide a basis to rescind a warrant and render a search or arrest invalid. Here, the miscommunications occurred in a different context—after the warrant had been issued and recalled—but that fact should not require excluding the evidence obtained. The pertinent analysis of deterrence and culpability is objective, not an “inquiry into the subjective awareness of arresting officers,” Reply Brief for Petitioner 4–5. See also post, at 10, n. 7 (Ginsburg, J., dissenting). We have already held that “our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal” in light of “all of the circumstances.” Leon, 468 U. S., at 922, n. 23. These circumstances frequently include a particular officer’s knowledge and experience, but that does not make the test any more subjective than the one for probable cause, which looks to an officer’s knowledge and experience, Ornelas v. United States, 517 U. S. 690, 699–700 (1996), but not his subjective intent, Whren v. United States, 517 U. S. 806, 812–813 (1996). 4. We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion. In Leon we held that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” 468 U. S., at 922. The same is true when evidence is obtained in objectively reasonable reliance on a subsequently recalled warrant. If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation. We said as much in Leon, explaining that an officer could not “obtain a warrant on the basis of a ‘bare bones’ affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search.” Id., at 923, n. 24 (citing Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560, 568 (1971)). Petitioner’s fears that our decision will cause police departments to deliberately keep their officers ignorant, Brief for Petitioner 37–39, are thus unfounded. The dissent also adverts to the possible unreliability of a number of databases not relevant to this case. Post, at 8–9. In a case where systemic errors were demonstrated, it might be reckless for officers to rely on an unreliable warrant system. See Evans, 514 U. S., at 17 (O’Connor, J., concurring) (“Surely it would not be reasonable for the police to rely . . . on a recordkeeping system . . . that routinely leads to false arrests” (second emphasis added)); Hudson, 547 U. S., at 604 (Kennedy, J., concurring) (“If a widespread pattern of violations were shown … there would be reason for grave concern” (emphasis added)). But there is no evidence that errors in Dale County’s system are routine or widespread. Officer Anderson testified that he had never had reason to question information about a Dale County warrant, App. 27, and both Sandy Pope and Sharon Morgan testified that they could remember no similar miscommunication ever happening on their watch, id., at 33, 61–62. That is even less error than in the database at issue in Evans, where we also found reliance on the database to be objectively reasonable. 514 U. S., at 15 (similar error “every three or four years”). Because no such showings were made here, see 451 F. Supp. 2d, at 1292,[Footnote 5] the Eleventh Circuit was correct to affirm the denial of the motion to suppress. * * * Petitioner’s claim that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule, as they have been explained in our cases. In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g., Leon, 468 U. S., at 909–910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not “pay its way.” Id., at 907–908, n. 6 (internal quotation marks omitted). In such a case, the criminal should not “go free because the constable has blundered.” People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion of the Court by Cardozo, J.). The judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. Footnote 1 At an earlier point in its opinion, the Eleventh Circuit described the error as “ ‘at the very least negligent,’ ” 492 F. 3d 1212, 1217 (2007) (quoting Michigan v. Tucker, 417 U. S. 433, 447 (1974)). But in the next paragraph, it clarified that the error was “a negligent failure to act, not a deliberate or tactical choice to act,” 492 F. 3d, at 1218. The question presented treats the error as a “negligen[t]” one, see Pet. for Cert. i; Brief in Opposition (I), and both parties briefed the case on that basis. Footnote 2 Justice Ginsburg’s dissent champions what she describes as “ ‘a more majestic conception’ of . . . the exclusionary rule,” post, at 5 (quoting Arizona v. Evans, 514 U. S. 1, 18 (1995) (Stevens, J., dissenting)), which would exclude evidence even where deterrence does not justify doing so. Majestic or not, our cases reject this conception, see, e.g., United States v. Leon, 468 U. S. 897, 921, n. 22 (1984), and perhaps for this reason, her dissent relies almost exclusively on previous dissents to support its analysis. Footnote 3 We thus reject Justice Breyer’s suggestion that Evans was entirely “premised on a distinction between judicial errors and police errors,” post, at 1 (dissenting opinion). Were that the only rationale for our decision, there would have been no reason for us expressly and carefully to leave police error unresolved. In addition, to the extent Evans is viewed as presaging a particular result here, it is noteworthy that the dissent’s view in that case was that the distinction Justice Breyer regards as determinative was instead “artificial.” 514 U. S., at 29 (Ginsburg, J., dissenting). Footnote 4 We do not quarrel with Justice Ginsburg’s claim that “liability for negligence . . . creates an incentive to act with greater care,” post, at 7, and we do not suggest that the exclusion of this evidence could have no deterrent effect. But our cases require any deterrence to “be weighed against the ‘substantial social costs exacted by the exclusionary rule,’ ” Illinois v. Krull, 480 U. S. 340, 352–353 (1987) (quoting Leon, 468 U. S., at 907), and here exclusion is not worth the cost. Footnote 5 Justice Ginsburg notes that at an earlier suppression hearing Morgan testified—apparently in confusion—that there had been miscommunications “[s]everal times.” Post, at 3, n. 2 (quoting App. to Pet. for Cert. 17a). When she later realized that she had misspoken, Morgan emphatically corrected the record. App. 61–62. Noting this, the District Court found that “Morgan’s ‘several times’ statement is confusing and essentially unhelpful,” and concluded that there was “no credible evidence of routine problems with disposing of recalled warrants.” 451 F. Supp. 2d, at 1292. This factual determination, supported by the record and credited by the Court of Appeals, see 492 F. 3d, at 1219, is of course entitled to deference. |
557.US.2008_08-289 | A group of English Language-Learner (ELL) students and their parents (plaintiffs) filed a class action, alleging that Arizona, its State Board of Education, and the Superintendent of Public Instruction (defendants) were providing inadequate ELL instruction in the Nogales Unified School District (Nogales), in violation of the Equal Educational Opportunities Act of 1974 (EEOA), which requires States to take “appropriate action to overcome language barriers” in schools, 20 U. S. C. §1703(f). In 2000, the Federal District Court entered a declaratory judgment, finding an EEOA violation in Nogales because the amount of funding the State allocated for the special needs of ELL students (ELL incremental funding) was arbitrary and not related to the actual costs of ELL instruction in Nogales. The District Court subsequently extended relief statewide and, in the years following, entered a series of additional orders and injunctions. The defendants did not appeal any of the District Court’s orders. In 2006, the state legislature passed HB 2064, which, among other things, increased ELL incremental funding. The incremental funding increase required District Court approval, and the Governor asked the state attorney general to move for accelerated consideration of the bill. The State Board of Education, which joined the Governor in opposing HB 2064, the State, and the plaintiffs are respondents here. The Speaker of the State House of Representatives and the President of the State Senate (Legislators) intervened and, with the superintendent (collectively, petitioners), moved to purge the contempt order in light of HB 2064. In the alternative, they sought relief under Federal Rule of Civil Procedure 60(b)(5). The District Court denied their motion to purge the contempt order and declined to address the Rule 60(b)(5) claim. The Court of Appeals vacated and remanded for an evidentiary hearing on whether changed circumstances warranted Rule 60(b)(5). On remand, the District Court denied the Rule 60(b)(5) motion, holding that HB 2064 had not created an adequate funding system. Affirming, the Court of Appeals concluded that Nogales had not made sufficient progress in its ELL programming to warrant relief. Held: 1. The superintendent has standing. To establish Article III standing, a plaintiff must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged action; and redressable by a favorable ruling. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561. Here, the superintendent was a named defendant, the declaratory judgment held him in violation of the EEOA, and the injunction runs against him. Because the superintendent has standing, the Court need not consider whether the Legislators also have standing. Pp. 8–10. 2. The lower courts did not engage in the proper analysis under Rule 60(b)(5). Pp. 10–34. (a) Rule 60(b)(5), which permits a party to seek relief from a judgment or order if “a significant change either in factual conditions or in law” renders continued enforcement “detrimental to the public interest,” Rufo v. Inmates of Suffolk County Jail, 502 U. S. 367, 384, serves a particularly important function in “institutional reform litigation,” id., at 380. Injunctions in institutional reform cases often remain in force for many years, during which time changed circumstances may warrant reexamination of the original judgment. Injunctions of this sort may also raise sensitive federalism concerns, which are heightened when, as in these cases, a federal-court decree has the effect of dictating state or local budget priorities. Finally, institutional reform injunctions bind state and local officials to their predecessors’ policy preferences and may thereby “improperly deprive future officials of their designated legislative and executive powers.” Frew v. Hawkins, 540 U. S. 431, 441. Because of these features of institutional reform litigation, federal courts must take a “flexible approach” to Rule 60(b)(5) motions brought in this context, Rufo, supra, at 381, ensuring that “responsibility for discharging the State’s obligations is returned promptly to the State and its officials” when circumstances warrant, Frew, supra, at 442. Courts must remain attentive to the fact that “federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate [federal law] or … flow from such a violation.” Milliken v. Bradley, 433 U. S. 267, 282. Thus, a critical question in this Rule 60(b)(5) inquiry is whether the EEOA violation underlying the 2000 order has been remedied. If it has, the order’s continued enforcement is unnecessary and improper. Pp. 10–14. (b) The Court of Appeals did not engage in the Rule 60(b)(5) analysis just described. Pp. 14–23. (i) Its Rule 60(b)(5) standard was too strict. The Court of Appeals explained that situations in which changed circumstances warrant Rule 60(b)(5) relief are “likely rare,” and that, to succeed, petitioners had to show that conditions in Nogales had so changed as to “sweep away” the District Court’s incremental funding determination. The Court of Appeals also incorrectly reasoned that federalism concerns were substantially lessened here because the State and the State Board of Education wanted the injunction to remain in place. Pp. 14–15. (ii) The Court of Appeals’ inquiry was also too narrow, focusing almost exclusively on the sufficiency of ELL incremental funding. It attributed undue significance to petitioners’ failure to appeal the District Court’s 2000 order and in doing so, failed to engage in the flexible changed circumstances inquiry prescribed by Rufo. The Court of Appeals’ inquiry was, effectively, an inquiry into whether the 2000 order had been satisfied. But satisfaction of an earlier judgment is only one of Rule 60(b)(5)’s enumerated bases for relief. Petitioners could obtain relief on the independent basis that prospective enforcement of the order was “no longer equitable.” To determine the merits of this claim, the Court of Appeals should have ascertained whether the 2000 order’s ongoing enforcement was supported by an ongoing EEOA violation. Although the EEOA requires a State to take “appropriate action,” it entrusts state and local authorities with choosing how to meet this obligation. By focusing solely on ELL incremental funding, the Court of Appeals misapprehended this mandate. And by requiring petitioners to demonstrate “appropriate action” through a particular funding mechanism, it improperly substituted its own policy judgments for those of the state and local officials entrusted with the decisions. Pp. 15–18. (c) The District Court’s opinion reveals similar errors. Rather than determining whether changed circumstances warranted relief from the 2000 order, it asked only whether petitioners had satisfied that order through increased ELL incremental funding. Pp. 18–20. (d) Because the Court of Appeals and the District Court misperceived the obligation imposed by the EEOA and the breadth of the Rule 60(b)(5) inquiry, this case must be remanded for a proper examination of at least four factual and legal changes that may warrant relief. Pp. 23–34. (i) After the 2000 order was entered, Arizona moved from a “bilingual education” methodology of ELL instruction to “structured English immersion” (SEI). Research on ELL instruction and findings by the State Department of Education support the view that SEI is significantly more effective than bilingual education. A proper Rule 60(b)(5) analysis should entail further factual findings regarding whether Nogales’ implementation of SEI is a “changed circumstance” warranting relief. Pp. 23–25. (ii) Congress passed the No Child Left Behind Act of 2001 (NCLB), which represents another potentially significant “changed circumstance.” Although compliance with NCLB will not necessarily constitute “appropriate action” under the EEOA, NCLB is relevant to petitioners’ Rule 60(b)(5) motion in four principal ways: It prompted the State to make significant structural and programming changes in its ELL programming; it significantly increased federal funding for education in general and ELL programming in particular; it provided evidence of the progress and achievement of Nogales’ ELL students through its assessment and reporting requirements; and it marked a shift in federal education policy. Pp. 25–29. (iii) Nogales’ superintendent instituted significant structural and management reforms which, among other things, reduced class sizes, improved student/teacher ratios, and improved the quality of teachers. Entrenched in the incremental funding framework, the lower courts failed to recognize that these changes may have brought Nogales’ ELL programming into compliance with the EEOA even without sufficient incremental funding to satisfy the 2000 order. This was error. Because the EEOA focuses on the quality of educational programming and services to students, not the amount of money spent, there is no statutory basis for precluding petitioners from showing that Nogales has achieved EEOA-compliant ELL programming in ways other than through increased incremental funding. A proper Rule 60(b)(5) inquiry should recognize this and should ask whether, as a result of structural and managerial improvements, Nogales is now providing equal educational opportunities to ELL students. Pp. 29–32. (iv) There was an overall increase in education funding available in Nogales. The Court of Appeals foreclosed the possibility that petitioners could show that this overall increase was sufficient to support EEOA-compliant ELL programming. This was clear legal error. The EEOA’s “appropriate action” requirement does not necessarily require a particular level of funding, and to the extent that funding is relevant, the EEOA does not require that the money come from a particular source. Thus, the District Court should evaluate whether the State’s general education funding budget, in addition to local revenues, currently supports EEOA-compliant ELL programming in Nogales. Pp. 32–34. 3. On remand, if petitioners press their objection to the injunction as it extends beyond Nogales, the lower courts should consider whether the District Court erred in entering statewide relief. The record contains no factual findings or evidence that any school district other than Nogales failed to provide equal educational opportunities to ELL students, and respondents have not explained how the EEOA can justify a statewide injunction here. The state attorney general’s concern that a “Nogales only” remedy would run afoul of the Arizona Constitution’s equal-funding requirement did not provide a valid basis for a statewide federal injunction, for it raises a state-law question to be determined by state authorities. Unless the District Court concludes that Arizona is violating the EEOA statewide, it should vacate the injunction insofar as it extends beyond Nogales. Pp. 34–36. 516 F. 3d 1140, 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 a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined. Together with No. 08–294, Speaker of Arizona House of Representatives et al. v. Flores et al., also on certiorari to the same court. | These consolidated cases arise from litigation that began in Arizona in 1992 when a group of English Language-Learner (ELL) students in the Nogales Unified School District (Nogales) and their parents filed a class action, alleging that the State was violating the Equal Educational Opportunities Act of 1974 (EEOA), §204(f), 88 Stat. 515, 20 U. S. C. §1703(f), which requires a State “to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” In 2000, the District Court entered a declaratory judgment with respect to Nogales, and in 2001, the court extended the order to apply to the entire State. Over the next eight years, petitioners repeatedly sought relief from the District Court’s orders, but to no avail. We granted certiorari after the Court of Appeals for the Ninth Circuit affirmed the denial of petitioners’ motion for relief under Federal Rule of Civil Procedure 60(b)(5), and we now reverse the judgment of the Court of Appeals and remand for further proceedings. As we explain, the District Court and the Court of Appeals misunderstood both the obligation that the EEOA imposes on States and the nature of the inquiry that is required when parties such as petitioners seek relief under Rule 60(b)(5) on the ground that enforcement of a judgment is “no longer equitable.” Both of the lower courts focused excessively on the narrow question of the adequacy of the State’s incremental funding for ELL instruction instead of fairly considering the broader question whether, as a result of important changes during the intervening years, the State was fulfilling its obligation under the EEOA by other means. The question at issue in these cases is not whether Arizona must take “appropriate action” to overcome the language barriers that impede ELL students. Of course it must. But petitioners argue that Arizona is now fulfilling its statutory obligation by new means that reflect new policy insights and other changed circumstances. Rule 60(b)(5) provides the vehicle for petitioners to bring such an argument. I A In 1992, a group of students enrolled in the ELL program in Nogales and their parents (plaintiffs) filed suit in the District Court for the District of Arizona on behalf of “all minority ‘at risk’ and limited English proficient children … now or hereafter, enrolled in the Nogales Unified School District … as well as their parents and guardians.” 172 F. Supp. 2d 1225, 1226 (2000). The plaintiffs sought a declaratory judgment holding that the State of Arizona, its Board of Education, and its Superintendent of Public Instruction (defendants) were violating the EEOA by providing inadequate ELL instruction in Nogales.[Footnote 1] The relevant portion of the EEOA states: “No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by— . . . . . “(f) the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” 20 U. S. C. §1703 (emphasis added). By simply requiring a State “to take appropriate action to overcome language barriers” without specifying particular actions that a State must take, “Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing the programs and techniques they would use to meet their obligations under the EEOA.” Castaneda v. Pickard, 648 F. 2d 989, 1009 (CA5 1981). In August 1999, after seven years of pretrial proceedings and after settling various claims regarding the structure of Nogales’ ELL curriculum, the evaluation and monitoring of Nogales’ students, and the provision of tutoring and other compensatory instruction, the parties proceeded to trial. In January 2000, the District Court concluded that defendants were violating the EEOA because the amount of funding the State allocated for the special needs of ELL students (ELL incremental funding) was arbitrary and not related to the actual funding needed to cover the costs of ELL instruction in Nogales. 172 F. Supp. 2d, at 1239. Defendants did not appeal the District Court’s order. B In the years following, the District Court entered a series of additional orders and injunctions. In October 2000, the court ordered the State to “prepare a cost study to establish the proper appropriation to effectively implement” ELL programs. 160 F. Supp. 2d 1043, 1047. In June 2001, the court applied the declaratory judgment order statewide and granted injunctive relief accordingly. No. CIV. 92–596TUCACM, 2001 WL 1028369, *2 (June 25, 2001). The court took this step even though the certified class included only Nogales students and parents and even though the court did not find that any districts other than Nogales were in violation of the EEOA. The court set a deadline of January 31, 2002, for the State to provide funding that “bear[s] a rational relationship to the actual funding needed.” Ibid. In January 2005, the court gave the State 90 days to “appropriately and constitutionally fun[d] the state’s ELL programs taking into account the [Rule’s] previous orders.” No. CIV. 92–596–TUC–ACM, p. 5, App. 393. The State failed to meet this deadline, and in December 2005, the court held the State in contempt. Although the legislature was not then a party to the suit, the court ordered that “the legislature has 15 calendar days after the beginning of the 2006 legislative session to comply with the January 28, 2005 Court order. Everyday thereafter … that the State fails to comply with this Order, [fines] will be imposed until the State is in compliance.” 405 F. Supp. 2d 1112, 1120. The schedule of fines that the court imposed escalated from $500,000 to $2 million per day. Id., at 1120–1121. C The defendants did not appeal any of the District Court’s orders, and the record suggests that some state officials supported their continued enforcement. In June 2001, the state attorney general acquiesced in the statewide extension of the declaratory judgment order, a step that the State has explained by reference to the Arizona constitutional requirement of uniform statewide school funding. See Brief for Appellee State of Arizona et al. in No. 07–15603 etc. (CA9), p. 60 (citing Ariz. Const., Art. 11, §1(A)). At a hearing in February 2006, a new attorney general opposed the superintendent’s request for a stay of the December 2005 order imposing sanctions and fines, and filed a proposed distribution of the accrued fines. In March 2006, after accruing over $20 million in fines, the state legislature passed HB 2064, which was designed to implement a permanent funding solution to the problems identified by the District Court in 2000. Among other things, HB 2064 increased ELL incremental funding (with a 2-year per-student limit on such funding) and created two new funds—a structured English immersion fund and a compensatory instruction fund—to cover additional costs of ELL programming. Moneys in both newly created funds were to be offset by available federal moneys. HB 2064 also instituted several programming and structural changes. The Governor did not approve of HB 2064’s funding provisions, but she allowed the bill to become law without her signature. Because HB 2064’s incremental ELL funding increase required court approval to become effective, the Governor requested the attorney general to move for accelerated consideration by the District Court. In doing so, she explained that “ ‘[a]fter nine months of meetings and three vetoes, it is time to take this matter to a federal judge. I am convinced that getting this bill into court now is the most expeditious way ultimately to bring the state into compliance with federal law.’ ” Flores v. Arizona, 516 F. 3d 1140, 1153, n. 16 (CA9 2008). The State Board of Education joined the Governor in opposing HB 2064. Together, the State Board of Education, the State of Arizona, and the plaintiffs are respondents here. With the principal defendants in the action siding with the plaintiffs, the Speaker of the State House of Representatives and the President of the State Senate (Legislators) filed a motion to intervene as representatives of their respective legislative bodies. App. 55. In support of their motion, they stated that although the attorney general had a “legal duty” to defend HB 2064, the attorney general had shown “little enthusiasm” for advancing the legislature’s interests. Id., at 57. Among other things, the Legislators noted that the attorney general “failed to take an appeal of the judgment entered in this case in 2000 and has failed to appeal any of the injunctions and other orders issued in aid of the judgment.” Id., at 60. The District Court granted the Legislators’ motion for permissive intervention, and the Legislators and superintendent (together, petitioners here) moved to purge the District Court’s contempt order in light of HB 2064. Alternatively, they moved for relief under Federal Rule of Civil Procedure 60(b)(5) based on changed circumstances. In April 2006, the District Court denied petitioners’ motion, concluding that HB 2064 was fatally flawed in three respects. First, while HB 2064 increased ELL incremental funding by approximately $80 per student, the court held that this increase was not rationally related to effective ELL programming. Second, the court concluded that imposing a 2-year limit on funding for each ELL student was irrational. Third, according to the court, HB 2064 violated federal law by using federal funds to “supplant” rather than “supplement” state funds. No. CV–92–596–TUC–RCC, pp. 4–8 (Apr. 25, 2006), App. to Pet. for Cert. in No. 08–294, pp. 176a, 181a–182a. The court did not address petitioners’ Rule 60(b)(5) claim that changed circumstances rendered continued enforcement of the original declaratory judgment order inequitable. Petitioners appealed. In an unpublished decision, the Court of Appeals for the Ninth Circuit vacated the District Court’s April 2006 order, the sanctions, and the imposition of fines, and remanded for an evidentiary hearing to determine whether Rule 60(b)(5) relief was warranted. 204 Fed. Appx. 580 (2006). On remand, the District Court denied petitioners’ Rule 60(b)(5) motion. 480 F. Supp. 2d 1157, 1167 (Ariz. 2007). Holding that HB 2064 did not establish “a funding system that rationally relates funding available to the actual costs of all elements of ELL instruction,” id., at 1165, the court gave the State until the end of the legislative session to comply with its orders. The State failed to do so, and the District Court again held the State in contempt. No. CV 92–596 TUC–RCC (Oct. 10, 2007), App. 86. Petitioners appealed. The Court of Appeals affirmed. 516 F. 3d 1140. It acknowledged that Nogales had “made significant strides since 2000,” id., at 1156, but concluded that the progress did not warrant Rule 60(b)(5) relief. Emphasizing that Rule 60(b)(5) is not a substitute for a timely appeal, and characterizing the original declaratory judgment order as centering on the adequacy of ELL incremental funding, the Court of Appeals explained that relief would be appropriate only if petitioners had shown “either that there are no longer incremental costs associated with ELL programs in Arizona” or that Arizona had altered its funding model. Id., at 1169. The Court of Appeals concluded that petitioners had made neither showing, and it rejected petitioners’ other arguments, including the claim that Congress’ enactment of the No Child Left Behind Act of 2001 (NCLB), 115 Stat. 1702, as added, 20 U. S. C. §6842 et seq., constituted a changed legal circumstance that warranted Rule 60(b)(5) relief. We granted certiorari, 555 U. S. ___ (2009), and now reverse. II Before addressing the merits of petitioners’ Rule 60(b)(5) motion, we consider the threshold issue of standing—“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). To establish standing, a plaintiff must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged action; and redressable by a favorable ruling. Id., at 560–561. Here, as in all standing inquiries, the critical question is whether at least one petitioner has “alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Summers v. Earth Island Institute, 555 U. S. ___, ___ (2009) (slip op., at 4) (quoting Warth v. Seldin, 422 U. S. 490, 498 (1975) (internal quotation marks omitted)). We agree with the Court of Appeals that the superintendent has standing because he “is a named defendant in the case[,] the Declaratory Judgment held him to be in violation of the EEOA, and the current injunction runs against him.” 516 F. 3d, at 1164 (citation omitted). For these reasons alone, he has alleged a sufficiently “ ‘personal stake in the outcome of the controversy’ ” to support standing. Warth, supra, at 498; see also United States v. Sweeney, 914 F. 2d 1260, 1263 (CA9 1990) (rejecting as “frivolous” the argument that a party does not have “standing to object to orders specifically directing it to take or refrain from taking action”). Respondents’ only argument to the contrary is that the superintendent answers to the State Board of Education, which in turn answers to the Governor, and that the Governor is the only Arizona official who “could have resolved the conflict within the Executive Branch by directing an appeal.” Brief for Respondent Flores et al. 22. We need not consider whether respondents’ chain-of-command argument has merit because the Governor has, in fact, directed an appeal. See App. to Reply Brief for Petitioner Superintendent 1 (“I hereby direct [the State attorney general] to file a brief at the [Supreme] Court on behalf of the State of Arizona adopting and joining in the positions taken by the Superintendent of Public Instruction, the Speaker of the Arizona House of Representatives, and the President of the Arizona Senate”). Because the superintendent clearly has standing to challenge the lower courts’ decisions, we need not consider whether the Legislators also have standing to do so.[Footnote 2] See, e.g., Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 264, and n. 9 (1977) (“[W]e have at least one individual plaintiff who has demonstrated standing … . Because of the presence of this plaintiff, we need not consider whether the other individual and corporate plaintiffs have standing to maintain the suit”). Accordingly, we proceed to the merits of petitioners’ Rule 60(b)(5) motion. III A Federal Rule of Civil Procedure 60(b)(5) permits a party to obtain relief from a judgment or order if, among other things, “applying [the judgment or order] prospectively is no longer equitable.” Rule 60(b)(5) may not be used to challenge the legal conclusions on which a prior judgment or order rests, but the Rule provides a means by which a party can ask a court to modify or vacate a judgment or order if “a significant change either in factual conditions or in law” renders continued enforcement “detrimental to the public interest.” Rufo v. Inmates of Suffolk County Jail, 502 U. S. 367, 384 (1992). The party seeking relief bears the burden of establishing that changed circumstances warrant relief, id., at 383, but once a party carries this burden, a court abuses its discretion “when it refuses to modify an injunction or consent decree in light of such changes.” Agostini v. Felton, 521 U. S. 203, 215 (1997). Rule 60(b)(5) serves a particularly important function in what we have termed “institutional reform litigation.”[Footnote 3] Rufo, supra, at 380. For one thing, injunctions issued in such cases often remain in force for many years, and the passage of time frequently brings about changed circumstances—changes in the nature of the underlying problem, changes in governing law or its interpretation by the courts, and new policy insights—that warrant reexamination of the original judgment. Second, institutional reform injunctions often raise sensitive federalism concerns. Such litigation commonly involves areas of core state responsibility, such as public education. See Missouri v. Jenkins, 515 U. S. 70, 99 (1995) (“[O]ur cases recognize that local autonomy of school districts is a vital national tradition, and that a district court must strive to restore state and local authorities to the control of a school system operating in compliance with the Constitution” (citations omitted)); United States v. Lopez, 514 U. S. 549, 580 (1995) (Kennedy, J., concurring). Federalism concerns are heightened when, as in these cases, a federal court decree has the effect of dictating state or local budget priorities. States and local governments have limited funds. When a federal court orders that money be appropriated for one program, the effect is often to take funds away from other important programs. See Jenkins, supra, at 131 (Thomas, J., concurring) (“A structural reform decree eviscerates a State’s discretionary authority over its own program and budgets and forces state officials to reallocate state resources and funds”). Finally, the dynamics of institutional reform litigation differ from those of other cases. Scholars have noted that public officials sometimes consent to, or refrain from vigorously opposing, decrees that go well beyond what is required by federal law. See, e.g., McConnell, Why Hold Elections? Using Consent Decrees to Insulate Policies from Political Change, 1987 U. Chi. Legal Forum 295, 317 (noting that government officials may try to use consent decrees to “block ordinary avenues of political change” or to “sidestep political constraints”); Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L. J. 1265, 1294–1295 (“Nominal defendants [in institutional reform cases] are sometimes happy to be sued and happier still to lose”); R. Sandler & D. Schoenbrod, Democracy by Decree: What Happens When Courts Run Government 170 (2003) (“Government officials, who always operate under fiscal and political constraints, ‘frequently win by losing’ ” in institutional reform litigation). Injunctions of this sort bind state and local officials to the policy preferences of their predecessors and may thereby “improperly deprive future officials of their designated legislative and executive powers.” Frew v. Hawkins, 540 U. S. 431, 441 (2004). See also Northwest Environment Advocates v. EPA, 340 F. 3d 853, 855 (CA9 2003) (Kleinfeld, J., dissenting) (noting that consent decrees present a risk of collusion between advocacy groups and executive officials who want to bind the hands of future policymakers); Ragsdale v. Turnock, 941 F. 2d 501, 517 (CA7 1991) (Flaum, J., concurring in part and dissenting in part) (“[I]t is not uncommon for consent decrees to be entered into on terms favorable to those challenging governmental action because of rifts within the bureaucracy or between the executive and legislative branches”); Easterbrook, Justice and Contract in Consent Judgments, 1987 U. Chi. Legal Forum 19, 40 (“Tomorrow’s officeholder may conclude that today’s is wrong, and there is no reason why embedding the regulation in a consent decree should immunize it from reexamination”). States and localities “depen[d] upon successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources.” Frew, supra, at 442. Where “state and local officials… inherit overbroad or outdated consent decrees that limit their ability to respond to the priorities and concerns of their constituents,” they are constrained in their ability to fulfill their duties as democratically-elected officials. American Legislative Exchange Council, Resolution on the Federal Consent Decree Fairness Act (2006), App. to Brief for American Legislative Exchange Council et al. as Amici Curiae 1a–4a. It goes without saying that federal courts must vigilantly enforce federal law and must not hesitate in awarding necessary relief. But in recognition of the features of institutional reform decrees, we have held that courts must take a “flexible approach” to Rule 60(b)(5) motions addressing such decrees. Rufo, 502 U. S., at 381. A flexible approach allows courts to ensure that “responsibility for discharging the State’s obligations is returned promptly to the State and its officials” when the circumstances warrant. Frew, supra, at 442. In applying this flexible approach, courts must remain attentive to the fact that “federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate [federal law] or does not flow from such a violation.” Milliken v. Bradley, 433 U. S. 267, 282 (1977). “If [a federal consent decree is] not limited to reasonable and necessary implementations of federal law,” it may “improperly deprive future officials of their designated legislative and executive powers.” Frew, supra, at 441. For these reasons, a critical question in this Rule 60(b)(5) inquiry is whether the objective of the District Court’s 2000 declaratory judgment order—i.e., satisfaction of the EEOA’s “appropriate action” standard—has been achieved. See 540 U. S., at 442. If a durable remedy has been implemented, continued enforcement of the order is not only unnecessary, but improper. See Milliken, supra, at 282. We note that the EEOA itself limits court-ordered remedies to those that “are essential to correct particular denials of equal educational opportunity or equal protection of the laws.” 20 U. S. C. §1712 (emphasis added). B The Court of Appeals did not engage in the Rule 60(b)(5) analysis just described. Rather than applying a flexible standard that seeks to return control to state and local officials as soon as a violation of federal law has been remedied, the Court of Appeals used a heightened standard that paid insufficient attention to federalism concerns. And rather than inquiring broadly into whether changed conditions in Nogales provided evidence of an ELL program that complied with the EEOA, the Court of Appeals concerned itself only with determining whether increased ELL funding complied with the original declaratory judgment order. The court erred on both counts. 1 The Court of Appeals began its Rule 60(b)(5) discussion by citing the correct legal standard, see 516 F. 3d, at 1163 (noting that relief is appropriate upon a showing of “ ‘a significant change either in factual conditions or in law’ ”), but it quickly strayed. It referred to the situations in which changed circumstances warrant Rule 60(b)(5) relief as “likely rare,” id., at 1167, and explained that, to succeed on these grounds, petitioners would have to make a showing that conditions in Nogales had so changed as to “sweep away” the District Court’s incremental funding determination, id., at 1168. The Court of Appeals concluded that the District Court had not erred in determining that “the landscape was not so radically changed as to justify relief from judgment without compliance.” Id., at 1172 (emphasis added).[Footnote 4] Moreover, after recognizing that review of the denial of Rule 60(b)(5) relief should generally be “somewhat closer in the context of institutional injunctions against states ‘due to federalism concerns,’ ” the Court of Appeals incorrectly reasoned that “federalism concerns are substantially lessened here, as the state of Arizona and the state Board of Education wish the injunction to remain in place.” Id., at 1164. This statement is flatly incorrect, as even respondents acknowledge. Brief for Respondent State of Arizona et al. 20–21. Precisely because different state actors have taken contrary positions in this litigation, federalism concerns are elevated. And precisely because federalism concerns are heightened, a flexible approach to Rule 60(b)(5) relief is critical. “[W]hen the objects of the decree have been attained”—namely, when EEOA compliance has been achieved—“responsibility for discharging the State’s obligations [must be] returned promptly to the State and its officials.” Frew, 540 U. S., at 442. 2 In addition to applying a Rule 60(b)(5) standard that was too strict, the Court of Appeals framed a Rule 60(b)(5) inquiry that was too narrow—one that focused almost exclusively on the sufficiency of incremental funding. In large part, this was driven by the significance the Court of Appeals attributed to petitioners’ failure to appeal the District Court’s original order. The Court of Appeals explained that “the central idea” of that order was that without sufficient ELL incremental funds, “ELL programs would necessarily be inadequate.” 516 F. 3d, at 1167–1168. It felt bound by this conclusion, lest it allow petitioners to “reopen matters made final when the Declaratory Judgment was not appealed.” Id., at 1170. It repeated this refrain throughout its opinion, emphasizing that the “interest in finality must be given great weight,” id., at 1163, and explaining that petitioners could not now ask for relief “on grounds that could have been raised on appeal from the Declaratory Judgment and from earlier injunctive orders but were not,” id., at 1167. “If [petitioners] believed that the district court erred and should have looked at all funding sources differently in its EEOA inquiry,” the court wrote, “they should have appealed the Declaratory Judgment.” Id., at 1171. In attributing such significance to the defendants’ failure to appeal the District Court’s original order, the Court of Appeals turned the risks of institutional reform litigation into reality. By confining the scope of its analysis to that of the original order, it insulated the policies embedded in the order—specifically, its incremental funding requirement—from challenge and amendment.[Footnote 5] But those policies were supported by the very officials who could have appealed them—the state defendants—and, as a result, were never subject to true challenge. Instead of focusing on the failure to appeal, the Court of Appeals should have conducted the type of Rule 60(b)(5) inquiry prescribed in Rufo. This inquiry makes no reference to the presence or absence of a timely appeal. It takes the original judgment as a given and asks only whether “a significant change either in factual conditions or in law” renders continued enforcement of the judgment “detrimental to the public interest.” Rufo, 502 U. S., at 384. It allows a court to recognize that the longer an injunction or consent decree stays in place, the greater the risk that it will improperly interfere with a State’s democratic processes. The Court of Appeals purported to engage in a “changed circumstances” inquiry, but it asked only whether changed circumstances affected ELL funding and, more specifically, ELL incremental funding. Relief was appropriate, in the court’s view, only if petitioners “demonstrate[d] either that there [we]re no longer incremental costs associated with ELL programs in Arizona or that Arizona’s ‘base plus incremental costs’ educational funding model was so altered that focusing on ELL-specific incremental costs funding has become irrelevant and inequitable.” 516 F. 3d, at 1169. This was a Rule 60(b)(5) “changed circumstances” inquiry in name only. In reality, it was an inquiry into whether the deficiency in ELL incremental funding that the District Court identified in 2000 had been remedied. And this, effectively, was an inquiry into whether the original order had been satisfied. Satisfaction of an earlier judgment is one of the enumerated bases for Rule 60(b)(5) relief—but it is not the only basis for such relief. Rule 60(b)(5) permits relief from a judgment where “[i] the judgment has been satisfied, released or discharged; [ii] it is based on an earlier judgment that has been reversed or vacated; or [iii] applying it prospectively is no longer equitable.” (Emphasis added.) Use of the disjunctive “or” makes it clear that each of the provision’s three grounds for relief is independently sufficient and therefore that relief may be warranted even if petitioners have not “satisfied” the original order. As petitioners argue, they may obtain relief if prospective enforcement of that order “is no longer equitable.” To determine the merits of this claim, the Court of Appeals needed to ascertain whether ongoing enforcement of the original order was supported by an ongoing violation of federal law (here, the EEOA). See Milliken, 433 U. S., at 282. It failed to do so. As previously noted, the EEOA, while requiring a State to take “appropriate action to overcome language barriers,” 20 U. S. C. §1703(f), “leave[s] state and local educational authorities a substantial amount of latitude in choosing” how this obligation is met. Castaneda, 648 F. 2d, at 1009. Of course, any educational program, including the “appropriate action” mandated by the EEOA, requires funding, but funding is simply a means, not the end. By focusing so intensively on Arizona’s incremental ELL funding, the Court of Appeals misapprehended the EEOA’s mandate. And by requiring petitioners to demonstrate “appropriate action” through a particular funding mechanism, the Court of Appeals improperly substituted its own educational and budgetary policy judgments for those of the state and local officials to whom such decisions are properly entrusted. Cf. Jenkins, 515 U. S., at 131 (Thomas, J., concurring) (“Federal courts do not possess the capabilities of state and local governments in addressing difficult educational problems”). C The underlying District Court opinion reveals similar errors. In an August 2006 remand order, a different Ninth Circuit panel had instructed the District Court to hold an evidentiary hearing “regarding whether changed circumstances required modification of the original court order or otherwise had a bearing on the appropriate remedy.” 204 Fed. Appx., at 582. The Ninth Circuit panel observed that “federal courts must be sensitive to the need for modification [of permanent injunctive relief] when circumstances change.” Ibid. (internal quotation marks omitted). The District Court failed to follow these instructions. Instead of determining whether changed circumstances warranted modification of the original order, the District Court asked only whether petitioners had satisfied the original declaratory judgment order through increased incremental funding. See 480 F. Supp. 2d, at 1165 (explaining that a showing of “mere amelioration” of the specific deficiencies noted in the District Court’s original order was “inadequate” and that “compliance would require a funding system that rationally relates funding available to the actual costs of all elements of ELL instruction” (emphasis added)). The District Court stated: “It should be noted that the Court finds the same problems today that it saw last year, because HB 2064 is the same, the problems themselves are the same.[Footnote 6] Id., at 1161. The District Court thus rested its postremand decision on its preremand analysis of HB 2064. It disregarded the remand instructions to engage in a broad and flexible Rule 60(b)(5) analysis as to whether changed circumstances warranted relief. In taking this approach, the District Court abused its discretion. D The dissent defends the narrow approach of the lower courts with four principal conclusions that it draws from the record. All of these conclusions, however, are incorrect and mirror the fundamental error of the lower courts—a fixation on the issue of incremental funding and a failure to recognize the proper scope of a Rule 60(b)(5) inquiry. First, the dissent concludes that “the Rule 60(b)(5) ‘changes’ upon which the District Court focused” were not limited to changes in funding, and included “ ‘changed teaching methods’ ” and “ ‘changed administrative systems.’ ” Post, at 12. The District Court did note a range of changed circumstances, concluding that as a result of these changes, Nogales was “doing substantially better.” 480 F. Supp. 2d, at 1160. But it neither focused on these changes nor made up-to-date factual findings. To the contrary, the District Court explained that “it would be premature to make an assessment of some of these changes.” Ibid. Accordingly, of the 28 findings of fact that the court proceeded to make, the first 20 addressed funding directly and exclusively. See id., at 1161–1163. The last eight addressed funding indirectly—discussing reclassification rates because of their relevance to HB 2064’s funding restrictions for ELL and reclassified students. See id., at 1163–1165. None of the District Court’s findings of fact addressed either “ ‘changed teaching methods’ ” or “ ‘changed administrative systems.’ ” The dissent’s second conclusion is that “ ‘incremental funding’ costs … [were] the basic contested issue at the 2000 trial and the sole basis for the District Court’s finding of a statutory violation.” Post, at 12. We fail to see this conclusion’s relevance to this Rule 60(b)(5) motion, where the question is whether any change in factual or legal circumstances renders continued enforcement of the original order inequitable. As the dissent itself acknowledges, petitioners “pointed to three sets of changed circumstances [in their Rule 60(b)(5) motion] which, in their view, showed that the judgment and the related orders were no longer necessary.” Post, at 11. In addition to “increases in the amount of funding available to Arizona school districts,” these included “changes in the method of English-learning instruction,” and “changes in the administration of the Nogales school district.” Ibid. Third, the dissent concludes that “the type of issue upon which the District Court and Court of Appeals focused”—the incremental funding issue—“lies at the heart of the statutory demand for equal educational opportunity.” Post, at 13. In what we interpret to be a restatement of this point, the dissent also concludes that sufficient funding (“the ‘resource’ issue”) and the presence or absence of an EEOA violation (“the statutory subsection (f) issue”) “are one and the same.” Post, at 14 (emphasis in original). “In focusing upon the one,” the dissent asserts, “the District Court and Court of Appeals were focusing upon the other.” Ibid. Contrary to the dissent’s assertion, these two issues are decidedly not “one and the same.”[Footnote 7] Ibid. Nor is it the case, as the dissent suggests, that the EEOC targets States’ provision of resources for ELL programming.[Footnote 8] Post, at 13. What the statute forbids is a failure to take “appropriate action to overcome language barriers.” 20 U. S. C. §1703(f). Funding is merely one tool that may be employed to achieve the statutory objective. Fourth, the dissent concludes that the District Court did not order increased ELL incremental funding and did not dictate state and local budget priorities. Post, at 15. The dissent’s point—and it is a very small one—is that the District Court did not set a specific amount that the legislature was required to appropriate. The District Court did, however, hold the State in contempt and impose heavy fines because the legislature did not provide sufficient funding. These orders unquestionably imposed important restrictions on the legislature’s ability to set budget priorities. E Because the lower courts—like the dissent—misperceived both the nature of the obligation imposed by the EEOA and the breadth of the inquiry called for under Rule 60(b)(5), these cases must be remanded for a proper examination of at least four important factual and legal changes that may warrant the granting of relief from the judgment: the State’s adoption of a new ELL instructional methodology, Congress’ enactment of NCLB, structural and management reforms in Nogales, and increased overall education funding. 1 At the time of the District Court’s original declaratory judgment order, ELL instruction in Nogales was based primarily on “bilingual education,” which teaches core content areas in a student’s native language while providing English instruction in separate language classes. In November 2000, Arizona voters passed Proposition 203, which mandated statewide implementation of a “structured English immersion” (SEI) approach. See App. to Pet. for Cert. in No. 08–294, p. 369a. Proposition 203 defines this methodology as follows: “ ‘Sheltered English immersion’ or ‘structured English immersion’ means an English language acquisition process for young children in which nearly all classroom instruction is in English but with the curriculum and presentation designed for children who are learning the language… . Although teachers may use a minimal amount of the child’s native language when necessary, no subject matter shall be taught in any language other than English, and children in this program learn to read and write solely in English.” Ariz. Rev. Stat. Ann. §15–751(5) (West 2009). In HB 2064, the state legislature attended to the successful and uniform implementation of SEI in a variety of ways.[Footnote 9] It created an “Arizona English language learners task force” within the State Department of Education to “develop and adopt research based models of structured English immersion programs for use by school districts and charter schools.” §15–756.01(C). It required that all school districts and charter schools select one of the adopted SEI models, §15–756.02(A), and it created an “Office of English language acquisition services” to aid school districts in implementation of the models. §15–756.07(1). It also required the State Board of Education to institute a uniform and mandatory training program for all SEI instructors. §15–756.09. Research on ELL instruction indicates there is documented, academic support for the view that SEI is significantly more effective than bilingual education.[Footnote 10] Findings of the Arizona State Department of Education in 2004 strongly support this conclusion.[Footnote 11] In light of this, a proper analysis of petitioners’ Rule 60(b)(5) motion should include further factual findings regarding whether Nogales’ implementation of SEI methodology—completed in all of its schools by 2005—constitutes a “significantly changed circumstance” that warrants relief. 2 Congress’ enactment of NCLB represents another potentially significant “changed circumstance.” NCLB marked a dramatic shift in federal education policy. It reflects Congress’ judgment that the best way to raise the level of education nationwide is by granting state and local officials flexibility to develop and implement educational programs that address local needs, while holding them accountable for the results. NCLB implements this approach by requiring States receiving federal funds to define performance standards and to make regular assessments of progress toward the attainment of those standards. 20 U. S. C. §6311(b)(2). NCLB conditions the continued receipt of funds on demonstrations of “adequate yearly progress.” Ibid. As relevant here, Title III (the English Language Acquisition, Language Enhancement, and Academic Achievement Act) requires States to ensure that ELL students “attain English proficiency, develop high levels of academic attainment in English, and meet the same challenging State academic content and student academic achievement standards as all children are expected to meet.” §6812(1). It requires States to set annual objective achievement goals for the number of students who will annually progress toward proficiency, achieve proficiency, and make “adequate yearly progress” with respect to academic achievement, §6842(a), and it holds local schools and agencies accountable for meeting these objectives, §6842(b). Petitioners argue that through compliance with NCLB, the State has established compliance with the EEOA. They note that when a State adopts a compliance plan under NCLB—as the State of Arizona has—it must provide adequate assurances that ELL students will receive assistance “to achieve at high levels in the core academic subjects so that those children can meet the same … standards as all children are expected to meet.” §6812(2). They argue that when the Federal Department of Education approves a State’s plan—as it has with respect to Arizona’s—it offers definitive evidence that the State has taken “appropriate action to overcome language barriers” within the meaning of the EEOA. §1703(f). The Court of Appeals concluded, and we agree, that because of significant differences in the two statutory schemes, compliance with NCLB will not necessarily constitute “appropriate action” under the EEOA. 516 F. 3d, at 1172–1176. Approval of a NCLB plan does not entail substantive review of a State’s ELL programming or a determination that the programming results in equal educational opportunity for ELL students. See §6823. Moreover, NCLB contains a saving clause, which provides that “[n]othing in this part shall be construed in a manner inconsistent with any Federal law guaranteeing a civil right.” §6847. This does not mean, however, that NCLB is not relevant to petitioners’ Rule 60(b)(5) motion. To the contrary, we think it is probative in four principal ways.[Footnote 12] First, it prompted the State to institute significant structural and programming changes in its delivery of ELL education,[Footnote 13] leading the Court of Appeals to observe that “Arizona has significantly improved its ELL infrastructure.” 516 F. 3d, at 1154. These changes should not be discounted in the Rule 60(b)(5) analysis solely because they do not require or result from increased funding. Second, NCLB significantly increased federal funding for education in general and ELL programming in particular.[Footnote 14] These funds should not be disregarded just because they are not state funds. Third, through its assessment and reporting requirements, NCLB provides evidence of the progress and achievement of Nogales’ ELL students.[Footnote 15] This evidence could provide persuasive evidence of the current effectiveness of Nogales’ ELL programming.[Footnote 16] Fourth and finally, NCLB marks a shift in federal education policy. See Brief for Petitioner Speaker of the Arizona House of Representatives et al. 7–16. NCLB grants States “flexibility” to adopt ELL programs they believe are “most effective for teaching English.” §6812(9). Reflecting a growing consensus in education research that increased funding alone does not improve student achievement,[Footnote 17] NCLB expressly refrains from dictating funding levels. Instead, it focuses on the demonstrated progress of students through accountability reforms.[Footnote 18] The original declaratory judgment order, in contrast, withdraws the authority of state and local officials to fund and implement ELL programs that best suit Nogales’ needs, and measures effective programming solely in terms of adequate incremental funding. This conflict with Congress’ determination of federal policy may constitute a significantly changed circumstance, warranting relief. See Railway Employees v. Wright, 364 U. S. 642, 651 (1961) (noting that a court decree should be modified when “a change in law brings [the decree] in conflict with statutory objectives”). 3 Structural and management reforms in Nogales constitute another relevant change in circumstances. These reforms were led by Kelt Cooper, the Nogales superintendent from 2000 to 2005, who “adopted policies that ameliorated or eliminated many of the most glaring inadequacies discussed by the district court.” 516 F. 3d, at 1156. Among other things, Cooper “reduce[d] class sizes,” “significantly improv[ed] student/teacher ratios,” “improved teacher quality,” “pioneered a uniform system of textbook and curriculum planning,” and “largely eliminated what had been a severe shortage of instructional materials.” Id., at 1156–1157. The Court of Appeals recognized that by “[u]sing careful financial management and applying for ‘all funds available,’ Cooper was able to achieve his reforms with limited resources.” Id., at 1157. But the Court of Appeals missed the legal import of this observation—that these reforms might have brought Nogales’ ELL programming into compliance with the EEOA even without sufficient ELL incremental funding to satisfy the District Court’s original order. Instead, the Court of Appeals concluded that to credit Cooper’s reforms would “penaliz[e]” Nogales “for doing its best to make do, despite Arizona’s failure to comply with the terms of the judgment,” and would “absolve the state from providing adequate ELL incremental funding as required by the judgment.” Id., at 1168. The District Court similarly discounted Cooper’s achievements, acknowledging that Nogales was “doing substantially better than it was in 2000,” but concluding that because the progress resulted from management efforts rather than increased funding, its progress was “fleeting at best.” 480 F. Supp. 2d, at 1160. Entrenched in the framework of incremental funding, both courts refused to consider that Nogales could be taking “appropriate action” to address language barriers even without having satisfied the original order. This was error. The EEOA seeks to provide “equal educational opportunity” to “all children enrolled in public schools.” §1701(a). Its ultimate focus is on the quality of educational programming and services provided to students, not the amount of money spent on them. Accordingly, there is no statutory basis for precluding petitioners from showing that Nogales has achieved EEOA-compliant programming by means other than increased funding—for example, through Cooper’s structural, curricular, and accountability-based reforms. The weight of research suggests that these types of local reforms, much more than court-imposed funding mandates, lead to improved educational opportunities.[Footnote 19] Cooper even testified that, without the structural changes he imposed, “additional money” would not “have made any difference to th[e] students” in Nogales. Addendum to Reply Brief for Petitioner Speaker of the Arizona House of Representatives et al. 15. The Court of Appeals discounted Cooper’s reforms for other reasons as well. It explained that while they “did ameliorate many of the specific examples of resource shortages that the district court identified in 2000,” they did not “result in such success as to call into serious question [Nogales’] need for increased incremental funds.” 516 F. 3d, at 1169. Among other things, the Court of Appeals referred to “the persistent achievement gaps documented in [Nogales’] AIMS test data” between ELL students and native speakers, id., at 1170, but any such comparison must take into account other variables that may explain the gap. In any event, the EEOA requires “appropriate action” to remove language barriers, §1703(f), not the equalization of results between native and nonnative speakers on tests administered in English—a worthy goal, to be sure, but one that may be exceedingly difficult to achieve, especially for older ELL students. The Court of Appeals also referred to the subpar performance of Nogales’ high schools. There is no doubt that Nogales’ high schools represent an area of weakness, but the District Court made insufficient factual findings to support a conclusion that the high schools’ problems stem from a failure to take “appropriate action,” and constitute a violation of the EEOA.[Footnote 20] The EEOA’s “appropriate action” requirement grants States broad latitude to design, fund, and implement ELL programs that suit local needs and account for local conditions. A proper Rule 60(b)(5) inquiry should recognize this and should ask whether, as a result of structural and managerial improvements, Nogales is now providing equal educational opportunities to ELL students. 4 A fourth potentially important change is an overall increase in the education funding available in Nogales. The original declaratory judgment order noted five sources of funding that collectively financed education in the State: (1) the State’s “base level” funding, (2) ELL incremental funding, (3) federal grants, (4) regular district and county taxes, and (5) special voter-approved district and county taxes called “overrides.” 172 F. Supp. 2d, at 1227. All five sources have notably increased since 2000.[Footnote 21] Notwithstanding these increases, the Court of Appeals rejected petitioners’ claim that overall education funds were sufficient to support EEOA-compliant programming in Nogales. The court reasoned that diverting base-level education funds would necessarily hurt other state educational programs, and was not, therefore, an “ ‘appropriate’ step.” 516 F. 3d, at 1171. In so doing, it foreclosed the possibility that petitioners could establish changed circumstances warranting relief through an overall increase in education funding available in Nogales. This was clear legal error. As we have noted, the EEOA’s “appropriate action” requirement does not necessarily require any particular level of funding, and to the extent that funding is relevant, the EEOA certainly does not require that the money come from any particular source. In addition, the EEOA plainly does not give the federal courts the authority to judge whether a State or a school district is providing “appropriate” instruction in other subjects. That remains the province of the States and the local schools. It is unfortunate if a school, in order to fund ELL programs, must divert money from other worthwhile programs, but such decisions fall outside the scope of the EEOA. Accordingly, the analysis of petitioners’ Rule 60(b)(5) motion should evaluate whether the State’s budget for general education funding, in addition to any local revenues,[Footnote 22] is currently supporting EEOA-compliant ELL programming in Nogales. Because the lower courts engaged in an inadequate Rule 60(b)(5) analysis, and because the District Court failed to make up-to-date factual findings, the analysis of the lower courts was incomplete and inadequate with respect to all of the changed circumstances just noted. These changes are critical to a proper Rule 60(b)(5) analysis, however, as they may establish that Nogales is no longer in violation of the EEOA and, to the contrary, is taking “appropriate action” to remove language barriers in its schools. If this is the case, continued enforcement of the District Court’s original order is inequitable within the meaning of Rule 60(b)(5), and relief is warranted. IV We turn, finally, to the District Court’s entry of statewide relief.[Footnote 23] The Nogales district, which is situated along the Mexican border, is one of 239 school districts in the State of Arizona. Nogales students make up about one-half of one per cent of the entire State’s school population.[Footnote 24] The record contains no factual findings or evidence that any school district other than Nogales failed (much less continues to fail) to provide equal educational opportunities to ELL students. See App. to Pet. for Cert. in No. 08–294, pp. 177a–178a. Nor have respondents explained how the EEOA could justify a statewide injunction when the only violation claimed or proven was limited to a single district. See Jenkins, 515 U. S., at 89–90; Milliken, 433 U. S., at 280. It is not even clear that the District Court had jurisdiction to issue a statewide injunction when it is not apparent that plaintiffs—a class of Nogales students and their parents—had standing to seek such relief. The only explanation proffered for the entry of statewide relief was based on an interpretation of the Arizona Constitution. We are told that the former attorney general “affirmatively urged a statewide remedy because a ‘Nogales only’ remedy would run afoul of the Arizona Constitution’s requirement of ‘a general and uniform public school system.’ ” Brief for Respondent Flores et al. 38 (quoting Ariz. Const., Art. 11, §1(A) (some internal quotation marks omitted)). This concern did not provide a valid basis for a statewide federal injunction. If the state attorney general believed that a federal injunction requiring increased ELL spending in one district necessitated, as a matter of state law, a similar increase in every other district in the State, the attorney general could have taken the matter to the state legislature or the state courts. But the attorney general did not do so. Even if she had, it is not clear what the result would have been. It is a question of state law, to be determined by state authorities, whether the equal funding provision of the Arizona Constitution would require a statewide funding increase to match Nogales’ ELL funding, or would leave Nogales as a federally compelled exception. By failing to recognize this, and by entering a statewide injunction that intruded deeply into the State’s budgetary processes based solely on the attorney general’s interpretation of state law, the District Court obscured accountability for the drastic remedy that it entered. When it is unclear whether an onerous obligation is the work of the Federal or State Government, accountability is diminished. See New York v. United States, 505 U. S. 144, 169 (1992). Here, the District Court “improperly prevent[ed] the citizens of the State from addressing the issue [of statewide relief] through the processes provided by the State’s constitution.” Hawaii v. Office of Hawaiian Affairs, 556 U. S. ___, ___ (2009) (slip op., at 12). Assuming that petitioners, on remand, press their objection to the statewide extension of the remedy, the District Court should vacate the injunction insofar as it extends beyond Nogales unless the court concludes that Arizona is violating the EEOA on a statewide basis. There is no question that the goal of the EEOA—overcoming language barriers—is a vitally important one, and our decision will not in any way undermine efforts to achieve that goal. If petitioners are ultimately granted relief from the judgment, it will be because they have shown that the Nogales School District is doing exactly what this statute requires—taking “appropriate action” to teach English to students who grew up speaking another language. * * * We reverse the judgment of the Court of Appeals and remand the cases for the District Court to determine whether, in accordance with the standards set out in this opinion, petitioners should be granted relief from the judgment. It is so ordered. Footnote 1 We have previously held that Congress may validly abrogate the States’ sovereign immunity only by doing so (1) unequivocally and (2) pursuant to certain valid grants of constitutional authority. See, e.g., Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73 (2000). With respect to the second requirement, we have held that statutes enacted pursuant to §5 of the Fourteenth Amendment must provide a remedy that is “congruent and proportional” to the injury that Congress intended to address. See City of Boerne v. Flores, 521 U. S. 507, 520 (1997). Prior to City of Boerne, the Court of Appeals for the Ninth Circuit held that the EEOA, which was enacted pursuant to §5 of the Fourteenth Amendment, see 20 U. S. C. §§1702(a)(1), (b), validly abrogates the States’ sovereign immunity. See Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 714 F. 2d 946, 950–951 (1983); see also Flores v. Arizona, 516 F. 3d, 1140, 1146, n. 2 (CA9 2008) (relying on Los Angeles NAACP). That issue is not before us in these cases. Footnote 2 We do not agree with the conclusion of the Court of Appeals that “the Superintendent’s standing is limited” to seeking vacatur of the District Court’s orders “only as they run against him.” 516 F. 3d, at 1165. Had the superintendent sought relief based on satisfaction of the judgment, the Court of Appeals’ conclusion might have been correct. But as discussed infra, at 15–16, petitioners’ Rule 60(b)(5) claim is not based on satisfaction of the judgment. Their claim is that continued enforcement of the District Court’s orders would be inequitable. This claim implicates the orders in their entirety, and not solely as they run against the superintendent. Footnote 3 The dissent is quite wrong in contending that these are not institutional reform cases because they involve a statutory, rather than a constitutional claim, and because the orders of the District Court do not micromanage the day-to-day operation of the schools. Post, at 26 (opinion of Breyer, J.). For nearly a decade, the orders of a federal district court have substantially restricted the ability of the State of Arizona to make basic decisions regarding educational policy, appropriations, and budget priorities. The record strongly suggests that some state officials have welcomed the involvement of the federal court as a means of achieving appropriations objectives that could not be achieved through the ordinary democratic process. See supra, at 5–6. Because of these features, these cases implicate all of the unique features and risks of institutional reform litigation. Footnote 4 The dissent conveniently dismisses the Court of Appeals’ statements by characterizing any error that exists as “one of tone, not of law,” and by characterizing our discussion as reading them out of context. Post, at 40–41. But we do read these statements in context—in the context of the Court of Appeals’ overall treatment of petitioners’ Rule 60(b)(5) arguments—and it is apparent that they accurately reflect the Court of Appeals’ excessively narrow understanding of the role of Rule 60(b)(5). Footnote 5 This does not mean, as the dissent misleadingly suggests, see post, at 22, that we are faulting the Court of Appeals for declining to decide whether the District Court’s original order was correct in the first place. On the contrary, as we state explicitly in the paragraph following this statement, our criticism is that the Court of Appeals did not engage in the changed-circumstances inquiry prescribed by Rufo v. Inmates of Suffolk County Jail, 502 U. S.em>. 367 (1992). By focusing excessively on the issue of incremental funding, the Court of Appeals was not true to the Rufo standard. Footnote 6 In addition to concluding that the law’s increase in incremental funding was insufficient and that 2-year cutoff was irrational, both the District Court and the Court of Appeals held that HB 2064’s funding mechanism violates NCLB, which provides in relevant part: “A State shall not take into consideration payments under this chapter … in determining the eligibility of any local educational agency in that State for State aid, or the amount of State aid, with respect to free public education of children.” 20 U. S. C. §7902. See 480 F. Supp. 2d, at 1166 (HB 2064’s funding mechanism is “absolutely forbidden” by §7902); 516 F. 3d, at 1178 (“HB 2064 … violates [§7902] on its face”). Whether or not HB 2064 violates §7902, see Brief for United States as Amicus Curiae 31–32, and n. 8 (suggesting it does), neither court below was empowered to decide the issue. As the Court of Appeals itself recognized, NCLB does not provide a private right of action. See 516 F. 3d, at 1175. “Without [statutory intent], a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.” Alexander v. Sandoval, 532 U. S. 275, 286–287 (2001). Thus, NCLB is enforceable only by the agency charged with administering it. See id., at 289–290; see also App. to Brief for Respondent State of Arizona et al. 1–4 (letter from U. S. Department of Education to petitioner superintendent concerning the legality vel non of HB 2064). Footnote 7 The extent to which the dissent repeats the errors of the courts below is evident in its statement that “[t]he question here is whether the State has shown that its new funding program amounts to a ‘change’ that satisfies subsection (f)’s requirement.” Post, at 40 (emphasis added). The proper inquiry is not limited to the issue of funding. Rather, it encompasses the question whether the State has shown any factual or legal changes that establish compliance with the EEOA. Footnote 8 The dissent cites two sources for this proposition. The first—Castaneda v. Pickard, 648 F. 2d 989 (CA5 1981)—sets out a three-part test for “appropriate action.” Under that test, a State must (1) formulate a sound English language instruction educational plan, (2) implement that plan, and (3) achieve adequate results. See id., at 1009–1010. Whether or not this test provides much concrete guidance regarding the meaning of “appropriate action,” the test does not focus on incremental funding or on the provision of resources more generally. The second source cited by the dissent—curiously—is a speech given by President Nixon in which he urged prompt action by Congress on legislation imposing a moratorium on new busing orders and on the Equal Educational Opportunities Act of 1972. See post, at 13 (citing Address to the Nation on Equal Educational Opportunity and Busing, 8 Weekly Comp. of Pres. Doc. 590, 591 (1972)). In the speech, President Nixon said that schools in poor neighborhoods should receive the “financial support … that we know can make all the difference.” Id., at 593. It is likely that this statement had nothing to do with the interpretation of EEOA’s “appropriate action” requirement and instead referred to his proposal to “direc[t] over $212 billion in the next year mainly towards improving the education of children from poor families.” Id., at 591. But in any event, this general statement, made in a presidential speech two years prior to the enactment of the EEOA, surely sheds little light on the proper interpretation of the statute. Footnote 9 By focusing on the adequacy of HB 2064’s funding provisions, the courts below neglected to address adequately the potential relevance of these programming provisions, which became effective immediately upon enactment of the law. Footnote 10 See Brief for American Unity Legal Defense Fund et al. as Amici Curiae 10–12 (citing sources, including New York City Board of Education, Educational Progress of Students in Bilingual and ESL Programs: a Longitudinal Study, 1990–1994 (1994); K. Torrance, Immersion Not Submersion: Lessons from Three California Districts’ Switch From Bilingual Education to Structured Immersion 4 (2006)). Footnote 11 See Ariz. Dept. of Ed., The Effects of Bilingual Education Programs and Structured English Immersion Programs on Student Achievement: A Large-Scale Comparison 3 (Draft July 2004) (“In the general statewide comparison of bilingual and SEI programs [in 2002–2003], those students in SEI programs significantly outperformed bilingual students in 24 out of 24 comparisons … . Though students in SEI and bilingual programs are no more than three months apart in the primary grades, bilingual students are more than a year behind their SEI counterparts in seventh and eighth grade”). Footnote 12 Although the dissent contends that the sole argument raised below regarding NCLB was that compliance with that Act necessarily constituted compliance with the EEOA, the Court of Appeals recognized that NCLB is a relevant factor that should be considered under Rule 60(b)(5). It acknowledged that compliance with NCLB is at least “somewhat probative” of compliance with the EEOA. 516 F. 3d, at 1175, n. 46. The United States, in its brief as amicus curiae supporting respondents, similarly observed that, “[e]ven though Title III participation is not a complete defense under the EEOA, whether a State is reaching its own goals under Title III may be relevant in an EEOA suit.” Brief for United States as Amicus Curiae 24. And the District Court noted that, “[b]y increasing the standards of accountability, [NCLB] has to some extent significantly changed State educators approach to educating students in Arizona.” 480 F. Supp. 2d, at 1160–1161. Footnote 13 Among other things, the State Department of Education formulated a compliance plan, approved by the U. S. Department of Education. The State Board of Education promulgated statewide ELL proficiency standards, adopted uniform assessment standards, and initiated programs for monitoring school districts and training structured English immersion teachers. See 516 F. 3d, at 1154; see also Reply Brief for Petitioner Superintendent 29–31. Footnote 14 See Brief for Petitioner Superintendent 22, n. 13 (“At [Nogales], Title I monies increased from $1,644,029.00 in 2000 to $3,074,587.00 in 2006, Title II monies from $216,000.00 in 2000 to $466,996.00 in 2006, and Title III monies, which did not exist in 2000, increased from $261,818.00 in 2003 to $322,900.00 in 2006”). Footnote 15 See, e.g., App. to Pet. for Cert. in No. 08–289, pp. 310–311 (2005–2006 testing data for ELL students, reclassified ELL students, and non-ELL students on statewide achievement tests); id., at 312 (2005–2006 data regarding Nogales’ achievement of the State’s annual measurable accountability objectives for ELL students). Footnote 16 The Court of Appeals interpreted the testing data in the record to weigh against a finding of effective programming in Nogales. See 516 F. 3d, at 1157 (noting that “[t]he limits of [Nogales’] progress . . . are apparent in the AIMS test results and reclassification test results”); id., at 1169–1170 (citing “the persistent achievement gaps documented in [Nogales’] AIMS test data” between ELL students and native speakers). We do not think the District Court made sufficient factual findings to support its conclusions about the effectiveness of Nogales’ ELL programming, and we question the Court of Appeals’ interpretation of the data for three reasons. First, as the Court of Appeals recognized, the absence of longitudinal data in the record precludes useful comparisons. See id., at 1155. Second, the AIMS tests—the statewide achievement tests on which the Court of Appeals primarily relied and to which the dissent cites in Appendix A of its opinion—are administered in English. It is inevitable that ELL students (who, by definition, are not yet proficient in English) will underperform as compared to native speakers. Third, the negative data that the Court of Appeals highlights is balanced by positive data. See, e.g., App. 97 (reporting that for the 2005–2006 school year, on average, reclassified students did as well as, if not better than, native English speakers on the AIMS tests). Footnote 17 See, e.g., Hanushek, The Failure of Input-Based Schooling Policies, 113 Economic J. F64, F69 (2003) (reviewing U. S. data regarding “input policies” and concluding that although such policies “have been vigorously pursued over a long period of time,” there is “no evidence that the added resources have improved student performance”); A. LeFevre, American Legislative Exchange Council, Report Card on American Education: A State-by-State Analysis 132–133 (15th ed. 2008) (concluding that spending levels alone do not explain differences in student achievement); G. Burtless, Introduction and Summary, in Does Money Matter? The Effect of School Resources on Student Achievement and Adult Success 1, 5 (1996) (noting that “[i]ncreased spending on school inputs has not led to notable gains in school performance”). Footnote 18 Education literature overwhelmingly supports reliance on accountability-based reforms as opposed to pure increases in spending. See, e.g., Hanushek & Raymond, Does School Accountability Lead to Improved Student Performance? 24 J. Pol’y Analysis & Mgmt. 297, 298 (2005) (concluding that “the introduction of accountability systems into a state tends to lead to larger achievement growth than would have occurred without accountability”); U. S. Chamber of Commerce, Leaders and Laggards: A State-by-State Report Card on Educational Effectiveness 6, 7–10 (2007) (discussing various factors other than inputs—such as a focus on academic standards and accountability—that have a significant impact on student achievement); S. Fuhrman, Introduction, in Redesigning Accountability Systems for Education 1, 3–9 (S. Fuhrman & R. Elmore eds. 2004); S. Hanushek et al., Making Schools Work: Improving Performance and Controlling Costs 151–176 (1994). Footnote 19 See, e.g., M. Springer & J. Guthrie, Politicization of the School Finance Legal Process, in School Money Trials 102, 121 (W. West & P. Peterson eds. 2007); E. Hanushek & A. Lindseth, Schoolhouses, Courthouses, and Statehouses: Solving the Funding-Achievement Puzzle in America’s Public Schools 146 (2009). Footnote 20 There are many possible causes for the performance of students in Nogales’ high school ELL programs. These include the difficulty of teaching English to older students (many of whom, presumably, were not in English-speaking schools as younger students) and problems, such as drug use and the prevalence of gangs. See Reply Brief for Petitioner Speaker of the Arizona House of Representatives et al. 14–15; Reply Brief for Petitioner Superintendent 16–17; App. 116–118. We note that no court has made particularized findings as to the effectiveness of ELL programming offered at Nogales’ high schools. Footnote 21 The Court of Appeals reported, and it is not disputed, that “[o]n an inflation-adjusted statewide basis, including all sources of funding, support for education has increased from $3,139 per pupil in 2000 to an estimated $3,570 per pupil in 2006. Adding in all county and local sources, funding has gone from $5,677 per pupil in 2000 to an estimated $6,412 per pupil in 2006. Finally, federal funding has increased. In 2000, the federal government provided an additional $526 per pupil; in 2006, it provided an estimated $953.” 516 F. 3d, at 1155. Footnote 22 Each year since 2000, Nogales voters have passed an override. Revenues from Nogales’ override have increased from $895,891 in 2001 to $1,674,407 in 2007. App. to Pet. for Cert. in No. 08–294, p. 431a. Footnote 23 The dissent contends that this issue was not raised below, but what is important for present purposes is that, for the reasons explained in the previous parts of this opinion, these cases must be remanded to the District Court for a proper Rule 60(b)(5) analysis. Petitioners made it clear at oral argument that they wish to argue that the extension of the remedy to districts other than Nogales should be vacated. See Tr. of Oral Arg. 63 (“Here the EEOA has been transmogrified to apply statewide. That has not been done before. It should not have been done in the first instance but certainly in light of the changed circumstances”); see also id., at 17–18, 21, 26. Accordingly, if petitioners raise that argument on remand, the District Court must consider whether there is any legal or factual basis for denying that relief. Footnote 24 See Ariz. Dept. of Ed., Research and Evaluation Section, 2008–2009 October Enrollment by School, District and Grade 1, 17, http://www.ade.state. az.us /researchpolicy /AZEnroll/2008-2009/Octenroll2009schoolbygrade.pdf (as visited June 18, 2009, and available in Clerk of Court’s case file). |
555.US.2008_07-6984 | After petitioner’s state conviction for burglary became final on October 11, 1996, the state appellate court held in state habeas proceedings that petitioner had been denied his right to appeal and granted him the right to file an out-of-time appeal. He filed the appeal, his conviction was affirmed, and his time for seeking certiorari in this Court expired on January 6, 2004. Petitioner filed a second state habeas application on December 6, 2004, which was denied 355 days later, on June 29, 2005. He then filed a federal habeas petition on July 19, 2005, relying on 28 U. S. C. §2244(d)(1)(A) to establish its timeliness. Section 2244(d)(1)(A) provides that the one-year limitations period for seeking review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) begins on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Petitioner argued that his judgment became final on January 6, 2004, when time expired for seeking certiorari review of the decision in his out-of-time appeal, and that his July 19, 2005, petition was timely because the calculation of AEDPA’s 1-year limitation period excludes the 355 days “during which [his] properly filed application for State post-conviction … review … [was] pending,” §2244(d)(2). The District Court disagreed, ruling that the proper start date for calculating AEDPA’s 1-year limitations period under §2244(d)(1)(A) was October 11, 1996, when petitioner’s conviction first became final. The District Court dismissed the federal habeas petition as time barred. The Fifth Circuit denied petitioner’s request for a certificate of appealability. Held: Where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not “final” for purposes of §2244(d)(1)(A) until the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking certiorari review of that appeal. This Court must enforce plain statutory language according to its terms. See, e.g., Lamie v. United States Trustee, 540 U. S. 526, 534. Under §2244(d)(1)(A)’s plain language, once the Texas Court of Criminal Appeals reopened direct review of petitioner’s conviction on September 25, 2002, the conviction was no longer final for §2244(d)(1)(A) purposes. Rather, the order granting an out-of-time appeal restored the pendency of the direct appeal, and petitioner’s conviction was again capable of modification through direct appeal to the state courts and to this Court on certiorari review. Therefore, it was not until January 6, 2004, when time for seeking certiorari review of the decision in the out-of-time appeal expired, that petitioner’s conviction became “final” through “the conclusion of direct review or the expiration of the time for seeking such review” under §2244(d)(1)(A). The Court rejects respondent’s argument that using the later date created by the state court’s decision to reopen direct review, thus resetting AEDPA’s 1-year limitations period, undermines the policy of finality that Congress established in §2244(d)(1). See Carey v. Saffold, 536 U. S. 214, 220. Pp. 5–8. Reversed and remanded. Thomas, J., delivered the opinion for a unanimous Court. | The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year time limitation for a state prisoner to file a federal habeas corpus petition. That year runs from the latest of four specified dates. 28 U. S. C. §2244(d)(1). This case involves the date provided by §2244(d)(1)(A), which is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Petitioner contends that “the date on which the judgment became final” can be postponed by a state court’s decision during collateral review to grant a defendant the right to file an out-of-time direct appeal. The District Court disagreed, holding instead that the date could not be moved to reflect the out-of-time appeal, and that petitioner’s federal habeas petition was untimely for that reason. The United States Court of Appeals for the Fifth Circuit denied a certificate of appealability. See §2253(c). We now reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. I After petitioner was sentenced for burglary in 1995, his attorney filed an appellate brief with the Texas Court of Appeals pursuant to Anders v. California, 386 U. S. 738 (1967), explaining that he was unable to identify any nonfrivolous ground on which to base an appeal.[Footnote 1] He left a copy of the brief and a letter (advising petitioner of his right to file a pro se brief as set forth in Anders, id., at 744) at the county jail where he believed petitioner to be. Petitioner, however, had been transferred to a state facility and did not receive the delivery. The Texas Court of Appeals dismissed the appeal on September 11, 1996, and served petitioner with notice of the dismissal at the county-jail address that, again, was the wrong address. Petitioner eventually learned that his appeal had been dismissed. He filed an application in state court for a writ of habeas corpus pursuant to Tex. Code Crim. Proc. Ann., Art. 11.07 (Vernon 1977), arguing that he was denied his right to a meaningful appeal when he was denied the opportunity to file a pro se brief. The Texas Court of Criminal Appeals agreed and, on September 25, 2002, granted petitioner the right to file an out-of-time appeal: “[Petitioner] is entitled to an out-of-time appeal in cause number CR–91–0528–B in the 119th Judicial District Court of Tom Green County. [Petitioner] is ordered returned to that point in time at which he may give written notice of appeal so that he may then, with the aid of counsel, obtain a meaningful appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the sentence had been imposed on the date that the mandate of this Court issues.” Ex parte Jimenez, No. 74,433 (per curiam), App. 26, 27. Petitioner thereafter filed the out-of-time appeal. His conviction was affirmed. The Texas Court of Criminal Appeals denied discretionary review on October 8, 2003. Time for seeking certiorari review of that decision with this Court expired on January 6, 2004. On December 6, 2004, petitioner filed a second application for a writ of habeas corpus in state court; it was denied on June 29, 2005. Petitioner then filed a federal petition for a writ of habeas corpus on July 19, 2005. To establish the timeliness of his petition, he relied on 28 U. S. C. §2244(d)(1)(A), which provides “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” as the trigger for AEDPA’s 1-year limitations period. Petitioner argued that his judgment thus became final on January 6, 2004,[Footnote 2] when time expired for seeking certiorari review of the decision in his out-of-time appeal. Until that date, petitioner argued, direct review of his state-court conviction was not complete. With January 6, 2004, as the start date, petitioner contended that his July 19, 2005, petition was timely because the statute excludes from the 1-year limitations period “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” §2244(d)(2). Petitioner had a state habeas application pending from December 6, 2004, through June 29, 2005, so less than one year of included time—specifically, 355 days—passed between January 6, 2004, and July 19, 2005. The District Court disagreed and dismissed the federal habeas petition as time barred. In the District Court’s view, the proper start date for AEDPA’s 1-year limitations period was October 11, 1996, when time for seeking discretionary review of the decision in petitioner’s first direct appeal expired. The District Court concluded that it could not take into account the Texas court’s later decision reopening petitioner’s direct appeal because Circuit precedent established that “ ‘AEDPA provides for only a linear limitations period, one that starts and ends on specific dates, with only the possibility that tolling will expand the period in between.’ ” Order, Civ. Action No. 6:05–CV–05–C (ND Tex., Oct. 23, 2006), App. 75, 90 (quoting Salinas v. Dretke, 354 F. 3d 425, 429 (CA5 2004)). Therefore, the District Court reasoned, the limitations period began on October 11, 1996, and ended on October 11, 1997, because petitioner had not sought any state or federal collateral review by that date. The Court of Appeals denied petitioner’s request for a certificate of appealability, finding that he had “failed to demonstrate that reasonable jurists would debate the correctness of the district court’s conclusion that the §2254 petition is time-barred.” Order, No. 06–11240, (May 25, 2007), App. 124, 125. We granted certiorari, 552 U. S. ___ (2008), and now reverse and remand for further proceedings.[Footnote 3] II As with any question of statutory interpretation, our analysis begins with the plain language of the statute. Lamie v. United States Trustee, 540 U. S. 526, 534 (2004). It is well established that, when the statutory language is plain, we must enforce it according to its terms. See, e.g., Dodd v. United States, 545 U. S. 353, 359 (2005); Lamie, supra, at 534; Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1, 6 (2000); Caminetti v. United States, 242 U. S. 470, 485 (1917). The parties agree that the statutory provision that determines the timeliness of petitioner’s habeas petition is 28 U. S. C. §2244(d)(1)(A). That subsection defines the starting date for purposes of the 1-year AEDPA limitations period as “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” The only disputed question before us is whether the date on which direct review became “final” under the statute is October 11, 1996, when petitioner’s conviction initially became final, or January 6, 2004, when the out-of-time appeal granted by the Texas Court of Criminal Appeals became final. We agree with petitioner that, under the plain meaning of the statutory text, the latter date controls. Finality is a concept that has been “variously defined; like many legal terms, its precise meaning depends on context.” Clay v. United States, 537 U. S. 522, 527 (2003). But here, the finality of a state-court judgment is expressly defined by statute as “the conclusion of direct review or the expiration of the time for seeking such review.” §2244(d)(1)(A). With respect to postconviction relief for federal prisoners, this Court has held that the conclusion of direct review occurs when “this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari.” Id., at 527, 528–532 (interpreting §2255, ¶6(1)). We have further held that if the federal prisoner chooses not to seek direct review in this Court, then the conviction becomes final when “the time for filing a certiorari petition expires.” Id., at 527. In construing the similar language of §2244(d)(1)(A), we see no reason to depart from this settled understanding, which comports with the most natural reading of the statutory text. See Lawrence v. Florida, 549 U. S. 327, 332–335 (2007) (citing Clay, supra, at 528, n. 3). As a result, direct review cannot conclude for purposes of §2244(d)(1)(A) until the “availability of direct appeal to the state courts,” Caspari v. Bohlen, 510 U. S. 383, 390 (1994), and to this Court, Lawrence, supra, at 332–333, has been exhausted. Until that time, the “process of direct review” has not “com[e] to an end” and “a presumption of finality and legality” cannot yet have “attache[d] to the conviction and sentence,” Barefoot v. Estelle, 463 U. S. 880, 887 (1983). Under the statutory definition, therefore, once the Texas Court of Criminal Appeals reopened direct review of petitioner’s conviction on September 25, 2002,[Footnote 4] petitioner’s conviction was no longer final for purposes of §2244(d)(1)(A). Rather, the order “granting an out-of-time appeal restore[d] the pendency of the direct appeal,” Ex parte Torres, 943 S. W. 2d 469, 472 (Tex. Crim. App. 1997), and petitioner’s conviction was again capable of modification through direct appeal to the state courts and to this Court on certiorari review. Therefore, it was not until January 6, 2004, when time for seeking certiorari review in this Court expired, that petitioner’s conviction became “final” through “the conclusion of direct review or the expiration of the time for seeking such review” under §2244(d)(1)(A). Respondent objects, observing that the Court has previously acknowledged Congress’ intent “to advance the finality of criminal convictions” with the “tight time line” of §2244(d)(1)(A), Mayle v. Felix, 545 U. S. 644, 662 (2005), which “pinpoint[s]” a uniform federal date of finality that does not “vary from State to State,” Clay, supra, at 530, 531. In respondent’s view, permitting a state court to reopen direct review, and thus reset AEDPA’s 1-year limitations period, undermines the policy of finality that Congress established in §2244(d)(1). But it is the plain language of §2244(d)(1) that pinpoints the uniform date of finality set by Congress. And that language points to the conclusion of direct appellate proceedings in state court. The statute thus carries out “AEDPA’s goal of promoting ‘comity, finality, and federalism’ by giving state courts ‘the first opportunity to review [the] claim,’ and to ‘correct’ any ‘constitutional violation in the first instance.’ ” Carey v. Saffold, 536 U. S. 214, 220 (2002) (quoting Williams v. Taylor, 529 U. S. 420, 436 (2000); O’Sullivan v. Boerckel, 526 U. S. 838, 844–845 (1999); citation omitted). The statute requires a federal court, presented with an individual’s first petition for habeas relief, to make use of the date on which the entirety of the state direct appellate review process was completed. Here, that date was January 6, 2004. * * * Our decision today is a narrow one. We hold that, where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet “final” for purposes of §2244(d)(1)(A). In such a case, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” must reflect the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that appeal. Because the Court of Appeals denied a certificate of appealability based on a contrary reading of the statute, we reverse the judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Petitioner was indicted in August 1991 for felony burglary of a habitation, in violation of Tex. Penal Code Ann. §30.02 (Vernon 1989), enhanced by a prior felony conviction for aggravated assault with a deadly weapon under Tex. Penal Code Ann. §12.42(c) (Vernon 1974). He entered a plea agreement in which he agreed to plead guilty to the burglary and true to the enhancement in exchange for an order of deferred adjudication. In November 1991, the trial court deferred adjudication of the burglary conviction and ordered that petitioner serve five years of deferred-adjudication probation. In March 1995, the State moved to revoke petitioner’s probation based on four alleged violations of the conditions of his probation. At a November 1995 hearing, petitioner admitted to two of the violations. The court then heard testimony with respect to the other two violations and found that petitioner had committed those violations as well. The court revoked petitioner’s deferred-adjudication probation, adjudicated him guilty of the enhanced burglary, and sentenced him to a 43-year term of imprisonment. Footnote 2 In the District Court, petitioner contended that this date was January 8, 2004, but petitioner’s time for seeking certiorari review actually expired two days earlier. Footnote 3 We do not decide whether petitioner is entitled to a certificate of appealability on remand because we are presented solely with the Court of Appeals’ decision on the timeliness of the petition under 28 U. S. C. §2244(d). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim,” as here, a certificate of appealability should issue only when the prisoner shows both “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U. S. 473, 484 (2000) (emphasis added). We make no judgment regarding the merits of petitioner’s federal constitutional claims. Footnote 4 We do not here decide whether petitioner could have sought timely federal habeas relief between October 11, 1997, when the 1-year limitations period initially expired, and September 25, 2002, when the state court ordered that his direct review be reopened. Were such a petition timely, though, it would not be through application of §2244(d)(1)(A) because we have previously held that the possibility that a state court may reopen direct review “does not render convictions and sentences that are no longer subject to direct review nonfinal,” Beard v. Banks, 542 U. S. 406, 412 (2004). We do not depart from that rule here; we merely hold that, where a state court has in fact reopened direct review, the conviction is rendered nonfinal for purposes of §2244(d)(1)(A) during the pendency of the reopened appeal. |
556.US.2008_07-1356 | Respondent Donnie Ray Ventris and Rhonda Theel were charged with murder and other crimes. Prior to trial, an informant planted in Ventris’s cell heard him admit to shooting and robbing the victim, but Ventris testified at trial that Theel committed the crimes. When the State sought to call the informant to testify to his contradictory statement, Ventris objected. The State conceded that Ventris’s Sixth Amendment right to counsel had likely been violated, but argued that the statement was admissible for impeachment purposes. The trial court allowed the testimony. The jury convicted Ventris of aggravated burglary and aggravated robbery. Reversing, the Kansas Supreme Court held that the informant’s statements were not admissible for any reason, including impeachment. Held: Ventris’s statement to the informant, concededly elicited in violation of the Sixth Amendment, was admissible to impeach his inconsistent testimony at trial. Pp. 3–7. (a) Whether a confession that was not admissible in the prosecution’s case in chief nonetheless can be admitted for impeachment purposes depends on the nature of the constitutional guarantee violated. The Fifth Amendment guarantee against compelled self-incrimination is violated by introducing a coerced confession at trial, whether by way of impeachment or otherwise. New Jersey v. Portash, 440 U. S. 450, 458–459. But for the Fourth Amendment guarantee against unreasonable searches or seizures, where exclusion comes by way of deterrent sanction rather than to avoid violation of the substantive guarantee, admissibility is determined by an exclusionary-rule balancing test. See Walder v. United States, 347 U. S. 62, 65. The same is true for violations of the Fifth and Sixth Amendment prophylactic rules forbidding certain pretrial police conduct. See, e.g., Harris v. New York, 401 U. S. 222, 225–226. The core of the Sixth Amendment right to counsel is a trial right, but the right covers pretrial interrogations to ensure that police manipulation does not deprive the defendant of “ ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Massiah v. United States, 377 U. S. 201, 204. This right to be free of uncounseled interrogation is infringed at the time of the interrogation, not when it is admitted into evidence. It is that deprivation that demands the remedy of exclusion from the prosecution’s case in chief. Pp. 3–6. (b) The interests safeguarded by excluding tainted evidence for impeachment purposes are “outweighed by the need to prevent perjury and to assure the integrity of the trial process.” Stone v. Powell, 428 U. S. 465, 488. Once the defendant testifies inconsistently, denying the prosecution “the traditional truth-testing devices of the adversary process,” Harris, supra, at 225, is a high price to pay for vindicating the right to counsel at the prior stage. On the other hand, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence for officers, who have an incentive to comply with the Constitution, since statements lawfully obtained can be used for all purposes, not simply impeachment. In every other context, this Court has held that tainted evidence is admissible for impeachment. See, e.g., Oregon v. Hass, 420 U. S. 714, 723. No distinction here alters that balance. Pp. 6–7. 285 Kan. 595, 176 P. 3d 920, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. | We address in this case the question whether a defendant’s incriminating statement to a jailhouse informant, concededly elicited in violation of Sixth Amendment strictures, is admissible at trial to impeach the defendant’s conflicting statement. I In the early hours of January 7, 2004, after two days of no sleep and some drug use, Rhonda Theel and respondent Donnie Ray Ventris reached an ill-conceived agreement to confront Ernest Hicks in his home. The couple testified that the aim of the visit was simply to investigate rumors that Hicks abused children, but the couple may have been inspired by the potential for financial gain: Theel had recently learned that Hicks carried large amounts of cash. The encounter did not end well. One or both of the pair shot and killed Hicks with shots from a .38-caliber revolver, and the companions drove off in Hicks’s truck with approximately $300 of his money and his cell phone. On receiving a tip from two friends of the couple who had helped transport them to Hicks’s home, officers arrested Ventris and Theel and charged them with various crimes, chief among them murder and aggravated robbery. The State dropped the murder charge against Theel in exchange for her guilty plea to the robbery charge and her testimony identifying Ventris as the shooter. Prior to trial, officers planted an informant in Ventris’s holding cell, instructing him to “keep [his] ear open and listen” for incriminating statements. App. 146. According to the informant, in response to his statement that Ventris appeared to have “something more serious weighing in on his mind,” Ventris divulged that “[h]e’d shot this man in his head and in his chest” and taken “his keys, his wallet, about $350.00, and … a vehicle.” Id., at 154, 150. At trial, Ventris took the stand and blamed the robbery and shooting entirely on Theel. The government sought to call the informant, to testify to Ventris’s prior contradictory statement; Ventris objected. The State conceded that there was “probably a violation” of Ventris’s Sixth Amendment right to counsel but nonetheless argued that the statement was admissible for impeachment purposes because the violation “doesn’t give the Defendant … a license to just get on the stand and lie.” Id., at 143. The trial court agreed and allowed the informant’s testimony, but instructed the jury to “consider with caution” all testimony given in exchange for benefits from the State. Id., at 30. The jury ultimately acquitted Ventris of felony murder and misdemeanor theft but returned a guilty verdict on the aggravated burglary and aggravated robbery counts. The Kansas Supreme Court reversed the conviction, holding that “[o]nce a criminal prosecution has commenced, the defendant’s statements made to an undercover informant surreptitiously acting as an agent for the State are not admissible at trial for any reason, including the impeachment of the defendant’s testimony.” 285 Kan. 595, 606, 176 P. 3d 920, 928 (2008). Chief Justice McFarland dissented, id., at 611, 176 P. 3d, at 930. We granted the State’s petition for certiorari, 554 U. S. ___ (2008). II The Sixth Amendment, applied to the States through the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defence.” The core of this right has historically been, and remains today, “the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial.” Michigan v. Harvey, 494 U. S. 344, 348 (1990). We have held, however, that the right extends to having counsel present at various pretrial “critical” interactions between the defendant and the State, United States v. Wade, 388 U. S. 218, 224 (1967), including the deliberate elicitation by law enforcement officers (and their agents) of statements pertaining to the charge, Massiah v. United States, 377 U. S. 201, 206 (1964). The State has conceded throughout these proceedings that Ventris’s confession was taken in violation of Massiah’s dictates and was therefore not admissible in the prosecution’s case in chief. Without affirming that this concession was necessary, see Kuhlmann v. Wilson, 477 U. S. 436, 459–460 (1986), we accept it as the law of the case. The only question we answer today is whether the State must bear the additional consequence of inability to counter Ventris’s contradictory testimony by placing the informant on the stand. A Whether otherwise excluded evidence can be admitted for purposes of impeachment depends upon the nature of the constitutional guarantee that is violated. Sometimes that explicitly mandates exclusion from trial, and sometimes it does not. The Fifth Amendment guarantees that no person shall be compelled to give evidence against himself, and so is violated whenever a truly coerced confession is introduced at trial, whether by way of impeachment or otherwise. New Jersey v. Portash, 440 U. S. 450, 458–459 (1979). The Fourth Amendment, on the other hand, guarantees that no person shall be subjected to unreasonable searches or seizures, and says nothing about excluding their fruits from evidence; exclusion comes by way of deterrent sanction rather than to avoid violation of the substantive guarantee. Inadmissibility has not been automatic, therefore, but we have instead applied an exclusionary-rule balancing test. See Walder v. United States, 347 U. S. 62, 65 (1954). The same is true for violations of the Fifth and Sixth Amendment prophylactic rules forbidding certain pretrial police conduct. See Harris v. New York, 401 U. S. 222, 225–226 (1971); Harvey, supra, at 348–350. Respondent argues that the Sixth Amendment’s right to counsel is a “right an accused is to enjoy a[t] trial.” Brief for Respondent 11. The core of the right to counsel is indeed a trial right, ensuring that the prosecution’s case is subjected to “the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U. S. 648, 656 (1984). See also Powell v. Alabama, 287 U. S. 45, 57–58 (1932). But our opinions under the Sixth Amendment, as under the Fifth, have held that the right covers pretrial interrogations to ensure that police manipulation does not render counsel entirely impotent—depriving the defendant of “ ‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Massiah, supra, at 204 (quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring)). See also Miranda v. Arizona, 384 U. S. 436, 468–469 (1966). Our opinion in Massiah, to be sure, was equivocal on what precisely constituted the violation. It quoted various authorities indicating that the violation occurred at the moment of the postindictment interrogation because such questioning “ ‘contravenes the basic dictates of fairness in the conduct of criminal causes.’ ” 377 U. S., at 205 (quoting People v. Waterman, 9 N. Y. 2d 561, 565, 175 N. E. 2d 445, 448 (1961)). But the opinion later suggested that the violation occurred only when the improperly obtained evidence was “used against [the defendant] at his trial.” 377 U. S., at 206–207. That question was irrelevant to the decision in Massiah in any event. Now that we are confronted with the question, we conclude that the Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation. That, we think, is when the “Assistance of Counsel” is denied. It is illogical to say that the right is not violated until trial counsel’s task of opposing conviction has been undermined by the statement’s admission into evidence. A defendant is not denied counsel merely because the prosecution has been permitted to introduce evidence of guilt—even evidence so overwhelming that the attorney’s job of gaining an acquittal is rendered impossible. In such circumstances the accused continues to enjoy the assistance of counsel; the assistance is simply not worth much. The assistance of counsel has been denied, however, at the prior critical stage which produced the inculpatory evidence. Our cases acknowledge that reality in holding that the stringency of the warnings necessary for a waiver of the assistance of counsel varies according to “the usefulness of counsel to the accused at the particular [pretrial] proceeding.” Patterson v. Illinois, 487 U. S. 285, 298 (1988). It is that deprivation which demands a remedy. The United States insists that “post-charge deliberate elicitation of statements without the defendant’s counsel or a valid waiver of counsel is not intrinsically unlawful.” Brief for United States as Amicus Curiae 17, n. 4. That is true when the questioning is unrelated to charged crimes—the Sixth Amendment right is “offense specific,” McNeil v. Wisconsin, 501 U. S. 171, 175 (1991). We have never said, however, that officers may badger counseled defendants about charged crimes so long as they do not use information they gain. The constitutional violation occurs when the uncounseled interrogation is conducted. B This case does not involve, therefore, the prevention of a constitutional violation, but rather the scope of the remedy for a violation that has already occurred. Our precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle. The interests safeguarded by such exclusion are “outweighed by the need to prevent perjury and to assure the integrity of the trial process.” Stone v. Powell, 428 U. S. 465, 488 (1976). “It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can … provide himself with a shield against contradiction of his untruths.” Walder, supra, at 65. Once the defendant testifies in a way that contradicts prior statements, denying the prosecution use of “the traditional truth-testing devices of the adversary process,” Harris, supra, at 225, is a high price to pay for vindication of the right to counsel at the prior stage. On the other side of the scale, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence. Officers have significant incentive to ensure that they and their informants comply with the Constitution’s demands, since statements lawfully obtained can be used for all purposes rather than simply for impeachment. And the ex ante probability that evidence gained in violation of Massiah would be of use for impeachment is exceedingly small. An investigator would have to anticipate both that the defendant would choose to testify at trial (an unusual occurrence to begin with) and that he would testify inconsistently despite the admissibility of his prior statement for impeachment. Not likely to happen—or at least not likely enough to risk squandering the opportunity of using a properly obtained statement for the prosecution’s case in chief. In any event, even if “the officer may be said to have little to lose and perhaps something to gain by way of possibly uncovering impeachment material,” we have multiple times rejected the argument that this “speculative possibility” can trump the costs of allowing perjurious statements to go unchallenged. Oregon v. Hass, 420 U. S. 714, 723 (1975). We have held in every other context that tainted evidence—evidence whose very introduction does not constitute the constitutional violation, but whose obtaining was constitutionally invalid—is admissible for impeachment. See ibid.; Walder, 347 U. S., at 65; Harris, 401 U. S., at 226; Harvey, 494 U. S., at 348. We see no distinction that would alter the balance here.* * * * We hold that the informant’s testimony, concededly elicited in violation of the Sixth Amendment, was admissible to challenge Ventris’s inconsistent testimony at trial. The judgment of the Kansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. * Respondent’s amicus insists that jailhouse snitches are so inherently unreliable that this Court should craft a broader exclusionary rule for uncorroborated statements obtained by that means. Brief for National Association of Criminal Defense Lawyers 25–26. Our legal system, however, is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid “establish[ing] this Court as a rule-making organ for the promulgation of state rules of criminal procedure.” Spencer v. Texas, 385 U. S. 554, 564 (1967). It would be especially inappropriate to fabricate such a rule in this case, where it appears the jury took to heart the trial judge’s cautionary instruction on the unreliability of rewarded informant testimony by acquitting Ventris of felony murder. |
555.US.2008_07-636 | The Employee Retirement Income Security Act of 1974 (ERISA), as relevant here, obligates administrators to manage ERISA plans “in accordance with the documents and instruments governing” them, 29 U. S. C. §1104(a)(1)(D); requires covered pension benefit plans to “provide that benefits … may not be assigned or alienated,” §1056(d)(1); and exempts from this bar qualified domestic relations orders (QDROs), §1056(d)(3). The decedent, William Kennedy, participated in his employer’s savings and investment plan (SIP), with power both to designate a beneficiary to receive the funds upon his death and to replace or revoke that designation as prescribed by the plan administrator. Under the terms of the plan, if there is no surviving spouse or designated beneficiary at the time of death, distribution is made as directed by the estate’s executor or administrator. Upon their marriage, William designated Liv Kennedy his SIP beneficiary and named no contingent beneficiary. Their subsequent divorce decree divested Liv of her interest in the SIP benefits, but William did not execute a document removing Liv as the SIP beneficiary. On William’s death, petitioner Kari Kennedy, his daughter and the executrix of his Estate, asked for the SIP funds to be distributed to the Estate, but the plan administrator relied on William’s designation form and paid them to Liv. The Estate filed suit, alleging that Liv had waived her SIP benefits in the divorce and thus respondents, the employer and the SIP plan administrator (together, DuPont), had violated ERISA by paying her. As relevant here, the District Court entered summary judgment for the Estate, ordering DuPont to pay the benefits to the Estate. The Fifth Circuit reversed, holding that Liv’s waiver was an assignment or alienation of her interest to the Estate barred by §1056(d)(1). Held: 1. Because Liv did not attempt to direct her interest in the SIP benefits to the Estate or any other potential beneficiary, her waiver did not constitute an assignment or alienation rendered void under §1056(d)(1). Pp. 5–13. (a) Given the legal meaning of “assigned” and “alienated,” it is fair to say that Liv did not assign or alienate anything to William or to the Estate. The Fifth Circuit’s broad reading—that Liv’s waiver indirectly transferred her interest to the next possible beneficiary, here the Estate—is questionable. It would be odd to speak of an estate as the transferee of its own decedent’s property or of the decedent in his lifetime as his own transferee. It would also be strange under the Treasury Regulation that defines “assignment” and “alienation.” Moreover, it is difficult to see how certain waivers not barred by the antialienation provision e.g., a surviving spouse’s ability to waive a survivor’s annuity or lump-sum payment, see Boggs v. Boggs, 520 U. S. 833, 843; 29 U. S. C. §§1055(a), (b)(1)(C), (c)(2), would be permissible under the Fifth Circuit’s reading. These doubts, and exceptions calling the Fifth Circuit’s reading into question, point the Court toward the law of trusts that “serves as ERISA’s backdrop.” Beck v. PACE Int’l Union, 551 U. S. 96, 101. Section 1056(d)(1) is much like a spendthrift trust provision barring assignment or alienation of a benefit, see Boggs, supra, at 852, and the cognate trust law is highly suggestive here. The general principle that a designated spendthrift beneficiary can disclaim his trust interest magnifies the improbability that a statute written with an eye on the old law would effectively force a beneficiary to take an interest willy-nilly. The Treasury reads its own regulation to mean that the antialienation provision is not violated by a beneficiary’s waiver “where the beneficiary does not attempt to direct her interest in pension benefits to another person.” Brief for United States as Amicus Curiae 18. Being neither “plainly erroneous [n]or inconsistent with the regulation,” the Treasury Department’s interpretation is controlling. Auer v. Robbins, 519 U. S. 452, 461. ERISA’s QDRO provisions shed no light on the validity of a waiver by a non-QDRO. Pp. 5–11. (b) DuPont’s additional reasons for saying that ERISA barred Liv’s waiver are unavailing. Pp. 11–13. 2. Although Liv’s waiver was not nullified by §1056’s express terms, the plan administrator did its ERISA duty by paying the SIP benefits to Liv in conformity with the plan documents. ERISA provides no exception to the plan administrator’s duty to act in accordance with plan documents. Thus, the Estate’s claim stands or falls by “the terms of the plan,” 29 U. S. C. §1132(a)(1)(B), a straightforward rule that lets employers “ ‘establish a uniform administrative scheme, [with] a set of standard procedures to guide processing of claims and disbursement of benefits,’ ” Egelhoff v. Egelhoff, 532 U. S. 141, 148. By giving a plan participant a clear set of instructions for making his own instructions clear, ERISA forecloses any justification for enquiries into expressions of intent, in favor of the virtues of adhering to an uncomplicated rule. Less certain rules could force plan administrators to examine numerous external documents purporting to be waivers and draw them into litigation like this over those waivers’ meaning and enforceability. The guarantee of simplicity is not absolute, since a QDRO’s enforceability may require an administrator to look for beneficiaries outside plan documents notwithstanding §1104(a)(1)(D). But an administrator enforcing a QDRO must be said to enforce plan documents, not ignore them, and a QDRO enquiry is relatively discrete, given its specific and objective criteria. These are good and sufficient reasons for holding the line, just as the Court did in holding that ERISA preempted state laws that could blur the bright-line requirement to follow plan documents in distributing benefits. See Boggs, supra, at 850, and Egelhoff, supra, at 143. What goes for inconsistent state law goes for a federal common law of waiver that might obscure a plan administrator’s duty to act “in accordance with the documents and instruments.” See Mertens v. Hewitt Associates, 508 U. S. 248, 259. This case points out the wisdom of protecting the plan documents rule. Under the SIP, Liv was William’s designated beneficiary. The plan provided a way to disclaim an interest in the SIP account, which Liv did not purport to follow. The plan administrator therefore did exactly what §1104(a)(1)(D) required and paid Liv the benefits. Pp. 13–18. 497 F. 3d 426, affirmed. Souter, J., delivered the opinion for a unanimous Court. | The Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U. S. C. §1001 et seq., generally obligates administrators to manage ERISA plans “in accordance with the documents and instruments governing” them. §1104(a)(1)(D). At a more specific level, the Act requires covered pension benefit plans to “provide that benefits … under the plan may not be assigned or alienated,” §1056(d)(1), but this bar does not apply to qualified domestic relations orders (QDROs), §1056(d)(3). The question here is whether the terms of the limitation on assignment or alienation invalidated the act of a divorced spouse, the designated beneficiary under her ex-husband’s ERISA pension plan, who purported to waive her entitlement by a federal common law waiver embodied in a divorce decree that was not a QDRO. We hold that such a waiver is not rendered invalid by the text of the antialienation provision, but that the plan administrator properly disregarded the waiver owing to its conflict with the designation made by the former husband in accordance with plan documents. I The decedent, William Kennedy, worked for E. I. DuPont de Nemours & Company and was a participant in its savings and investment plan (SIP), with power both to “designate any beneficiary or beneficiaries … to receive all or part” of the funds upon his death, and to “replace or revoke such designation.” App. 48. The plan requires “[a]ll authorizations, designations and requests concerning the Plan [to] be made by employees in the manner prescribed by the [plan administrator],” id., at 52, and provides forms for designating or changing a beneficiary, id., at 34, 56–57. If at the time the participant dies “no surviving spouse exists and no beneficiary designation is in effect, distribution shall be made to, or in accordance with the directions of, the executor or administrator of the decedent’s estate.” Id., at 48. The SIP is an ERISA “ ‘employee pension benefit plan,’ ” 497 F. 3d 426, 427 (CA5 2007); 29 U. S. C. §1002(2), and the parties do not dispute that the plan satisfies ERISA’s antialienation provision, §1056(d)(1), which requires it to “provide that benefits provided under the plan may not be assigned or alienated.”[Footnote 1] The plan does, however, permit a beneficiary to submit a “qualified disclaimer” of benefits as defined under the Tax Code, see 26 U. S. C. §2518, which has the effect of switching the beneficiary to an “alternate … determined according to a valid beneficiary designation made by the deceased.” Supp. Record 86–87 (Exh. 15). In 1971, William married Liv Kennedy, and, in 1974, he signed a form designating her to take benefits under the SIP, but naming no contingent beneficiary to take if she disclaimed her interest. 497 F. 3d, at 427. William and Liv divorced in 1994, subject to a decree that Liv “is … divested of all right, title, interest, and claim in and to … [a]ny and all sums … the proceeds [from], and any other rights related to any … retirement plan, pension plan, or like benefit program existing by reason of [William’s] past or present or future employment.” App. to Pet. for Cert. 64–65. William did not, however, execute any documents removing Liv as the SIP beneficiary, 497 F. 3d, at 428, even though he did execute a new beneficiary-designation form naming his daughter, Kari Kennedy, as the beneficiary under DuPont’s Pension and Retirement Plan, also governed by ERISA. On William’s death in 2001, petitioner Kari Kennedy was named executrix and asked DuPont to distribute the SIP funds to William’s Estate. Ibid. DuPont, instead, relied on William’s designation form and paid the balance of some $400,000 to Liv. Ibid. The Estate then sued respondents DuPont and the SIP plan administrator (together, DuPont), claiming that the divorce decree amounted to a waiver of the SIP benefits on Liv’s part, and that DuPont had violated ERISA by paying the benefits to William’s designee.[Footnote 2] So far as it matters here, the District Court entered summary judgment for the Estate, to which it ordered DuPont to pay the value of the SIP benefits. The court relied on Fifth Circuit precedent establishing that a beneficiary can waive his rights to the proceeds of an ERISA plan “ ‘provided that the waiver is explicit, voluntary, and made in good faith.’ ” App. to Pet. for Cert. 38 (quoting Manning v. Hayes, 212 F. 3d 866, 874 (CA5 2000)). The Fifth Circuit nonetheless reversed, distinguishing prior decisions enforcing federal common law waivers of ERISA benefits because they involved life-insurance policies, which are considered “ ‘welfare plan[s]’ ” under ERISA and consequently free of the antialienation provision. 497 F. 3d, at 429. The Court of Appeals held that Liv’s waiver constituted an assignment or alienation of her interest in the SIP benefits to the Estate, and so could not be honored. Id., at 430. The court relied heavily on the ERISA provision for bypassing the antialienation provision when a marriage breaks up: under 29 U. S. C. §1056(d)(3),[Footnote 3] a court order that satisfies certain statutory requirements is known as a qualified domestic relations order, which is exempt from the bar on assignment or alienation. Because the Kennedys’ divorce decree was not a QDRO, the Fifth Circuit reasoned that it could not give effect to Liv’s waiver incorporated in it, given that “ERISA provides a specific mechanism—the QDRO—for addressing the elimination of a spouse’s interest in plan benefits, but that mechanism is not invoked.” 497 F. 3d, at 431. We granted certiorari to resolve a split among the Courts of Appeals and State Supreme Courts over a divorced spouse’s ability to waive pension plan benefits through a divorce decree not amounting to a QDRO.[Footnote 4] 552 U. S. ___ (2008). We subsequently realized that this case implicates the further split over whether a beneficiary’s federal common law waiver of plan benefits is effective where that waiver is inconsistent with plan documents,[Footnote 5] and after oral argument we invited supplemental briefing on that latter issue, upon which the disposition of this case ultimately turns. We now affirm, albeit on reasoning different from the Fifth Circuit’s rationale. II A By its terms, the antialienation provision, §1056(d)(1), requires a plan to provide expressly that benefits be neither “assigned” nor “alienated,” the operative verbs having histories of legal meaning: to “assign” is “[t]o transfer; as to assign property, or some interest therein,” Black’s Law Dictionary 152 (4th rev. ed. 1968), and to “alienate” is “[t]o convey; to transfer the title to property,” id., at 96. We think it fair to say that Liv did not assign or alienate anything to William or to the Estate later standing in his shoes. The Fifth Circuit saw the waiver as an assignment or alienation to the Estate, thinking that Liv’s waiver transferred the SIP benefits to whoever would be next in line; without a designated contingent beneficiary, the Estate would take them. The court found support in the applicable Treasury Department regulation that defines “assignment” and “alienation” to include “[a]ny direct or indirect arrangement (whether revocable or irrevocable) whereby a party acquires from a participant or beneficiary a right or interest enforceable against the plan in, or to, all or any part of a plan benefit payment which is, or may become, payable to the participant or beneficiary.” 26 CFR §1.401(a)–13(c)(1)(ii) (2008). See Boggs v. Boggs, 520 U. S. 833, 851–852 (1997) (relying upon the regulation to interpret the meaning of “assignment” and “alienation” in §1056(d)(1)). The Circuit treated Liv’s waiver as an “ ‘indirect arrangement’ ” whereby the Estate gained an “ ‘interest enforceable against the plan.’ ” 497 F. 3d, at 430. Casting the alienation net this far, though, raises questions that leave one in doubt. Although it is possible to speak of the waiver as an “arrangement” having the indirect effect of a transfer to the next possible beneficiary, it would be odd usage to speak of an estate as the transferee of its own decedent’s property, just as it would be to speak of the decedent in his lifetime as his own transferee. And treating the estate or even the ultimate estate beneficiary as the assignee or transferee would be strange under the terms of the regulation: it would be hard to say the estate or future beneficiary “acquires” a right or interest when at the time of the waiver there was no estate and the beneficiary of a future estate might be anyone’s guess. If there were a contingent beneficiary (or the participant made a subsequent designation) the estate would get no interest; as for an estate beneficiary, the identity could ultimately turn on the law of intestacy applied to facts as yet unknown, or on the contents of the participant’s subsequent will, or simply on the participant’s future exercise of (or failure to invoke) the power to designate a new beneficiary directly under the terms of the plan. Thus, if such a waiver created an “arrangement” assigning or transferring anything under the statute, the assignor would be blindfolded, operating, at best, on the fringe of what “assignment” or “alienation” normally suggests. The questionability of this broad reading is confirmed by exceptions to it that are apparent right off the bat. Take the case of a surviving spouse’s interest in pension benefits, for example. Depending on the circumstances, a surviving spouse has a right to a survivor’s annuity or to a lump-sum payment on the death of the participant, unless the spouse has waived the right and the participant has eliminated the survivor annuity benefit or designated a different beneficiary. See Boggs, supra, at 843; 29 U. S. C. §§1055(a), (b)(1)(C), (c)(2). This waiver by a spouse is plainly not barred by the antialienation provision. Likewise, DuPont concedes that a qualified disclaimer under the Tax Code, which allows a party to refuse an interest in property and thereby eliminate federal tax, would not violate the antialienation provision. See Brief for Respondents 21–23; 26 U. S. C. §2518. In each example, though, we fail to see how these waivers would be permis- sible under the Fifth Circuit’s reading of the statute and regulation. Our doubts, and the exceptions that call the Fifth Circuit’s reading into question, point us toward authority we have drawn on before, the law of trusts that “serves as ERISA’s backdrop.” Beck v. PACE Int’l Union, 551 U. S. 96, 101 (2007). We explained before that §1056(d)(1) is much like a spendthrift trust provision barring assignment or alienation of a benefit, see Boggs, supra, at 852, and the cognate trust law is highly suggestive here. Although the beneficiary of a spendthrift trust traditionally lacked the means to transfer his beneficial interest to anyone else, he did have the power to disclaim prior to accepting it, so long as the disclaimer made no attempt to direct the interest to a beneficiary in his stead. See 2 Restatement (Third) of Trusts §58(1), Comment c, p. 359 (2001) (“A designated beneficiary of a spendthrift trust is not required to accept or retain an interest prescribed by the terms of the trust… . On the other hand, a purported disclaimer by which the beneficiary attempts to direct who is to receive the interest is a precluded transfer”); E. Griswold, Spendthrift Trusts §524, p. 603 (2d ed. 1947) (“The American cases, though not entirely clear, generally take the view that the interest under a spendthrift trust may be disclaimed”); Roseberry v. Moncure, 245 Va. 436, 439, 429 S. E. 2d 4, 6 (1993) (“ ‘If a trust is created without notice to the beneficiary or the beneficiary has not accepted the beneficial interest under the trust, he can disclaim’ ” (quoting 1 A. Scott & W. Fratcher, Law of Trusts §36.1, p. 389 (4th ed. 1987) (hereinafter Fratcher))). We do not mean that the whole law of spendthrift trusts and disclaimers turns up in §1056(d)(1), but the general principle that a designated spendthrift can disclaim his trust interest magnifies the improbability that a statute written with an eye on the old law would effectively force a beneficiary to take an interest willy-nilly. Common sense and common law both say that “[t]he law certainly is not so absurd as to force a man to take an estate against his will.” Townson v. Tickell, 3 Barn. & Ald. 31, 36, 106 Eng. Rep. 575, 576–577 (K. B. 1819).[Footnote 6] The Treasury is certainly comfortable with the state of the old law, for the way it reads its own regulation “no party ‘acquires from’ a beneficiary a ‘right or interest enforceable against the plan’ pursuant to a beneficiary’s waiver of rights where the beneficiary does not attempt to direct her interest in pension benefits to another person.” Brief for United States as Amicus Curiae 18. And, being neither “plainly erroneous [n]or inconsistent with the regulation,” the Treasury Department’s interpretation of its regulation is controlling. Auer v. Robbins, 519 U. S. 452, 461 (1997).[Footnote 7] The Fifth Circuit found “significant support” for its contrary holding in the QDRO subsections, reasoning that “[i]n the marital-dissolution context, the QDRO provisions supply the sole exception to the anti-alienation provision,” 497 F. 3d, at 430, a point that echoes in DuPont’s argument here. But the negative implication of the QDRO language is not that simple. If a QDRO provided a way for a former spouse like Liv merely to waive benefits, this would be powerful evidence that the antialienation provision was meant to deny any effect to a waiver within a divorce decree but not a QDRO, else there would have been no need for the QDRO exception. But this is not so, and DuPont’s argument rests on a false premise. In fact, a beneficiary seeking only to relinquish her right to benefits cannot do this by a QDRO, for a QDRO by definition requires that it be the “creat[ion] or recogni[tion of] the existence of an alternate payee’s right to, or assign[ment] to an alternate payee [of] the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.” 29 U. S. C. §1056(d)(3)(B)(i)(I). There is no QDRO for a simple waiver; there must be some succeeding designation of an alternate payee.[Footnote 8] Not being a mechanism for simply renouncing a claim to benefits, then, the QDRO provisions shed no light on whether a beneficiary may waive by a non-QDRO. In sum, Liv did not attempt to direct her interest in the SIP benefits to the Estate or any other potential beneficiary, and accordingly we think that the better view is that her waiver did not constitute an assignment or alienation rendered void under the terms of §1056(d)(1). B DuPont has three other reasons for saying that Liv’s waiver was barred by ERISA. They are unavailing. First, it argues that even if the waiver is not an assignment or alienation barred under the terms of §1056(d)(1), §1056(d)(3)(A) still prohibits it, in providing that §1056(d)(1) “shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order [that is not a QDRO].” At the very least, DuPont reasons, Liv’s waiver included a “recognition” of William’s rights with respect to the SIP benefits. But DuPont overlooks the point that when subsection (d)(3)(A) provides that the bar to assignments or alienations extends to non-QDRO domestic relations orders, it does nothing to expand the scope of prohibited assignment and alienation under subsection (d)(1). Whether Liv’s action is seen as a waiver or as a domestic relations order that incorpor- ated a waiver, subsection (d)(1) does not cover it and §1056(d)(3)(A) does not independently bar it. Second, DuPont relies upon §1056(d)(3)(H)(iii)(II), providing that if a domestic relations order is not a QDRO, “the plan administrator shall pay the segregated amounts (including any interest thereon) to the person or persons who would have been entitled to such amounts if there had been no order.” According to DuPont, because the divorce decree was not a QDRO this provision calls for paying benefits as if there had been no order. But DuPont has wrenched this language out of its setting, reading clause (iii) of subparagraph (H) as if there were no clause (i): “During any period in which the issue of whether a domestic relations order is a qualified domestic relations order is being determined . . . the plan administrator shall separately account for the amounts (hereinafter in this subparagraph referred to as the ‘segregated amounts’) which would have been payable to the alternate payee during such period if the order had been determined to be a qualified domestic relations order.” §1056(d)(3)(H)(i). Thus it is clear that subparagraph (H) speaks of a domestic relations order that distributes certain benefits (the “segregated amounts”) to an alternate payee, when the question for the plan administrator is whether the order is effective as a QDRO. That is the circumstance in which, for want of a QDRO, clause (iii) tells the plan administrator not to pay the alternate, but to distribute the segregated amounts as if there had been no order. Clause (iii) does not, as DuPont suggests, state a general rule that a non-QDRO domestic relations order is a nullity in any proceeding that would affect the determination of a beneficiary. And of course clause (iii) says nothing here at all; the divorce decree names no alternate payee, and there are consequently no “segregated amounts.” Third, DuPont claims that a plan cannot recognize a waiver of benefits in a non-QDRO divorce decree because ERISA preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan,” with “State law” being defined to include “decisions” or “other State action having the effect of law.”[Footnote 9] §§1144(a), (c)(1). DuPont says that Liv’s waiver, expressed in a state-court decision and related to an employee benefit plan, is thus preempted. But recognizing a waiver in a divorce decree would not be giving effect to state law; the argument is that the waiver should be treated as a creature of federal common law, in which case its setting in a state divorce decree would be only happenstance. A court would merely be applying federal law to a document that might also have independent significance under state law. See, e.g., Melton v. Melton, 324 F. 3d 941, 945–946 (CA7 2003); Clift v. Clift, 210 F. 3d 268, 271–272 (CA5 2000); Lyman Lumber Co. v. Hill, 877 F. 2d 692, 693–694 (CA8 1989). III The waiver’s escape from inevitable nullity under the express terms of the antialienation clause does not, however, control the decision of this case, and the question remains whether the plan administrator was required to honor Liv’s waiver with the consequence of distributing the SIP balance to the Estate.[Footnote 10] We hold that it was not, and that the plan administrator did its statutory ERISA duty by paying the benefits to Liv in conformity with the plan documents. ERISA requires “[e]very employee benefit plan [to] be established and maintained pursuant to a written instrument,” 29 U. S. C. §1102(a)(1), “specify[ing] the basis on which payments are made to and from the plan,” §1102(b)(4). The plan administrator is obliged to act “in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of [Title I] and [Title IV] of [ERISA],” §1104(a)(1)(D), and the Act provides no exemption from this duty when it comes time to pay benefits. On the contrary, §1132(a)(1)(B) (which the Estate happens to invoke against DuPont here) reinforces the directive, with its provision that a participant or beneficiary may bring a cause of action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” The Estate’s claim therefore stands or falls by “the terms of the plan,” §1132(a)(1)(B), a straightforward rule of hewing to the directives of the plan documents that lets employers “ ‘establish a uniform administrative scheme, [with] a set of standard procedures to guide processing of claims and disbursement of benefits.’ ”[Footnote 11] Egelhoff v. Egelhoff, 532 U. S. 141, 148 (2001) (quoting Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 9 (1987)); see also Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73, 83 (1995) (ERISA’s statutory scheme “is built around reliance on the face of written plan documents”). The point is that by giving a plan participant a clear set of instructions for making his own instructions clear, ERISA forecloses any justification for enquiries into nice expressions of intent, in favor of the virtues of adhering to an uncomplicated rule: “simple administration, avoid[ing] double liability, and ensur[ing] that beneficiaries get what’s coming quickly, without the folderol essential under less-certain rules.” Fox Valley & Vicinity Const. Workers Pension Fund v. Brown, 897 F. 2d 275, 283 (CA7 1990) (Easterbrook, J., dissenting). And the cost of less certain rules would be too plain. Plan administrators would be forced “to examine a multitude of external documents that might purport to affect the dispensation of benefits,” Altobelli v. IBM Corp., 77 F. 3d 78, 82–83 (CA4 1996) (Wilkinson, C. J., dissenting), and be drawn into litigation like this over the meaning and enforceability of purported waivers. The Estate’s suggestion that a plan administrator could resolve these sorts of disputes through interpleader actions merely restates the problem with the Estate’s position: it would destroy a plan administrator’s ability to look at the plan documents and records conforming to them to get clear distribution instructions, without going into court. The Estate of course is right that this guarantee of simplicity is not absolute. The very enforceability of QDROs means that sometimes a plan administrator must look for the beneficiaries outside plan documents notwithstanding §1104(a)(1)(D); §1056(d)(3)(J) provides that a “person who is an alternate payee under a [QDRO] shall be considered for purposes of any provision of [ERISA] a beneficiary under the plan.” But this in effect means that a plan administrator who enforces a QDRO must be said to enforce plan documents, not ignore them. In any case, a QDRO enquiry is relatively discrete, given the specific and objective criteria for a domestic relations order that qualifies as a QDRO,[Footnote 12] see §§1056(d)(3)(C), (D), requirements that amount to a statutory checklist working to “spare [an administrator] from litigation-fomenting ambiguities,” Metropolitan Life Ins. Co. v. Wheaton, 42 F. 3d 1080, 1084 (CA7 1994). This is a far cry from asking a plan administrator to figure out whether a claimed federal common law waiver was knowing and voluntary, whether its language addressed the particular benefits at issue, and so forth, on into factually complex and subjective determinations. See, e.g., Altobelli, supra, at 83 (Wilkinson, C. J., dissenting) (“[W]aiver provisions are often sweeping in their terms, leaving their precise effect on plan benefits unclear”); Mohamed v. Kerr, 53 F. 3d 911, 915 (CA8 1995) (making “fact-driven determination” that marriage termination agreement constituted a valid waiver under federal common law). These are good and sufficient reasons for holding the line, just as we have done in cases of state laws that might blur the bright-line requirement to follow plan documents in distributing benefits. Two recent preemption cases are instructive here. Boggs v. Boggs, 520 U. S. 833, held that ERISA preempted a state law permitting the testamentary transfer of a nonparticipant spouse’s community property interest in undistributed pension plan benefits. We rejected the entreaty to create “through case law … a new class of persons for whom plan assets are to be held and administered,” explaining that “[t]he statute is not amenable to this sweeping extratextual extension.” Id., at 850. And in Egelhoff we held that ERISA preempted a state law providing that the designation of a spouse as the beneficiary of a nonprobate asset is revoked automatically upon divorce. 532 U. S., at 143. We said the law was at fault for standing in the way of making payments “simply by identifying the beneficiary specified by the plan documents,” id., at 148, and thus for purporting to “undermine the congressional goal of ‘minimiz[ing] the administrative and financial burden[s]’ on plan administrators,” id., at 149–150 (quoting Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 142 (1990)); see Egelhoff, supra, at 147, n. 1 (identifying “the conflict between the plan documents (which require making payments to the named beneficiary) and the statute (which requires making payments to someone else)”). What goes for inconsistent state law goes for a federal common law of waiver that might obscure a plan administrator’s duty to act “in accordance with the documents and instruments.” See Mertens v. Hewitt Associates, 508 U. S. 248, 259 (1993) (“The authority of courts to develop a ‘federal common law’ under ERISA … is not the authority to revise the text of the statute”). And this case does as well as any other in pointing out the wisdom of protecting the plan documents rule. Under the terms of the SIP Liv was William’s designated beneficiary. The plan provided an easy way for William to change the designation, but for whatever reason he did not. The plan provided a way to disclaim an interest in the SIP account, but Liv did not purport to follow it.[Footnote 13] The plan administrator therefore did exactly what §1104(a)(1)(D) required: “the documents control, and those name [the ex-wife].” McMillan v. Parrott, 913 F. 2d 310, 312 (CA6 1990). It is no answer, as the Estate argues, that William’s beneficiary-designation form should not control because it is not one of the “documents and instruments governing the plan” under §1104(a)(1)(D) and was not treated as a plan document by the plan administrator. That is beside the point. It is uncontested that the SIP and the summary plan description are “documents and instruments governing the plan.” See Curtiss-Wright Corp., 514 U. S., at 84 (explaining that 29 U. S. C. §§1024(b)(2) and (b)(4) require a plan administrator to make available the “governing plan documents”). Those documents provide that the plan administrator will pay benefits to a participant’s designated beneficiary, with designations and changes to be made in a particular way. William’s designation of Liv as his beneficiary was made in the way required; Liv’s waiver was not.[Footnote 14] IV Although Liv’s waiver was not rendered a nullity by the terms of §1056, the plan administrator properly distributed the SIP benefits to Liv in accordance with the plan documents. The judgment of the Court of Appeals is affirmed on the latter ground. It is so ordered. Footnote 1 The plan states that “[e]xcept as provided by Section 401(a)(13) of the [Internal Revenue] Code, no assignment of the rights or interests of account holders under this Plan will be permitted or recognized, nor shall such rights or interests be subject to attachment or other legal processes for debts.” App. 50–51. Title 26 U. S. C. §401(a)(13)(A), in language substantially tracking the text of §1056(d)(1), provides that “[a] trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that benefits provided under the plan may not be assigned or alienated.” Footnote 2 The Estate now says that William’s beneficiary-designation form for the Pension and Retirement Plan applied to the SIP as well, but the form on its face applies only to DuPont’s “Pension and Retirement Plan.” App. 62. In the District Court, in fact, the Estate stipulated that William “never executed any forms or documents to remove or replace Liv Kennedy as his sole beneficiary under either the SIP or [a plan that merged into the SIP].” Id., at 28. In any event, the Estate did not raise this argument in the Court of Appeals, and we will not address it in the first instance. See Taylor v. Freeland & Kronz, 503 U. S. 638, 645–646 (1992). Footnote 3 Section 1056(d)(3)(A) provides that the antialienation provision “shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, except that paragraph (1) shall not apply if the order is determined to be a qualified domestic relations order.” Footnote 4 Compare Altobelli v. IBM Corp., 77 F. 3d 78 (CA4 1996) (federal common law waiver in divorce decree does not conflict with antialienation provision); Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F. 2d 275 (CA7 1990) (en banc) (same); Keen v. Weaver, 121 S. W. 3d 721 (Tex. 2003) (same), with McGowan v. NJR Serv. Corp., 423 F. 3d 241 (CA3 2005) (federal common law waiver in divorce decree barred by antialienation provision). Footnote 5 Compare Altobelli, supra (federal common law waiver controls); Mohamed v. Kerr, 53 F. 3d 911 (CA8 1995) (same); Brandon v. Travelers Ins. Co., 18 F. 3d 1321 (CA5 1994) (same); Fox Valley, 897 F. 2d 275 (same); Strong v. Omaha Constr. Industry Pension Plan, 270 Neb. 1, 701 N. W. 2d 320 (2005) (same); Keen, supra (same), with Metropolitan Life Ins. Co. v. Marsh, 119 F. 3d 415 (CA6 1997) (plan documents control); Krishna v. Colgate Palmolive Co., 7 F. 3d 11 (CA2 1993) (same). Footnote 6 DuPont argues that Liv’s waiver would have been an invalid disclaimer at common law because it was given for consideration in the divorce settlement. But the authorities DuPont cites fail to support the proposition that a beneficiary’s otherwise valid disclaimer was invalid at common law because she received consideration. See Roseberry v. Moncure, 245 Va., at 439, 429 S. E. 2d, at 6; Smith v. Bank of Del., 43 Del. Ch. 124, 126–127, 219 A. 2d 576, 577 (1966); Preminger v. Union Bank & Trust Co., 54 Mich. App. 361, 368–369, 220 N. W. 2d 795, 798–799 (1974); 4 Fratcher §337.1 (4th ed. 1989); 1 Restatement (Second) of Trusts §36, Comment c (1957). It is true that the receipt of consideration prevents a beneficiary from making a qualified disclaimer for gift tax purposes, see 26 CFR §25.2518–2 (2008), and there is common law authority for the proposition that a renunciation by a devisee is ineffective against existing creditors if “it is shown that those who would take such property on renunciation had agreed to pay to the devisee something of value in consideration of such renunciation.” 6 W. Bowe & D. Parker, Page on Law of Wills §49.5, p. 48 (2005); see also Schoonover v. Osborne, 193 Iowa 474, 478–479, 187 N. W. 20, 22 (1922). But at common law the receipt of consideration did not necessarily render a disclaimer invalid. See Commerce Trust Co. v. Fast, 396 S. W. 2d 683, 686–687 (Mo. 1965); Central Nat. Bank v. Eells, 5 Ohio Misc. 187, 189–192, 215 N. E. 2d 77, 80–81 (Ohio Prob. Ct. 1965); In re Wimperis [1914] 1 Ch. 502, 508–510; see also In re Estate of Baird, 131 Wash. 2d 514, 519, n. 5, 933 P. 2d 1031, 1034, n. 5 (1997). In any event, our point is not that Liv’s waiver was a valid disclaimer at common law: only that reading the terms of 29 U. S. C. §1056(d)(1) to bar all non-QDRO waivers is unsound in light of background common law principles. Footnote 7 It is true that the Government’s position regarding the applicability of the antialienation provision to a waiver has fluctuated. The Labor Department previously took the position that “application of such a federal common-law waiver rule to pension plans would conflict with ERISA’s anti-alienation provision.” Brief for Secretary of Labor as Amicus Curiae 16 in Keen v. Weaver, No. 01–0447 (Tex. 2003). And it likewise asserted that “waiver of pension benefits is generally impermissible under [§1056(d)(1)].” Brief for Secretary of Labor as Amicus Curiae 5 in In re Estate of Egelhoff, No. 67626–7 (Wash. 2001). The Labor Department has reconsidered that view and has now taken the Treasury’s position. Brief for United States as Amicus Curiae 20, n. 6. But “the change in interpretation alone presents no separate ground for disregarding the [Treasury’s and the Labor] Department’s present interpretation.” Long Island Care at Home, Ltd. v. Coke, 551 U. S. 158, 171 (2007). Nor does the fact that the interpretation is stated in a legal brief make it unworthy of deference, as “[t]here is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Auer, 519 U. S., at 462. Footnote 8 Even if one understands Liv’s waiver to have resulted somehow in her interest reverting to William, he does not qualify as an “alternate payee,” which is defined by statute as “any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant.” 29 U. S. C. §1056(d)(3)(K). Footnote 9 This preemption provision does not apply to QDROs. See §1144(b)(7). Footnote 10 Despite our following answer to the question here, our conclusion that §1056(d)(1) does not make a nullity of a waiver leaves open any questions about a waiver’s effect in circumstances in which it is consistent with plan documents. Nor do we express any view as to whether the Estate could have brought an action in state or federal court against Liv to obtain the benefits after they were distributed. Compare Boggs v. Boggs, 520 U. S. 833, 853 (1997) (“If state law is not preempted, the diversion of retirement benefits will occur regardless of whether the interest in the pension plan is enforced against the plan or the recipient of the pension benefit”), with Sweebe v. Sweebe, 474 Mich. 151, 156–159, 712 N. W. 2d 708, 712–713 (2006) (distinguishing Boggs and holding that “while a plan administrator must pay benefits to the named beneficiary as required by ERISA,” after the benefits are distributed “the consensual terms of a prior contractual agreement may prevent the named beneficiary from retaining those proceeds”); Pardee v. Pardee, 2005 OK CIV APP. 27, ¶¶20, 27, 112 P. 3d 308, 313–314, 315–316 (2004) (distinguishing Boggs and holding that ERISA did not preempt enforcement of allocation of ERISA benefits in state-court divorce decree as “the pension plan funds were no longer entitled to ERISA protection once the plan funds were distributed”). Footnote 11 We express no view regarding the ability of a participant or beneficiary to bring a cause of action under 29 U. S. C. §1132(a)(1)(B) where the terms of the plan fail to conform to the requirements of ERISA and the party seeks to recover under the terms of the statute. Footnote 12 To qualify as a QDRO, a divorce decree must “clearly specif[y]” the name and last known mailing address of the participant and the name and mailing address of each alternate payee covered by the order; the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee or the manner in which such amount or percentage is to be determined; the number of payments or period to which the order applies; and each plan to which such order applies. §1056(d)(3)(C). A domestic relations order cannot qualify as a QDRO if it requires a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan; requires the plan to provide increased benefits; or requires the payment of benefits to an alternate payee that are required to be paid to another alternate payee under another order previously determined to be a QDRO. §1056(d)(3)(D). A plan is required to establish written procedures for determining whether a domestic relations order is a QDRO. §1056(d)(3)(G)(ii). Footnote 13 The Estate does not contend that Liv’s waiver was a valid disclaimer under the terms of the plan. We do not address a situation in which the plan documents provide no means for a beneficiary to renounce an interest in benefits. Footnote 14 The Estate also contends that requiring a plan administrator to distribute benefits in conformity with plan documents will allow a beneficiary who murders a participant to obtain benefits under the terms of the plan. The “slayer” case is not before us, and we do not address it. See Egelhoff v. Egelhoff, 532 U. S. 141, 152 (2001) (declining to decide whether ERISA preempts state statutes forbidding a murdering heir from receiving property as a result of the killing). |
556.US.2008_07-1315 | Respondent Mirzayance entered pleas of not guilty and not guilty by reason of insanity (NGI) at his state-court murder trial. During the guilt phase, he sought to avoid a conviction for first-degree murder and instead obtain a second-degree murder verdict by presenting medical testimony that he was insane at the time of the crime and was, therefore, incapable of the necessary premeditation or deliberation. The jury nevertheless convicted him of first-degree murder. After the trial’s NGI phase was scheduled, Mirzayance accepted his counsel’s recommendation to abandon the insanity plea. Counsel believed that a defense verdict was unlikely because the jury had just rejected medical testimony similar to that which would be presented to establish the NGI defense. Moreover, although counsel had planned to supplement the medical evidence with testimony by Mirzayance’s parents as to their son’s mental illness, the parents refused to testify at the last moment. Following his conviction, Mirzayance alleged in state postconviction proceedings that his attorney’s recommendation to withdraw the NGI plea constituted ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668. The trial court denied relief, and the California Court of Appeal affirmed. Mirzayance then applied for federal habeas relief, which the District Court denied. The Ninth Circuit reversed, ordering an evidentiary hearing on counsel’s recommendation to withdraw the NGI plea. During the hearing, the Magistrate Judge made extensive factfindings, including, inter alia, that the NGI phase medical evidence essentially would have duplicated the evidence the jury rejected in the guilt phase; that counsel doubted the likelihood of prevailing on the NGI claim because the jury’s finding of first-degree murder as a practical matter would cripple Mirzayance’s chances of convincing the jury that he nevertheless was incapable of understanding the nature and quality of his act and of distinguishing right from wrong; that Mirzayance’s parents were not simply reluctant, but had effectively refused, to testify; that counsel had made a carefully reasoned decision not to proceed with the NGI plea after weighing his options and discussing the matter with experienced co-counsel; but that counsel’s performance was nevertheless deficient because Mirzayance had “nothing to lose” by going forward with the NGI phase of the trial. The Magistrate Judge also found prejudice and recommended habeas relief. The District Court accepted the recommendation and granted the writ. The Court of Appeals affirmed, ruling, among other things, that counsel’s performance had been deficient because Mirzayance’s parents had not refused, but had merely expressed reluctance to testify, and because competent counsel would have attempted to persuade them to testify, which Mirzayance’s counsel admittedly did not. The court essentially concluded that competent counsel would have pursued the insanity defense because counsel had nothing to lose by putting on the only defense available. In addition, the court found prejudice because, in the court’s view, there was a reasonable probability the jury would have found Mirzayance insane had counsel pursued the NGI phase. The Ninth Circuit concluded that federal habeas relief was authorized under 28 U. S. C. §2254(d)(1) because the California Court of Appeal had “unreasonabl[y] appli[ed] clearly established Federal law.” Held: Whether the state-court decision is reviewed under §2254(d)(1)’s standard or de novo, Mirzayance has failed to establish that his counsel’s performance was ineffective. Pp. 8–16. (a) The State Court of Appeal’s denial of Mirzayance’s ineffective-assistance claim did not violate clearly established federal law. The Ninth Circuit reached a contrary result based largely on its application of an improper review standard—it blamed counsel for abandoning the NGI claim because there was “nothing to lose” by pursuing it. But it is not “an unreasonable application of clearly established Federal law” for a state court to decline to apply a specific legal rule that has not been squarely established by this Court. See, e.g., Wright v. Van Patten, 552 U. S. ___, ___. Absent anything akin to the “nothing to lose” standard in this Court’s precedent, habeas relief could have been granted under §2254(d)(1) only if the state-court decision in this case had unreasonably applied Strickland’s more general standard for ineffective-assistance claims, whereby a defendant must show both deficient performance by counsel and prejudice, 466 U. S., at 687. The question “is not whether a federal court believes the state court’s determination” under Strickland “was incorrect but whether [it] was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U. S. 465, 473. And, because Strickland’s is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. Under the doubly deferential judicial review that applies to a Strickland claim evaluated under the §2254(d)(1) standard, Mirzayance’s ineffective-assistance claim fails. It was not unreasonable for the state court to conclude that counsel’s performance was not deficient when he counseled Mirzayance to abandon a claim that stood almost no chance of success. Pp. 8–11. (b) Even if Mirzayance’s ineffective-assistance claim were eligible for de novo review, it would still fail because he has not shown ineffective assistance at all. Mirzayance can establish neither the deficient performance nor the prejudice required by Strickland. As to performance, he has not shown “that counsel’s representation fell below an objective standard of reasonableness.” 466 U. S., at 687–688. Rather, counsel merely recommended the withdrawal of what he reasonably believed was a claim doomed because similar medical testimony had already been rejected and the parents’ testimony, which he believed to be his strongest evidence, would not be available. The Ninth Circuit’s position that competent counsel might have persuaded the reluctant parents to testify is in tension with the Magistrate Judge’s contrary findings and applies a more demanding standard than Strickland prescribes. The failure to show ineffective assistance is also confirmed by the Magistrate Judge’s finding that counsel’s decision was essentially an informed one “made after thorough investigation of law and facts relevant to plausible options,” and was therefore “virtually unchallengeable.” Id., at 690. The Ninth Circuit’s insistence that counsel was required to assert the only defense available, even one almost certain to lose, is not supported by any “prevailing professional norms” of which the Court is aware. See id., at 688. Nor has Mirzayance demonstrated that he suffered prejudice, which requires a showing of “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See id., at 694. In fact, it was highly improbable that the jury, having just rejected testimony about Mirzayance’s mental condition in the guilt phase, would have reached a different result based on similar evidence at the NGI phase. Pp. 11–16. Reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Breyer, and Alito, JJ., joined, and in which Scalia, Souter, and Ginsburg, JJ., joined as to all but Part II. | * A federal court may grant a habeas corpus application arising from a state-court adjudication on the merits if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1). In this case, respondent Alexandre Mirzayance claimed ineffective assistance of counsel because his attorney recommended withdrawing his insanity defense. The California courts rejected this claim on state postconviction review. We must decide whether this decision was contrary to or an unreasonable application of clearly established federal law. We hold that it was not. Whether reviewed under the standard of review set forth in §2254(d)(1) or de novo, Mirzayance failed to establish that his counsel’s performance was ineffective, see Strickland v. Washington, 466 U. S. 668 (1984). I Mirzayance confessed that he stabbed his 19-year-old cousin nine times with a hunting knife and then shot her four times. At trial, he entered pleas of not guilty and not guilty by reason of insanity (NGI). Under California law, when both of these pleas are entered, the court must hold a bifurcated trial, with guilt determined during the first phase and the viability of the defendant’s NGI plea during the second. Cal. Penal Code Ann. §1026(a) (West 1985). During the guilt phase of Mirzayance’s trial, he sought to avoid a conviction for first-degree murder by obtaining a verdict on the lesser included offense of second-degree murder. To that end, he presented medical testimony that he was insane at the time of the crime and was, therefore, incapable of the premeditation or deliberation necessary for a first-degree murder conviction. The jury nevertheless convicted Mirzayance of first-degree murder. The trial judge set the NGI phase to begin the day after the conviction was entered but, on the advice of counsel, Mirzayance abandoned his NGI plea before it commenced. He would have borne the burden of proving his insanity during the NGI phase to the same jury that had just convicted him of first-degree murder. Counsel had planned to meet that burden by presenting medical testimony similar to that presented in the guilt phase, including evidence that Mirzayance was insane and incapable of premeditating or deliberating. Because the jury rejected similar evidence at the guilt phase (where the State bore the burden of proof), counsel believed a defense verdict at the NGI phase (where the burden was on the defendant) was unlikely. He planned, though, to have Mirzayance’s parents testify and thus provide an emotional account of Mirzayance’s struggles with mental illness to supplement the medical evidence of insanity. But on the morning that the NGI phase was set to begin, Mirzayance’s parents refused to testify. After consulting with co-counsel, counsel advised Mirzayance that he should withdraw the NGI plea. Mirzayance accepted the advice. After he was sentenced, Mirzayance challenged his conviction in state postconviction proceedings. Among other allegations, he claimed that counsel’s recommendation to withdraw the NGI plea constituted ineffective assistance of counsel under Strickland. The California trial court denied the petition and the California Court of Appeal affirmed without offering any reason for its rejection of this particular ineffective assistance claim. People v. Mirzayance, Nos. B116856, B124764 (Mar. 31, 1999), App. to Pet. for Cert. 165–167, 200–201 (hereinafter App.). Mirzayance then filed an application for federal habeas relief under 28 U. S. C. §2254, which the District Court denied without an evidentiary hearing. The Court of Appeals reversed the District Court and ordered an evidentiary hearing on counsel’s recommendation to withdraw the NGI plea. Mirzayance v. Hickman, 66 Fed. Appx. 676, 679–681 (CA9 2003). During that evidentiary hearing, a Magistrate Judge made factual findings that the District Court later adopted. Post-Remand Report and Recommendation of United States Magistrate Judge in No. CV 00–01388 DT (RZ) (CD Cal.), App. 38, 68; Mirzayance v. Knowles, No. CV 00–1388 DT (RZ) (CD Cal., Nov. 15, 2004), id., at 35–36. According to the Magistrate Judge, counsel’s strategy for the two-part trial was to seek a second-degree murder verdict in the first stage and to seek an NGI verdict in the second stage. This strategy faltered when the jury instead convicted Mirzayance of first-degree murder. In the circumstances of this case, the medical evidence that Mirzayance planned to adduce at the NGI phase essentially would have duplicated evidence that the jury had necessarily rejected in the guilt phase. First-degree murder in California includes any killing that is “willful, deliberate, and premeditated.” Cal. Penal Code Ann. §189 (West 1999). To prove NGI, a defendant must show that he was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong at the time of the offense. See People v. Lawley, 27 Cal. 4th 102, 170, 38 P. 3d 461, 508 (2002). Highlighting this potential contradiction, the trial judge instructed the jury during the guilt phase that “[t]he word ‘deliberate,’ ” as required for a first-degree murder conviction, “means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” App. 48–49. When the jury found Mirzayance guilty of first-degree murder, counsel doubted the likelihood of prevailing on the NGI claim. According to the Magistrate Judge: “The defense suspected that a jury’s finding, beyond a reasonable doubt, that [Mirzayance] had ‘deliberated’ and ‘premeditated’ his killing of [the victim] as a practical matter would cripple [Mirzayance’s] chances of convincing the jury later, during the sanity phase, that [Mirzayance] nevertheless ‘was incapable of knowing or understanding the nature and quality of his … act and of distinguishing right from wrong at the time of the commission of the offense,’ Cal. Penal Code §25(b), … . . . . . . “Any remaining chance of securing an NGI verdict … now depended (in [counsel’s] view) on presenting some ‘emotional [im]pact’ testimony by [Mirzayance’s] parents, which [counsel] had viewed as key even if the defense had secured a second-degree murder verdict at the guilt phase.” Id., at 50–51 (emphasis in original; capitalization omitted). But, as the Magistrate Judge found, on the morning that the NGI phase was set to begin, Mirzayance’s parents effectively refused to testify: “[T]he parents at least expressed clear reluctance to testify, which, in context, conveyed the same sense as a refusal.” Id., at 72 (emphasis in original). Although the parties disputed this point, the parents’ later actions supported the Magistrate Judge’s finding that the parents’ reluctance to testify amounted to refusal: “Corroborating the Court’s finding that [Mirzayance’s] parents indicated a strong disinclination to testify at the NGI phase are the facts that (1) they did not testify later at his sentencing hearing, and (2) the reason for their choosing not to do so … is that … [it] would have been ‘too emotional’ for them… . If weeks after the guilty verdict and the withdrawal of their son’s NGI plea, [Mirzayance’s] parents’ emotions still prevented them from testifying at the sentencing hearing, then surely those emotional obstacles to their testifying in the NGI phase would have been at least as potent, and probably more so.” Id., at 73 (emphasis in original). The Magistrate Judge found that counsel made a carefully reasoned decision not to go forward with the NGI plea: “[Counsel] carefully weighed his options before making his decision final; he did not make it rashly… . [Counsel’s] strategy at the NGI phase … depended entirely on the heartfelt participation of [Mirzayance’s] parents as witnesses… . Moreover, [counsel] knew that, although he had experts lined up to testify, their testimony had significant weaknesses… . [Counsel’s] NGI-phase strategy became impossible to attempt once [Mirzayance’s] parents … expressed … their reluctance to [testify] … . All [counsel] was left with were four experts, all of whom reached a conclusion—that [Mirzayance] did not premeditate and deliberate his crime—that the same jury about to hear the NGI evidence already had rejected under a beyond-a-reasonable-doubt standard of proof. The experts were subject to other impeachment as well… . [Counsel] discussed the situation with his experienced co-counsel … who concurred in [counsel’s] proposal that he recommend to [Mirzayance] the withdrawal of the NGI plea.” Id., at 69–71. Based on these factual findings, the Magistrate Judge stated that, in his view, counsel’s performance was not deficient. Despite this determination, the Magistrate Judge concluded that the court was bound by the Court of Appeals’ remand order to determine only whether “ ‘there were tactical reasons for abandoning the insanity defense.’ ” Id., at 98 (quoting Hickman, 66 Fed. Appx., at 680). Even though the Magistrate Judge thought that counsel was reasonable in recommending that a very weak claim be dropped, the Magistrate Judge understood the remand order to mean that counsel’s performance was deficient if withdrawing the NGI plea would achieve no tactical advantage. The Magistrate Judge found that “[Mirzayance] had nothing to lose” by going forward with the NGI phase of the trial, App. 100, and thus held, under the remand order, that counsel’s performance was deficient, ibid. As to prejudice, the Magistrate Judge concluded the court was similarly bound by the remand order because the Court of Appeals described the NGI defense as remaining “ ‘viable and strong.’ ” Id., at 98 (quoting Hickman, supra, at 681). Accordingly, the Magistrate Judge found prejudice and recommended granting the writ of habeas corpus. The District Court accepted this recommendation and granted the writ. The Court of Appeals affirmed. Mirzayance v. Knowles, 175 Fed. Appx. 142, 143 (CA9 2006). It first stated that the lower court had misunderstood its remand order, which it described as requiring an examination of “counsel’s reason for abandoning the insanity defense,” rather than as mandating that the District Court must find deficient performance if it found counsel had “nothing to lose” by pursuing the insanity defense. Ibid.; App. 98–99. Nonetheless, the Court of Appeals affirmed the finding of deficient performance. According to the court, Mirzayance’s “parents did not refuse, but merely expressed reluctance to testify.” Knowles, 175 Fed. Appx., at 144. And because they may have been willing, “[c]ompetent counsel would have attempted to persuade them to testify, which counsel here admits he did not.” Ibid.[Footnote 1] The Court of Appeals also “disagree[d] that counsel’s decision was carefully weighed and not made rashly.” Ibid. Furthermore, even though it had suggested that the District Court unnecessarily evaluated counsel’s strategy under a “nothing to lose” standard, the Court of Appeals affirmed the District Court in large part because Mirzayance’s “counsel did not make a true tactical choice” based on its view that counsel had nothing to gain by dropping the NGI defense. Ibid. The court held that “[r]easonably effective assistance would put on the only defense available, especially in a case such as this where there was significant potential for success.” Id., at 145 (internal quotation marks omitted). The Court of Appeals also found prejudice because, in its view, “[i]f counsel had pursued the insanity phase of the trial, there is a reasonable probability . . . that the jury would have found Mirzayance insane.” Ibid. We granted the petition for writ of certiorari, vacated the Court of Appeals’ opinion, and remanded for further consideration in light of Carey v. Musladin, 549 U. S. 70 (2006), which held that a state court had not “ ‘unreasonabl[y] appli[ed] clearly established Federal law’ ” when it declined to apply our precedent concerning state-sponsored courtroom practices to a case involving spectator conduct at trial, id., at 76–77. Knowles v. Mirzayance, 549 U. S. 1199 (2007). On remand, the Court of Appeals concluded that its decision was unaffected by Musladin and again affirmed the District Court’s grant of habeas corpus. App. 4. The Court of Appeals reiterated the same analysis on which it had relied prior to this Court’s remand, again finding that the California court had unreasonably applied clearly established federal law because defense counsel’s failure to pursue the insanity defense constituted deficient performance as it “secured … [n]o actual tactical advantage.” Id., at 8. We granted certiorari, 554 U. S. ___ (2008). II Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1), a federal court may not grant a state prisoner’s habeas application unless the relevant state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”[Footnote 2] Here, the relevant state-court decision is the California Court of Appeal’s decision denying state habeas relief. We conclude that the state court’s decision to deny Mirzayance’s ineffective-assistance-of-counsel claim did not violate clearly established federal law. The Court of Appeals reached a contrary result based, in large measure, on its application of an improper standard of review—it blamed counsel for abandoning the NGI claim because there was nothing to lose by pursuing it.[Footnote 3] But this Court has held on numerous occasions that it is not “ ‘an unreasonable application of clearly established Federal law’ ” for a state court to decline to apply a specific legal rule that has not been squarely established by this Court. See Wright v. Van Patten, 552 U. S. ___, ___ (2008) (slip op., at 5–6 (per curiam); Schriro v. Landrigan, 550 U. S. 465, 478 (2007); Musladin, supra, at 76–77. This Court has never established anything akin to the Court of Appeals’ “nothing to lose” standard for evaluating Strickland claims. Indeed, Mirzayance himself acknowledges that a “nothing to lose” rule is “unrecognized by this Court.” Brief for Respondent 28. And the Court of Appeals did not cite any Supreme Court decision establishing a “nothing to lose” standard in any of its three opinions in this case. See App. 3–12; Knowles, 175 Fed. Appx. 142; Hickman, 66 Fed. Appx. 676. With no Supreme Court precedent establishing a “nothing to lose” standard for ineffective-assistance-of-counsel claims, habeas relief cannot be granted pursuant to §2254(d)(1) based on such a standard. Instead, such relief may be granted only if the state-court decision unreasonably applied the more general standard for ineffective-assistance-of-counsel claims established by Strickland, in which this Court held that a defendant must show both deficient performance and prejudice in order to prove that he has received ineffective assistance of counsel, 466 U. S., at 687. Indeed, this Court has repeatedly applied that standard to evaluate ineffective-assistance-of-counsel claims where there is no other Supreme Court precedent directly on point. See, e.g., Van Patten, supra, at ___ (slip op., at 5) (evaluating claim under Strickland where no Supreme Court precedent established that any other standard applied to the “novel factual context” before the Court); Schriro, supra, at 478 (evaluating claim under general Strickland standard where no Supreme Court precedent addressed the particular “situation in which a client interferes with counsel’s efforts to present mitigating evidence to a sentencing court”). The question “is not whether a federal court believes the state court’s determination” under the Strickland standard “was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Schriro, supra, at 473. And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U. S. 652, 664 (2004) (“[E]valuating whether a rule applica- tion was unreasonable requires considering the rule’s specificity. The more general the rule, the more lee- way courts have in reaching outcomes in case-by-case determinations”). Under the doubly deferential judicial review that applies to a Strickland claim evaluated under the §2254(d)(1) standard, see Yarborough v. Gentry, 540 U. S. 1, 5–6 (2003) (per curiam), Mirzayance’s ineffective-assistance claim fails. It was not unreasonable for the state court to conclude that his defense counsel’s performance was not deficient when he counseled Mirzayance to abandon a claim that stood almost no chance of success. As explained more fully below, this Court has never required defense counsel to pursue every claim or defense, regardless of its merit, viability, or realistic chance for success. See also infra, at 14–15. III Even if Mirzayance’s ineffective-assistance-of-counsel claim were eligible for de novo review, it would still fail. Strickland requires a defendant to establish deficient performance and prejudice. 466 U. S., at 687. Mirzayance can establish neither. Mirzayance has not shown “that counsel’s representation fell below an objective standard of reasonableness.” Id., at 687–688. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id., at 688. “Judicial scrutiny of counsel’s performance must be highly deferential,” and “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id., at 689. “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id., at 690. Here, Mirzayance has not shown that his counsel violated these standards. Rather, his counsel merely recommended the withdrawal of what he reasonably believed was a claim doomed to fail. The jury had already rejected medical testimony about Mirzayance’s mental state in the guilt phase, during which the State carried its burden of proving guilt beyond a reasonable doubt. The Magistrate Judge explained this point: “All [counsel] was left with were four experts, all of whom reached a conclusion—that [Mirzayance] did not premeditate and deliberate his crime—that the same jury about to hear the NGI evidence already had rejected under a beyond-a-reasonable-doubt standard of proof. The experts were subject to other impeachment as well.” App. 71. In fact, the Magistrate Judge found that counsel “convincingly detailed ways in which [the experts] could have been impeached, for overlooking or minimizing facts which showcased [Mirzayance’s] clearly goal-directed behavior.” Id., at 70. In the NGI phase, the burden would have switched to Mirzayance to prove insanity by a preponderance of the evidence. Mirzayance’s counsel reasonably believed that there was almost no chance that the same jury would have reached a different result when considering similar evidence, especially with Mirzayance bearing the burden of proof. Furthermore, counsel knew he would have had to present this defense without the benefit of the parents’ testimony, which he believed to be his strongest evidence. See ibid. (“[Counsel’s] strategy at the NGI phase had been to appeal to the jury in one or both of two ways that depended entirely on the heartfelt participation of [Mirzayance’s] parents as witnesses”). Counsel reasonably concluded that this defense was almost certain to lose. The Court of Appeals took the position that the situation was not quite so dire because the parents “merely expressed reluctance to testify.” Id., at 7; Knowles, 175 Fed. Appx., at 144. It explained that “[c]ompetent counsel would have attempted to persuade them to testify.” App. 7; Knowles, supra, at 144. But that holding is in tension with the Magistrate Judge’s findings and applies a more demanding standard than Strickland prescribes. The Magistrate Judge noted that the parents “conveyed the same sense as a refusal.” App. 72. Indeed, the Magistrate Judge found that the parents “did not testify later at [Mirzayance’s] sentencing hearing” because it “would have been ‘too emotional’ for them.” Id., at 73 (quoting testimony from evidentiary hearing). Competence does not require an attorney to browbeat a reluctant witness into testifying, especially when the facts suggest that no amount of persuasion would have succeeded. Counsel’s acceptance of the parents’ “convey[ance] [of] … a refusal,” id., at 72, does not rise to the high bar for deficient performance set by Strickland. Mirzayance’s failure to show ineffective assistance of counsel is confirmed by the Magistrate Judge’s finding that “[counsel] carefully weighed his options before making his decision final; he did not make it rashly.” App. 69. The Magistrate Judge explained all of the factors that counsel considered—many of which are discussed above—and noted that counsel “discussed the situation with his experienced co-counsel” before making it. Id., at 71. In making this finding, the Magistrate Judge identified counsel’s decision as essentially an informed decision “made after thorough investigation of law and facts relevant to plausible options.” Strickland, 466 U. S., at 690. As we stated in Strickland, such a decision is “virtually unchallengeable.” Ibid. Without even referring to the Magistrate Judge’s finding, the Court of Appeals “disagree[d] that counsel’s decision was carefully weighed and not made rashly.” App. 7; Knowles, supra, at 144. In its view, “counsel acted on his subjective feelings of hopelessness without even considering the potential benefit to be gained in persisting with the plea.” App. 8; Knowles, supra, at 144–145. But courts of appeals may not set aside a district court’s factual findings unless those findings are clearly erroneous. Fed. Rule Civ. Proc. 52(a); Anderson v. Bessemer City, 470 U. S. 564, 573–574 (1985). Here, the Court of Appeals failed even to mention the clearly-erroneous standard, let alone apply it, before effectively overturning the lower court’s factual findings related to counsel’s behavior. In light of the Magistrate Judge’s factual findings, the state court’s rejection of Mirzayance’s ineffective-assistance-of-counsel claim was consistent with Strickland. The Court of Appeals insisted, however, that “ ‘[r]easonably effective assistance’ required here that counsel assert the only defense available … .” App. 8; see also Knowles, supra, at 145. But we are aware of no “prevailing professional norms” that prevent counsel from recommending that a plea be withdrawn when it is almost certain to lose. See Strickland, supra, at 688. And in this case, counsel did not give up “the only defense available.” Counsel put on a defense to first-degree murder during the guilt phase. Counsel also defended his client at the sentencing phase.[Footnote 4] The law does not require counsel to raise every available nonfrivolous defense. See Jones v. Barnes, 463 U. S. 745, 751 (1983); cf. Wiggins v. Smith, 539 U. S. 510, 533 (2003) (explaining, in case involving similar issue of counsel’s responsibility to present mitigating evidence at sentencing, that “Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant … [or even to] present mitigating evidence at sentencing in every case”). Counsel also is not required to have a tactical reason—above and beyond a reasonable appraisal of a claim’s dismal prospects for success—for recommending that a weak claim be dropped altogether. Mirzayance has thus failed to demonstrate that his counsel’s performance was deficient. In addition, Mirzayance has not demonstrated that he suffered prejudice from his counsel’s performance. See Strickland, 466 U. S., at 691 (“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., at 694. To prevail on his ineffective-assistance claim, Mirzayance must show, therefore, that there is a “reasonable probability” that he would have prevailed on his insanity defense had he pursued it. This Mirzayance cannot do. It was highly improbable that a jury, which had just rejected testimony about Mirzayance’s mental condition when the State bore the burden of proof, would have reached a different result when Mirzayance presented similar evidence at the NGI phase. See supra, at 12–13. IV Mirzayance has not shown that the state court’s conclusion that there was no ineffective assistance of counsel “was contrary to, or involved an unreasonable application of, clearly established Federal law” under §2254. In fact, he has not shown ineffective assistance at all. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to deny the petition. It is so ordered. * Justice Scalia, Justice Souter, and Justice Ginsburg join all but Part II of this opinion. Footnote 1 At best, the Court of Appeals’ characterization of counsel’s efforts to persuade the parents to testify is misleading. According to the Magistrate Judge, counsel testified that he did attempt to persuade the parents to testify but that their response “ ‘was kind of flat, and I had no influence over them.’ ” App. 54 (quoting testimony from evidentiary hearing). In his efforts to convince the parents to testify, counsel told them that Mirzayance “had no chance of securing an NGI verdict without the ‘emotional quality from nonprofessional witnesses’ that Mr. and Mrs. Mirzayance’s testimony could provide; and ‘that they were abandoning their son.’ ” Id., at 53–54 (same). Footnote 2 Before the Court of Appeals, Mirzayance contended that the standard of review set forth in §2254(d)(1) should not apply to his case. See Brief for Appellee in No. 04–57102 (CA9), pp. 28–29, 33. Before this Court, however, Mirzayance contends that the Court of Appeals correctly applied §2254(d) to his claim. See Brief for Respondent 27, 32. Mirzayance did question whether the California Court of Appeal’s denial of his claim should receive as much deference as the “prototypical” state-court adjudication “involv[ing] both a reasoned, written opinion and an adequate development of the factual record in support of the claims.” Id., at 33. Mirzayance thus contends that “the usual §2254(d) deferential approach must be modified and adapted” in evaluating his claim. Id., at 34. Nonetheless, because Mirzayance has not argued that §2254(d) is entirely inapplicable to his claim or that the state court failed to reach an adjudication on the merits, we initially evaluate his claim through the deferential lens of §2254(d). See United States v. International Business Machines Corp., 517 U. S. 843, 855, n. 3 (1996) (finding that party abandoned issue by failing to address it in the party’s brief on the merits); Posters ‘N’ Things, Ltd. v. United States, 511 U. S. 513, 527 (1994) (same). In addition, we do not decide whether the Court of Appeals was correct in finding that an evidentiary hearing on Mirzayance’s claim was required. See Mirzayance v. Hickman, 66 Fed. Appx. 676, 679–681 (CA9 2003). Mirzayance’s ineffective-assistance-of-counsel claim fails even under the facts presented at the evidentiary hearing. Footnote 3 Although the Court of Appeals implicitly disavowed the “nothing to lose” standard applied by the District Court and Magistrate Judge, see App. 5; Mirzayance v. Knowles, 175 Fed. Appx. 142, 143 (CA9 2006), it nevertheless concluded that “[n]o actual tactical advantage was to be gained” by counsel’s withdrawal of the insanity defense, App. 8; Knowles, supra, at 144. Finding that counsel is deficient by abandoning a defense where there is nothing to gain from that abandonment is equivalent to finding that counsel is deficient by declining to pursue a strategy where there is nothing to lose from pursuit of that strategy. Footnote 4 Mirzayance has no complaints about the sentencing phase since he received the lowest possible sentence for his first-degree murder conviction. California authorizes three possible sentences for murder: death, life imprisonment without parole, and imprisonment for 25 years to life. Cal. Penal Code Ann. §190(a) (West 1999). Mirzayance was sentenced to 25 years to life plus 4 years for a weapons enhancement. |
555.US.2008_07-610 | The collective-bargaining agreement between Maine and respondent local union, the exclusive bargaining agent for certain state employees, requires nonmember employees represented by the union to pay the local a “service fee” equal to the portion of union dues related to ordinary representational activities, e.g., collective bargaining or contract administration activities. That fee does not include nonchargeable union activities such as political, public relations, or lobbying activities. The fee includes a charge that represents the “affiliation fee” the local pays to the national union. But, it covers only the part of the affiliation fee that helps to pay for the national’s own chargeable activities, which include some litigation activities that directly benefit other locals or the national itself, rather than respondent local. The petitioners, nonmembers of the local, brought this suit claiming, inter alia, that the First Amendment prohibits charging them for any portion of the service fee that represents litigation that does not directly benefit the local, i.e., “national litigation.” The District Court found no material facts at issue and upheld this element of the fee. The First Circuit affirmed. Held: Under this Court’s precedent, the First Amendment permits a local union to charge nonmembers for national litigation expenses as long as (1) the subject matter of the (extra-local) litigation is of a kind that would be chargeable if the litigation were local, e.g., litigation appropriately related to collective bargaining rather than political activities, and (2) the charge is reciprocal in nature, i.e., the contributing local reasonably expects other locals to contribute similarly to the national’s resources used for costs of similar litigation on behalf of the contributing local if and when it takes place. Pp. 4–13. (a) Prior decisions frame the question at issue. The Court has long held that the First Amendment permits local unions designated as the exclusive bargaining representatives for certain employees to charge nonmember employees a service fee as a condition of their continued employment. With respect to litigation expenses, the Court also held that a local could charge nonmembers for expenses of litigation normally conducted by an exclusive representative, including litigation incidental to collective bargaining, but said (in language that the petitioners here emphasize) that litigation expenses “not having such connection with the bargaining unit are not to be charged to objecting employees.” Ellis v. Railway Clerks, 466 U. S. 435, 453. Later, the Court held, with respect to the chargeability of a local’s payment of an affiliation fee to a national, that the local “may charge objecting employees for their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees’ bargaining unit.” Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 524. The Court added that the local unit need not “demonstrate a direct and tangible impact upon the dissenting employee’s unit,” although there must be “some indication that the payment [say, to the national] is for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” Ibid. However, the Lehnert Court split into three irreconcilable factions on the subject here at issue, payment for national litigation. Pp. 4–9. (b) Because Lehnert failed to find a majority as to the chargeability of national litigation expenses, the lower courts have been uncertain about the matter. Having examined the question further, however, the Court now believes that, consistent with its precedent, costs of such litigation are chargeable provided the litigation meets the relevant standards for charging other national expenditures that the Lehnert majority enunciated. Under those standards, a local may charge a nonmember an appropriate share of its contribution to a national’s litigation expenses if (1) the subject matter of the national litigation bears an appropriate relation to collective bargaining and (2) the arrangement is reciprocal—that is, the local’s payment to the national affiliate is for “services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” 500 U. S., at 524. Logic suggests that the same standard should apply to national litigation expenses as to other national expenses, and the Court can find no significant difference between litigation activities and other national activities, the cost of which this Court has found chargeable. The petitioners’ arguments to the contrary, which rest primarily on their understanding of Ellis and Lehnert, are rejected. Pp. 9–11. (c) Applying Lehnert’s standard to the national litigation expenses at issue demonstrates that they are both appropriately related to collective bargaining activities and reciprocal, and are therefore chargeable. First, the record establishes that the kind of national litigation activity for which the local charges nonmembers concerns only those aspects of collective bargaining, contract administration, or other matters that the courts have held chargeable. No one here denies that under Lehnert this kind of activity bears an appropriate relation to collective bargaining. See, e.g., 500 U. S., at 519. Second, although the location of the litigation activity is at the national (or extraunit) level, such activity is chargeable as long as the charges are for services that may ultimately inure to local members’ benefit by virtue of their membership in the national union. Ibid. Respondent local says that the payment of its affiliation fee gives locals in general access to the national’s financial resources—compiled via contributions from various locals—which would not otherwise be available to the local when needed to effectively negotiate, administer, or enforce the local’s collective-bargaining agreements. Because no one claims that the national would treat respondent local any differently from other locals in this regard, the existence of reciprocity is not in dispute. Pp. 11–13. 498 F. 3d 49, affirmed. Breyer, J., delivered the opinion for a unanimous Court. Alito, J., filed a concurring opinion, in which Roberts, C. J., and Scalia, J., joined. | The State of Maine requires government employees to pay a service fee to the local union that acts as their exclusive bargaining agent even if those employees disagree with, and do not belong to, the union. This Court has held that, in principle, the government may require this kind of payment without violating the First Amendment. See, e.g., Railway Employes v. Hanson, 351 U. S. 225 (1956) (upholding such an arrangement as constitutional); Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977) (same); Lehnert v. Ferris Faculty Assn., 500 U. S. 507 (1991) (same). At the same time, the Court has considered the constitutionality of charging for various elements of such a fee, upholding the charging of some elements (e.g., those related to administering a collective-bargaining contract) while forbidding the charging of other elements (e.g., those related to political expenditures). Compare, e.g., Ellis v. Railway Clerks, 466 U. S. 435 (1984), with Machinists v. Street, 367 U. S. 740 (1961). In this case, a local union charges nonmembers a service fee that (among other things) reflects an affiliation fee that the local union pays to its national union organization. We focus upon one portion of that fee, a portion that the national union uses to pay for litigation expenses incurred in large part on behalf of other local units. We ask whether a local’s charge to nonmembers that reflects that element is consistent with the First Amendment. And we conclude that under our precedent the Constitution permits including this element in the local’s charge to nonmembers as long as (1) the subject matter of the (extra-local) litigation is of a kind that would be chargeable if the litigation were local, e.g., litigation appropriately related to collective bargaining rather than political activities, and (2) the litigation charge is reciprocal in nature, i.e., the contributing local reasonably expects other locals to contribute similarly to the national’s resources used for costs of similar litigation on behalf of the contributing local if and when it takes place. I Maine has designated the Maine State Employees Association (the local union) as the exclusive bargaining agent for certain executive branch employees. A collective-bargaining agreement between Maine and the local requires nonmember employees whom the union represents to pay the local union a “service fee.” And that service fee equals that portion of ordinary union dues that is related to ordinary representational activities, e.g., collective bargaining or contract administration activities. In calculating the fee, the union starts with ordinary union dues and subtracts a sum representing the pro rata cost of nonchargeable union activities such as political, public relations, or lobbying activities. The service fee includes a charge that represents the affiliation fee the local pays to its national union, the Service Employees International Union. The included charge takes account of the affiliation fee, however, only insofar as the fee helps to pay for the national’s activities that are of a chargeable kind, such as collective-bargaining or contract administration activities. The local does not charge nonmembers for the portion of the affiliation fee that helps pay for the national’s activities of a kind that would not normally be chargeable, such as political, public relations, or lobbying activities. The local includes in the chargeable portion of the affiliation fee an amount that helps the national pay for litigation activities, some of which do not directly benefit Maine’s state employees’ local but rather directly benefit other locals or the national organization itself. (For purposes of simplicity, we shall call all this extraunit litigation “national litigation.”) As is true of all other parts of the affiliation fee, the local’s charge to nonmembers reflects these national litigation costs only insofar as the national litigation concerns activities that are of a chargeable kind. The local does not charge nonmembers for the portion of national litigation costs that concerns activities of a kind that would not normally be chargeable, such as political, public relations, or lobbying activities. Numbers may help illustrate the scope of the issue. In 2005, the full service fee the local charged nonmembers amounted to about 49% of a member’s ordinary union dues. (The petitioners here, beneficiaries of grandfathering rules, paid a half fee, amounting to about 24.5% of a member’s fee.) The full fee for employees like the petitioners would have amounted to about $9.70 per month. About $1.34 per month of that $9.70 reflected a pro rata share of the portion of the national affiliation fee that the local believed was chargeable. The portion of the $1.34 per month affiliation fee charge that represented national litigation costs—the cost here at issue—amounted to considerably less. Although the amount at issue per nonmember may be small, nonmembers believed the principle important. And in December 2005, nonmembers challenged in arbitration several aspects of the local’s service fee, including the element at issue here. In 2006, the arbitrator found all aspects of the service fee lawful. Before the arbitrator reached his decision, however, the petitioners, who are nonmembers of the local union, brought this lawsuit in Maine’s Federal District Court also challenging various aspects of the service fee, including this element. In particular, they claimed that the First Amendment prohibits charging them for any portion of the service fee that represents what we have called “national litigation,” i.e., litigation that does not directly benefit the local. The District Court, finding no material facts at issue, upheld this element of the fee. 425 F. Supp. 2d 137 (2006). The Court of Appeals for the First Circuit affirmed the District Court’s determination. 498 F. 3d 49 (2007). Because of uncertainty among the Circuits as to whether, or when, the Constitution permits charging nonmembers for the costs of national litigation, we granted certiorari. Compare Otto v. Pennsylvania State Educ. Assn.-NEA, 330 F. 3d 125 (CA3 2003), with Pilots Against Illegal Dues v. Air Line Pilots Assn., 938 F. 2d 1123 (CA10 1991). II Prior decisions of this Court frame the question before us. In Hanson, Street, and Abood, the Court set forth a general First Amendment principle: The First Amendment permits the government to require both public sector and private sector employees who do not wish to join a union designated as the exclusive collective-bargaining representative at their unit of employment to pay that union a service fee as a condition of their continued employment. Taken together, Hanson and Street make clear that the local union cannot charge the nonmember for certain activities, such as political or ideological activities (with which the nonmembers may disagree). But under that precedent, the local can charge nonmembers for activities more directly related to collective bargaining. In such instances, the Court has determined that the First Amendment burdens accompanying the payment requirement are justified by the government’s interest in preventing freeriding by nonmembers who benefit from the union’s collective-bargaining activities and in maintaining peaceful labor relations. Street, 367 U. S., at 768–772; Hanson, 351 U. S., at 233–238. In Abood, the Court explained the basis for a First Amendment challenge to service fees as follows: “To be required to help finance the union as a collective-bargaining agent might well be thought . . . to interfere in some way with an employee’s freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.” 431 U. S., at 222. But the Abood Court rejected such a challenge. It found that, “the judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” Ibid. The Court added that, “ ‘furtherance of the common cause leaves some leeway for the leadership of the group. As long as they act to promote the cause which justified bringing the group together, the individual cannot withdraw his support merely because he disagrees with the group’s strategy.’ ” Id., at 223 (quoting Street, supra, at 778 (Douglas, J., concurring)). In Ellis and Lehnert, the Court refined the general First Amendment principle. In particular, it refined the boundaries of Abood’s constitutional “leeway” by describing the nature of the cost elements that the local, constitutionally speaking, could include, or which the local could not constitutionally include, in the service fee. In 1984, the Court wrote in Ellis that service fees are constitutionally permissible when they relate to the union’s duties of “negotiating and administering a collective agreement and in adjusting grievances and disputes.” 466 U. S., at 446–447 (citing Railway Clerks v. Allen, 373 U. S. 113, 121 (1963)). Accordingly, the Court explained, the local union could charge the nonmember for union “expenditures [that] are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.” 446 U. S., at 448. In doing so, the union could charge nonmembers for “the direct costs of negotiating and administering a collective-bargaining contract” and for “the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit.” Ibid. Applying this standard, the Ellis Court examined the particular service fee charges challenged in that case. The Court held that the local union could charge nonmembers for the costs of a national convention, id., at 448–449; for the costs of social activities, id., at 449–450; and for the costs of those portions of publications not devoted to political causes, id., at 450–451. Convention expenses are chargeable, the Court explained, because, if a local union is to function effectively, “it must maintain its corporate or associational existence.” Id., at 448. The Court also held that the local union could charge nonmembers for litigation expenses incidental to the local union’s negotiation or administration of a collective-bargaining agreement, fair representation litigation, jurisdictional disputes, or other litigation normally conducted by an exclusive representative. Id., at 453. But the Court then said (in language that the petitioners here emphasize) that “expenses of litigation not having such connection with the bargaining unit are not to be charged to objecting employees.” Ibid. (emphasis added). In 1991, the Court in Lehnert again described when an expense is chargeable. The Court said that a chargeable expenditure must bear an appropriate relation to collective-bargaining activity. 500 U. S., at 519. (Its specific description of that relation is not at issue here. Compare ibid., with id., at 557–558 (Scalia, J., concurring in judgment in part and dissenting in part)). The Court then considered one aspect of the matter here before us, the chargeability of a local union’s payment to a national organization, say, an affiliation fee. The Court assumed that, in any given year, such a payment would primarily benefit other local units or the national organization itself, but it would not necessarily provide a direct benefit to the contributing local. The petitioners in the case (nonmembers of a teacher’s union) argued that the Constitution forbids a local union to charge nonmembers for these activities, i.e., for “activities that, though closely related to collective bargaining generally, are not undertaken directly on behalf of the bargaining unit to which the objecting employees belong.” Id., at 519. The Court divided five to four on the general affiliation fee matter. The majority of the Court rejected the nonmembers’ claim. The Court noted that it had “never interpreted” the chargeability test “to require a direct relationship between the expense at issue and some tangible benefit to the dissenters’ bargaining unit.” Id., at 522. Indeed, “to require so close a connection would be to ignore the unified-membership structure under which many unions, including those here, operate.” Id., at 523. Rather, the affiliation relationship is premised on the “notion that the parent will bring to bear its often considerable economic, political, and informational resources when the local is in need of them.” Ibid. And that “part of a local’s affiliation fee which contributes to the pool of resources potentially available to the local is assessed for the bargaining unit’s protection, even if it is not actually expended on that unit in any particular membership year.” Ibid. The Court then held that “a local bargaining representative may charge objecting employees for their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees’ bargaining unit.” Id., at 524 (emphasis added). Of particular relevance here, the Court added that the local unit need not “demonstrate a direct and tangible impact upon the dissenting employee’s unit.” Nonetheless, it said, there must be “some indication that the payment [say, to the national affiliate] is for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” Ibid. Finally, the Lehnert Court turned to the subject now before us, that of payment for national litigation. On this point, the Court split into three irreconcilable factions. A plurality of four wrote that, even though the union was “clearly correct that precedent established through litigation on behalf of one unit may ultimately be of some use to another unit,” it nonetheless found “extraunit litigation to be more akin to lobbying in both kind and effect.” Id., at 528. The plurality added that litigation is often “expressive.” It concluded that “[w]hen unrelated to an objecting employee’s unit, such activities are not germane to the union’s duties as exclusive bargaining representative.” Ibid. The Member of the Court who provided the fifth vote for the other portions of the Court’s opinion dissented from the part of the opinion on national litigation. Justice Marshall noted that the plurality’s discussion of national litigation costs was dicta because no such costs were at issue in the case. Id., at 544 (opinion concurring in part and dissenting in part). Nevertheless, Justice Marshall characterized any rule that found national litigation costs per se nonchargeable as “surely incorrect” and indicated such costs should be assessed under the plurality’s own test, i.e., whether the litigation bears an appropriate relation to collective bargaining. Id., at 546–547. At the same time, four Members of the Court agreed with the nonmembers that including national costs in the service fee violates the First Amendment except when those costs pay for specific services “actually provided” to the local. Id., at 561 (Scalia, J., concurring in judgment in part and dissenting in part). They thought that a local union cannot charge nonmembers for national activities unless there is a direct relationship between the expenses and “some tangible benefit to the dissenters’ bargaining unit.” Id., at 562 (internal quotation marks omitted). In other words, the dissent expressly rejected the majority’s chargeability test for national expenses. But the dissent did not separately discuss national litigation activities, perhaps because, as Justice Marshall pointed out, they were not directly at issue in that case. III As a result of the Lehnert Court’s failure to find a majority as to the chargeability of national litigation expenses, the lower courts have been uncertain about the matter. Compare Otto, 330 F. 3d, at 138, with Pilots Against Illegal Dues, 938 F. 2d, at 1130–1131. Having examined the question further, we now believe that, consistent with the Court’s precedent, costs of that litigation are chargeable provided the litigation meets the relevant standards for charging other national expenditures that the Lehnert majority enunciated. Under those standards, a local union may charge a nonmember an appropriate share of its contribution to a national’s litigation expenses if (1) the subject matter of the national litigation bears an appropriate relation to collective bargaining and (2) the arrangement is reciprocal—that is, the local’s payment to the national affiliate is for “services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” 500 U. S., at 524. We reach this conclusion in part because logic suggests that the same standard should apply to national litigation expenses as to other national expenses. We can find no significant difference between litigation activities and other national activities the cost of which this Court has found chargeable. We can find no sound basis for holding that national social activities, national convention activities, and activities involved in producing the nonpolitical portions of national union publications all are chargeable but national litigation activities are not. See Ellis, 466 U. S., at 448–451. Of course, a local nonmember presumably has the right to attend, and consequently can directly benefit from, national social and convention activities; and a local nonmember can read, and benefit from, a national publication. But so can a local nonmember benefit from national litigation aimed at helping other units if the national or those other units will similarly contribute to the cost of litigation on the local union’s behalf should the need arise. The petitioners’ arguments to the contrary rest primarily upon their understanding of Ellis and Lehnert. Ellis, we must concede, sets forth certain kinds of national litigation—for the most part directly related to a local union’s particular interests—as chargeable; but it then goes on to say, as we have earlier pointed out, ante, at 6–7, that “expenses of litigation not having such a connection with the bargaining unit are not to be charged to objecting employees.” 466 U. S., at 453. Nonetheless, as the Court of Appeals noted, the Ellis Court focused upon a local union’s payment of national litigation expenses without any understanding as to reciprocity. Indeed, Justice Kennedy pointed out in his Lehnert dissent, “Ellis . . . contains no discussion of whether a bargaining unit might choose to fund litigation . . . through a cost sharing arrangement under the auspices of the affiliate.” 500 U. S., at 564 (opinion concurring in judgment in part and dissenting in part). Ellis nowhere explains why reciprocal litigation funding arrangements would fail to benefit a local union. Hence, Ellis does not answer the question presented here. We must also concede that a plurality in Lehnert wrote that national litigation expenses were not chargeable “[w]hen unrelated to an objecting employee’s unit.” 500 U. S., at 528. But, again, reciprocal litigation funding was not before the Court; hence the plurality could not (and did not) decide whether an understanding as to reciprocity produced the relationship necessary for chargeability. Regardless, a plurality does not speak for the Court as a whole. Nor can one simply add together the four Lehnert dissenters and the four Members of the plurality in an effort to find a majority of Justices who hold the petitioners’ view. That is because the Lehnert majority, speaking for the Court, adopted a more liberal standard of chargeability than the standard embraced by the dissent. And the question here is whether that standard permits charging nonmembers for national litigation expenses. There was no majority agreement in Lehnert about the answer to this last mentioned question. The best we can do for the petitioners is to find Lehnert ambiguous on the point at issue. IV Applying Lehnert’s standard to the national litigation expenses here at issue, we find them chargeable. First, the kind of national litigation activity for which the local charges nonmembers concerns only those aspects of collective bargaining, contract administration, or other matters that the courts have held chargeable. Ellis, supra, at 446–447. The lower courts found (and the petitioners here do not dispute) that the local charges nonmembers only for those national litigation activities that, in respect to subject matter, “were comparable to those undertaken” by the local and which the local “deemed chargeable” in its calculation of the “service fee.” 498 F. 3d, at 52, 64–65. And no one here denies that under Lehnert this kind of activity bears an appropriate relation to collective bargaining. See, e.g., Lehnert, 500 U. S., at 519; see also id., at 524 (“[A] local bargaining representative may charge objecting employees for their pro rata share of costs associated with otherwise chargeable activities of its state and national affiliates … ”). Second, the location of the litigation activity is at the national (or extraunit), not the local, level. But, as we have just said (under Lehnert), activity at the national level is chargeable as long as the charges in question are “for services that may ultimately inure to the benefit of the members of the local union by virtue of their membership in the parent organization.” Ibid. The Court of Appeals treated the litigation charge at issue as reciprocal in nature, and concluded the District Court must have done so as well. See 498 F. 3d, at 64–65. The local union here says that the payment of its affiliation fee gives locals in general access to the national’s financial resources—compiled via contributions from various locals—“which would not otherwise be available to the local union when needed to effectively negotiate, administer or enforce the local’s collective bargaining agreements.” Brief for Respondents 18–19. The resources in question include resources related to litigation. No one claims that the national would treat the local union before us any differently, in terms of making these resources available, than the national would treat any other local. The petitioners do not suggest the contrary. And we consequently conclude, as did the lower courts, that the existence of reciprocity is assumed by the parties and not here in dispute. The record then leads us to find that the national litigation expenses before us are both appropriately related to collective bargaining and reciprocal. Consequently, consistent with our precedent, those expenses are chargeable. The similar determination of the Court of Appeals is affirmed. It is so ordered. |
557.US.2008_07-591 | At petitioner’s state-court drug trial, the prosecution introduced certificates of state laboratory analysts stating that material seized by police and connected to petitioner was cocaine of a certain quantity. As required by Massachusetts law, the certificates were sworn to before a notary public and were submitted as prima facie evidence of what they asserted. Petitioner objected, asserting that Crawford v. Washington, 541 U. S. 36, required the analysts to testify in person. The trial court disagreed, the certificates were admitted, and petitioner was convicted. The Massachusetts Appeals Court affirmed, rejecting petitioner’s claim that the certificates’ admission violated the Sixth Amendment. Held: The admission of the certificates violated petitioner’s Sixth Amendment right to confront the witnesses against him. Pp. 3–23. (a) Under Crawford, a witness’s testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. 541 U. S., at 54. The certificates here are affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause, id., at 51. They asserted that the substance found in petitioner’s possession was, as the prosecution claimed, cocaine of a certain weight—the precise testimony the analysts would be expected to provide if called at trial. Not only were the certificates made, as Crawford required for testimonial statements, “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” id., at 52, but under the relevant Massachusetts law their sole purpose was to provide prima facie evidence of the substance’s composition, quality, and net weight. Petitioner was entitled to “be confronted with” the persons giving this testimony at trial. Id., at 54. Pp. 3–5. (b) The arguments advanced to avoid this rather straightforward application of Crawford are rejected. Respondent’s claim that the analysts are not subject to confrontation because they are not “accusatory” witnesses finds no support in the Sixth Amendment’s text or in this Court’s case law. The affiants’ testimonial statements were not “nearly contemporaneous” with their observations, nor, if they had been, would that fact alter the statements’ testimonial character. There is no support for the proposition that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation. The absence of interrogation is irrelevant; a witness who volunteers his testimony is no less a witness for Sixth Amendment purposes. The affidavits do not qualify as traditional official or business records. The argument that the analysts should not be subject to confrontation because their statements result from neutral scientific testing is little more than an invitation to return to the since-overruled decision in Ohio v. Roberts, 448 U. S. 56, 66, which held that evidence with “particularized guarantees of trustworthiness” was admissible without confrontation. Petitioner’s power to subpoena the analysts is no substitute for the right of confrontation. Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution’s task burdensome. In any event, the practice in many States already accords with today’s decision, and the serious disruption predicted by respondent and the dissent has not materialized. Pp. 5–23. 69 Mass. App. 1114, 870 N. E. 2d 676, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. Thomas, J., filed a concurring opinion. Kennedy, J., filed a dissenting opinion, in which Roberts, C. J., and Breyer and Alito, JJ., joined. | The Massachusetts courts in this case admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine. The question presented is whether those affidavits are “testimonial,” rendering the affiants “witnesses” subject to the defendant’s right of confrontation under the Sixth Amendment. I In 2001, Boston police officers received a tip that a Kmart employee, Thomas Wright, was engaging in suspicious activity. The informant reported that Wright repeatedly received phone calls at work, after each of which he would be picked up in front of the store by a blue sedan, and would return to the store a short time later. The police set up surveillance in the Kmart parking lot and witnessed this precise sequence of events. When Wright got out of the car upon his return, one of the officers detained and searched him, finding four clear white plastic bags containing a substance resembling cocaine. The officer then signaled other officers on the scene to arrest the two men in the car—one of whom was petitioner Luis Melendez-Diaz. The officers placed all three men in a police cruiser. During the short drive to the police station, the officers observed their passengers fidgeting and making furtive movements in the back of the car. After depositing the men at the station, they searched the police cruiser and found a plastic bag containing 19 smaller plastic bags hidden in the partition between the front and back seats. They submitted the seized evidence to a state laboratory required by law to conduct chemical analysis upon police request. Mass. Gen. Laws, ch. 111, §12 (West 2006). Melendez-Diaz was charged with distributing cocaine and with trafficking in cocaine in an amount between 14 and 28 grams. Ch. 94C, §§32A, 32E(b)(1). At trial, the prosecution placed into evidence the bags seized from Wright and from the police cruiser. It also submitted three “certificates of analysis” showing the results of the forensic analysis performed on the seized substances. The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine.” App. to Pet. for Cert. 24a, 26a, 28a. The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law. Mass. Gen. Laws, ch. 111, §13. Petitioner objected to the admission of the certificates, asserting that our Confrontation Clause decision in Crawford v. Washington, 541 U. S. 36 (2004), required the analysts to testify in person. The objection was overruled, and the certificates were admitted pursuant to state law as “prima facie evidence of the composition, quality, and the net weight of the narcotic … analyzed.” Mass. Gen. Laws, ch. 111, §13. The jury found Melendez-Diaz guilty. He appealed, contending, among other things, that admission of the certificates violated his Sixth Amendment right to be confronted with the witnesses against him. The Appeals Court of Massachusetts rejected the claim, affirmance order, 69 Mass. App. 1114, 870 N. E. 2d 676, 2007 WL 2189152, *4, n. 3 (July 31, 2007), relying on the Massachusetts Supreme Judicial Court’s decision in Commonwealth v. Verde, 444 Mass. 279, 283–285, 827 N. E. 2d 701, 705–706 (2005), which held that the authors of certificates of forensic analysis are not subject to confrontation under the Sixth Amendment. The Supreme Judicial Court denied review. 449 Mass. 1113, 874 N. E. 2d 407 (2007). We granted certiorari. 552 U. S. ___ (2008). II The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” In Crawford, after reviewing the Clause’s historical underpinnings, we held that it guarantees a defendant’s right to confront those “who ‘bear testimony’ ” against him. 541 U. S., at 51. A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id., at 54. Our opinion described the class of testimonial statements covered by the Confrontation Clause as follows: “Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id., at 51–52 (internal quotation marks and citations omitted). There is little doubt that the documents at issue in this case fall within the “core class of testimonial statements” thus described. Our description of that category mentions affidavits twice. See also White v. Illinois, 502 U. S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in judgment) (“[T]he Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”). The documents at issue here, while denominated by Massachusetts law “certificates,” are quite plainly affidavits: “declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” Black’s Law Dictionary 62 (8th ed. 2004). They are incontrovertibly a “ ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Crawford, supra, at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine—the precise testimony the analysts would be expected to provide if called at trial. The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.” Davis v. Washington, 547 U. S. 813, 830 (2006) (emphasis deleted). Here, moreover, not only were the affidavits “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’ ” Crawford, supra, at 52, but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance, Mass. Gen. Laws, ch. 111, §13. We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as stated in the relevant state-law provision—was reprinted on the affidavits themselves. See App. to Pet. for Cert. 25a, 27a, 29a. In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to “ ‘be confronted with’ ” the analysts at trial. Crawford, supra, at 54.[Footnote 1] III Respondent and the dissent advance a potpourri of analytic arguments in an effort to avoid this rather straightforward application of our holding in Crawford. Before addressing them, however, we must assure the reader of the falsity of the dissent’s opening alarum that we are “sweep[ing] away an accepted rule governing the admission of scientific evidence” that has been “established for at least 90 years” and “extends across at least 35 States and six Federal Courts of Appeals.” Post, at 1 (opinion of Kennedy, J.). The vast majority of the state-court cases the dissent cites in support of this claim come not from the last 90 years, but from the last 30, and not surprisingly nearly all of them rely on our decision in Ohio v. Roberts, 448 U. S. 56 (1980), or its since-rejected theory that unconfronted testimony was admissible as long as it bore indicia of reliability, id., at 66. See post, at 30.[Footnote 2] As for the six Federal Courts of Appeals cases cited by the dissent, five of them postdated and expressly relied on Roberts. See post, at 21–22. The sixth predated Roberts but relied entirely on the same erroneous theory. See Kay v. United States, 255 F. 2d 476, 480–481 (CA4 1958) (rejecting confrontation clause challenge “where there is reasonable necessity for [the evidence] and where . . . the evidence has those qualities of reliability and trustworthiness”). A review of cases that predate the Roberts era yields a mixed picture. As the dissent notes, three state supreme court decisions from the early 20th century denied confrontation with respect to certificates of analysis regarding a substance’s alcohol content. See post, at 21 (citing cases from Massachusetts, Connecticut, and Virginia). But other state courts in the same era reached the opposite conclusion. See Torres v. State, 18 S. W. 2d 179, 180 (Tex. Crim. App. 1929); Volrich v. State, No. 278, 1925 WL 2473 (Ohio App., Nov. 2, 1925). At least this much is entirely clear: In faithfully applying Crawford to the facts of this case, we are not overruling 90 years of settled jurisprudence. It is the dissent that seeks to overturn precedent by resurrecting Roberts a mere five years after it was rejected in Crawford. We turn now to the various legal arguments raised by respondent and the dissent. A Respondent first argues that the analysts are not subject to confrontation because they are not “accusatory” witnesses, in that they do not directly accuse petitioner of wrongdoing; rather, their testimony is inculpatory only when taken together with other evidence linking petitioner to the contraband. See Brief for Respondent 10. This finds no support in the text of the Sixth Amendment or in our case law. The Sixth Amendment guarantees a defendant the right “to be confronted with the witnesses against him.” (Emphasis added.) To the extent the analysts were witnesses (a question resolved above), they certainly provided testimony against petitioner, proving one fact necessary for his conviction—that the substance he possessed was cocaine. The contrast between the text of the Confrontation Clause and the text of the adjacent Compulsory Process Clause confirms this analysis. While the Confrontation Clause guarantees a defendant the right to be confronted with the witnesses “against him,” the Compulsory Process Clause guarantees a defendant the right to call witnesses “in his favor.” U. S. Const., Amdt. 6. The text of the Amendment contemplates two classes of witnesses—those against the defendant and those in his favor. The prosecution must produce the former;[Footnote 3] the defendant may call the latter. Contrary to respondent’s assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation. It is often, indeed perhaps usually, the case that an adverse witness’s testimony, taken alone, will not suffice to convict. Yet respondent fails to cite a single case in which such testimony was admitted absent a defendant’s opportunity to cross-examine.[Footnote 4] Unsurprisingly, since such a holding would be contrary to longstanding case law. In Kirby v. United States, 174 U. S. 47 (1899), the Court considered Kirby’s conviction for receiving stolen property, the evidence for which consisted, in part, of the records of conviction of three individuals who were found guilty of stealing the relevant property. Id., at 53. Though this evidence proved only that the property was stolen, and not that Kirby received it, the Court nevertheless ruled that admission of the records violated Kirby’s rights under the Confrontation Clause. Id., at 55. See also King v. Turner, 1 Mood. 347, 168 Eng. Rep. 1298 (1832) (confession by one defendant to having stolen certain goods could not be used as evidence against another defendant accused of receiving the stolen property). B Respondent and the dissent argue that the analysts should not be subject to confrontation because they are not “conventional” (or “typical” or “ordinary”) witnesses of the sort whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh. Post, at 15–16; Brief for Respondent 28. It is true, as the Court recognized in Crawford, that ex parte examinations of the sort used at Raleigh’s trial have “long been thought a paradigmatic confrontation violation.” 541 U. S., at 52. But the paradigmatic case identifies the core of the right to confrontation, not its limits. The right to confrontation was not invented in response to the use of the ex parte examinations in Raleigh’s Case, 2 How. St. Tr. 1 (1603). That use provoked such an outcry precisely because it flouted the deeply rooted common-law tradition “of live testimony in court subject to adversarial testing.” Crawford, supra, at 43 (citing 3 W. Blackstone, Commentaries on the Laws of England 373–374 (1768)). See also Crawford, supra, at 43–47. In any case, the purported distinctions respondent and the dissent identify between this case and Sir Walter Raleigh’s “conventional” accusers do not survive scrutiny. The dissent first contends that a “conventional witness recalls events observed in the past, while an analyst’s report contains near-contemporaneous observations of the test.” Post, at 16–17. It is doubtful that the analyst’s reports in this case could be characterized as reporting “near-contemporaneous observations”; the affidavits were completed almost a week after the tests were performed. See App. to Pet. for Cert. 24a–29a (the tests were performed on November 28, 2001, and the affidavits sworn on December 4, 2001). But regardless, the dissent misunderstands the role that “near-contemporaneity” has played in our case law. The dissent notes that that factor was given “substantial weight” in Davis, post, at 17, but in fact that decision disproves the dissent’s position. There the Court considered the admissibility of statements made to police officers responding to a report of a domestic disturbance. By the time officers arrived the assault had ended, but the victim’s statements—written and oral—were sufficiently close in time to the alleged assault that the trial court admitted her affidavit as a “present sense impression.” Davis, 547 U. S., at 820 (internal quotation marks omitted). Though the witness’s statements in Davis were “near-contemporaneous” to the events she reported, we nevertheless held that they could not be admitted absent an opportunity to confront the witness. Id., at 830. A second reason the dissent contends that the analysts are not “conventional witnesses” (and thus not subject to confrontation) is that they “observe[d] neither the crime nor any human action related to it.” Post, at 17. The dissent provides no authority for this particular limitation of the type of witnesses subject to confrontation. Nor is it conceivable that all witnesses who fit this description would be outside the scope of the Confrontation Clause. For example, is a police officer’s investigative report describing the crime scene admissible absent an opportunity to examine the officer? The dissent’s novel exception from coverage of the Confrontation Clause would exempt all expert witnesses—a hardly “unconventional” class of witnesses. A third respect in which the dissent asserts that the analysts are not “conventional” witnesses and thus not subject to confrontation is that their statements were not provided in response to interrogation. Ibid. See also Brief for Respondent 29. As we have explained, “[t]he 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.” Davis, supra, at 822–823, n. 1. Respondent and the dissent cite no authority, and we are aware of none, holding that a person who volunteers his testimony is any less a “ ‘witness against’ the defendant,” Brief for Respondent 26, than one who is responding to interrogation. In any event, the analysts’ affidavits in this case were presented in response to a police request. See Mass. Gen. Laws, ch. 111, §§12–13. If an affidavit submitted in response to a police officer’s request to “write down what happened” suffices to trigger the Sixth Amendment’s protection (as it apparently does, see Davis, 547 U. S., at 819–820; id., at 840, n. 5 (Thomas, J., concurring in judgment in part and dissenting in part)), then the analysts’ testimony should be subject to confrontation as well. C Respondent claims that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is “prone to distortion or manipulation,” and the testimony at issue here, which is the “resul[t] of neutral, scientific testing.” Brief for Respondent 29. Relatedly, respondent and the dissent argue that confrontation of forensic analysts would be of little value because “one would not reasonably expect a laboratory professional … to feel quite differently about the results of his scientific test by having to look at the defendant.” Id., at 31 (internal quotation marks omitted); see post, at 10–11. This argument is little more than an invitation to return to our overruled decision in Roberts, 448 U. S. 56, which held that evidence with “particularized guarantees of trustworthiness” was admissible notwithstanding the Confrontation Clause. Id., at 66. What we said in Crawford in response to that argument remains true: “To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. … Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” 541 U. S., at 61–62. Respondent and the dissent may be right that there are other ways—and in some cases better ways—to challenge or verify the results of a forensic test.[Footnote 5] But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available. Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” Id., at S–17. A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution. Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, post, at 10, the same cannot be said of the fraudulent analyst. See Brief for National Innocence Network as Amicus Curiae 15–17 (discussing cases of documented “drylabbing” where forensic analysts report results of tests that were never performed); National Academy Report 1–8 to 1–10 (discussing documented cases of fraud and error involving the use of forensic evidence). Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. See Coy v. Iowa, 487 U. S. 1012, 1019 (1988). And, of course, the prospect of confrontation will deter fraudulent analysis in the first place. Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that “[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics.” Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491 (2006). One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases. Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1, 14 (2009). And the National Academy Report concluded: “The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country.” National Academy Report P–1 (emphasis in original).[Footnote 6] Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination. This case is illustrative. The affidavits submitted by the analysts contained only the bare-bones statement that “[t]he substance was found to contain: Cocaine.” App. to Pet. for Cert. 24a, 26a, 28a. At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed. While we still do not know the precise tests used by the analysts, we are told that the laboratories use “methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs,” App. to Brief for Petitioner 1a–2a. At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination. See 2 P. Giannelli & E. Imwinkelried, Scientific Evidence §23.03[c], pp. 532–533, ch. 23A, p. 607 (4th ed. 2007) (identifying four “critical errors” that analysts may commit in interpreting the results of the commonly used gas chromatography/mass spectrometry analysis); Shellow, The Application of Daubert to the Identification of Drugs, 2 Shepard’s Expert & Scientific Evidence Quarterly 593, 600 (1995) (noting that while spectrometers may be equipped with computerized matching systems, “forensic analysts in crime laboratories typically do not utilize this feature of the instrument, but rely exclusively on their subjective judgment”). The same is true of many of the other types of forensic evidence commonly used in criminal prosecutions. “[T]here is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.” National Academy Report S–5. See also id., at 5–9, 5–12, 5–17, 5–21 (discussing problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint analysis, pattern/impression analysis, and toolmark and firearms analysis). Contrary to respondent’s and the dissent’s suggestion, there is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology—the features that are commonly the focus in the cross-examination of experts. D Respondent argues that the analysts’ affidavits are admissible without confrontation because they are “akin to the types of official and business records admissible at common law.” Brief for Respondent 35. But the affidavits do not qualify as traditional official or business records, and even if they did, their authors would be subject to confrontation nonetheless. Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman, 318 U. S. 109 (1943), made that distinction clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad’s operations, it was “calculated for use essentially in the court, not in the business.” Id., at 114.[Footnote 7] The analysts’ certificates—like police reports generated by law enforcement officials—do not qualify as business or public records for precisely the same reason. See Rule 803(8) (defining public records as “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”). Respondent seeks to rebut this limitation by noting that at common law the results of a coroner’s inquest were admissible without an opportunity for confrontation. But as we have previously noted, whatever the status of coroner’s reports at common law in England, they were not accorded any special status in American practice. See Crawford, 541 U. S., at 47, n. 2; Giles v. California, 554 U. S. ___, ___ (2008) (slip op., at 20) (Breyer, J., dissenting); Evidence—Official Records—Coroner’s Inquest, 65 U. Pa. L. Rev. 290 (1917). The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk’s certificate authenticating an official record—or a copy thereof—for use as evidence. See post, at 19. But a clerk’s authority in that regard was narrowly circumscribed. He was permitted “to certify to the correctness of a copy of a record kept in his office,” but had “no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.” State v. Wilson, 141 La. 404, 409, 75 So. 95, 97 (1917). See also State v. Champion, 116 N. C. 987, 21 S. E. 700, 700–701 (1895); 5 J. Wigmore, Evidence §1678 (3d ed. 1940). The dissent suggests that the fact that this exception was “ ‘narrowly circumscribed’ ” makes no difference. See post, at 20. To the contrary, it makes all the difference in the world. It shows that even the line of cases establishing the one narrow exception the dissent has been able to identify simultaneously vindicates the general rule applicable to the present case. A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant.[Footnote 8] Far more probative here are those cases in which the prosecution sought to admit into evidence a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it. Like the testimony of the analysts in this case, the clerk’s statement would serve as substantive evidence against the defendant whose guilt depended on the nonexistence of the record for which the clerk searched. Although the clerk’s certificate would qualify as an official record under respondent’s definition—it was prepared by a public officer in the regular course of his official duties—and although the clerk was certainly not a “conventional witness” under the dissent’s approach, the clerk was nonetheless subject to confrontation. See People v. Bromwich, 200 N. Y. 385, 388–389, 93 N. E. 933, 934 (1911); People v. Goodrode, 132 Mich. 542, 547, 94 N. W. 14, 16 (1903); Wigmore, supra, §1678.[Footnote 9] Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause. As we stated in Crawford: “Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy.” 541 U. S., at 56. Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial. Whether or not they qualify as business or official records, the analysts’ statements here—prepared specifically for use at petitioner’s trial—were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment. E Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power—whether pursuant to state law or the Compulsory Process Clause—is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. See, e.g., Davis, 547 U. S., at 820 (“[The witness] was subpoenaed, but she did not appear at … trial”). Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses. F Finally, respondent asks us to relax the requirements of the Confrontation Clause to accommodate the “ ‘necessities of trial and the adversary process.’ ” Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience. We also doubt the accuracy of respondent’s and the dissent’s dire predictions. The dissent, respondent, and its amici highlight the substantial total number of controlled-substance analyses performed by state and federal laboratories in recent years. But only some of those tests are implicated in prosecutions, and only a small fraction of those cases actually proceed to trial. See Brief for Law Professors as Amici Curiae 7–8 (nearly 95% of convictions in state and federal courts are obtained via guilty plea).[Footnote 10] Perhaps the best indication that the sky will not fall after today’s decision is that it has not done so already. Many States have already adopted the constitutional rule we announce today,[Footnote 11] while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report, id., at 13–15 (cataloging such state laws). Despite these widespread practices, there is no evidence that the criminal justice system has ground to a halt in the States that, one way or another, empower a defendant to insist upon the analyst’s appearance at trial. Indeed, in Massachusetts itself, a defendant may subpoena the analyst to appear at trial, see Brief for Respondent 57, and yet there is no indication that obstructionist defendants are abusing the privilege. The dissent finds this evidence “far less reassuring than promised.” Post, at 28. But its doubts rest on two flawed premises. First, the dissent believes that those state statutes “requiring the defendant to give early notice of his intent to confront the analyst,” are “burden-shifting statutes [that] may be invalidated by the Court’s reasoning.” Post, at 22, 28–29. That is not so. In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial. See, e.g, Ga. Code Ann. §35–3–154.1 (2006); Tex. Code Crim. Proc. Ann., Art. 38.41, §4 (Vernon 2005); Ohio Rev. Code Ann. §2925.51(C) (West 2006). Contrary to the dissent’s perception, these statutes shift no burden whatever. The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections. See Wainwright v. Sykes, 433 U. S. 72, 86–87 (1977). It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. See Fed. Rules Crim. Proc. 12.1(a), (e), 16(b)(1)(C); Comment: Alibi Notice Rules: The Preclusion Sanction as Procedural Default, 51 U. Chi. L. Rev. 254, 254–255, 281–285 (1984) (discussing and cataloguing State notice-of-alibi rules); Taylor v. Illinois, 484 U. S. 400, 411 (1988); Williams v. Florida, 399 U. S. 78, 81–82 (1970). There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. See Hinojos-Mendoza v. People, 169 P. 3d 662, 670 (Colo. 2007) (discussing and approving Colorado’s notice-and-demand provision). Today’s decision will not disrupt criminal prosecutions in the many large States whose practice is already in accord with the Confrontation Clause.[Footnote 12] Second, the dissent notes that several of the state-court cases that have already adopted this rule did so pursuant to our decision in Crawford, and not “independently … as a matter of state law.” Post, at 28. That may be so. But in assessing the likely practical effects of today’s ruling, it is irrelevant why those courts adopted this rule; it matters only that they did so. It is true that many of these decisions are recent, but if the dissent’s dire predictions were accurate, and given the large number of drug prosecutions at the state level, one would have expected immediate and dramatic results. The absence of such evidence is telling. But it is not surprising. Defense attorneys and their clients will often stipulate to the nature of the substance in the ordinary drug case. It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis. Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion.[Footnote 13] The amicus brief filed by District Attorneys in Support of the Commonwealth in the Massachusetts Supreme Court case upon which the Appeals Court here relied said that “it is almost always the case that [analysts’ certificates] are admitted without objection. Generally, defendants do not object to the admission of drug certificates most likely because there is no benefit to a defendant from such testimony.” Brief for District Attorneys in Support of the Commonwealth in No. SJC–09320 (Mass.), p. 7 (footnote omitted). Given these strategic considerations, and in light of the experience in those States that already provide the same or similar protections to defendants, there is little reason to believe that our decision today will commence the parade of horribles respondent and the dissent predict. * * * This case involves little more than the application of our holding in Crawford v. Washington, 541 U. S. 36. The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.[Footnote 14] We therefore reverse the judgment of the Appeals Court of Massachusetts and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Contrary to the dissent’s suggestion, post, at 3–4, 7 (opinion of Kennedy, J.), we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. While the dissent is correct that “[i]t is the obligation of the prosecution to establish the chain of custody,” post, at 7, this does not mean that everyone who laid hands on the evidence must be called. As stated in the dissent’s own quotation, ibid., from United States v. Lott, 854 F. 2d 244, 250 (CA7 1988), “gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.” It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records. See infra, at 15–16, 18. Footnote 2 The exception is a single pre-Roberts case that relied on longstanding Massachusetts precedent. See Commonwealth v. Harvard, 356 Mass. 452, 462, 253 N. E. 2d 346, 352 (1969). Others are simply irrelevant, since they involved medical reports created for treatment purposes, which would not be testimonial under our decision today. See, e.g., Baber v. State, 775 So. 2d 258, 258–259 (Fla. 2000); State v. Garlick, 313 Md. 209, 223–225, 545 A. 2d 27, 34–35 (1998). Footnote 3 The right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections. See infra, at 21. Footnote 4 Respondent cites our decision in Gray v. Maryland, 523 U. S. 185 (1998). That case did indeed distinguish between evidence that is “incriminating on its face” and evidence that “bec[omes] incriminating … only when linked with evidence introduced later at trial, ” id., at 191 (internal quotation marks omitted). But it did so for the entirely different purpose of determining when a nontestifying codefendant’s confession, redacted to remove all mention of the defendant, could be admitted into evidence with instruction for the jury not to consider the confession as evidence against the nonconfessor. The very premise of the case was that, without the limiting instruction even admission of a redacted confession containing evidence of the latter sort would have violated the defendant’s Sixth Amendment rights. See id., at 190–191. Footnote 5 Though surely not always. Some forensic analyses, such as autopsies and breathalyzer tests, cannot be repeated, and the specimens used for other analyses have often been lost or degraded. Footnote 6 Contrary to the dissent’s suggestion, post, at 23, we do not “rel[y] in such great measure” on the deficiencies of crime-lab analysts shown by this report to resolve the constitutional question presented in this case. The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa. We discuss the report only to refute the suggestion that this category of evidence is uniquely reliable and that cross-examination of the analysts would be an empty formalism. Footnote 7 The early common-law cases likewise involve records prepared for the administration of an entity’s affairs, and not for use in litigation. See, e.g., King v. Rhodes, 1 Leach 24, 168 Eng. Rep. 115 (1742) (admitting into evidence ship’s muster-book); King v. Martin, 2 Camp. 100, 101, 170 Eng. Rep. 1094, 1095 (1809) (vestry book); King v. Aickles, 1 Leach 390, 391–392, 168 Eng. Rep. 297, 298 (1785) (prison logbook). Footnote 8 The dissent’s reliance on our decision in Dowdell v. United States, 221 U. S. 325 (1911), see post, at 20 (opinion of Kennedy, J.), is similarly misplaced. As the opinion stated in Dowdell—and as this Court noted in Davis v. Washington, 547 U. S. 813, 825 (2006)—the judge and clerk who made the statements at issue in Dowdell were not witnesses for purposes of the Confrontation Clause because their statements concerned only the conduct of defendants’ prior trial, not any facts regarding defendants’ guilt or innocence. 221 U. S., at 330–331. Footnote 9 An earlier line of 19th century state-court cases also supports the notion that forensic analysts’ certificates were not admitted into evidence as public or business records. See Commonwealth v. Waite, 93 Mass. 264, 266 (1865); Shivers v. Newton, 45 N. J. L. 469, 476 (Sup. Ct. 1883); State v. Campbell, 64 N. H. 402, 403, 13 A. 585, 586 (1888). In all three cases, defendants—who were prosecuted for selling adulterated milk—objected to the admission of the state chemists’ certificates of analysis. In all three cases, the objection was defeated because the chemist testified live at trial. That the prosecution came forward with live witnesses in all three cases suggests doubt as to the admissibility of the certificates without opportunity for cross-examination. Footnote 10 The dissent provides some back-of-the-envelope calculations regarding the number of court appearances that will result from today’s ruling. Post, at 13–14. Those numbers rely on various unfounded assumptions: that the prosecution will place into evidence a drug analysis certificate in every case; that the defendant will never stipulate to the nature of the controlled substance; that even where no such stipulation is made, every defendant will object to the evidence or otherwise demand the appearance of the analyst. These assumptions are wildly unrealistic, and, as discussed below, the figures they produce do not reflect what has in fact occurred in those jurisdictions that have already adopted the rule we announce today. Footnote 11 State v. Johnson, 982 So. 2d 672, 680–681 (Fla. 2008); Hinojos-Mendoza v. People, 169 P. 3d 662, 666–667 (Colo. 2007); State v. Birchfield, 342 Ore. 624, 631–632, 157 P. 3d 216, 220 (2007); State v. March, 216 S. W. 3d 663, 666–667 (Mo. 2007); Thomas v. United States, 914 A. 2d 1, 12–13 (D. C. 2006); State v. Caulfield, 722 N. W. 2d 304, 310 (Minn. 2006); Las Vegas v. Walsh, 121 Nev. 899, 904–906, 124 P. 3d 203, 207–208 (2005); People v. McClanahan, 191 Ill. 2d 127, 133–134, 729 N. E. 2d 470, 474–475 (2000); Miller v. State, 266 Ga. 850, 854–855, 472 S. E. 2d 74, 78–79 (1996); Barnette v. State, 481 So. 2d 788, 792 (Miss. 1985). Footnote 12 As the dissent notes, post, at 27, some state statutes, “requir[e] defense counsel to subpoena the analyst, to show good cause for demanding the analyst’s presence, or even to affirm under oath an intent to cross-examine the analyst.” We have no occasion today to pass on the constitutionality of every variety of statute commonly given the notice-and-demand label. It suffices to say that what we have referred to as the “simplest form [of] notice-and-demand statutes,” supra, at 21, is constitutional; that such provisions are in place in a number of States; and that in those States, and in other States that require confrontation without notice-and-demand, there is no indication that the dire consequences predicted by the dissent have materialized. Footnote 13 Contrary to the dissent’s suggestion, post, at 24–25, we do not cast aspersions on trial judges, who we trust will not be antagonized by good-faith requests for analysts’ appearance at trial. Nor do we expect defense attorneys to refrain from zealous representation of their clients. We simply do not expect defense attorneys to believe that their clients’ interests (or their own) are furthered by objections to analysts’ reports whose conclusions counsel have no intention of challenging. Footnote 14 We of course express no view as to whether the error was harmless. The Massachusetts Court of Appeals did not reach that question and we decline to address it in the first instance. Cf. Coy v. Iowa, 487 U. S. 1012, 1021–1022 (1988). In connection with that determination, however, we disagree with the dissent’s contention, post, at 25, that “only an analyst’s testimony suffices to prove [the] fact” that “the substance is cocaine.” Today’s opinion, while insisting upon retention of the confrontation requirement, in no way alters the type of evidence (including circumstantial evidence) sufficient to sustain a conviction. |
556.US.2008_07-615 | In 1997, the International Court of Arbitration awarded petitioner Iranian Ministry of Defense (hereinafter Iran) $2.8 million to settle a dispute with Cubic Defense Systems, Inc., a California company, over a 1977 contract that would have provided Iran with an air combat training system. When Cubic refused to pay, Iran sued in the Federal District Court in San Diego, which ordered Cubic to pay the award plus interest (Cubic Judgment). In 2000, respondent Elahi sued Iran in the D.C. Federal District Court, claiming that Iranian agents had murdered his brother. He obtained a default judgment of about $312 million and sought to collect some of the money by attaching the Cubic Judgment. Iran opposed the lien under the Foreign Sovereign Immunities Act of 1976 (FSIA). The California District Court denied Iran’s immunity claim, and the Ninth Circuit affirmed, finding an exception to sovereign immunity. This Court vacated and remanded. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U. S. 450. On remand, the Ninth Circuit found that a different immunity exception applied, citing the Terrorism Risk Insurance Act of 2002 (TRIA), which permitted holders of terrorism-related judgments against Iran to attach “blocked” Iranian assets. The United States had blocked Iranian assets following the Iranian hostage crisis in 1979, and the court held that the asset Elahi sought to attach had remained blocked notwithstanding the unblocking orders issued after the crisis was resolved by the Algiers Accords in 1981. The court reasoned that those unblocking orders had omitted military goods such as the training system underlying the Cubic Judgment. The court further rejected Iran’s argument that Elahi had waived his right of attachment, and concluded that he could attach the Cubic Judgment. Held: 1. The asset in question was not “blocked” at the time of the Ninth Circuit’s decision. Contrary to that court’s holding, the relevant asset is not Iran’s interest in the air combat training system, but, rather, a judgment enforcing an arbitration award based upon Cubic’s failure to account to Iran for its share of the proceeds of the system’s eventual sale to Canada. And neither the Cubic Judgment nor the sale proceeds it represents were blocked assets at the time of the Court of Appeals’ 2007 decision. In a 1981 order, the Treasury Department unblocked transactions involving property in which Iran’s interest arose after January 19, 1981. Iran’s interest in the Cubic Judgment itself arose on December 7, 1998, when the District Court confirmed the arbitration award. And Iran’s interest in the property underlying the judgment arose, as the arbitrators ruled, when Cubic completed its sale of the air combat system in October 1982. Thus, whether Iran’s “interest in property” is considered to be its interest in the Cubic Judgment itself or its underlying interest in the sale proceeds, the interest falls within the terms of the Treasury Department’s general unblocking order. Even assuming (as the Ninth Circuit held) that the relevant asset was Iran’s pre-1981 interest in the training system itself, that asset still was not “blocked” at the time of the decision below. Such an interest would fall directly within the scope of Executive Order No. 12281, which required that property owned by Iran be transferred “as directed … by the Government of Iran.” No authority supports the contrary conclusion. Pp. 8–11. 2. Elahi cannot attach the Cubic Judgment because he has waived his right to do so. Section 2002 of the Victims of Trafficking and Violence Protection Act of 2000 (VPA) offers compensation to individuals holding terrorism-related judgments against Iran. It requires those receiving payment to relinquish “all rights to … attach property that is at issue in claims against the United States before an international tribunal.” §2002(a)(2)(D). In 2003, the U. S. Government paid Elahi $2.3 million under the VPA as partial compensation for his judgment against Iran, and he signed a waiver form that mirrors the statutory language. A review of the record in Iran-U. S. Claims Tribunal Case No. B61 demonstrates that the Cubic Judgment falls within the terms of Elahi’s waiver. Iran filed that case in 1982, claiming that between 1979 and 1981 the United States had wrongly barred the transfer of the Cubic training system and other military equipment to Iran. Iran asked the Tribunal to order the United States, among other things, to pay Iran damages. The United States answered that the Tribunal should set off the $2.8 million represented by the Cubic Judgment against any award. Iran argued that the Tribunal should not set off the $2.8 million insofar as third parties have attached the judgment. In the terms of Elahi’s waiver, therefore, the Cubic Judgment is “property,” and Case No. B61 itself is a “clai[m] against the United States before an international tribunal.” And there remains a significant dispute about whether the Cubic Judgment can be used by the Tribunal as a setoff, placing the Judgment “at issue” in Case No. B61. Elahi’s arguments to the contrary are unavailing. Pp. 12–20. 3. Given Elahi’s waiver, this Court need not decide whether the Cubic Judgment was blocked by new Executive Branch actions following the Ninth Circuit’s decision. P. 20. 495 F. 3d 1024, reversed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Thomas, and Alito, JJ., joined, and in which Kennedy, Souter, and Ginsburg, JJ., joined as to Parts I and II. Kennedy, J., filed an opinion concurring in part and dissenting in part, in which Souter and Ginsburg, JJ., joined. | Dariush Elahi, the respondent, sued Iran, claiming that Iran unlawfully participated in the assassination of his brother, and he obtained a default judgment of about $312 million. Seeking to collect some of the money, he has tried to attach an asset belonging to Iran, namely a $2.8 million judgment that Iran obtained against a California company called Cubic Defense Systems, Inc. (Cubic Judgment). Iran has asserted a defense of sovereign immunity in order to prevent the attachment. See Foreign Sovereign Immunities Act of 1976, 28 U. S. C. §1610. Since Iran is a sovereign nation, Elahi cannot attach the Cubic Judgment unless he finds an exception to the principle of sovereign immunity that would allow him to do so. See Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U. S. 450 (2006) (per curiam). As the case reaches us, the Terrorism Risk Insurance Act of 2002 (TRIA), §201(a), 116 Stat. 2337, note following 28 U. S. C. §1610, provides the sole possible exception. That Act authorizes holders of terrorism-related judgments against Iran, such as Elahi, to attach Iranian assets that the United States has “blocked.” Ibid. (emphasis added). And we initially decide whether Iran’s Cubic Judgment is a “blocked asset” within the terms of that Act. Even if the Cubic Judgment is a blocked asset, however, Elahi still cannot attach it if he waived his right to do so. And we next decide whether Elahi waived that right when, in return for partial compensation from the Government, he agreed not to attach “property that is at issue in claims against the United States before an international tribunal.” Victims of Trafficking and Violence Protection Act of 2000 (VPA), §2002(d)(5)(B), as added by TRIA §201(c)(4), 116 Stat. 2339, note following 28 U. S. C. §1610 (emphasis added). We ultimately hold that the Cubic Judgment was not a “blocked asset” at the time the Court of Appeals handed down its decision in this case. We recognize that since that time new Executive Branch action may have “blocked” that asset; but, in light of the posture of the case, we do not decide whether it has done so. Rather, we determine that Elahi cannot attach the Cubic Judgment regardless, for the Judgment is “at issue” in a claim against the United States before the Iran-U. S. Claims Tribunal. The Judgment consequently falls within the terms of Elahi’s waiver. I We initially set forth key background elements, including in this section the events necessary to understand the “blocked asset” question, while leaving for Part III, infra, additional background matters related to Elahi’s waiver. A The Cubic Judgment arose out of a 1977 contract between Cubic Defense Systems, a California company and Iran’s Ministry of Defense. (We shall refer to the Ministry, for present purposes an inseparable part of the Iranian State, as “Iran.” See Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 495 F. 3d 1024, 1035–1036 (CA9 2007)). Cubic there promised to supply Iran with certain military goods, namely an air combat training system, for which Iran promised to pay approximately $18 million dollars. In 1979, after Iran had paid some of the money but before Cubic had sent the training system, the Iranian Revolution broke out, militants in Iran seized American hostages, and President Carter “blocked all property and interests in property of the Government of Iran … subject to the jurisdiction of the United States.” Exec. Order No. 12170, 3 CFR 457 (1979 Comp.) (emphasis added), promulgated pursuant to the authority of International Emergency Economic Powers Act (IEEPA), 50 U. S. C. §§1701–1702 (2000 ed. and Supp. V); 31 CFR §535.201 (1980). About a year later, on January 19, 1981, Iran and the United States settled the crisis, in part with an agreement called the “Algiers Accords.” 20 I. L. M. 224. Under the Accords, the United States agreed to “restore the financial position of Iran, in so far as possible, to that which existed prior to November 14, 1979,” ibid., and (with some exceptions) to “arrange, subject to the provisions of U. S. law applicable prior to November 14, 1979, for the transfer to Iran of all Iranian properties,” id., at 227. The President then lifted the legal prohibitions against transactions involving Iranian property. See Exec. Orders Nos. 12277–12282, 3 CFR 105–113 (1981 Comp.); 31 CFR §§535.211–535.215 (1981). In doing so, he ordered the transfer to Iran of Iranian financial assets and most other Iranian property “as directed … by the Government of Iran,” Exec. Order No. 12281, 3 CFR 112 (1981 Comp.). Shortly thereafter, the Treasury Department issued a general license authorizing “[t]ransactions involving property in which Iran . . . has an interest” where “[t]he property comes within the jurisdiction of the United States … after January 19, 1981, or … [t]he interest in the property . . . arises after January 19, 1981.” 31 CFR §535.579(a). The Algiers Accords also set up an international arbitration tribunal, the Iran-U. S. Claims Tribunal (or Tribunal), to resolve disputes between the two nations concerning each other’s performance under the Algiers Accords. The Tribunal would also resolve disputes concerning contracts and agreements between the two nations that were outstanding on January 19, 1981. 20 I. L. M., at 230–231. The Tribunal’s jurisdiction included claims by nationals of one state against the other state, but it did not include claims by one state against nationals of the other state. Id., at 231–232. B In January 1982, Iran filed two Cubic-based claims in the Tribunal. In Case No. B61, Iran claimed that between 1979 and 1981 the United States had wrongly barred the transfer of certain military equipment, including the Cubic air combat training system, to Iran. Iran asked the Tribunal to order the United States either to issue an export license for the equipment or to pay Iran damages. App. to Brief for United States as Amicus Curiae 22a, 24a, 31a. In Case No. B66, Iran claimed that Cubic had breached its contract to deliver the training system partly because the United States had taken actions contrary to the Algiers Accords. Again Iran asked the Tribunal to order either the issuance of an export license for the equipment or the payment of damages. Id., at 1a, 2a, 9a–10a. In April 1987 the Tribunal dismissed this second case (No. B66) on the grounds that the Iran-Cubic contract imposed no obligations on the United States and that the Tribunal lacked jurisdiction to consider a suit by a state (Iran) against a private party (Cubic). Ministry of Nat. Defense of Islamic Republic of Iran v. United States, 14 Iran-U. S. Cl. Trib. Rep. 276, 277–278. Iran, believing that Cubic had breached its contract, then went to arbitration before the arbitration tribunal specified in the Cubic contract, namely the International Court of Arbitration of the International Chamber of Commerce. Iran asked that arbitration tribunal to award it restitution and damages. In May 1997 the arbitrators issued their decision. The arbitrators found that prior to the Iranian Revolution, prior to the hostage crisis, and prior to the blocking of any Iranian assets, (1) Iran and Cubic had themselves agreed that they would temporarily discontinue (but not terminate) the contract; and (2) Cubic had agreed to try to sell the training system to another buyer and to settle accounts with Iran later. The arbitrators further found that after the crisis (in September 1981) (3) Cubic successfully sold a modified version of the system to Canada. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Int’l Sales Corp., No. 7365/FMC (Int’l Ct. of Arbitration of Int’l Chamber of Commerce), pp. 32–33, 36–40, 50–51, reprinted in 13 Mealey’s Int’l Arbitration Report pp. G–4, G–15 to G–18, G–21 (Oct. 1998) (Arbitration Award). The arbitrators concluded that Cubic had not lived up to this modified agreement. And, after taking account of the advance payments that Iran had made to Cubic, the funds that Cubic had spent, the amount that Canada had paid Cubic, and various other items, they awarded Iran $2.8 million plus interest. Id., ¶C.18.3(a), at G–31. Cubic refused to pay Iran this money. Iran then sued in the Federal District Court for the Southern District of California to enforce the arbitration award. The District Court confirmed the award and entered a final judgment ordering Cubic to pay $2.8 million plus interest to Iran. That judgment is the Cubic Judgment. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 29 F. Supp. 2d 1168, 1174 (1998) (final judgment entered Aug. 10, 1999). C In February 2000 Elahi brought a tort action against Iran in the Federal District Court for the District of Columbia. Elahi claimed that Iranian agents had murdered his brother. See 28 U. S. C. §1605(a)(7) (2000 ed.) (lifting sovereign immunity of state sponsors of certain kinds of terrorism) (subsequently replaced by National Defense Authorization Act for Fiscal Year 2008, §1083(a)(1), 122 Stat. 338, 28 U. S. C. A. §1605A); Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, §589, 110 Stat. 3009–172, note following 28 U. S. C. §1605 (providing tort cause of action). Iran did not answer the complaint. The District Court found Iran in default, and it awarded Elahi nearly $12 million in compensatory damages and $300 million in punitive damages. Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97 (DC 2000). In 2001 Elahi filed a notice of lien against Iran’s Cubic Judgment. He thereby sought to satisfy from the Cubic Judgment a portion of what Iran owed him under his own default judgment against Iran. Iran opposed the lien. It argued that the Cubic Judgment, as property of the sovereign state of Iran, was immune from attachment or execution. The District Court denied immunity. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 236 F. Supp. 2d 1140, 1152 (SD Cal. 2002). The Court of Appeals affirmed the denial. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 385 F. 3d 1206 (CA9 2004). The Court of Appeals thought that the Ministry of Defense of Iran had lost its immunity from attachment because of a special statutory exception that permits a creditor to attach the property of an “agency or instrumentality of a foreign state engaged in commercial activity in the United States”—where the creditor seeks the property to satisfy a terrorism-related judgment. 28 U. S. C. §1610(b). See 385 F. 3d, at 1219–1222. But, on review here, we pointed out (in a per curiam opinion) that the sovereign immunity exception upon which the Ninth Circuit had relied—the exception for the property of an entity that has “engaged in commercial activity,” §1610(b)(2)—applies only to property of an “agency or instrumentality” of a foreign state. It does not apply to property of an entity that itself is an inseparable part of the foreign state. §1610(a). Elahi, 546 U. S., at 452–453. We remanded the case, and on remand, the Ninth Circuit held that the Ministry of Defense fell into the latter category (an inseparable part of the state of Iran), not the former (an “agency or instrumentality” of Iran). 495 F. 3d 1024, 1035–1036 (2007). Hence Elahi could not take advantage of the “engaged in commercial activities” exception. The Court of Appeals also found inapplicable a slightly different exception applicable to “property … of a foreign state … used for a commercial activity in the United States,” 28 U. S. C. §1610(a). 495 F. 3d, at 1036–1037. Nonetheless the Court of Appeals found yet another exception that it believed denied Iran its sovereign immunity defense. The court pointed out that in 2002 Congress had enacted the TRIA. That Act permitted a person with a terrorism-related judgment to attach an asset of the responsible “terrorist” state to satisfy the judgment, “[n]otwithstanding any other provision of law,” provided that the asset was a “blocked asset.” §201(a), 116 Stat. 2337. The Court of Appeals noted that the Cubic Judgment arose out of a pre-1981 contract with Iran involving an air combat training system for Iran, and that President Carter had blocked virtually all Iranian assets following the Iranian hostage crisis. See Exec. Order No. 12170, 44 Fed. Reg. 65729 (“block[ing] all property and interests in property of the Government of Iran … subject to the jurisdiction of the United States”), promulgated pursuant to the authority of International Emergency Economic Powers Act, 50 U. S. C. §§1701–1702 (2000 ed. and Supp. V); 31 CFR §535.201. The Court of Appeals then held that the President had never unblocked the asset in question. 495 F. 3d, at 1033. In its view, the many unblocking orders that were issued after the 1981 Algiers Accords, see, e.g., Exec. Orders Nos. 12277–12282, 3 CFR 105–113; 31 CFR §§535.211–535.215, 535.579(a), did not apply because those unblocking orders omitted “military goods such as the [training system that underlay the Cubic Judgment].” 495 F. 3d, at 1033. The Court of Appeals also rejected Iran’s argument that Elahi had waived his right to attach the Cubic Judgment regardless (a matter to which we shall turn in Part III). And the court concluded that Elahi was free to attach the Judgment. Id., at 1037. Iran, with the support of the Department of State, asked us to grant certiorari. We did so, and we shall consider both aspects of the Court of Appeals’ determination. II A We turn first to the question whether the Cubic Judgment was a “blocked asset.” The Ninth Circuit held that the asset in question consisted of Iran’s interest in military goods, namely an air combat training system, which it believed the Executive Branch had failed to unblock after the Iranian hostage crisis ended. None of the parties here, however, supports the Ninth Circuit’s determination. And neither do we. The basic reason we cannot accept the Ninth Circuit’s rationale is that we do not believe Cubic’s air combat training system is the asset here in question. Elahi does not seek to attach that system. Cubic sent the system itself to Canada, where, as far as we know, it remains. Rather, Elahi seeks to attach a judgment enforcing an arbitration award based upon Cubic’s failure to account to Iran for Iran’s share of the proceeds of that system’s sale. And neither the Cubic Judgment nor the sale proceeds that it represents were blocked assets at the time the Court of Appeals issued its decision. In 1981, the Treasury Department issued an order that authorized “[t]ransactions involving property in which Iran . . . has an interest” where “[t]he interest in the property . . . arises after January 19, 1981.” 31 CFR §535.579(a)(1) (emphasis added). As the Court of Appeals itself pointed out, Iran’s interest in the Cubic Judgment arose “on December 7, 1998, when the district court confirmed the [arbitration] award.” 385 F. 3d, at 1224. Since it arose more than 17 years “after January 19, 1981,” the Cubic Judgment falls within the terms of Treasury’s order. And that fact, in our view, is sufficient to treat the Judgment as unblocked. Iran’s interest in the property that underlies the Cubic Judgment also arose after January 19, 1981. As the International Court of Arbitration held, Cubic and Iran entered into their initial contract before 1981. But they later agreed to discontinue (but not to terminate) the contract. Arbitration Award G–15, G–21. They agreed that Cubic would try to sell the system elsewhere. Id., ¶C.9.15, at G–14. And they further agreed that they would take “final decisions” about who owed what to whom “only . . . once the result of Cubic’s attempt to resell the System” was “known.” Id., ¶B.10.7, at G–17. Cubic completed its sale of the system (to Canada) in October 1982. Id., ¶B.12.14, at G–22. And the arbitrators referred to October 1982 as “the date the Parties had in mind when they agreed to await the outcome of Cubic’s resale attempts.” Ibid. Only then was Cubic “in a position to reasonably, comprehensively and precisely account for the reuse of components originally manufactured for Iran and for any modification costs.” Ibid. For those reasons, and in light of the arbitrators’ findings, we must conclude that October 1982 is the time when Iran’s claim to proceeds arose. The upshot is that, whether we consider Iran’s “interest in property” as its interest in the Cubic Judgment itself or its underlying interest in the proceeds of the Canadian sale, the interest falls within the terms of the Treasury Department’s general license authorizing “[t]ransactions involving property in which Iran . . . has an interest” where “[t]he interest in the property . . . arises after January 19, 1981.” 31 CFR §535.579(a). And, as we said, that fact is sufficient for present purposes to treat the asset as having been unblocked at the time the Ninth Circuit issued the decision below. Finally, even if we were to assume (as the Ninth Circuit held) that the relevant asset were Iran’s pre-1981 interest in the air combat training system itself, we should still conclude that that asset was not “blocked” at the time of the decision below. As the Government points out, such an interest falls directly within the scope of Executive Order No. 12281, an unblocking order that required property owned by Iran to be transferred “as directed … by the Government of Iran.” See also 31 CFR §535.215(a). None of the four authorities upon which the Ninth Circuit relied indicates the contrary conclusion. First, the Circuit cited the Arms Export Control Act, 82 Stat. 1321, 22 U. S. C. §2751 et seq., and its implementing regulations, a statute and regulations which regulate arms shipments. It is true that, notwithstanding Executive Order No. 12281, the export of certain military equipment remained subject to regulation under other statutes, including the Arms Export Control Act. See 31 CFR §535.215(c). But that fact does not show that military equipment remained blocked under IEEPA. The Court of Appeals next cited the 1979 Executive Order freezing Iranian assets, Exec. Order No. 12170, 3 CFR 457 (Comp. 1980)—but it failed to consider the effect of the subsequent unblocking order just discussed. The Court of Appeals also relied on a 2005 Presidential notice extending the national emergency with respect to Iran, 70 Fed. Reg. 69039, but that notice did not impose any additional restrictions on Iranian assets. Finally, the Court of Appeals pointed to a Treasury Department guidance document, which states that “[c]ertain assets”—consisting “mainly of military and dual-use property”— “related to … claims” by “U. S. nationals … against Iran or Iranian entities” still being litigated in the Tribunal “remain blocked in the United States.” Office of Foreign Assets Control, Dept. of Treasury, Foreign Assets Control Regulations for Exporters and Importers 23 (2007). But the training system does not fall into the category of assets identified by the guidance document. The system neither “remain[s] … in the United States” (having been sent to Canada), nor was it related to claims by “U. S. nationals … against Iran or Iranian entities” before the Tribunal. In sum, no authority supports the Ninth Circuit’s conclusion that an Iranian interest in the training system itself would be a “blocked asset.” And none of the parties defend the Ninth Circuit’s conclusion here. B Although the Cubic Judgment was not a blocked asset at the time the Court of Appeals reached its decision, the Government believes that it is a blocked asset now. In 2005 the President issued a new Executive Order that blocks assets held by proliferators of weapons of mass destruction. Exec. Order No. 13382, 3 CFR 170 (2005 Comp.). And in 2007, after the Court of Appeals issued its decision, the State Department designated certain component parts of Iran’s Ministry of Defense as entities whose property and interests in property are blocked under Executive Order No. 13382. See 72 Fed. Reg. 71991–71992. If the Iranian entity to which the Cubic Judgment belongs falls within the terms of the State Department’s designation, then presumably that asset is blocked at this time. The problem for the Government, however, is that Iran does not agree that the relevant parts of its Ministry of Defense fall within the scope of the State Department’s designation. Thus the matter is in dispute. The lower courts have not considered that dispute. The relevant arguments have not been set forth in detail here. And in such circumstances we normally would remand the case, permitting the lower courts to decide the issue in the first instance. See, e.g., F. Hoffmann–La Roche Ltd v. Empagran S. A., 542 U. S. 155, 175 (2004). Consequently, we shall not decide whether the new Executive Branch actions have blocked the Cubic Judgment. Instead, we turn to the “waiver” question. And our answer (that Elahi has waived his right to attach the Cubic Judgment) makes it unnecessary to remand the blocking question for further consideration. III As we have just said, the second question concerns Elahi’s waiver of his right to attach the Cubic Judgment. In 2000, Congress enacted a statute that offers some compensation to certain individuals, including Elahi, who hold terrorism-related judgments against Iran. VPA §2002, as amended by TRIA §201(c). The Act requires those who receive that compensation to relinquish “all rights to execute against or attach property that is at issue in claims against the United States before an international tribunal, [or] that is the subject of awards rendered by such tribunal.” §2002(a)(2)(D), 114 Stat. 1542; see also §2002(d)(5)(B), as added by TRIA §201(c)(4) (cross-referencing §2002(a)(2)(D)). In 2003 the Government paid Elahi $2.3 million under the Act as partial compensation for his judgment against Iran. Brief for Respondent 9. And at that time, Elahi signed a waiver form that mirrors the statutory language. App. to Pet. for Cert. 30 (citing 68 Fed. Reg. 8077, 8081 (2003)). The question is whether the Cubic Judgment “is at issue in claims” against the United States before an “international tribunal,” namely the Iran-U. S. Claims Tribunal. If so, the Cubic Judgment falls within the terms of Elahi’s waiver. The Court of Appeals believed the Judgment was not “at issue.” 495 F. 3d, at 1030–1031. But we find to the contrary. A review of the record in Iran-U. S. Claims Tribunal Case No. B61 leads us to conclude that the Cubic Judgment is “at issue” before that Tribunal. In Case No. B61 Iran argued that, between 1979 and 1981, the United States had wrongly prevented the transfer of Cubic’s air combat training system to Iran. Iran asked the Tribunal, among other things, to order the United States to pay damages. Statement of Claim, Islamic Republic of Iran v. United States (filed Jan. 19, 1982), App. to Brief for United States as Amicus Curiae 22a, 24a, 31a. In its briefing before the Tribunal, Iran acknowledged that any amount it recovered from Cubic would “be recuperated from the remedy sought” against the United States. App. 76, n. 2. And Iran sent a letter to the United States in which it said that any amounts it actually received from Cubic would be “recouped from the remedy sought against the United States in Case B61.” App. to Brief for United States as Amicus Curiae 84a. But Iran added that the Cubic Judgment could not be used as a setoff insofar as it had been attached by creditors. Id., at 85a. Meanwhile, in a rebuttal brief before the Tribunal, the United States, while arguing that in fact it owed Iran nothing, added that at the very least Iran must set off the amount “already … awarded” by the International Court of Arbitration (namely, the $2.8 million awarded to Iran from Cubic) against any money awarded by the Tribunal. Id., at 52a, 80a–81a, and n. 32. And the United States’ demand for a setoff applies even if third parties have attached the Cubic Judgment. See Tr. of Tribunal Hearing, in No. B61 (Iran-U. S. Cl. Trib., Dec. 7 and 12, 2006), App. to Brief for Respondent 37, 38–39, 41, 42. The upshot is a dispute about the Cubic Judgment. The United States argues (and argued before the Tribunal) that the Tribunal should set off the $2.8 million that the Cubic Judgment represents against any award that the Tribunal may make against the United States in Case No. B61. Iran argues (and argued before the Tribunal) that the Tribunal should not set off the $2.8 million insofar as third parties have attached the Judgment. To put the matter in terms of the language of Elahi’s waiver, one can say for certain that the Cubic Judgment is “property.” And Case No. B61 itself is a “clai[m] against the United States before an international tribunal.” We can also be reasonably certain that how the Tribunal should use that property is also under dispute or in question in that claim. Moreover, since several parties other than Elahi have already attached the Cubic Judgment, see Brief for United States as Amicus Curiae 20, the question whether an attached claim can be used as a setoff is potentially significant, irrespective of Elahi’s own efforts to attach the judgment. Are these circumstances sufficient to place the Cubic Judgment “at issue” in Case No. B61? Elahi argues not. He points out that the Cubic Judgment does not appear on a list of property contained in Iran’s statement of claim in Case No. B61; nor is it the subject of any other claim before the Tribunal. Indeed, Iran and the United States do not dispute the Cubic Judgment’s validity; they do not dispute the Cubic Judgment’s ownership; and they do not dispute the fact that the United States’ asset freeze had no adverse effect on the Cubic Judgment or on Iran’s entitlement to the Cubic Judgment. As the dissent correctly points out, the Judgment is not “at issue” in any of these senses. The Judgment will neither be suspended nor modified by the Tribunal in Case No. B61, nor is the Judgment property claimed by Iran from the United States in that case, see post, at 2–5. But that does not end the matter. The question is whether, for purposes of the VPA, a judgment can nevertheless be “at issue” before the Tribunal even when it will not be suspended or modified by the Tribunal and when it is not claimed by Iran from the United States. Here, a significant dispute about the Cubic Judgment still remains, namely a dispute about whether it can be used by the Tribunal as a setoff. And in our view, that dispute is sufficient to put the Judgment “at issue” in the case. For one thing, we do not doubt that the setoff matter is “under dispute” or “in question” in Case No. B61, and those words typically define the term “at issue.” Black’s Law Dictionary 136 (8th ed. 2004). In the event that the Tribunal finds the United States liable in Case No. B61, the total sum awarded to Iran by the Tribunal will depend on whether the Judgment is used as a setoff. And whether the Judgment can be so used depends, in turn, on whether the United States is right that an attached judgment should be set off or whether Iran is right that it should not be—a matter in question before the Tribunal. In that sense, the Judgment is “under dispute.” We recognize that the dispute is over the use of the Judgment, not the validity of the Judgment. But we do not see how that fact matters. For another thing, ordinary legal disputes can easily encompass questions of setoff. Suppose Smith sues a carrier for wrongfully harming a shipment of goods. The question of liability, the question of damages, and the question of reducing damages through setoff may all be at issue in the case. Which is the more important issue in a particular case depends not upon the category (liability, damages, or setoff) but upon the circumstances of that particular case. Further, the language of the statute suggests that Congress meant the words “at issue” to carry the ordinary meaning just described. Elahi essentially distinguishes between property that is the subject of a claim (a claim, for example, that the United States took or harmed particular property belonging to Iran) and property that might otherwise affect a Tribunal judgment (say, through its use as a setoff). And he argues that the statutory phrase “at issue” covers only the first kind of dispute, not the second. But the statute does not limit the property that is “at issue in a claim” to property that is the subject of a claim. To the contrary, the statute says that judgment creditors such as Elahi must “relinquis[h] all rights to execute against or attach property [1] that is at issue in claims against the United States before an international tribunal [or] [2] that is the subject of awards rendered by such tribunal.” VPA §2002(a)(2)(D), 114 Stat. 1542 (emphasis added); see also §2002(d)(5)(B), as added by TRIA §201(c)(4) (cross-referencing §2002(a)(2)(D)). Had Congress wanted to limit the property to which it first refers (namely, property that is “at issue” in a claim) to property that is the subject of a claim, it seems likely that Congress straightforwardly would have used the words “subject of”—words that appear later (in respect to awards rendered) in the very same sentence. Finally, the statute’s purpose leans in the direction of a broader interpretation of the words “at issue” than that proposed by Elahi. Pointing to the statute’s legislative history, Elahi says that the statute seeks to enable victims of terrorism to collect on judgments they have won against terrorist parties. See Brief of Respondent 6–7, 31 (citing H. R. Conf. Rep. No. 107–779 (2002); 148 Cong. Rec. 23119, 23121–23123 (2002) (statement of Sen. Harkin)). He is such a victim, and, he says, Congress would have intended an interpretation that favors his cause. But Congress had a more complicated set of purposes in mind. The statute authorizes the attachment of blocked assets, and it provides partial compensation to victims to be paid (in part) from general Treasury funds. But it does so in exchange for a right of subrogation, VPA §2002(c), and for the victim’s promise not to pursue the balance of the judgment by attaching property “at issue” in a claim against the United States before the Tribunal. VPA §§2002(a)(2)(D), (d)(5)(B), as added by TRIA §201(c)(4). The statute thereby protects property that the United States might use to satisfy its potential liability to Iran. The Cubic Judgment falls into this category. It is property that the United States could use to satisfy its potential liability to Iran, but which may be unavailable for that purpose if successfully attached. With respect to the statute’s revenue-saving purpose, it is difficult to distinguish between property that is the subject of a claim before a tribunal and property that is in dispute before the tribunal in respect to its use as an offset. The dissent adds that the “better reading” of the words “at issue” is one that limits them to the “foster[ing] [of] compliance with the Government’s international obligations.” Post, at 6. We agree with this statement, but we do not see how it adds anything but new phraseology to the dissent’s basic claim, namely that arguments before the Tribunal about “setoffs” do not count as “issues.” To repeat our own view of the matter, a dispute about whether one country must pay the other country more money because it cannot use particular property (because of an attachment) to satisfy an obligation raises an issue that the Tribunal must resolve, no less and no more than other issues that might be before the Tribunal in that case or other cases. Contrary to the dissent’s suggestion, post, at 8, there is no unfairness in our holding. Elahi could have chosen to forgo the Government’s compensation scheme, and he then could have attached the Cubic Judgment, as have other terrorist victims with judgments against Iran. See Brief for United States as Amicus Curiae 20. But that course carried risks: Iran had challenged Elahi’s notice of lien and it was uncertain whether Elahi would prevail. In 2003, while litigation over his notice of lien was pending, Elahi chose to participate in the Government’s scheme. He thereby received the benefit of immediate, guaranteed partial compensation from the Government—in exchange for a promise not to interfere with property that the United States might need to satisfy potential liability to Iran. Having received $2.3 million in Government funds, there is nothing unfair about holding Elahi to the terms of his bargain. Elahi makes several other arguments. He points to language in the TRIA (the statute authorizing attachment of blocked assets) which says: “[n]otwithstanding any other provision of law” the “blocked assets” of a state “shall be subject to . . . attachment in aid of execution” of a terrorism-related judgment. §201(a), 116 Stat. 2337 (emphasis added). He also points to VPA §2002(d)(4), as added by TRIA §201(c)(4), 116 Stat. 2339, which reads: “[N]othing in this subsection [which contains the relinquishment provision] shall bar … enforcement of any” terrorism-related “judgment . . . against assets otherwise available under this section or under any other provision of law” (emphasis added). The first provision, Elahi argues, permits him to attach blocked assets notwithstanding the VPA’s requirement that he relinquish his right to attach property “at issue” before an international tribunal; and that conclusion, he says, is reinforced by VPA §2002(d)(4). Our interpretation, he adds, would “bar … enforcement” of a terrorism-related judgment “otherwise available” under TRIA §201(a)—contrary to the statutory language just quoted. But VPA §2002(d)(5) requires Elahi, in exchange for having received partial compensation, to relinquish “all rights” to attach property “at issue” in an international tribunal. VPA §2002(a)(2)(D), 114 Stat. 1542 (cross-referenced by §2002(d)(5)(B); emphasis added). And, as several courts of appeals have apparently assumed, the relinquishment of “all rights” includes the right given by TRIA §201(a) to attach blocked assets. See Hegna v. Islamic Republic of Iran, 376 F. 3d 226, 232 (CA4 2004); Hegna v. Islamic Republic of Iran, 380 F. 3d 1000, 1009 (CA7 2004); Hegna v. Islamic Republic of Iran, 402 F. 3d 97, 99 (CA2 2005) (per curiam). Moreover, the relinquishment provision that applies to Elahi was added to the VPA by the very same statute, the TRIA, that permitted the attachment of blocked assets, and which contains the “notwithstanding” clause upon which Elahi relies. §201(a) (blocked assets); §201(c) (amending VPA). Congress could not have intended the words to which Elahi refers to narrow so dramatically an important provision that it inserted in the same statute. And for those who, like Elahi, argue that the legislative history supports his reading of the statute, we point out that the history suggests that Congress placed the “notwithstanding” clause in §201(a) for totally different reasons, namely to eliminate the effect of any Presidential waiver issued under 28 U. S. C. §1610(f) prior to the date of the TRIA’s enactment. H. R. Conf. Rep. No. 107–779, at 27. Elahi makes three final arguments, first that setoff is not “at issue” because the United States has argued in Case No. B61 that it has no liability at all, second that set-off is not “at issue” because the United States has not formally asserted a setoff before the Tribunal, and third that the Government violated his due process rights by inadequately informing that his waiver would deprive him of his right to attach the Cubic Judgment. We find none of these arguments convincing and shall briefly indicate our reasons in summary form. As to the first, the United States argued setoff in the alternative, thereby placing it, in the alternative, “at issue” before the Tribunal. As to the second, Elahi at most points to a ground for disputing the propriety, under Tribunal rules, for granting a setoff; he does not deny that the Tribunal sometimes can do so, see, e.g., Futura Trading Inc. v. National Iranian Oil Co., 13 Iran-U. S. Cl. Trib. Rep. 99, 115–116, ¶62 (1986) (preventing collection on a claim because the claimant had already collected the sum at issue from a different party). Hence whether the Tribunal can provide for a setoff here is a matter for the Tribunal to decide, and until it does decide, one way or the other, the matter is “at issue.” As to the third, we can find nothing that shows Elahi was unfairly surprised by the scope of his waiver—certainly not to the point of violating any Due Process rights. See, e.g., 14 Iran-U. S. Cl. Trib. Rep., at 278, ¶10 (dismissal of Iran’s claim against Cubic was “without prejudice to any findings it may make concerning [the Cubic contract] in Case No. B61”). IV We conclude: The Cubic Judgment was not blocked at the time the Court of Appeals reached its decision. We do not decide whether more recent Executive Branch actions would block the Judgment at present. Regardless, Elahi has waived his right to attach the Judgment. We reverse the judgment of the Court of Appeals. It is so ordered. |
556.US.778 | At a preliminary hearing required by Louisiana law, petitioner Montejo was charged with first-degree murder, and the court ordered the appointment of counsel. Later that day, the police read Montejo his rights under Miranda v. Arizona, 384 U. S. 436, and he agreed to go along on a trip to locate the murder weapon. During the excursion, he wrote an inculpatory letter of apology to the victim’s widow. Upon returning, he finally met his court-appointed attorney. At trial, his letter was admitted over defense objection, and he was convicted and sentenced to death. Affirming, the State Supreme Court rejected his claim that the letter should have been suppressed under the rule of Michigan v. Jackson, 475 U. S. 625, which forbids police to initiate interrogation of a criminal defendant once he has invoked his right to counsel at an arraignment or similar proceeding. The court reasoned that Jackson’s prophylactic protection is not triggered unless the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel; and that, since Montejo stood mute at his hearing while the judge ordered the appointment of counsel, he had made no such request or assertion. Held: 1. Michigan v. Jackson should be and now is overruled. Pp. 3–18. (a) The State Supreme Court’s interpretation of Jackson would lead to practical problems. Requiring an initial “invocation” of the right to counsel in order to trigger the Jackson presumption, as the court below did, might work in States that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the States, which appoint counsel without request from the defendant. Pp. 3–6. (b) On the other hand, Montejo’s solution is untenable as a theoretical and doctrinal matter. Eliminating the invocation requirement entirely would depart fundamentally from the rationale of Jackson, whose presumption was created by analogy to a similar prophylactic rule established in Edwards v. Arizona, 451 U. S. 477, to protect the Fifth Amendment-based Miranda right. Both Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about the right to counsel once they have invoked it, but a defendant who never asked for counsel has not yet made up his mind in the first instance. Pp. 6–13. (c) Stare decisis does not require the Court to expand significantly the holding of a prior decision in order to cure its practical deficiencies. To the contrary, the fact that a decision has proved “unworkable” is a traditional ground for overruling it. Payne v. Tennessee, 501 U. S. 808, 827. Beyond workability, the relevant factors include the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned. Pearson v. Callahan, 555 U. S. ___, ___. The first two cut in favor of jettisoning Jackson: the opinion is only two decades old, and eliminating it would not upset expectations, since any criminal defendant learned enough to order his affairs based on Jackson’s rule would also be perfectly capable of interacting with the police on his own. As for the strength of Jackson’s reasoning, when this Court creates a prophylactic rule to protect a constitutional right, the relevant “reasoning” is the weighing of the rule’s benefits against its costs. Jackson’s marginal benefits are dwarfed by its substantial costs. Even without Jackson, few badgering-induced waivers, if any, would be admitted at trial because the Court has taken substantial other, overlapping measures to exclude them. Under Miranda, any suspect subject to custodial interrogation must be advised of his right to have a lawyer present. 384 U. S., at 474. Under Edwards, once such a defendant “has invoked his [Miranda] right,” interrogation must stop. 451 U. S., at 484. And under Minnick v. Mississippi, 498 U. S. 146, no subsequent interrogation may take place until counsel is present. Id., at 153. These three layers of prophylaxis are sufficient. On the other side of the equation, the principal cost of applying Jackson’s rule is that crimes can go unsolved and criminals unpunished when uncoerced confessions are excluded and when officers are deterred from even trying to obtain confessions. The Court concludes that the Jackson rule does not “pay its way,” United States v. Leon, 468 U. S. 897, 907–908, n. 6, and thus the case should be overruled. Pp. 13–18. 2. Montejo should nonetheless be given an opportunity to contend that his letter of apology should have been suppressed under the Edwards rule. He understandably did not pursue an Edwards objection, because Jackson offered broader protections, but the decision here changes the legal landscape. Pp. 18–19. 06–1807 (La.), 974 So. 2d 1238, vacated and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Alito, J., filed a concurring opinion, in which Kennedy, J., joined. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined, and in which Breyer, J., joined, except for n. 5. Breyer, J., filed a dissenting opinion. | We consider in this case the scope and continued viability of the rule announced by this Court in Michigan v. Jackson, 475 U. S. 625 (1986), forbidding police to initiate interrogation of a criminal defendant once he has requested counsel at an arraignment or similar proceeding. I Petitioner Jesse Montejo was arrested on September 6, 2002, in connection with the robbery and murder of Lewis Ferrari, who had been found dead in his own home one day earlier. Suspicion quickly focused on Jerry Moore, a disgruntled former employee of Ferrari’s dry cleaning business. Police sought to question Montejo, who was a known associate of Moore. Montejo waived his rights under Miranda v. Arizona, 384 U. S. 436 (1966), and was interrogated at the sheriff’s office by police detectives through the late afternoon and evening of September 6 and the early morning of September 7. During the interrogation, Montejo repeatedly changed his account of the crime, at first claiming that he had only driven Moore to the victim’s home, and ultimately admitting that he had shot and killed Ferrari in the course of a botched burglary. These police interrogations were videotaped. On September 10, Montejo was brought before a judge for what is known in Louisiana as a “72-hour hearing”—a preliminary hearing required under state law.[Footnote 1] Although the proceedings were not transcribed, the minute record indicates what transpired: “The defendant being charged with First Degree Murder, Court ordered N[o] Bond set in this matter. Further, Court ordered the Office of Indigent Defender be appointed to represent the defendant.” App. to Pet. for Cert. 63a. Later that same day, two police detectives visited Montejo back at the prison and requested that he accompany them on an excursion to locate the murder weapon (which Montejo had earlier indicated he had thrown into a lake). After some back-and-forth, the substance of which remains in dispute, Montejo was again read his Miranda rights and agreed to go along; during the excursion, he wrote an inculpatory letter of apology to the victim’s widow. Only upon their return did Montejo finally meet his court-appointed attorney, who was quite upset that the detectives had interrogated his client in his absence. At trial, the letter of apology was admitted over defense objection. The jury convicted Montejo of first-degree murder, and he was sentenced to death. The Louisiana Supreme Court affirmed the conviction and sentence. 06–1807 (1/16/08), 974 So. 2d 1238 (2008). As relevant here, the court rejected Montejo’s argument that under the rule of Jackson, supra, the letter should have been suppressed. 974 So. 2d, at 1261. Jackson held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” 475 U. S., at 636. Citing a decision of the United States Court of Appeals for the Fifth Circuit, Montoya v. Collins, 955 F. 2d 279 (1992), the Louisiana Supreme Court reasoned that the prophylactic protection of Jackson is not triggered unless and until the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel. 974 So. 2d, at 1260–1261, and n. 68. Because Montejo simply stood mute at his 72-hour hearing while the judge ordered the appointment of counsel, he had made no such request or assertion. So the proper inquiry, the court ruled, was only whether he had knowingly, intelligently, and voluntarily waived his right to have counsel present during the interaction with the police. Id., at 1261. And because Montejo had been read his Miranda rights and agreed to waive them, the Court answered that question in the affirmative, 974 So. 2d, at 1262, and upheld the conviction. We granted certiorari. 554 U. S. ___ (2008). II Montejo and his amici raise a number of pragmatic objections to the Louisiana Supreme Court’s interpretation of Jackson. We agree that the approach taken below would lead either to an unworkable standard, or to arbitrary and anomalous distinctions between defendants in different States. Neither would be acceptable. Under the rule adopted by the Louisiana Supreme Court, a criminal defendant must request counsel, or otherwise “assert” his Sixth Amendment right at the preliminary hearing, before the Jackson protections are triggered. If he does so, the police may not initiate further interrogation in the absence of counsel. But if the court on its own appoints counsel, with the defendant taking no affirmative action to invoke his right to counsel, then police are free to initiate further interrogations provided that they first obtain an otherwise valid waiver by the defendant of his right to have counsel present. This rule would apply well enough in States that require the indigent defendant formally to request counsel before any appointment is made, which usually occurs after the court has informed him that he will receive counsel if he asks for it. That is how the system works in Michigan, for example, Mich. Ct. Rule 6.005(A) (2009), whose scheme produced the factual background for this Court’s decision in Michigan v. Jackson. Jackson, like all other represented indigent defendants in the State, had requested counsel in accordance with the applicable state law. But many States follow other practices. In some two dozen, the appointment of counsel is automatic upon a finding of indigency, e.g., Kan. Stat. Ann. §22–4503(c) (2007); and in a number of others, appointment can be made either upon the defendant’s request or sU. S.onte by the court, e.g., Del. Code Ann., Tit. 29, §4602(a) (2003). See App. to Brief for National Legal Aid & Defender Assn. et al. as Amici Curiae 1a–21a. Nothing in our Jackson opinion indicates whether we were then aware that not all States require that a defendant affirmatively request counsel before one is appointed; and of course we had no occasion there to decide how the rule we announced would apply to these other States. The Louisiana Supreme Court’s answer to that unresolved question is troublesome. The central distinction it draws—between defendants who “assert” their right to counsel and those who do not—is exceedingly hazy when applied to States that appoint counsel absent request from the defendant. How to categorize a defendant who merely asks, prior to appointment, whether he will be appointed counsel? Or who inquires, after the fact, whether he has been? What treatment for one who thanks the court after the appointment is made? And if the court asks a defendant whether he would object to appointment, will a quick shake of his head count as an assertion of his right? To the extent that the Louisiana Supreme Court’s rule also permits a defendant to trigger Jackson through the “acceptance” of counsel, that notion is even more mysterious: How does one affirmatively accept counsel appointed by court order? An indigent defendant has no right to choose his counsel, United States v. Gonzalez-Lopez, 548 U. S. 140, 151 (2006), so it is hard to imagine what his “acceptance” would look like, beyond the passive silence that Montejo exhibited. In practice, judicial application of the Louisiana rule in States that do not require a defendant to make a request for counsel could take either of two paths. Courts might ask on a case-by-case basis whether a defendant has somehow invoked his right to counsel, looking to his conduct at the preliminary hearing—his statements and gestures—and the totality of the circumstances. Or, courts might simply determine as a categorical matter that defendants in these States—over half of those in the Union—simply have no opportunity to assert their right to counsel at the hearing and are therefore out of luck. Neither approach is desirable. The former would be particularly impractical in light of the fact that, as amici describe, preliminary hearings are often rushed, and are frequently not recorded or transcribed. Brief for National Legal Aid & Defender Assn. et al. 25–30. The sheer volume of indigent defendants, see id., at 29, would render the monitoring of each particular defendant’s reaction to the appointment of counsel almost impossible. And sometimes the defendant is not even present. E.g., La. Code Crim. Proc. Ann., Art. 230.1(A) (West Supp. 2009) (allowing court to appoint counsel if defendant is “unable to appear”). Police who did not attend the hearing would have no way to know whether they could approach a particular defendant; and for a court to adjudicate that question ex post would be a fact-intensive and burdensome task, even if monitoring were possible and transcription available. Because “clarity of … command” and “certainty of … application” are crucial in rules that govern law enforcement, Minnick v. Mississippi, 498 U. S. 146, 151 (1990), this would be an unfortunate way to proceed. See also Moran v. Burbine, 475 U. S. 412, 425–426 (1986). The second possible course fares no better, for it would achieve clarity and certainty only at the expense of introducing arbitrary distinctions: Defendants in States that automatically appoint counsel would have no opportunity to invoke their rights and trigger Jackson, while those in other States, effectively instructed by the court to request counsel, would be lucky winners. That sort of hollow formalism is out of place in a doctrine that purports to serve as a practical safeguard for defendants’ rights. III But if the Louisiana Supreme Court’s application of Jackson is unsound as a practical matter, then Montejo’s solution is untenable as a theoretical and doctrinal matter. Under his approach, once a defendant is represented by counsel, police may not initiate any further interrogation. Such a rule would be entirely untethered from the original rationale of Jackson. A It is worth emphasizing first what is not in dispute or at stake here. Under our precedents, once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all “critical” stages of the criminal proceedings. United States v. Wade, 388 U. S. 218, 227–228 (1967); Powell v. Alabama, 287 U. S. 45, 57 (1932). Interrogation by the State is such a stage. Massiah v. United States, 377 U. S. 201, 204–205 (1964); see also United States v. Henry, 447 U. S. 264, 274 (1980). Our precedents also place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. Patterson v. Illinois, 487 U. S. 285, 292, n. 4 (1988); Brewer v. Williams, 430 U. S. 387, 404 (1977); Johnson v. Zerbst, 304 U. S. 458, 464 (1938). The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. Michigan v. Harvey, 494 U. S. 344, 352–353 (1990). And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment: “As a general matter … an accused who is admonished with the warnings prescribed by this Court in Miranda … has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one.” Patterson, supra, at 296. The only question raised by this case, and the only one addressed by the Jackson rule, is whether courts must presume that such a waiver is invalid under certain circumstances. 475 U. S., at 630, 633. We created such a presumption in Jackson by analogy to a similar prophylactic rule established to protect the Fifth Amendment based Miranda right to have counsel present at any custodial interrogation. Edwards v. Arizona, 451 U. S. 477 (1981), decided that once “an accused has invoked his right to have counsel present during custodial interrogation … [he] is not subject to further interrogation by the authorities until counsel has been made available,” unless he initiates the contact. Id., at 484–485. The Edwards rule is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,” Harvey, supra, at 350. It does this by presuming his postassertion statements to be involuntary, “even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.” McNeil v. Wisconsin, 501 U. S. 171, 177 (1991). This prophylactic rule thus “protect[s] a suspect’s voluntary choice not to speak outside his lawyer’s presence.” Texas v. Cobb, 532 U. S. 162, 175 (2001) (Kennedy, J., concurring). Jackson represented a “wholesale importation of the Edwards rule into the Sixth Amendment.” Cobb, supra, at 175. The Jackson Court decided that a request for counsel at an arraignment should be treated as an invocation of the Sixth Amendment right to counsel “at every critical stage of the prosecution,” 475 U. S., at 633, despite doubt that defendants “actually inten[d] their request for counsel to encompass representation during any further questioning,” id., at 632–633, because doubts must be “resolved in favor of protecting the constitutional claim,” id., at 633. Citing Edwards, the Court held that any subsequent waiver would thus be “insufficient to justify police-initiated interrogation.” 475 U. S., at 635. In other words, we presume such waivers involuntary “based on the supposition that suspects who assert their right to counsel are unlikely to waive that right voluntarily” in subsequent interactions with police. Harvey, supra, at 350. The dissent presents us with a revisionist view of Jackson. The defendants’ request for counsel, it contends, was important only because it proved that counsel had been appointed. Such a non sequitur (nowhere alluded to in the case) hardly needs rebuttal. Proceeding from this fanciful premise, the dissent claims that the decision actually established “a rule designed to safeguard a defendant’s right to rely on the assistance of counsel,” post, at 6–7 (opinion of Stevens, J.), not one “designed to prevent police badgering,” post, at 7. To safeguard the right to assistance of counsel from what? From a knowing and voluntary waiver by the defendant himself? Unless the dissent seeks to prevent a defendant altogether from waiving his Sixth Amendment rights, i.e., to “imprison a man in his privileges and call it the Constitution,” Adams v. United States ex rel. McCann, 317 U. S. 269, 280 (1942)—a view with zero support in reason, history or case law—the answer must be: from police pressure, i.e., badgering. The antibadgering rationale is the only way to make sense of Jackson’s repeated citations of Edwards, and the only way to reconcile the opinion with our waiver jurisprudence.[Footnote 2] B With this understanding of what Jackson stands for and whence it came, it should be clear that Montejo’s interpretation of that decision—that no represented defendant can ever be approached by the State and asked to consent to interrogation—is off the mark. When a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary. There is no “initial election” to exercise the right, Patterson, 487 U. S., at 291, that must be preserved through a prophylactic rule against later waivers. No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present. And no reason exists to prohibit the police from inquiring. Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about their rights, but a defendant who never asked for counsel has not yet made up his mind in the first instance. The dissent’s argument to the contrary rests on a flawed a fortiori: “If a defendant is entitled to protection from police-initiated interrogation under the Sixth Amendment when he merely requests a lawyer, he is even more obviously entitled to such protection when he has secured a lawyer.” Post, at 3. The question in Jackson, however, was not whether respondents were entitled to counsel (they unquestionably were), but “whether respondents validly waived their right to counsel,” 475 U. S., at 630; and even if it is reasonable to presume from a defendant’s request for counsel that any subsequent waiver of the right was coerced, no such presumption can seriously be entertained when a lawyer was merely “secured” on the defendant’s behalf, by the State itself, as a matter of course. Of course, reading the dissent’s analysis, one would have no idea that Montejo executed any waiver at all. In practice, Montejo’s rule would prevent police-initiated interrogation entirely once the Sixth Amendment right attaches, at least in those States that appoint counsel promptly without request from the defendant. As the dissent in Jackson pointed out, with no expressed disagreement from the majority, the opinion “most assuredly [did] not hold that the Edwards per se rule prohibiting all police-initiated interrogations applies from the moment the defendant’s Sixth Amendment right to counsel attaches, with or without a request for counsel by the defendant.” 475 U. S., at 640 (opinion of Rehnquist, J.). That would have constituted a “shockingly dramatic restructuring of the balance this Court has traditionally struck between the rights of the defendant and those of the larger society.” Ibid. Montejo’s rule appears to have its theoretical roots in codes of legal ethics, not the Sixth Amendment. The American Bar Association’s Model Rules of Professional Conduct (which nearly all States have adopted into law in whole or in part) mandate that “a lawyer shall not communicate about the subject of [a] representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Model Rule 4.2 (2008). But the Constitution does not codify the ABA’s Model Rules, and does not make investigating police officers lawyers. Montejo’s proposed rule is both broader and narrower than the Model Rule. Broader, because Montejo would apply it to all agents of the State, including the detectives who interrogated him, while the ethical rule governs only lawyers. And narrower, because he agrees that if a defendant initiates contact with the police, they may talk freely—whereas a lawyer could be sanctioned for interviewing a represented party even if that party “initiates” the communication and consents to the interview. Model Rule 4.2, Comment 3. Montejo contends that our decisions support his interpretation of the Jackson rule. We think not. Many of the cases he cites concern the substantive scope of the Sixth Amendment—e.g., whether a particular interaction with the State constitutes a “critical” stage at which counsel is entitled to be present—not the validity of a Sixth Amendment waiver. See Maine v. Moulton, 474 U. S. 159 (1985); Henry, 447 U. S. 264; Massiah, 377 U. S. 201; see also Moran, 475 U. S. 412. Since everyone agrees that absent a valid waiver, Montejo was entitled to a lawyer during the interrogation, those cases do not advance his argument. Montejo also points to descriptions of the Jackson holding in two later cases. In one, we noted that “analysis of the waiver issue changes” once a defendant “obtains or even requests counsel.” Harvey, 494 U. S., at 352. But elsewhere in the same opinion, we explained that Jackson applies “after a defendant requests assistance of counsel,” 494 U. S., at 349; “when a suspect charged with a crime requests counsel outside the context of interrogation,” id., at 350; and to “suspects who assert their right to counsel,” ibid. The accuracy of the “obtains” language is thus questionable. Anyway, since Harvey held that evidence obtained in violation of the Jackson rule could be admitted to impeach the defendant’s trial testimony, 494 U. S., at 346, the Court’s varying descriptions of when the rule was violated were dicta. The dictum from the other decision, Patterson, supra, at 290, n. 3, is no more probative.[Footnote 3] The upshot is that even on Jackson’s own terms, it would be completely unjustified to presume that a defendant’s consent to police-initiated interrogation was involuntary or coerced simply because he had previously been appointed a lawyer. IV So on the one hand, requiring an initial “invocation” of the right to counsel in order to trigger the Jackson presumption is consistent with the theory of that decision, but (as Montejo and his amici argue, see Part II, supra) would be unworkable in more than half the States of the Union. On the other hand, eliminating the invocation requirement would render the rule easy to apply but depart fundamentally from the Jackson rationale. We do not think that stare decisis requires us to expand significantly the holding of a prior decision—fundamentally revising its theoretical basis in the process—in order to cure its practical deficiencies. To the contrary, the fact that a decision has proved “unworkable” is a traditional ground for overruling it. Payne v. Tennessee, 501 U. S. 808, 827 (1991). Accordingly, we called for supplemental briefing addressed to the question whether Michigan v. Jackson should be overruled. Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned. Pearson v. Callahan, 555 U. S. ___, ___ (2009) (slip op., at 8). The first two cut in favor of abandoning Jackson: the opinion is only two decades old, and eliminating it would not upset expectations. Any criminal defendant learned enough to order his affairs based on the rule announced in Jackson would also be perfectly capable of interacting with the police on his own. Of course it is likely true that police and prosecutors have been trained to comply with Jackson, see generally Supplemental Brief for Larry D. Thompson et al. as Amici Curiae, but that is hardly a basis for retaining it as a constitutional requirement. If a State wishes to abstain from requesting interviews with represented defendants when counsel is not present, it obviously may continue to do so.[Footnote 4] Which brings us to the strength of Jackson’s reasoning. When this Court creates a prophylactic rule in order to protect a constitutional right, the relevant “reasoning” is the weighing of the rule’s benefits against its costs. “The value of any prophylactic rule … must be assessed not only on the basis of what is gained, but also on the basis of what is lost.” Minnick, 498 U. S., at 161 (Scalia, J., dissenting). We think that the marginal benefits of Jackson (viz., the number of confessions obtained coercively that are suppressed by its bright-line rule and would otherwise have been admitted) are dwarfed by its substantial costs (viz., hindering “society’s compelling interest in finding, convicting, and punishing those who violate the law,” Moran, supra, at 426). What does the Jackson rule actually achieve by way of preventing unconstitutional conduct? Recall that the purpose of the rule is to preclude the State from badgering defendants into waiving their previously asserted rights. See Harvey, supra, at 350; see also McNeil, 501 U. S., at 177. The effect of this badgering might be to coerce a waiver, which would render the subsequent interrogation a violation of the Sixth Amendment. See Massiah, supra, at 204. Even though involuntary waivers are invalid even apart from Jackson, see Patterson, 487 U. S., at 292, n. 4, mistakes are of course possible when courts conduct case-by-case voluntariness review. A bright-line rule like that adopted in Jackson ensures that no fruits of interrogations made possible by badgering-induced involuntary waivers are ever erroneously admitted at trial. But without Jackson, how many would be? The answer is few if any. The principal reason is that the Court has already taken substantial other, overlapping measures toward the same end. Under Miranda’s prophylactic protection of the right against compelled self-incrimination, any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests, and to be advised of that right. 384 U. S., at 474. Under Edwards’ prophylactic protection of the Miranda right, once such a defendant “has invoked his right to have counsel present,” interrogation must stop. 451 U. S., at 484. And under Minnick’s prophylactic protection of the Edwards right, no subsequent interrogation may take place until counsel is present, “whether or not the accused has consulted with his attorney.” 498 U. S., at 153. These three layers of prophylaxis are sufficient. Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but “badgering” by later requests is prohibited. If that regime suffices to protect the integrity of “a suspect’s voluntary choice not to speak outside his lawyer’s presence” before his arraignment, Cobb, 532 U. S., at 175 (Kennedy, J., concurring), it is hard to see why it would not also suffice to protect that same choice after arraignment, when Sixth Amendment rights have attached. And if so, then Jackson is simply superfluous. It is true, as Montejo points out in his supplemental brief, that the doctrine established by Miranda and Edwards is designed to protect Fifth Amendment, not Sixth Amendment, rights. But that is irrelevant. What matters is that these cases, like Jackson, protect the right to have counsel during custodial interrogation—which right happens to be guaranteed (once the adversary judicial process has begun) by two sources of law. Since the right under both sources is waived using the same procedure, Patterson, supra, at 296, doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver. Montejo also correctly observes that the Miranda-Edwards regime is narrower than Jackson in one respect: The former applies only in the context of custodial interrogation. If the defendant is not in custody then those decisions do not apply; nor do they govern other, noninterrogative types of interactions between the defendant and the State (like pretrial lineups). However, those uncovered situations are the least likely to pose a risk of coerced waivers. When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering. And noninterrogative interactions with the State do not involve the “inherently compelling pressures,” Miranda, supra, at 467, that one might reasonably fear could lead to involuntary waivers. Jackson was policy driven, and if that policy is being adequately served through other means, there is no reason to retain its rule. Miranda and the cases that elaborate upon it already guarantee not simply noncoercion in the traditional sense, but what Justice Harlan referred to as “voluntariness with a vengeance,” 384 U. S., at 505 (dissenting opinion). There is no need to take Jackson’s further step of requiring voluntariness on stilts. On the other side of the equation are the costs of adding the bright-line Jackson rule on top of Edwards and other extant protections. The principal cost of applying any exclusionary rule “is, of course, letting guilty and possibly dangerous criminals go free … .” Herring v. United States, 555 U. S. ___, ___ (2009) (slip op., at 6). Jackson not only “operates to invalidate a confession given by the free choice of suspects who have received proper advice of their Miranda rights but waived them nonetheless,” Cobb, supra, at 174–175 (Kennedy, J., concurring), but also deters law enforcement officers from even trying to obtain voluntary confessions. The “ready ability to obtain uncoerced confessions is not an evil but an unmitigated good.” McNeil, 501 U. S., at 181. Without these confessions, crimes go unsolved and criminals unpunished. These are not negligible costs, and in our view the Jackson Court gave them too short shrift.[Footnote 5] Notwithstanding this calculus, Montejo and his amici urge the retention of Jackson. Their principal objection to its elimination is that the Edwards regime which remains will not provide an administrable rule. But this Court has praised Edwards precisely because it provides “ ‘clear and unequivocal’ guidelines to the law enforcement profession,” Arizona v. Roberson, 486 U. S. 675, 682 (1988). Our cases make clear which sorts of statements trigger its protections, see Davis v. United States, 512 U. S. 452, 459 (1994), and once triggered, the rule operates as a bright line. Montejo expresses concern that courts will have to determine whether statements made at preliminary hearings constitute Edwards invocations—thus implicating all the practical problems of the Louisiana rule we discussed above, see Part II, supra. That concern is misguided. “We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’… .” McNeil, supra, at 182, n. 3. What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation—not what happened at any preliminary hearing. In sum, when the marginal benefits of the Jackson rule are weighed against its substantial costs to the truth-seeking process and the criminal justice system, we readily conclude that the rule does not “pay its way,” United States v. Leon, 468 U. S. 897, 907–908, n. 6 (1984). Michigan v. Jackson should be and now is overruled. V Although our holding means that the Louisiana Supreme Court correctly rejected Montejo’s claim under Jackson, we think that Montejo should be given an opportunity to contend that his letter of apology should still have been suppressed under the rule of Edwards. If Montejo made a clear assertion of the right to counsel when the officers approached him about accompanying them on the excursion for the murder weapon, then no interrogation should have taken place unless Montejo initiated it. Davis, supra, at 459. Even if Montejo subsequently agreed to waive his rights, that waiver would have been invalid had it followed an “unequivocal election of the right,” Cobb, 532 U. S., at 176 (Kennedy, J., concurring). Montejo understandably did not pursue an Edwards objection, because Jackson served as the Sixth Amendment analogy to Edwards and offered broader protections. Our decision today, overruling Jackson, changes the legal landscape and does so in part based on the protections already provided by Edwards. Thus we think that a remand is appropriate so that Montejo can pursue this alternative avenue for relief. Montejo may also seek on remand to press any claim he might have that his Sixth Amendment waiver was not knowing and voluntary, e.g., his argument that the waiver was invalid because it was based on misrepresentations by police as to whether he had been appointed a lawyer, cf. Moran, 475 U. S., at 428–429. These matters have heightened importance in light of our opinion today. We do not venture to resolve these issues ourselves, not only because we are a court of final review, “not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), but also because the relevant facts remain unclear. Montejo and the police gave inconsistent testimony about exactly what took place on the afternoon of September 10, 2002, and the Louisiana Supreme Court did not make an explicit credibility determination. Moreover, Montejo’s testimony came not at the suppression hearing, but rather only at trial, and we are unsure whether under state law that testimony came too late to affect the propriety of the admission of the evidence. These matters are best left for resolution on remand. We do reject, however, the dissent’s revisionist legal analysis of the “knowing and voluntary” issue. Post, at 10–14. In determining whether a Sixth Amendment waiver was knowing and voluntary, there is no reason categorically to distinguish an unrepresented defendant from a represented one. It is equally true for each that, as we held in Patterson, the Miranda warnings adequately inform him “of his right to have counsel present during the questioning,” and make him “aware of the consequences of a decision by him to waive his Sixth Amendment rights,” 487 U. S., at 293. Somewhat surprisingly for an opinion that extols the virtues of stare decisis, the dissent complains that our “treatment of the waiver question rests entirely on the dubious decision in Patterson,” post, at 12. The Court in Patterson did not consider the result dubious, nor does the Court today. * * * This case is an exemplar of Justice Jackson’s oft quoted warning that this Court “is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.” Douglas v. City of Jeannette, 319 U. S. 157, 181 (1943) (opinion concurring in result). We today remove Michigan v. Jackson’s fourth story of prophylaxis. The judgment of the Louisiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 “The sheriff or law enforcement officer having custody of an arrested person shall bring him promptly, and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of counsel.” La. Code Crim. Proc. Ann., Art. 230.1(A) (West Supp. 2009). Footnote 2 The dissent responds that Jackson also ensures that the defendant’s counsel receives notice of any interrogation, post, at 6, n. 2. But notice to what end? Surely not in order to protect some constitutional right to receive counsel’s advice regarding waiver of the right to have counsel present. Contrary to the dissent’s intimations, neither the advice nor the presence of counsel is needed in order to effectuate a knowing waiver of the Sixth Amendment right. Our cases make clear that the Miranda waivers typically suffice; indeed, even an unrepresented defendant can waive his right to counsel. See supra, at 7. Footnote 3 In the cited passage, the Court noted that “[o]nce an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of attorney-client relationship takes effect.” Patterson, 487 U. S., at 290, n. 3. To support that proposition, the Court cited Maine v. Moulton, 474 U. S. 159 (1985), which was not a case about waiver. The passage went on to observe that “the analysis changes markedly once an accused even requests the assistance of counsel,” 487 U. S., at 290, n. 3 (emphasis in original), this time citing Jackson. Montejo infers from the “even requests” that having counsel is more conclusive of the invalidity of uncounseled waiver than the mere requesting of counsel. But the Patterson footnote did not suggest that the analysis “changes” in both these scenarios (having a lawyer, versus requesting one) with specific reference to the validity of waivers under the Sixth Amendment. The citation of Moulton (a nonwaiver case) for the first scenario suggests just the opposite. Footnote 4 The dissent posits a different reliance interest: “the public’s interest in knowing that counsel, once secured, may be reasonably relied upon as a medium between the accused and the power of the State,” post, at 9. We suspect the public would be surprised to learn that a criminal can freely sign away his right to a lawyer, confess his crimes, and then ask the courts to assume that the confession was coerced—on the ground that he had, at some earlier point in time, made a pro forma statement requesting that counsel be appointed on his behalf. Footnote 5 The dissent claims that, in fact, few confessions have been suppressed by federal courts applying Jackson. Post, at 8. If so, that is because, as the dissent boasts, “generations of police officers have been trained to refrain from approaching represented defendants,” post, at 9, n. 4. Anyway, if the rule truly does not hinder law enforcement or make much practical difference, see post, at 7–9, and nn. 3–4, then there is no reason to be particularly exercised about its demise. |
555.US.2008_07-499 | The Immigration and Nationality Act (INA) bars an alien from obtaining refugee status in this country if he “assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U. S. C. §1101(a)(42). This so-called “persecutor bar” applies to those seeking asylum or withholding of removal, but does not disqualify an alien from receiving a temporary deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). During the time petitioner, an Eritrean national, was forced to work as a prison guard in that country, the prisoners he guarded were persecuted on grounds protected under §1101(a)(42). After escaping to the United States, petitioner applied for asylum and withholding of removal. Concluding that he assisted in the persecution of prisoners by working as an armed guard, the Immigration Judge denied relief on the basis of the persecutor bar, but granted deferral of removal under CAT because petitioner was likely to be tortured if returned to Eritrea. The Board of Immigration Appeals (BIA) affirmed in all respects, holding, inter alia, that the persecutor bar applies even if the alien’s assistance in persecution was coerced or otherwise the product of duress. The BIA followed its earlier decisions finding Fedorenko v. United States, 449 U. S. 490, controlling. The Fifth Circuit affirmed, relying on its precedent following the same reasoning. Held: The BIA and Fifth Circuit misapplied Fedorenko as mandating that whether an alien is compelled to assist in persecution is immaterial for prosecutor-bar purposes. The BIA must interpret the statute, free from this mistaken legal premise, in the first instance. Pp. 4–12. (a) Under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–843, the BIA is entitled to deference in interpreting ambiguous INA provisions, see, e.g., INS v. Aguirre-Aguirre, 526 U. S. 415, 424–425. When the BIA has not spoken on “a matter that statutes place primarily in agency hands,” this Court’s ordinary rule is to remand to allow “the BIA … to address the matter in the first instance in light of its own experience.” INS v. Orlando Ventura, 537 U. S. 12, 16–17. Pp. 4–5. (b) As there is substance both to petitioner’s contention that involuntary acts cannot implicate the persecutor bar because “persecution” presumes moral blameworthiness, and to the Government’s argument that the question at issue is answered by the statute’s failure to provide an exception for coerced conduct, it must be concluded that the INA has an ambiguity that the BIA should address in the first instance. Fedorenko, which addressed a different statute enacted for a different purpose, does not control the BIA’s interpretation of this persecutor bar. In holding that voluntariness was not required with respect to such a bar in the Displaced Persons Act of 1948 (DPA), Fedorenko contrasted the omission there of the word “voluntary” with the word’s inclusion in a related statutory subsection. 449 U. S., at 512. Because Congress did not use the word “voluntary” anywhere in the persecutor bar at issue here, its omission cannot carry the same significance as it did in Fedorenko. Moreover, the DPA’s exclusion of even those involved in nonculpable, involuntary assistance in persecution was enacted in part to address the Holocaust and its horror, see id., at 511, n. 32, whereas the persecutor bar in this case was enacted as part of the Refugee Act of 1980, which was designed to provide a general rule for the ongoing treatment of all refugees and displaced persons, see, e.g., Aguirre-Aguirre, supra, at 427. Pp. 5–8. (c) Whether a BIA determination that the persecution bar contains no exception for coerced conduct would be reasonable, and thus owed Chevron deference, is a legitimate question; but it is not presented here. In denying petitioner relief, the BIA recited a rule it has developed in its cases: An alien’s motivation and intent are irrelevant to the issue whether he “assisted” in persecution; rather, his actions’ objective effect controls. A reading of those decisions confirms that the BIA has not exercised its interpretive authority but, instead, has deemed its interpretation to be mandated by Fedorenko. This error prevented the BIA from fully considering the statutory question presented. Its mistaken assumption stems from a failure to recognize the inapplicability of the statutory construction principle invoked in Fedorenko, as well as a failure to appreciate the differences in statutory purpose. The BIA is not bound to apply the Fedorenko rule to the persecutor bar here at issue. Whether the statute permits such an interpretation based on a different course of reasoning must be determined in the first instance by the agency. Pp. 8–10. (d) Because the BIA has not yet exercised its Chevron discretion to interpret the statute, the proper course is to remand to it for additional investigation or explanation, e.g., Gonzales v. Thomas, 547 U. S. 183, 186, allowing it to bring its expertise to bear on the matter, evaluate the evidence, make an initial determination, and thereby help a court later determine whether its decision exceeds the leeway that the law provides, e.g., id., at 186–187. Pp. 10–12. 231 Fed. Appx. 325, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Souter, Ginsburg, and Alito, JJ., joined. Scalia, J., filed a concurring opinion, in which Alito, J., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined. Thomas, J., filed a dissenting opinion. | An alien who fears persecution in his homeland and seeks refugee status in this country is barred from obtaining that relief if he has persecuted others. “The term ‘refugee’ does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” Immigration and Nationality Act (INA), §101, 66 Stat. 166, as added by Refugee Act of 1980, §201(a), 94 Stat. 102–103, 8 U. S. C. §1101(a)(42). This so-called “persecutor bar” applies to those seeking asylum, §1158(b)(2)(A)(i), or withholding of removal, §1231(b)(3)(B)(i). It does not disqualify an alien from receiving a temporary deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85; 8 CFR §1208.17(a) (2008). In this case the Board of Immigration Appeals (BIA) determined that the persecutor bar applies even if the alien’s assistance in persecution was coerced or otherwise the product of duress. In so ruling the BIA followed its earlier decisions that found Fedorenko v. United States, 449 U. S. 490 (1981), controlling. The Court of Appeals for the Fifth Circuit, in affirming the agency, relied on its precedent following the same reasoning. We hold that the BIA and the Court of Appeals misapplied Fedorenko. We reverse and remand for the agency to interpret the statute, free from the error, in the first instance. I Petitioner in this Court is Daniel Girmai Negusie, a dual national of Eritrea and Ethiopia, his father having been a national of the former and his mother of the latter. Born and educated in Ethiopia, he left there for Eritrea around the age of 18 to see his mother and find employment. The year was 1994. After a few months in Eritrea, state officials took custody of petitioner and others when they were attending a movie. He was forced to perform hard labor for a month and then was conscripted into the military for a time. War broke out between Ethiopia and Eritrea in 1998, and he was conscripted again. When petitioner refused to fight against Ethiopia, his other homeland, the Eritrean Government incarcerated him. Prison guards punished petitioner by beating him with sticks and placing him in the hot sun. He was released after two years and forced to work as a prison guard, a duty he performed on a rotating basis for about four years. It is undisputed that the prisoners he guarded were being persecuted on account of a protected ground—i.e., “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U. S. C. §1101(a)(42). Petitioner testified that he carried a gun, guarded the gate to prevent escape, and kept prisoners from taking showers and obtaining fresh air. He also guarded prisoners to make sure they stayed in the sun, which he knew was a form of punishment. He saw at least one man die after being in the sun for more than two hours. Petitioner testified that he had not shot at or directly punished any prisoner and that he helped prisoners on various occasions. Petitioner escaped from the prison and hid in a container, which was loaded on board a ship heading to the United States. Once here he applied for asylum and withholding of removal. In a careful opinion the Immigration Judge, W. Wayne Stogner, found that petitioner’s testimony, for the most part, was credible. He concluded that petitioner assisted in persecution by working as an armed guard. The judge determined that although “there’s no evidence to establish that [petitioner] is a malicious person or that he was an aggressive person who mistreated the prisoners, . . . the very fact that he helped [the government] in the prison compound where he had reason to know that they were persecuted constitutes assisting in the persecution of others and bars [petitioner] from” obtaining asylum or withholding of removal. App. to Pet. for Cert. 16a–17a (citing, inter alia, Fedorenko, supra). The judge, however, granted deferral of removal under CAT because petitioner was likely to be tortured if returned to Eritrea. The BIA affirmed the denial of asylum and withholding. It noted petitioner’s role as an armed guard in a facility where “prisoners were tortured and left to die out in the sun . . . on account of a protected ground.” App. to Pet. for Cert. 6a. The BIA held that “[t]he fact that [petitioner] was compelled to participate as a prison guard, and may not have actively tortured or mistreated anyone, is immaterial.” Ibid. That is because “ ‘an alien’s motivation and intent are irrelevant to the issue of whether he “assisted” in persecution . . . [I]t is the objective effect of an alien’s actions which is controlling.’ ” Ibid. (quoting Matter of Fedorenko, 19 I. & N. Dec. 57, 69 (BIA 1984)). The BIA also affirmed the grant of deferral of removal under CAT. On petition for review the Court of Appeals agreed with the BIA that whether an alien is compelled to assist in persecution is immaterial for persecutor-bar purposes. App. to Pet. for Cert. 2a (citing Fedorenko, 449 U. S., at 512, n. 34). We granted certiorari. 552 U. S. ___ (2008). II Consistent with the rule in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–843 (1984), the BIA is entitled to deference in interpreting ambiguous provisions of the INA. The question here is whether an alien who was compelled to assist in persecution can be eligible for asylum or withholding of removal. We conclude that the BIA misapplied our precedent in Fedorenko as mandating that an alien’s motivation and intent are irrelevant to the issue whether an alien assisted in persecution. The agency must confront the same question free of this mistaken legal premise. A It is well settled that “principles of Chevron deference are applicable to this statutory scheme.” INS v. Aguirre-Aguirre, 526 U. S. 415, 424 (1999). Congress has charged the Attorney General with administering the INA, and a “ruling by the Attorney General with respect to all questions of law shall be controlling.” 8 U. S. C. §1103(a)(1). Judicial deference in the immigration context is of special importance, for executive officials “exercise especially sensitive political functions that implicate questions of foreign relations.” INS v. Abudu, 485 U. S. 94, 100 (1988). The Attorney General’s decision to bar an alien who has participated in persecution “may affect our relations with [the alien’s native] country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.” Aguirre-Aguirre, 526 U. S., at 425. The Attorney General, in turn, has delegated to the BIA the “ ‘discretion and authority conferred upon the Attorney General by law’ ” in the course of “ ‘considering and determining cases before it.’ ” Ibid. (quoting 8 CFR §3.1(d)(1) (1998)). As a consequence, “the BIA should be accorded Chevron deference as it gives ambiguous statutory terms ‘concrete meaning through a process of case-by-case adjudication.’ ” Aguirre-Aguirre, supra, at 425 (quoting INS v. Cardoza-Fonseca, 480 U. S. 421, 448–449 (1987)). When the BIA has not spoken on “a matter that statutes place primarily in agency hands,” our ordinary rule is to remand to “giv[e] the BIA the opportunity to address the matter in the first instance in light of its own experience.” INS v. Orlando Ventura, 537 U. S. 12, 16–17 (2002) (per curiam). B The parties disagree over whether coercion or duress is relevant in determining if an alien assisted or otherwise participated in persecution. As there is substance to both contentions, we conclude that the statute has an ambiguity that the agency should address in the first instance. Petitioner argues that the statute’s plain language makes clear that involuntary acts do not implicate the persecutor bar because “ ‘persecution’ ” presumes moral blameworthiness. Brief for Petitioner 23–28. He invokes principles of criminal culpability, concepts of international law, and the rule of lenity. Id., at 28–45. Those arguments may be persuasive in determining whether a particular agency interpretation is reasonable, but they do not demonstrate that the statute is unambiguous. Petitioner all but conceded as much at argument in this Court when he indicated that the BIA has discretion to construe the duress defense in either a narrow or a broad way. Tr. of Oral Arg. 20–24. The Government, on the other hand, asserts that the statute does not allow petitioner’s construction. “The statutory text,” the Government says, “directly answers that question: there is no exception” for conduct that is coerced because Congress did not include one. Brief for Respondent 11. We disagree. The silence is not conclusive. The question is whether the statutory text mandates that coerced actions must be deemed assistance in persecution. On that point the statute, in its precise terms, is not explicit. Nor is this a case where it is clear that Congress had an intention on the precise question at issue. Cf. Cardoza-Fonseca, supra, at 448–449. The Government, like the BIA and the Court of Appeals, relies on Fedorenko to provide the answer. This reliance is not without some basis, as the Court there held that voluntariness was not required with respect to another persecutor bar. 449 U. S., at 512. To the extent, however, the Government deems Fedorenko to be controlling, it is in error. In Fedorenko, the Court interpreted the Displaced Persons Act of 1948 (DPA), 62 Stat. 1009. The DPA was enacted “to enable European refugees driven from their homelands by the [second world] war to emigrate to the United States without regard to traditional immigration quotas.” 449 U. S., at 495. Section 2(b) of the DPA provides relief to “any displaced person or refugee as defined in Annex I of the Constitution of the International Refugee Organization” of the United Nations (IRO Constitution). 62 Stat. 1009. The IRO Constitution, as codified by Congress, excludes any individual “who can be shown: (a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or (b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.” Annex I, Part II, §2, 62 Stat. 3051–3052. The Fedorenko Court held that “an individual’s service as a concentration camp armed guard—whether voluntary or involuntary—made him ineligible for a visa” under §2(a) of the IRO Constitution. 449 U. S., at 512. That Congress did not adopt a voluntariness requirement for §2(a), the Court noted, “is plain from comparing §2(a) with §2(b), which excludes only those individuals who ‘voluntarily assisted the enemy forces.’ ” Ibid. The Court relied on the principle of statutory construction that “the deliberate omission of the word ‘voluntary’ from §2(a) compels the conclusion that the statute made all those who assisted in persecution of civilians ineligible for visas.” Ibid. Fedorenko does not compel the same conclusion in the case now before us. The textual structure of the statute in Fedorenko (“voluntary” is in one subsection but not the other) is not part of the statutory framework considered here. Congress did not use the word “voluntary” in any subsection of the persecutor bar, so its omission cannot carry the same significance. The difference between the statutory scheme in Fedorenko and the one here is confirmed when we “ ‘look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.’ ” Dada v. Mukasey, 554 U. S. 1, ___ (2008) (slip op., at 13) (quoting Gozlon-Peretz v. United States, 498 U. S. 395, 407 (1991)). Both statutes were enacted to reflect principles set forth in international agreements, but the principles differ in significant respects. As discussed, Congress enacted the DPA in 1948 as part of an international effort to address individuals who were forced to leave their homelands during and after the second World War. Fedorenko, supra, at 495. The DPA excludes those who “voluntarily assisted the enemy forces since the outbreak of the second world war,” 62 Stat. 3052, as well as all who “assisted the enemy in persecuting civil populations of countries,” id., at 3051. The latter exclusion clause makes no reference to culpability. The exclusion of even those involved in nonculpable, involuntary assistance in Nazi persecution, as an expert testified in Fedorenko, may be “ ‘[b]ecause the crime against humanity that is involved in the concentration camp puts it into a different category.’ ” 449 U. S., at 511, n. 32. The persecutor bar in this case, by contrast, was enacted as part of the Refugee Act of 1980. Unlike the DPA, which was enacted to address not just the post war refugee problem but also the Holocaust and its horror, the Refugee Act was designed to provide a general rule for the ongoing treatment of all refugees and displaced persons. As this Court has twice recognized, “ ‘one of Congress’ primary purposes’ in passing the Refugee Act was to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U. S. T. 6224, T. I. A. S. 6577 (1968),” as well as the “United Nations Convention Relating to the Status of Refugees, 189 U. N. T. S. 150 (July 28, 1951), reprinted in 19 U. S. T. 6259.” Aguirre-Aguirre, 526 U. S., at 427 (quoting Cardoza-Fonseca, 480 U. S., at 436–437). These authorities illustrate why Fedorenko, which addressed a different statute enacted for a different purpose, does not control the BIA’s interpretation of this persecutor bar. Whatever weight or relevance these various authorities may have in interpreting the statute should be considered by the agency in the first instance, and by any subsequent reviewing court, after our remand. C The Government argues that “if there were any ambiguity in the text, the Board’s determination that the bar contains no such exception is reasonable and thus controlling.” Brief for Respondent 11. Whether such an interpretation would be reasonable, and thus owed Chevron deference, is a legitimate question; but it is not now before us. The BIA deemed its interpretation to be mandated by Fedorenko, and that error prevented it from a full consideration of the statutory question here presented. In denying relief in this case the BIA recited a rule that has developed in its own case law in reliance on Fedorenko: “[A]n alien’s motivation and intent are irrelevant to the issue of whether he ‘assisted’ in persecution . . . [I]t is the objective effect of an alien’s actions which is controlling.” App. to Pet. for Cert. 6a. The rule is based on three earlier decisions: Matter of Laipenieks, 18 I. & N. Dec. 433 (1983); Matter of Fedorenko, 19 I. & N. Dec. 57; and Matter of Rodriguez-Majano, 19 I. & N. Dec. 811 (1988). In Matter of Laipenieks, the BIA applied the Court’s Fedorenko analysis of the DPA to a different postwar statute, which provided for the deportation of anyone associated with the Nazis who “ordered, incited, assisted, or otherwise participated” in persecution based on a protected ground. 8 U. S. C. §1182(a)(3)(E)(i). Finding no agency or judicial decision on point, the BIA relied on Fedorenko. It recognized that the unique structure of the Fedorenko statute was not present in §1182(a)(3)(E)(i), but the BIA nevertheless adopted wholesale the Fedorenko rule: “[A]s in Fedorenko, . . . the plain language of [§1182(a)(3)(E)(i)] mandates a literal interpretation, and the omission of an intent element compels the conclusion that [§1182(a)(3)(E)(i)] makes all those who assisted in the specific persecution deportable.” 18 I. & N. Dec., at 464. In other words, “particular motivations or intent . . . is not a relevant factor.” Ibid. The second decision, Matter of Fedorenko, also dealt with §1182(a)(3)(E)(i), and it involved the same alien whose citizenship was revoked by this Court’s Fedorenko decision. This time the agency sought to deport him. Fedorenko responded by requesting suspension of deportation. He argued that, unlike the DPA’s bar on any assistance—voluntary or involuntary—in persecution, see Fedorenko, 449 U. S., at 512, the text and structure of §1182(a)(3)(E)(i) required deportation only of those who voluntarily assisted in persecuting others. The BIA rejected that distinction, noting that it was foreclosed by Matter of Laipenieks: “It may be, as [Fedorenko] argues, that his service at Treblinka was involuntary. . . . We need not resolve the issue, however, because as a matter of law [Fedorenko’s] motivations for serving as a guard at Treblinka are immaterial to the question of his deportability under” §1182(a)(3)(E)(i). 19 I. & N. Dec., at 69–70. Later, the BIA applied this Court’s Fedorenko rule to the persecutor bar that is at issue in the present case. In Matter of Rodriguez-Majano, the BIA granted relief because the alien’s coerced conduct as a guerrilla was not persecution based on a protected ground. 19 I. & N. Dec., at 815–816. Nevertheless, in reaching its conclusion the BIA incorporated without additional analysis the Fedorenko rule as applied in Matter of Laipenieks and reiterated in Matter of Fedorenko. 19 I. & N. Dec., at 814–815. The BIA reaffirmed that “[t]he participation or assistance of an alien in persecution need not be of his own volition to bar him from relief.” Id., at 814 (citing Fedorenko, 449 U. S. 490). Our reading of these decisions confirms that the BIA has not exercised its interpretive authority but, instead, has determined that Fedorenko controls. This mistaken assumption stems from a failure to recognize the inapplicability of the principle of statutory construction invoked in Fedorenko, as well as a failure to appreciate the differences in statutory purpose. The BIA is not bound to apply the Fedorenko rule that motive and intent are irrelevant to the persecutor bar at issue in this case. Whether the statute permits such an interpretation based on a different course of reasoning must be determined in the first instance by the agency. III Having concluded that the BIA has not yet exercised its Chevron discretion to interpret the statute in question, “ ‘ “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” ’ ” Gonzales v. Thomas, 547 U. S. 183, 186 (2006) (per curiam) (quoting Ventura, 537 U. S., at 16, in turn quoting Florida Power & Light Co. v. Lorion, 470 U. S. 729, 744 (1985)). This remand rule exists, in part, because “ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion. Filling these gaps . . . involves difficult policy choices that agencies are better equipped to make than courts.” National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 980 (2005). Justice Stevens would have the Court provide a definite answer to the question presented and then remand for further proceedings. That approach, however, is in tension with the “ordinary ‘remand’ rule.” Ventura, supra, at 18; see also Cajun Elec. Power Cooperative, Inc. v. FERC, 924 F. 2d 1132, 1136 (CADC 1991) (opinion for the Court by Silberman, J., joined by R. Ginsburg and Thomas, JJ.) (“[I]f an agency erroneously contends that Congress’ intent has been clearly expressed and has rested on that ground, we remand to require the agency to consider the question afresh in light of the ambiguity we see”). Thomas is illustrative. There, the agency had not determined whether a family may constitute a social group for the purposes of refugee status. The Ninth Circuit held that the family can constitute a protected social group and that the particular family at issue did qualify. 547 U. S., at 184–185. The Solicitor General sought review in this Court on “whether the Ninth Circuit erred in holding, in the first instance and without prior resolution of the questions by the relevant administrative agency, that members of a family can and do constitute a particular social group, within the meaning of the Act.” Id., at 185 (internal quotation marks omitted). He argued that the Ninth Circuit’s decision violated the Ventura ordinary remand rule. We agreed and summarily reversed. 547 U. S., at 184–185 Ventura and Thomas counsel a similar result here. Because of the important differences between the statute before us and the one at issue in Fedorenko, we find it appropriate to remand to the agency for its initial determination of the statutory interpretation question and its application to this case. The agency’s interpretation of the statutory meaning of “persecution” may be explained by a more comprehensive definition, one designed to elaborate on the term in anticipation of a wide range of potential conduct; and that expanded definition in turn may be influenced by how practical, or impractical, the standard would be in terms of its application to specific cases. These matters may have relevance in determining whether its statutory interpretation is a permissible one. As the Court said in Ventura and reiterated in Thomas, “ ‘[t]he agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides.’ ” 547 U. S., at 186–187 (quoting Ventura, supra, at 17). If the BIA decides to adopt a standard that considers voluntariness to some degree, it may be prudent and necessary for the Immigration Judge to conduct additional factfinding based on the new standard. Those determinations are for the agency to make in the first instance. * * * We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. |
557.US.2008_08-495 | An alien “convicted of an aggravated felony any time after admission is deportable.” 8 U. S. C. §1227(a)(2)(A)(iii). An “aggravated felony” includes “an offense that … involves fraud or deceit in which the loss to the … victims exceeds $10,000.” §1101(a)(43)(M)(i). Petitioner, an alien, was convicted of conspiring to commit mail fraud and related crimes. Because the relevant statutes did not require a finding of loss, the jury made no such finding. However, at sentencing, petitioner stipulated that the loss exceeded $100 million. He was sentenced to prison and required to make $683 million in restitution. The Government subsequently sought to remove him from the United States, claiming that he had been convicted of an “aggravated felony.” The Immigration Judge found that petitioner’s conviction fell within the “aggravated felony” definition. The Board of Immigration Appeals agreed, as did the Third Circuit, which held that the Immigration Judge could inquire into the underlying facts of a prior fraud conviction for purposes of determining whether the loss to the victims exceeded $10,000. Held: Subparagraph (M)(i)’s $10,000 threshold refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion rather than to an element of the fraud or deceit crime. Pp. 3–13. (a) Words such as “crime,” “felony, and “offense” sometimes refer to a generic crime (a “categorical” interpretation), and sometimes refer to the specific acts in which an offender engaged (“circumstance-specific” interpretation). The basic argument favoring the “categorical” interpretation rests upon Taylor v. United States, 495 U. S. 575, Chambers v. United States, 555 U. S. ___, and James v. United States, 550 U. S. 192. These cases concerned the Armed Career Criminal Act (ACCA), which enhances the sentence for firearm-law offenders who have prior “violent felony” convictions, 18 U. S. C. §924(e). The Court held that the word “felony” refers to a generic crime as generally committed. Thus, for example, in James, the Court applied the “categorical method” to determine whether an “attempted burglary” was a “violent felony.” That method required the Court to examine “not the unsuccessful burglary … attempted on a particular occasion, but the generic crime of attempted burglary.” 550 U. S.em>., at 204–206. Pp. 3–5. (b) Contrary to petitioner’s arguments, the “$10,000 loss” provision at issue calls for a “circumstance-specific” interpretation, not a “categorical” one. The “aggravated felony” statute of which it is a part differs from ACCA in general, and the “$10,000 loss” provision differs specifically from ACCA’s provisions. Pp. 6–10. (1) The “aggravated felony” statute at issue resembles ACCA when it lists several “offenses” in language that must refer to generic crimes. But other “offenses” are listed using language that almost certainly refers to specific circumstances. Title 8 U. S. C. §1101(a)(43)(P), for example, after referring to “an offense” that amounts to “falsely making, forging, counterfeiting, mutilating, or altering a passport,” adds, “except in the case of a first offense for which … the alien committed the offense for the purpose of assisting … the alien’s spouse, child, or parent … to violate a provision of this chapter.” The language about “forging … passport[s]” may well refer to a generic crime, but the exception cannot possibly refer to a generic crime, because there is no criminal statute that contains any such exception. Subparagraph (M)(ii), which refers to an offense “described in [26 U. S. C. §7201] (relating to tax evasion) in which the revenue loss to the government exceeds $10,000,” provides another example. Because no §7201 offense has a specific loss amount as an element, the tax-evasion provision would be pointless, unless the “revenue loss” language calls for circumstance-specific application. Here, the question is to which category subparagraph (M)(i) belongs. Pp. 6–8. (2) Subparagraph (M)(i)’s language is consistent with a circumstance-specific approach. The words “in which” (modifying “offense”) can refer to the conduct involved “in” the commission of the offense of conviction, rather than to the elements of the offense. Moreover, subparagraph (M)(i) appears just prior to subparagraph (M)(ii), the tax-evasion provision, and their structures are identical. Where, as here, Congress uses similar statutory language and similar statutory structure in two adjoining provisions, it normally intends similar interpretations. IBP, Inc. v. Alvarez, 546 U. S. 21, 34. Additionally, applying a categorical approach would leave subparagraph (M)(i) with little, if any, meaningful application. Only three federal fraud statutes appear to contain a relevant monetary loss threshold. And at the time the $10,000 threshold was added, only eight States had fraud and deceit statutes in respect to which that threshold, as categorically interpreted, would have full effect. Congress is unlikely to have intended subparagraph (M)(i) to apply in such a limited and haphazard manner. Pp. 8–10. (c) This Court rejects petitioner’s alternative position that fairness calls for a “modified categorical approach” requiring a jury verdict or a judge-approved equivalent to embody a loss-amount determination, and permitting the subsequent immigration court applying subparagraph (M)(i) to examine only charging documents, jury instructions, and any special jury finding, or their equivalents. The Court’s cases developed the evidentiary list to which petitioner points for a very different purpose, namely, to determine which statutory phrase (contained within a statutory provision covering several different generic crimes) covered a prior conviction. Additionally, petitioner’s proposal can prove impractical insofar as it requires obtaining from a jury a special verdict on a fact that is not an element of the offense. Further, evidence of loss offered by the Government must meet a “clear and convincing” standard and the loss must be tied to the specific counts covered by the conviction. These considerations mean that petitioner and others in similar circumstances have at least one and possibly two opportunities to contest the loss amount, the first at the earlier sentencing and the second at the deportation hearing. There was nothing unfair about the Immigration Judge’s reliance on earlier sentencing-related material here. The defendant’s sentencing stipulation and the court’s restitution order show that the conviction involved losses considerably greater than $10,000. Absent any conflicting evidence, this evidence is clear and convincing. Pp. 10–12. 523 F. 3d 387, affirmed. Breyer, J., delivered the opinion for a unanimous Court. | Federal immigration law provides that any “alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U. S. C. §1227(a)(2)(A)(iii) (emphasis added). A related statute defines “aggravated felony” in terms of a set of listed offenses that includes “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” §1101(a)(43)(M)(i) (emphasis added). See Appendix A. The question before us is whether the italicized language refers to an element of the fraud or deceit “offense” as set forth in the particular fraud or deceit statute defining the offense of which the alien was previously convicted. If so, then in order to determine whether a prior conviction is for the kind of offense described, the immigration judge must look to the criminal fraud or deceit statute to see whether it contains a monetary threshold of $10,000 or more. See Taylor v. United States, 495 U. S. 575 (1990) (so interpreting the Armed Career Criminal Act). We conclude, however, that the italicized language does not refer to an element of the fraud or deceit crime. Rather it refers to the particular circumstances in which an offender committed a (more broadly defined) fraud or deceit crime on a particular occasion. I Petitioner, an alien, immigrated to the United States in 1985. In 2002 he was indicted for conspiring to commit mail fraud, wire fraud, bank fraud, and money laundering. 18 U. S. C. §§371, 1341, 1343, 1344, 1956(h). A jury found him guilty. But because none of these statutes requires a finding of any particular amount of victim loss, the jury made no finding about the amount of the loss. At sentencing petitioner stipulated that the loss exceeded $100 million. The court then imposed a sentence of 41 months in prison and required restitution of $683 million. In 2005 the Government, claiming that petitioner had been convicted of an “aggravated felony,” sought to remove him from the United States. The Immigration Judge found that petitioner’s conviction was for crimes of fraud and deceit; that the sentencing stipulation and restitution order showed that the victims’ loss exceeded $10,000; and that petitioner’s conviction consequently fell within the immigration statute’s “aggravated felony” definition. See 8 U. S. C. §§1101(a)(43)(M)(i), (U) (including within the definition of “aggravated felony” any “attempt or conspiracy to commit” a listed “offense”). The Board of Immigration Appeals agreed. App. to Pet. for Cert. 44a–51a. So did the Third Circuit. 523 F. 3d 387 (2008). The Third Circuit noted that the statutes of conviction were silent as to amounts, but, in its view, the determination of loss amounts for “aggravated felony” purposes “requires an inquiry into the underlying facts of the case.” Id., at 396 (internal quotation marks omitted). The Courts of Appeals have come to different conclusions as to whether the $10,000 threshold in subparagraph (M)(i) refers to an element of a fraud statute or to the factual circumstances surrounding commission of the crime on a specific occasion. Compare Conteh v. Gonzales, 461 F. 3d 45, 55 (CA1 2006) (fact-based approach); 523 F. 3d 387 (same) (case below); Arguelles-Olivares v. Mukasey, 526 F. 3d 171, 178 (CA5 2008) (same), with Dulal-Whiteway v. United States Dept. of Homeland Security, 501 F. 3d 116, 131 (CA2 2007) (definitional approach); Kawashima v. Mukasey, 530 F. 3d 1111, 1117 (CA9 2008) (same); Obasohan v. United States Atty. Gen., 479 F. 3d 785, 791 (CA11 2007) (same). We granted certiorari to decide the question. II The interpretive difficulty before us reflects the linguistic fact that in ordinary speech words such as “crime,” “felony, “offense,” and the like sometimes refer to a generic crime, say, the crime of fraud or theft in general, and sometimes refer to the specific acts in which an offender engaged on a specific occasion, say, the fraud that the defendant planned and executed last month. See Chambers v. United States, 555 U. S. ___, ___ (2009) (slip op., at 3). The question here, as we have said, is whether the italicized statutory words “offense that involves fraud or deceit in which the loss to the . . . victims exceeds $10,000” should be interpreted in the first sense (which we shall call “categorical”), i.e., as referring to a generic crime, or in the second sense (which we shall call “circumstance-specific”), as referring to the specific way in which an offender committed the crime on a specific occasion. If the first, we must look to the statute defining the offense to determine whether it has an appropriate monetary threshold; if the second, we must look to the facts and circumstances underlying an offender’s conviction. A The basic argument favoring the first—i.e., the “generic” or “categorical”—interpretation rests upon Taylor, Chambers, and James v. United States, 550 U. S. 192 (2007). Those cases concerned the Armed Career Criminal Act (ACCA), a statute that enhances the sentence imposed upon certain firearm-law offenders who also have three prior convictions for “a violent felony.” 18 U. S. C. §924(e). See Appendix B, infra. ACCA defines “violent felony” to include, first, felonies with elements that involve the use of physical force against another; second, felonies that amount to “burglary, arson, or extortion” or that involve the use of explosives; and third, felonies that “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B). In Taylor and James we held that ACCA’s language read naturally uses the word “felony” to refer to a generic crime as generally committed. Chambers, supra, at ___ (slip op., at 3) (discussing Taylor, 495 U. S., at 602); James, supra, at 201–202. The Court noted that such an interpretation of the statute avoids “the practical difficulty of trying to ascertain” in a later proceeding, “perhaps from a paper record” containing only a citation (say, by number) to a statute and a guilty plea, “whether the [offender’s] prior crime . . . did or did not involve,” say, violence. Chambers, supra, at ___ (slip op., at 3). Thus in James, referring to Taylor, we made clear that courts must use the “categorical method” to determine whether a conviction for “attempted burglary” was a conviction for a crime that, in ACCA’s language, “involved conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). That method required the court to “examine, not the unsuccessful burglary the defendant attempted on a particular occasion, but the generic crime of attempted burglary.” Chambers, supra, at (slip op., at 3) (discussing James, supra, at 204–206). We also noted that the categorical method is not always easy to apply. That is because sometimes a separately numbered subsection of a criminal statute will refer to several different crimes, each described separately. And it can happen that some of these crimes involve violence while others do not. A single Massachusetts statute section entitled “Breaking and Entering at Night,” for example, criminalizes breaking into a “building, ship, vessel or vehicle.” Mass. Gen. Laws, ch. 266, §16 (West 2006). In such an instance, we have said, a court must determine whether an offender’s prior conviction was for the violent, rather than the nonviolent, break-ins that this single five-word phrase describes (e.g., breaking into a building rather than into a vessel), by examining “the indictment or information and jury instructions,” Taylor, supra, at 602, or, if a guilty plea is at issue, by examining the plea agreement, plea colloquy or “some comparable judicial record” of the factual basis for the plea. Shepard v. United States, 544 U. S. 13, 26 (2005). Petitioner argues that we should interpret the subsection of the “aggravated felony” statute before us as requiring use of this same “categorical” approach. He says that the statute’s language, read naturally as in Taylor, refers to a generic kind of crime, not a crime as committed on a particular occasion. He adds that here, as in Taylor, such a reading avoids the practical difficulty of determining the nature of prior conduct from what may be a brief paper record, perhaps noting only a statutory section number and a guilty plea; or, if there is a more extensive record, combing through that record for evidence of underlying conduct. Also, the categorical approach, since it covers only criminal statutes with a relevant monetary threshold, not only provides assurance of a finding on the point, but also assures that the defendant had an opportunity to present evidence about the amount of loss. B Despite petitioner’s arguments, we conclude that the “fraud and deceit” provision before us calls for a “circumstance-specific,” not a “categorical,” interpretation. The “aggravated felony” statute of which it is a part differs in general from ACCA, the statute at issue in Taylor. And the “fraud and deceit” provision differs specifically from ACCA’s provisions. 1 Consider, first, ACCA in general. That statute defines the “violent” felonies it covers to include “burglary, arson, or extortion” and “crime[s]” that have “as an element” the use or threatened use of force. 18 U. S. C. §§924(e)(2) (B)(i)–(ii). This language refers directly to generic crimes. The statute, however, contains other, more ambiguous language, covering “crime[s]” that “involv[e] conduct that presents a serious potential risk of physical injury to another.” Ibid. (emphasis added). While this language poses greater interpretive difficulty, the Court held that it too refers to crimes as generically defined. James, supra, at 202. Now compare the “aggravated felony” statute before us. 8 U. S. C. §1101(a)(43). We concede that it resembles ACCA in certain respects. The “aggravated felony” statute lists several of its “offenses” in language that must refer to generic crimes. Subparagraph (A), for example, lists “murder, rape, or sexual abuse of a minor.” See, e.g., Estrada-Espinoza v. Mukasey, 546 F. 3d 1147, 1152 (CA9 2008) (en banc) (applying the categorical approach to “sexual abuse”); Singh v. Ashcroft, 383 F. 3d 144, 164 (CA3 2004) (same); Santos v. Gonzales, 436 F. 3d 323, 324 (CA2 2005) (per curiam) (same). Subparagraph (B) lists “illicit trafficking in a controlled substance.” See Gousse v. Ashcroft, 339 F. 3d 91, 95–96 (CA2 2003) (applying categorical approach); Fernandez v. Mukasey, 544 F. 3d 862, 871–872 (CA7 2008) (same); Steele v. Blackman, 236 F. 3d 130, 136 (CA3 2001) (same). And subparagraph (C) lists “illicit trafficking in firearms or destructive devices.” Other sections refer specifically to an “offense described in” a particular section of the Federal Criminal Code. See, e.g., subparagraphs (E), (H), (I), (J), (L). More importantly, however, the “aggravated felony” statute differs from ACCA in that it lists certain other “offenses” using language that almost certainly does not refer to generic crimes but refers to specific circumstances. For example, subparagraph (P), after referring to “an offense” that amounts to “falsely making, forging, counterfeiting, mutilating, or altering a passport,” adds, “except in the case of a first offense for which the alien … committed the offense for the purpose of assisting . . . the alien’s spouse, child, or parent … to violate a provision of this chapter” (emphasis added). The language about (for example) “forging … passport[s]” may well refer to a generic crime, but the italicized exception cannot possibly refer to a generic crime. That is because there is no such generic crime; there is no criminal statute that contains any such exception. Thus if the provision is to have any meaning at all, the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion. See also subparagraph (N) (similar exception). The statute has other provisions that contain qualifying language that certainly seems to call for circumstance-specific application. Subparagraph (K)(ii), for example, lists “offense[s] . . . described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage” (emphasis added). Of the three specifically listed criminal statutory sections only one subsection (namely, §2423(d)) says anything about commercial advantage. Thus, unless the “commercial advantage” language calls for circumstance-specific application, the statute’s explicit references to §§2421 and 2422 would be pointless. But see Gertsenshteyn v. United States Dept. of Justice, 544 F. 3d 137, 144–145 (CA2 2008). Subparagraph (M)(ii) provides yet another example. It refers to an offense “described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000” (emphasis added). There is no offense “described in section 7201 of title 26” that has a specific loss amount as an element. Again, unless the “revenue loss” language calls for circumstance-specific application, the tax-evasion provision would be pointless. The upshot is that the “aggravated felony” statute, unlike ACCA, contains some language that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed. The question before us then is to which category subparagraph (M)(i) belongs. 2 Subparagraph (M)(i) refers to “an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000” (emphasis added). The language of the provision is consistent with a circumstance-specific approach. The words “in which” (which modify “offense”) can refer to the conduct involved “in” the commission of the offense of conviction, rather than to the elements of the offense. Moreover, subparagraph (M)(i) appears just prior to subparagraph (M)(ii), the internal revenue provision we have just discussed, and it is identical in structure to that provision. Where, as here, Congress uses similar statutory language and similar statutory structure in two adjoining provisions, it normally intends similar interpretations. IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005). Moreover, to apply a categorical approach here would leave subparagraph (M)(i) with little, if any, meaningful application. We have found no widely applicable federal fraud statute that contains a relevant monetary loss threshold. See, e.g., 18 U. S. C. §§1341 (mail fraud), 1343 (wire fraud), 1344 (bank fraud), 371 (conspiracy to defraud the United States), 666 (theft in federally funded programs), 1028 (fraud in connection with identification documents), 1029 (fraud in connection with access devices), 1030 (fraud in connection with computers), 1347 (health care fraud), and 1348 (securities fraud). Petitioner has found only three federal fraud statutes that do so, and those three contain thresholds not of $10,000, but of $100,000 or $1 million, §§668 (theft by fraud of an artwork worth $100,000 or more), 1031(a) (contract fraud against the United States where the contract is worth at least $1 million), and 1039(d) (providing enhanced penalties for fraud in obtaining telephone records, where the scheme involves more than $100,000). Why would Congress intend subparagraph (M)(i) to apply to only these three federal statutes, and then choose a monetary threshold that, on its face, would apply to other, nonexistent statutes as well? We recognize, as petitioner argues, that Congress might have intended subparagraph (M)(i) to apply almost exclusively to those who violate certain state fraud and deceit statutes. So we have examined state law. See Appendix C, infra. We have found, however, that in 1996, when Congress added the $10,000 threshold in subparagraph (M)(i), see Illegal Immigration Reform and Immigrant Responsibility Act §321(a)(7), 110 Stat. 3009–628, 29 States had no major fraud or deceit statute with any relevant monetary threshold. In 13 of the remaining 21 States, fraud and deceit statutes contain relevant monetary thresholds but with amounts significantly higher than $10,000, leaving only 8 States with statutes in respect to which subparagraph (M)(i)’s $10,000 threshold, as categorically interpreted, would have full effect. We do not believe Congress would have intended (M)(i) to apply in so limited and so haphazard a manner. Cf. United States v. Hayes, 555 U. S. ___, ___ (2009) (slip op., at 10–11) (reaching similar conclusion for similar reason in respect to a statute referring to crimes involving “domestic violence”). Petitioner next points to 8 U. S. C. §1326, which criminalizes illegal entry after removal and imposes a higher maximum sentence when an alien’s removal was “subsequent to a conviction for commission of an aggravated felony.” §1326(b)(2). Petitioner says that a circumstance-specific approach to subparagraph (M)(i) could create potential constitutional problems in a subsequent criminal prosecution under that statute, because loss amount would not have been found beyond a reasonable doubt in the prior criminal proceeding. The Government, however, stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt, Brief for Respondent 49–50; Tr. of Oral Arg. 39–40, eliminating any constitutional concern. Cf. Hayes, supra, at ___ (slip op., at 10). We conclude that Congress did not intend subparagraph (M)(i)’s monetary threshold to be applied categorically, i.e., to only those fraud and deceit crimes generically defined to include that threshold. Rather, the monetary threshold applies to the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion. III Petitioner, as an alternative argument, says that we should nonetheless borrow from Taylor what that case called a “modified categorical approach.” He says that, for reasons of fairness, we should insist that a jury verdict, or a judge-approved equivalent, embody a determination that the loss involved in a prior fraud or deceit conviction amounted to at least $10,000. To determine whether that is so, petitioner says, the subsequent immigration court applying subparagraph (M)(i) should examine only charging documents, jury instructions, and any special jury finding (if one has been requested). If there was a trial but no jury, the subsequent court should examine the equivalent judge-made findings. If there was a guilty plea (and no trial), the subsequent court should examine the written plea documents or the plea colloquy. To authorize any broader examination of the prior proceedings, petitioner says, would impose an unreasonable administrative burden on immigration judges and would unfairly permit him to be deported on the basis of circumstances that were not before judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute. We agree with petitioner that the statute foresees the use of fundamentally fair procedures, including procedures that give an alien a fair opportunity to dispute a Government claim that a prior conviction involved a fraud with the relevant loss to victims. But we do not agree that fairness requires the evidentiary limitations he proposes. For one thing, we have found nothing in prior law that so limits the immigration court. Taylor, James, and Shepard, the cases that developed the evidentiary list to which petitioner points, developed that list for a very different purpose, namely that of determining which statutory phrase (contained within a statutory provision that covers several different generic crimes) covered a prior conviction. See supra, at 5; Taylor, 495 U. S., at 602; Shepard, 544 U. S., at 26. For another, petitioner’s proposal itself can prove impractical insofar as it requires obtaining from a jury a special verdict on a fact that (given our Part II determination) is not an element of the offense. Further, a deportation proceeding is a civil proceeding in which the Government does not have to prove its claim “beyond a reasonable doubt.” At the same time the evidence that the Government offers must meet a “clear and convincing” standard. 8 U. S. C. §1229a(c)(3)(A). And, as the Government points out, the “loss” must “be tied to the specific counts covered by the conviction.” Brief for Respondent 44; see, e.g., Alaka v. Attorney General of United States, 456 F. 3d 88, 107 (CA3 2006) (loss amount must be tethered to offense of conviction; amount cannot be based on acquitted or dismissed counts or general conduct); Knutsen v. Gonzales, 429 F. 3d 733, 739–740 (CA7 2005) (same). And the Government adds that the “sole purpose” of the “aggravated felony” inquiry “is to ascertain the nature of a prior conviction; it is not an invitation to relitigate the conviction itself.” Brief for Respondent 44 (internal quotation marks omitted). Finally, the Board of Immigration Appeals, too, has recognized that immigration judges must assess findings made at sentencing “with an eye to what losses are covered and to the burden of proof employed.” In re Babaisakov, 24 I. & N. Dec. 306, 319 (2007). These considerations, taken together, mean that petitioner and those in similar circumstances have at least one and possibly two opportunities to contest the amount of loss, the first at the earlier sentencing and the second at the deportation hearing itself. They also mean that, since the Government must show the amount of loss by clear and convincing evidence, uncertainties caused by the passage of time are likely to count in the alien’s favor. We can find nothing unfair about the immigration judge’s having here relied upon earlier sentencing-related material. The defendant’s own stipulation, produced for sentencing purposes, shows that the conviction involved losses considerably greater than $10,000. The court’s restitution order shows the same. In the absence of any conflicting evidence (and petitioner mentions none), this evidence is clear and convincing. The Court of Appeals concluded that petitioner’s prior federal conviction consequently falls within the scope of subparagraph (M)(i). And we affirm its judgment. It is so ordered. APPENDIXES A Section 101(a)(43) of the Immigration and Nationality Act, as set forth in 8 U. S. C. 1101(a)(43), provides: “The term ‘aggravated felony’ means— “(A) murder, rape, or sexual abuse of a minor; “(B) illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18); “(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18) or in explosive materials (as defined in section 841(c) of that title); “(D) an offense described in section 1956 of title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000; “(E) an offense described in— “(i) section 842(h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses); “(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of title 18 (relating to firearms offenses); or “(iii) section 5861 of title 26 (relating to firearms offenses); “(F) a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment at least one year; “(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at least one year; “(H) an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom); “(I) an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography); “(J) an offense described in section 1962 of title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed; “(K) an offense that— “(i) relates to the owning, controlling, managing, or supervising of a prostitution business; “(ii) is described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or “(iii) is described in any of sections 1581–1585 or 1588–1591 of title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons); “(L) an offense described in— “(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of title 18; “(ii) section 421 of title 50 (relating to protecting the identity of undercover intelligence agents); or “(iii) section 421 of title 50 (relating to protecting the identity of undercover agents); “(M) an offense that— “(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or “(ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000; “(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter “(O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph; “(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien's spouse, child, or parent (and no other individual) to violate a provision of this chapter; “(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more; “(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year; “(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year; “(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and “(U) an attempt or conspiracy to commit an offense described in this paragraph. “The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.” (Footnotes omitted.) B Armed Career Criminal Act, 18 U. S. C. 924(e), provides: “(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g). “(2) As used in this subsection— “(A) the term ‘serious drug offense’ means— “(i) an offense under the Controlled Substances Act (21 U. S. C. 801 et seq.), the Controlled Substances Import and Export Act (21 U. S. C. 951 et seq.), or chapter 705 of title 46, for which a maximum term of imprisonment of ten years or more is prescribed by law; or “(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U. S. C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law; “(B) the term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that— “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and “(C) the term ‘conviction’ includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.” C We examined state statutes involving fraud or deceit in effect in 1996, when Congress added the $10,000 threshold in subparagraph (M)(i). See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, §321(a)(7), 110 Stat. 3009–628. While perhaps questions could be raised about whether certain of the statutes listed below involve “fraud or deceit” as required by subparagraph (M)(i), we give petitioner the benefit of any doubt and treat the statute as relevant. 1 In 29 States plus the District of Columbia, the main statutes in effect in 1996 involving fraud and deceit either did not have any monetary threshold or set a threshold lower than $10,000 even for the most serious grade of the offense. Alabama: see, e.g., Ala. Code §§13A–8–2, 13A–8–3, 13A–9–14, 13A–9–14.1, 13A–9–46, 13A–9–47, 13A–9–73 (1996). Arkansas: see, e.g., Ark. Code Ann. §§5–36–103, 5–37–203, 5–37–204, 5–37–207, 5–37–211 (1996). California: see, e.g., Cal. Penal Code Ann. §§484, 487, 502.7 (West 1996). District of Columbia: see, e.g., D. C. Code §§22–3821, 22–3823 (1996). Georgia: see, e.g., Ga. Code Ann. §§16–8–3, 16–8–12, 16–9–33 (1996). Idaho: see, e.g., Idaho Code §§18–2403, 18–2407 (Lexis 1996). Kentucky: see, e.g., Ky. Rev. Stat. Ann. §514.040 (West 1996). Louisiana: see, e.g., La. Stat. Ann. §§14:67, 14:67.11, 14:70.1, 14:70.4, 14:71, 14:71.1 (West 1996). Maryland: see, e.g., Md. Ann. Code, Art. 27, §§340, 342, 145, 230A, 230C, 230D (Lexis 1996). Massachusetts: see, e.g., Mass. Gen. Laws, ch. 266, §§30, 37C (West 1996). Michigan: see, e.g., Mich. Comp. Laws §§750.218, 750.271, 750.280, 750.219a, 750.356c (West 1996). Mississippi: see, e.g., Miss. Code Ann. §§97–19–21, 97–19–35, 97–19–39, 97–19–71, 97–19–83 (1996). Missouri: see, e.g., Mo. Rev. Stat. §§570.030, 570.120, 570.130, 570.180 (1996). Montana: Mont. Code Ann. §§45–6–301, 45–6–313, 45–6–315, 45–6–317 (1996). Nebraska: see, e.g., Neb. Rev. Stat. Ann. §§28–512, 28–518, 28–631 (1996). Nevada: see, e.g., Nev. Rev. Stat. §§205.0832, 205.0835, 205.370, 205.380 (1996). New Hampshire: see, e.g., N. H. Rev. Stat. Ann. §§637:4, 637:11, 638:5, 638:20 (1996). North Carolina: see, e.g., N. C. Gen. Stat. Ann. §§14–100, 14–106, 14–113.13 (1996). Oklahoma: see, e.g., Okla. Stat., Tit. 21, §§1451, 1462, 1541.1, 1541.2, 1541.3, 1541.4, 1550.2, 1662, 1663 (West 1996). Pennsylvania: see, e.g., 18 Pa. Cons. Stat. §§3903, 3922, 4110, 4111, 4117 (1996); but see §4105 (bad check statute amended 1996 to introduce $75,000 threshold). Rhode Island: see, e.g., R. I. Gen. Laws §§11–18–6, 11–18–7, 11–18–8, 11–18–9, 11–41–4, 11–41–5, 11–41–29, 11–41–30 (1996). South Carolina: see, e.g., S. C. Code Ann. §16–13–240 (1996). South Dakota: see, e.g., S. D. Codified Laws §§22–30A–3, 22–30A–10, 22–30A–17 (1996). Utah: see, e.g., Utah Code Ann. §§76–6–405, 76–6–412, 76–6–521, 76–10–1801 (Lexis 1996). Vermont: see, e.g., Vt. Stat. Ann., Tit. 13, §§2001, 2002, 2024, 2531, 2582 (1996). Virginia: see, e.g., Va. Code Ann. §§18.2–178, 18.2–95, 18.2–195 (Lexis 1996). Washington: see, e.g., Wash. Rev. Code §§9A.56.020, 9A.56.030 (1996). West Virginia: see, e.g., W. Va. Code Ann. §61–3–24 (Lexis 1996). Wisconsin: see, e.g., Wis. Stat. §§943.20, 943.395, 943.41 (1996). Wyoming: see, e.g., Wyo. Stat. Ann. §§6–3–407, 6–3–607, 6–3–802 (1996). 2 In 13 States, conviction under the main fraud and deceit statutes in effect in 1996 could categorically qualify under subparagraph (M)(i). But the relevant monetary thresholds for these offenses—that is, the thresholds such that conviction categorically would satisfy the monetary requirement of subparagraph (M)(i)—were significantly higher than $10,000. Additionally, a number of these States had statutes targeted at particular kinds of fraud without any relevant monetary threshold. Alaska: see, e.g., Alaska Stat. §§11.46.120, 11.46.180 (1996) ($25,000); but see, e.g., §11.46.285 (fraudulent use of a credit card, no relevant monetary threshold). Arizona: see, e.g., Ariz. Rev. Stat. Ann. §§13–1802 (West 1989), 13–2109 (West 2000) ($25,000); but see, e.g., §§13–2103 (receipt of anything of value by fraudulent use of a credit card), 13–2204 (defrauding secured creditors), 13–2205 (defrauding judgment creditors), 13–2206 (West 1989) (fraud in insolvency), all with no relevant monetary threshold. Colorado: see, e.g., Colo. Rev. Stat. Ann. §18–4–401 (Supp. 1996) ($15,000), but see, e.g., §§18–5–205 (fraud by check), 18–5–207 (1986) (purchase on credit to defraud), both with no relevant monetary threshold. Delaware: see, e.g., Del. Code Ann., Tit. 11, §§841, 843 (1995) ($50,000); but see, e.g., §§903 (unlawful use of credit card), 913 (insurance fraud), 916 (home improvement fraud), all with no relevant monetary threshold. Hawaii: see, e.g., Haw. Rev. Stat. §§708–830, 708–830.5 (Lexis 1994) ($20,000); but see, e.g., §§708–873 (defrauding secured creditors), 708–8100 (fraudulent use of a credit card), 708–8100.5 (fraudulent encoding of a credit card), 708–8103 (credit card fraud by a provider of goods or services), all with no relevant monetary threshold. Indiana: see, e.g., Ind. Code §§35–43–4–1 (West 1993), 35–43–4–2 ($100,000), 35–43–5–7.1 (West Supp. 1996) ($50,000); but see, e.g., §§35–43–5–3 (deception), 35–43–5–4 (West 1993) (insurance and credit card fraud), 35–43–5–7 (welfare fraud), 35–43–5–8 (fraud on financial institutions), all with no relevant monetary threshold. Kansas: see, e.g., Kan. Stat. Ann. §§21–3701 (1995), 21–3707 (Supp. 1996), 21–3729 (1995), 21–3846 (Supp. 1996) ($25,000). Minnesota: see, e.g., Minn. Stat. §609.52 (1996) ($35,000). New Jersey: see, e.g., N. J. Stat. Ann. §§2C:20–2, 2C:20–4, 2C:21–13, 2C:21–17 (West 1995) ($75,000); but see, e.g., §§2C:21–6 (credit cards), 2C:21–12 (defrauding secured creditors), both without a relevant monetary threshold. New Mexico: see, e.g., N. M. Stat. Ann. §§30–16–6, 30–33–13, 30–44–7, 30–50–4 (1996) ($20,000); but see, e.g., §30–16–33 (credit card fraud, no relevant monetary threshold). New York: see, e.g., N. Y. Penal Law Ann. §§155.05 (West 1988), 155.40, 158.20 (West Supp. 1998), 176.25 ($50,000); but see, e.g., §§190.65 (scheme to defraud), 185.00 (fraud in insolvency), 185.05 (fraud involving security interest), all with no relevant monetary threshold. Ohio: see, e.g., Ohio Rev. Code Ann. §§2913.02, 2913.11, 2913.21, 2913.40, 2913.45, 2913.47, 2913.48 (Lexis 1996) ($100,000). Texas: see, e.g., Tex. Penal Code Ann. §§31.02 (West 1994), 31.03, 35.02 (West Supp. 2003) ($20,000); but see, e.g., §32.31 (credit card or debit card abuse, no relevant monetary threshold). 3 In eight States, the main fraud and deceit statutes in effect in 1996 had relevant monetary thresholds of $10,000. However, a number of these States also had statutes targeted at particular kinds of fraud without any relevant monetary threshold. Connecticut: see, e.g., Conn. Gen. Stat. §§53a–119, 53a–122 (1996); but see, e.g., §§53a–128c, 53a–128i (credit card crimes, no relevant monetary threshold). Florida: see, e.g., Fla. Stat. §§812.012, 812.014 (1996); but see, e.g., §§817.234 (insurance fraud), 817.61 (fraudulent use of credit cards) (1996), both without a relevant monetary threshold. Illinois: see, e.g., Ill. Comp. Stat., ch. 720, §5/16–1 (West 1996); but see, e.g., §§5/17–6 (state benefits fraud), 5/17–9 (public aid wire fraud), 5/17–10 (public aid mail fraud), 5/17–13 (fraudulent land sales), all without a relevant monetary threshold. Iowa: see, e.g., Iowa Code §§714.1, 714.2, 714.8, 714.9 (1996). Maine: see, e.g., Me. Rev. Stat. Ann., Tit. 17A, §§354, 362 (1996); but see, e.g., §§902 (defrauding a creditor), 908 (home repair fraud), both without relevant monetary thresholds. North Dakota: see, e.g., N. D. Cent. Code Ann. §§12.1–23–02, 12.1–23–05 (1996). Oregon: see, e.g., Ore. Rev. Stat. §§164.085, 164.057; but see, e.g., §§165.055 (fraudulent use of a credit card), 165.692, 165.990 (false claims for health care payments), both without a relevant monetary threshold. Tennessee: see, e.g., Tenn. Code Ann. §39–14–101, 39–14–105, 39–14–118, 39–14–133 (1996). |
556.US.2008_08-681 | Petitioner Nken sought an order from the Fourth Circuit staying his removal to Cameroon while his petition for review of a Board of Immigration Appeals order denying his motion to reopen removal proceedings was pending. Nken acknowledged that Circuit precedent required an alien seeking such a stay to satisfy 8 U. S. C. §1252(f)(2), which sharply restricts the availability of injunctions blocking the removal of an alien from this country, but argued that a court’s authority to stay a removal order should instead be controlled by the traditional criteria governing stays. The Court of Appeals denied the stay motion without comment. Held: Traditional stay factors, not the demanding §1252(f)(2) standard, govern a court of appeals’ authority to stay an alien’s removal pending judicial review. Pp. 3–17. (a) This question stems from changes made in the Illegal Im- migration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which “repealed the old judicial-review scheme set forth in [8 U. S. C.] §1105a [(1994 ed.),] and instituted a new (and significantly more restrictive) one in … §1252,” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 475 (AAADC). Because courts of appeals lacked jurisdiction before IIRIRA to review the removal order of an alien who had already left the United States, see §1105a(c), most aliens who appealed such a decision were given an automatic stay of the removal order pending judicial review, see §1105a(a)(3). Three changes IIRIRA made are of particular importance here. First, the repeal of §1105a allows courts to adjudicate a petition for review even if the alien is removed while the petition is pending. Second, the presumption of an automatic stay was repealed and replaced with a provision stating that “[s]ervice of the petition … does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” §1252(b)(3)(B). Finally, IIRIRA provided that “no court shall enjoin the removal of any alien … unless [he] shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” §1252(f)(2). Pp. 3–5. (b) The parties dispute what standard a court should apply when determining whether to grant a stay. Petitioner argues that the “traditional” stay standard should apply, meaning a court should consider “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether [he] will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties … ; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U. S. 770, 776. The Government argues that §1252(f) should govern, meaning an alien must show “by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law.” Pp. 5–6. (c) An appellate court’s power to hold an order in abeyance while it assesses the order’s legality has been described as inherent, and part of a court’s “traditional equipment for the administration of justice.” Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 9–10. That power allows a court to act responsibly, by ensuring that the time the court takes to bring considered judgment to bear on the matter before it does not result in irreparable injury to the party aggrieved by the order under review. But a stay “is not a matter of right, even if irreparable injury might otherwise result to the appellant.” Virginian R. Co. v. United States, 272 U. S. 658, 672. The parties and the public, while entitled to both careful review and a meaningful decision, are also entitled to the prompt execution of orders that the legislature has made final. Pp. 6–7. (d) Section 1252(f) does not refer to “stays,” but rather to authority to “enjoin the removal of any alien.” An injunction and a stay serve different purposes. The former is the means by which a court tells someone what to do or not to do. While in a general sense many orders may be considered injunctions, the term is typically used to refer to orders that operate in personam. By contrast, a stay operates upon the judicial proceeding itself, either by halting or postponing some portion of it, or by temporarily divesting an order of enforceability. An alien seeking a stay of removal pending adjudication of a petition for review does not ask for a coercive order against the government, but instead asks to temporarily set aside the removal order. That kind of stay, “relat[ing] only to the conduct or progress of litigation before th[e] court[,] ordinarily is not considered an injunction.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 279. That §1252(f)(2) does not comfortably cover stays is evident in Congress’s use of the word “stay” in subsection (b)(3)(B) but not subsection (f)(2), particularly since those subsections were enacted as part of a unified overhaul of judicial review. The statute’s structure also clearly supports petitioner’s reading: Because subsection (b)(3)(B) changed the basic rules covering stays of removal, the natural place to locate an amendment to the standard governing stays would have been subsection (b)(3)(B), not a provision four subsections later that makes no mention of stays. Pp. 8–12. (e) Subsection (f)(2)’s application would not fulfill the historic office of a stay, which is to hold the matter under review in abeyance to allow the appellate court sufficient time to decide the merits. Under subsection (f)(2), a stay would only be granted after the court in effect decides the merits, in an expedited manner. The court would have to do so under a “clear and convincing evidence” standard that does not so much preserve the availability of subsequent review as render it redundant. Nor would subsection (f)(2) allow courts “to prevent irreparable injury to the parties or to the public” pending review, Scripps-Howard, 316 U. S., at 9; the subsection on its face does not permit any consideration of harm, irreparable or otherwise. In short, applying §1252(f)(2) in the stay context would result in something that does not remotely look like a stay. As in Scripps-Howard, the Court is loath to conclude that Congress would, “without clearly expressing such a purpose, deprive the Court of Appeals of its customary power to stay orders under review.” Id., at 11. The Court is not convinced Congress did so in §1252(f)(2). Pp. 12–13. (f) The parties dispute what the traditional four-factor standard entails. A stay is not a matter of right, and its issuance depends on the circumstances of a particular case. The first factor, a strong showing of a likelihood of success on the merits, requires more than a mere possibility that relief will be granted. Similarly, simply showing some possibility of irreparable injury fails to satisfy the second factor. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___. Although removal is a serious burden for many aliens, that burden alone cannot constitute the requisite irreparable injury. An alien who has been removed may continue to pursue a petition for review, and those aliens who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. The third and fourth factors, harm to the opposing party and the public interest, merge when the Government is the opposing party. In considering them, courts must be mindful that the Government’s role as the respondent in every removal proceeding does not make its interest in each one negligible. There is always a public interest in prompt execution of removal orders, see AAADC, supra, at 490, and that interest may be heightened by circumstances such as a particularly dangerous alien, or an alien who has substantially prolonged his stay by abusing the processes provided to him. A court asked to stay removal cannot simply assume that the balance of hardships will weigh heavily in the applicant’s favor. Pp. 13–16. Vacated and remanded. Roberts, C. J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a concurring opinion, in which Scalia, J., joined. Alito, J., filed a dissenting opinion, in which Thomas, J., joined. | It takes time to decide a case on appeal. Sometimes a little; sometimes a lot. “No court can make time stand still” while it considers an appeal, Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 9 (1942), and if a court takes the time it needs, the court’s decision may in some cases come too late for the party seeking review. That is why it “has always been held, … that as part of its traditional equipment for the administration of justice, a federal court can stay the enforcement of a judgment pending the outcome of an appeal.” Id., at 9–10 (footnote omitted). A stay does not make time stand still, but does hold a ruling in abeyance to allow an appellate court the time necessary to review it. This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria. I Jean Marc Nken, a citizen of Cameroon, entered the United States on a transit visa in April 2001. In December 2001, he applied for asylum under 8 U. S. C. §1158, withholding of removal under §1231(b)(3), and deferral of removal under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 3, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S. 85, see 8 CFR §208.17 (2008). In his application, Nken claimed he had been persecuted in the past for participation in protests against the Cameroonian Government, and would be subject to further persecution if he returns to Cameroon. An Immigration Judge denied Nken relief after concluding that he was not credible. The Board of Immigration Appeals (BIA) affirmed, and also declined to remand for consideration of Nken’s application for adjustment of status based on his marriage to an American citizen. After the BIA denied a motion to reopen, Nken filed a petition for review of the BIA’s removal order in the Court of Appeals for the Fourth Circuit. His petition was denied. Nken then filed a second motion to reopen, which was also denied, followed by a second petition for review, which was denied as well. Nken filed a third motion to reopen, this time alleging that changed circumstances in Cameroon made his persecution more likely. The BIA denied the motion, finding that Nken had not presented sufficient facts or evidence of changed country conditions. Nken again sought review in the Court of Appeals, and also moved to stay his deportation pending resolution of his appeal. In his motion, Nken recognized that Fourth Circuit precedent required an alien seeking to stay a removal order to show by “clear and convincing evidence” that the order was “prohibited as a matter of law,” 8 U. S. C. §1252(f)(2). See Teshome-Gebreegziabher v. Mukasey, 528 F. 3d 330 (CA4 2008). Nken argued, however, that this standard did not govern. The Court of Appeals denied Nken’s motion without comment. App. 74. Nken then applied to this Court for a stay of removal pending adjudication of his petition for review, and asked in the alternative that we grant certiorari to resolve a split among the Courts of Appeals on what standard governs a request for such a stay. Compare Teshome-Gebreegziabher, supra, at 335, and Weng v. U. S. Attorney General, 287 F. 3d 1335 (CA11 2002), with Arevalo v. Ashcroft, 344 F. 3d 1 (CA1 2003), Mohammed v. Reno, 309 F. 3d 95 (CA2 2002), Douglas v. Ashcroft, 374 F. 3d 230 (CA3 2004), Tesfamichael v. Gonzales, 411 F. 3d 169 (CA5 2005), Bejjani v. INS, 271 F. 3d 670 (CA6 2001), Hor v. Gonzales, 400 F. 3d 482 (CA7 2005), and Andreiu v. Ashcroft, 253 F. 3d 477 (CA9 2001) (en banc). We granted certiorari, and stayed petitioner’s removal pending further order of this Court. Nken v. Mukasey, 555 U. S. ___ (2008). II The question we agreed to resolve stems from changes in judicial review of immigration procedures brought on by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, which substantially amended the Immigration and Nationality Act (INA), 8 U. S. C. §1101 et seq. When Congress passed IIRIRA, it “repealed the old judicial-review scheme set forth in [8 U. S. C.] §1105a and instituted a new (and significantly more restrictive) one in 8 U. S. C. §1252.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 475 (1999) (AAADC). The new review system substantially limited the availability of judicial review and streamlined all challenges to a removal order into a single proceeding: the petition for review. See, e.g., 8 U. S. C. §1252(a)(2) (barring review of certain removal orders and exercises of executive discretion); §1252(b)(3)(C) (establishing strict filing and briefing deadlines for review proceedings); §1252(b)(9) (consolidating challenges into petition for review). Three changes effected by IIRIRA are of particular importance to this case. Before IIRIRA, courts of appeals lacked jurisdiction to review the deportation order of an alien who had already left the United States. See §1105a(c) (1994 ed.) (“An order of deportation or of exclusion shall not be reviewed by any court … if [the alien] has departed from the United States after the issuance of the order”). Accordingly, an alien who appealed a decision of the BIA was typically entitled to remain in the United States for the duration of judicial review. This was achieved through a provision providing most aliens with an automatic stay of their removal order while judicial review was pending. See §1105a(a)(3) (“The service of the petition for review … shall stay the deportation of the alien pending determination of the petition by the court, unless the court otherwise directs”). IIRIRA inverted these provisions to allow for more prompt removal. First, Congress lifted the ban on adjudication of a petition for review once an alien has departed. See IIRIRA §306(b), 110 Stat. 3009–612 (repealing §1105a). Second, because courts were no longer prohibited from proceeding with review once an alien departed, see Dada v. Mukasey, 554 U. S. 1, ___ (2008) (slip op., at 19–20), Congress repealed the presumption of an automatic stay, and replaced it with the following: “Service of the petition on the officer or employee does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” 8 U. S. C. §1252(b)(3)(B) (2006 ed.). Finally, IIRIRA restricted the availability of injunctive relief: “Limit on injunctive relief “(1) In general “Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by [IIRIRA], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. “(2) Particular cases “Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” §1252(f). This provision, particularly subsection (f)(2), is the source of the parties’ disagreement. III The parties agree that courts of appeals considering a petition for review of a removal order may prevent that order from taking effect and therefore block removal while adjudicating the petition. They disagree over the standard a court should apply in deciding whether to do so. Nken argues that the “traditional” standard for a stay applies. Under that standard, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U. S. 770, 776 (1987). The Government disagrees, arguing that a stay is simply a form of injunction, or alternatively that the relief petitioner seeks is more accurately characterized as injunctive, and therefore that the limits on injunctive relief set forth in subsection (f)(2) apply. Under that provision, a court may not “enjoin” the removal of an alien subject to a final removal order, “unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” 8 U. S. C. §1252(f)(2). Mindful that statutory interpretation turns on “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole,” Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997), we conclude that the traditional stay factors—not §1252(f)(2)—govern a request for a stay pending judicial review. A An appellate court’s power to hold an order in abeyance while it assesses the legality of the order has been described as “inherent,” preserved in the grant of authority to federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,” All Writs Act, 28 U. S. C. §1651(a). See In re McKenzie, 180 U. S. 536, 551 (1901). The Court highlighted the historic pedigree and importance of the power in Scripps-Howard, 316 U. S. 4, holding in that case that Congress’s failure expressly to confer the authority in a statute allowing appellate review should not be taken as an implicit denial of that power. The Court in Scripps-Howard did not decide what “criteria … should govern the Court in exercising th[e] power” to grant a stay. Id., at 17. Nor did the Court consider under what circumstances Congress could deny that authority. See ibid. The power to grant a stay pending review, however, was described as part of a court’s “traditional equipment for the administration of justice.” Id., at 9–10. That authority was “firmly imbedded in our judicial system,” “consonant with the historic procedures of federal appellate courts,” and “a power as old as the judicial system of the nation.” Id., at 13, 17. The authority to hold an order in abeyance pending review allows an appellate court to act responsibly. A reviewing court must bring considered judgment to bear on the matter before it, but that cannot always be done quickly enough to afford relief to the party aggrieved by the order under review. The choice for a reviewing court should not be between justice on the fly or participation in what may be an “idle ceremony.” Id., at 10. The ability to grant interim relief is accordingly not simply “[a]n historic procedure for preserving rights during the pendency of an appeal,” id., at 15, but also a means of ensuring that appellate courts can responsibly fulfill their role in the judicial process. At the same time, a reviewing court may not resolve a conflict between considered review and effective relief by reflexively holding a final order in abeyance pending review. A stay is an “intrusion into the ordinary processes of administration and judicial review,” Virginia Petroleum Jobbers Assn. v. Federal Power Comm’n, 259 F. 2d 921, 925 (CADC 1958) (per curiam), and accordingly “is not a matter of right, even if irreparable injury might otherwise result to the appellant,” Virginian R. Co. v. United States, 272 U. S. 658, 672 (1926). The parties and the public, while entitled to both careful review and a meaningful decision, are also generally entitled to the prompt execution of orders that the legislature has made final. B Subsection (f)(2) does not by its terms refer to “stays” but instead to the authority to “enjoin the removal of any alien.” The parties accordingly begin by disputing whether a stay is simply a type of injunction, covered by the term “enjoin,” or a different form of relief. An injunction and a stay have typically been understood to serve different purposes. The former is a means by which a court tells someone what to do or not to do. When a court employs “the extraordinary remedy of injunction,” Weinberger v. Romero-Barcelo, 456 U. S. 305, 312 (1982), it directs the conduct of a party, and does so with the backing of its full coercive powers. See Black’s Law Dictionary 784 (6th ed. 1990) (defining “injunction” as “[a] court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury”). It is true that “ ‘[i]n a general sense, every order of a court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam.’ ” Id., at 800 (8th ed. 2004) (quoting 1 H. Joyce, A Treatise on the Law Relating to Injunctions §1, pp. 2–3 (1909)). This is so whether the injunction is preliminary or final; in both contexts, the order is directed at someone, and governs that party’s conduct. By contrast, instead of directing the conduct of a particular actor, a stay operates upon the judicial proceeding itself. It does so either by halting or postponing some portion of the proceeding, or by temporarily divesting an order of enforceability. See Black’s, supra, at 1413 (6th ed. 1990) (defining “stay” as “a suspension of the case or some designated proceedings within it”). A stay pending appeal certainly has some functional overlap with an injunction, particularly a preliminary one. Both can have the practical effect of preventing some action before the legality of that action has been conclusively determined. But a stay achieves this result by temporarily suspending the source of authority to act—the order or judgment in question—not by directing an actor’s conduct. A stay “simply suspend[s] judicial alteration of the status quo,” while injunctive relief “grants judicial intervention that has been withheld by lower courts.” Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (Scalia, J., in chambers); see also Brown v. Gilmore, 533 U. S. 1301, 1303 (2001) (Rehnquist, C. J., in chambers) (“[A]pplicants are seeking not merely a stay of a lower court judgment, but an injunction against the enforcement of a presumptively valid state statute”); Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1302 (1993) (same) (“By seeking an injunction, applicants request that I issue an order altering the legal status quo”). An alien seeking a stay of removal pending adjudication of a petition for review does not ask for a coercive order against the Government, but rather for the temporary setting aside of the source of the Government’s authority to remove. Although such a stay acts to “ba[r] Executive branch officials from removing [the applicant] from the country,” post, at 7 (Alito, J., dissenting), it does so by returning to the status quo—the state of affairs before the removal order was entered. That kind of stay, “relat[ing] only to the conduct or progress of litigation before th[e] court[,] ordinarily is not considered an injunction.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 279 (1988); see Fed. Rule App. Proc. 8(a)(1)(A) (referring to interim relief from “the judgment or order of a district court pending appeal” as “a stay”). Whether such a stay might technically be called an injunction is beside the point; that is not the label by which it is generally known. The sun may be a star, but “starry sky” does not refer to a bright summer day. The terminology of subsection (f)(2) does not comfortably cover stays. This conclusion is reinforced by the fact that when Congress wanted to refer to a stay pending adjudication of a petition for review in §1252, it used the word “stay.” In subsection (b)(3)(B), under the heading “Stay of order,” Congress provided that service of a petition for review “does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.” 8 U. S. C. §1252(b)(3)(B). By contrast, the language of subsection (f) says nothing about stays, but is instead titled “Limit on injunctive relief,” and refers to the authority of courts to “enjoin the removal of any alien.” §1252(f)(2). “[W]here 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.” INS v. Cardoza-Fonseca, 480 U. S. 421, 432 (1987) (internal quotation marks omitted). This is particularly true here, where subsections (b)(3)(B) and (f)(2) were enacted as part of a unified overhaul of judicial review procedures. Subsection (b)(3)(B) changed the basic rules covering stays of removal, and would have been the natural place to locate an amendment to the traditional standard governing the grant of stays. Under the Government’s view, however, Congress placed such a provision four subsections later, in a subsection that makes no mention of stays, next to a provision prohibiting classwide injunctions against the operation of removal provisions. See 8 U. S. C. §1252(f)(1) (permitting injunctions only “with respect to the application of such provisions to an individual alien”); AAADC, 525 U. S., at 481–482. Although the dissent “would not read too much into Congress’ decision to locate such a provision in one subsection rather than in another,” post, at 8, the Court frequently takes Congress’s structural choices into consideration when interpreting statutory provisions. See, e.g., Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S. ___, ___ (2008) (slip op., at 13). The Government counters that petitioner’s view “fails to give any operative effect to Section 1252(f)(2).” Brief for Respondent 32. Initially, this argument undercuts the Government’s textual reading. It is one thing to propose that “enjoin” in subsection (f)(2) covers a broad spectrum of court orders and relief, including both stays and more typical injunctions. It is quite another to suggest that Congress used “enjoin” to refer exclusively to stays, so that a failure to include stays in subsection (f)(2) would render the provision superfluous. If nothing else, the terms are by no means synonymous. Leaving that aside, there is something to the Government’s point; the exact role of subsection (f)(2) under petitioner’s view is not easy to explain. Congress may have been concerned about the possibility that courts would enjoin application of particular provisions of the INA, see 8 U. S. C. §1252(f)(1) (prohibiting injunctions “other than with respect to the application of [Section IV of the INA] to an individual alien”), or about injunctions that might be available under the limited habeas provisions of subsection (e). Or perhaps subsection (f)(2) was simply included as a catchall provision raising the bar on any availability (even unforeseeable availability) of “the extraordinary remedy of injunction.” Weinberger, 456 U. S., at 312. In any event, the Government’s point is not enough to outweigh the strong indications that subsection (f)(2) is not reasonably understood to be directed at stays. C Applying the subsection (f)(2) standard to stays pending appeal would not fulfill the historic office of such a stay. The whole idea is to hold the matter under review in abeyance because the appellate court lacks sufficient time to decide the merits. Under the subsection (f)(2) standard, however, a stay would only be granted after the court in effect decides the merits, in an expedited manner. The court would have to do so under a standard—“clear and convincing evidence”—that does not so much preserve the availability of subsequent review as render it redundant. Subsection (f)(2), in short, would invert the customary role of a stay, requiring a definitive merits decision earlier rather than later. The authority to grant stays has historically been justified by the perceived need “to prevent irreparable injury to the parties or to the public” pending review. Scripps-Howard, 316 U. S., at 9. Subsection (f)(2) on its face, however, does not allow any consideration of harm, irreparable or otherwise, even harm that may deprive the movant of his right to petition for review of the removal order. Subsection (f)(2) does not resolve the dilemma stays historically addressed: what to do when there is insufficient time to resolve the merits and irreparable harm may result from delay. The provision instead requires deciding the merits under a higher standard, without regard to the prospect of irreparable harm. In short, applying the subsection (f)(2) standard in the stay context results in something that does not remotely look like a stay. Just like the Court in Scripps-Howard, we are loath to conclude that Congress would, “without clearly expressing such a purpose, deprive the Court of Appeals of its customary power to stay orders under review.” Id., at 11. Subsection (f)(2) would certainly deprive courts of their “customary” stay power. Our review does not convince us that Congress did that in subsection (f)(2). The four-factor test is the “traditional” one, Hilton, 481 U. S., at 777, and the Government has not overcome the “presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.” Isbrandtsen Co. v. Johnson, 343 U. S. 779, 783 (1952). We agree with petitioner that an alien need not satisfy the demanding standard of §1252(f)(2) when asking a court of appeals to stay removal pending judicial review. IV So what standard does govern? The question presented, as noted, offers the alternative of “ ‘the traditional test for stays,’ ” 555 U. S., at ___, but the parties dispute what that test is. See Brief for Respondent 46 (“[T]he four-part standard requires a more demanding showing than petitioner suggests”); Reply Brief for Petitioner 26 (“The Government argues … that the [stay] test should be reformulated”). “A stay is not a matter of right, even if irreparable injury might otherwise result.” Virginian R. Co., 272 U. S., at 672. It is instead “an exercise of judicial discretion,” and “[t]he propriety of its issue is dependent upon the circumstances of the particular case.” Id., at 672–673; see Hilton, supra, at 777 (“[T]he traditional stay factors contemplate individualized judgments in each case”). The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion. See, e.g., Clinton v. Jones, 520 U. S. 681, 708 (1997); Landis v. North American Co., 299 U. S. 248, 255 (1936). The fact that the issuance of a stay is left to the court’s discretion “does not mean that no legal standard governs that discretion… . ‘[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.’ ” Martin v. Franklin Capital Corp., 546 U. S. 132, 139 (2005) (quoting United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.)). As noted earlier, those legal principles have been distilled into consideration of four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton, supra, at 776. There is substantial overlap between these and the factors governing preliminary injunctions, see Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 14); not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined. The first two factors of the traditional standard are the most critical. It is not enough that the chance of success on the merits be “better than negligible.” Sofinet v. INS, 188 F. 3d 703, 707 (CA7 1999) (internal quotation marks omitted). Even petitioner acknowledges that “[m]ore than a mere ‘possibility’ of relief is required.” Reply Brief for Petitioner 21 (quoting Brief for Respondent 47). By the same token, simply showing some “possibility of irreparable injury,” Abbassi v. INS, 143 F. 3d 513, 514 (CA9 1998), fails to satisfy the second factor. As the Court pointed out earlier this Term, the “ ‘possibility’ standard is too lenient.” Winter, supra, at ___ (slip op., at 12). Although removal is a serious burden for many aliens, it is not categorically irreparable, as some courts have said. See, e.g., Ofosu v. McElroy, 98 F. 3d 694, 699 (CA2 1996) (“[O]rdinarily, when a party seeks [a stay] pending appeal, it is deemed that exclusion is an irreparable harm”); see also Petitioner’s Emergency Motion for a Stay 12 (“[T]he equities particularly favor the alien facing deportation in immigration cases where failure to grant the stay would result in deportation before the alien has been able to obtain judicial review”). The automatic stay prior to IIRIRA reflected a recognition of the irreparable nature of harm from removal before decision on a petition for review, given that the petition abated upon removal. Congress’s decision in IIRIRA to allow continued prosecution of a petition after removal eliminated the reason for categorical stays, as reflected in the repeal of the automatic stay in subsection (b)(3)(B). It is accordingly plain that the burden of removal alone cannot constitute the requisite irreparable injury. Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. See Brief for Respondent 44. Once an applicant satisfies the first two factors, the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest. These factors merge when the Government is the opposing party. In considering them, courts must be mindful that the Government’s role as the respondent in every removal proceeding does not make the public interest in each individual one negligible, as some courts have concluded. See, e.g., Mohammed, 309 F. 3d, at 102 (Government harm is nothing more than “one alien [being] permitted to remain while an appeal is decided”); Ofosu, supra, at 699 (the Government “suffers no offsetting injury” in removal cases). Of course there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm. But that is no basis for the blithe assertion of an “absence of any injury to the public interest” when a stay is granted. Petitioner’s Emergency Motion for a Stay 13. There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and “permit[s] and prolong[s] a continuing violation of United States law.” AAADC, 525 U. S., at 490. The interest in prompt removal may be heightened by the circumstances as well—if, for example, the alien is particularly dangerous, or has substantially prolonged his stay by abusing the processes provided to him. See ibid. (“Postponing justifiable deportation (in the hope that the alien’s status will change—by, for example, marriage to an American citizen—or simply with the object of extending the alien’s unlawful stay) is often the principal object of resistance to a deportation proceeding”). A court asked to stay removal cannot simply assume that “[o]rdinarily, the balance of hardships will weigh heavily in the applicant’s favor.” Andreiu, 253 F. 3d, at 484. * * * The Court of Appeals did not indicate what standard it applied in denying Nken a stay, but Circuit precedent required the application of §1252(f)(2). Because we have concluded that §1252(f)(2) does not govern, we vacate the judgment of the Court of Appeals and remand for consideration of Nken’s motion for a stay under the standards set forth in this opinion. It is so ordered. The dissent maintains that “[a]n order preventing an executive officer from [enforcing a removal order] does not ‘simply suspend judicial alteration of the status quo,’ ” but instead “blocks executive officials from carrying out what they view as proper enforcement of the immigration laws.” Post, at 7 (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (Scalia, J., in chambers)). But the relief sought here would simply suspend administrative alteration of the status quo, and we have long recognized that such temporary relief from an administrative order—just like temporary relief from a court order—is considered a stay. See Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 10–11 (1942). The dissent would distinguish Scripps-Howard on the ground that Nken does not really seek to stay a final order of removal, but instead seeks “to enjoin the Executive Branch from enforcing his removal order pending judicial review of an entirely separate order [denying a motion to reopen].” Post, at 4, n. But a determination that the BIA should have granted Nken’s motion to reopen would necessarily extinguish the finality of the removal order. See Tr. of Oral Arg. for Respondent 42 (“[I]f the motion to reopen is granted, that vacates the final order of removal and, therefore, there is no longer a final order of removal pursuant to which the alien could be removed”). The relief sought here is properly termed a “stay” because it suspends the effect of the removal order. |
557.US.2008_08-322 | The appellant is a small utility district with an elected board. Because it is located in Texas, it is required by §5 of the Voting Rights Act of 1965 (Act) to seek federal preclearance before it can change anything about its elections, even though there is no evidence it has ever discriminated on the basis of race in those elections. The district filed suit seeking relief under the “bailout” provision in §4(a) of the Act, which allows a “political subdivision” to be released from the preclearance requirements if certain conditions are met. The district argued in the alternative that, if §5 were interpreted to render it ineligible for bailout, §5 was unconstitutional. The Federal District Court rejected both claims. It concluded that bailout under §4(a) is available only to counties, parishes, and subunits that register voters, not to an entity like the district that does not register its own voters. It also concluded that a 2006 amendment extending §5 for 25 years was constitutional. Held: 1. The historic accomplishments of the Voting Rights Act are undeniable, but the Act now raises serious constitutional concerns. The preclearance requirement represents an intrusion into areas of state and local responsibility that is otherwise unfamiliar to our federal system. Some of the conditions that the Court relied upon in upholding this statutory scheme in South Carolina v. Katzenbach, 383 U. S. 301, and City of Rome v. United States, 446 U. S. 156, have unquestionably improved. Those improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success, but the Act imposes current burdens and must be justified by current needs. The Act also differentiates between the States in ways that may no longer be justified. At the same time, the Court recognizes that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty that this Court is called upon to perform.” Blodgett v. Holden, 275 U. S. 142, 147–148 (Holmes, J., concurring). Here the District Court found that the sizable record compiled by Congress to support extension of §5 documented continuing racial discrimination and that §5 deterred discriminatory changes. The Court will not shrink from its duty “as the bulwark of a limited Constitution against legislative encroachments,” The Federalist No. 78, but “[i]t is … well established… that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,” Escambia County v. McMillan, 466 U. S. 48, 51. Here, the district also raises a statutory claim that it is eligible to bail out under §§4 and 5, and that claim is sufficient to resolve the appeal. Pp. 6–11. 2. The Act must be interpreted to permit all political subdivisions, including the district, to seek to bail out from the preclearance requirements. It is undisputed that the district is a “political subdivision” in the ordinary sense, but the Act also provides a narrower definition in §14(c)(2): “ ‘[P]olitical subdivision’ shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.” The court below concluded that the district did not qualify for §4(a) bailout under this definition, but specific precedent, the Act’s structure, and underlying constitutional concerns compel a broader reading. This Court has already established that §14(c)(2)’s definition does not apply to the term “political subdivision” in §5’s preclearance provision. See, e.g., United States v. Sheffield Bd. of Comm’rs, 435 U. S. 110. Rather, the “definition was intended to operate only for purposes of determining which political units in nondesignated States may be separately designated for coverage under §4(b).” Id., at 128–129. ”[O]nce a State has been [so] designated … , [the] definition … has no operative significance in determining [§5’s] reach.” Dougherty County Bd. of Ed. v. White, 439 U. S. 32, 44. In light of these decisions, §14(c)(2)’s definition should not constrict the availability of bailout either. The Government responds that any such argument is foreclosed by City of Rome. In 1982, however, Congress expressly repudiated City of Rome. Thus, City of Rome’s logic is no longer applicable. The Government’s contention that the district is subject to §5 under Sheffield not because it is a “political subdivision” but because it is a “State” is counterintuitive and similarly untenable after the 1982 amendments. The Government’s contrary interpretation has helped to render the bailout provision all but a nullity. Since 1982, only 17 jurisdictions—out of the more than 12,000 covered political subdivisions—have successfully bailed out of the Act. It is unlikely that Congress intended the provision to have such limited effect. Pp. 11–17. 573 F. Supp. 2d 221, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ., joined. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part. | The plaintiff in this case is a small utility district raising a big question—the constitutionality of §5 of the Voting Rights Act. The district has an elected board, and is required by §5 to seek preclearance from federal authorities in Washington, D. C., before it can change anything about those elections. This is required even though there has never been any evidence of racial discrimination in voting in the district. The district filed suit seeking relief from these preclearance obligations under the “bailout” provision of the Voting Rights Act. That provision allows the release of a “political subdivision” from the preclearance requirements if certain rigorous conditions are met. The court below denied relief, concluding that bailout was unavailable to a political subdivision like the utility district that did not register its own voters. The district appealed, arguing that the Act imposes no such limitation on bailout, and that if it does, the preclearance requirements are unconstitutional. That constitutional question has attracted ardent briefs from dozens of interested parties, but the importance of the question does not justify our rushing to decide it. Quite the contrary: Our usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of §5. I A The Fifteenth Amendment promises that the “right of citizens of the United States to vote shall not be denied or abridged … on account of race, color, or previous condition of servitude.” U. S. Const., Amdt. 15, §1. In addition to that self-executing right, the Amendment also gives Congress the “power to enforce this article by appropriate legislation.” §2. The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure. Early enforcement Acts were inconsistently applied and repealed with the rise of Jim Crow. South Carolina v. Katzenbach, 383 U. S. 301, 310 (1966); A. Keyssar, The Right to Vote 105–111 (2000). Another series of enforcement statutes in the 1950s and 1960s depended on individual lawsuits filed by the Department of Justice. But litigation is slow and expensive, and the States were creative in “contriving new rules” to continue violating the Fifteenth Amendment “in the face of adverse federal court decrees.” Katzenbach, supra, at 335; Riley v. Kennedy, 553 U. S. ___, ___ (2008) (slip op., at 2). Congress responded with the Voting Rights Act. Section 2 of the Act operates nationwide; as it exists today, that provision forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” 42 U. S. C. §1973(a). Section 2 is not at issue in this case. The remainder of the Act constitutes a “scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant.” Katzenbach, supra, at 315. Rather than continuing to depend on case-by-case litigation, the Act directly pre-empted the most powerful tools of black disenfranchisement in the covered areas. All literacy tests and similar voting qualifications were abolished by §4 of the Act. Voting Rights Act of 1965, §§4(a)–(d), 79 Stat. 438–439. Although such tests may have been facially neutral, they were easily manipulated to keep blacks from voting. The Act also empowered federal examiners to override state determinations about who was eligible to vote. §§ 6, 7, 9, 13, id., at 439–442, 444–445. These two remedies were bolstered by §5, which suspended all changes in state election procedure until they were submitted to and approved by a three-judge Federal District Court in Washington, D. C., or the Attorney General. Id., at 439, codified as amended at 42 U. S. C. §1973c(a). Such preclearance is granted only if the change neither “has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” Ibid. We have interpreted the requirements of §5 to apply not only to the ballot-access rights guaranteed by §4, but to drawing district lines as well. Allen v. State Bd. of Elections, 393 U. S. 544, 564–565 (1969). To confine these remedies to areas of flagrant disenfranchisement, the Act applied them only to States that had used a forbidden test or device in November 1964, and had less than 50% voter registration or turnout in the 1964 Presidential election. §4(b), 79 Stat. 438. Congress recognized that the coverage formula it had adopted “might bring within its sweep governmental units not guilty of any unlawful discriminatory voting practices.” Briscoe v. Bell, 432 U. S. 404, 411 (1977). It therefore “afforded such jurisdictions immediately available protection in the form of … [a] ‘bailout’ suit.” Ibid. To bail out under the current provision, a jurisdiction must seek a declaratory judgment from a three-judge District Court in Washington, D. C. 42 U. S. C. §§1973b(a)(1), 1973c(a). It must show that for the previous 10 years it has not used any forbidden voting test, has not been subject to any valid objection under §5, and has not been found liable for other voting rights violations; it must also show that it has “engaged in constructive efforts to eliminate intimidation and harassment” of voters, and similar measures. §§1973b(a)(1)(A)–(F). The Attorney General can consent to entry of judgment in favor of bailout if the evidence warrants it, though other interested parties are allowed to intervene in the declaratory judgment action. §1973b(a)(9). There are other restrictions: To bail out, a covered jurisdiction must show that every jurisdiction in its territory has complied with all of these requirements. §1973b(a)(3). The District Court also retains continuing jurisdiction over a successful bailout suit for 10 years, and may reinstate coverage if any violation is found. §1973b(a)(5). As enacted, §§4 and 5 of the Voting Rights Act were temporary provisions. They were expected to be in effect for only five years. §4(a), 79 Stat. 438. We upheld the temporary Voting Rights Act of 1965 as an appropriate exercise of congressional power in Katzenbach, explaining that “[t]he constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects.” 383 U. S., at 308. We concluded that the problems Congress faced when it passed the Act were so dire that “exceptional conditions [could] justify legislative measures not otherwise appropriate.” Id., at 334–335 (citing Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934), and Wilson v. New, 243 U. S. 332 (1917)). Congress reauthorized the Act in 1970 (for 5 years), 1975 (for 7 years), and 1982 (for 25 years). The coverage formula remained the same, based on the use of voting-eligibility tests and the rate of registration and turnout among all voters, but the pertinent dates for assessing these criteria moved from 1964 to include 1968 and eventually 1972. 42 U. S. C. §1973b(b). We upheld each of these reauthorizations against constitutional challenges, finding that circumstances continued to justify the provisions. Georgia v. United States, 411 U. S. 526 (1973); City of Rome v. United States, 446 U. S. 156 (1980); Lopez v. Monterey County, 525 U. S. 266 (1999). Most recently, in 2006, Congress extended §5 for yet another 25 years. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577. The 2006 Act retained 1972 as the last baseline year for triggering coverage under §5. It is that latest extension that is now before us. B Northwest Austin Municipal Utility District Number One was created in 1987 to deliver city services to residents of a portion of Travis County, Texas. It is governed by a board of five members, elected to staggered terms of four years. The district does not register voters but is responsible for its own elections; for administrative reasons, those elections are run by Travis County. Because the district is located in Texas, it is subject to the obligations of §5, although there is no evidence that it has ever discriminated on the basis of race. The district filed suit in the District Court for the District of Columbia, seeking relief under the statute’s bailout provisions and arguing in the alternative that, if interpreted to render the district ineligible for bailout, §5 was unconstitutional. The three-judge District Court rejected both claims. Under the statute, only a “State or political subdivision” is permitted to seek bailout, 42 U. S. C. §1973b(a)(1)(A), and the court concluded that the district was not a political subdivision because that term includes only “counties, parishes, and voter-registering subunits,” Northwest Austin Municipal Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 232 (2008). Turning to the district’s constitutional challenge, the court concluded that the 25-year extension of §5 was constitutional both because “Congress … rationally concluded that extending [§]5 was necessary to protect minorities from continued racial discrimination in voting” and because “the 2006 Amendment qualifies as a congruent and proportional response to the continuing problem of racial discrimination in voting.” Id., at 283. We noted probable jurisdiction, 555 U. S. ___ (2009), and now reverse. II The historic accomplishments of the Voting Rights Act are undeniable. When it was first passed, unconstitutional discrimination was rampant and the “registration of voting-age whites ran roughly 50 percentage points or more ahead” of black registration in many covered States. Katzenbach, supra, at 313; H. R. Rep. No. 109–478, p. 12 (2006). Today, the registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites. Id., at 12–13. Similar dramatic improvements have occurred for other racial minorities. Id., at 18–20. “[M]any of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [Voting Rights Act] have been eliminated.” Id., at 12; Bartlett v. Strickland, 556 U. S. 1, ___ (2009) (slip op., at 5) (plurality opinion) (“Passage of the Voting Rights Act of 1965 was an important step in the struggle to end discriminatory treatment of minorities who seek to exercise one of the most fundamental rights of our citizens: the right to vote”). At the same time, §5, “which authorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial ‘federalism costs.’ ” Lopez, supra, at 282 (quoting Miller v. Johnson, 515 U. S. 900, 926 (1995)). These federalism costs have caused Members of this Court to express serious misgivings about the constitutionality of §5. Katzenbach, 383 U. S., at 358–362 (Black, J., concurring and dissenting); Allen, 393 U. S., at 586, n. 4 (Harlan, J., concurring in part and dissenting in part); Georgia, supra, at 545 (Powell, J., dissenting); City of Rome, 446 U. S., at 209–221 (Rehnquist, J., dissenting); id., at 200–206 (Powell, J., dissenting); Lopez, 525 U. S., at 293–298 (Thomas, J., dissenting); id., at 288 (Kennedy, J., concurring in judgment). Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C. The preclearance requirement applies broadly, NAACP v. Hampton County Election Comm’n, 470 U. S. 166, 175–176 (1985), and in particular to every political subdivision in a covered State, no matter how small, United States v. Sheffield Bd. of Comm’rs, 435 U. S. 110, 117–118 (1978). Some of the conditions that we relied upon in upholding this statutory scheme in Katzenbach and City of Rome have unquestionably improved. Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. See generally H. R. Rep. No. 109–478, at 12–18. These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements. See Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success? 104 Colum. L. Rev. 1710 (2004). It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs. The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” United States v. Louisiana, 363 U. S. 1, 16 (1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 7 Wall. 700, 725–726 (1869). Distinctions can be justified in some cases. “The doctrine of the equality of States … does not bar … remedies for local evils which have subsequently appeared.” Katzenbach, supra, at 328–329 (emphasis added). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets. These federalism concerns are underscored by the argument that the preclearance requirements in one State would be unconstitutional in another. See Georgia v. Ashcroft, 539 U. S. 461, 491–492 (2003) (Kennedy, J., concurring) (“Race cannot be the predominant factor in redistricting under our decision in Miller v. Johnson, 515 U. S. 900 (1995). Yet considerations of race that would doom a redistricting plan under the Fourteenth Amendment or §2 seem to be what save it under §5”). Additional constitutional concerns are raised in saying that this tension between §§2 and 5 must persist in covered jurisdictions and not elsewhere. The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide. E. Blum & L. Campbell, Assessment of Voting Rights Progress in Jurisdictions Covered Under Section Five of the Voting Rights Act 3–6 (American Enterprise Institute, 2006). Congress heard warnings from supporters of extending §5 that the evidence in the record did not address “systematic differences between the covered and the non-covered areas of the United States[,] … and, in fact, the evidence that is in the record suggests that there is more similarity than difference.” The Continuing Need for Section 5 Pre-Clearance: Hearing before the Senate Committee on the Judiciary, 109th Cong., 2d Sess., 10 (2006) (statement of Richard H. Pildes); see also Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L. J. 174, 208 (2007) (“The most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would … disrupt settled expectations”). The parties do not agree on the standard to apply in deciding whether, in light of the foregoing concerns, Congress exceeded its Fifteenth Amendment enforcement power in extending the preclearance requirements. The district argues that “ ‘[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,’ ” Brief for Appellant 31, quoting City of Boerne v. Flores, 521 U. S. 507, 520 (1997); the Federal Government asserts that it is enough that the legislation be a “ ‘rational means to effectuate the constitutional prohibition,’ ” Brief for Federal Appellee 6, quoting Katzenbach, supra, at 324. That question has been extensively briefed in this case, but we need not resolve it. The Act’s preclearance requirements and its coverage formula raise serious constitutional questions under either test. In assessing those questions, we are keenly mindful of our institutional role. We fully appreciate that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 147–148 (1927) (Holmes, J., concurring). “The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U. S. 57, 64 (1981). The Fifteenth Amendment empowers “Congress,” not the Court, to determine in the first instance what legislation is needed to enforce it. Congress amassed a sizable record in support of its decision to extend the preclearance requirements, a record the District Court determined “document[ed] contemporary racial discrimination in covered states.” 573 F. Supp. 2d, at 265. The District Court also found that the record “demonstrat[ed] that section 5 prevents discriminatory voting changes” by “quietly but effectively deterring discriminatory changes.” Id., at 264. We will not shrink from our duty “as the bulwar[k] of a limited constitution against legislative encroachments,” The Federalist No. 78, p. 526 (J. Cooke ed. 1961) (A. Hamilton), but “[i]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,” Escambia County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam). Here, the district also raises a statutory claim that it is eligible to bail out under §§4 and 5. Justice Thomas argues that the principle of constitutional avoidance has no pertinence here. He contends that even if we resolve the district’s statutory argument in its favor, we would still have to reach the constitutional question, because the district’s statutory argument would not afford it all the relief it seeks. Post, at 1–3 (opinion concurring in judgment in part and dissenting in part). We disagree. The district expressly describes its constitutional challenge to §5 as being “in the alternative” to its statutory argument. See Brief for Appellant 64 (“[T]he Court should reverse the judgment of the district court and render judgment that the district is entitled to use the bailout procedure or, in the alternative, that §5 cannot be constitutionally applied to the district”). The district’s counsel confirmed this at oral argument. See Tr. of Oral Arg. 14 (“[Question:] [D]o you acknowledge that if we find in your favor on the bailout point we need not reach the constitutional point? [Answer:] I do acknowledge that”). We therefore turn to the district’s statutory argument. III Section 4(b) of the Voting Rights Act authorizes a bailout suit by a “State or political subdivision.” 42 U. S. C. §1973b(a)(1)(A). There is no dispute that the district is a political subdivision of the State of Texas in the ordinary sense of the term. See, e.g., Black’s Law Dictionary 1197 (8th ed. 2004) (“A division of a state that exists primarily to discharge some function of local government”). The district was created under Texas law with “powers of government” relating to local utilities and natural resources. Tex. Const., Art. XVI, §59(b); Tex. Water Code Ann. §54.011 (West 2002); see also Bennett v. Brown Cty. Water Improvement Dist. No. 1, 272 S. W. 2d 498, 500 (Tex. 1954) (“[W]ater improvement district[s] … are held to be political subdivisions of the State” (internal quotation marks omitted)). The Act, however, also provides a narrower statutory definition in §14(c)(2): “ ‘[P]olitical subdivision’ shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.” 42 U. S. C. §1973l(c)(2). The District Court concluded that this definition applied to the bailout provision in §4(a), and that the district did not qualify, since it is not a county or parish and does not conduct its own voter registration. “Statutory definitions control the meaning of statutory words, of course, in the usual case. But this is an unusual case.” Lawson v. Suwannee Fruit & S. S. Co., 336 U. S. 198, 201 (1949); see also Farmers Reservoir & Irrigation Co. v. McComb, 337 U. S. 755, 764 (1949); Philko Aviation, Inc. v. Shacket, 462 U. S. 406, 412 (1983). Were the scope of §4(a) considered in isolation from the rest of the statute and our prior cases, the District Court’s approach might well be correct. But here specific precedent, the structure of the Voting Rights Act, and underlying constitutional concerns compel a broader reading of the bailout provision. Importantly, we do not write on a blank slate. Our decisions have already established that the statutory definition in §14(c)(2) does not apply to every use of the term “political subdivision” in the Act. We have, for example, concluded that the definition does not apply to the preclearance obligation of §5. According to its text, §5 applies only “[w]henever a [covered] State or political subdivision” enacts or administers a new voting practice. Yet in Sheffield Bd. of Comm’rs, 435 U. S. 110, we rejected the argument by a Texas city that it was neither a State nor a political subdivision as defined in the Act, and therefore did not need to seek preclearance of a voting change. The dissent agreed with the city, pointing out that the city did not meet the statutory definition of “political subdivision” and therefore could not be covered. Id., at 141–144 (opinion of Stevens, J.). The majority, however, relying on the purpose and structure of the Act, concluded that the “definition was intended to operate only for purposes of determining which political units in nondesignated States may be separately designated for coverage under §4(b).” Id., at 128–129; see also id., at 130, n. 18 (“Congress’s exclusive objective in §14(c)(2) was to limit the jurisdictions which may be separately designated for coverage under §4(b)”). We reaffirmed this restricted scope of the statutory definition the next Term in Dougherty County Bd. of Ed. v. White, 439 U. S. 32 (1978). There, a school board argued that because “it d[id] not meet the definition” of political subdivision in §14(c)(2), it “d[id] not come within the purview of §5.” Id., at 43, 44. We responded: “This contention is squarely foreclosed by our decision last Term in [Sheffield]. There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of §5 because it did not itself register voters and hence was not a political subdivision as the term is defined in §14(c)(2) of the Act. … [O]nce a State has been designated for coverage, §14(c)(2)’s definition of political subdivision has no operative significance in determining the reach of §5.” Id., at 44 (internal quotation marks omitted). According to these decisions, then, the statutory definition of “political subdivision” in §14(c)(2) does not apply to every use of the term “political subdivision” in the Act. Even the intervenors who oppose the district’s bailout concede, for example, that the definition should not apply to §2, which bans racial discrimination in voting by “any State or political subdivision,” 42 U. S. C. §1973(a). See Brief for Intervenor-Appellee Texas State Conference of NAACP Branches et al. 17 (citing Smith v. Salt River Project Agricultural Improvement and Power Dist., 109 F. 3d 586, 592–593 (CA9 1997)); see also United States v. Uvalde Consol. Independent School Dist., 625 F. 2d 547, 554 (CA5 1980) (“[T]he Supreme Court has held that this definition [in §14(c)(2)] limits the meaning of the phrase ‘State or political subdivision’ only when it appears in certain parts of the Act, and that it does not confine the phrase as used elsewhere in the Act”). In light of our holdings that the statutory definition does not constrict the scope of preclearance required by §5, the district argues, it only stands to reason that the definition should not constrict the availability of bailout from those preclearance requirements either. The Government responds that any such argument is foreclosed by our interpretation of the statute in City of Rome, 446 U. S. 156. There, it argues, we made clear that the discussion of political subdivisions in Sheffield was dictum, and “specifically held that a ‘city is not a “political subdivision” for purposes of §4(a) bailout.’ ” Brief for Federal Appellee 14 (quoting City of Rome, supra, at 168). Even if that is what City of Rome held, the premises of its statutory holding did not survive later changes in the law. In City of Rome we rejected the city’s attempt to bail out from coverage under §5, concluding that “political units of a covered jurisdiction cannot independently bring a §4(a) bailout action.” 446 U. S., at 167. We concluded that the statute as then written authorized a bailout suit only by a “State” subject to the coverage formula, or a “political subdivision with respect to which [coverage] determinations have been made as a separate unit,” id., at 164, n. 2 (quoting 42 U. S. C. §1973b(a) (1976 ed.)); see also 446 U. S., at 163–169. Political subdivisions covered because they were part of a covered State, rather than because of separate coverage determinations, could not separately bail out. As Justice Stevens put it, “[t]he political subdivisions of a covered State” were “not entitled to bail out in a piecemeal fashion.” Id., at 192 (concurring opinion). In 1982, however, Congress expressly repudiated City of Rome and instead embraced “piecemeal” bailout. As part of an overhaul of the bailout provision, Congress amended the Voting Rights Act to expressly provide that bailout was also available to “political subdivisions” in a covered State, “though [coverage] determinations were not made with respect to such subdivision as a separate unit.” Voting Rights Act Amendments of 1982, 96 Stat. 131, codified at 42 U. S. C. §1973b(a)(1) (emphasis added). In other words, Congress decided that a jurisdiction covered because it was within a covered State need not remain covered for as long as the State did. If the subdivision met the bailout requirements, it could bail out, even if the State could not. In light of these amendments, our logic for denying bailout in City of Rome is no longer applicable to the Voting Rights Act—if anything, that logic compels the opposite conclusion. Bailout and preclearance under §5 are now governed by a principle of symmetry. “Given the Court’s decision in Sheffield that all political units in a covered State are to be treated for §5 purposes as though they were ‘political subdivisions’ of that State, it follows that they should also be treated as such for purposes of §4(a)’s bailout provisions.” City of Rome, supra, at 192 (Stevens, J., concurring). The Government contends that this reading of Sheffield is mistaken, and that the district is subject to §5 under our decision in Sheffield not because it is a “political subdivision” but because it is a “State.” That would mean it could bail out only if the whole State could bail out. The assertion that the district is a State is at least counterintuitive. We acknowledge, however, that there has been much confusion over why Sheffield held the city in that case to be covered by the text of §5. See City of Rome, 446 U. S., at 168–169; id., at 192 (Stevens, J., concurring); see also Uvalde Consol. Independent School Dist. v. United States, 451 U. S. 1002, 1004, n. 4 (1981) (Rehnquist, J., dissenting from denial of certiorari) (“[T]his Court has not yet settled on the proper construction of the term ‘political subdivision’ ”). But after the 1982 amendments, the Government’s position is untenable. If the district is considered the State, and therefore necessarily subject to preclearance so long as Texas is covered, then the same must be true of all other subdivisions of the State, including counties. That would render even counties unable to seek bailout so long as their State was covered. But that is the very restriction the 1982 amendments overturned. Nobody denies that counties in a covered State can seek bailout, as several of them have. See Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., 2599–2834 (2005) (detailing bailouts). Because such piecemeal bailout is now permitted, it cannot be true that §5 treats every governmental unit as the State itself. The Government’s contrary interpretation has helped to render the bailout provision all but a nullity. Since 1982, only 17 jurisdictions—out of the more than 12,000 covered political subdivisions—have successfully bailed out of the Act. App. to Brief for Jurisdictions That Have Bailed Out as Amici Curiae 3; Dept. of Commerce, Bureau of Census, 2002 Census of Governments, Vol. 1, No. 1, pp. 1, 22–60. It is unlikely that Congress intended the provision to have such limited effect. See United States v. Hayes, 555 U. S. ___, ____ (2009) (slip op., at 10). We therefore hold that all political subdivisions—not only those described in §14(c)(2)—are eligible to file a bailout suit. * * * More than 40 years ago, this Court concluded that “exceptional conditions” prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. Katzenbach, 383 U. S., at 334. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today. We conclude instead that the Voting Rights Act permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
555.US.2008_07-901 | Respondent Ice twice entered an 11-year-old girl’s residence and sexually assaulted her. For each of the incidents, an Oregon jury found Ice guilty of first-degree burglary for entering with the intent to commit sexual abuse; first-degree sexual assault for touching the victim’s vagina; and first-degree sexual assault for touching her breasts. Ice was sentenced under a state statute providing, generally, for concurrent sentences, Ore. Rev. Stat. §137.123(1), but allowing the judge to impose consecutive sentences in these circumstances: (1) when “a defendant is simultaneously sentenced for … offenses that do not arise from the same … course of conduct,” §137.123(2), and (2) when offenses arise from the same course of conduct, if the judge finds either “(a) [t]hat the … offense … was an indication of defendant’s willingness to commit more than one criminal offense; or … “(b) [t]he … offense … caused or created a risk of causing greater or qualitatively different … harm to the victim,” §137.123(5). The trial judge first found that the two burglaries constituted separate incidents and exercised his discretion to impose consecutive sentences for those crimes under §137.123(2). The court then found that each offense of touching the victim’s vagina met §137.123(5)’s two criteria, giving the judge discretion to impose the sentences for those offenses consecutive to the two associated burglary sentences. The court elected to do so, but ordered that the sentences for touching the victim’s breasts run concurrently with the other sentences. On appeal, Ice argued, inter alia, that the sentencing statute was unconstitutional under Apprendi v. New Jersey, 530 U. S. 466, 490, and Blakely v. Washington, 542 U. S. 296, holding that the Sixth Amendment’s jury-trial guarantee requires that the jury, rather than the judge, determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for a particular crime. The appellate court affirmed, but the Oregon Supreme Court reversed, holding that the Apprendi rule applied because the imposition of consecutive sentences increased Ice’s quantum of punishment. Held: In light of historical practice and the States’ authority over administration of their criminal justice systems, the Sixth Amendment does not inhibit States from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses. Pp. 5–11. (a) The Court declines to extend the Apprendi and Blakely line of decisions beyond the offense-specific context that supplied the historic grounding for the decisions. The Court’s application of Apprendi’s rule must honor the “longstanding common-law practice” in which the rule is rooted. Cunningham v. California, 549 U. S. 270, 281. The rule’s animating principle is the preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense. See Apprendi, 530 U. S., at 477. Because the Sixth Amendment does not countenance legislative encroachment on the jury’s traditional domain, see id., at 497, the Court considers whether the finding of a particular fact was understood as within the jury’s domain by the Bill of Rights’ framers, Harris v. United States, 536 U. S. 545, 557. In so doing, the Court is also cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain. See, e.g., Patterson v. New York, 432 U. S. 197, 201. These twin considerations—historical practice and respect for state sovereignty—counsel against extending Apprendi to the imposition of sentences for discrete crimes. P. 6. (b) The historical record demonstrates that both in England before this Nation’s founding and in the early American States, the common law generally entrusted the decision whether sentences for discrete offenses should be served consecutively or concurrently to judges’ unfettered discretion, assigning no role in the determination to the jury. Thus, legislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted the Court’s decision in Apprendi. There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused. Instead, the defendant—who historically may have faced consecutive sentences by default—has been granted by some modern legislatures statutory protections meant to temper the harshness of the historical practice. Ice’s argument that he is “entitled” to concurrent sentences absent the factfindings Oregon law requires is rejected. Because the scope of the federal constitutional jury right must be informed by the jury’s historical common-law role, that right does not attach to every contemporary state-law “entitlement” to predicate findings. For similar reasons, Cunningham, upon which Ice heavily relies, does not control here. In holding that the facts permitting imposition of an elevated “upper term” sentence for a particular crime fell within the jury’s province rather than the sentencing judge’s, 549 U. S., at 274, Cunningham had no occasion to consider the appropriate inquiry when no erosion of the jury’s traditional role was at stake. Pp. 7–8. (c) States’ interest in the development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that Ice requests. This Court should not diminish the States’ sovereign authority over the administration of their criminal justice systems absent impelling reason to do so. Limiting judicial discretion to impose consecutive sentences serves the “salutary objectives” of promoting sentences proportionate to “the gravity of the offense,” Blakely, 542 U. S., at 308, and of reducing disparities in sentence length. All agree that a scheme making consecutive sentences the rule, and concurrent sentences the exception, encounters no Sixth Amendment shoal. To hem in States by holding that they may not choose to make concurrent sentences the rule, and consecutive sentences the exception, would make scant sense. Neither Apprendi nor the Court’s Sixth Amendment traditions compel straitjacketing the States in that manner. Further, the potential intrusion of Apprendi’s rule into other state initiatives on sentencing choices or accoutrements—for example, permitting trial judges to find facts about the offense’s nature or the defendant’s character in determining the length of supervised release, required attendance at drug rehabilitation programs or terms of community service, and the imposition of fines and restitution—would cut the rule loose from its moorings. Moreover, the expansion Ice seeks would be difficult for States to administer, as the predicate facts for consecutive sentences could substantially prejudice the defense at the trial’s guilt phase, potentially necessitating bifurcated or trifurcated trials. Pp. 9–10. 343 Ore. 248, 170 P. 3d 1049, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Stevens, Kennedy, Breyer, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Souter and Thomas, JJ., joined. | This case concerns the scope of the Sixth Amendment’s jury-trial guarantee, as construed in Apprendi v. New Jersey, 530 U. S. 466 (2000), and Blakely v. Washington, 542 U. S. 296 (2004). Those decisions are rooted in the historic jury function—determining whether the prosecution has proved each element of an offense beyond a reasonable doubt. They hold that it is within the jury’s province to determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for a particular offense. Thus far, the Court has not extended the Apprendi and Blakely line of decisions beyond the offense-specific context that supplied the historic grounding for the decisions. The question here presented concerns a sentencing function in which the jury traditionally played no part: When a defendant has been tried and convicted of multiple offenses, each involving discrete sentencing prescriptions, does the Sixth Amendment mandate jury determination of any fact declared necessary to the imposition of consecutive, in lieu of concurrent, sentences? Most States continue the common-law tradition: They entrust to judges’ unfettered discretion the decision whether sentences for discrete offenses shall be served consecutively or concurrently. In some States, sentences for multiple offenses are presumed to run consecutively, but sentencing judges may order concurrent sentences upon finding cause therefor. Other States, including Oregon, constrain judges’ discretion by requiring them to find certain facts before imposing consecutive, rather than concurrent, sentences. It is undisputed that States may proceed on the first two tracks without transgressing the Sixth Amendment. The sole issue in dispute, then, is whether the Sixth Amendment, as construed in Apprendi and Blakely, precludes the mode of proceeding chosen by Oregon and several of her sister States. We hold, in light of historical practice and the authority of States over administration of their criminal justice systems, that the Sixth Amendment does not exclude Oregon’s choice. I A State laws, as just observed, prescribe a variety of approaches to the decision whether a defendant’s sentences for distinct offenses shall run concurrently or consecutively. Oregon might have followed the prevailing pattern by placing the decision within the trial court’s discretion in all,[Footnote 1] or almost all,[Footnote 2] circumstances. Instead, Oregon and several other States have adopted a more restrained approach: they provide for judicial discretion, but constrain its exercise. In these States, to impose consecutive sentences, judges must make certain predicate fact findings.[Footnote 3] The controlling statute in Oregon provides that sentences shall run concurrently unless the judge finds statutorily described facts. Ore. Rev. Stat. §137.123(1) (2007). In most cases, finding such facts permits—but does not require—the judge to order consecutive sentences.[Footnote 4] Specifically, an Oregon judge may order consecutive sentences “[i]f a defendant is simultaneously sentenced for criminal offenses that do not arise from the same continuous and uninterrupted course of conduct.” §137.123(2). If the offenses do arise from the same course of conduct, the judge may still impose consecutive sentences if she finds either: “(a) That the criminal offense . . . was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense . . . caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or . . . to a different victim … .” §137.123(5). B On two occasions between December 1996 and July 1997, respondent Thomas Eugene Ice entered an apartment in the complex he managed and sexually assaulted an 11-year-old girl. 343 Ore. 248, 250, 170 P. 3d 1049, 1050 (2007). An Oregon jury convicted Ice of six crimes. For each of the two incidents, the jury found him guilty of first-degree burglary for entering with the intent to commit sexual abuse; first-degree sexual assault for touching the victim’s vagina; and first-degree sexual assault for touching the victim’s breasts. Ibid. At sentencing, the judge made findings, pursuant to §137.123, that permitted the imposition of consecutive sentences. First, the judge found that the two burglaries constituted “separate incident[s].” Id., at 255, 170 P. 3d, at 1053 (internal quotation marks omitted). Based on that finding, the judge had, and exercised, discretion to impose the two burglary sentences consecutively. Ibid.; see §137.123(2). Second, the court found that each offense of touching the victim’s vagina met the statutory criteria set forth in §137.123(5): Ice displayed a “willingness to commit more than one … offense” during each criminal episode, and his conduct “caused or created a risk of causing greater, qualitatively different loss, injury, or harm to the victim.” Id., at 253, 170 P. 3d, at 1051 (internal quotation marks omitted). These findings gave the judge discretion to impose the sentence for each of those sexual assault offenses consecutive to the associated burglary sentence. The court elected to do so. Ibid. The court ordered, however, that the sentences for touching the victim’s breasts run concurrently with the other sentences. Ibid. In total, the court sentenced Ice to 340 months’ imprisonment. App. 46–87.[Footnote 5] Ice appealed his sentences. In relevant part, he argued that he had a Sixth Amendment right to have the jury, not the sentencing judge, find the facts that permitted the imposition of consecutive sentences. The appellate court affirmed the trial court’s judgment without opinion. 178 Ore. App. 415, 39 P. 3d 291 (2001). The Oregon Supreme Court granted Ice’s petition for review and reversed, 4 to 2. 343 Ore., at 250, 170 P. 3d, at 1050.[Footnote 6] In the majority’s view, the rule of Apprendi applied, because the imposition of consecutive sentences increased “the quantum of punishment” imposed. 343 Ore., at 265, 170 P. 3d, at 1058. The dissenting justices concluded that “[n]either the holding in Apprendi nor its reasoning support[ed] extending that decision to the question of consecutive sentencing.” Id., at 267, 170 P. 3d, at 1059 (opinion of Kistler, J.). State high courts have divided over whether the rule of Apprendi governs consecutive sentencing decisions.[Footnote 7] We granted review to resolve the question. 552 U. S. __ (2008). II The Federal Constitution’s jury-trial guarantee assigns the determination of certain facts to the jury’s exclusive province. Under that guarantee, this Court held in Apprendi, “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. We have applied Apprendi’s rule to facts subjecting a defendant to the death penalty, Ring v. Arizona, 536 U. S. 584, 602, 609 (2002), facts allowing a sentence exceeding the “standard” range in Washington’s sentencing system, Blakely, 542 U. S., at 304–305, and facts prompting an elevated sentence under then-mandatory Federal Sentencing Guidelines, United States v. Booker, 543 U. S. 220, 244 (2005). Most recently, in Cunningham v. California, 549 U. S. 270 (2007), we applied Apprendi’s rule to facts permitting imposition of an “upper term” sentence under California’s determinate sentencing law. All of these decisions involved sentencing for a discrete crime, not—as here—for multiple offenses different in character or committed at different times. Our application of Apprendi’s rule must honor the “longstanding common-law practice” in which the rule is rooted. Cunningham, 549 U. S., at 281. The rule’s animating principle is the preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense. See Apprendi, 530 U. S., at 477. Guided by that principle, our opinions make clear that the Sixth Amendment does not countenance legislative encroachment on the jury’s traditional domain. See id., at 497. We accordingly considered whether the finding of a particular fact was understood as within “the domain of the jury … by those who framed the Bill of Rights.” Harris v. United States, 536 U. S. 545, 557 (2002) (plurality opinion). In undertaking this inquiry, we remain cognizant that administration of a discrete criminal justice system is among the basic sovereign prerogatives States retain. See, e.g., Patterson v. New York, 432 U. S. 197, 201 (1977). These twin considerations—historical practice and respect for state sovereignty—counsel against extending Apprendi’s rule to the imposition of sentences for discrete crimes. The decision to impose sentences consecutively is not within the jury function that “extends down centuries into the common law.” Apprendi, 530 U. S., at 477. Instead, specification of the regime for administering multiple sentences has long been considered the prerogative of state legislatures. A The historical record demonstrates that the jury played no role in the decision to impose sentences consecutively or concurrently. Rather, the choice rested exclusively with the judge. See, e.g., 1 J. Bishop, Criminal Law §636, pp. 649–650 (2d ed. 1858) (“[W]hen there are two or more convictions, on which sentence remains to be pronounced; the judgment may direct, that each succeeding period of imprisonment shall commence on the termination of the period next preceding.”); A. Campbell, Law of Sentencing §9:22, p. 425 (3d ed. 2004) (“Firmly rooted in common law is the principle that the selection of either concurrent or consecutive sentences rests within the discretion of sentencing judges.”). This was so in England before the founding of our Nation,[Footnote 8] and in the early American States.[Footnote 9] Ice “has no quarrel with [this account] of consecutive sentencing practices through the ages.” Brief for Respondent 32. The historical record further indicates that a judge’s imposition of consecutive, rather than concurrent, sentences was the prevailing practice.[Footnote 10] In light of this history, legislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted our decision in Apprendi. There is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused. Instead, the defendant—who historically may have faced consecutive sentences by default—has been granted by some modern legislatures statutory protections meant to temper the harshness of the historical practice. It is no answer that, as Ice argues, “he was ‘entitled’ to” concurrent sentences absent the fact findings Oregon law requires. Brief for Respondent 43. In Ice’s view, because “the Oregon Legislature deviated from tradition” and enacted a statute that hinges consecutive sentences on fact findings, Apprendi’s rule must be imported. Brief for Respondent 33. As we have described, the scope of the constitutional jury right must be informed by the historical role of the jury at common law. See, e.g., Williams v. Florida, 399 U. S. 78, 98–100 (1970). It is therefore not the case that, as Ice suggests, the federal constitutional right attaches to every contemporary state-law “entitlement” to predicate findings. For similar reasons, Cunningham, upon which Ice heavily relies, does not control his case. As stated earlier, we held in Cunningham that the facts permitting imposition of an elevated “upper term” sentence for a particular crime fell within the jury’s province. 549 U. S., at 274 (internal quotation marks omitted). The assignment of such a finding to the sentencing judge implicates Apprendi’s core concern: a legislative attempt to “remove from the [province of the] jury” the determination of facts that warrant punishment for a specific statutory offense. Apprendi, 530 U. S., at 490 (internal quotation marks omitted). We had no occasion to consider the appropriate inquiry when no erosion of the jury’s traditional role was at stake. Cunningham thus does not impede our conclusion that, as Apprendi’s core concern is inapplicable to the issue at hand, so too is the Sixth Amendment’s restriction on judge-found facts. B States’ interest in the development of their penal systems, and their historic dominion in this area, also counsel against the extension of Apprendi that Ice requests. Beyond question, the authority of States over the administration of their criminal justice systems lies at the core of their sovereign status. See, e.g., Patterson, 432 U. S., at 201 (“It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government.”). We have long recognized the role of the States as laboratories for devising solutions to difficult legal problems. See New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). This Court should not diminish that role absent impelling reason to do so. It bears emphasis that state legislative innovations like Oregon’s seek to rein in the discretion judges possessed at common law to impose consecutive sentences at will. Limiting judicial discretion to impose consecutive sentences serves the “salutary objectives” of promoting sentences proportionate to “the gravity of the offense,” Blakely, 542 U. S., at 308, and of reducing disparities in sentence length, see 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §26.3(f) (3d ed 2007). All agree that a scheme making consecutive sentences the rule, and concurrent sentences the exception, encounters no Sixth Amendment shoal. To hem in States by holding that they may not equally choose to make concurrent sentences the rule, and consecutive sentences the exception, would make scant sense. Neither Apprendi nor our Sixth Amendment traditions compel straitjacketing the States in that manner. Further, it is unclear how many other state initiatives would fall under Ice’s proposed expansion of Apprendi. As 17 States have observed in an amici brief supporting Oregon, States currently permit judges to make a variety of sentencing determinations other than the length of incarceration. Trial judges often find facts about the nature of the offense or the character of the defendant in determining, for example, the length of supervised release following service of a prison sentence; required attendance at drug rehabilitation programs or terms of community service; and the imposition of statutorily prescribed fines and orders of restitution. See Brief for State of Indiana et al. as Amici Curiae 11. Intruding Apprendi’s rule into these decisions on sentencing choices or accoutrements surely would cut the rule loose from its moorings. Moreover, the expansion that Ice seeks would be difficult for States to administer. The predicate facts for consecutive sentences could substantially prejudice the defense at the guilt phase of a trial. As a result, bifurcated or trifurcated trials might often prove necessary. Brief for State of Indiana et al. as Amici Curiae 14–15. We will not so burden the Nation’s trial courts absent any genuine affront to Apprendi’s instruction. We recognize that not every state initiative will be in harmony with Sixth Amendment ideals. But as we have previously emphasized, “structural democratic constraints exist to discourage legislatures from” pernicious manipulation of the rules we articulate. Apprendi, 530 U. S., at 490, n. 16. In any event, if confronted with such a manipulation, “we would be required to question whether the [legislative measure] was constitutional under this Court’s prior decisions.” Id., at 491, n. 16. The Oregon statute before us today raises no such concern. III Members of this Court have warned against “wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.” Cunningham, 549 U. S., at 295 (Kennedy, J., dissenting). The jury-trial right is best honored through a “principled rationale” that applies the rule of the Apprendi cases “within the central sphere of their concern.” 549 U. S., at 295. Our disposition today—upholding an Oregon statute that assigns to judges a decision that has not traditionally belonged to the jury—is faithful to that aim. * * * For the reasons stated, the judgment of the Oregon Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 E.g., Connecticut (Conn. Gen. Stat. §53a–37 (2005)); Idaho (Idaho Code §18–308 (Lexis 2004)); Nebraska (Neb. Rev. Stat. §29–2204 (1995)). See generally Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 9, n. 6 (listing laws of nine other States). Footnote 2 E.g., Florida (Fla. Stat. §921.16 (2007)); Kansas (Kan. Stat. Ann. §21–4608 (2007)); Mississippi (Miss. Code Ann. §99–19–21 (2007)). Footnote 3 E.g., Maine (Me. Rev. Stat. Ann., Tit. 17–A, §1256 (2006); State v. Keene, 2007 ME 84, 927 A. 2d 398); Tennessee (Tenn. Code Ann. §40–35–115(b) (2006); State v. Allen, 259 S. W. 3d 671 (Tenn. 2008)); Oregon (Ore. Rev. Stat. §137.123 (2007)). Footnote 4 Sentences must run consecutively, however, “[w]hen a defendant is sentenced for a crime committed while the defendant was incarcerated.” Ore. Rev. Stat. §137.123(3). Footnote 5 Had the judge ordered concurrent service of all sentences, Ice’s time in prison would have been 90 months. App. 68, 75. Footnote 6 Preliminarily, the Oregon Supreme Court ruled unanimously that the consecutive-sentencing findings did not constitute elements of any specific crime, and therefore the jury-trial right safeguarded by the Oregon Constitution was not violated. 343 Ore. 248, 261–262, 170 P. 3d 1049, 1056 (2007). Footnote 7 Compare, e.g., People v. Wagener, 196 Ill. 2d 269, 283–286, 752 N. E. 2d 430, 440–442 (2001) (holding that Apprendi does not apply); Keene, 927 A. 2d, 405–408 (same); with State v. Foster, 109 Ohio St. 3d 1, 2006–Ohio–856, 845 N. E. 2d 470 (holding Apprendi applicable). Footnote 8 E.g., King v. Wilkes, 19 How. St. Tr. 1075, 1132–1136 (K. B. 1769); see also Lee v. Walker, [1985] 1 Q. B. 1191, 1201 (1984) (“[T]he High Court has always had inherent jurisdiction to impose consecutive sentences of imprisonment in any appropriate case where the court had power to imprison.”). Footnote 9 E.g., Russell v. Commonwealth, 7 Serg. & Rawle 489, 490 (Pa. 1822) (Judicial imposition of consecutive sentences has been “the common practice in the Courts of this State,” and it is “warranted by principle, practice, and authority.”); In re Walsh, 37 Neb. 454, 456, 55 N. W. 1075, 1076 (1893) (“[T]he great weight of authority is in favor of the proposition that … the court has power to impose cumulative sentences.”); In re Breton, 93 Me. 39, 42, 44 A. 125, 126 (1899) (same); Howard v. United States, 75 F. 986, 993 (CA6 1896) (“[A] rule which denies the court the power to impose cumulative sentences turns the trial and conviction on all the indictments except one into an idle ceremony.”). Footnote 10 E.g., Queen v. Cutbush, 2 L. R. Q. B. 379, 382, 10 Cox Crim. Cas. 489, 492 (1867) (“[R]ight and justice require [that] when a man has been guilty of separate offences, … that he should not escape from the punishment due to the additional offence, merely because he is already sentenced to be imprisoned for another offence.”); ibid. (noting that it had been the practice to impose consecutive sentences “so far as living judicial memory goes back”). |
555.US.2008_07-512 | Petitioners (hereinafter AT&T) own infrastructure and facilities needed to provide “DSL” service, a method of connecting to the Internet at high speeds over telephone lines. As a condition for a recent merger, the Federal Communications Commission requires AT&T to provide wholesale DSL transport service to independent firms at a price no greater than the retail price of AT&T’s DSL service. The plaintiffs in this case, respondents here, are independent Internet service providers that compete with AT&T in the retail DSL market in California. The plaintiffs do not own all the facilities needed to supply DSL service, and must lease wholesale DSL transport service from AT&T. They filed suit under §2 of the Sherman Act, asserting that AT&T unlawfully “squeezed” their profit margins by setting a high price for the wholesale DSL transport service it sells and a low price for its own retail DSL service. This maneuver allegedly placed the plaintiffs at a competitive disadvantage, allowing AT&T to maintain monopoly power in the DSL market. AT&T moved for judgment on the pleadings, arguing that the plaintiffs’ claims were foreclosed by Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U. S. 398, 410, in which this Court held that a firm with no antitrust duty to deal with its rivals has no obligation to provide those rivals with a “sufficient” level of service. The District Court found that AT&T had no antitrust duty to deal with the plaintiffs, but nonetheless denied the motion, holding that Trinko did not address price-squeeze claims. The court certified its order for interlocutory appeal on the question whether Trinko bars price-squeeze claims when the parties are required to deal by federal communications law, but not antitrust law. The Ninth Circuit affirmed, holding that Trinko did not address the viability of price-squeeze claims, and thus the plaintiffs’ complaint stated a potentially valid §2 claim. Held: 1. The case is not moot. The plaintiffs now agree that their claims must meet the Brooke Group test for predatory pricing, apparently apart from their price-squeeze theory. That test established two requirements for predatory pricing: below-cost retail pricing and a “ ‘dangerous probability’ ” that the defendant will recoup any lost profits, see Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 222–224. Despite the plaintiffs’ new position, the parties continue to seek different relief: AT&T seeks reversal of the decision below and dismissal of the complaint, while the plaintiffs seek leave to amend their complaint to allege a Brooke Group claim. It is also not clear that the plaintiffs have unequivocally abandoned their price-squeeze claims. Prudential concerns favor answering the question presented; absent a decision on the merits, the Circuit conflict that this Court granted certiorari to resolve would persist. Pp. 5–7. 2. A price-squeeze claim may not be brought under §2 when the defendant has no antitrust duty to deal with the plaintiff at wholesale. Pp. 7–17. (a) Businesses are generally free to choose the parties with whom they will deal, as well as the prices, terms, and conditions of that dealing. See United States v. Colgate & Co., 250 U. S. 300, 307. But in rare circumstances, a dominant firm may incur antitrust liability for purely unilateral conduct, such as charging “predatory” prices. Brooke Group, supra, at 222–224. There are also limited circumstances in which a firm’s unilateral refusal to deal with its rivals can give rise to antitrust liability. See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U. S. 585, 608–611. Here, plaintiffs do not allege predatory pricing, and the District Court concluded that there was no antitrust duty to deal. Plaintiffs challenge a different type of unilateral conduct in which a firm “squeezes” its competitors’ profit margins. This requires the defendant to operate in both the wholesale (“upstream”) and retail (“downstream”) markets. By raising the wholesale price of inputs while cutting its own retail prices, the defendant can raise competitors’ costs while putting downward pressure on their revenues. Price-squeeze plaintiffs assert that defendants must leave them a “fair” or “adequate” margin between wholesale and retail prices. Pp. 7–9. (b) Where there is no duty to deal at the wholesale level and no predatory pricing at the retail level, a firm is not required to price both of these services in a manner that preserves its rivals’ profit margins. Pp. 9–12. (1) Any challenge to AT&T’s wholesale prices is foreclosed by a straightforward application of Trinko. The claim in Trinko addressed the quality of Verizon’s support services, while the claims in this case challenge AT&T’s pricing structure. But for antitrust purposes, there is no meaningful distinction between price and nonprice components of a transaction. The nub of the complaint in both cases is identical—the plaintiffs alleged that the defendants (upstream monopolists) abused their power in the wholesale market to prevent rival firms from competing effectively in the retail market. But a firm with no antitrust duty to deal in the wholesale market has no obligation to deal under terms and conditions favorable to its competitors. See Trinko, supra, at 410. Had AT&T simply stopped providing DSL transport service to the plaintiffs, it would not have run afoul of the Sherman Act. Thus, it was not required to offer this service at the wholesale prices the plaintiffs would have preferred. Pp. 9–10. (2) The other component of a price-squeeze claim is the assertion that the defendant’s retail prices are “too low.” Here too plaintiffs’ claims find no support in existing antitrust doctrine. “[C]utting prices in order to increase business often is the very essence of competition.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 594. To avoid chilling aggressive price competition, the Court has carefully limited the circumstances under which plaintiffs can state a Sherman Act claim by alleging that the defendant’s prices are too low. See Brooke Group, supra, at 222–224. The complaint at issue here has no allegation that AT&T’s conduct met either Brooke Group requirement. Recognizing a price-squeeze claim where the defendant’s retail price remains above cost would invite the precise harm the Court sought to avoid in Brooke Group: Firms might raise retail prices or refrain from aggressive price competition to avoid potential antitrust liability. See 509 U. S., at 223. Pp. 11–12. (c) Institutional concerns also counsel against recognizing such claims. This Court has repeatedly emphasized the importance of clear rules in antitrust law. Recognizing price-squeeze claims would require courts simultaneously to police both the wholesale and retail prices to ensure that rival firms are not being squeezed. Courts would be aiming at a moving target, since it is the interaction between these two prices that may result in a squeeze. Moreover, firms seeking to avoid price-squeeze liability will have no safe harbor for their pricing practices. The most commonly articulated standard for price squeezes is that the defendant must leave its rivals a “fair” or “adequate” margin between wholesale and retail prices; this test is nearly impossible for courts to apply without conducting complex proceedings like rate-setting agencies. Some amici argue that a price squeeze should be presumed if the defendant’s wholesale price exceeds its retail price. But if both the wholesale price and the retail price are independently lawful, there is no basis for imposing antitrust liability simply because a vertically integrated firm’s wholesale price is greater than or equal to its retail price. Pp. 12–15. (d) The District Court on remand should consider whether an amended complaint filed by the plaintiffs states a claim upon which relief may be granted under the pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 561–563; whether plaintiffs should be given leave to amend their complaint to bring a Brooke Group claim; and such other matters properly before it. Pp. 15–17. 503 F. 3d 876, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed an opinion concurring in the judgment, in which Stevens, Souter, and Ginsburg, JJ., joined. | The plaintiffs in this case, respondents here, allege that a competitor subjected them to a “price squeeze” in violation of §2 of the Sherman Act. They assert that such a claim can arise when a vertically integrated firm sells inputs at wholesale and also sells finished goods or services at retail. If that firm has power in the wholesale market, it can simultaneously raise the wholesale price of inputs and cut the retail price of the finished good. This will have the effect of “squeezing” the profit margins of any competitors in the retail market. Those firms will have to pay more for the inputs they need; at the same time, they will have to cut their retail prices to match the other firm’s prices. The question before us is whether such a price-squeeze claim may be brought under §2 of the Sherman Act when the defendant is under no antitrust obligation to sell the inputs to the plaintiff in the first place. We hold that no such claim may be brought. I This case involves the market for digital subscriber line (DSL) service, which is a method of connecting to the Internet at high speeds over telephone lines. AT&T[Footnote 1] owns much of the infrastructure and facilities needed to provide DSL service in California. In particular, AT&T controls most of what is known as the “last mile”—the lines that connect homes and businesses to the telephone network. Competing DSL providers must generally obtain access to AT&T’s facilities in order to serve their customers. Until recently, the Federal Communications Commission (FCC) required incumbent phone companies such as AT&T to sell transmission service to independent DSL providers, under the theory that this would spur competition. See In re Appropriate Framework for Broadband Access to Internet over Wireline Facilities, 20 FCC Rcd. 14853, 14868 (2005). In 2005, the Commission largely abandoned this forced-sharing requirement in light of the emergence of a competitive market beyond DSL for high-speed Internet service; DSL now faces robust competition from cable companies and wireless and satellite services. Id., at 14879–14887. As a condition for a recent merger, however, AT&T remains bound by the mandatory interconnection requirements, and is obligated to provide wholesale “DSL transport” service to independent firms at a price no greater than the retail price of AT&T’s DSL service. In re AT&T Inc. and BellSouth Corp., 22 FCC Rcd. 5662, 5814 (2007). The plaintiffs are four independent Internet service providers (ISPs) that compete with AT&T in the retail DSL market. Plaintiffs do not own all the facilities needed to supply their customers with this service. They instead lease DSL transport service from AT&T pursuant to the merger conditions described above. AT&T thus participates in the DSL market at both the wholesale and retail levels; it provides plaintiffs and other independent ISPs with wholesale DSL transport service, and it also sells DSL service directly to consumers at retail. In July 2003, the plaintiffs brought suit in District Court, alleging that AT&T violated §2 of the Sherman Act, 15 U. S. C. §2, by monopolizing the DSL market in California. The complaint alleges that AT&T refused to deal with the plaintiffs, denied the plaintiffs access to essential facilities, and engaged in a “price squeeze.” App. 18–19. Specifically, plaintiffs contend that AT&T squeezed their profit margins by setting a high wholesale price for DSL transport and a low retail price for DSL Internet service. This maneuver allegedly “exclude[d] and unreasonably impede[d] competition,” thus allowing AT&T to “preserve and maintain its monopoly control of DSL access to the Internet.” Ibid. In Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U. S. 398, 410 (2004), we held that a firm with no antitrust duty to deal with its rivals at all is under no obligation to provide those rivals with a “sufficient” level of service. Shortly after we issued that decision, AT&T moved for judgment on the pleadings, arguing that the plaintiffs’ claims in this case were foreclosed by Trinko. The District Court held that AT&T had no antitrust duty to deal with the plaintiffs, App. to Pet. for Cert. 77a–85a, but it denied the motion to dismiss with respect to the price-squeeze claims, id., at 86a–90a. The court acknowledged that AT&T’s argument “has a certain logic to it,” but held that Trinko “simply does not involve price-squeeze claims.” Id., at 86a. The District Court also noted that price-squeeze claims have been recognized by several Circuits and “are cognizable under existing antitrust standards.” Id., at 89a, and n. 27. At the District Court’s request, plaintiffs then filed an amended complaint providing greater detail about their price-squeeze claims. AT&T again moved to dismiss, arguing that price-squeeze claims could only proceed if they met the two established requirements for predatory pricing: below-cost retail pricing and a “ ‘dangerous probability’ ” that the defendant will recoup any lost profits. See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 222–224 (1993). The District Court did not reach the issue whether all price-squeeze claims must meet the Brooke Group requirements, because it concluded that the amended complaint, “generously construed,” satisfied those criteria. App. to Pet. for Cert. 46a–49a, 56a. The court also certified its earlier order for interlocutory appeal on the question whether “Trinko bars price squeeze claims where the parties are compelled to deal under the federal communications laws.” Id., at 56a–57a. On interlocutory appeal, the Court of Appeals for the Ninth Circuit affirmed the District Court’s denial of AT&T’s motion for judgment on the pleadings on the price-squeeze claims. 503 F. 3d 876 (2007). The court emphasized that “Trinko did not involve a price squeezing theory.” Id., at 883. Because “a price squeeze theory formed part of the fabric of traditional antitrust law prior to Trinko,” the Court of Appeals concluded that “those claims should remain viable notwithstanding either the telecommunications statutes or Trinko.” Ibid. Based on the record before it, the court held that plaintiffs’ original complaint stated a potentially valid claim under §2 of the Sherman Act. Judge Gould dissented, noting that “the notion of a ‘price squeeze’ is itself in a squeeze between two recent Supreme Court precedents.” Id., at 886. A price-squeeze claim involves allegations of both a high wholesale price and a low retail price, so Judge Gould analyzed each component separately. He concluded that “Trinko insulates from antitrust review the setting of the upstream price.” Id., at 886–887. With respect to the downstream price, he argued that “the retail side of a price squeeze cannot be considered to create an antitrust violation if the retail pricing does not satisfy the requirements of Brooke Group, which set unmistakable limits on what can be considered to be predatory within the meaning of the antitrust laws.” Id., at 887 (citing Brooke Group, supra, at 222–224). Judge Gould concluded that the plaintiffs’ complaint did not satisfy these requirements because it contained no allegations that the retail price was set below cost and that those losses could later be recouped. 503 F. 3d, at 887. Judge Gould would have allowed the plaintiffs to amend their complaint if they could, in good faith, raise predatory pricing claims meeting the Brooke Group requirements. Ibid. We granted certiorari, 554 U. S. ___ (2008), to resolve a conflict over whether a plaintiff can bring price-squeeze claims under §2 of the Sherman Act when the defendant has no antitrust duty to deal with the plaintiff. See Covad Communications Co. v. Bell Atlantic Co., 398 F. 3d 666, 673–674 (CADC 2005) (holding that Trinko bars such claims). We reverse. II This case has assumed an unusual posture. The plaintiffs now assert that they agree with Judge Gould’s dissenting position that price-squeeze claims must meet the Brooke Group requirements for predatory pricing. They ask us to vacate the decision below in their favor and remand with instructions that they be given leave to amend their complaint to allege a Brooke Group claim. In other words, plaintiffs are no longer pleased with their initial theory of the case, and ask for a mulligan to try again under a different theory. Some amici argue that the case is moot in light of this confession of error. They contend that “[w]ith both petitioners and respondents now aligned on [the same] side of the question presented, no party with a concrete stake in this case’s outcome is advocating for the contrary position.” Brief for COMPTEL 6. We do not think this case is moot. First, the parties continue to seek different relief. AT&T asks us to reverse the judgment of the Court of Appeals and remand with instructions to dismiss the complaint at issue. The plaintiffs ask that we vacate the judgment and remand with instructions that they be given leave to amend their complaint. The parties thus continue to be adverse not only in the litigation as a whole, but in the specific proceedings before this Court. Second, it is not clear that the plaintiffs have unequivocally abandoned their price-squeeze claims. In their brief and at oral argument, the plaintiffs continue to refer to their “pricing squeeze claim.” See Brief for Respondents 13. They appear to acknowledge that those claims must meet the Brooke Group requirements, but it is not clear whether they believe the necessary showing can be made in at least partial reliance on the sort of price squeeze theory accepted by the Court of Appeals. At one point, for example, the plaintiffs suggest that “the DSL transport price” may be pertinent to their claims going forward under the theory of Judge Gould’s dissent; that opinion, however, concluded that Trinko “in essence takes the issu[e] of wholesale pricing out of the case.” 503 F. 3d, at 886. Given this ambiguity, the case before us remains a live dispute appropriate for decision. Cf. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (a party’s voluntary conduct renders a case moot only if it is “ ‘absolutely clear’ ” the party will take that course of action). Amici also argue that we should dismiss the writ of certiorari because of the “lack of adversarial presentation” by an interested party. Brief for COMPTEL 7. To the contrary, prudential concerns favor our answering the question presented. Plaintiffs defended the Court of Appeals’ decision at the certiorari stage, and the parties have invested a substantial amount of time, effort, and resources in briefing and arguing the merits of this case. In the absence of a decision from this Court on the merits, the Court of Appeals’ decision would presumably remain binding precedent in the Ninth Circuit, and the Circuit conflict we granted certiorari to resolve would persist. Two amici have submitted briefs defending the Court of Appeals’ decision on the merits, and we granted the motion of one of those amici to participate in oral argument. 555 U. S. ___ (2008). We think it appropriate to proceed to address the question presented. III A Section 2 of the Sherman Act makes it unlawful to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 15 U. S. C. §2. Simply possessing monopoly power and charging monopoly prices does not violate §2; rather, the statute targets “the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” United States v. Grinnell Corp., 384 U. S. 563, 570–571 (1966). As a general rule, businesses are free to choose the parties with whom they will deal, as well as the prices, terms, and conditions of that dealing. See United States v. Colgate & Co., 250 U. S. 300, 307 (1919). But there are rare instances in which a dominant firm may incur antitrust liability for purely unilateral conduct. For example, we have ruled that firms may not charge “predatory” prices—below-cost prices that drive rivals out of the market and allow the monopolist to raise its prices later and recoup its losses. Brooke Group, 509 U. S., at 222–224. Here, however, the complaint at issue does not contain allegations meeting those requirements. App. 10–24. There are also limited circumstances in which a firm’s unilateral refusal to deal with its rivals can give rise to antitrust liability. See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U. S. 585, 608–611 (1985). Here, however, the District Court held that AT&T had no such antitrust duty to deal with its competitors, App. to Pet. for Cert. 84a–85a, and this holding was not challenged on appeal.[Footnote 2] The challenge here focuses on retail prices—where there is no predatory pricing—and the terms of dealing—where there is no duty to deal. Plaintiffs’ price-squeeze claims challenge a different type of unilateral conduct in which a firm “squeezes” the profit margins of its competitors. This requires the defendant to be operating in two markets, a wholesale (“upstream”) market and a retail (“downstream”) market. A firm with market power in the upstream market can squeeze its downstream competitors by raising the wholesale price of inputs while cutting its own retail prices. This will raise competitors’ costs (because they will have to pay more for their inputs) and lower their revenues (because they will have to match the dominant firm’s low retail price). Price-squeeze plaintiffs assert that defendants must leave them a “fair” or “adequate” margin between the wholesale price and the retail price. In this case, we consider whether a plaintiff can state a price-squeeze claim when the defendant has no obligation under the antitrust laws to deal with the plaintiff at wholesale. B 1. A straightforward application of our recent decision in Trinko forecloses any challenge to AT&T’s wholesale prices. In Trinko, Verizon was required by statute to lease its network elements to competing firms at wholesale rates. 540 U. S., at 402–403. The plaintiff—a customer of one of Verizon’s rivals—asserted that Verizon denied its competitors access to interconnection support services, making it difficult for those competitors to fill their customers’ orders. Id., at 404–405. The complaint alleged that this conduct in the upstream market violated §2 of the Sherman Act by impeding the ability of independent carriers to compete in the downstream market for local telephone service. Ibid. We held that the plaintiff’s claims were not actionable under §2. Given that Verizon had no antitrust duty to deal with its rivals at all, we concluded that “Verizon’s alleged insufficient assistance in the provision of service to rivals” did not violate the Sherman Act. Id., at 410. Trinko thus makes clear that if a firm has no antitrust duty to deal with its competitors at wholesale, it certainly has no duty to deal under terms and conditions that the rivals find commercially advantageous. In this case, as in Trinko, the defendant has no antitrust duty to deal with its rivals at wholesale; any such duty arises only from FCC regulations, not from the Sherman Act. See supra, at 8. There is no meaningful distinction between the “insufficient assistance” claims we rejected in Trinko and the plaintiffs’ price-squeeze claims in the instant case. The Trinko plaintiffs challenged the quality of Verizon’s interconnection service, while this case involves a challenge to AT&T’s pricing structure. But for antitrust purposes, there is no reason to distinguish between price and nonprice components of a transaction. See, e.g., American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U. S. 214, 223 (1998) (“Any claim for excessive rates can be couched as a claim for inadequate services and vice versa”). The nub of the complaint in both Trinko and this case is identical—the plaintiffs alleged that the defendants (upstream monopolists) abused their power in the wholesale market to prevent rival firms from competing effectively in the retail market. Trinko holds that such claims are not cognizable under the Sherman Act in the absence of an antitrust duty to deal. The District Court and the Court of Appeals did not regard Trinko as controlling because that case did not directly address price-squeeze claims. 503 F. 3d, at 883; App. to Pet. for Cert. 86a; see also Brief for COMPTEL 27–30. This is technically true, but the reasoning of Trinko applies with equal force to price-squeeze claims. AT&T could have squeezed its competitors’ profits just as effectively by providing poor-quality interconnection service to the plaintiffs, as Verizon allegedly did in Trinko. But a firm with no duty to deal in the wholesale market has no obligation to deal under terms and conditions favorable to its competitors. If AT&T had simply stopped providing DSL transport service to the plaintiffs, it would not have run afoul of the Sherman Act. Under these circumstances, AT&T was not required to offer this service at the wholesale prices the plaintiffs would have preferred. 2. The other component of a price-squeeze claim is the assertion that the defendant’s retail prices are “too low.” Here too plaintiffs’ claims find no support in our existing antitrust doctrine. “[C]utting prices in order to increase business often is the very essence of competition.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 594 (1986). In cases seeking to impose antitrust liability for prices that are too low, mistaken inferences are “especially costly, because they chill the very conduct the antitrust laws are designed to protect.” Ibid.; see also Brooke Group, 509 U. S., at 226; Cargill, Inc. v. Monfort of Colo., Inc., 479 U. S. 104, 121–122, n. 17 (1986). To avoid chilling aggressive price competition, we have carefully limited the circumstances under which plaintiffs can state a Sherman Act claim by alleging that prices are too low. Specifically, to prevail on a predatory pricing claim, a plaintiff must demonstrate that: (1) “the prices complained of are below an appropriate measure of its rival’s costs”; and (2) there is a “dangerous probability” that the defendant will be able to recoup its “investment” in below-cost prices. Brooke Group, supra, at 222–224. “Low prices benefit consumers regardless of how those prices are set, and so long as they are above predatory levels, they do not threaten competition.” Atlantic Richfield Co. v. USA Petroleum Co., 495 U. S. 328, 340 (1990). In the complaint at issue in this interlocutory appeal, App. 10–24, there is no allegation that AT&T’s conduct met either of the Brooke Group requirements. Recognizing a price-squeeze claim where the defendant’s retail price remains above cost would invite the precise harm we sought to avoid in Brooke Group: Firms might raise their retail prices or refrain from aggressive price competition to avoid potential antitrust liability. See 509 U. S., at 223 (“As a general rule, the exclusionary effect of prices above a relevant measure of cost either reflects the lower cost structure of the alleged predator, and so represents competition on the merits, or is beyond the practical ability of a judicial tribunal to control without courting intolerable risks of chilling legitimate price cutting”). 3. Plaintiffs’ price-squeeze claim, looking to the relation between retail and wholesale prices, is thus nothing more than an amalgamation of a meritless claim at the retail level and a meritless claim at the wholesale level. If there is no duty to deal at the wholesale level and no predatory pricing at the retail level, then a firm is certainly not required to price both of these services in a manner that preserves its rivals’ profit margins.[Footnote 3] C 1. Institutional concerns also counsel against recognition of such claims. We have repeatedly emphasized the importance of clear rules in antitrust law. Courts are ill suited “to act as central planners, identifying the proper price, quantity, and other terms of dealing.” Trinko, 540 U. S., at 408. “ ‘No court should impose a duty to deal that it cannot explain or adequately and reasonably supervise. The problem should be deemed irremedia[ble] by antitrust law when compulsory access requires the court to assume the day-to-day controls characteristic of a regulatory agency.’ ” Id., at 415 (quoting Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 Antitrust L. J. 841, 853 (1989)); see also Town of Concord v. Boston Edison Co., 915 F. 2d 17, 25 (CA1 1990) (Breyer, C. J.) (“[A]ntitrust courts normally avoid direct price administration, relying on rules and remedies . . . that are easier to administer”). It is difficult enough for courts to identify and remedy an alleged anticompetitive practice at one level, such as predatory pricing in retail markets or a violation of the duty-to-deal doctrine at the wholesale level. See Brooke Group, supra, at 225 (predation claims “requir[e] an understanding of the extent and duration of the alleged predation, the relative financial strength of the predator and its intended victim, and their respective incentives and will”); Trinko, supra, at 408. Recognizing price-squeeze claims would require courts simultaneously to police both the wholesale and retail prices to ensure that rival firms are not being squeezed. And courts would be aiming at a moving target, since it is the interaction between these two prices that may result in a squeeze. Perhaps most troubling, firms that seek to avoid price-squeeze liability will have no safe harbor for their pricing practices. See Town of Concord, supra, at 22 (antitrust rules “must be clear enough for lawyers to explain them to clients”). At least in the predatory pricing context, firms know they will not incur liability as long as their retail prices are above cost. Brooke Group, supra, at 223. No such guidance is available for price-squeeze claims. See, e.g., 3B P. Areeda & H. Hovenkamp, Antitrust Law ¶767c, p. 138 (3d ed. 2008) (“[A]ntitrust faces a severe problem not only in recognizing any §2 [price-squeeze] offense, but also in formulating a suitable remedy”). The most commonly articulated standard for price squeezes is that the defendant must leave its rivals a “fair” or “adequate” margin between the wholesale price and the retail price. See Town of Concord, supra, at 23–25; Alcoa, 148 F. 2d 416, 437–438 (CA2 1945). One of our colleagues has highlighted the flaws of this test in Socratic fashion: “[H]ow is a judge or jury to determine a ‘fair price?’ Is it the price charged by other suppliers of the primary product? None exist. Is it the price that competition ‘would have set’ were the primary level not monopolized? How can the court determine this price without examining costs and demands, indeed without acting like a rate-setting regulatory agency, the rate-setting proceedings of which often last for several years? Further, how is the court to decide the proper size of the price ‘gap?’ Must it be large enough for all independent competing firms to make a ‘living profit,’ no matter how inefficient they may be? . . . And how should the court respond when costs or demands change over time, as they inevitably will?” Town of Concord, supra, at 25. Some amici respond to these concerns by proposing a “transfer price test” for identifying an unlawful price squeeze: A price squeeze should be presumed if the upstream monopolist could not have made a profit by selling at its retail rates if it purchased inputs at its own wholesale rates. Brief for American Antitrust Institute (AAI) 30; Brief for COMPTEL 16–19; see Ray v. Indiana & Mich. Elec. Co., 606 F. Supp. 757, 776–777 (ND Ill. 1984). Whether or not that test is administrable, it lacks any grounding in our antitrust jurisprudence. An upstream monopolist with no duty to deal is free to charge whatever wholesale price it would like; antitrust law does not forbid lawfully obtained monopolies from charging monopoly prices. Trinko, supra, at 407 (“The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system”). Similarly, the Sherman Act does not forbid—indeed, it encourages—aggressive price competition at the retail level, as long as the prices being charged are not predatory. Brooke Group, 509 U. S., at 223–224. If both the wholesale price and the retail price are independently lawful, there is no basis for imposing antitrust liability simply because a vertically integrated firm’s wholesale price happens to be greater than or equal to its retail price. 2. Amici assert that there are circumstances in which price squeezes may harm competition. For example, they assert that price squeezes may raise entry barriers that fortify the upstream monopolist’s position; they also contend that price squeezes may impair nonprice competition and innovation in the downstream market by driving independent firms out of business. See Brief for AAI 11–15; Town of Concord, supra, at 23–24. The problem, however, is that amici have not identified any independent competitive harm caused by price squeezes above and beyond the harm that would result from a duty-to-deal violation at the wholesale level or predatory pricing at the retail level. See 3A P. Areeda & H. Hovenkamp, Antitrust Law ¶767c, p. 126 (2d ed. 2002) (“[I]t is difficult to see any competitive significance [of a price squeeze] apart from the consequences of vertical integration itself”). To the extent a monopolist violates one of these doctrines, the plaintiffs have a remedy under existing law. We do not need to endorse a new theory of liability to prevent such harm. IV Lastly, as mentioned above, plaintiffs have asked us for leave to amend their complaint to bring a Brooke Group predatory pricing claim. We need not decide whether leave to amend should be granted. Our grant of certiorari was limited to the question whether price-squeeze claims are cognizable in the absence of an antitrust duty to deal. The Court of Appeals addressed only AT&T’s motion for judgment on the pleadings on the plaintiffs’ original complaint.[Footnote 4] For the reasons stated, we hold that the price-squeeze claims set forth in that complaint are not cognizable under the Sherman Act. Plaintiffs have also filed an amended complaint, and the District Court concluded that this complaint, generously construed, could be read as alleging conduct that met the Brooke Group requirements for predatory pricing. App. to Pet. for Cert. 47a–52a, 56a. That order, however, applied the “no set of facts” pleading standard that we have since rejected as too lenient. See Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 561–563 (2007). It is for the District Court on remand to consider whether the amended complaint states a claim upon which relief may be granted in light of the new pleading standard we articulated in Twombly, whether plaintiffs should be given leave to amend their complaint to bring a claim under Brooke Group, and such other matters properly before it. Even if the amended complaint is further amended to add a Brooke Group claim, it may not survive a motion to dismiss. For if AT&T can bankrupt the plaintiffs by refusing to deal altogether, the plaintiffs must demonstrate why the law prevents AT&T from putting them out of business by pricing them out of the market. Nevertheless, such questions are for the District Court to decide in the first instance. We do not address these issues here, as they are outside the scope of the question presented and were not addressed by the Court of Appeals in the decision below. See Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view”). * * * Trinko holds that a defendant with no antitrust duty to deal with its rivals has no duty to deal under the terms and conditions preferred by those rivals. 540 U. S., at 409–410. Brooke Group holds that low prices are only actionable under the Sherman Act when the prices are below cost and there is a dangerous probability that the predator will be able to recoup the profits it loses from the low prices. 509 U. S., at 222–224. In this case, plaintiffs have not stated a duty-to-deal claim under Trinko and have not stated a predatory pricing claim under Brooke Group. They have nonetheless tried to join a wholesale claim that cannot succeed with a retail claim that cannot succeed, and alchemize them into a new form of antitrust liability never before recognized by this Court. We decline the invitation to recognize such claims. Two wrong claims do not make one that is right. 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 Petitioners consist of several corporate entities and subsidiaries, and their names and corporate structures have changed frequently over the course of this litigation. For simplicity, we will refer to all the petitioners as “AT&T.” Footnote 2 The Court of Appeals assumed that any duty to deal arose only from FCC regulations, 503 F. 3d, at 878–879, n. 6, and the question on which we granted certiorari made the same assumption. Even aside from the District Court’s reasoning, App. to Pet. for Cert. 77a–85a, it seems quite unlikely that AT&T would have an antitrust duty to deal with the plaintiffs. Such a duty requires a showing of monopoly power, but—as the FCC has recognized, 20 FCC Rcd., at 14879–14887—the market for high-speed Internet service is now quite competitive; DSL providers face stiff competition from cable companies and wireless and satellite providers. Footnote 3 Like the Court of Appeals, 503 F. 3d, at 880, amici argue that price-squeeze claims have been recognized by Circuit Courts for many years, beginning with Judge Hand’s opinion in United States v. Aluminum Co. of America, 148 F. 2d 416 (CA2 1945) (Alcoa). In that case, the Government alleged that Alcoa was using its monopoly power in the upstream aluminum ingot market to squeeze the profits of downstream aluminum sheet fabricators. The court concluded: “That it was unlawful to set the price of ‘sheet’ so low and hold the price of ingot so high, seems to us unquestionable, provided, as we have held, that on this record the price of ingot must be regarded as higher than a ‘fair price.’ ” Id., at 438. Given developments in economic theory and antitrust jurisprudence since Alcoa, we find our recent decisions in Trinko and Brooke Group more pertinent to the question before us. Footnote 4 We note a procedural irregularity with this case: Normally, an amended complaint supersedes the original complaint. See 6 C. Wright & A. Miller, Federal Practice & Procedure §1476, pp. 556–557 (2d ed. 1990). Here, the District Court addressed the amended complaint in its 2005 order, App. to Pet. for Cert. 36a–52a, but the court only certified its 2004 order—addressing the original complaint—for interlocutory appeal, id., at 56a–57a. Both parties, as well as the Solicitor General, have expressed confusion about whether the amended complaint and the 2005 order are properly before this Court. See Brief for Petitioners 9, n. 6 (noting “some ambiguity” about which order was certified); Brief for United States 17 (“[I]t is unclear whether the 2005 Order and the amended complaint are properly at issue in this interlocutory appeal”); Brief for Respondents 8–10. The Court of Appeals majority did not address any of the District Court’s holdings from the 2005 order, so we decline to consider those issues at this time. |
555.US.2008_07-751 | After the Utah Court of Appeals vacated respondent’s conviction for possession and distribution of drugs, which he sold to an undercover informant he had voluntarily admitted into his house, he brought this 42 U. S. C. §1983 damages action in federal court, alleging that petitioners, the officers who supervised and conducted the warrantless search of the premises that led to his arrest after the sale, had violated the Fourth Amendment. The District Court granted summary judgment in favor of the officers. Noting that other courts had adopted the “consent-once-removed” doctrine—which permits a warrantless police entry into a home when consent to enter has already been granted to an undercover officer who has observed contraband in plain view—the court concluded that the officers were entitled to qualified immunity because they could reasonably have believed that the doctrine authorized their conduct. Following the procedure mandated in Saucier v. Katz, 533 U. S. 194, the Tenth Circuit held that petitioners were not entitled to qualified immunity. The court disapproved broadening the consent-once-removed doctrine to situations in which the person granted initial consent was not an undercover officer, but merely an informant. It further held that the Fourth Amendment right to be free in one’s home from unreasonable searches and arrests was clearly established at the time of respondent’s arrest, and determined that, under this Court’s clearly established precedents, warrantless entries into a home are per se unreasonable unless they satisfy one of the two established exceptions for consent and exigent circumstances. The court concluded that petitioners could not reasonably have believed that their conduct was lawful because they knew that (1) they had no warrant; (2) respondent had not consented to their entry; and (3) his consent to the entry of an informant could not reasonably be interpreted to extend to them. In granting certiorari, this Court directed the parties to address whether Saucier should be overruled in light of widespread criticism directed at it. Held: 1. The Saucier procedure should not be regarded as an inflexible requirement. Pp. 5–19. (a) Saucier mandated, see 533 U. S., at 194, a two-step sequence for resolving government officials’ qualified immunity claims: A court must decide (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was “clearly established” at the time of the defendant’s alleged misconduct, id., at 201. Qualified immunity applies unless the official's conduct violated such a right. Anderson v. Creighton, 483 U. S. 635, 640. Pp. 5–7. (b) Stare decisis does not prevent this Court from determining whether the Saucier procedure should be modified or abandoned. Revisiting precedent is particularly appropriate where, as here, a departure would not upset settled expectations, see, e.g., United States v. Gaudin, 515 U. S. 506, 521; the precedent consists of a rule that is judge-made and adopted to improve court operations, not a statute promulgated by Congress, see, e.g., State Oil Co. v. Khan, 522 U. S. 3, 20; and the precedent has “been questioned by Members of th[is] Court in later decisions, and [has] defied consistent application by the lower courts,” Payne v. Tennessee, 501 U. S. 808, 829–830. Respondent’s argument that Saucier should not be reconsidered unless the Court concludes that it was “badly reasoned” or that its rule has proved “unworkable,” see Payne, supra, at 827, is rejected. Those standards are out of place in the present context, where a considerable body of new experience supports a determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained. Pp. 7–10. (c) Reconsideration of the Saucier procedure demonstrates that, while the sequence set forth therein is often appropriate, it should no longer be regarded as mandatory in all cases. Pp. 10–19. (i) The Court continues to recognize that the Saucier protocol is often beneficial. In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. And Saucier was correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable for questions that do not frequently arise in cases in which a qualified immunity defense is unavailable. See 533 U. S., at 194. Pp. 10–11. (ii) Nevertheless, experience in this Court and the lower federal courts has pointed out the rigid Saucier procedure’s shortcomings. For example, it may result in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the case’s outcome, and waste the parties’ resources by forcing them to assume the costs of litigating constitutional questions and endure delays attributable to resolving those questions when the suit otherwise could be disposed of more readily. Moreover, although the procedure’s first prong is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development, as where, e.g., a court of appeals decision is issued in an opinion marked as not precedential. Further, when qualified immunity is asserted at the pleading stage, the answer to whether there was a violation may depend on a kaleidoscope of facts not yet fully developed. And the first step may create a risk of bad decisionmaking, as where the briefing of constitutional questions is woefully inadequate. Application of the Saucier rule also may make it hard for affected parties to obtain appellate review of constitutional decisions having a serious prospective effect on their operations. For example, where a court holds that a defendant has committed a constitutional violation, but then holds that the violation was not clearly established, the defendant, as the winning party, may have his right to appeal the adverse constitutional holding challenged. Because rigid adherence to Saucier departs from the general rule of constitutional avoidance, cf., e.g., Scott v. Harris, 550 U. S. 372, 388, the Court may appropriately decline to mandate the order of decision that the lower courts must follow, see, e.g., Strickland v. Washington, 466 U. S. 668, 697. This flexibility properly reflects the Court’s respect for the lower federal courts. Because the two-step Saucier procedure is often, but not always, advantageous, those judges are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each case. Pp. 11–17. (iii) Misgivings concerning today’s decision are unwarranted. It does not prevent the lower courts from following Saucier; it simply recognizes that they should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, it will not retard the development of constitutional law, result in a proliferation of damages claims against local governments, or spawn new litigation over the standards for deciding whether to reach the particular case’s merits. Pp. 17–19. 2. Petitioners are entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional. When the entry occurred, the consent-once-removed doctrine had been accepted by two State Supreme Courts and three Federal Courts of Appeals, and not one of the latter had issued a contrary decision. Petitioners were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on consent-once-removed entries. See Wilson v. Layne, 526 U. S. 603, 618. Pp. 19–20. 494 F. 3d 891, reversed. Alito, J., delivered the opinion for a unanimous Court. | This is an action brought by respondent under Rev. Stat. §1979, 42 U. S. C. §1983, against state law enforcement officers who conducted a warrantless search of his house incident to his arrest for the sale of methamphetamine to an undercover informant whom he had voluntarily admitted to the premises. The Court of Appeals held that petitioners were not entitled to summary judgment on qualified immunity grounds. Following the procedure we mandated in Saucier v. Katz, 533 U. S. 194 (2001), the Court of Appeals held, first, that respondent adduced facts sufficient to make out a violation of the Fourth Amendment and, second, that the unconstitutionality of the officers’ conduct was clearly established. In granting review, we required the parties to address the additional question whether the mandatory procedure set out in Saucier should be retained. We now hold that the Saucier procedure should not be regarded as an inflexible requirement and that petitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the search that their conduct was unconstitutional. We therefore reverse. I A The Central Utah Narcotics Task Force is charged with investigating illegal drug use and sales. In 2002, Brian Bartholomew, who became an informant for the task force after having been charged with the unlawful possession of methamphetamine, informed Officer Jeffrey Whatcott that respondent Afton Callahan had arranged to sell Bartholomew methamphetamine later that day. That evening, Bartholomew arrived at respondent’s residence at about 8 p.m. Once there, Bartholomew went inside and confirmed that respondent had methamphetamine available for sale. Bartholomew then told respondent that he needed to obtain money to make his purchase and left. Bartholomew met with members of the task force at about 9 p.m. and told them that he would be able to buy a gram of methamphetamine for $100. After concluding that Bartholomew was capable of completing the planned purchase, the officers searched him, determined that he had no controlled substances on his person, gave him a marked $100 bill and a concealed electronic transmitter to monitor his conversations, and agreed on a signal that he would give after completing the purchase. The officers drove Bartholomew to respondent’s trailer home, and respondent’s daughter let him inside. Respondent then retrieved a large bag containing methamphetamine from his freezer and sold Bartholomew a gram of methamphetamine, which he put into a small plastic bag. Bartholomew gave the arrest signal to the officers who were monitoring the conversation, and they entered the trailer through a porch door. In the enclosed porch, the officers encountered Bartholomew, respondent, and two other persons, and they saw respondent drop a plastic bag, which they later determined contained methamphetamine. The officers then conducted a protective sweep of the premises. In addition to the large bag of meth- amphetamine, the officers recovered the marked bill from respondent and a small bag containing meth- amphetamine from Bartholomew, and they found drug syringes in the residence. As a result, respondent was charged with the unlawful possession and distribution of methamphetamine. B The trial court held that the warrantless arrest and search were supported by exigent circumstances. On respondent’s appeal from his conviction, the Utah attorney general conceded the absence of exigent circumstances, but urged that the inevitable discovery doctrine justified introduction of the fruits of the warrantless search. The Utah Court of Appeals disagreed and vacated respondent’s conviction. See State v. Callahan, 2004 LIT App. 164, 93 P. 3d 103. Respondent then brought this damages action under 42 U. S. C. §1983 in the United States District Court for the District of Utah, alleging that the officers had violated the Fourth Amendment by entering his home without a warrant. See Callahan v. Millard Cty., No. 2:04–CV–00952, 2006 WL 1409130 (2006). In granting the officers’ motion for summary judgment, the District Court noted that other courts had adopted the “consent-once-removed” doctrine, which permits a warrantless entry by police officers into a home when consent to enter has already been granted to an undercover officer or informant who has observed contraband in plain view. Believing that this doctrine was in tension with our intervening decision in Georgia v. Randolph, 547 U. S. 103 (2006), the District Court concluded that “the simplest approach is to assume that the Supreme Court will ultimately reject the [consent-once-removed] doctrine and find that searches such as the one in this case are not reasonable under the Fourth Amendment.” 2006 WL 1409130, at *8. The Court then held that the officers were entitled to qualified immunity because they could reasonably have believed that the consent-once-removed doctrine authorized their conduct. On appeal, a divided panel of the Tenth Circuit held that petitioners’ conduct violated respondent’s Fourth Amendment rights. Callahan v. Millard Cty., 494 F. 3d 891, 895–899 (2007). The panel majority stated that “[t]he ‘consent-once-removed’ doctrine applies when an undercover officer enters a house at the express invitation of someone with authority to consent, establishes probable cause to arrest or search, and then immediately summons other officers for assistance.” Id., at 896. The majority took no issue with application of the doctrine when the initial consent was granted to an undercover law enforcement officer, but the majority disagreed with decisions that “broade[n] this doctrine to grant informants the same capabilities as undercover officers.” Ibid. The Tenth Circuit panel further held that the Fourth Amendment right that it recognized was clearly established at the time of respondent’s arrest. Id., at 898–899. “In this case,” the majority stated, “the relevant right is the right to be free in one’s home from unreasonable searches and arrests.” Id., at 898. The Court determined that, under the clearly established precedents of this Court and the Tenth Circuit, “warrantless entries into a home are per se unreasonable unless they satisfy the established exceptions.” Id., at 898–899. In the panel’s words, “the Supreme Court and the Tenth Circuit have clearly established that to allow police entry into a home, the only two exceptions to the warrant requirement are consent and exigent circumstances.” Id., at 899. Against that backdrop, the panel concluded, petitioners could not reasonably have believed that their conduct was lawful because petitioners “knew (1) they had no warrant; (2) [respondent] had not consented to their entry; and (3) [respondent’s] consent to the entry of an informant could not reasonably be interpreted to extend to them.” Ibid. In dissent, Judge Kelly argued that “no constitutional violation occurred in this case” because, by inviting Bartholomew into his house and participating in a narcotics transaction there, respondent had compromised the privacy of the residence and had assumed the risk that Bartholomew would reveal their dealings to the police. Id., at 903. Judge Kelly further concluded that, even if petitioners’ conduct had been unlawful, they were nevertheless entitled to qualified immunity because the constitutional right at issue—“the right to be free from the warrantless entry of police officers into one’s home to effectuate an arrest after one has granted voluntary, consensual entry to a confidential informant and undertaken criminal activity giving rise to probable cause”—was not “clearly established” at the time of the events in question. Id., at 903–904. As noted, the Court of Appeals followed the Saucier procedure. The Saucier procedure has been criticized by Members of this Court and by lower court judges, who have been required to apply the procedure in a great variety of cases and thus have much firsthand experience bearing on its advantages and disadvantages. Accordingly, in granting certiorari, we directed the parties to address the question whether Saucier should be overruled. 552 U. S. ___ (2008). II A The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official’s error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Groh v. Ramirez, 540 U. S. 551, 567 (2004) (Kennedy, J., dissenting) (citing Butz v. Economou, 438 U. S. 478, 507 (1978) (noting that qualified immunity covers “mere mistakes in judgment, whether the mistake is one of fact or one of law”)). Because qualified immunity is “an immunity from suit rather than a mere defense to liability … it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U. S. 511, 526 (1985) (emphasis deleted). Indeed, we have made clear that the “driving force” behind creation of the qualified immunity doctrine was a desire to ensure that “ ‘insubstantial claims’ against government officials [will] be resolved prior to discovery.” Anderson v. Creighton, 483 U. S. 635, 640, n. 2 (1987). Accordingly, “we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U. S. 224, 227 (1991) (per curiam). In Saucier, 533 U. S. 194, this Court mandated a two-step sequence for resolving government officials’ qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right. 533 U. S., at 201. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was “clearly established” at the time of defendant’s alleged misconduct. Ibid. Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right. Anderson, supra, at 640. Our decisions prior to Saucier had held that “the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.” County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998). Saucier made that suggestion a mandate. For the first time, we held that whether “the facts alleged show the officer’s conduct violated a constitutional right … must be the initial inquiry” in every qualified immunity case. 533 U. S., at 20 (emphasis added). Only after completing this first step, we said, may a court turn to “the next, sequential step,” namely, “whether the right was clearly established.” Ibid. This two-step procedure, the Saucier Court reasoned, is necessary to support the Constitution’s “elaboration from case to case” and to prevent constitutional stagnation. Ibid. “The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.” Ibid. B In considering whether the Saucier procedure should be modified or abandoned, we must begin with the doctrine of stare decisis. 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.” Payne v. Tennessee, 501 U. S. 808, 827 (1991). Although “[w]e approach the reconsideration of [our] decisions … with the utmost caution,” “[s]tare decisis is not an inexorable command.” State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) (internal quotation marks omitted). Revisiting precedent is particularly appropriate where, as here, a departure would not upset expectations, the precedent consists of a judge-made rule that was recently adopted to improve the operation of the courts, and experience has pointed up the precedent’s shortcomings. “Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases … involving procedural and evidentiary rules” that do not produce such reliance. Payne, supra, at 828 (citations omitted). Like rules governing procedures and the admission of evidence in the trial courts, Saucier’s two-step protocol does not affect the way in which parties order their affairs. Withdrawing from Saucier’s categorical rule would not upset settled expectations on anyone’s part. See United States v. Gaudin, 515 U. S. 506, 521 (1995). Nor does this matter implicate “the general presumption that legislative changes should be left to Congress.” Khan, supra, at 20. We recognize that “considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court’s interpretation of its legislation.” Illinois Brick Co. v. Illinois, 431 U. S. 720, 736 (1977). But the Saucier rule is judge made and implicates an important matter involving internal Judicial Branch operations. Any change should come from this Court, not Congress. Respondent argues that the Saucier procedure should not be reconsidered unless we conclude that its justification was “badly reasoned” or that the rule has proved to be “unworkable,” see Payne, supra, at 827, but those standards, which are appropriate when a constitutional or statutory precedent is challenged, are out of place in the present context. Because of the basis and the nature of the Saucier two-step protocol, it is sufficient that we now have a considerable body of new experience to consider regarding the consequences of requiring adherence to this inflexible procedure. This experience supports our present determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained. Lower court judges, who have had the task of applying the Saucier rule on a regular basis for the past eight years, have not been reticent in their criticism of Saucier’s “rigid order of battle.” See, e.g., Purtell v. Mason, 527 F. 3d 615, 622 (CA7 2008) (“This ‘rigid order of battle’ has been criticized on practical, procedural, and substantive grounds”); Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U. L. Rev. 1249, 1275, 1277 (2006) (referring to Saucier’s mandatory two-step framework as “a new and mischievous rule” that amounts to “a puzzling misadventure in constitutional dictum”). And application of the rule has not always been enthusiastic. See Higazy v. Templeton, 505 F. 3d 161, 179, n. 19 (CA2 2007) (“We do not reach the issue of whether [plaintiff’s] Sixth Amendment rights were violated, because principles of judicial restraint caution us to avoid reaching constitutional questions when they are unnecessary to the disposition of a case”); Cherrington v. Skeeter, 344 F. 3d 631, 640 (CA6 2003) (“[I]t ultimately is unnecessary for us to decide whether the individual Defendants did or did not heed the Fourth Amendment command … because they are entitled to qualified immunity in any event”); Pearson v. Ramos, 237 F. 3d 881, 884 (CA7 2001) (“Whether [the Saucier] rule is absolute may be doubted”). Members of this Court have also voiced criticism of the Saucier rule. See Morse v. Frederick, 551 U. S. ___, ___ (2007) (slip op., at 8) (Breyer, J., concurring in judgment in part and dissenting in part) (“I would end the failed Saucier experiment now”); Bunting v. Mellen, 541 U. S. 1019 (2004) (Stevens, J., joined by Ginsburg and Breyer, JJ., respecting denial of certiorari) (criticizing the “unwise judge-made rule under which courts must decide whether the plaintiff has alleged a constitutional violation before addressing the question whether the defendant state actor is entitled to qualified immunity”); Id., at 1025 (Scalia, J., joined by Rehnquist, C. J., dissenting from denial of certiorari) (“We should either make clear that constitutional determinations are not insulated from our review … or else drop any pretense at requiring the ordering in every case” (emphasis in original)); Brosseau v. Haugen, 543 U. S. 194, 201–202 (2004) (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring) (urging Court to reconsider Saucier’s “rigid ‘order of battle,’ ” which “requires courts unnecessarily to decide difficult constitutional questions when there is available an easier basis for the decision (e.g., qualified immunity) that will satisfactorily resolve the case before the court”); Saucier, 533 U. S., at 210 (Ginsburg, J., concurring in judgment) (“The two-part test today’s decision imposes holds large potential to confuse”). Where a decision has “been questioned by Members of the Court in later decisions and [has] defied consistent application by the lower courts,” these factors weigh in favor of reconsideration. Payne, 501 U. S., at 829–830; see also Crawford v. Washington, 541 U. S. 36, 60 (2004). Collectively, the factors we have noted make our present reevaluation of the Saucier two-step protocol appropriate. III On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth there is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand. A Although we now hold that the Saucier protocol should not be regarded as mandatory in all cases, we continue to recognize that it is often beneficial. For one thing, there are cases in which there would be little if any conservation of judicial resources to be had by beginning and ending with a discussion of the “clearly established” prong. “[I]t often may be difficult to decide whether a right is clearly established without deciding precisely what the constitutional right happens to be.” Lyons v. Xenia, 417 F. 3d 565, 581 (CA6 2005) (Sutton, J., concurring). In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. In addition, the Saucier Court was certainly correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valu- able with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable. B At the same time, however, the rigid Saucier procedure comes with a price. The procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case. There are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right. District courts and courts of appeals with heavy caseloads are often understandably unenthusiastic about what may seem to be an essentially academic exercise. Unnecessary litigation of constitutional issues also wastes the parties’ resources. Qualified immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell, 472 U. S., at 526 (emphasis deleted). Saucier’s two-step protocol “disserve[s] the purpose of qualified immunity” when it “forces the parties to endure additional burdens of suit—such as the costs of litigating constitutional questions and delays attributable to resolving them—when the suit otherwise could be disposed of more readily.” Brief for Nat. Assn. of Criminal Defense Lawyers as Amicus Curiae 30. Although the first prong of the Saucier procedure is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development. For one thing, there are cases in which the constitutional question is so fact-bound that the decision provides little guidance for future cases. See Scott v. Harris, 550 U. S. 372, 388 (2007) (Breyer, J., concurring) (counseling against the Saucier two-step protocol where the question is “so fact dependent that the result will be confusion rather than clarity”); Buchanan v. Maine, 469 F. 3d 158, 168 (CA1 2006) (“We do not think the law elaboration purpose will be well served here, where the Fourth Amendment inquiry involves a reasonableness question which is highly idiosyncratic and heavily dependent on the facts”). A decision on the underlying constitutional question in a §1983 damages action or a Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971),[Footnote 1] action may have scant value when it appears that the question will soon be decided by a higher court. When presented with a constitutional question on which this Court had just granted certiorari, the Ninth Circuit elected to “bypass Saucier’s first step and decide only whether [the alleged right] was clearly established.” Motley v. Parks, 432 F. 3d 1072, 1078, and n. 5 (2005) (en banc). Similar considerations may come into play when a court of appeals panel confronts a constitutional question that is pending before the court en banc or when a district court encounters a constitutional question that is before the court of appeals. A constitutional decision resting on an uncertain interpretation of state law is also of doubtful precedential importance. As a result, several courts have identified an “exception” to the Saucier rule for cases in which resolution of the constitutional question requires clarification of an ambiguous state statute. Egolf v. Witmer, 526 F. 3d 104, 109–111 (CA3 2008); accord, Tremblay v. McClellan, 350 F. 3d 195, 200 (CA1 2003); Ehrlich v. Glastonbury, 348 F. 3d 48, 57–60 (CA2 2003). Justifying the decision to grant qualified immunity to the defendant without first resolving, under Saucier’s first prong, whether the defendant’s conduct violated the Constitution, these courts have observed that Saucier’s “underlying principle” of encouraging federal courts to decide unclear legal questions in order to clarify the law for the future “is not meaningfully advanced … when the definition of constitutional rights depends on a federal court’s uncertain assumptions about state law.” Egolf, supra, at 110; accord, Tremblay, supra, at 200; Ehrlich, supra, at 58. When qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiff’s claim or claims may be hard to identify. See Lyons, supra, at 582 (Sutton, J., concurring); Kwai Fun Wong v. United States, 373 F. 3d 952, 957 (CA9 2004); Mollica v. Volker, 229 F. 3d 366, 374 (CA2 2000). Accordingly, several courts have recognized that the two-step inquiry “is an uncomfortable exercise where … the answer [to] whether there was a violation may depend on a kaleidoscope of facts not yet fully developed” and have suggested that “[i]t may be that Saucier was not strictly intended to cover” this situation. Dirrane v. Brookline Police Dept., 315 F. 3d 65, 69–70 (CA1 2002); see also Robinette v. Jones, 476 F. 3d 585, 592, n. 8 (CA8 2007) (declining to follow Saucier because “the parties have provided very few facts to define and limit any holding” on the constitutional question). There are circumstances in which the first step of the Saucier procedure may create a risk of bad decisionmaking. The lower courts sometimes encounter cases in which the briefing of constitutional questions is woefully inadequate. See Lyons, 417 F. 3d, at 582 (Sutton, J., concurring) (noting the “risk that constitutional questions may be prematurely and incorrectly decided in cases where they are not well presented”); Mollica, supra, at 374. Although the Saucier rule prescribes the sequence in which the issues must be discussed by a court in its opinion, the rule does not—and obviously cannot—specify the sequence in which judges reach their conclusions in their own internal thought processes. Thus, there will be cases in which a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all. In such situations, there is a risk that a court may not devote as much care as it would in other circumstances to the decision of the constitutional issue. See Horne v. Coughlin, 191 F. 3d, 244, 247 (CA2 1999) (“Judges risk being insufficiently thoughtful and cautious in uttering pronouncements that play no role in their adjudication”); Leval 1278–1279. Rigid adherence to the Saucier rule may make it hard for affected parties to obtain appellate review of constitutional decisions that may have a serious prospective effect on their operations. Where a court holds that a defendant committed a constitutional violation but that the violation was not clearly established, the defendant may face a difficult situation. As the winning party, the defendant’s right to appeal the adverse holding on the constitutional question may be contested. See Bunting, 541 U. S., at 1025 (Scalia, J., dissenting from denial of certiorari) (“The perception of unreviewability undermines adherence to the sequencing rule we . . . created” in Saucier);[Footnote 2] see also Kalka v. Hawk, 215 F. 3d 90, 96, n. 9 (CADC 2000) (noting that “[n]ormally, a party may not appeal from a favorable judgment” and that the Supreme Court “has apparently never granted the certiorari petition of a party who prevailed in the appellate court”). In cases like Bunting, the “prevailing” defendant faces an unenviable choice: “compl[y] with the lower court’s advisory dictum without opportunity to seek appellate [or certiorari] review,” or “def[y] the views of the lower court, adher[e] to practices that have been declared illegal, and thus invit[e] new suits” and potential “punitive damages.” Horne, supra, at 247–248. Adherence to Saucier’s two-step protocol departs from the general rule of constitutional avoidance and runs counter to the “older, wiser judicial counsel ‘not to pass on questions of constitutionality … unless such adjudication is unavoidable.’ ” Scott, 550 U. S., at 388 (Breyer, J., concurring) (quoting Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105 (1944)); see Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of ”). In other analogous contexts, we have appropriately declined to mandate the order of decision that the lower courts must follow. For example, in Strickland v. Washington, 466 U. S. 668 (1984), we recognized a two-part test for determining whether a criminal defendant was denied the effective assistance of counsel: The defendant must demonstrate (1) that his counsel’s performance fell below what could be expected of a reasonably competent practitioner; and (2) that he was prejudiced by that substandard performance. Id., at 687. After setting forth and applying the analytical framework that courts must use in evaluating claims of ineffective assistance of counsel, we left it to the sound discretion of lower courts to determine the order of decision. Id., at 697 (“Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one”). In United States v. Leon, 468 U. S. 897 (1984), we created an exception to the exclusionary rule when officers reasonably rely on a facially valid search warrant. Id., at 913. In that context, we recognized that a defendant challenging a search will lose if either: (1) the warrant issued was supported by probable cause; or (2) it was not, but the officers executing it reasonably believed that it was. Again, after setting forth and applying the analytical framework that courts must use in evaluating the good-faith exception to the Fourth Amendment warrant requirement, we left it to the sound discretion of the lower courts to determine the order of decision. Id., at 924, 925 (“There is no need for courts to adopt the inflexible practice of always deciding whether the officers’ conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated”). This flexibility properly reflects our respect for the lower federal courts that bear the brunt of adjudicating these cases. Because the two-step Saucier procedure is often, but not always, advantageous, the judges of the district courts and the courts of appeals are in the best position to determine the order of decisionmaking will best facilitate the fair and efficient disposition of each case. C Any misgivings concerning our decision to withdraw from the mandate set forth in Saucier are unwarranted. Our decision does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, the development of constitutional law is by no means entirely dependent on cases in which the defendant may seek qualified immunity. Most of the constitutional issues that are presented in §1983 damages actions and Bivens cases also arise in cases in which that defense is not available, such as criminal cases and §1983 cases against a municipality, as well as §1983 cases against individuals where injunctive relief is sought instead of or in addition to damages. See Lewis, 523 U. S., at 841, n. 5 (noting that qualified immunity is unavailable “in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion”). We also do not think that relaxation of Saucier’s mandate is likely to result in a proliferation of damages claims against local governments. Compare Brief for Nat. Assn. of Counties et al., as Amici Curiae 29, 30 (“[T]o the extent that a rule permitting courts to bypass the merits makes it more difficult for civil rights plaintiffs to pursue novel claims, they will have greater reason to press custom, policy, or practice [damages] claims against local governments”). It is hard to see how the Saucier procedure could have a significant effect on a civil rights plaintiff’s decision whether to seek damages only from a municipal employee or also from the municipality. Whether the Saucier procedure is mandatory or discretionary, the plaintiff will presumably take into account the possibility that the individual defendant will be held to have qualified immunity, and presumably the plaintiff will seek damages from the municipality as well as the individual employee if the benefits of doing so (any increase in the likelihood of recovery or collection of damages) outweigh the litigation costs. Nor do we think that allowing the lower courts to exercise their discretion with respect to the Saucier procedure will spawn “a new cottage industry of litigation … over the standards for deciding whether to reach the merits in a given case.” Brief for Nat. Assn. of Counties et al. as Amici Curiae 29, 30. It does not appear that such a “cottage industry” developed prior to Saucier, and we see no reason why our decision today should produce such a result. IV Turning to the conduct of the officers here, we hold that petitioners are entitled to qualified immunity because the entry did not violate clearly established law. An officer conducting a search is entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment. See Anderson, 483 U. S., at 641. This inquiry turns on the “objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” Wilson v. Layne, 526 U. S. 603, 614 (1999) (internal quotation marks omitted); see Hope v. Pelzer, 536 U. S. 730, 739 (2002) (“[Q]ualified immunity operates to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful” (internal quotation marks omitted)). When the entry at issue here occurred in 2002, the “consent-once-removed” doctrine had gained acceptance in the lower courts. This doctrine had been considered by three Federal Courts of Appeals and two State Supreme Courts starting in the early 1980’s. See, e.g., United States v. Diaz, 814 F. 2d 454, 459 (CA7), cert. denied, 484 U. S. 857 (1987); United States v. Bramble, 103 F. 3d 1475 (CA9 1996); United States v. Pollard, 215 F. 3d 643, 648–649 (CA6), cert. denied, 531 U. S. 999 (2000); State v. Henry, 133 N. J. 104, 627 A. 2d 125 (1993); State v. Johnston, 184 Wis. 2d 794, 518 N. W. 2d 759 (1994). It had been accepted by every one of those courts. Moreover, the Seventh Circuit had approved the doctrine’s application to cases involving consensual entries by private citizens acting as confidential informants. See United States v. Paul, 808 F. 2d, 645, 648 (1986). The Sixth Circuit reached the same conclusion after the events that gave rise to respondent’s suit, see United States v. Yoon, 398 F. 3d 802, 806–808, cert. denied, 546 U. S. 977 (2005), and prior to the Tenth Circuit’s decision in the present case, no court of appeals had issued a contrary decision. The officers here were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on “consent-once-removed” entries. The principles of qualified immunity shield an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law. Police officers are entitled to rely on existing lower court cases without facing personal liability for their actions. In Wilson, we explained that a Circuit split on the relevant issue had developed after the events that gave rise to suit and concluded that “[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.” 526 U. S., at 618. Likewise, here, where the divergence of views on the consent-once-removed doctrine was created by the decision of the Court of Appeals in this case, it is improper to subject petitioners to money damages for their conduct. Because the unlawfulness of the officers’ conduct in this case was not clearly established, petitioners are entitled to qualified immunity. We therefore reverse the judgment of the Court of Appeals. It is so ordered. Footnote 1 See Harlow v. Fitzgerald, 457 U. S. 800, 818, and n. 30 (1982) (noting that the Court’s decisions equate the qualified immunity of state officials sued under 42 U. S. C. §1983 with the immunity of federal officers sued directly under the Constitution). Footnote 2 In Bunting, the Court of Appeals followed the Saucier two-step protocol and first held that the Virginia Military Institute’s use of the word “God” in a “supper roll call” ceremony violated the Establishment Clause, but then granted the defendants qualified immunity because the law was not clearly established at the relevant time. Mellen v. Bunting, 327 F. 3d 355, 365–376 (CA4 2003), cert. denied, 541 U. S. 1019 (2004). Although they had a judgment in their favor below, the defendants asked this Court to review the adverse constitutional ruling. Dissenting from the denial of certiorari, Justice Scalia, joined by Chief Justice Rehnquist, criticized “a perceived procedural tangle of the Court’s own making.” 541 U. S., at 1022. The “tangle” arose from the Court’s “ ‘settled refusal’ to entertain an appeal by a party on an issue as to which he prevailed” below, a practice that insulates from review adverse merits decisions that are “locked inside” favorable qualified immunity rulings. Id., at 1023, 1024. |
555.US.2008_07-665 | Pioneer Park (Park), a public park in petitioner Pleasant Grove City (City), has at least 11 permanent, privately donated displays, including a Ten Commandments monument. In rejecting the request of respondent Summum, a religious organization, to erect a monument containing the Seven Aphorisms of Summum, the City explained that it limited Park monuments to those either directly related to the City’s history or donated by groups with longstanding community ties. After the City put that policy and other criteria into writing, respondent renewed its request, but did not describe the monument’s historical significance or respondent’s connection to the community. The City rejected the request, and respondent filed suit, claiming that the City and petitioner officials had violated the First Amendment’s Free Speech Clause by accepting the Ten Commandments monument but rejecting respondent’s proposed monument. The District Court denied respondent’s preliminary injunction request, but the Tenth Circuit reversed. Noting that it had previously found the Ten Commandments monument to be private rather than government speech and that public parks have traditionally been regarded as public forums, the court held that, because the exclusion of the monument was unlikely to survive strict scrutiny, the City was required to erect it immediately. Held: The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. Pp. 4–18. (a) Because that Clause restricts government regulation of private speech but not government speech, whether petitioners were engaging in their own expressive conduct or providing a forum for private speech determines which precedents govern here. Pp. 4–7. (1) A government entity “is entitled to say what it wishes,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833, and to select the views that it wants to express, see, e.g., Rust v. Sullivan, 500 U. S. 173, 194. It may exercise this same freedom when it receives private assistance for the purpose of delivering a government-controlled message. See Johanns v. Livestock Marketing Assn., 544 U. S. 550, 562. This does not mean that there are no restraints on government speech. For example, government speech must comport with the Establishment Clause. In addition, public officials’ involvement in advocacy may be limited by law, regulation, or practice; and a government entity is ultimately “accountable to the electorate and the political process for its advocacy,” Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235. Pp. 4–6. (2) In contrast, government entities are strictly limited in their ability to regulate private speech in “traditional public fora.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 800. Reasonable time, place, and manner restrictions are allowed, see Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45, but content-based restrictions must satisfy strict scrutiny, i.e., they must be narrowly tailored to serve a compelling government interest, see Cornelius, supra, at 800. Restrictions based on viewpoint are also prohibited. Carey v. Brown, 447 U. S. 455, 463. Government restrictions on speech in a “designated public forum” are subject to the same strict scrutiny as restrictions in a traditional public forum. Cornelius, supra, at 800. And where government creates a forum that is limited to use by certain groups or dedicated to the discussion of certain subjects, Perry Ed. Assn., supra, at 46, n. 7, it may impose reasonable and viewpoint-neutral restrictions, see Good News Club v. Milford Central School, 533 U. S. 98, 106–107. Pp. 6–7. (b) Permanent monuments displayed on public property typically represent government speech. Governments have long used monuments to speak to the public. Thus, a government-commissioned and government-financed monument placed on public land constitutes government speech. So, too, are privately financed and donated monuments that the government accepts for public display on government land. While government entities regularly accept privately funded or donated monuments, their general practice has been one of selective receptivity. Because city parks play an important role in defining the identity that a city projects to its residents and the outside world, cities take care in accepting donated monuments, selecting those that portray what the government decisionmakers view as appropriate for the place in question, based on esthetics, history, and local culture. The accepted monuments are meant to convey and have the effect of conveying a government message and thus constitute government speech. Pp. 7–10. (c) Here, the Park’s monuments clearly represent government speech. Although many were donated in completed form by private entities, the City has “effectively controlled” their messages by exercising “final approval authority” over their selection. Johanns, supra, at 560–561. The City has selected monuments that present the image that the City wishes to project to Park visitors; it has taken ownership of most of the monuments in the Park, including the Ten Commandments monument; and it has now expressly set out selection criteria. P. 10. (d) Respondent’s legitimate concern that the government speech doctrine not be used as a subterfuge for favoring certain viewpoints does not mean that a government entity should be required to embrace publicly a privately donated monument’s “message” in order to escape Free Speech Clause restrictions. A city engages in expressive conduct by accepting and displaying a privately donated monument, but it does not necessarily endorse the specific meaning that any particular donor sees in the monument. A government’s message may be altered by the subsequent addition of other monuments in the same vicinity. It may also change over time. Pp. 10–15. (e) “[P]ublic forum principles … are out of place in the context of this case.” United States v. American Library Assn., Inc., 539 U. S. 194, 205. The forum doctrine applies where a government property or program is capable of accommodating a large number of public speakers without defeating the essential function of the land or program, but public parks can accommodate only a limited number of permanent monuments. If governments must maintain viewpoint neutrality in selecting donated monuments, they must either prepare for cluttered parks or face pressure to remove longstanding and cherished monuments. Were public parks considered traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations. And if forum analysis would lead almost inexorably to closing of the forum, forum analysis is out of place. Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, distinguished. Pp. 15–18. 483 F. 3d 1044, reversed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Breyer, J., filed a concurring opinion. Souter, J., filed an opinion concurring in the judgment. | This case presents the question whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected. The Court of Appeals held that the municipality was required to accept the monument because a public park is a traditional public forum. We conclude, however, that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. I A Pioneer Park (or Park) is a 2.5 acre public park located in the Historic District of Pleasant Grove City (or City) in Utah. The Park currently contains 15 permanent displays, at least 11 of which were donated by private groups or individuals. These include an historic granary, a wishing well, the City’s first fire station, a September 11 monument, and a Ten Commandments monument donated by the Fraternal Order of Eagles in 1971. Respondent Summum is a religious organization founded in 1975 and headquartered in Salt Lake City, Utah. On two separate occasions in 2003, Summum’s president wrote a letter to the City’s mayor requesting permission to erect a “stone monument,” which would contain “the Seven Aphorisms of SUMMUM”[Footnote 1] and be similar in size and nature to the Ten Commandments monument. App. 57, 59. The City denied the requests and explained that its practice was to limit monuments in the Park to those that “either (1) directly relate to the history of Pleasant Grove, or (2) were donated by groups with longstanding ties to the Pleasant Grove community.” Id., at 61. The following year, the City passed a resolution putting this policy into writing. The resolution also mentioned other criteria, such as safety and esthetics. In May 2005, respondent’s president again wrote to the mayor asking to erect a monument, but the letter did not describe the monument, its historical significance, or Summum’s connection to the community. The city council rejected this request. B In 2005, respondent filed this action against the City and various local officials (petitioners), asserting, among other claims, that petitioners had violated the Free Speech Clause of the First Amendment by accepting the Ten Commandments monument but rejecting the proposed Seven Aphorisms monument. Respondent sought a preliminary injunction directing the City to permit Summum to erect its monument in Pioneer Park. After the District Court denied Summum’s preliminary injunction request, No. 2:05CV00638, 2006 WL 3421838 (D Utah, Nov. 22, 2006), respondent appealed, pressing solely its free speech claim. A panel of the Tenth Circuit reversed. 483 F. 3d 1044 (2007). The panel noted that it had previously found the Ten Commandments monument to be private rather than government speech. See Summum v. Ogden, 297 F. 3d 995 (2002). Noting that public parks have traditionally been regarded as public forums, the panel held that the City could not reject the Seven Aphorisms monument unless it had a compelling justification that could not be served by more narrowly tailored means. See 483 F. 3d, at 1054. The panel then concluded that the exclusion of respondent’s monument was unlikely to survive this strict scrutiny, and the panel therefore held that the City was required to erect Summum’s monument immediately. The Tenth Circuit denied the City’s petition for rehearing en banc by an equally divided vote. 499 F. 3d 1170 (2007). Judge Lucero dissented, arguing that the Park was not a traditional public forum for the purpose of displaying monuments. Id., at 1171. Judge McConnell also dissented, contending that the monuments in the Park constitute government speech. Id., at 1174. We granted certiorari, 552 U. S. ___ (2008), and now reverse. II No prior decision of this Court has addressed the application of the Free Speech Clause to a government entity’s acceptance of privately donated, permanent monuments for installation in a public park, and the parties disagree sharply about the line of precedents that governs this situation. Petitioners contend that the pertinent cases are those concerning government speech. Respondent, on the other hand, agrees with the Court of Appeals panel that the applicable cases are those that analyze private speech in a public forum. The parties’ fundamental disagreement thus centers on the nature of petitioners’ conduct when they permitted privately donated monuments to be erected in Pioneer Park. Were petitioners engaging in their own expressive conduct? Or were they providing a forum for private speech? A If petitioners were engaging in their own expressive conduct, then the Free Speech Clause has no application. The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. See Johanns v. Livestock Marketing Assn., 544 U. S. 550, 553 (2005) (“[T]he Government’s own speech . . . is exempt from First Amendment scrutiny”); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 139, n. 7 (1973) (Stewart, J., concurring) (“Government is not restrained by the First Amendment from controlling its own expression”). A government entity has the right to “speak for itself.” Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229 (2000). “[I]t is entitled to say what it wishes,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995), and to select the views that it wants to express. See Rust v. Sullivan, 500 U. S. 173, 194 (1991); National Endowment for Arts v. Finley, 524 U. S. 569, 598 (1998) (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view”). Indeed, it is not easy to imagine how government could function if it lacked this freedom. “If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed.” Keller v. State Bar of Cal., 496 U. S. 1, 12–13 (1990). See also Johanns, 544 U. S., at 574 (Souter, J., dissenting) (“To govern, government has to say something, and a First Amendment heckler’s veto of any forced contribution to raising the government’s voice in the ‘marketplace of ideas’ would be out of the question” (footnote omitted)). A government entity may exercise this same freedom to express its views when it receives assistance from private sources for the purpose of delivering a government-controlled message. See id., at 562 (opinion of the Court) (where the government controls the message, “it is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources”); Rosenberger, supra, at 833 (a government entity may “regulate the content of what is or is not expressed … when it enlists private entities to convey its own message”). This does not mean that there are no restraints on government speech. For example, government speech must comport with the Establishment Clause. The involvement of public officials in advocacy may be limited by law, regulation, or practice. And of course, a government entity is ultimately “accountable to the electorate and the political process for its advocacy.” Southworth, 529 U. S., at 235. “If the citizenry objects, newly elected officials later could espouse some different or contrary position.” Ibid. B While government speech is not restricted by the Free Speech Clause, the government does not have a free hand to regulate private speech on government property. This Court long ago recognized that members of the public retain strong free speech rights when they venture into public streets and parks, “which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ” Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (1983) (quoting Hague v. Committee for Industrial Organization, 307 U. S. 496, 515 (1939) (opinion of Roberts, J.)). In order to preserve this freedom, government entities are strictly limited in their ability to regulate private speech in such “traditional public fora.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 800 (1985). Reasonable time, place, and manner restrictions are allowed, see Perry Ed. Assn., supra, at 45, but any restriction based on the content of the speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest, see Cornelius, supra, at 800, and restrictions based on viewpoint are prohibited, see Carey v. Brown, 447 U. S. 455, 463 (1980). With the concept of the traditional public forum as a starting point, this Court has recognized that members of the public have free speech rights on other types of government property and in certain other government programs that share essential attributes of a traditional public forum. We have held that a government entity may create “a designated public forum” if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose. See Cornelius, 473 U. S., at 802. Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum. Id., at 800. The Court has also held that a government entity may create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects. Perry Ed. Assn., supra, at 46, n. 7. In such a forum, a government entity may impose restrictions on speech that are reasonable and viewpoint-neutral. See Good News Club v. Milford Central School, 533 U. S. 98, 106–107 (2001). III There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation. Permanent monuments displayed on public property typically represent government speech. Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure. Neither the Court of Appeals nor respondent disputes the obvious proposition that a monument that is commissioned and financed by a government body for placement on public land constitutes government speech. Just as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land. It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated. And because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner’s behalf. In this context, there is little chance that observers will fail to appreciate the identity of the speaker. This is true whether the monument is located on private property or on public property, such as national, state, or city park land. We think it is fair to say that throughout our Nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity. A great many of the monuments that adorn the Nation’s public parks were financed with private funds or donated by private parties. Sites managed by the National Park Service contain thousands of privately designed or funded commemorative objects, including the Statue of Liberty, the Marine Corps War Memorial (the Iwo Jima monument), and the Vietnam Veterans Memorial. States and cities likewise have received thousands of donated monuments. See, e.g., App. to Brief for International Municipal Lawyers Association as Amicus Curiae 15a–29a (hereinafter IMLA Brief) (listing examples); Brief for American Legion et al. as Amici Curiae 7, and n. 2 (same). By accepting monuments that are privately funded or donated, government entities save tax dollars and are able to acquire monuments that they could not have afforded to fund on their own. But while government entities regularly accept privately funded or donated monuments, they have exercised selectivity. An example discussed by the city of New York as amicus curiae is illustrative. In the wake of the controversy generated in 1876 when the city turned down a donated monument to honor Daniel Webster, the city adopted rules governing the acceptance of artwork for permanent placement in city parks, requiring, among other things, that “any proposed gift of art had to be viewed either in its finished condition or as a model before acceptance.” Brief for City of New York as Amicus Curiae 4–5 (hereinafter NYC Brief). Across the country, “municipalities generally exercise editorial control over donated monuments through prior submission requirements, design input, requested modifications, written criteria, and legislative approvals of specific content proposals.” IMLA Brief 21. Public parks are often closely identified in the public mind with the government unit that owns the land. City parks—ranging from those in small towns, like Pioneer Park in Pleasant Grove City, to those in major metropolises, like Central Park in New York City—commonly play an important role in defining the identity that a city projects to its own residents and to the outside world. Accordingly, cities and other jurisdictions take some care in accepting donated monuments. Government decisionmakers select the monuments that portray what they view as appropriate for the place in question, taking into account such content-based factors as esthetics, history, and local culture. The monuments that are accepted, therefore, are meant to convey and have the effect of conveying a government message, and they thus constitute government speech. IV A In this case, it is clear that the monuments in Pleasant Grove’s Pioneer Park represent government speech. Although many of the monuments were not designed or built by the City and were donated in completed form by private entities, the City decided to accept those donations and to display them in the Park. Respondent does not claim that the City ever opened up the Park for the placement of whatever permanent monuments might be offered by private donors. Rather, the City has “effectively controlled” the messages sent by the monuments in the Park by exercising “final approval authority” over their selection. Johanns, 544 U. S., at 560–561. The City has selected those monuments that it wants to display for the purpose of presenting the image of the City that it wishes to project to all who frequent the Park; it has taken ownership of most of the monuments in the Park, including the Ten Commandments monument that is the focus of respondent’s concern; and the City has now expressly set forth the criteria it will use in making future selections. B Respondent voices the legitimate concern that the government speech doctrine not be used as a subterfuge for favoring certain private speakers over others based on viewpoint. Respondent’s suggested solution is to require a government entity accepting a privately donated monument to go through a formal process of adopting a resolution publicly embracing “the message” that the monument conveys. See Brief for Respondent 33–34, 57. We see no reason for imposing a requirement of this sort. The parks of this country contain thousands of donated monuments that government entities have used for their own expressive purposes, usually without producing the sort of formal documentation that respondent now says is required to escape Free Speech Clause restrictions. Requiring all of these jurisdictions to go back and proclaim formally that they adopt all of these monuments as their own expressive vehicles would be a pointless exercise that the Constitution does not mandate. In this case, for example, although respondent argues that Pleasant Grove City has not adequately “controll[ed] the message,” id., at 31, of the Ten Commandments monument, the City took ownership of that monument and put it on permanent display in a park that it owns and manages and that is linked to the City’s identity. All rights previously possessed by the monument’s donor have been relinquished. The City’s actions provided a more dramatic form of adoption than the sort of formal endorsement that respondent would demand, unmistakably signifying to all Park visitors that the City intends the monument to speak on its behalf. And the City has made no effort to abridge the traditional free speech rights—the right to speak, distribute leaflets, etc.—that may be exercised by respondent and others in Pioneer Park. What respondent demands, however, is that the City “adopt” or “embrace” “the message” that it associates with the monument. Id., at 33–34, 57. Respondent seems to think that a monument can convey only one “message”—which is, presumably, the message intended by the donor—and that, if a government entity that accepts a monument for placement on its property does not formally embrace that message, then the government has not engaged in expressive conduct. This argument fundamentally misunderstands the way monuments convey meaning. The meaning conveyed by a monument is generally not a simple one like “ ‘Beef. It’s What’s for Dinner.’ ” Johanns, supra, at 554. Even when a monument features the written word, the monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways. Monuments called to our attention by the briefing in this case illustrate this phenomenon. What, for example, is “the message” of the Greco-Roman mosaic of the word “Imagine” that was donated to New York City’s Central Park in memory of John Lennon? See NYC Brief 18; App. to id., at A5. Some observers may “imagine” the musical contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and may “imagine” a world without religion, countries, possessions, greed, or hunger.[Footnote 2] Or, to take another example, what is “the message” of the “large bronze statue displaying the word ‘peace’ in many world languages” that is displayed in Fayetteville, Arkansas?[Footnote 3] These text-based monuments are almost certain to evoke different thoughts and sentiments in the minds of different observers, and the effect of monuments that do not contain text is likely to be even more variable. Consider, for example, the statue of Pancho Villa that was given to the city of Tucson, Arizona, in 1981 by the Government of Mexico with, according to a Tucson publication, “a wry sense of irony.”[Footnote 4] Does this statue commemorate a “revolutionary leader who advocated for agrarian reform and the poor” or “a violent bandit”? IMLA Brief 13. Contrary to respondent’s apparent belief, it frequently is not possible to identify a single “message” that is conveyed by an object or structure, and consequently, the thoughts or sentiments expressed by a government entity that accepts and displays such an object may be quite different from those of either its creator or its donor.[Footnote 5] By accepting a privately donated monument and placing it on city property, a city engages in expressive conduct, but the intended and perceived significance of that conduct may not coincide with the thinking of the monument’s donor or creator. Indeed, when a privately donated memorial is funded by many small donations, the donors themselves may differ in their interpretation of the monument’s significance.[Footnote 6] By accepting such a monument, a government entity does not necessarily endorse the specific meaning that any particular donor sees in the monument. The message that a government entity conveys by allowing a monument to remain on its property may also be altered by the subsequent addition of other monuments in the same vicinity. For example, following controversy over the original design of the Vietnam Veterans Memorial, a compromise was reached that called for the nearby addition of a flagstaff and bronze Three Soldiers statue, which many believed changed the overall effect of the memorial. See, e.g., J. Mayo, War Memorials as Political Landscape: The American Experience and Beyond 202–203, 205 (1988); K. Hass, Carried to the Wall: American Memory and the Vietnam Veterans Memorial 15–18 (1998). The “message” conveyed by a monument may change over time. A study of war memorials found that “people reinterpret” the meaning of these memorials as “historical interpretations” and “the society around them changes.” Mayo, supra, at 8–9. A striking example of how the interpretation of a monument can evolve is provided by one of the most famous and beloved public monuments in the United States, the Statue of Liberty. The statue was given to this country by the Third French Republic to express republican solidarity and friendship between the two countries. See J. Res. 6, 44th Cong., 2d Sess. (1877), 19 Stat. 410 (accepting the statue as an “expressive and felicitous memorial of the sympathy of the citizens of our sister Republic”). At the inaugural ceremony, President Cleveland saw the statue as an emblem of international friendship and the widespread influence of American ideals. See Inauguration of the Statue of Liberty Enlightening the World 30 (1887). Only later did the statue come to be viewed as a beacon welcoming immigrants to a land of freedom. See Public Papers of the Presidents, Ronald Reagan, Vol. 2, July 3, 1986, pp. 918–919 (1989), Remarks at the Opening Ceremonies of the Statue of Liberty Centennial Celebration in New York, New York; J. Higham, The Transformation of the Statue of Liberty, in Send These To Me 74–80 (rev. ed. 1984). C Respondent and the Court of Appeals analogize the installation of permanent monuments in a public park to the delivery of speeches and the holding of marches and demonstrations, and they thus invoke the rule that a public park is a traditional public forum for these activities. But “public forum principles . . . are out of place in the context of this case.” United States v. American Library Assn., Inc., 539 U. S. 194, 205 (2003). The forum doctrine has been applied in situations in which government-owned property or a government program was capable of accommodating a large number of public speakers without defeating the essential function of the land or the program. For example, a park can accommodate many speakers and, over time, many parades and demonstrations. The Combined Federal Campaign permits hundreds of groups to solicit donations from federal employees. See Cornelius, 473 U. S., at 804–805. A public university’s student activity fund can provide money for many campus activities. See Rosenberger, 515 U. S., at 825. A public university’s buildings may offer meeting space for hundreds of student groups. See Widmar v. Vincent, 454 U. S. 263, 274–275 (1981). A school system’s internal mail facilities can support the transmission of many messages to and from teachers and school administrators. See Perry Ed. Assn., 460 U. S., at 39, 46–47. See also Arkansas Ed. Television Comm’n v. Forbes, 523 U. S. 666, 680–681 (1998) (noting that allowing any candidate to participate in a televised political debate would be burdensome on “logistical grounds” and “would result in less speech, not more”). By contrast, public parks can accommodate only a limited number of permanent monuments. Public parks have been used, “ ‘time out of mind, . . . for purposes of assembly, communicating thoughts between citizens, and discussing public questions,’ ” Perry Ed. Assn., supra, at 45 (quoting Hague, 307 U. S., at 515), but “one would be hard pressed to find a ‘long tradition’ of allowing people to permanently occupy public space with any manner of monuments.” 499 F. 3d, at 1173 (Lucero, J., dissenting from denial of rehearing en banc). Speakers, no matter how long-winded, eventually come to the end of their remarks; persons distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure. They monopolize the use of the land on which they stand and interfere permanently with other uses of public space. A public park, over the years, can provide a soapbox for a very large number of orators—often, for all who want to speak—but it is hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression. Respondent contends that this issue “can be dealt with through content-neutral time, place and manner restrictions, including the option of a ban on all unattended displays.” Brief for Respondent 14. On this view, when France presented the Statue of Liberty to the United States in 1884, this country had the option of either (a) declining France’s offer or (b) accepting the gift, but providing a comparable location in the harbor of New York for other statues of a similar size and nature (e.g., a Statue of Autocracy, if one had been offered by, say, the German Empire or Imperial Russia). While respondent and some of its amici deride the fears expressed about the consequences of the Court of Appeals holding in this case, those concerns are well founded. If government entities must maintain viewpoint neutrality in their selection of donated monuments, they must either “brace themselves for an influx of clutter” or face the pressure to remove longstanding and cherished monuments. See 499 F. 3d, at 1175 (McConnell, J., dissenting from denial of rehearing en banc). Every jurisdiction that has accepted a donated war memorial may be asked to provide equal treatment for a donated monument questioning the cause for which the veterans fought. New York City, having accepted a donated statue of one heroic dog (Balto, the sled dog who brought medicine to Nome, Alaska, during a diphtheria epidemic)[Footnote 7] may be pressed to accept monuments for other dogs who are claimed to be equally worthy of commemoration. The obvious truth of the matter is that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations. And where the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place. Respondent compares the present case to Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 (1995), but that case involved a very different situation—a request by a private group, the Ku Klux Klan, to erect a cross for a period of 16 days on public property that had been opened up for similar temporary displays, including a Christmas tree and a menorah. See id., at 758. Although some public parks can accommodate and may be made generally available for temporary private displays, the same is rarely true for permanent monuments. To be sure, there are limited circumstances in which the forum doctrine might properly be applied to a permanent monument—for example, if a town created a monument on which all of its residents (or all those meeting some other criterion) could place the name of a person to be honored or some other private message. But as a general matter, forum analysis simply does not apply to the installation of permanent monuments on public property. V In sum, we hold that the City’s decision to accept certain privately donated monuments while rejecting respondent’s is best viewed as a form of government speech. As a result, the City’s decision is not subject to the Free Speech Clause, and the Court of Appeals erred in holding otherwise. We therefore reverse. It is so ordered. Footnote 1 Respondent’s brief describes the church and the Seven Aphorisms as follows: “The Summum church incorporates elements of Gnostic Christianity, teaching that spiritual knowledge is experiential and that through devotion comes revelation, which ‘modifies human perceptions, and transfigures the individual.’ See The Teachings of Summum are the Teachings of Gnostic Christianity, http://www.summum.us/philosophy/ gnosticism.shtml (visited Aug. 15, 2008). “Central to Summum religious belief and practice are the Seven Principles of Creation (the “Seven Aphorisms”). According to Summum doctrine, the Seven Aphorisms were inscribed on the original tablets handed down by God to Moses on Mount Sinai… . Because Moses believed that the Israelites were not ready to receive the Aphorisms, he shared them only with a select group of people. In the Summum Exodus account, Moses then destroyed the original tablets, traveled back to Mount Sinai, and returned with a second set of tablets con- taining the Ten Commandments. See The Aphorisms of Summum and the Ten Commandments, http://www.summum.us/philosophy/ tencommandments.shtml (visited Aug. 15, 2008).” Brief for Respondent 1–2. Footnote 2 The lyrics are as follows: “Imagine there’s no heaven It’s easy if you try No hell below us Above us only sky Imagine all the people Living for today... “Imagine there’s no countries It isn’t hard to do Nothing to kill or die for And no religion too Imagine all the people Living life in peace... “You may say I’m a dreamer But I’m not the only one I hope someday you’ll join us And the world will be as one “Imagine no possessions I wonder if you can No need for greed or hunger A brotherhood of man Imagine all the people Sharing all the world... “You may say I’m a dreamer But I’m not the only one I hope someday you’ll join us And the world will live as one.” J. Lennon, Imagine, on Imagine (Apple Records 1971). Footnote 3 See IMLA Brief 6–7. Footnote 4 The Presidio Trail: A Historical Walking Tour of Downtown Tucson, online at http://www.visittucson.org/includes/media/docs/ DowntownTour.pdf. Footnote 5 Museum collections illustrate this phenomenon. Museums display works of art that express many different sentiments, and the significance of a donated work of art to its creator or donor may differ markedly from a museum’s reasons for accepting and displaying the work. For example, a painting of a religious scene may have been commissioned and painted to express religious thoughts and feelings. Even if the painting is donated to the museum by a patron who shares those thoughts and feelings, it does not follow that the museum, by displaying the painting, intends to convey or is perceived as conveying the same “message.” Footnote 6 For example, the Vietnam Veterans Memorial Fund is a private organization that obtained funding from over 650,000 donors for the construction of the memorial itself. These donors expressed a wide range of personal sentiments in contributing money for the memorial. See, e.g., J. Scruggs & J. Swerdlow, To Heal a Nation: The Vietnam Veterans Memorial 23–28, 159 (1985). Footnote 7 See NYC Brief 2; App. to Brief for American Catholic Lawyers Association as Amicus Curiae 1a–10. |
557.US.2008_08-310 | A Valdez, Alaska, ordinance that imposes a personal property tax on certain boats and vessels contains exceptions which, in effect, largely limit its applicability to large oil tankers. Petitioner Polar Tankers, Inc., whose vessels transport crude oil from the Port of Valdez to refineries in other States, challenged the ordinance in state court, claiming (1) that the tax was unconstitutional under Art. I, §10, cl. 3, which forbids a “State … without the Consent of Congress, [to] lay any Duty of Tonnage,” and (2) that the tax’s value-allocation method violated the Commerce and Due Process Clauses. The court rejected the Tonnage Clause claim, but accepted the Commerce Clause and Due Process Clause claim. On appeal, the State Supreme Court upheld the tax, finding that because it was a value-based property tax, the tax was not a duty of tonnage. The State Supreme Court also held the allocation method was fair and thus valid under the Commerce and Due Process Clauses. Held: The judgment is reversed, and the case is remanded. 182 P. 3d 614, reversed and remanded. Justice Breyer delivered the opinion of the Court with respect to Parts I, II–A, and II–B–1, concluding that Valdez’s tax violates the Tonnage Clause. Consequently, Polar Tankers’ alternative Commerce Clause and Due Process Clause arguments need not be considered. Pp. 3–8. (a) This Court has consistently interpreted the language of the Tonnage Clause in light of its purpose, which mirrors the intent of other constitutional provisions that seek to restrain the States from exercising the taxing power in a way that is injurious to the interests of other States. The Clause seeks to prevent States from nullifying Art. I, §10, cl. 2’s prohibition against import and export duties by taxing “the vessels transporting the merchandise.” Clyde Mallory Lines v. Alabama ex rel. State Docks Comm’n, 296 U. S. 261, 265. It also reflects an effort to diminish a State’s ability to obtain tax advantages based on its favorable geographic position. Because the Clause forbids a State to “do that indirectly which she is forbidden … to do directly,” Passenger Cases, 7 How. 283, 458, the “prohibition against tonnage duties has been deemed to embrace all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port,” Clyde Mallory Lines, supra, at 265–266. Pp. 3–6. (b) This case lies at the heart of what the Tonnage Clause forbids. The ordinance seems designed to impose “a charge for the privilege of entering, trading in, or lying in a port.” The tax applies almost exclusively to oil tankers, but to no other form of personal property. An oil tanker can be subject to the tax based on a single entry into the port. Moreover, the tax is closely correlated with cargo capacity. Contrary to Valdez’s argument, the fact that the tax is designed to raise revenue for general municipal services argues for, not against, application of the Clause. Pp. 6–8. Justice Breyer, joined by Justice Scalia, Justice Kennedy, and Justice Ginsburg, rejected, in Part II–B–2, Valdez’s claim that, under State Tonnage Tax Cases, 12 Wall. 204, its tax is “not within the prohibition of the Constitution,” because it is “levied … upon ships … as property, based on a valuation of the same as property,” id., at 213 (emphasis deleted). This Court later made clear that the “prohibition” against tonnage duties “comes into play” where vessels “are not taxed in the same manner as the other property of the citizens,” Transportation Co. v. Wheeling, 99 U. S. 273, 284. This qualification, important in light of the Clause’s purpose, means that, in order to fund services by taxing ships, a State must also impose similar taxes upon other businesses. Valdez fails to satisfy this requirement. The Court can find little, if any, other personal property that Valdez taxes. Because its value-related property tax on mobile homes, trailers, and recreational vehicles applies only if they are “affixed” to a particular site, it taxes those vehicles as a form of real, not personal, property. Valdez also claims that its ship tax is simply another form of a value-based tax on oil-related property provided by state law. But Valdez’s tax, a purely a municipal tax, differs from the tax on other oil-related property, which is primarily a state-level tax, in several ways. As a result of these differences, an ordinary oil-related business finding the tax on its movable property too burdensome must complain to the State, which is in charge of setting the manner of assessment and valuation. At the same time, an oil tanker finding its vessel tax too burdensome must complain to Valdez, for the State has nothing to do with that tax’s rate, valuation, or assessment. There is also no effective electorate-related check on Valdez’s vessel-taxing power comparable to the check available when a property tax is more broadly imposed. Valdez’s property tax hits only ships; it is not constrained by any need to treat ships and other business property alike. Thus, Valdez’s tax lacks the safeguards implied by this Court’s statements that a property tax on ships escapes the Tonnage Clause’s scope only when that tax is imposed upon ships “in the same manner” as it is imposed on other forms of property. Pp. 8–13. The Chief Justice, joined by Justice Thomas, agreed that Valdez’s tax is unconstitutional, but concluded that the city’s argument that its tax may be sustained as a property tax similar to ones the city imposes on other property should be rejected because an unconstitutional tax on maritime commerce does not become permissible when bundled with taxes on other activities or property. Pp. 1–3. Justice Alito agreed that Valdez’s tax is unconstitutional, but concluded that the tax is an unconstitutional duty of tonnage even if the Tonnage Clause permits a true, evenhanded property tax to be applied to vessels. P. 1. Breyer, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, and II–B–1, in which Scalia, Kennedy, Ginsburg, and Alito, JJ., joined, and an opinion with respect to Part II–B–2, in which Scalia, Kennedy, and Ginsburg, JJ., joined. Roberts, C. J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Souter, J., joined. | of the Court with respect to Parts I, II–A, and II–B–1, and an opinion with respect to Part II–B–2, in which Justice Scalia, Justice Kennedy, and Justice Ginsburg join. The Constitution forbids a “State . . . without the Consent of Congress, [to] lay any Duty of Tonnage.” Art. I, §10, cl. 3. The city of Valdez, Alaska, has enacted an ordinance that imposes a personal property tax upon the value of large ships that travel to and from that city. We hold that the ordinance violates the Clause. I In 1999, the city of Valdez, Alaska (City), adopted an ordinance imposing a personal property tax upon “[b]oats and vessels of at least 95 feet in length” that regularly travel to the City, are kept or used within the City, or which annually take on at least $1 million worth of cargo or engage in other business transactions of comparable value in the City. Valdez Ordinance No. 99–17 (1999) (codified as Valdez Municipal Code §3.12.020 (2008)). The ordinance contains exceptions that, in effect, limit the tax’s applicability primarily to large oil tankers. Ibid. And the City applies the tax in accordance with a value-allocation system that adjusts the amount owed downwards insofar as the tankers spend time in other ports. Valdez, Alaska Resolution No. 00–15, App. to Pet. for Cert. 53a–56a. Polar Tankers, Inc., a subsidiary of ConocoPhillips, owns vessels that transport crude oil from a terminal in the Port of Valdez (located at the southern end of the Trans Alaska Pipeline System) to refineries in California, Hawaii, and Washington. In August 2000, Polar Tankers filed a lawsuit in Alaska Superior Court challenging the tax as unconstitutional. Polar Tankers argued that the tax effectively imposed a fee on certain vessels for the privilege of entering the port; hence it amounted to a constitutionally forbidden “Duty of Tonnage.” It also argued that the tax calculation method (as applied to vessels with a tax situs elsewhere) violated the Commerce and Due Process Clauses by failing to take account of the time a ship spent at sea or being serviced or repaired. Polar Tankers said that the method thereby overstated the percentage of the ship’s total earning capacity reasonably allocated to time spent in the Port of Valdez. The Alaska Superior Court rejected the Tonnage Clause claim, but it accepted the Commerce Clause and Due Process Clause claim. And, for that reason, it held the tax unconstitutional. On appeal, the Alaska Supreme Court, rejecting both claims, upheld the tax. In respect to the Tonnage Clause claim, the Supreme Court noted that Valdez’s tax was a value-based property tax designed to pay for “services available to all taxpayers in the city,” including Polar Tankers; and it concluded that “a charge based on the value of property is not a duty of tonnage.” 182 P. 3d 614, 623 (2008) (citing Transportation Co. v. Wheeling, 99 U. S. 273 (1879)). In respect to the Commerce Clause and Due Process Clause claim, the Supreme Court held that Valdez’s allocation method was fair, hence constitutional. 182 P. 3d, at 617–622. Polar Tankers asked us to review the Alaska Supreme Court’s determination. And we granted its petition in order to do so. II A We begin, and end, with Polar Tankers’ Tonnage Clause claim. We hold that Valdez’s tax is unconstitutional because it violates that Clause. And we consequently need not consider Polar Tankers’ alternative Commerce Clause and Due Process Clause argument. When the Framers originally wrote the Tonnage Clause, the words it uses, “Duty of Tonnage,” referred in commercial parlance to “a duty” imposed upon a ship, which duty varies according to “the internal cubic capacity of a vessel,” i.e., its tons of carrying capacity. Clyde Mallory Lines v. Alabama ex rel. State Docks Comm’n, 296 U. S. 261, 265 (1935) (citing Inman S. S. Co. v. Tinker, 94 U. S. 238, 243 (1877)); see also T. Cooley, Constitutional Limitations 596 (6th ed. 1890). Over a century ago, however, this Court found that the Framers intended those words to refer to more than “a duty” that sets a “certain rate on each ton” of capacity. Steamship Co. v. Portwardens, 6 Wall. 31, 34 (1867). The Court over the course of many years has consistently interpreted the language of the Clause in light of its purpose, a purpose that mirrors the intent of other constitutional provisions which, like the Tonnage Clause itself, seek to “restrai[n] the states themselves from the exercise” of the taxing power “injuriously to the interests of each other.” J. Story, Commentaries on the Constitution of the United States §497, p. 354 (1833) (abridged version). Article I, §10, cl. 2, for example, forbids States to “lay any Imposts or Duties on Imports or Exports.” It thereby seeks to prevent states with “convenient ports” from placing other States at an economic disadvantage by laying levies that would “ta[x] the consumption of their neighbours.” 3 Records of the Federal Convention of 1787, pp. 542, 519 (M. Farrand rev. 1966) (reprinting James Madison, Preface to Debates in the Convention of 1787 and letter from James Madison to Professor Davis, 1832). The coastal States were not to “take advantage of their favorable geographical position in order to exact a price for the use of their ports from the consumers dwelling in less advantageously situated parts of the country.” Youngstown Sheet & Tube Co. v. Bowers, 358 U. S. 534, 556–557 (1959) (Frankfurter, J., dissenting). In writing the Tonnage Clause, the Framers recognized that, if “the states had been left free to tax the privilege of access by vessels to their harbors the prohibition against duties on imports and exports could have been nullified by taxing the vessels transporting the merchandise.” Clyde Mallory Lines, supra, at 265. And the Court has understood the Tonnage Clause as seeking to prevent that nullification. See Steamship Co., supra, at 34–35; see also Packet Co. v. Keokuk, 95 U. S. 80, 87 (1877); Gibbons v. Ogden, 9 Wheat. 1, 202 (1824). It has also understood the Clause as reflecting an effort to diminish a State’s ability to obtain certain geographical vessel-related tax advantages whether the vessel in question transports goods between States and foreign nations or, as here, only between the States. Compare Inman, supra (invalidating a fee applied to ships engaged in foreign commerce), with Steamship Co., supra (invalidating a tax applied to ships engaged in interstate commerce). Interpreting the Clause in light of its “intent,” id., at 34, the Court has read its language as forbidding a State to “do that indirectly which she is forbidden . . . to do directly.” Passenger Cases, 7 How. 283, 458 (1849). Thus, the Court has said that the Clause, which literally forbids a State to “levy a duty or tax . . . graduated on the tonnage,” must also forbid a State to “effect the same purpose by merely changing the ratio, and graduating it on the number of masts, or of mariners, the size and power of the steam-engine, or the number of passengers which she carries.” Id., at 458–459. A State cannot take what would otherwise amount to a tax on the ship’s capacity and evade the Clause by calling that tax “a charge on the owner or supercargo,” thereby “justify[ing] this evasion of a great principle by producing a dictionary or a dictum to prove that a ship-captain is not a vessel, nor a supercargo an import.” Id., at 459. The Court has consequently stated that the Tonnage Clause prohibits, “not only a pro rata tax . . ., but any duty on the ship, whether a fixed sum upon its whole tonnage, or a sum to be ascertained by comparing the amount of tonnage with the rate of duty.” Steamship Co., supra, at 35. And, summarizing earlier cases while speaking for a unanimous Court, Justice Stone concluded that the “prohibition against tonnage duties has been deemed to embrace all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port.” Clyde Mallory Lines, supra, at 265–266. Cf. Cannon v. New Orleans, 20 Wall. 577 (1874) (invalidating a tax imposed on ships entering a port, which tax was graduated based on the ships’ capacity and length of stay); Inman, supra (invalidating a fee imposed on ships of a certain capacity that entered a port); Steamship Co., supra (invalidating a flat tax imposed on every ship that entered a port, regardless of the ship’s capacity). Although the Clause forbids all charges, whatever their form, that impose “a charge for the privilege of entering, trading in, or lying in a port,” nothing in the history of the adoption of the Clause, the purpose of the Clause, or this Court’s interpretation of the Clause suggests that it operates as a ban on any and all taxes which fall on vessels that use a State’s port, harbor, or other waterways. See post, at 1–2 (Roberts, C. J., concurring in part and concurring in judgment). Such a radical proposition would transform the Tonnage Clause from one that protects vessels, and their owners, from discrimination by seaboard States, to one that gives vessels preferential treatment vis-À-vis all other property, and its owners, in a seaboard State. The Tonnage Clause cannot be read to give vessels such “preferential treatment.” Cf. Michelin Tire Corp. v. Wages, 423 U. S. 276, 287 (1976) (noting, in a related context, that the Import-Export Clause “cannot be read to accord imported goods preferential treatment that permits escape from uniform taxes imposed without regard to foreign origin for services which the State supplies”). See also infra this page and 7–11. B 1 Does the tax before us impose “a charge for the privilege of entering, trading in, or lying in a port”? Certainly, the ordinance that imposes the tax would seem designed to do so. It says that the tax applies to ships that travel to (and leave) the City’s port regularly for business purposes, that are kept in the City’s port, that take on more than $1 million in cargo in that port, or that are involved in business transactions in that amount there. In practice, the tax applied in its first year to 28 vessels, of which 24 were oil tankers, 3 were tugboats, and 1 was a passenger cruise ship. App. 53. The ordinance applies the tax to no other form of personal property. See Valdez Municipal Code §3.12.030(A)(2) (2008). Moreover, the tax’s application and its amount depend upon the ship’s capacity. That is to say, the tax applies only to large ships (those at least 95 feet in length), while exempting small ones. See §3.12.020(A)(1). Nor can Valdez escape application of the Clause by claiming that the ordinance imposes, not a duty or a tax, but a fee or a charge for “services rendered” to a “vessel,” such as “pilotage,” “wharfage,” “medical inspection,” the “use of locks,” or the like. Clyde Mallory Lines, 296 U. S., at 266; see also Inman, 94 U. S., at 243. To the contrary, the ordinance creates a tax designed to raise revenue used for general municipal services. See 182 P. 3d, at 623; Valdez, Alaska Resolution No. 00–15, App. to Pet. for Cert. 53a–56a. Tonnage Clause precedent makes clear that, where a tax otherwise qualifies as a duty of tonnage, a general, revenue-raising purpose argues in favor of, not against, application of the Clause. See Steamship Co., 6 Wall., at 34. This case lies at the heart of what the Tonnage Clause forbids. The ordinance applies almost exclusively to oil tankers. And a tax on the value of such vessels is closely correlated with cargo capacity. Because the imposition of the tax depends on a factor related to tonnage and that tonnage-based tax is not for services provided to the vessel, it is unconstitutional. The dissent contends that the tax does not operate as “a charge for the privilege of entering, trading in, or lying in a port,” Clyde Mallory Lines, supra, at 265–266—that is, as an impermissible tonnage duty—because Valdez levies its tax only upon vessels that meet a “tax situs” requirement. See post, at 6–7 (opinion of Stevens, J.). But in this case, the distinction the dissent draws between tonnage duties and property taxes is a distinction without a difference. That is because to establish a tax situs under the tax challenged here, an oil tanker needs only to enter the port and load oil worth more than $1 million. And, as Polar Tankers notes, oil tankers routinely carry millions of barrels of oil at a time worth well in excess of $1 million. Reply Brief for Petitioner 6. Thus, by virtue of a single entry into the port, “trading” once in that port, or “lying” once in that port, a tanker automatically establishes a tax situs in Valdez. No one claims that this basis for establishing a tax situs is insufficient under the Constitution. After all, a nondomiciliary jurisdiction may constitutionally tax property when that property has a “substantial nexus” with that jurisdiction, and such a nexus is established when the taxpayer “avails itself of the substantial privilege of carrying on business” in that jurisdiction. See Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 441–445 (1979) (internal quotation marks omitted); Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S. 425, 437 (1980) (same); Quill Corp. v. North Dakota, 504 U. S. 298, 312 (1992). Here, the City identified the 28 vessels that were subject to the tax in the year 2000. But the City fails to point to a single oil tanker, or any vessel greater than 95 feet in length, that both entered the port and failed to establish a tax situs. See App. 53. What else is needed to show that a tax characterized as one on property may nevertheless function as a “charge for the privilege of entering . . . a port”? 2 Valdez does not deny that its tax operates much like a duty applied exclusively to ships. But, like the Alaska Supreme Court, it points to language in an earlier Court opinion explicitly stating that “[t]axes levied . . . upon ships . . . as property, based on a valuation of the same as property, are not within the prohibition of the Constitution.” State Tonnage Tax Cases, 12 Wall. 204, 213 (1871) (emphasis deleted); cf. 182 P. 3d, at 622, and n. 43. Valdez says that its tax is just such a value-related tax on personal property and consequently falls outside the scope of the Clause. Brief for Respondent 16–23. Our problem with this argument, however, is that the Court later made clear that the Clause does not apply to “taxation” of vessels “as property in the same manner as other personal property owned by citizens of the State.” “[W]here” vessels “are not taxed in the same manner as the other property of the citizens,” however, the “prohibition . . . comes into play.” Wheeling, 99 U. S., at 284 (emphasis added). Viewed in terms of the purpose of the Clause, this qualification is important. It means that, in order to fund services by taxing ships, a State must also impose similar taxes upon other businesses. And that fact may well operate as a check upon a State’s ability to impose a tax on ships at rates that reflect an effort to take economic advantage of the port’s geographically based position. After all, the presence of other businesses subject to the tax, particularly businesses owned and operated by state residents, threatens political concern and a potential ballot-box issue, were rates, say, to get out of hand. See Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299, 315 (1852); cf. South Carolina Highway Dept. v. Barnwell Brothers, Inc., 303 U. S. 177, 185, n. 2 (1938) (when state action affecting interstate commerce “is of such a character that its burden falls principally upon those without the state, legislative action is not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state”). Moreover, and at the very least, a “same manner” requirement helps to assure that a value-related property tax differs significantly from a graduated tax on a ship’s capacity and that the former is not simply a redesignation of the latter. See Packet Co., 95 U. S., at 88 (“ ‘It is the thing and not the name that is to be considered’ ” (quoting Cooley, supra, at 314)). In our view, Valdez fails to satisfy this requirement. It does not tax vessels “in the same manner as other personal property” of those who do business in Valdez. Wheeling, supra, at 284. We can find little, if any, other personal property that it taxes. According to the State of Alaska, Valdez specifically exempts from property taxation motor vehicles, aircraft, and other vehicles, as well as business machinery. See Dept. of Community and Economic Development, Division of Community and Business Development, Office of the State Assessor, Alaska Taxable 2001, p. 20 (Jan. 2002), (Table 4), online at http://www.commerce.state.ak.us/dca/Taxable/AKTaxable2001.pdf (as visited June 10, 2009, and available in Clerk of Court’s case file). We concede, as Valdez points out, that a different Valdez ordinance imposes what it characterizes as a value-based property tax on mobile homes, trailers, and recreational vehicles. Valdez Municipal Code §3.12.022 (2008); Brief for Respondent 24–25. But that same ordinance exempts those vehicles from its property tax unless they are “affixed” to a particular site. Hence, whatever words the City uses to describe the tax imposed on mobile homes, trailers, and recreational vehicles, Valdez in fact taxes those vehicles only when they constitute a form, not of personal property, but of real property (like a home). See §3.12.022 (providing that “trailers and mobile homes” are “subject to taxation” when they are classified as “real property”). Valdez also points to a separate City ordinance that imposes a tax “on all taxable property taxable under Alaska Statutes Chapter 43.56.” §3.28.010 (2008). The Alaska Statutes Chapter identifies as taxable “aircraft and motor vehicles” the operation of which “relates to” the “exploration for, production of, or pipeline transportation of gas or unrefined oil.” Alaska Stat. §43.56.210 (2008). Valdez claims that its tax on ships is simply another form of this value-related tax on oil-related property. Valdez did not make this claim in the lower courts, however. Nor does the State of Alaska (which has filed a brief in support of Valdez) support this particular claim. Brief for State of Alaska et al. as Amici Curiae 32–33. Thus, we lack the State’s explanation of just how the tax on oil-related vehicles works. And, lacking precise information, we might ordinarily decline to consider this claim. See, e.g., Clingman v. Beaver, 544 U. S. 581, 597–598 (2005). Nonetheless, the parties have argued the matter in their briefs here; and our deciding the matter now will reduce the likelihood of further litigation. We may make exceptions to our general approach to claims not raised below; and for these reasons we shall do so. See Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 39 (1989). Addressing the claim on the basis of the briefs and what we have gleaned from publicly available sources, we note that Valdez’s ship tax differs from the tax on other oil-related property in several ways. The former is a purely municipal tax. The City imposes it; the City alone determines what property is subject to the tax; the City establishes the rate of taxation; the City values the property; the City resolves evaluation disputes; the City issues assessment notices; the City collects the tax; and the City (as far as we can tell) keeps the revenue without any restrictions. See Valdez Municipal Code §3.12.020(A)(1) (2008); §3.12.060; §3.12.020(B); §§3.12.090–3.12.100; §3.12.210(A) (2001); Valdez, Alaska Resolution No. 00–15, App. to Pet. for Cert. 53a–56a. The latter is primarily a state-level tax. The State imposes it. In fact, Valdez’s city manager characterized the oil-property tax as involving “property taxed by the State . . . and [raising revenue] subsequently shared with the City.” App. 46 (affidavit of Dave Dengel). In addition, the State determines the type of property subject to the tax; the State forbids the municipality to exempt any property it designates as taxable; the State regulates the rate of taxation that may be applied to property it designates as taxable; the State issues assessment notices; the State resolves evaluation disputes; and the State, while permitting the municipality to set the precise tax rate and to collect the tax, imposes certain kinds of limits upon the amount of the resulting revenue that the municipality may raise that, in effect, provide a check against excessive rates. See Alaska Stat. §43.56.010(b) (2008); §43.56.210(5)(A); 15 Alaska Admin. Code §56.010 (2009); §§56.015–56.040; Alaska Stat. §§29.45.080(b), (c) (2008); §43.56.010(c). These differences matter. For one thing, they mean that any ordinary oil-related business, other than ships, that finds the tax imposed upon its movable property too burdensome must complain to the State, not to the City, for it is the State that is in charge of setting the manner of assessment and valuation. At the same time, an oil tanker that finds the vessel tax too burdensome must complain to the City, not to the State, for the State has nothing to do with the rate, valuation, or assessment of that particular tax. For another thing, they mean that there is no effective electorate-related check (comparable to the check available where a property tax is more broadly imposed) upon the City’s vessel-taxing power. The City’s property tax hits ships and only ships; it is not constrained by any need to treat ships and other business property alike. Taken together, these two considerations mean that Valdez’s property tax lacks the safeguards implied by this Court’s statements that a property tax on ships escapes the scope of the Tonnage Clause only when that tax is imposed upon ships “in the same manner” as it is imposed on other forms of property. The Chief Justice contends that a State may never impose a property tax on a vessel belonging to a citizen of another State, even if that vessel is taxed in the “same manner” as other personal property in the taxing state. See post, at 1–2 (opinion concurring in part and concurring in judgment). But, as The Chief Justice concedes, this Court held in the State Tonnage Tax Cases and Wheeling that vessels belonging to a State’s own citizens may be subject to a property tax when the vessels are taxed in the same manner as other personal property owned by citizens of that State. At the time those cases were decided, the home port doctrine was still in effect, which meant that vessels were taxable solely by the owner’s domicile State. Since the State Tonnage Tax Cases and Wheeling, the home port doctrine has been abandoned and States are now permitted to tax vessels belonging to citizens of other States that develop a tax situs in the nondomiciliary State, provided the tax is fairly apportioned. See, e.g., Ott v. Mississippi Valley Barge Line Co., 336 U. S. 169, 172–174 (1949); Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 442–443 (1979). Given this evolution in the law governing interstate taxation since our decisions in the State Tonnage Tax Cases and Wheeling, there is little reason to think that the ability of a State to tax vessels in the “same manner” as other personal property applies only to vessels owned by citizens of the taxing State. In any event, we need not decide this issue because it is clear that the vessels subject to the City’s ordinance are not taxed in the same manner as other personal property. As far as we can tell, then, Valdez applies a value-based personal property tax to ships and to no other property at all. It does so in order to obtain revenue for general city purposes. The tax, no less than a similar duty, may (depending upon rates) “ta[x] the consumption” of those in other states. See 3 Records of the Federal Convention of 1787, at 519 (reprinting letter from James Madison to Professor Davis, 1832). It is consequently the kind of tax that the Tonnage Clause forbids Valdez to impose without the consent of Congress, consent that Valdez lacks. * * * We conclude that the tax is unconstitutional. We reverse the contrary judgment of the Supreme Court of Alaska. And we remand the case for further proceedings. It is so ordered. |
556.US.2008_07-9712 | In exchange for petitioner Puckett’s guilty plea, the Government agreed to request (1) a three-level reduction in his offense level under the Federal Sentencing Guidelines on the ground that he had accepted responsibility for his crimes; and (2) a sentence at the low end of the applicable Guidelines range. The District Court accepted the plea, but before Puckett was sentenced he assisted in another crime. As a result, the Government opposed any reduction in Puckett’s offense level, and the District Court denied the three-level reduction. On appeal, Puckett raised for the first time the argument that by backing away from its reduction request, the Government had broken the plea agreement. The Fifth Circuit found that Puckett had forfeited that claim by failing to raise it below; applied Federal Rule of Criminal Procedure Rule 52(b)’s plain-error standard for unpreserved claims of error; and held that, although the error had occurred and was obvious, Puckett had not satisfied the third prong of plain-error analysis in that he failed to demonstrate that his ultimate sentence was affected, especially since the District Judge had found that acceptance-of-responsibility reductions for defendants who continued to engage in criminal activity were so rare as “to be unknown.” Held: Rule 52(b)’s plain-error test applies to a forfeited claim, like Puckett’s, that the Government failed to meet its obligations under a plea agreement, and applies in the usual fashion. Pp. 4–14. (a) In federal criminal cases, Rule 51(b) instructs parties how to preserve claims of error: “by informing the court—when [a] ruling … is made or sought—of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.” A party’s failure to preserve a claim ordinarily prevents him from raising it on appeal, but Rule 52(b) recognizes a limited exception for plain errors. “Plain-error review” involves four prongs: (1) there must be an error or defect that the appellant has not affirmatively waived, United States v. Olano, 507 U. S. 725, 732–733; (2) it must be clear or obvious, see id., at 734; (3) it must have affected the appellant’s substantial rights, i.e., “affected the outcome of the district court proceedings,” ibid.; and (4) if the three other prongs are satisfied, the court of appeals has the discretion to remedy the error if it “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,’ ” id., at 736. The question here is not whether plain-error review applies when a defendant fails to preserve a claim that the Government defaulted on its plea-agreement obligations, but what conceivable reason exists for disregarding its evident application. The breach undoubtedly violates the defendant’s rights, but the defendant has the opportunity to seek vindication of those rights in district court; if he fails to do so, Rule 52(b) as clearly sets forth the consequences for that forfeiture as it does for all others. Pp. 4–6. (b) Neither Puckett’s doctrinal arguments nor the practical considerations that he raises counsel against applying plain-error review in the present context. The Government’s breach of the plea agreement does not retroactively cause the defendant’s guilty plea to have been unknowing or involuntary. This Court’s decision in Santobello v. New York, 404 U. S. 257, does not govern, since the question whether an error can be found harmless is different from the question whether it can be subjected to plain-error review. Puckett is wrong in contending that no purpose is served by applying plain-error review: There is much to be gained by inducing the objection to be made at the trial court level, where (among other things) the error can often be remedied. And not all plea breaches will satisfy the doctrine’s four prongs. Pp. 7–14. 505 F. 3d 377, affirmed. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, J., joined. | The question presented by this case is whether a forfeited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure. I In July 2002, James Puckett was indicted by a grand jury in the Northern District of Texas on one count of armed bank robbery, 18 U. S. C. §2113(a), (d), and one count of using a firearm during and in relation to a crime of violence, §924(c)(1). He negotiated a plea agreement with the Government, which was filed with the District Court on September 3, 2003. As part of that deal, Puckett agreed to plead guilty to both counts, waive his trial rights, and cooperate with the Government by being truthful regarding his participation in criminal activities. App. 51a–53a. In exchange, the Government agreed to the following two terms: “8. The government agrees that Puckett has demonstrated acceptance of responsibility and thereby qualifies for a three-level reduction in his offense level. “9. The government also agrees to request that Puckett’s sentence be placed at the lowest end of the guideline level deemed applicable by the Court.” Id., at 54a. To satisfy the first of these obligations, the Government filed a motion in the District Court pursuant to §3E1.1 of the United States Sentencing Commission’s Guidelines Manual (Nov. 2003) (USSG). That provision directs sentencing courts to decrease a defendant’s offense level under the Guidelines by two levels if he “clearly demonstrates acceptance of responsibility for his offense,” and by a third level “upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty.” Two weeks later, the District Court held a plea colloquy, see Fed. Rule Crim. Proc. 11(b), and accepted Puckett’s plea. Because of delays due to health problems experienced by Puckett, sentencing did not take place for almost three years. In the interim, Puckett assisted another man in a scheme to defraud the Postal Service, and confessed that assistance (under questioning) to a probation officer. The officer prepared an addendum to Puckett’s presentence report recommending that he receive no §3E1.1 reduction for acceptance of responsibility, on the theory that true acceptance of responsibility requires termination of criminal conduct. See USSG §3E1.1, comment., n. 1(b). When sentencing finally did take place on May 4, 2006, Puckett’s counsel objected to the addendum, pointing out that the Government had filed a motion requesting that the full three-level reduction in offense level be granted. The District Judge turned to the prosecutor, who responded that the motion was filed “a long time ago,” App. 79a, before Puckett had engaged in the additional criminal behavior. She made clear that the Government opposed any reduction in Puckett’s offense level for acceptance of responsibility. The probation officer then added his view that under the Guidelines, a reduction would be improper. After hearing these submissions, the District Judge concluded that even assuming he had the discretion to grant the reduction, he would not do so. “[I]t’s so rare [as] to be unknown around here where one has committed a crime subsequent to the crime for which they appear before the court and for them even then to get the three points.” Id., at 80a–81a. He agreed, however, to follow the recommendation that the Government made, pursuant to its commitment in the plea agreement, that Puckett be sentenced at the low end of the applicable Guidelines range, which turned out to be 262 months in prison for the armed bank robbery and a mandatory minimum consecutive term of 84 months for the firearm crime. Had the District Court granted the three-level reduction for acceptance of responsibility, the bottom of the Guidelines range would have been 188 months for the robbery; the firearm sentence would not have been affected. Importantly, at no time during the exchange did Puckett’s counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Puckett’s plea on grounds that the Government had broken its sentencing promises. On appeal to the United States Court of Appeals for the Fifth Circuit, Puckett did argue, inter alia, that the Government violated the plea agreement at sentencing. The Government conceded that by objecting to the reduction for acceptance of responsibility, it had violated the obligation set forth in paragraph 8 of the agreement, but maintained that Puckett had forfeited this claim by failing to raise it in the District Court. The Court of Appeals agreed, and applied the plain-error standard that Rule 52(b) makes applicable to unpreserved claims of error. 505 F. 3d 377, 384 (2007). It held that although error had occurred and was obvious, Puckett had not satisfied the third prong of the plain-error analysis by demonstrating that the error affected his substantial rights, i.e., caused him prejudice. Id., at 386. Especially in light of the District Judge’s statement that granting a reduction when the defendant had continued to engage in criminal conduct was “so rare [as] to be unknown,” Puckett could not show that the Government’s breach had affected his ultimate sentence. The Court of Appeals accordingly affirmed the conviction and sentence. Id., at 388. We granted certiorari, 554 U. S. ___ (2008), to consider a question that has divided the Federal Courts of Appeals: whether Rule 52(b)’s plain-error test applies to a forfeited claim, like Puckett’s, that the Government failed to meet its obligations under a plea agreement. See In re Sealed Case, 356 F. 3d 313, 315–318 (CADC 2004) (discussing conflict among the Circuits). Concluding that Rule 52(b) does apply and in the usual fashion, we now affirm. II If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding, he must object in order to preserve the issue. If he fails to do so in a timely manner, his claim for relief from the error is forfeited. “No procedural principle is more familiar to this Court than that a . . . right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” Yakus v. United States, 321 U. S. 414, 444 (1944). If an error is not properly preserved, appellate-court authority to remedy the error (by reversing the judgment, for example, or ordering a new trial) is strictly circumscribed. There is good reason for this; “anyone familiar with the work of courts understands that errors are a constant in the trial process, that most do not much matter, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” United States v. Padilla, 415 F. 3d 211, 224 (CA1 2005) (en banc) (Boudin, C. J., concurring). This limitation on appellate-court authority serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. That court is ordinarily in the best position to determine the relevant facts and adjudicate the dispute. In the case of an actual or invited procedural error, the district court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome. And of course the contemporaneous-objection rule prevents a litigant from “ ‘sandbagging’ ” the court—remaining silent about his objection and belatedly raising the error only if the case does not conclude in his favor. Cf. Wainwright v. Sykes, 433 U. S. 72, 89 (1977); see also United States v. Vonn, 535 U. S. 55, 72 (2002). In federal criminal cases, Rule 51(b) tells parties how to preserve claims of error: “by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.” Failure to abide by this contemporaneous-objection rule ordinarily precludes the raising on appeal of the unpreserved claim of trial error. See United States v. Young, 470 U. S. 1, 15, and n. 12 (1985). Rule 52(b), however, recognizes a limited exception to that preclusion. The Rule provides, in full: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” We explained in United States v. Olano, 507 U. S. 725 (1993), that Rule 52(b) review—so-called “plain-error review”—involves four steps, or prongs. First, there must be an error or defect—some sort of “[d]eviation from a legal rule”—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Id., at 732–733. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. See id., at 734. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the district court proceedings.” Ibid. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id., at 736 (quoting United States v. Atkinson, 297 U. S. 157, 160 (1936)). Meeting all four prongs is difficult, “as it should be.” United States v. Dominguez Benitez, 542 U. S. 74, 83, n. 9 (2004). We have repeatedly cautioned that “[a]ny unwarranted extension” of the authority granted by Rule 52(b) would disturb the careful balance it strikes between judicial efficiency and the redress of injustice, see Young, supra, at 15; and that the creation of an unjustified exception to the Rule would be “[e]ven less appropriate,” Johnson v. United States, 520 U. S. 461, 466 (1997). The real question in this case is not whether plain-error review applies when a defendant fails to preserve a claim that the Government defaulted on its plea-agreement obligations, but rather what conceivable reason exists for disregarding its evident application. Such a breach is undoubtedly a violation of the defendant’s rights, see Santobello v. New York, 404 U. S. 257, 262 (1971), but the defendant has the opportunity to seek vindication of those rights in district court; if he fails to do so, Rule 52(b) as clearly sets forth the consequences for that forfeiture as it does for all others. III Puckett puts forward several possible reasons why plain-error review should not apply in the present context. We understand him to be making effectively four distinct arguments: two doctrinal, two practical. We consider each set in turn. A Puckett’s primary precedent-based argument proceeds as follows: When the Government breaks a promise that was made to a defendant in the course of securing a guilty plea, the knowing and voluntary character of that plea retroactively vanishes, because (as it turns out) the defendant was not aware of its true consequences. Since guilty pleas must be knowing and voluntary to be valid, McCarthy v. United States, 394 U. S. 459, 466 (1969), the guilty plea is thus void, along with the defendant’s corresponding waiver of his right to trial. And because, under this Court’s precedents, a waiver of the right to trial must be made by the defendant personally, see Taylor v. Illinois, 484 U. S. 400, 417–418, and n. 24 (1988), no action by counsel alone could resurrect the voided waiver. Therefore, Puckett concludes, counsel’s failure timely to object to a Government breach can have no effect on the analysis, and the court of appeals must always correct the error. This elaborate analysis suffers from at least two defects. First, there is nothing to support the proposition that the Government’s breach of a plea agreement retroactively causes the defendant’s agreement to have been unknowing or involuntary. Any more than there is anything to support the proposition that a mere breach of contract retroactively causes the other party’s promise to have been coerced or induced by fraud. Although the analogy may not hold in all respects, plea bargains are essentially contracts. See Mabry v. Johnson, 467 U. S. 504, 508 (1984). When the consideration for a contract fails—that is, when one of the exchanged promises is not kept—we do not say that the voluntary bilateral consent to the contract never existed, so that it is automatically and utterly void; we say that the contract was broken. See 23 R. Lord, Williston on Contracts §63.1 (4th ed. 2002) (hereinafter Williston). The party injured by the breach will generally be entitled to some remedy, which might include the right to rescind the contract entirely, see 26 id., §68.1 (4th ed. 2003); but that is not the same thing as saying the contract was never validly concluded. So too here. When a defendant agrees to a plea bargain, the Government takes on certain obligations. If those obligations are not met, the defendant is entitled to seek a remedy, which might in some cases be rescission of the agreement, allowing him to take back the consideration he has furnished, i.e., to withdraw his plea. But rescission is not the only possible remedy; in Santobello we allowed for a resentencing at which the Government would fully comply with the agreement—in effect, specific performance of the contract. 404 U. S., at 263. In any case, it is entirely clear that a breach does not cause the guilty plea, when entered, to have been unknowing or involuntary. It is precisely because the plea was knowing and voluntary (and hence valid) that the Government is obligated to uphold its side of the bargain.[Footnote 1] Moreover, and perhaps more fundamentally, Puckett’s argument confuses the concepts of waiver and forfeiture. Nobody contends that Puckett’s counsel has waived—that is, intentionally relinquished or abandoned, Olano, 507 U. S., at 733—Puckett’s right to seek relief from the Government’s breach. (If he had, there would be no error at all and plain-error analysis would add nothing.) The objection is rather that Puckett forfeited the claim of error through his counsel’s failure to raise the argument in the District Court. This Court’s precedents requiring that certain waivers be personal, knowing, and voluntary are thus simply irrelevant. Those holdings determine whether error occurred, but say nothing about the proper standard of review when the claim of error is not preserved. The question presented by this case assumes error; only the standard of review is in dispute. Puckett’s second doctrinal attack rests on our decision in Santobello. In that case, the State had promised in a plea deal that it would make no sentencing recommendation, but the prosecutor (apparently unaware of that commitment) asked the state trial court to impose the maximum penalty of one year. Defense counsel immediately objected. 404 U. S., at 259. The trial judge proceeded anyway to impose the 1-year sentence, reassuring Santobello that the prosecutor’s recommendation did not affect his decision. Id., at 259–260. This Court vacated the conviction and remanded the case because “the interests of justice” would thus be best served. Id., at 262. Puckett maintains that if the “interests of justice” required a remand in Santobello even though the breach there was likely harmless, those same interests call for a remand whenever the Government reneges on a plea bargain, forfeiture or not. We do not agree. Whether an error can be found harmless is simply a different question from whether it can be subjected to plain-error review. Santobello (given that the error in that case was preserved) necessarily addressed only the former. B Doctrine and precedent aside, Puckett argues that practical considerations counsel against subjecting plea-breach claims to the rule of plain-error review. Specifically, he contends that no purpose would be served by applying the rule; and that plea breaches will always satisfy its four prongs, making its application superfluous. Accepting, arguendo (and dubitante), that policy concerns can ever authorize a departure from the Federal Rules, both arguments are wrong. Puckett suggests that once the prosecution has broken its agreement, e.g., by requesting a higher sentence than agreed upon, it is too late to “unring” the bell even if an objection is made: The district judge has already heard the request, and under Santobello it does not matter if he was influenced by it. So why demand the futile objection? For one thing, requiring the objection means the defendant cannot “game” the system, “wait[ing] to see if the sentence later str[ikes] him as satisfactory,” Vonn, 535 U. S., at 73, and then seeking a second bite at the apple by raising the claim. For another, the breach itself will not always be conceded.[Footnote 2] In such a case, the district court if apprised of the claim will be in a position to adjudicate the matter in the first instance, creating a factual record and facilitating appellate review. Thirdly, some breaches may be curable upon timely objection—for example, where the prosecution simply forgot its commitment and is willing to adhere to the agreement. And finally, if the breach is established but cannot be cured, the district court can grant an immediate remedy (e.g., withdrawal of the plea or resentencing before a different judge) and thus avoid the delay and expense of a full appeal. Puckett also contends that plain-error review “does no substantive work” in the context of the Government’s breach of a plea agreement. Brief for Petitioner 22. He claims that the third prong, the prejudice prong, has no application, since plea-breach claims fall within “a special category of forfeited errors that can be corrected regardless of their effect on the outcome.” Olano, supra, at 735. This Court has several times declined to resolve whether “structural” errors—those that affect “the framework within which the trial proceeds,” Arizona v. Fulminante, 499 U. S. 279, 310 (1991)—automatically satisfy the third prong of the plain-error test. Olano, supra, at 735; Johnson, 520 U. S., at 469; United States v. Cotton, 535 U. S. 625, 632 (2002). Once again we need not answer that question, because breach of a plea deal is not a “structural” error as we have used that term. We have never described it as such, see Johnson, supra, at 468–469, and it shares no common features with errors we have held structural. A plea breach does not “necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence,” Neder v. United States, 527 U. S. 1, 9 (1999) (emphasis deleted); it does not “defy analysis by ‘harmless-error’ standards” by affecting the entire adjudicatory framework, Fulminante, supra, at 309; and the “difficulty of assessing the effect of the error,” United States v. Gonzalez-Lopez, 548 U. S. 140, 149, n. 4 (2006), is no greater with respect to plea breaches at sentencing than with respect to other procedural errors at sentencing, which are routinely subject to harmlessness review, see, e.g., United States v. Teague, 469 F. 3d 205, 209–210 (CA1 2006). Santobello did hold that automatic reversal is warranted when objection to the Government’s breach of a plea agreement has been preserved,[Footnote 3] but that holding rested not upon the premise that plea-breach errors are (like “structural” errors) somehow not susceptible, or not amenable, to review for harmlessness, but rather upon a policy interest in establishing the trust between defendants and prosecutors that is necessary to sustain plea bargaining—an “essential” and “highly desirable” part of the criminal process, 404 U. S., at 261–262. But the rule of contemporaneous objection is equally essential and desirable, and when the two collide we see no need to relieve the defendant of his usual burden of showing prejudice. See Olano, 507 U. S., at 734. The defendant whose plea agreement has been broken by the Government will not always be able to show prejudice, either because he obtained the benefits contemplated by the deal anyway (e.g., the sentence that the prosecutor promised to request) or because he likely would not have obtained those benefits in any event (as is seemingly the case here).[Footnote 4] On the dissent’s view, a defendant in Puckett’s position has always suffered an impairment of his “substantial rights” under Olano’s third prong, because he has been convicted “in the absence of trial or compliance with the terms of the plea agreement dispensing with the Government’s obligation to prove its case.” Post, at 1 (opinion of Souter, J.). But that is simply an ipse dixit recasting the conceded error—breach of the plea agreement—as the effect on substantial rights. Any trial error can be said to impair substantial rights if the harm is defined as “being convicted at a trial tainted with [fill-in-the-blank] error.” Nor does the fact that there is a “protected liberty interest” at stake render this case different, see post, at 3. That interest is always at stake in criminal cases. Eliminating the third plain-error prong through semantics makes a nullity of Olano’s instruction that a defendant normally “must make a specific showing of prejudice” in order to obtain relief, 507 U. S., at 735. Puckett contends that the fourth prong of plain-error review likewise has no application because every breach of a plea agreement will constitute a miscarriage of justice. That is not so. The fourth prong is meant to be applied on a case-specific and fact-intensive basis. We have emphasized that a “per se approach to plain-error review is flawed.” Young, 470 U. S., at 17, n. 14. It is true enough that when the Government reneges on a plea deal, the integrity of the system may be called into question, but there may well be countervailing factors in particular cases. Puckett is again a good example: Given that he obviously did not cease his life of crime, receipt of a sentencing reduction for acceptance of responsibility would have been so ludicrous as itself to compromise the public reputation of judicial proceedings. Of course the second prong of plain-error review also will often have some “bite” in plea-agreement cases. Not all breaches will be clear or obvious. Plea agreements are not always models of draftsmanship, so the scope of the Government’s commitments will on occasion be open to doubt. Moreover, the Government will often have a colorable (albeit ultimately inadequate) excuse for its nonperformance. See n. 2, supra. * * * Application of plain-error review in the present context is consistent with our cases, serves worthy purposes, has meaningful effects, and is in any event compelled by the Federal Rules. While we recognize that the Government’s breach of a plea agreement is a serious matter, “the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure.” Johnson, 520 U. S., at 466. The judgment of the Court of Appeals is Affirmed. Footnote 1 Puckett points out that in Brady v. United States, 397 U. S. 742 (1970), we quoted approvingly the Fifth Circuit’s statement that guilty pleas must stand unless induced by “misrepresentation (including unfulfilled or unfulfillable promises),” id., at 755 (quoting Shelton v. United States, 246 F. 2d 571, 572, n. 2 (CA5 1957) (en banc); internal quotation marks omitted). But it is hornbook law that misrepresentation requires an intent at the time of contracting not to perform. 26 Williston §69.11. It is more difficult to explain the other precedent relied upon by Puckett—our suggestion in Mabry v. Johnson, 467 U. S. 504, 509 (1984), that “when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand.” That statement, like the one in Brady, was dictum. Its conclusion that the conviction cannot stand is only sometimes true (if that is the remedy the court prescribes for the breach). And even when the conviction is overturned, the reason is not that the guilty plea was unknowing or involuntary. We disavow any aspect of the Mabry dictum that contradicts our holding today. Footnote 2 Indeed, in this case the Government might well have argued that it was excused from its obligation to assert “demonstrated acceptance of responsibility” because Puckett’s ongoing criminal conduct hindered performance. See 13 Williston §39.3 (4th ed. 2000). That argument might have convinced us had it been pressed, but the Government conceded the breach, and we analyze the case as it comes to us. Footnote 3 We need not confront today the question whether Santobello’s automatic-reversal rule has survived our recent elaboration of harmless-error principles in such cases as Fulminante and Neder. Footnote 4 Because, as we have explained, the breach consists of a wrongful denial of the rights obtained by the defendant through the plea agreement and does not automatically invalidate the plea, we agree with the Government that the question with regard to prejudice is not whether Puckett would have entered the plea had he known about the future violation. Cf. United States v. Dominguez Benitez, 542 U. S. 74, 83 (2004). When the rights acquired by the defendant relate to sentencing, the “ ‘outcome’ ” he must show to have been affected is his sentence. |
556.US.2008_07-1090 | The Foreign Sovereign Immunities Act of 1976 (FSIA) prohibits suits against other countries in American courts, 28 U. S. C. §1604, with certain exceptions. One exception, §1605(a)(7) (now repealed), stripped a foreign state of immunity in any suit arising from certain acts of terrorism that occurred when the state was designated as a sponsor of terrorism under §6(j) of the Export Administration Act of 1979 or §620A of the Foreign Assistance Act of 1961. Iraq was designated as a sponsor of terrorism in 1990, but in 2003, following the American-led invasion of Iraq, Congress enacted the Emergency Wartime Supplemental Appropriations Act (EWSAA), §1503 of which included a proviso clause (the second in a series of eight) authorizing the President to “make inapplicable with respect to Iraq [§]620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.” Although President Bush exercised that authority, the D. C. Circuit held in its 2004 Acree decision that the EWSAA did not permit the President to waive §1605(a)(7), and thereby restore Iraq’s sovereign immunity, for claims arising from actions Iraq took while designated as a sponsor of terrorism. Thereafter, Congress repealed §1605(a)(7) in §1083(b)(1)(A)(iii) of the National Defense Authorization Act for Fiscal Year 2008 (NDAA) and replaced it with a new, roughly similar exception, §1083(a). The NDAA also declared that nothing in EWSAA “ever authorized, directly or indirectly, the making inapplicable of any provision of [the FSIA] or the removal of the jurisdiction of any court” (thus purporting to ratify Acree), §1083(c)(4); and authorized the President to waive “any provision of this section with respect to Iraq” under certain conditions, §1083(d). On the same day the President signed the NDAA into law he also waived all of §1083’s provisions as to Iraq. Respondents filed these suits against Iraq in early 2003, alleging mistreatment by Iraqi officials during and after the 1991 Gulf War. Under Acree, the courts below refused to dismiss either case on jurisdictional grounds. The D. C. Circuit also rejected Iraq’s alternative argument that even if §1605(a)(7)’s application to it survived the President’s EWSAA waiver, the provision was repealed by NDAA §1083(b)(1)(A)(iii); and that the President had waived NDAA §1083(a)’s new exception with respect to Iraq under his §1083(d) authority. The court held instead that it retained jurisdiction over cases pending against Iraq when the NDAA was enacted. Held: Iraq is no longer subject to suit in federal court. Pp. 6–17. (a) The District Court lost jurisdiction over both suits in May 2003, when the President exercised his EWSAA authority to make §1605(a)(7) “inapplicable with respect to Iraq.” Pp. 6–13. (i) Iraq’s (and the United States’) reading of EWSAA §1503’s second proviso as sweeping in §1605(a)(7)’s terrorism exception to foreign sovereign immunity is straightforward. In the proviso’s terms, the exception is a “provision of law” (indisputably) that “applies to” (strips immunity from) “countries that have supported terrorism” (as designated pursuant to certain statutory provisions). Because he exercised his waiver authority with respect to “all” provisions of law encompassed by the second proviso, his actions made §1605(a)(7) “inapplicable” to Iraq. Pp. 6–7. (ii) Acree’s resistance to the above construction was based on a sophisticated attempt to construe EWSAA §1503’s second proviso as limiting that section’s principal clause, which authorized suspension of “any provision of the Iraq Sanctions Act of 1990.” While a proviso’s “general office … is to except something from the enacting clause, or to qualify and restrain its generality,” United States v. Morrow, 266 U. S. 531, 534, another recognized use is “to introduce independent legislation,” id., at 535, which was the function of the proviso here. In any event, §1605(a)(7) falls within the scope of the proviso even accepting the narrower interpretation adopted by the Acree decision. Pp. 7–11. (iii) Respondents’ other objections to the straightforward interpretation of EWSAA §1503’s proviso are rejected. Pp. 11–12. (iv) Nothing in the NDAA changes the above analysis. Although NDAA §1083(c)(4) appears to ratify Acree, this Court need not decide whether such a ratification is effective because §1083(d)(1) authorized the President to “waive any provision of this section with respect to Iraq,” and he waived “all” such provisions, including §1083(c)(4). Pp. 12–13. (b) The Court rejects the argument that §1605(a)(7)’s inapplicability does not bar claims arising from Iraq’s conduct prior to the President’s waiver. In order to exercise jurisdiction over these cases, the District Court had to “apply” §1605(a)(7) with respect to Iraq, but the President’s waiver made that provision “inapplicable.” No retroactivity problem is posed by this construction, if only because the primary conduct by Iraq that forms the basis for these suits actually occurred before §1605(a)(7)’s enactment. Pp. 13–16. (c) Respondents also argue that EWSAA §1503’s sunset clause—under which “the authorities contained in [that] section” expired in 2005—revived §1605(a)(7) and restored jurisdiction as of the sunset date. But expiration of the §1503 authorities is not the same as cancellation of the effect of the prior valid exercise of those authorities. Pp. 16–17. No. 07–1090, and No. 08–539, 529 F. 3d 1187, reversed. Scalia, J., delivered the opinion for a unanimous Court. Together with No. 08–539, Republic of Iraq et al. v. Simon et al., also on certiorari to the same court. | We consider in these cases whether the Republic of Iraq remains subject to suit in American courts pursuant to the terrorism exception to foreign sovereign immunity, now repealed, that had been codified at 28 U. S. C. §1605(a)(7). I A Under the venerable principle of foreign sovereign immunity, foreign states are ordinarily “immune from the jurisdiction of the courts of the United States and of the States,” §1604. See generally Schooner Exchange v. McFaddon, 7 Cranch 116 (1812). But the statute embodying that principle—the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. §1602 et seq.—recognizes a number of exceptions; if any of these is applicable, the state is subject to suit, and federal district courts have jurisdiction to adjudicate the claim. §1330(a); Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 489 (1983). In 1996, Congress added to the list of statutory exceptions one for state sponsors of terrorism, which was codified at 28 U. S. C. §1605(a)(7). Subject to limitations not relevant here, that exception stripped immunity in any suit for money damages “against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources … for such an act … except that the court shall decline to hear a claim under this paragraph— “(A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U. S. C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U. S. C. 2371) at the time the act occurred … .” In brief, §1605(a)(7) stripped immunity from a foreign state for claims arising from particular acts, if those acts were taken at a time when the state was designated as a sponsor of terrorism. B In September 1990, Acting Secretary of State Lawrence Eagleburger formally designated Iraq, pursuant to §6(j) of the Export Administration Act of 1979, as redesignated and amended, 99 Stat. 135, 50 U. S. C. App. §2405(j), as “a country which has repeatedly provided support for acts of international terrorism,” 55 Fed. Reg. 37793. Over a decade later, in March 2003, the United States and a coalition of allies initiated military action against that country. In a matter of weeks, the regime of Iraqi dictator Saddam Hussein collapsed and coalition forces occupied Baghdad. American attention soon shifted from combat operations to the longer term project of rebuilding Iraq, with the ultimate goal of creating a stable ally in the region. Toward that end, Congress enacted in April 2003 the Emergency Wartime Supplemental Appropriations Act (EWSAA), 117 Stat. 559. Section 1503 of that Act authorized the President to “make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism.” Id., at 579. President George W. Bush exercised that authority to its fullest extent in May 2003, declaring “inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 . . . and any other provision of law that applies to countries that have supported terrorism.” 68 Fed. Reg. 26459. Shortly thereafter, the United States Court of Appeals for the District of Columbia Circuit had occasion to consider whether that Presidential action had the effect of rendering inapplicable to Iraq the terrorism exception to foreign sovereign immunity. The Court concluded in a divided panel decision that the President’s EWSAA authority did not permit him to waive §1605(a)(7), and thereby restore sovereign immunity to Iraq, for claims arising from acts it had taken while designated as a sponsor of terror. Acree v. Republic of Iraq, 370 F. 3d 41, 48 (2004). Because Iraq succeeded in having the claims against it dismissed on other grounds, id., at 59–60, it could not seek certiorari to challenge the D. C. Circuit’s interpretation of the EWSAA. C There is yet another legislative enactment, and yet another corresponding executive waiver, that bear on the question presented. The National Defense Authorization Act for Fiscal Year 2008 (NDAA), 122 Stat. 3, was passed in January 2008. That Act (1) repealed the FSIA’s terrorism exception, §1083(b)(1)(A)(iii); (2) replaced it with a new, roughly similar exception, §1083(a); (3) declared that nothing in §1503 of the EWSAA had “ever authorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States” (thus purporting to ratify the Court of Appeals’ Acree decision), §1083(c)(4), 122 Stat. 343; and (4) authorized the President to waive “any provision of this section with respect to Iraq” so long as he made certain findings and so notified Congress within 30 days, §1083(d), id., at 343–344. The last provision was added to the NDAA after the President vetoed an earlier version of the bill, which did not include the waiver authority. The President’s veto message said that the bill “would imperil billions of dollars of Iraqi assets at a crucial juncture in that nation’s reconstruction efforts.” Memorandum to the House of Representatives Returning Without Approval the “National Defense Authorization Act for Fiscal Year 2008,” 43 Weekly Comp. of Pres. Doc. 1641 (2007). Only when Congress added the waiver authority to the NDAA did the President agree to approve it; and on the same day he signed it into law he also officially waived “all provisions of section 1083 of the Act with respect to Iraq,” 73 Fed. Reg. 6571 (2008). II We consider today two cases that have been navigating their way through the lower courts against the backdrop of the above-described congressional, military, Presidential, and judicial actions. Respondents in the Simon case are American nationals (and relatives of those nationals) who allege that they were captured and cruelly mistreated by Iraqi officials during the 1991 Gulf War. The Beaty respondents are the children of two other Americans, Kenneth Beaty and William Barloon, who are alleged to have been similarly abused by the regime of Saddam Hussein in the aftermath of that war. Each set of respondents filed suit in early 2003 against Iraq in the United States District Court for the District of Columbia, alleging violations of local, federal, and international law. Respondents invoked the terrorism exception to foreign sovereign immunity, and given Acree’s holding that the President had not rendered that statutory provision inapplicable to Iraq, the District Court refused to dismiss either case on jurisdictional grounds. In Beaty, after the District Court denied Iraq’s motion to dismiss, 480 F. Supp. 2d 60, 70 (2007), Iraq invoked the collateral order doctrine to support an interlocutory appeal. See Mitchell v. Forsyth, 472 U. S. 511, 524–529 (1985). In Simon, the District Court determined that the claims were time barred and dismissed on that alternative basis, Vine v. Republic of Iraq, 459 F. Supp. 2d 10, 25 (2006), after which the Simon respondents appealed. In the Beaty appeal, Iraq (supported by the United States as amicus) requested that the Court of Appeals for the District of Columbia Circuit reconsider Acree’s holding en banc. The Court denied that request over the dissent of Judges Brown and Kavanaugh, and a panel then summarily affirmed in an unpublished order the District Court’s denial of Iraq’s motion to dismiss. No. 07–7057 (Nov. 21, 2007) (per curiam), App. to Pet. for Cert. 1a–2a. While the Simon appeal was still pending, Congress enacted the NDAA, and the Court of Appeals requested supplemental briefing addressing the impact of that legislation on the court’s jurisdiction. Iraq contended, as an alternative argument to its position that Acree was wrongly decided, that even if 28 U. S. C. §1605(a)(7)’s application to Iraq survived the President’s EWSAA waiver, the provision was repealed by §1083(b)(1)(A)(iii) of the NDAA, 122 Stat. 341; and that the new terrorism exception to sovereign immunity—which was created by the NDAA and codified at 28 U. S. C. A. §1605A (July 2008 Supp.)—was waived by the President with respect to Iraq pursuant to his NDAA authority. The Court of Appeals rejected that argument, holding instead, based on a close reading of the statutory text, that “the NDAA leaves intact our jurisdiction over cases . . . that were pending against Iraq when the Congress enacted the NDAA.” 529 F. 3d 1187, 1194 (2008). The panel then reversed the District Court’s determination that the Simon respondents’ claims were untimely, id., at 1195–1196, and rebuffed Iraq’s request for dismissal under the political question doctrine, id., at 1196–1198. Iraq sought this Court’s review of both cases, asking us to determine whether under current law it remains subject to suit in the federal courts. We granted certiorari, 555 U. S. ___ (2009), and consolidated the cases. III A Section 1503 of the EWSAA consists of a principal clause, followed by eight separate proviso clauses. The dispute in these cases concerns the second of the provisos. The principal clause and that proviso read: “The President may suspend the application of any provision of the Iraq Sanctions Act of 1990: … Provided further, That the President may make inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism … .” 117 Stat. 579. Iraq and the United States both read the quoted proviso’s residual clause as sweeping in the terrorism exception to foreign sovereign immunity. Certainly that reading is, as even the Acree Court acknowledged, “straightforward.” 370 F. 3d, at 52. Title 28 U. S. C. §1605(a)(7)’s exception to sovereign immunity for state sponsors of terrorism stripped jurisdictional immunity from a country unless “the foreign state was not designated as a state sponsor of terrorism.” This is a “provision of law” (indisputably) that “applies to” (strips immunity from) “countries that have supported terrorism” (as designated pursuant to certain statutory provisions). Of course the word “any” (in the phrase “any other provision of law”) has an “expansive meaning,” United States v. Gonzales, 520 U. S. 1, 5 (1997), giving us no warrant to limit the class of provisions of law that the President may waive. Because the President exercised his authority with respect to “all” provisions of law encompassed by the second proviso, his actions made §1605(a)(7) “inapplicable” to Iraq. To a layperson, the notion of the President’s suspending the operation of a valid law might seem strange. But the practice is well established, at least in the sphere of foreign affairs. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 322–324 (1936) (canvassing precedents from as early as the “inception of the national government”). The granting of Presidential waiver authority is particularly apt with respect to congressional elimination of foreign sovereign immunity, since the granting or denial of that immunity was historically the case-by-case prerogative of the Executive Branch. See, e.g., Ex parte Peru, 318 U. S. 578, 586–590 (1943). It is entirely unremarkable that Congress, having taken upon itself in the FSIA to “free the Government” from the diplomatic pressures engendered by the case-by-case approach, Verlinden, 461 U. S., at 488, would nonetheless think it prudent to afford the President some flexibility in unique circumstances such as these. B The Court of Appeals in Acree resisted the above construction, primarily on the ground that the relevant text is found in a proviso. We have said that, at least presumptively, the “grammatical and logical scope [of a proviso] is confined to the subject-matter of the principal clause.” United States v. Morrow, 266 U. S. 531, 534–535 (1925). Using that proposition as a guide, the Acree panel strove mightily to construe the proviso as somehow restricting the principal clause of EWSAA §1503, which authorized the President to suspend “any provision of the Iraq Sanctions Act of 1990,” 117 Stat. 579. In the Court of Appeals’ view, the second proviso related to that subsection of the Iraq Sanctions Act (referred to in the principal provision) which dictated that certain enumerated statutory provisions, including §620A of the Foreign Assistance Act of 1961 and “all other provisions of law that impose sanctions against a country which has repeatedly provided support for acts of international terrorism,” shall be fully enforced against Iraq. §586F(c), 104 Stat. 2051 (emphasis added). The panel understood the second EWSAA proviso as doing nothing more than clarifying that the authority granted by the principal clause (to suspend any part of the Iraq Sanctions Act) included the power to make inapplicable to Iraq the various independent provisions of law that §586F(c) of the Iraq Sanctions Act instructed to be enforced against Iraq—which might otherwise continue to apply of their own force even without the Iraq Sanctions Act. However, the residual clause of §586F(c) encompasses only provisions that “impose sanctions”; and, in the Court of Appeals’ view, that excludes §1605(a)(7), which is a rule going instead to the jurisdiction of the federal courts. Thus, the EWSAA proviso swept only as broadly as §586F(c), and therefore did not permit the President to waive the FSIA terrorism exception. This is a highly sophisticated effort to construe the proviso as a limitation upon the principal clause. Ultimately, however, we think that effort neither necessary nor successful. It is true that the “general office of a proviso is to except something from the enacting clause, or to qualify and restrain its generality.” Morrow, supra, at 534. But its general (and perhaps appropriate) office is not, alas, its exclusive use. Use of a proviso “to state a general, independent rule,” Alaska v. United States, 545 U. S. 75, 106 (2005), may be lazy drafting, but is hardly a novelty. See, e.g., McDonald v. United States, 279 U. S. 12, 21 (1929). Morrow itself came with the caveat that a proviso is sometimes used “to introduce independent legislation.” 266 U. S., at 535. We think that was its office here. The principal clause granted the President a power; the second proviso purported to grant him an additional power. It was not, on any fair reading, an exception to, qualification of, or restraint on the principal power. Contrasting the second EWSAA proviso to some of the other provisos illustrates the point. For example, the first proviso cautioned that “nothing in this section shall affect the applicability of the Iran-Iraq Arms Non-Proliferation Act of 1992,” 117 Stat. 579, and the third forbade the export of certain military equipment “under the authority of this section.” Ibid. Both of these plainly sought to define and limit the authority granted by the principal clause. The fourth proviso, however, mandated that “section 307 of the Foreign Assistance Act of 1961 shall not apply with respect to programs of international organizations for Iraq,” ibid., and it is impossible to see how that self-executing suspension of a distinct statute in any way cabined or clarified the principal clause’s authorization to suspend the Iraq Sanctions Act. There are other indications that the second proviso’s waiver authority was not limited to the statutory provisions embraced by §586F(c) of the Iraq Sanctions Act. If that is all it was meant to accomplish, why would Congress not simply have tracked §586F(c)’s residual clause? Instead of restricting the President’s authority to statutes that “impose sanctions” on sponsors of terror, the EWSAA extended it to any statute that “applies” to such states. That is undoubtedly a broader class. Even if the best reading of the EWSAA proviso were that it encompassed only statutes that impose sanctions or prohibit assistance to state sponsors of terrorism, see Acree, 370 F. 3d, at 54, we would disagree with the Court of Appeals’ conclusion that the FSIA exception is not such a law. Allowing lawsuits to proceed certainly has the extra benefit of facilitating the compensation of injured victims, but the fact that §1605(a)(7) targeted only foreign states designated as sponsors of terrorism suggests that the law was intended as a sanction, to punish and deter undesirable conduct. Stripping the immunity that foreign sovereigns ordinarily enjoy is as much a sanction as eliminating bilateral assistance or prohibiting export of munitions (both of which are explicitly mandated by §586F(c) of the Iraq Sanctions Act). The application of this sanction affects the jurisdiction of the federal courts, but that fact alone does not deprive it of its character as a sanction. It may well be that when Congress enacted the EWSAA it did not have specifically in mind the terrorism exception to sovereign immunity. The Court of Appeals evidently found that to be of some importance. Id., at 56 (noting there is “no reference in the legislative history to the FSIA”). But the whole value of a generally phrased residual clause, like the one used in the second proviso, is that it serves as a catchall for matters not specifically contemplated—known unknowns, in the happy phrase coined by Secretary of Defense Donald Rumsfeld. Pieces of Intelligence: The Existential Poetry of Donald H. Rumsfeld 2 (H. Seely comp. 2003). If Congress wanted to limit the waiver authority to particular statutes that it had in mind, it could have enumerated them individually. We cannot say with any certainty (for those who think this matters) whether the Congress that passed the EWSAA would have wanted the President to be permitted to waive §1605(a)(7). Certainly the exposure of Iraq to billions of dollars in damages could be thought to jeopardize the statute’s goal of speedy reconstruction of that country. At least the President thought so. And in the “vast external realm, with its important, complicated, delicate and manifold problems,” Curtiss-Wright Export Corp., 299 U. S., at 319, courts ought to be especially wary of overriding apparent statutory text supported by executive interpretation in favor of speculation about a law’s true purpose.[Footnote 1] C Respondents advance two other objections to the straightforward interpretation of the EWSAA proviso. First, in a less compelling variant of the D. C. Circuit’s approach, the Simon respondents argue that “section 620A of the Foreign Assistance Act of 1961 or any other provision of law that applies to countries that have supported terrorism” means section 620A of the Foreign Assistance Act or any other provision of law cited therein. The provision would thus allow the President to make inapplicable to Iraq the statutes that §620A precludes from being used to provide support to terror-sponsoring nations. Not to put too fine a point upon it, that is an absurd reading, not only textually but in the result it produces: It would mean that the effect of the EWSAA was to permit the President to exclude Iraq from, rather than include it within, such beneficent legislation as the Food for Peace Act of 1966, 7 U. S. C. §1691 et seq. Both respondents also invoke the canon against implied repeals, TVA v. Hill, 437 U. S. 153, 190 (1978), but that canon has no force here. Iraq’s construction of the statute neither rests on implication nor effects a repeal. The EWSAA proviso expressly allowed the President to render certain statutes inapplicable; the only question is its scope. And it did not repeal anything, but merely granted the President authority to waive the application of particular statutes to a single foreign nation. Cf. Clinton v. City of New York, 524 U. S. 417, 443–445 (1998). D We must consider whether anything in the subsequent NDAA legislation changes the above analysis. In particular, §1083(c)(4) of that statute specifically says that “[n]othing in section 1503 of the [EWSAA] has ever authorized, directly or indirectly, the making inapplicable of any provision of chapter 97 of title 28, United States Code, or the removal of the jurisdiction of any court of the United States.” 122 Stat. 343. This looks like a ratification by Congress of the conclusion reached in the Acree decision. Is such a ratification effective? The NDAA is not subsequent legislative history, as Iraq claims, cf. Sullivan v. Finkelstein, 496 U. S. 617, 632 (1990) (Scalia, J., concurring in part); rather, it is binding law, approved by the Legislature and signed by the President. Subsequent legislation can of course alter the meaning of an existing law for the future; and it can even alter the past operation of an existing law (constitutional objections aside) if it makes that retroactive operation clear. Landgraf v. USI Film Products, 511 U. S. 244, 267–268 (1994). To tell the truth, however, we are unaware of any case dealing with the retroactive amendment of a law that had already expired, as the EWSAA had here. And it is doubtful whether Congress can retroactively claw back power it has given to the Executive, invalidating Presidential action that was valid when it was taken. Thankfully, however, we need not explore these difficulties here. In §1083(d)(1) of the NDAA, the President was given authority to “waive any provision of this section with respect to Iraq.” 122 Stat. 343. The President proceeded to waive “all” provisions of that section as to Iraq, including (presumably) §1083(c)(4). 73 Fed. Reg. 6571. The Act can therefore add nothing to our analysis of the EWSAA. Respondent Beaty objects that the President cannot waive a fact. But neither can Congress legislate a fact. Section 1083(c)(4) could change our interpretation of the disputed EWSAA language only if it has some substantive effect, changing what would otherwise be the law. And if the President’s waiver does anything, it eliminates any substantive effect that the NDAA would otherwise have on cases to which Iraq is a party.[Footnote 2] IV Having concluded that the President did render 28 U. S. C. §1605(a)(7) “inapplicable with respect to Iraq,” and that such action was within his assigned powers, we consider respondents’ argument that the inapplicability of the provision does not bar their claims, since they arise from Iraq’s conduct prior to the President’s waiver. Any other interpretation, they say, would cause the law to operate in a disfavored retroactive fashion. This argument proceeds as follows: The FSIA exception becomes “applicable” to a foreign state when that foreign state is designated as a sponsor of terrorism. In parallel fashion, rendering the exception “inapplicable” should be equivalent to removing the state’s designation. And under §1605(a)(7), jurisdiction turned on the foreign state’s designation “at the time the act [giving rise to the claim] occurred.” On this reading, the President’s waiver meant only that Iraq could not be sued pursuant to §1605(a)(7) for any future conduct, even though it technically remained designated as a state sponsor of terrorism. Respondents support this interpretation with a policy argument and a canon of construction. First, why would Congress have sought to give Iraq better treatment than any other state that saw the error of its ways, reformed its behavior, and was accordingly removed from the list of terror-sponsoring regimes? See Acree, 370 F. 3d, at 56 (calling such a result “perplexing”). Providing immunity for future acts is one thing, but wiping the slate clean is quite another. Second, this Court has often applied a presumption that, absent clear indication to the contrary, statutory amendments do not apply to pending cases. Landgraf, supra, at 280. A narrow reading of “inapplicable” would better comport with that presumption. As a textual matter, the proffered definition of “inapplicable” is unpersuasive. If a provision of law is “inapplicable” then it cannot be applied; to “apply” a statute is “[t]o put [it] to use.” Webster’s New International Dictionary 131 (2d ed. 1954). When the District Court exercised jurisdiction over these cases against Iraq, it surely was putting §1605(a)(7) to use with respect to that country. Without the application of that provision, there was no basis for subject-matter jurisdiction. 28 U. S. C. §§1604, 1330(a). If Congress had wanted to authorize the President merely to cancel Iraq’s designation as a state sponsor of terrorism, then Congress could have done so. As a policy matter, moreover, we do not find that result particularly “perplexing.” As then-Judge Roberts explained in his separate opinion in Acree, Congress in 2003 “for the first time confronted the prospect that a friendly successor government would, in its infancy, be vulnerable under Section 1605(a)(7) to crushing liability for the actions of its renounced predecessor.” 370 F. 3d, at 61 (opinion concurring in part and concurring in judgment) (emphasis in original). The Government was at the time spending considerable sums of money to rebuild Iraq, see Rogers, Congress Gives Initial Approval for War Funding, Airline Aid, Wall Street Journal, Apr. 4, 2003, p. A10. What would seem perplexing is converting a billion-dollar reconstruction project into a compensation scheme for a few of Saddam’s victims. As for the judicial presumption against retroactivity, that does not induce us to read the EWSAA proviso more narrowly. Laws that merely alter the rules of foreign sovereign immunity, rather than modify substantive rights, are not operating retroactively when applied to pending cases. Foreign sovereign immunity “reflects current political realities and relationships,” and its availability (or lack thereof) generally is not something on which parties can rely “in shaping their primary conduct.” Republic of Austria v. Altmann, 541 U. S. 677, 696 (2004); see also id., at 703 (Scalia, J., concurring). In any event, the primary conduct by Iraq that forms the basis for these suits actually occurred prior to the enactment of the FSIA terrorism exception in 1996. See Saudi Arabia v. Nelson, 507 U. S. 349, 351 (1993). That is, Iraq was immune from suit at the time it is alleged to have harmed respondents. The President’s elimination of Iraq’s later subjection to suit could hardly have deprived respondents of any expectation they held at the time of their injury that they would be able to sue Iraq in United States courts. V Accordingly, the District Court lost jurisdiction over both suits in May 2003, when the President exercised his authority to make §1605(a)(7) inapplicable with respect to Iraq. At that point, immunity kicked back in and the cases ought to have been dismissed, “the only function remaining to the court [being] that of announcing the fact and dismissing the cause.” Ex parte McCardle, 7 Wall. 506, 514 (1869). In respondents’ view, that is not fatal to their claims. They point to the eighth proviso in §1503 of the EWSAA: “Provided further, That the authorities contained in this section shall expire on September 30, 2004, or on the date of enactment of a subsequent Act authorizing assistance for Iraq and that specifically amends, repeals or otherwise makes inapplicable the authorities of this section, whichever occurs first.” 117 Stat. 579. The effect of this provision, they contend, is that the EWSAA waiver expired in 2005,[Footnote 3] and that when it did so §1605(a)(7) was revived, immunity was again stripped, and jurisdiction was restored. If that is true, then at the very least they ought to be permitted to refile their suits and claim equitable tolling for the period between 2005 and the present, during which time they understandably relied on Acree’s holding. The premise, however, is flawed. It is true that the “authorities contained in” §1503 of the EWSAA expired, but expiration of the authorities (viz., the President’s powers to suspend and make inapplicable certain laws) is not the same as cancellation of the effect of the President’s prior valid exercise of those authorities (viz., the restoration of sovereign immunity). As Iraq points out, Congress has in other statutes provided explicitly that both the authorities granted and the effects of their exercise sunset on a particular date. E.g., 19 U. S. C. §2432(c)(3) (“A waiver with respect to any country shall terminate on the day after the waiver authority granted by this subsection ceases to be effective with respect to such country”). The EWSAA contains no such language. We think the better reading of the eighth EWSAA proviso (the sunset clause) is that the powers granted by the section could be exercised only for a limited time, but that actions taken by the President pursuant to those powers (e.g., suspension of the Iraq Sanctions Act) would not lapse on the sunset date. If it were otherwise, then the Iraq Sanctions Act—which has never been repealed, and which imposes a whole host of restrictions on relations with Iraq—would have returned to force in September 2005. Nobody believes that is so. * * * When the President exercised his authority to make inapplicable with respect to Iraq all provisions of law that apply to countries that have supported terrorism, the exception to foreign sovereign immunity for state sponsors of terrorism became inoperative as against Iraq. As a result, the courts below lacked jurisdiction; we therefore need not reach Iraq’s alternative argument that the NDAA subsequently stripped jurisdiction over the cases. The judgments of the Court of Appeals are reversed. It is so ordered. Footnote 1 The eighth proviso of EWSAA §1503 says that absent further congressional action, “the authorities contained in this section shall expire on September 30, 2004.” 117 Stat. 579. The Court of Appeals expressed doubt that Congress would have wanted federal-court jurisdiction to disappear for a year and then suddenly return. Acree v. Republic of Iraq, 370 F. 3d 41, 56–57 (CADC 2004). Our analysis of the sunset provision, see Part V, infra, disposes of that concern. Footnote 2 Respondents contend that the NDAA waiver is irrelevant because the President’s veto of the initial version of the bill—which did not include the waiver authority—was defective. We need not inquire into that point, since Congress (evidently thinking the veto effective) enacted a new bill that was identical in all material respects but for the addition of presidential waiver authority. Since that authority would be nugatory, and the rest of the new law utterly redundant, if a law resulting from the former bill remained in effect, that law would have been effectively repealed. Footnote 3 The sunset date was extended by one year in a later bill. 108–106, §2204(2), 117 Stat. 1230. |
557.US.2008_07-1428 | New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed. Held: The City’s action in discarding the tests violated Title VII. Pp. 16–34. (a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is “job related for the position in question and consistent with business necessity.” Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). Pp. 17–19. (b) Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary. Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis-in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid. The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions. Applying the strong-basis-in-evidence standard to Title VII gives effect to both provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. It also allows the disparate-impact prohibition to work in a manner that is consistent with other Title VII provisions, including the prohibition on adjusting employment-related test scores based on race, see §2000e–2(l), and the section that expressly protects bona fide promotional exams, see §2000e–2(h). Thus, the Court adopts the strong-basis-in-evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions. Pp. 19–26. (c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. Pp. 26–34. (i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. §§2000e–2(k)(1)(A), (C). Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. Pp. 26–28. (ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity. Pp. 28–29. (iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then-open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results, §2000e–2(l). Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis-in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. Pp. 29–33. (iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Pp. 33–34. 530 F. 3d 87, 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. Alito, J., filed a concurring opinion, in which Scalia and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined. Together with No. 08–328, Ricci et al. v. DeStefano et al., also on certiorari to the same court. | In the fire department of New Haven, Connecticut—as in emergency-service agencies throughout the Nation—firefighters prize their promotion to and within the officer ranks. An agency’s officers command respect within the department and in the whole community; and, of course, added responsibilities command increased salary and benefits. Aware of the intense competition for promotions, New Haven, like many cities, relies on objective examinations to identify the best qualified candidates. In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (or City) were infrequent, so the stakes were high. The results would determine which firefighters would be considered for promotions during the next two years, and the order in which they would be considered. Many firefighters studied for months, at considerable personal and financial cost. When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations. Certain white and Hispanic firefighters who likely would have been promoted based on their good test performance sued the City and some of its officials. Theirs is the suit now before us. The suit alleges that, by discarding the test results, the City and the named officials discriminated against the plaintiffs based on their race, in violation of both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment. The City and the officials defended their actions, arguing that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters. The District Court granted summary judgment for the defendants, and the Court of Appeals affirmed. We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII. In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause. I This litigation comes to us after the parties’ cross-motions for summary judgment, so we set out the facts in some detail. As the District Court noted, although “the parties strenuously dispute the relevance and legal import of, and inferences to be drawn from, many aspects of this case, the underlying facts are largely undisputed.” 554 F. Supp. 2d 142, 145 (Conn. 2006). A When the City of New Haven undertook to fill vacant lieutenant and captain positions in its fire department (Department), the promotion and hiring process was governed by the city charter, in addition to federal and state law. The charter establishes a merit system. That system requires the City to fill vacancies in the classified civil-service ranks with the most qualified individuals, as determined by job-related examinations. After each examination, the New Haven Civil Service Board (CSB) certifies a ranked list of applicants who passed the test. Under the charter’s “rule of three,” the relevant hiring authority must fill each vacancy by choosing one candidate from the top three scorers on the list. Certified promotional lists remain valid for two years. The City’s contract with the New Haven firefighters’ union specifies additional requirements for the promotion process. Under the contract, applicants for lieutenant and captain positions were to be screened using written and oral examinations, with the written exam accounting for 60 percent and the oral exam 40 percent of an applicant’s total score. To sit for the examinations, candidates for lieutenant needed 30 months’ experience in the Department, a high-school diploma, and certain vocational training courses. Candidates for captain needed one year’s service as a lieutenant in the Department, a high-school diploma, and certain vocational training courses. After reviewing bids from various consultants, the City hired Industrial/Organizational Solutions, Inc. (IOS) to develop and administer the examinations, at a cost to the City of $100,000. IOS is an Illinois company that specializes in designing entry-level and promotional examinations for fire and police departments. In order to fit the examinations to the New Haven Department, IOS began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the lieutenant and captain positions. IOS representatives interviewed incumbent captains and lieutenants and their supervisors. They rode with and observed other on-duty officers. Using information from those interviews and ride-alongs, IOS wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, captains, and lieutenants in the Department. At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results—which IOS would use to develop the examinations—would not unintentionally favor white candidates. With the job-analysis information in hand, IOS developed the written examinations to measure the candidates’ job-related knowledge. For each test, IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions. IOS presented the proposed sources to the New Haven fire chief and assistant fire chief for their approval. Then, using the approved sources, IOS drafted a multiple-choice test for each position. Each test had 100 questions, as required by CSB rules, and was written below a 10th-grade reading level. After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken. IOS developed the oral examinations as well. These concentrated on job skills and abilities. Using the job-analysis information, IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors. IOS assembled a pool of 30 assessors who were superior in rank to the positions being tested. At the City’s insistence (because of controversy surrounding previous examinations), all the assessors came from outside Connecticut. IOS submitted the assessors’ resumes to City officials for approval. They were battalion chiefs, assistant chiefs, and chiefs from departments of similar sizes to New Haven’s throughout the country. Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members. IOS trained the panelists for several hours on the day before it administered the examinations, teaching them how to score the candidates’ responses consistently using checklists of desired criteria. Candidates took the examinations in November and December 2003. Seventy-seven candidates completed the lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, 6 blacks, and 3 Hispanics. 554 F. Supp. 2d, at 145. Eight lieutenant positions were vacant at the time of the examination. As the rule of three operated, this meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Ibid. Subsequent vacancies would have allowed at least 3 black candidates to be considered for promotion to lieutenant. Forty-one candidates completed the captain examination—25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed—16 whites, 3 blacks, and 3 Hispanics. Ibid. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain—7 whites and 2 Hispanics. Ibid. B The City’s contract with IOS contemplated that, after the examinations, IOS would prepare a technical report that described the examination processes and methodologies and analyzed the results. But in January 2004, rather than requesting the technical report, City officials, including the City’s counsel, Thomas Ude, convened a meeting with IOS Vice President Chad Legel. (Legel was the leader of the IOS team that developed and administered the tests.) Based on the test results, the City officials expressed concern that the tests had discriminated against minority candidates. Legel defended the examinations’ validity, stating that any numerical disparity between white and minority candidates was likely due to various external factors and was in line with results of the Department’s previous promotional examinations. Several days after the meeting, Ude sent a letter to the CSB purporting to outline its duties with respect to the examination results. Ude stated that under federal law, “a statistical demonstration of disparate impact,” standing alone, “constitutes a sufficiently serious claim of racial discrimination to serve as a predicate for employer-initiated, voluntar[y] remedies—even … race-conscious remedies.” App. to Pet. for Cert. in No. 07–1428, p. 443a; see also 554 F. Supp. 2d, at 145 (issue of disparate impact “appears to have been raised by … Ude”). 1 The CSB first met to consider certifying the results on January 22, 2004. Tina Burgett, director of the City’s Department of Human Resources, opened the meeting by telling the CSB that “there is a significant disparate impact on these two exams.” App. to Pet. for Cert. in No. 07–1428, at 466a. She distributed lists showing the candidates’ races and scores (written, oral, and composite) but not their names. Ude also described the test results as reflecting “a very significant disparate impact,” id., at 477a, and he outlined possible grounds for the CSB’s refusing to certify the results. Although they did not know whether they had passed or failed, some firefighter-candidates spoke at the first CSB meeting in favor of certifying the test results. Michael Blatchley stated that “[e]very one” of the questions on the written examination “came from the [study] material. … [I]f you read the materials and you studied the material, you would have done well on the test.” App. in No. 06–4996–cv (CA2), pp. A772–A773 (hereinafter CA2 App.). Frank Ricci stated that the test questions were based on the Department’s own rules and procedures and on “nationally recognized” materials that represented the “accepted standard[s]” for firefighting. Id., at A785–A786. Ricci stated that he had “several learning disabilities,” including dyslexia; that he had spent more than $1,000 to purchase the materials and pay his neighbor to read them on tape so he could “give it [his] best shot”; and that he had studied “8 to 13 hours a day to prepare” for the test. Id., at A786, A789. “I don’t even know if I made it,” Ricci told the CSB, “[b]ut the people who passed should be promoted. When your life’s on the line, second best may not be good enough.” Id., at A787–A788. Other firefighters spoke against certifying the test results. They described the test questions as outdated or not relevant to firefighting practices in New Haven. Gary Tinney stated that source materials “came out of New York. . . . Their makeup of their city and everything is totally different than ours.” Id., at A774–A775; see also id., at A779, A780–A781. And they criticized the test materials, a full set of which cost about $500, for being too expensive and too long. 2 At a second CSB meeting, on February 5, the president of the New Haven firefighters’ union asked the CSB to perform a validation study to determine whether the tests were job-related. Petitioners’ counsel in this action argued that the CSB should certify the results. A representative of the International Association of Black Professional Firefighters, Donald Day from neighboring Bridgeport, Connecticut, “beseech[ed]” the CSB “to throw away that test,” which he described as “inherently unfair” because of the racial distribution of the results. Id., at A830–A831. Another Bridgeport-based representative of the association, Ronald Mackey, stated that a validation study was necessary. He suggested that the City could “adjust” the test results to “meet the criteria of having a certain amount of minorities get elevated to the rank of Lieutenant and Captain.” Id., at A838. At the end of this meeting, the CSB members agreed to ask IOS to send a representative to explain how it had developed and administered the examinations. They also discussed asking a panel of experts to review the examinations and advise the CSB whether to certify the results. 3 At a third meeting, on February 11, Legel addressed the CSB on behalf of IOS. Legel stated that IOS had previously prepared entry-level firefighter examinations for the City but not a promotional examination. He explained that IOS had developed examinations for departments in communities with demographics similar to New Haven’s, including Orange County, Florida; Lansing, Michigan; and San Jose, California. Legel explained the exam-development process to the CSB. He began by describing the job analyses IOS performed of the captain and lieutenant positions—the interviews, ride-alongs, and questionnaires IOS designed to “generate a list of tasks, knowledge, skills and abilities that are considered essential to performance” of the jobs. Id., at A931–A932. He outlined how IOS prepared the written and oral examinations, based on the job-analysis results, to test most heavily those qualities that the results indicated were “critica[l]” or “essentia[l].” Id., at A931. And he noted that IOS took the material for each test question directly from the approved source materials. Legel told the CSB that third-party reviewers had scrutinized the examinations to ensure that the written test was drawn from the source material and that the oral test accurately tested real-world situations that captains and lieutenants would face. Legel confirmed that IOS had selected oral-examination panelists so that each three-member assessment panel included one white, one black, and one Hispanic member. Near the end of his remarks, Legel “implor[ed] anyone that had … concerns to review the content of the exam. In my professional opinion, it’s facially neutral. There’s nothing in those examinations … that should cause somebody to think that one group would perform differently than another group.” Id., at A961. 4 At the next meeting, on March 11, the CSB heard from three witnesses it had selected to “tell us a little bit about their views of the testing, the process, [and] the methodology.” Id., at A1020. The first, Christopher Hornick, spoke to the CSB by telephone. Hornick is an industrial/organizational psychologist from Texas who operates a consulting business that “direct[ly]” competes with IOS. Id., at A1029. Hornick, who had not “stud[ied] the test at length or in detail” and had not “seen the job analysis data,” told the CSB that the scores indicated a “relatively high adverse impact.” Id., at A1028, A1030, A1043. He stated that “[n]ormally, whites outperform ethnic minorities on the majority of standardized testing procedures,” but that he was “a little surprised” by the disparity in the candidates’ scores—although “[s]ome of it is fairly typical of what we’ve seen in other areas of the countr[y] and other tests.” Id., at A1028–A1029. Hornick stated that the “adverse impact on the written exam was somewhat higher but generally in the range that we’ve seen professionally.” Id., at A1030–A1031. When asked to explain the New Haven test results, Hornick opined in the telephone conversation that the collective-bargaining agreement’s requirement of using written and oral examinations with a 60/40 composite score might account for the statistical disparity. He also stated that “[b]y not having anyone from within the [D]epartment review” the tests before they were administered—a limitation the City had imposed to protect the security of the exam questions—“you inevitably get things in there” that are based on the source materials but are not relevant to New Haven. Id., at A1034–A1035. Hornick suggested that testing candidates at an “assessment center” rather than using written and oral examinations “might serve [the City’s] needs better.” Id., at A1039–A1040. Hornick stated that assessment centers, where candidates face real-world situations and respond just as they would in the field, allow candidates “to demonstrate how they would address a particular problem as opposed to just verbally saying it or identifying the correct option on a written test.” Ibid. Hornick made clear that he was “not suggesting that [IOS] somehow created a test that had adverse impacts that it should not have had.” Id., at A1038. He described the IOS examinations as “reasonably good test[s].” Id., at A1041. He stated that the CSB’s best option might be to “certify the list as it exists” and work to change the process for future tests, including by “[r]ewriting the Civil Service Rules.” Ibid. Hornick concluded his telephonic remarks by telling the CSB that “for the future,” his company “certainly would like to help you if we can.” Id., at A1046. The second witness was Vincent Lewis, a fire program specialist for the Department of Homeland Security and a retired fire captain from Michigan. Lewis, who is black, had looked “extensively” at the lieutenant exam and “a little less extensively” at the captain exam. He stated that the candidates “should know that material.” Id., at A1048, A1052. In Lewis’s view, the “questions were relevant for both exams,” and the New Haven candidates had an advantage because the study materials identified the particular book chapters from which the questions were taken. In other departments, by contrast, “you had to know basically the … entire book.” Id., at A1053. Lewis concluded that any disparate impact likely was due to a pattern that “usually whites outperform some of the minorities on testing,” or that “more whites … take the exam.” Id., at A1054. The final witness was Janet Helms, a professor at Boston College whose “primary area of expertise” is “not with firefighters per se” but in “race and culture as they influence performance on tests and other assessment procedures.” Id., at A1060. Helms expressly declined the CSB’s offer to review the examinations. At the outset, she noted that “regardless of what kind of written test we give in this country … we can just about predict how many people will pass who are members of under-represented groups. And your data are not that inconsistent with what predictions would say were the case.” Id., at A1061. Helms nevertheless offered several “ideas about what might be possible factors” to explain statistical differences in the results. Id., at A1062. She concluded that because 67 percent of the respondents to the job-analysis questionnaires were white, the test questions might have favored white candidates, because “most of the literature on firefighters shows that the different groups perform the job differently.” Id., at A1063. Helms closed by stating that no matter what test the City had administered, it would have revealed “a disparity between blacks and whites, Hispanics and whites,” particularly on a written test. Id., at A1072. 5 At the final CSB meeting, on March 18, Ude (the City’s counsel) argued against certifying the examination results. Discussing the City’s obligations under federal law, Ude advised the CSB that a finding of adverse impact “is the beginning, not the end, of a review of testing procedures” to determine whether they violated the disparate-impact provision of Title VII. Ude focused the CSB on determining “whether there are other ways to test for … those positions that are equally valid with less adverse impact.” Id., at A1101. Ude described Hornick as having said that the written examination “had one of the most severe adverse impacts that he had seen” and that “there are much better alternatives to identifying [firefighting] skills.” Ibid. Ude offered his “opinion that promotions … as a result of these tests would not be consistent with federal law, would not be consistent with the purposes of our Civil Service Rules or our Charter[,] nor is it in the best interests of the firefighters … who took the exams.” Id., at A1103–A1104. He stated that previous Department exams “have not had this kind of result,” and that previous results had not been “challenged as having adverse impact, whereas we are assured that these will be.” Id., at A1107, A1108. CSB Chairman Segaloff asked Ude several questions about the Title VII disparate-impact standard. “CHAIRPERSON SEGALOFF: [M]y understanding is the group … that is making to throw the exam out has the burden of showing that there is out there an exam that is reasonably probable or likely to have less of an adverse impact. It’s not our burden to show that there’s an exam out there that can be better. We’ve got an exam. We’ve got a result… . “MR. UDE: Mr. Chair, I point out that Dr. Hornick said that. He said that there are other tests out there that would have less adverse impact and that [would] be more valid. “CHAIRPERSON SEGALOFF: You think that’s enough for us to throw this test upside-down … because Dr. Hornick said it? “MR. UDE: I think that by itself would be sufficient. Yes. I also would point out that … it is the employer’s burden to justify the use of the examination.” Id., at A1108–A1109. Karen DuBois-Walton, the City’s chief administrative officer, spoke on behalf of Mayor John DeStefano and argued against certifying the results. DuBois-Walton stated that the results, when considered under the rule of three and applied to then-existing captain and lieutenant vacancies, created a situation in which black and Hispanic candidates were disproportionately excluded from opportunity. DuBois-Walton also relied on Hornick’s testimony, asserting that Hornick “made it extremely clear that … there are more appropriate ways to assess one’s ability to serve” as a captain or lieutenant. Id., at A1120. Burgett (the human resources director) asked the CSB to discard the examination results. She, too, relied on Hornick’s statement to show the existence of alternative testing methods, describing Hornick as having “started to point out that alternative testing does exist” and as having “begun to suggest that there are some different ways of doing written examinations.” Id., at A1125, A1128. Other witnesses addressed the CSB. They included the president of the New Haven firefighters’ union, who supported certification. He reminded the CSB that Hornick “also concluded that the tests were reasonable and fair and under the current structure to certify them.” Id., at A1137. Firefighter Frank Ricci again argued for certification; he stated that although “assessment centers in some cases show less adverse impact,” id., at A1140, they were not available alternatives for the current round of promotions. It would take several years, Ricci explained, for the Department to develop an assessment-center protocol and the accompanying training materials. Id., at A1141. Lieutenant Matthew Marcarelli, who had taken the captain’s exam, spoke in favor of certification. At the close of witness testimony, the CSB voted on a motion to certify the examinations. With one member recused, the CSB deadlocked 2 to 2, resulting in a decision not to certify the results. Explaining his vote to certify the results, Chairman Segaloff stated that “nobody convinced me that we can feel comfortable that, in fact, there’s some likelihood that there’s going to be an exam designed that’s going to be less discriminatory.” Id., at A1159–A1160. C The CSB’s decision not to certify the examination results led to this lawsuit. The plaintiffs—who are the petitioners here—are 17 white firefighters and 1 Hispanic firefighter who passed the examinations but were denied a chance at promotions when the CSB refused to certify the test results. They include the named plaintiff, Frank Ricci, who addressed the CSB at multiple meetings. Petitioners sued the City, Mayor DeStefano, DuBois-Walton, Ude, Burgett, and the two CSB members who voted against certification. Petitioners also named as a defendant Boise Kimber, a New Haven resident who voiced strong opposition to certifying the results. Those individuals are respondents in this Court. Petitioners filed suit under Rev. Stat. §§1979 and 1980, 42 U. S. C. §§1983 and 1985, alleging that respondents, by arguing or voting against certifying the results, violated and conspired to violate the Equal Protection Clause of the Fourteenth Amendment. Petitioners also filed timely charges of discrimination with the Equal Employment Opportunity Commission (EEOC); upon the EEOC’s issuing right-to-sue letters, petitioners amended their complaint to assert that the City violated the disparate-treatment prohibition contained in Title VII of the Civil Rights Act of 1964, as amended. See 42 U. S. C. §§2000e–2(a). The parties filed cross-motions for summary judgment. Respondents asserted they had a good-faith belief that they would have violated the disparate-impact prohibition in Title VII, §2000e–2(k), had they certified the examination results. It follows, they maintained, that they cannot be held liable under Title VII’s disparate-treatment provision for attempting to comply with Title VII’s disparate-impact bar. Petitioners countered that respondents’ good-faith belief was not a valid defense to allegations of disparate treatment and unconstitutional discrimination. The District Court granted summary judgment for respondents. 554 F. Supp. 2d 142. It described petitioners’ argument as “boil[ing] down to the assertion that if [respondents] cannot prove that the disparities on the Lieutenant and Captain exams were due to a particular flaw inherent in those exams, then they should have certified the results because there was no other alternative in place.” Id., at 156. The District Court concluded that, “[n]otwithstanding the shortcomings in the evidence on existing, effective alternatives, it is not the case that [respondents] must certify a test where they cannot pinpoint its deficiency explaining its disparate impact … simply because they have not yet formulated a better selection method.” Ibid. It also ruled that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact … does not, as a matter of law, constitute discriminatory intent” under Title VII. Id., at 160. The District Court rejected petitioners’ equal protection claim on the theory that respondents had not acted because of “discriminatory animus” toward petitioners. Id., at 162. It concluded that respondents’ actions were not “based on race” because “all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted.” Id., at 161. After full briefing and argument by the parties, the Court of Appeals affirmed in a one-paragraph, unpublished summary order; it later withdrew that order, issuing in its place a nearly identical, one-paragraph per curiam opinion adopting the District Court’s reasoning. 530 F. 3d 87 (CA2 2008). Three days later, the Court of Appeals voted 7 to 6 to deny rehearing en banc, over written dissents by Chief Judge Jacobs and Judge Cabranes. 530 F. 3d 88. This action presents two provisions of Title VII to be interpreted and reconciled, with few, if any, precedents in the courts of appeals discussing the issue. Depending on the resolution of the statutory claim, a fundamental constitutional question could also arise. We found it prudent and appropriate to grant certiorari. 555 U. S. ___ (2009). We now reverse. II Petitioners raise a statutory claim, under the disparate-treatment prohibition of Title VII, and a constitutional claim, under the Equal Protection Clause of the Fourteenth Amendment. A decision for petitioners on their statutory claim would provide the relief sought, so we consider it first. See Atkins v. Parker, 472 U. S. 115, 123 (1985); Escambia County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam) (“[N]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case”). A Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”). As enacted in 1964, Title VII’s principal nondiscrimination provision held employers liable only for disparate treatment. That section retains its original wording today. It makes it unlawful 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.” §2000e–2(a)(1); see also 78 Stat. 255. Disparate-treatment cases present “the most easily understood type of discrimination,” Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977), and occur where an employer has “treated [a] particular person less favorably than others because of” a protected trait. Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 985–986 (1988). A disparate-treatment plaintiff must establish “that the defendant had a discriminatory intent or motive” for taking a job-related action. Id., at 986. The Civil Rights Act of 1964 did not include an express prohibition on policies or practices that produce a disparate impact. But in Griggs v. Duke Power Co., 401 U. S. 424 (1971), the Court interpreted the Act to prohibit, in some cases, employers’ facially neutral practices that, in fact, are “discriminatory in operation.” Id., at 431. The Griggs Court stated that the “touchstone” for disparate-impact liability is the lack of “business necessity”: “If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited.” Ibid.; see also id., at 432 (employer’s burden to demonstrate that practice has “a manifest relationship to the employment in question”); Albemarle Paper Co. v. Moody, 422 U. S. 405, 425 (1975). Under those precedents, if an employer met its burden by showing that its practice was job-related, the plaintiff was required to show a legitimate alternative that would have resulted in less discrimination. Ibid. (allowing complaining party to show “that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest”). Twenty years after Griggs, the Civil Rights Act of 1991, 105 Stat. 1071, was enacted. The Act included a provision codifying the prohibition on disparate-impact discrimination. That provision is now in force along with the disparate-treatment section already noted. Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(k)(1)(A)(i). An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” Ibid. Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). B Petitioners allege that when the CSB refused to certify the captain and lieutenant exam results based on the race of the successful candidates, it discriminated against them in violation of Title VII’s disparate-treatment provision. The City counters that its decision was permissible because the tests “appear[ed] to violate Title VII’s disparate-impact provisions.” Brief for Respondents 12. Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” 554 F. Supp. 2d, at 152; see also ibid. (respondents’ “own arguments … show that the City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. See §2000e–2(a)(1). The District Court did not adhere to this principle, however. It held that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact … does not, as a matter of law, constitute discriminatory intent.” 554 F. Supp. 2d, at 160. And the Government makes a similar argument in this Court. It contends that the “structure of Title VII belies any claim that an employer’s intent to comply with Title VII’s disparate-impact provisions constitutes prohibited discrimination on the basis of race.” Brief for United States as Amicus Curiae 11. But both of those statements turn upon the City’s objective—avoiding disparate-impact liability—while ignoring the City’s conduct in the name of reaching that objective. Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action. We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Courts often confront cases in which statutes and principles point in different directions. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them. In providing this guidance our decision must be consistent with the important purpose of Title VII—that the workplace be an environment free of discrimination, where race is not a barrier to opportunity. With these principles in mind, we turn to the parties’ proposed means of reconciling the statutory provisions. Petitioners take a strict approach, arguing that under Title VII, it cannot be permissible for an employer to take race-based adverse employment actions in order to avoid disparate-impact liability—even if the employer knows its practice violates the disparate-impact provision. See Brief for Petitioners 43. Petitioners would have us hold that, under Title VII, avoiding unintentional discrimination cannot justify intentional discrimination. That assertion, however, ignores the fact that, by codifying the disparate-impact provision in 1991, Congress has expressly prohibited both types of discrimination. We must interpret the statute to give effect to both provisions where possible. See, e.g., United States v. Atlantic Research Corp., 551 U. S. 128, 137 (2007) (rejecting an interpretation that would render a statutory provision “a dead letter”). We cannot accept petitioners’ broad and inflexible formulation. Petitioners next suggest that an employer in fact must be in violation of the disparate-impact provision before it can use compliance as a defense in a disparate-treatment suit. Again, this is overly simplistic and too restrictive of Title VII’s purpose. The rule petitioners offer would run counter to what we have recognized as Congress’s intent that “voluntary compliance” be “the preferred means of achieving the objectives of Title VII.” Firefighters v. Cleveland, 478 U. S. 501, 515 (1986); see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 290 (1986) (O’Connor, J., concurring in part and concurring in judgment). Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near standstill. Even in the limited situations when this restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment. At the opposite end of the spectrum, respondents and the Government assert that an employer’s good-faith belief that its actions are necessary to comply with Title VII’s disparate-impact provision should be enough to justify race-conscious conduct. But the original, foundational prohibition of Title VII bars employers from taking adverse action “because of … race.” §2000e–2(a)(1). And when Congress codified the disparate-impact provision in 1991, it made no exception to disparate-treatment liability for actions taken in a good-faith effort to comply with the new, disparate-impact provision in subsection (k). Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a “focus on statistics … could put undue pressure on employers to adopt inappropriate prophylactic measures.” Watson, 487 U. S., at 992 (plurality opinion). Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer’s preferred racial balance. That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing. §2000e–2(j). The purpose of Title VII “is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.” Griggs, 401 U. S., at 434. In searching for a standard that strikes a more appropriate balance, we note that this Court has considered cases similar to this one, albeit in the context of the Equal Protection Clause of the Fourteenth Amendment. The Court has held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “ ‘strong basis in evidence’ ” that the remedial actions were necessary. Richmond v. J. A. Croson Co., 488 U. S. 469, 500 (1989) (quoting Wygant, supra, at 277 (plurality opinion)). This suit does not call on us to consider whether the statutory constraints under Title VII must be parallel in all respects to those under the Constitution. That does not mean the constitutional authorities are irrelevant, however. Our cases discussing constitutional principles can provide helpful guidance in this statutory context. See Watson, supra, at 993 (plurality opinion). Writing for a plurality in Wygant and announcing the strong-basis-in-evidence standard, Justice Powell recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. The plurality stated that those “related constitutional duties are not always harmonious,” and that “reconciling them requires … employers to act with extraordinary care.” Ibid. The plurality required a strong basis in evidence because “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid. The Court applied the same standard in Croson, observing that “an amorphous claim that there has been past discrimination … cannot justify the use of an unyielding racial quota.” 488 U. S., at 499. The same interests are at work in the interplay between the disparate-treatment and disparate-impact provisions of Title VII. Congress has imposed liability on employers for unintentional discrimination in order to rid the workplace of “practices that are fair in form, but discriminatory in operation.” Griggs, supra, at 431. But it has also prohibited employers from taking adverse employment actions “because of” race. §2000e–2(a)(1). Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. See Firefighters, supra, at 515. And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation. Resolving the statutory conflict in this way allows the disparate-impact prohibition to work in a manner that is consistent with other provisions of Title VII, including the prohibition on adjusting employment-related test scores on the basis of race. See §2000e–2(l). Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics. If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations. See §2000e–2(h) (“[N]or shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race”); cf. AT&T Corp. v. Hulteen, 556 U. S. ___, ___ (2009) (slip op., at 8). For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII. Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution. Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e–2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race. Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race. And when, during the test-design stage, an employer invites comments to ensure the test is fair, that process can provide a common ground for open discussions toward that end. We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. C The City argues that, even under the strong-basis-in-evidence standard, its decision to discard the examination results was permissible under Title VII. That is incorrect. Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII. On this basis, we conclude that petitioners have met their obligation to demonstrate that there is “no genuine issue as to any material fact” and that they are “entitled to judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c). On a motion for summary judgment, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U. S. 372, 380 (2007). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986) (internal quotation marks omitted). In this Court, the City’s only defense is that it acted to comply with Title VII’s disparate-impact provision. To succeed on their motion, then, petitioners must demonstrate that there can be no genuine dispute that there was no strong basis in evidence for the City to conclude it would face disparate-impact liability if it certified the examination results. See Celotex Corp. v. Catrett, 477 U. S. 317, 324 (1986) (where the nonmoving party “will bear the burden of proof at trial on a dispositive issue,” the nonmoving party bears the burden of production under Rule 56 to “designate specific facts showing that there is a genuine issue for trial” (internal quotation marks omitted)). The racial adverse impact here was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. On the captain exam, the pass rate for white candidates was 64 percent but was 37.5 percent for both black and Hispanic candidates. On the lieutenant exam, the pass rate for white candidates was 58.1 percent; for black candidates, 31.6 percent; and for Hispanic candidates, 20 percent. The pass rates of minorities, which were approximately one-half the pass rates for white candidates, fall well below the 80-percent standard set by the EEOC to implement the disparate-impact provision of Title VII. See 29 CFR §1607.4(D) (2008) (selection rate that is less than 80 percent “of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact”); Watson, 487 U. S., at 995–996, n. 3 (plurality opinion) (EEOC’s 80-percent standard is “a rule of thumb for the courts”). Based on how the passing candidates ranked and an application of the “rule of three,” certifying the examinations would have meant that the City could not have considered black candidates for any of the then-vacant lieutenant or captain positions. Based on the degree of adverse impact reflected in the results, respondents were compelled to take a hard look at the examinations to determine whether certifying the results would have had an impermissible disparate impact. The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446 (1982), and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C). We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects. We address each of the two points in turn, based on the record developed by the parties through discovery—a record that concentrates in substantial part on the statements various witnesses made to the CSB. 1 There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” Scott, supra, at 380. The CSB heard statements from Chad Legel (the IOS vice president) as well as city officials outlining the detailed steps IOS took to develop and administer the examinations. IOS devised the written examinations, which were the focus of the CSB’s inquiry, after painstaking analyses of the captain and lieutenant positions—analyses in which IOS made sure that minorities were overrepresented. And IOS drew the questions from source material approved by the Department. Of the outside witnesses who appeared before the CSB, only one, Vincent Lewis, had reviewed the examinations in any detail, and he was the only one with any firefighting experience. Lewis stated that the “questions were relevant for both exams.” CA2 App. A1053. The only other witness who had seen any part of the examinations, Christopher Hornick (a competitor of IOS’s), criticized the fact that no one within the Department had reviewed the tests—a condition imposed by the City to protect the integrity of the exams in light of past alleged security breaches. But Hornick stated that the exams “appea[r] to be . . reasonably good” and recommended that the CSB certify the results. Id., at A1041. Arguing that the examinations were not job-related, respondents note some candidates’ complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in New Haven. But Legel told the CSB that IOS had addressed those concerns—that it entertained “a handful” of challenges to the validity of particular examination questions, that it “reviewed those challenges and provided feedback [to the City] as to what we thought the best course of action was,” and that he could remember at least one question IOS had thrown out (“offer[ing] credit to everybody for that particular question”). Id., at A955–A957. For his part, Hornick said he “suspect[ed] that some of the criticisms … [leveled] by candidates” were not valid. Id., at A1035. The City, moreover, turned a blind eye to evidence that supported the exams’ validity. Although the City’s contract with IOS contemplated that IOS would prepare a technical report consistent with EEOC guidelines for examination-validity studies, the City made no request for its report. After the January 2004 meeting between Legel and some of the city-official respondents, in which Legel defended the examinations, the City sought no further information from IOS, save its appearance at a CSB meeting to explain how it developed and administered the examinations. IOS stood ready to provide respondents with detailed information to establish the validity of the exams, but respondents did not accept that offer. 2 Respondents also lacked a strong basis in evidence of an equally valid, less-discriminatory testing alternative that the City, by certifying the examination results, would necessarily have refused to adopt. Respondents raise three arguments to the contrary, but each argument fails. First, respondents refer to testimony before the CSB that a different composite-score calculation—weighting the written and oral examination scores 30/70—would have allowed the City to consider two black candidates for then-open lieutenant positions and one black candidate for then-open captain positions. (The City used a 60/40 weighting as required by its contract with the New Haven firefighters’ union.) But respondents have produced no evidence to show that the 60/40 weighting was indeed arbitrary. In fact, because that formula was the result of a union-negotiated collective-bargaining agreement, we presume the parties negotiated that weighting for a rational reason. Nor does the record contain any evidence that the 30/70 weighting would be an equally valid way to determine whether candidates possess the proper mix of job knowledge and situational skills to earn promotions. Changing the weighting formula, moreover, could well have violated Title VII’s prohibition of altering test scores on the basis of race. See §2000e–2(l). On this record, there is no basis to conclude that a 30/70 weighting was an equally valid alternative the City could have adopted. Second, respondents argue that the City could have adopted a different interpretation of the “rule of three” that would have produced less discriminatory results. The rule, in the New Haven city charter, requires the City to promote only from “those applicants with the three highest scores” on a promotional examination. New Haven, Conn., Code of Ordinances, Tit. I, Art. XXX, §160 (1992). A state court has interpreted the charter to prohibit so-called “banding”—the City’s previous practice of rounding scores to the nearest whole number and considering all candidates with the same whole-number score as being of one rank. Banding allowed the City to consider three ranks of candidates (with the possibility of multiple candidates filling each rank) for purposes of the rule of three. See Kelly v. New Haven, No. CV000444614, 2004 WL 114377, *3 (Conn. Super. Ct., Jan. 9, 2004). Respondents claim that employing banding here would have made four black and one Hispanic candidates eligible for then-open lieutenant and captain positions. A state court’s prohibition of banding, as a matter of municipal law under the charter, may not eliminate banding as a valid alternative under Title VII. See 42 U. S. C. §2000e–7. We need not resolve that point, however. Here, banding was not a valid alternative for this reason: Had the City reviewed the exam results and then adopted banding to make the minority test scores appear higher, it would have violated Title VII’s prohibition of adjusting test results on the basis of race. §2000e–2(l); see also Chicago Firefighters Local 2 v. Chicago, 249 F. 3d 649, 656 (CA7 2001) (Posner, J.) (“We have no doubt that if banding were adopted in order to make lower black scores seem higher, it would indeed be … forbidden”). As a matter of law, banding was not an alternative available to the City when it was considering whether to certify the examination results. Third, and finally, respondents refer to statements by Hornick in his telephone interview with the CSB regarding alternatives to the written examinations. Hornick stated his “belie[f]” that an “assessment center process,” which would have evaluated candidates’ behavior in typical job tasks, “would have demonstrated less adverse impact.” CA2 App. A1039. But Hornick’s brief mention of alternative testing methods, standing alone, does not raise a genuine issue of material fact that assessment centers were available to the City at the time of the examinations and that they would have produced less adverse impact. Other statements to the CSB indicated that the Department could not have used assessment centers for the 2003 examinations. Supra, at 14. And although respondents later argued to the CSB that Hornick had pushed the City to reject the test results, supra, at 15–17, the truth is that the essence of Hornick’s remarks supported its certifying the test results. See Scott, 550 U. S., at 380. Hornick stated that adverse impact in standardized testing “has been in existence since the beginning of testing,” CA2 App. A1037, and that the disparity in New Haven’s test results was “somewhat higher but generally in the range that we’ve seen professionally.” Id., at A1030–A1031. He told the CSB he was “not suggesting” that IOS “somehow created a test that had adverse impacts that it should not have had.” Id., at A1038. And he suggested that the CSB should “certify the list as it exists.” Id., at A1041. Especially when it is noted that the strong-basis-in-evidence standard applies, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. And there is no doubt respondents fall short of the mark by relying entirely on isolated statements by Hornick. Hornick had not “stud[ied] the test at length or in detail.” Id., at A1030. And as he told the CSB, he is a “direct competitor” of IOS’s. Id., at A1029. The remainder of his remarks showed that Hornick’s primary concern—somewhat to the frustration of CSB members—was marketing his services for the future, not commenting on the results of the tests the City had already administered. See, e.g., id., at A1026, A1027, A1032, A1036, A1040, A1041. Hornick’s hinting had its intended effect: The City has since hired him as a consultant. As for the other outside witnesses who spoke to the CSB, Vincent Lewis (the retired fire captain) thought the CSB should certify the test results. And Janet Helms (the Boston College professor) declined to review the examinations and told the CSB that, as a society, “we need to develop a new way of assessing people.” Id., at A1073. That task was beyond the reach of the CSB, which was concerned with the adequacy of the test results before it. 3 On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidence —let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. * * * The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair. The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results. Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Petitioners are entitled to summary judgment on their Title VII claim, and we therefore need not decide the underlying constitutional question. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. |
556.US.2008_07-9995 | During jury selection in petitioner Rivera’s state-court first-degree murder trial, his counsel sought to use a peremptory challenge to excuse venire member Deloris Gomez. Rivera had already exercised two peremptory challenges against women, one of whom was African-American. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was biased against him. The trial court rejected the peremptory challenge out of concern that it was discriminatory. Under Batson v. Kentucky, 476 U. S. 79, and later decisions applying Batson, parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors based on race, ethnicity, or sex. At trial, the jury, with Gomez as its foreperson, found Rivera guilty of first-degree murder. The Illinois Supreme Court subsequently affirmed the conviction, holding that the peremptory challenge should have been allowed, but rejecting Rivera’s argument that the improper seating of Gomez was a reversible error. Observing that the Constitution does not mandate peremptory challenges and that they are not necessary for a fair trial, the court held that the denial of Rivera’s peremptory challenge was not a structural error requiring automatic reversal. Nor, the court found, was the error harmless beyond a reasonable doubt. The court added that it did not need to decide whether the trial court’s denial was “an error of constitutional dimension” in the circumstances of Rivera’s case, a comment that appears to be related to Rivera’s arguments that, even absent a freestanding constitutional entitlement to peremptory challenges, the inclusion of Gomez on his jury violated the Fourteenth Amendment’s Due Process Clause. Held: Provided that all jurors seated in a criminal case are qualified and unbiased, the Due Process Clause does not require automatic reversal of a conviction because of the trial court’s good-faith error in denying the defendant’s peremptory challenge to a juror. Pp. 6–12. (a) Rivera maintains that due process requires reversal whenever a criminal defendant’s peremptory challenge is erroneously denied. He asserts that a trial court that fails to dismiss a lawfully challenged juror commits structural error because the jury becomes an illegally constituted tribunal, whose verdict is per se invalid; that this is true even if the Constitution does not mandate peremptory challenges, since criminal defendants have a constitutionally protected liberty interest in their state-provided peremptory challenge rights; that the issue is not amenable to harmless-error analysis, as it is impossible to ascertain how a properly constituted jury would have decided his case; and that automatic reversal therefore must be the rule as a matter of federal law. Rivera’s arguments do not withstand scrutiny. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws. There is no freestanding constitutional right to peremptory challenges. See, e.g., United States v. Martinez-Salazar, 528 U.S. 304, 311. They are “a creature of statute,” Ross v. Oklahoma, 487 U. S. 81, 89, which a State may decline to offer at all, Georgia v. McCollum, 505 U. S. 42, 57. Thus, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution. See, e.g., Engle v. Isaac, 456 U. S. 107, 121, n. 21. The Due Process Clause safeguards not the meticulous observance of state procedural prescriptions, but “the fundamental elements of fairness in a criminal trial.” Spencer v. Texas, 385 U. S. 554, 563–564. Pp. 6–8. (b) The trial judge’s refusal to excuse Gomez did not deprive Rivera of his constitutional right to a fair trial before an impartial jury. Ross is instructive. There, a criminal defendant used a peremptory challenge to rectify an Oklahoma trial court’s erroneous denial of a for-cause challenge, leaving him with one fewer peremptory challenge to use at his discretion. Even though the trial court’s error might “have resulted in a jury panel different from that which would otherwise have decided [Ross’s] case,” 487 U. S., at 87, because no member of the jury as finally composed was removable for cause, there was no violation of his Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process, id., at 86–91. This Court reached the same conclusion with regard to a federal-court trial in Martinez-Salazar, 528 U. S., at 316. Rivera’s efforts to distinguish Ross and Martinez-Salazar are unavailing. First, although in contrast to Rivera, the Ross and Martinez-Salazar defendants did not challenge any of the jurors who were in fact seated, neither Gomez nor any other member of Rivera’s jury was removable for cause. Thus, like the Ross and Martinez-Salazar juries, Rivera’s jury was impartial for Sixth Amendment purposes. Rivera suggests that due process concerns persist because Gomez knew he did not want her on the panel, but this Court rejects the notion that a juror is constitutionally disqualified whenever she is aware of a challenge. Second, it is not constitutionally significant that, in contrast to Ross and Martinez-Salazar, the seating of Gomez over Rivera’s peremptory challenge was at odds with state law. Errors of state law do not automatically become violations of due process. As in Ross and Martinez-Salazar, there is no suggestion here that the trial judge repeatedly or deliberately misapplied the law or acted in an arbitrary or irrational manner. Rather, his conduct reflected a good-faith effort to enforce Batson’s antidiscrimination requirements. To hold that a one-time, good-faith misapplication of Batson violates due process would likely discourage trial courts and prosecutors from policing a defendant’s discriminatory use of peremptory challenges. The Fourteenth Amendment does not compel such a tradeoff. Pp. 8–10. (c) Rivera errs in insisting that, even without a constitutional violation, the deprivation of a state-provided peremptory challenge requires reversal as a matter of federal law. He relies on a suggestion in Swain v. Alabama, 380 U. S. 202, 219, that “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice.” This statement was disavowed in Martinez-Salazar, see 528 U. S., at 317, n. 4. Typically, an error is designated as “structural,” therefore “requir[ing] automatic reversal,” only when “the error ‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ” Washington v. Recuenco, 548 U. S. 212, 218–219. The mistaken denial of a state-provided peremptory challenge does not, in the circumstances here, constitute such an error. The automatic reversal precedents Rivera cites are inapposite. One set of cases involves constitutional errors concerning the qualification of the jury or judge. See, e.g., Batson, 476 U. S., at 86, 87. A second set of cases involves circumstances in which federal judges or tribunals lacked statutory authority to adjudicate the controversy, resulting in a judgment invalid as a matter of federal law. See, e.g., Nguyen v. United States, 539 U. S. 69. Nothing in those decisions suggests that federal law renders state-court judgments void whenever there is a state-law defect in a tribunal’s composition. Absent a federal constitutional violation, States are free to decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory challenge is reversible error per se or, as the Illinois Supreme Court implicitly held here, that the improper seating of a competent and unbiased juror could rank as a harmless error under state law. Pp. 10–12. 227 Ill. 2d 1, 879 N. E. 2d 876, affirmed. Ginsburg, J., delivered the opinion for a unanimous Court. | This case concerns the consequences of a state trial court’s erroneous denial of a defendant’s peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction? Following a jury trial in an Illinois state court, defendant-petitioner Michael Rivera was convicted of first-degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court’s rejection of his peremptory challenge to venire member Deloris Gomez. Gomez sat on Rivera’s jury and indeed served as the jury’s foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera’s conviction. We affirm the judgment of the Illinois Supreme Court. The right to exercise peremptory challenges in state court is determined by state law. This Court has “long recognized” that “peremptory challenges are not of federal constitutional dimension.” United States v. Martinez-Salazar, 528 U. S. 304, 311 (2000). States may withhold peremptory challenges “altogether without impairing the constitutional guarantee of an impartial jury and a fair trial.” Georgia v. McCollum, 505 U. S. 42, 57 (1992). Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court’s determination that, in the circumstances Rivera’s case presents, the trial court’s error did not warrant reversal of his conviction. I Rivera was charged with first-degree murder in the Circuit Court of Cook County, Illinois. The State alleged that Rivera, who is Hispanic, shot and killed Marcus Lee, a 16-year-old African-American, after mistaking Lee for a member of a rival gang. During jury selection, Rivera’s counsel questioned prospective juror Deloris Gomez, a business office supervisor at Cook County Hospital’s outpatient orthopedic clinic. App. 32–33. Gomez stated that she sometimes interacted with patients during the check-in process and acknowledged that Cook County Hospital treats many gunshot victims. She maintained, however, that her work experience would not affect her ability to be impartial. After questioning Gomez, Rivera’s counsel sought to use a peremptory challenge to excuse her. Id., at 33. At that point in the jury’s selection, Rivera had already used three peremptory challenges. Two of the three were exercised against women; one of the two women thus eliminated was African-American. Illinois law affords each side seven peremptory challenges. See Ill. Sup. Ct. Rule 434(d) (West 2006). Rather than dismissing Gomez, the trial judge called counsel to chambers, where he expressed concern that the defense was discriminating against Gomez. App. 34–36. Under Batson v. Kentucky, 476 U. S. 79 (1986), and later decisions building upon Batson, parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors on the basis of race, ethnicity, or sex. Without specifying the type of discrimination he suspected or the reasons for his concern, the judge directed Rivera’s counsel to state his reasons for excusing Gomez. Counsel responded, first, that Gomez saw victims of violent crime on a daily basis. Counsel next added that he was “pulled in two different ways” because Gomez had “some kind of Hispanic connection given her name.” App. 34. At that point, the judge interjected that Gomez “appears to be an African American”—the second “African American female” the defense had struck. Id., at 34–35. Dissatisfied with counsel’s proffered reasons, the judge denied the challenge to Gomez, but agreed to allow counsel to question Gomez further. After asking Gomez additional questions about her work at the hospital, Rivera’s counsel renewed his challenge. Counsel observed, outside the jury’s presence, that most of the jurors already seated were women. Counsel said he hoped to “get some impact from possibly other men in the case.” Id., at 39. The court reaffirmed its earlier ruling, and Gomez was seated on the jury. Rivera’s case proceeded to trial. The jury, with Gomez as its foreperson, found Rivera guilty of first-degree murder. A divided panel of the Appellate Court of Illinois rejected Rivera’s challenge to the trial judge’s Batson ruling and affirmed his conviction. 348 Ill. App. 3d 168, 810 N. E. 2d 129 (2004). The Supreme Court of Illinois accepted Rivera’s petition for leave to appeal and remanded for further proceedings. 221 Ill. 2d 481, 852 N. E. 2d 771 (2006). A trial judge, the court held, may raise a Batson issue sU. S.onte only when there is a prima facie case of discrimination. Concluding that the record was insufficient to evaluate the existence of a prima facie case, the court instructed the trial judge to articulate the bases for his Batson ruling and, in particular, to clarify whether the alleged discrimination was on the basis of race, sex, or both. 221 Ill. 2d, at 515–516, 852 N. E. 2d, at 791. On remand, the trial judge stated that prima facie evidence of sex discrimination—namely, counsel’s two prior challenges to women and “the nature of [counsel’s] questions”—had prompted him to raise the Batson issue. App. 136. Counsel’s stated reasons for challenging Gomez, the judge reported, convinced him that that “there had been a purposeful discrimination against Mrs. Gomez because of her gender.” Id., at 137. The case then returned to the Illinois Supreme Court. Although that court disagreed with the trial judge’s assessment, it affirmed Rivera’s conviction. 227 Ill. 2d 1, 879 N. E. 2d 876 (2007). The Illinois High Court concluded “that the record fails to support a prima facie case of discrimination of any kind.” Id., at 15, 879 N. E. 2d, at 884. Accordingly, the court determined, the trial judge erred, first in demanding an explanation from Rivera’s counsel, and next, in denying Rivera’s peremptory challenge of Gomez. Ibid. Even so, the Illinois Supreme Court rejected Rivera’s ultimate argument that the improper seating of Gomez ranked as “reversible error without a showing of prejudice.” Id., at 16, 879 N. E. 2d, at 885 (quoting Swain v. Alabama, 380 U. S. 202, 219 (1965)). Citing this Court’s guiding decisions, the Illinois court observed that “the Constitution does not confer a right to peremptory challenges.” 227 Ill. 2d, at 17, 879 N. E. 2d, at 885 (quoting Batson, 476 U. S., at 91). Although “peremptory challenges are ‘one means of assuring the selection of a qualified and unbiased jury,’ ” the court explained, they are not “indispensable to a fair trial.” 227 Ill. 2d, at 16, 879 N. E. 2d, at 885 (quoting Batson, 476 U. S., at 91). Accordingly, the court held, the denial of Rivera’s peremptory challenge did not qualify as a structural error requiring automatic reversal. See 227 Ill. 2d, at 19–20, 879 N. E. 2d, at 887 (citing Washington v. Recuenco, 548 U. S. 212, 218–219 (2006)). The court saw no indication that Rivera had been “tried before a biased jury, or even one biased juror.” 227 Ill. 2d, at 20, 879 N. E. 2d, at 887. In that regard, the court stressed, Rivera did “not suggest that Gomez was subject to excusal for cause.” Ibid. Relying on both federal and state precedents, the court proceeded to consider whether it was “clear beyond a reasonable doubt that a rational jury would have found [Rivera] guilty absent the error.” Id., at 21, 879 N. E. 2d, at 887 (quoting Neder v. United States, 527 U. S. 1, 18 (1999)). After reviewing the trial record, the court concluded that Gomez’s presence on the jury did not prejudice Rivera because “any rational trier of fact would have found [Rivera] guilty of murder on the evidence adduced at trial.” 227 Ill. 2d, at 26, 879 N. E. 2d, at 890. Having held the error harmless beyond a reasonable doubt, the court added that it “need not decide whether the erroneous denial of a peremptory challenge is an error of constitutional dimension in these circumstances.” Id., at 27, 879 N. E. 2d, at 891. This comment, it appears, related to Rivera’s arguments that, even absent a freestanding constitutional entitlement to peremptory challenges, the inclusion of Gomez on his jury violated his Fourteenth Amendment right to due process of law. We granted certiorari, 554 U. S. __ (2008), to resolve an apparent conflict among state high courts over whether the erroneous denial of a peremptory challenge requires automatic reversal of a defendant’s conviction as a matter of federal law. Compare Angus v. State, 695 N. W. 2d 109, 118 (Minn. 2005) (applying automatic reversal rule); State v. Vreen, 143 Wash. 2d 923, 927–932, 26 P. 3d 236, 238–240 (2001) (same), with People v. Bell, 473 Mich. 275, 292–299, 702 N. W. 2d 128, 138–141 (2005) (rejecting automatic reversal rule and looking to state law to determine the consequences of an erroneous denial of a peremptory challenge); 227 Ill. 2d., at 15–27, 879 N. E. 2d, at 884–891 (case below). We now affirm the judgment of the Supreme Court of Illinois. II The Due Process Clause of the Fourteenth Amendment, Rivera maintains, requires reversal whenever a criminal defendant’s peremptory challenge is erroneously denied. Rivera recalls the ancient lineage of the peremptory challenge and observes that the challenge has long been lauded as a means to guard against latent bias and to secure “the constitutional end of an impartial jury and a fair trial.” McCollum, 505 U. S., at 57. When a trial court fails to dismiss a lawfully challenged juror, Rivera asserts, it commits structural error: the jury becomes an illegally constituted tribunal, and any verdict it renders is per se invalid. According to Rivera, this holds true even if the Constitution does not itself mandate peremptory challenges, because criminal defendants have a constitutionally protected liberty interest in their state-provided peremptory challenge rights. Cf. Evitts v. Lucey, 469 U. S. 387, 393 (1985) (although “the Constitution does not require States to grant appeals as of right to criminal defendants,” States that provide such appeals “must comport with the demands of the Due Process and Equal Protection Clauses”). The improper seating of a juror, Rivera insists, is not amenable to harmless-error analysis because it is impossible to ascertain how a properly constituted jury—here, one without juror Gomez—would have decided his case. Thus, he urges, whatever the constitutional status of peremptory challenges, automatic reversal must be the rule as a matter of federal law. Rivera’s arguments do not withstand scrutiny. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws. As Rivera acknowledges, Brief for Petitioner 38, this Court has consistently held that there is no freestanding constitutional right to peremptory challenges. See, e.g., Martinez-Salazar, 528 U. S., at 311. We have characterized peremptory challenges as “a creature of statute,” Ross v. Oklahoma, 487 U. S. 81, 89 (1988), and have made clear that a State may decline to offer them at all. McCollum, 505 U. S., at 57. See also Holland v. Illinois, 493 U. S. 474, 482 (1990) (dismissing the notion “that the requirement of an ‘impartial jury’ impliedly compels peremptory challenges”). When States provide peremptory challenges (as all do in some form), they confer a benefit “beyond the minimum requirements of fair [jury] selection,” Frazier v. United States, 335 U. S. 497, 506 (1948), and thus retain discretion to design and implement their own systems, Ross, 487 U. S., at 89.[Footnote 1] Because peremptory challenges are within the States’ province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution. “[A] mere error of state law,” we have noted, “is not a denial of due process.” Engle v. Isaac, 456 U. S. 107, 121, n. 21 (1982) (internal quotation marks omitted). See also Estelle v. McGuire, 502 U. S. 62, 67, 72–73 (1991). The Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state procedural prescriptions, but “the fundamental elements of fairness in a criminal trial.” Spencer v. Texas, 385 U. S. 554, 563–564 (1967). The trial judge’s refusal to excuse juror Gomez did not deprive Rivera of his constitutional right to a fair trial before an impartial jury. Our decision in Ross is instructive. Ross, a criminal defendant in Oklahoma, used a peremptory challenge to rectify the trial court’s erroneous denial of a for-cause challenge, leaving him with one fewer peremptory challenge to use at his discretion. The trial court’s error, we acknowledged, “may have resulted in a jury panel different from that which would otherwise have decided [Ross’s] case.” 487 U. S., at 87. But because no member of the jury as finally composed was removable for cause, we found no violation of Ross’s Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process. Id., at 86–91. We encountered a similar situation in Martinez-Salazar and reached the same conclusion. Martinez-Salazar, who was tried in federal court, was entitled to exercise peremptory challenges pursuant to Federal Rule of Criminal Procedure 24(b). His decision to use one of his peremptory challenges to cure the trial court’s erroneous denial of a for-cause challenge, we held, did not impair his rights under that Rule. “[A] principal reason for peremptories,” we explained, is “to help secure the constitutional guarantee of trial by an impartial jury.” 528 U. S., at 316. Having “received precisely what federal law provided,” and having been tried “by a jury on which no biased juror sat,” Martinez-Salazar could not “tenably assert any violation of his … right to due process.” Id., at 307, 317. Rivera’s efforts to distinguish Ross and Martinez-Salazar are unavailing. First, Rivera observes, the defendants in Ross and Martinez-Salazar did not challenge any of the jurors who were in fact seated. In contrast, Rivera attempted to exercise a peremptory challenge against a specific person—Gomez—whom he perceived to be unfavorable to his cause. But, as Rivera recognizes, neither Gomez nor any other member of his jury was removable for cause. See Tr. of Oral Arg. 9. Thus, like the juries in Ross and Martinez-Salazar, Rivera’s jury was impartial for Sixth Amendment purposes. Rivera suggests that due process concerns persist because Gomez knew he did not want her on the panel. Gomez, however, was not privy to the in camera discussions concerning Rivera’s attempt to exercise a peremptory strike against her. See, supra, at 3. We reject the notion that a juror is constitutionally disqualified whenever she is aware that a party has challenged her. Were the rule otherwise, a party could circumvent Batson by insisting in open court that a trial court dismiss a juror even though the party’s peremptory challenge was discriminatory. Or a party could obtain a juror’s dismissal simply by making in her presence a baseless for-cause challenge. Due process does not require such counterintuitive results. Second, it is not constitutionally significant that the seating of Gomez over Rivera’s peremptory challenge was at odds with state law. The defendants in Ross and Martinez-Salazar, Rivera emphasizes, were not denied their peremptory-challenge rights under applicable law—state law in Ross and the Federal Rules of Criminal Procedure in Martinez-Salazar. But as we have already explained, supra, at 7–8, errors of state law do not automatically become violations of due process. As in Ross and Martinez-Salazar, there is no suggestion here that the trial judge repeatedly or deliberately misapplied the law or acted in an arbitrary or irrational manner. Martinez-Salazar, 528 U. S., at 316; Ross, 487 U. S., at 91, n. 5. Rather, the trial judge’s conduct reflected a good-faith, if arguably overzealous, effort to enforce the antidiscrimination requirements of our Batson-related precedents. To hold that a one-time, good-faith misapplication of Batson violates due process would likely discourage trial courts and prosecutors from policing a criminal defendant’s discriminatory use of peremptory challenges. The Fourteenth Amendment does not compel such a tradeoff. Rivera insists that, even without a constitutional violation, the deprivation of a state-provided peremptory challenge requires reversal as a matter of federal law. We disagree. Rivera relies in part on Swain, 380 U. S. 202, which suggested that “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice.” Id., at 219. We disavowed this statement in Martinez-Salazar, observing, albeit in dicta, “that the oft-quoted language in Swain was not only unnecessary to the decision in that case . . . but was founded on a series of our early cases decided long before the adoption of harmless-error review.” 528 U. S., at 317, n. 4. As our recent decisions make clear, we typically designate an error as “structural,” therefore “requir[ing] automatic reversal,” only when “the error ‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ” Recuenco, 548 U. S., at 218–219 (quoting Neder, 527 U. S., at 9). The mistaken denial of a state-provided peremptory challenge does not, at least in the circumstances we confront here, constitute an error of that character. The automatic reversal precedents Rivera cites are inapposite. One set of cases involves constitutional errors concerning the qualification of the jury or judge. In Batson, for example, we held that the unlawful exclusion of jurors based on race requires reversal because it “violates a defendant’s right to equal protection,” “unconstitutionally discriminate[s] against the excluded juror,” and “undermine[s] public confidence in the fairness of our system of justice.” 476 U. S., at 86, 87. Similarly, dismissal of a juror in violation of Witherspoon v. Illinois, 391 U. S. 510 (1968),[Footnote 2] we have held, is constitutional error that requires vacation of a death sentence. See Gray v. Mississippi, 481 U. S. 648 (1987). See also Gomez v. United States, 490 U. S. 858, 876 (1989) (“Among those basic fair trial rights that can never be treated as harmless is a defendant’s right to an impartial adjudicator, be it judge or jury.” (internal quotation marks omitted)). A second set of cases involves circumstances in which federal judges or tribunals lacked statutory authority to adjudicate the controversy. We have held the resulting judgment in such cases invalid as a matter of federal law. See, e.g., Nguyen v. United States, 539 U. S. 69 (2003); Wingo v. Wedding, 418 U. S. 461 (1974). Nothing in these decisions suggests that federal law renders state-court judgments void whenever there is a state-law defect in a tribunal’s composition. Absent a federal constitutional violation, States retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal. States are free to decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory challenge is reversible error per se. Or they may conclude, as the Supreme Court of Illinois implicitly did here, that the improper seating of a competent and unbiased juror does not convert the jury into an ultra vires tribunal; therefore the error could rank as harmless under state law. In sum, Rivera received precisely what due process required: a fair trial before an impartial and properly instructed jury, which found him guilty of every element of the charged offense. * * * For the reasons stated, the judgment of the Supreme Court of Illinois is Affirmed. Footnote 1 See Dept. of Justice, Bureau of Justice Statistics, State Court Organization 2004, pp. 228–232 (2006) (Table 41), http://www.ojp.usdoj. gov/bjs/pub/pdf/sco04.pdf (as visited Mar. 27, 2009, and available in Clerk of Court’s case file) (detailing peremptory challenge rules by State). Footnote 2 Under Witherspoon v. Illinois, 391 U. S. 510 (1968), “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id., at 522. |
557.US.2008_08-479 | After escorting 13-year-old Savana Redding from her middle school classroom to his office, Assistant Principal Wilson showed her a day planner containing knives and other contraband. She admitted owning the planner, but said that she had lent it to her friend Marissa and that the contraband was not hers. He then produced four prescription-strength, and one over-the-counter, pain relief pills, all of which are banned under school rules without advance permission. She denied knowledge of them, but Wilson said that he had a report that she was giving pills to fellow students. She denied it and agreed to let him search her belongings. He and Helen Romero, an administrative assistant, searched Savana’s backpack, finding nothing. Wilson then had Romero take Savana to the school nurse’s office to search her clothes for pills. After Romero and the nurse, Peggy Schwallier, had Savana remove her outer clothing, they told her to pull her bra out and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found. Savana’s mother filed suit against petitioner school district (Safford), Wilson, Romero, and Schwallier, alleging that the strip search violated Savana’s Fourth Amendment rights. Claiming qualified immunity, the individuals (hereinafter petitioners) moved for summary judgment. The District Court granted the motion, finding that there was no Fourth Amendment violation, and the en banc Ninth Circuit reversed. Following the protocol for evaluating qualified immunity claims, see Saucier v. Katz, 533 U. S. 194, 200, the court held that the strip search was unjustified under the Fourth Amendment test for searches of children by school officials set out in New Jersey v. T. L. O., 469 U. S. 325. It then applied the test for qualified immunity. Finding that Savana’s right was clearly established at the time of the search, it reversed the summary judgment as to Wilson, but affirmed as to Schwallier and Romero because they were not independent decisionmakers. Held: 1. The search of Savana’s underwear violated the Fourth Amendment. Pp. 3–11. (a) For school searches, “the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause.” T. L. O., 469 U. S., at 341. Under the resulting reasonable suspicion standard, a school search “will be permissible … when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id., at 342. The required knowledge component of reasonable suspicion for a school administrator’s evidence search is that it raise a moderate chance of finding evidence of wrongdoing. Pp. 3–5. (b) Wilson had sufficient suspicion to justify searching Savana’s backpack and outer clothing. A week earlier, a student, Jordan, had told the principal and Wilson that students were bringing drugs and weapons to school and that he had gotten sick from some pills. On the day of the search, Jordan gave Wilson a pill that he said came from Marissa. Learning that the pill was prescription strength, Wilson called Marissa out of class and was handed the day planner. Once in his office, Wilson, with Romero present, had Marissa turn out her pockets and open her wallet, producing, inter alia, an over-the-counter pill that Marissa claimed was Savana’s. She also denied knowing about the day planner’s contents. Wilson did not ask her when she received the pills from Savana or where Savana might be hiding them. After a search of Marissa’s underwear by Romero and Schwallier revealed no additional pills, Wilson called Savana into his office. He showed her the day planner and confirmed her relationship with Marissa. He knew that the girls had been identified as part of an unusually rowdy group at a school dance, during which alcohol and cigarettes were found in the girls’ bathroom. He had other reasons to connect them with this contraband, for Jordan had told the principal that before the dance, he had attended a party at Savana’s house where alcohol was served. Thus, Marissa’s statement that the pills came from Savana was sufficiently plausible to warrant suspicion that Savana was involved in pill distribution. A student who is reasonably suspected of giving out contraband pills is reasonably suspected of carrying them on her person and in her backpack. Looking into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing. Pp. 5–8. (c) Because the suspected facts pointing to Savana did not indicate that the drugs presented a danger to students or were concealed in her underwear, Wilson did not have sufficient suspicion to warrant extending the search to the point of making Savana pull out her underwear. Romero and Schwallier said that they did not see anything when Savana pulled out her underwear, but a strip search and its Fourth Amendment consequences are not defined by who was looking and how much was seen. Savana’s actions in their presence necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. Savana’s subjective expectation of privacy is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation is indicated by the common reaction of other young people similarly searched, whose adolescent vulnerability intensifies the exposure’s patent intrusiveness. Its indignity does not outlaw the search, but it does implicate the rule that “the search [be] ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ ” T. L. O., supra, at 341. Here, the content of the suspicion failed to match the degree of intrusion. Because Wilson knew that the pills were common pain relievers, he must have known of their nature and limited threat and had no reason to suspect that large amounts were being passed around or that individual students had great quantities. Nor could he have suspected that Savana was hiding common painkillers in her underwear. When suspected facts must support the categorically extreme intrusiveness of a search down to an adolescent’s body, petitioners’ general belief that students hide contraband in their clothing falls short; a reasonable search that extensive calls for suspicion that it will succeed. Nondangerous school contraband does not conjure up the specter of stashes in intimate places, and there is no evidence of such behavior at the school; neither Jordan nor Marissa suggested that Savana was doing that, and the search of Marissa yielded nothing. Wilson also never determined when Marissa had received the pills from Savana; had it been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear. Pp. 8–11. 2. Although the strip search violated Savana’s Fourth Amendment rights, petitioners Wilson, Romero, and Schwallier are protected from liability by qualified immunity because “clearly established law [did] not show that the search violated the Fourth Amendment,” Pearson v. Callahan, 555 U. S. ___, ___. The intrusiveness of the strip search here cannot, under T. L. O., be seen as justifiably related to the circumstances, but lower court cases viewing school strip searches differently are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt about the clarity with which the right was previously stated. Pp. 11–13. 3. The issue of petitioner Safford’s liability under Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694, should be addressed on remand. P. 13. 531 F. 3d 1071, affirmed in part, reversed in part, and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, and Alito, JJ., joined, and in which Stevens and Ginsburg, JJ., joined as to Parts I–III. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Ginsburg, J., filed an opinion concurring in part and dissenting in part. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part. | The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution, but because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability. I The events immediately prior to the search in question began in 13-year-old Savana Redding’s math class at Safford Middle School one October day in 2003. The assistant principal of the school, Kerry Wilson, came into the room and asked Savana to go to his office. There, he showed her a day planner, unzipped and open flat on his desk, in which there were several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines. Savana stated that none of the items in the planner belonged to her. Wilson then showed Savana four white prescription-strength ibuprofen 400-mg pills, and one over-the-counter blue naproxen 200-mg pill, all used for pain and inflammation but banned under school rules without advance permission. He asked Savana if she knew anything about the pills. Savana answered that she did not. Wilson then told Savana that he had received a report that she was giving these pills to fellow students; Savana denied it and agreed to let Wilson search her belongings. Helen Romero, an administrative assistant, came into the office, and together with Wilson they searched Savana’s backpack, finding nothing. At that point, Wilson instructed Romero to take Savana to the school nurse’s office to search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found. Savana’s mother filed suit against Safford Unified School District #1, Wilson, Romero, and Schwallier for conducting a strip search in violation of Savana’s Fourth Amendment rights. The individuals (hereinafter petitioners) moved for summary judgment, raising a defense of qualified immunity. The District Court for the District of Arizona granted the motion on the ground that there was no Fourth Amendment violation, and a panel of the Ninth Circuit affirmed. 504 F. 3d 828 (2007). A closely divided Circuit sitting en banc, however, reversed. Following the two-step protocol for evaluating claims of qualified immunity, see Saucier v. Katz, 533 U. S. 194, 200 (2001), the Ninth Circuit held that the strip search was unjustified under the Fourth Amendment test for searches of children by school officials set out in New Jersey v. T. L. O., 469 U. S. 325 (1985). 531 F. 3d 1071, 1081–1087 (2008). The Circuit then applied the test for qualified immunity, and found that Savana’s right was clearly established at the time of the search: “ ‘[t]hese notions of personal privacy are “clearly established” in that they inhere in all of us, particularly middle school teenagers, and are inherent in the privacy component of the Fourth Amendment’s proscription against unreasonable searches.’ ” Id., at 1088–1089 (quoting Brannum v. Overton Cty. School Bd., 516 F. 3d 489, 499 (CA6 2008)). The upshot was reversal of summary judgment as to Wilson, while affirming the judgments in favor of Schwallier, the school nurse, and Romero, the administrative assistant, since they had not acted as independent decisionmakers. 531 F. 3d, at 1089. We granted certiorari, 555 U. S. ___ (2009), and now affirm in part, reverse in part, and remand. II The Fourth Amendment “right of the people to be secure in their persons … against unreasonable searches and seizures” generally requires a law enforcement officer to have probable cause for conducting a search. “Probable cause exists where ‘the facts and circumstances within [an officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed,” Brinegar v. United States, 338 U. S. 160, 175–176 (1949) (quoting Carroll v. United States, 267 U. S. 132, 162 (1925)), and that evidence bearing on that offense will be found in the place to be searched. In T. L. O., we recognized that the school setting “requires some modification of the level of suspicion of illicit activity needed to justify a search,” 469 U. S., at 340, and held that for searches by school officials “a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause,” id., at 341. We have thus applied a standard of reasonable suspicion to determine the legality of a school administrator’s search of a student, id., at 342, 345, and have held that a school search “will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction,” id., at 342. A number of our cases on probable cause have an implicit bearing on the reliable knowledge element of reasonable suspicion, as we have attempted to flesh out the knowledge component by looking to the degree to which known facts imply prohibited conduct, see, e.g., Adams v. Williams, 407 U. S. 143, 148 (1972); id., at 160, n. 9 (Marshall, J., dissenting), the specificity of the information received, see, e.g., Spinelli v. United States, 393 U. S. 410, 416–417 (1969), and the reliability of its source, see, e.g., Aguilar v. Texas, 378 U. S. 108, 114 (1964). At the end of the day, however, we have realized that these factors cannot rigidly control, Illinois v. Gates, 462 U. S. 213, 230 (1983), and we have come back to saying that the standards are “fluid concepts that take their substantive content from the particular contexts” in which they are being assessed. Ornelas v. United States, 517 U. S. 690, 696 (1996). Perhaps the best that can be said generally about the required knowledge component of probable cause for a law enforcement officer’s evidence search is that it raise a “fair probability,” Gates, 462 U. S., at 238, or a “substantial chance,” id., at 244, n. 13, of discovering evidence of criminal activity. The lesser standard for school searches could as readily be described as a moderate chance of finding evidence of wrongdoing. III A In this case, the school’s policies strictly prohibit the nonmedical use, possession, or sale of any drug on school grounds, including “ ‘[a]ny prescription or over-the-counter drug, except those for which permission to use in school has been granted pursuant to Board policy.’ ” App. to Pet. for Cert. 128a.[Footnote 1] A week before Savana was searched, another student, Jordan Romero (no relation of the school’s administrative assistant), told the principal and Assistant Principal Wilson that “certain students were bringing drugs and weapons on campus,” and that he had been sick after taking some pills that “he got from a classmate.” App. 8a. On the morning of October 8, the same boy handed Wilson a white pill that he said Marissa Glines had given him. He told Wilson that students were planning to take the pills at lunch. Wilson learned from Peggy Schwallier, the school nurse, that the pill was Ibuprofen 400 mg, available only by prescription. Wilson then called Marissa out of class. Outside the classroom, Marissa’s teacher handed Wilson the day planner, found within Marissa’s reach, containing various contraband items. Wilson escorted Marissa back to his office. In the presence of Helen Romero, Wilson requested Marissa to turn out her pockets and open her wallet. Marissa produced a blue pill, several white ones, and a razor blade. Wilson asked where the blue pill came from, and Marissa answered, “ ‘I guess it slipped in when she gave me the IBU 400s.’ ” Id., at 13a. When Wilson asked whom she meant, Marissa replied, “ ‘Savana Redding.’ ” Ibid. Wilson then enquired about the day planner and its contents; Marissa denied knowing anything about them. Wilson did not ask Marissa any followup questions to determine whether there was any likelihood that Savana presently had pills: neither asking when Marissa received the pills from Savana nor where Savana might be hiding them. Schwallier did not immediately recognize the blue pill, but information provided through a poison control hotline[Footnote 2] indicated that the pill was a 200-mg dose of an antiinflammatory drug, generically called naproxen, available over the counter. At Wilson’s direction, Marissa was then subjected to a search of her bra and underpants by Romero and Schwallier, as Savana was later on. The search revealed no additional pills. It was at this juncture that Wilson called Savana into his office and showed her the day planner. Their conversation established that Savana and Marissa were on friendly terms: while she denied knowledge of the contraband, Savana admitted that the day planner was hers and that she had lent it to Marissa. Wilson had other reports of their friendship from staff members, who had identified Savana and Marissa as part of an unusually rowdy group at the school’s opening dance in August, during which alcohol and cigarettes were found in the girls’ bathroom. Wilson had reason to connect the girls with this contraband, for Wilson knew that Jordan Romero had told the principal that before the dance, he had been at a party at Savana’s house where alcohol was served. Marissa’s statement that the pills came from Savana was thus sufficiently plausible to warrant suspicion that Savana was involved in pill distribution. This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing.[Footnote 3] If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today. If Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack, it would not justify any search worth making. And the look into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing. B Here it is that the parties part company, with Savana’s claim that extending the search at Wilson’s behest to the point of making her pull out her underwear was constitutionally unreasonable. The exact label for this final step in the intrusion is not important, though strip search is a fair way to speak of it. Romero and Schwallier directed Savana to remove her clothes down to her underwear, and then “pull out” her bra and the elastic band on her underpants. Id., at 23a. Although Romero and Schwallier stated that they did not see anything when Savana followed their instructions, App. to Pet. for Cert. 135a, we would not define strip search and its Fourth Amendment consequences in a way that would guarantee litigation about who was looking and how much was seen. The very fact of Savana’s pulling her underwear away from her body in the presence of the two officials who were able to see her necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings. Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. See Brief for National Association of Social Workers et al. as Amici Curiae 6–14; Hyman & Perone, The Other Side of School Violence: Educator Policies and Practices that may Contribute to Student Misbehavior, 36 J. School Psychology 7, 13 (1998) (strip search can “result in serious emotional damage”). The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be, see, e.g., New York City Dept. of Education, Reg. No. A–432, p. 2 (2005), online at http://docs.nycenet.edu/ docushare/dsweb/Get/Document-21/A-432.pdf (“Under no circumstances shall a strip-search of a student be conducted”). The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T. L. O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” 469 U. S., at 341 (internal quotation marks omitted). The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id., at 342. Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve.[Footnote 4] He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills. Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. Petitioners suggest, as a truth universally acknowledged, that “students … hid[e] contraband in or under their clothing,” Reply Brief for Petitioners 8, and cite a smattering of cases of students with contraband in their underwear, id., at 8–9. But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear. In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable. In so holding, we mean to cast no ill reflection on the assistant principal, for the record raises no doubt that his motive throughout was to eliminate drugs from his school and protect students from what Jordan Romero had gone through. Parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment. We do mean, though, to make it clear that the T. L. O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions. IV A school official searching a student is “entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment.” Pearson v. Callahan, 555 U. S. __, __ (2009) (slip op., at 18). To be established clearly, however, there is no need that “the very action in question [have] previously been held unlawful.” Wilson v. Layne, 526 U. S. 603, 615 (1999). The unconstitutionality of outrageous conduct obviously will be unconstitutional, this being the reason, as Judge Posner has said, that “[t]he easiest cases don’t even arise.” K. H. v. Morgan, 914 F. 2d 846, 851 (CA7 1990). But even as to action less than an outrage, “officials can still be on notice that their conduct violates established law … in novel factual circumstances.” Hope v. Pelzer, 536 U. S. 730, 741 (2002). T. L. O. directed school officials to limit the intrusiveness of a search, “in light of the age and sex of the student and the nature of the infraction,” 469 U. S., at 342, and as we have just said at some length, the intrusiveness of the strip search here cannot be seen as justifiably related to the circumstances. But we realize that the lower courts have reached divergent conclusions regarding how the T. L. O. standard applies to such searches. A number of judges have read T. L. O. as the en banc minority of the Ninth Circuit did here. The Sixth Circuit upheld a strip search of a high school student for a drug, without any suspicion that drugs were hidden next to her body. Williams v. Ellington, 936 F. 2d 881, 882–883, 887 (1991). And other courts considering qualified immunity for strip searches have read T. L. O. as “a series of abstractions, on the one hand, and a declaration of seeming deference to the judgments of school officials, on the other,” Jenkins v. Talladega City Bd. of Ed., 115 F. 3d 821, 828 (CA11 1997) (en banc), which made it impossible “to establish clearly the contours of a Fourth Amendment right … [in] the wide variety of possible school settings different from those involved in T. L. O.” itself. Ibid. See also Thomas v. Roberts, 323 F. 3d 950 (CA11 2003) (granting qualified immunity to a teacher and police officer who conducted a group strip search of a fifth grade class when looking for a missing $26). We think these differences of opinion from our own are substantial enough to require immunity for the school officials in this case. We would not suggest that entitlement to qualified immunity is the guaranteed product of disuniform views of the law in the other federal, or state, courts, and the fact that a single judge, or even a group of judges, disagrees about the contours of a right does not automatically render the law unclear if we have been clear. That said, however, the cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law. We conclude that qualified immunity is warranted. V The strip search of Savana Redding was unreasonable and a violation of the Fourth Amendment, but petitioners Wilson, Romero, and Schwallier are nevertheless protected from liability through qualified immunity. Our conclusions here do not resolve, however, the question of the liability of petitioner Safford Unified School District #1 under Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694 (1978), a claim the Ninth Circuit did not address. The judgment of the Ninth Circuit is therefore affirmed in part and reversed in part, and this case is remanded for consideration of the Monell claim. It is so ordered. Footnote 1 When the object of a school search is the enforcement of a school rule, a valid search assumes, of course, the rule’s legitimacy. But the legitimacy of the rule usually goes without saying as it does here. The Court said plainly in New Jersey v. T. L. O., 469 U. S. 325, 342, n. 9 (1985), that standards of conduct for schools are for school administrators to determine without second-guessing by courts lacking the experience to appreciate what may be needed. Except in patently arbitrary instances, Fourth Amendment analysis takes the rule as a given, as it obviously should do in this case. There is no need here either to explain the imperative of keeping drugs out of schools, or to explain the reasons for the school’s rule banning all drugs, no matter how benign, without advance permission. Teachers are not pharmacologists trained to identify pills and powders, and an effective drug ban has to be enforceable fast. The plenary ban makes sense, and there is no basis to claim that the search was unreasonable owing to some defect or shortcoming of the rule it was aimed at enforcing. Footnote 2 Poison control centers across the country maintain 24-hour help hotlines to provide “immediate access to poison exposure management instructions and information on potential poisons.” American Association of Poison Control Centers, online at http://www.aapcc.org/dnn/ About/tabid/74/Default.aspx (all Internet materials as visited June 19, 2009, and available in Clerk of Court’s case file). Footnote 3 There is no question here that justification for the school officials’ search was required in accordance with the T. L. O. standard of reasonable suspicion, for it is common ground that Savana had a reasonable expectation of privacy covering the personal things she chose to carry in her backpack, cf. 469 U. S., at 339, and that Wilson’s decision to look through it was a “search” within the meaning of the Fourth Amendment. Footnote 4 An Advil tablet, caplet, or gel caplet, contains 200 mg of ibuprofen. See Physicians’ Desk Reference for Nonprescription Drugs, Dietary Supplements, and Herbs 674 (28th ed. 2006). An Aleve caplet contains 200 mg naproxen and 20 mg sodium. See id., at 675. |
556.US.2008_07-1209 | As part of the Department of Veterans Affairs’ (VA) statutory duty to help a veteran develop a benefits claim, the Secretary of Veterans Affairs (Secretary) must notify an applicant of any information or evidence that is necessary to substantiate the claim. 38 U. S. C. §5103(a). VA regulations require the notice to specify (1) what further information is necessary, (2) what portions of that information the VA will obtain, and (3) what portions the claimant must obtain. These requirements are referred to as Type One, Type Two, and Type Three, respectively. The Court of Appeals for Veterans Claims (Veterans Court), which hears initial appeals from VA claims decisions, has a statutory duty to “take due account of the rule of prejudicial error.” §7261(b)(2). It has developed a system for dealing with notice errors, whereby a claimant arguing that the VA failed to give proper notice must explain precisely how the notice was defective. The reviewing judge will then decide what “type” of notice error the VA committed. Under the Veterans Court’s approach, a Type One error has the “natural effect” of harming the claimant, but Types Two and Three errors do not. In the latter instances, the claimant must show harm, e.g., by describing what evidence he would have provided (or asked the Secretary to provide) had the notice not been defective, and explaining just how the lack of that notice and evidence affected the adjudication’s essential fairness. The Federal Circuit, which reviews Veterans Court decisions, rejected the Veterans Court’s approach and set forth its own framework for determining whether a notice error is harmless. When the VA provides a claimant with a notice that is deficient in any respect, the framework requires the Veterans Court to presume that the error is prejudicial and requires reversal unless the VA can demonstrate (1) that the defect was cured by the claimant’s actual knowledge or (2) that benefits could not have been awarded as a matter of law. The Federal Circuit applied its framework in both of the present cases. In respondent Sanders’ case, the VA denied disability benefits on the ground that Sanders’ disability, blindness in his right eye, was not related to his military service. Sanders argued to the Veterans Court that the VA had made notice errors Type Two and Type Three when it informed him what further information was necessary, but failed to tell him which portions of that information the Secretary would provide and which portions he would have to provide. The Veterans Court held these notice errors harmless, but the Federal Circuit reversed, ruling that the VA had not made the necessary claimant-knowledge or benefits-ineligibilty showing required by the Federal Circuit’s framework. The VA also denied benefits in respondent Simmons’ case after finding that her left-ear hearing loss, while service connected, was not severe enough to warrant compensation. Simmons argued to the Veterans Court, inter alia, that the VA had made a Type One notice error by failing to notify her of the information necessary to show worsening of her hearing. The court agreed, finding the error prejudicial. Noting that a Type One notice error has the “natural effect” of producing prejudice, the Veterans Court added that its review of the record convinced it that Simmons did not have actual knowledge of what evidence was necessary to substantiate her claim and, had the VA told her more specifically what additional information was needed, she might have obtained that evidence. The Federal Circuit affirmed. Held: 1. The Federal Circuit’s harmless-error framework conflicts with §7261(b)(2)’s requirement that the Veterans Court take “due account of the rule of prejudicial error.” Pp. 8–15. (a) That §7261(b)(2) requires the same sort of “harmless-error” rule as is ordinarily applied in civil cases is shown by the statutory words “take due account” and “prejudicial error.” Congress used the same words in the Administrative Procedure Act (APA), 5 U. S. C. §706, which is an “ ‘administrative law … harmless error rule,’ ” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, ___. Legislative history confirms that Congress intended §7261(b)(2) to incorporate the APA’s approach. Pp. 8–9. (b) Three related features, taken together, demonstrate that the Federal Circuit’s framework mandates an approach to harmless error that differs significantly from the one normally taken in civil cases. First, the framework is too complex and rigid: In every case involving any type of notice error, the Veterans Court must find the error harmful unless the VA demonstrates the claimant’s actual knowledge curing the defect or his ineligibility for benefits as a matter of law. An error’s harmlessness should not be determined through the use of mandatory presumptions and rigid rules, but through the case-specific application of judgment, based upon examination of the record. See Kotteakos v. United States, 328 U. S. 750, 760. Second, the framework imposes an unreasonable evidentiary burden on the VA, requiring the Secretary to demonstrate, e.g., a claimant’s state of mind about what he knew or the nonexistence of evidence that might significantly help the claimant. Third, the framework requires the VA, not the claimant, to explain why the error is harmless. The burden of showing harmfulness is normally on the party attacking an agency’s determination. See, e.g., Palmer v. Hoffman, 318 U. S. 109, 116. This Court has placed the burden on the Government only when the underlying matter was criminal. See, e.g., Kotteakos, supra, at 760. The good reasons for this rule do not apply in the ordinary civil case. Pp. 9–13. (c) The foregoing analysis is subject to two important qualifications. First, the Court need not, and does not, decide the lawfulness of the Veterans Court’s reliance on the “natural effects” of certain kinds of notice errors. Second, although Congress’ special solicitude for veterans might lead a reviewing court to consider harmful in a veteran’s case error that it might consider harmless in other cases, that is not at issue, and need not be decided here. Pp. 13–15. 2. In Sanders’ case, a review of the record demonstrates that the Veterans Court lawfully found the notice errors harmless. The VA’s Types Two and Three notice errors did not matter, given that Sanders has pursued his claim for many years and should be aware of why he has been unable to show that his disability is service connected. Sanders has not told the reviewing courts what additional evidence proper notice would have led him to obtain or seek and has not explained how the notice errors could have made any difference. In Simmons’ case, some features of the record suggest that the VA’s Type One error was harmless, e.g., that she has long sought benefits and has a long history of medical examinations. But other features, e.g., that her left-ear hearing loss was concededly service connected and has continuously deteriorated over time, suggest the opposite. Given the uncertainties, the Veterans Court should decide whether reconsideration is necessary. Pp. 15–17. 487 F. 3d 881, reversed and remanded; 487 F. 3d 892, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined. Together with Shinseki, Secretary of Veterans Affairs v. Simmons, also on certiorari to the same court (see this Court’s Rule 12.4). | In these two civil cases, the Department of Veterans Affairs (VA) denied veterans’ claims for disability benefits. In both cases the VA erroneously failed to provide the veteran with a certain kind of statutorily required notice. See 38 U. S. C. §5103(a). In both cases the VA argued that the error was harmless. And in both cases the Court of Appeals for the Federal Circuit, after setting forth a framework for determining whether a notice error is harmless, rejected the VA’s argument. In our view, the Federal Circuit’s “harmless-error” framework is too complex and rigid, its presumptions impose unreasonable evidentiary burdens upon the VA, and it is too likely too often to require the Court of Appeals for Veterans Claims (Veterans Court) to treat as harmful errors that in fact are harmless. We conclude that the framework conflicts with established law. See §7261(b)(2) (Veterans Court must “take due account of the rule of prejudicial error”). I A The law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service. The Veterans Claims Assistance Act of 2000 requires the VA to help a veteran develop his or her benefits claim. §5103A. In doing so, the Secretary of Veterans Affairs (Secretary), upon “receipt of” an “application” for benefits, must “notify the claimant . . . of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.” As “part of” the required “notice,” the Secretary must also “indicate which portion of” the required “information and evidence … is to be provided by the claimant and which portion … the Secretary … will attempt to obtain.” §5103(a). Repeating these statutory requirements in its regulations, the VA has said it will provide a claimant with a letter that tells the claimant (1) what further information is necessary to substantiate his or her claim; (2) what portions of that information the VA will obtain for the claimant; and (3) what portions the claimant must obtain. 38 CFR §3.159(b) (2008). At the time of the decisions below, the regulations also required the VA to tell the claimant (4) that he may submit any other relevant information that he has available. §3.159(b)(1). (The VA refers to these notice requirements as Type One, Type Two, Type Three, and Type Four, respectively.) B The VA’s regional offices decide most claims. A claimant may appeal an adverse regional office decision to the VA’s Board of Veterans’ Appeals, an administrative board with the power to consider certain types of new evidence. 38 U. S. C. §§7107(b), 7109(a); 38 CFR §20.1304(c). The claimant may seek review of an adverse Board decision in the Veterans Court, an Article I court. And the claimant (or the Government) may appeal an adverse decision of the Veterans Court to the Court of Appeals for the Federal Circuit—but only in respect to certain legal matters, namely, “the validity … of any statute or regulation … or any interpretation thereof … that was relied on” by the Veterans Court in making its decision. 38 U. S. C. §7292. A specific statute requires the Veterans Court to “take due account of the rule of prejudicial error.” §7261(b)(2). In applying this statutory provision, the Veterans Court has developed its own special framework for notice errors. Under this framework, a claimant who argues that the VA failed to give proper notice must explain precisely how the notice was defective. Then the reviewing judge will decide what “type” of notice error the VA committed. The Veterans Court has gone on to say that a Type One error (i.e., a failure to explain what further information is needed) has the “natural effect” of harming the claimant; but errors of Types Two, Three, or Four (i.e., a failure to explain just who, claimant or agency, must provide the needed material or to tell the veteran that he may submit any other evidence available) do not have the “natural effect” of harming the claimant. In these latter instances, the claimant must show how the error caused harm, for example, by stating in particular just “what evidence” he would have provided (or asked the Secretary to provide) had the notice not been defective, and explaining just “how the lack of that notice and evidence affected the essential fairness of the adjudication.” Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005). C In the first case, Woodrow Sanders, a veteran of World War II, claimed that a bazooka exploded near his face in 1944, causing later blindness in his right eye. His wartime medical records, however, did not indicate any eye problems. Indeed, his 1945 discharge examination showed near-perfect vision. But a 1948 eye examination revealed an inflammation of the right-eye retina and surrounding tissues—a condition that eventually left him nearly blind in that eye. Soon after the examination Sanders filed a claim for disability benefits. But in 1949 the VA denied benefits on the ground that Sanders had failed to show a connection between his eye condition and his earlier military service. Forty-two years later, Sanders asked the VA to reopen his benefits claim. He argued that the 1944 bazooka explosion had hurt his eye, and added that that he had begun to experience symptoms—blurred vision, swelling, and loss of sight—in 1946. He included a report from a VA doctor, Dr. Joseph Ruda, who said that “[i]t is not inconceivable that” the condition “could have occurred secondary to trauma, as stated by” Sanders. A private ophthalmologist, Dr. Gregory Strainer, confirming that Sanders’ right retina was scarred, added that this “[t]ype of … injury … can certainly be concussive in character.” App. C to Pet. for Cert. 26a–27a. In 1992, the VA reopened Sanders’ claim. Id., at 29a. After obtaining Sanders’ military medical records, the VA arranged for a further medical examination, this time by VA eye specialist Dr. Sheila Anderson. After examining Sanders’ medical history (including records of the examinations made at the time of Sanders’ enlistment and discharge), Anderson agreed with the medical diagnosis but concluded that Sanders’ condition was not service related. Since Sanders’ right-eye “visual acuity” was “20/20” upon enlistment and “20/25” upon discharge, and he had “reported decreased vision only 6 months prior” to his 1948 doctor’s “visit,” and since “there are no other signs of ocular trauma,” Anderson thought that Sanders’ condition “is most likely infectious in nature, although the etiology at this point is impossible to determine.” “Based on the documented records,” she concluded, “the patient did not lose vision while on active duty.” The VA regional office denied Sanders’ claim. Ibid. Sanders sought Board review, and in the meantime he obtained the opinion of another VA doctor, Dr. Duane Nii, who said that the “etiology of the patient’s” eye condition “is . . . difficult to ascertain.” He thought that “it is possible that” the condition “could be related to” a bazooka explosion, though the “possibility of” an infection “as the etiology … could also be entertained.” Id., at 30a. The Board concluded that Sanders had failed to show that the eye injury was service connected. The Board said that it had relied most heavily upon Anderson’s report because, unlike other reports, it took account of Sanders’ military medical records documenting his eyesight at the time of his enlistment and discharge. And the Board consequently affirmed the regional office’s denial of Sanders’ claim. Sanders then appealed to the Veterans Court. There he argued, among other things, that the VA had made a notice error. Sanders conceded that the VA had sent him a letter telling him (1) what further information was necessary to substantiate his claim. But, he said, the VA letter did not tell him (2) which portions of the information the Secretary would provide or (3) which portions he would have to provide. That is to say, he complained about notice errors Type Two and Type Three. The Veterans Court held that these notice errors were harmless. It said that Sanders had not explained how he would have acted differently, say, by identifying what different evidence he would have produced or asked the Secretary to obtain for him, had he received proper notice. Finding no other error, the Veterans Court affirmed the Board’s decision. D The Court of Appeals for the Federal Circuit reviewed the Veterans Court’s decision and held that the Veterans Court was wrong to find the notice error harmless. The Federal Circuit wrote that when the VA provides a claimant with a notice letter that is deficient in any respect (to the point where a “reasonable person” would not have read it as providing the necessary information), the Veterans Court “should … presum[e]” that the notice error is “prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication.” Sanders v. Nicholson, 487 F. 3d 881, 889 (2007). To make this latter showing, the court added, the VA must “demonstrate” (1) that the “defect was cured by actual knowledge on the” claimant’s “part,” or (2) “that a benefit could not have been awarded as a matter of law.” Ibid. Because the VA had not made such a showing, the Federal Circuit reversed the Veterans Court’s decision. E In the second case before us, the claimant, Patricia Simmons, served on active military duty from December 1978 to April 1980. While on duty she worked in a noisy environment close to aircraft; after three months she began to lose hearing in her left ear; and by the time she was discharged, her left-ear hearing had become worse. Soon after her discharge, Simmons applied for disability benefits. The VA regional office found her hearing loss was service connected; but it also found the loss insufficiently severe to warrant compensation. In November 1980, it denied her claim. In 1998, Simmons asked the VA to reopen her claim. She provided medical examination records showing further loss of hearing in her left ear along with (what she considered related) loss of hearing in her right ear. The VA arranged for hearing examinations by VA doctors in 1999, 2001, and 2002. The doctors measured her left-ear hearing loss, ranking it as moderate to severe; they also measured her right-ear hearing loss, ranking it as mild to moderate. After comparing the results of the examinations with a VA hearing-loss compensation schedule, the regional office concluded that Simmons’ left-ear hearing loss, while service connected, was not severe enough to warrant compensation. At the same time, the regional office concluded that her right-ear hearing loss was neither service connected nor sufficiently severe. Simmons appealed the decision to the Board, which affirmed the regional office’s determination. In 2003, Simmons appealed to the Veterans Court. Among other things, she said that she had not received a notice about (and she consequently failed to attend) a further right-ear medical examination that the VA later told her it had arranged. She added that, in respect to her claim for benefits for loss of hearing in her left ear, the VA had made a Type One notice error (i.e., it had failed to tell her what further information was needed to substantiate her claim). Simmons conceded that she had received a letter from the VA. But the letter told her only what, in general, a person had to do to show that a hearing injury was service connected. It did not tell her anything about her specific problem, namely, what further information she must provide to show a worsening of hearing in her left ear, to the point where she could receive benefits. The Veterans Court agreed with Simmons, and it found both errors prejudicial. In respect to Simmons’ left-ear hearing loss (the matter at issue here), it pointed out that it had earlier said (in Mayfield, 19 Vet. App., at 120–124) that a Type One notice error has the “natural effect of producing prejudice.” The court added that its “revie[w] [of] the record in its entirety” convinced it that Simmons did not have “actual knowledge of what evidence was necessary to substantiate her claim” and, had the VA told Simmons more specifically about what additional medical information it needed, Simmons might have “obtained” a further “private” medical “examination substantiating her claim.” App. G to Pet. for Cert. 81a. The Veterans Court consequently remanded the case to the Board. The Government appealed the Veterans Court’s determination to the Court of Appeals for the Federal Circuit. And that court affirmed the Veterans Court’s decision on the basis of its decision in Sanders. Simmons v. Nicholson, 487 F. 3d 892 (2007). F We granted certiorari in both Sanders’ and Simmons’ cases in order to determine the lawfulness of the Federal Circuit’s “harmless-error” holdings. II The Federal Circuit’s holdings flow directly from its use of the “harmless-error” framework that we have described. Supra, at 6. Thus we must decide whether that framework is consistent with a particular statutory requirement, namely, the requirement that the Veterans Court “take due account of the rule of prejudicial error,” 38 U. S. C. §7261(b)(2). See supra, at 3. We conclude that the framework is not consistent with the statutory demand. A We believe that the statute, in stating that the Veterans Court must “take due account of the rule of prejudicial error,” requires the Veterans Court to apply the same kind of “harmless-error” rule that courts ordinarily apply in civil cases. The statutory words “take due account” and “prejudicial error” make clear that is so. Congress used the same words in the Administrative Procedure Act (APA). 5 U. S. C. §706 (“[A] court shall review the whole record … and due account shall be taken of the rule of prejudicial error”). The Attorney General’s Manual on the Administrative Procedure Act explained that the APA’s reference to “prejudicial error” is intended to “su[m] up in succinct fashion the ‘harmless error’ rule applied by the courts in the review of lower court decisions as well as of administrative bodies.” Dept. of Justice, Attorney General’s Manual on the Administrative Procedure Act 110 (1947) (emphasis added). And we have previously described §706 as an “ ‘administrative law … harmless error rule.’ ” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, ___ (2007) (slip op., at 12) (quoting PDK Labs. Inc. v. United States Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004)). Legislative history confirms that Congress intended the Veterans Court “prejudicial error” statute to “incorporate a reference” to the APA’s approach. S. Rep. No. 100–418, p. 61 (1988). We have no indication of any relevant distinction between the manner in which reviewing courts treat civil and administrative cases. Consequently, we assess the lawfulness of the Federal Circuit’s approach in light of our general case law governing application of the harmless-error standard. B Three related features of the Federal Circuit’s framework, taken together, convince us that it mandates an approach to harmless error that differs significantly from the approach courts normally take in ordinary civil cases. First, the framework is complex, rigid, and mandatory. In every case involving a notice error (of no matter which kind) the Veterans Court must find the error harmful unless the VA “demonstrate[s]” (1) that the claimant’s “actual knowledge” cured the defect or (2) that the claimant could not have received a benefit as a matter of law. Suppose the notice error, as in Sanders’ case, consisted of a failure to describe what additional information, if any, the VA would provide. It might be obvious from the record in the particular case that the error made no difference. But under the Federal Circuit’s rule, the Veterans Court would have to remand the case for new proceedings regardless. We have previously warned against courts’ determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record. See Kotteakos v. United States, 328 U. S. 750, 760 (1946). The federal “harmless-error” statute, now codified at 28 U. S. C. §2111, tells courts to review cases for errors of law “without regard to errors” that do not affect the parties’ “substantial rights.” That language seeks to prevent appellate courts from becoming “ ‘ impregnable citadels of technicality, ’ ” Kotteakos, 328 U. S., at 759. And we have read it as expressing a congressional preference for determining “harmless error” without the use of presumptions insofar as those presumptions may lead courts to find an error harmful, when, in fact, in the particular case before the court, it is not. See id., at 760; O’Neal v. McAninch, 513 U. S. 432, 436–437 (1995); see also R. Traynor, The Riddle of Harmless Error 26 (1970) (hereinafter Traynor) (reviewing court normally should “determine whether the error affected the judgment . . . without benefit of such aids as presumptions … that expedite fact-finding at trial ”). The Federal Circuit’s presumptions exhibit the very characteristics that Congress sought to discourage. In the cases before us, they would prevent the reviewing court from directly asking the harmless-error question. They would prevent that court from resting its conclusion on the facts and circumstances of the particular case. And they would require the reviewing court to find the notice error prejudicial even if that court, having read the entire record, conscientiously concludes the contrary. Second, the Federal Circuit’s framework imposes an unreasonable evidentiary burden upon the VA. How is the Secretary to demonstrate, in Sanders’ case for example, that Sanders knew that he, not the VA, would have to produce more convincing evidence that the bazooka accident caused his eye injury? How could the Secretary demonstrate that there is no evidence anywhere that would entitle Sanders to benefits? To show a claimant’s state of mind about such a matter will often prove difficult, perhaps impossible. And even if the VA (as in Sanders’ case) searches the military records and comes up emptyhanded, it may still prove difficult, or impossible, to prove the nonexistence of evidence lying somewhere about that might significantly help the claimant. We have previously pointed out that setting an evidentiary “barrier so high that it could never be surmounted would justify the very criticism that spawned the harmless-error doctrine,” namely, reversing for error “ ‘regardless of its effect on the judgment.’ ” Neder v. United States, 527 U. S. 1, 18 (1999) (quoting Traynor 50). The Federal Circuit’s evidentiary rules increase the likelihood of reversal in cases where, in fact, the error is harmless. And, as we pointed out in Neder, that likelihood encourages abuse of the judicial process and diminishes the public’s confidence in the fair and effective operation of the judicial system. 527 U. S., at 18. Third, the Federal Circuit’s framework requires the VA, not the claimant, to explain why the error is harmless. This Court has said that the party that “seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.” Palmer v. Hoffman, 318 U. S. 109, 116 (1943); see also Tipton v. Socony Mobil Oil Co., 375 U. S. 34, 36 (1963) (per curiam); United States v. Borden Co., 347 U. S. 514, 516–517 (1954); cf. McDonough Power Equipment, Inc. v. Greenwood, 464 U. S. 548, 553 (1984); Market Street R. Co. v. Railroad Comm’n of Cal., 324 U. S. 548, 562 (1945) (finding error harmless “in the absence of any showing of … prejudice”). Lower court cases make clear that courts have correlated review of ordinary administrative proceedings to appellate review of civil cases in this respect. Consequently, the burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination. See, e.g., American Airlines, Inc. v. Department of Transp., 202 F. 3d 788, 797 (CA5 2000) (declining to remand where appellant failed to show that error in administrative proceeding was harmful); Air Canada v. Department of Transp., 148 F. 3d 1142, 1156–1157 (CADC 1998) (same); Nelson v. Apfel, 131 F. 3d 1228, 1236 (CA7 1997) (same); Bar MK Ranches v. Yuetter, 994 F. 2d 735, 740 (CA10 1993) (same); Camden v. Department of Labor, 831 F. 2d 449, 451 (CA3 1987) (same); Panhandle Co-op Assn. v. EPA, 771 F. 2d 1149, 1153 (CA8 1985) (same); Frankfort v. FERC, 678 F. 2d 699, 708 (CA7 1982) (same); NLRB v. Seine & Line Fishermen, 374 F. 2d 974, 981 (CA9 1967) (same). To say that the claimant has the “burden” of showing that an error was harmful is not to impose a complex system of “burden shifting” rules or a particularly onerous requirement. In ordinary civil appeals, for example, the appellant will point to rulings by the trial judge that the appellant claims are erroneous, say, a ruling excluding favorable evidence. Often the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said. But, if not, then the party seeking reversal normally must explain why the erroneous ruling caused harm. If, for example, the party seeking an affirmance makes a strong argument that the evidence on the point was overwhelming regardless, it normally makes sense to ask the party seeking reversal to provide an explanation, say, by marshaling the facts and evidence showing the contrary. The party seeking to reverse the result of a civil proceeding will likely be in a position at least as good as, and often better than, the opposing party to explain how he has been hurt by an error. Cf. United States v. Fior D’Italia, Inc., 536 U. S. 238, 256, n. 4 (2002) (Souter, J., dissenting). Respondents urge the creation of a special rule for this context, placing upon the agency the burden of proving that a notice error did not cause harm. But we have placed such a burden on the appellee only when the matter underlying review was criminal. See, e.g., Kotteakos, 328 U. S., at 760. In criminal cases the Government seeks to deprive an individual of his liberty, thereby providing a good reason to require the Government to explain why an error should not upset the trial court’s determination. And the fact that the Government must prove its case beyond a reasonable doubt justifies a rule that makes it more difficult for the reviewing court to find that an error did not affect the outcome of a case. See United States v. Olano, 507 U. S. 725, 741 (1993) (stating that the Government bears the “burden of showing the absence of prejudice”). But in the ordinary civil case that is not so. See Palmer, supra, at 116. C Our discussion above is subject to two important qualifications. First, we need not, and we do not, decide the lawfulness of the use by the Veterans Court of what it called the “natural effects” of certain kinds of notice errors. We have previously made clear that courts may sometimes make empirically based generalizations about what kinds of errors are likely, as a factual matter, to prove harmful. See Kotteakos, supra, at 760–761 (reviewing courts may learn over time that the “ ‘natural effect’ ” of certain errors is “ ‘to prejudice a litigant’s substantial rights’ ” (quoting H. R. Rep. No. 913, 65th Cong., 3d Sess., p. 1 (1919))). And by drawing upon “experience” that reveals some such “ ‘natural effect,’ ” a court might properly influence, though not control, future determinations. See Kotteakos, supra, at 760–761. We consider here, however, only the Federal Circuit’s harmless-error framework. That framework, as we have said, is mandatory. And its presumptions are not based upon an effort to determine “natural effects.” Indeed, the Federal Circuit is the wrong court to make such determinations. Statutes limit the Federal Circuit’s review to certain kinds of Veterans Court errors, namely, those that concern “the validity of … any statute or regulation … or any interpretation thereof.” 38 U. S. C. §7292. But the factors that inform a reviewing court’s “harmless-error” determination are various, potentially involving, among other case-specific factors, an estimation of the likelihood that the result would have been different, an awareness of what body (jury, lower court, administrative agency) has the authority to reach that result, a consideration of the error’s likely effects on the perceived fairness, integrity, or public reputation of judicial proceedings, and a hesitancy to generalize too broadly about particular kinds of errors when the specific factual circumstances in which the error arises may well make all the difference. See Neder, 527 U. S., at 18–19; Kotteakos, supra, at 761–763; Traynor 33–37. It is the Veterans Court, not the Federal Circuit, that sees sufficient case-specific raw material in veterans’ cases to enable it to make empirically based, nonbinding generalizations about “natural effects.” And the Veterans Court, which has exclusive jurisdiction over these cases, is likely better able than is the Federal Circuit to exercise an informed judgment as to how often veterans are harmed by which kinds of notice errors. Cf. United States v. Haggar Apparel Co., 526 U. S. 380, 394 (1999) (Article I court’s special “expertise … guides it in making complex determinations in a specialized area of the law”). Second, we recognize that Congress has expressed special solicitude for the veterans’ cause. See post, at 2 (Souter, J., dissenting). A veteran, after all, has performed an especially important service for the Nation, often at the risk of his or her own life. And Congress has made clear that the VA is not an ordinary agency. Rather, the VA has a statutory duty to help the veteran develop his or her benefits claim. See Veterans Claims Assistance Act of 2000, 38 U. S. C. §5103A. Moreover, the adjudicatory process is not truly adversarial, and the veteran is often unrepresented during the claims proceedings. See Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 311 (1985). These facts might lead a reviewing court to consider harmful in a veteran’s case error that it might consider harmless in other circumstances. But that is not the question before us. And we need not here decide whether, or to what extent, that may be so. III We have considered the two cases before us in light of the principles discussed. In Sanders’ case, the Veterans Court found the notice error harmless. And after reviewing the record, we conclude that finding is lawful. The VA told Sanders what further evidence would be needed to substantiate his claim. It failed to specify what portion of any additional evidence the Secretary would provide (we imagine none) and what portion Sanders would have to provide (we imagine all). How could the VA’s failure to specify this (or any other) division of labor have mattered? Sanders has pursued his claim for over six decades; he has had numerous medical examinations; and he should be aware of the respect in which his benefits claim is deficient (namely, his inability to show that his disability is connected to his World War II service). See supra, at 5. Sanders has not told the Veterans Court, the Federal Circuit, or this Court, what specific additional evidence proper notice would have led him to obtain or seek. He has not explained to the Veterans Court, to the Federal Circuit, or to us, how the notice error to which he points could have made any difference. The Veterans Court did not consider the harmlessness issue a borderline question. Nor do we. We consequently reverse the Federal Circuit’s judgment and remand the case so that the court can reinstate the judgment of the Veterans Court. Simmons’ case is more difficult. The Veterans Court found that the VA had committed a Type One error, i.e., a failure to tell Simmons what information or evidence she must provide to substantiate her claim. The VA sent Simmons a letter that provided her only with general information about how to prove a claim while telling her nothing at all about how to proceed further in her own case, a case in which the question was whether a concededly service-connected left-ear hearing problem had deteriorated to the point where it was compensable. And the VA did so in the context of having arranged for a further right-ear medical examination, which (because of lack of notice) Simmons failed to attend. The Veterans Court took the “natural effect” of a Type One error into account while also reviewing the record as a whole. Some features of the record suggest the error was harmless, for example, the fact that Simmons has long sought benefits and has a long history of medical examinations. But other features—e.g., the fact that her left-ear hearing loss was concededly service connected and has continuously deteriorated over time, and the fact that the VA had scheduled a further examination of her right ear that (had notice been given) might have revealed further left-ear hearing loss—suggest the opposite. Given the uncertainties, we believe it is appropriate to remand this case so that the Veterans Court can decide whether re-consideration is necessary. * * * We conclude that the Federal Circuit’s harmless-error framework is inconsistent with the statutory requirement that the Veterans Court take “due account of the rule of prejudicial error.” 38 U. S. C. §7261(b)(2). We reverse the Federal Circuit’s judgment in Sanders’ case, and we vacate its judgment in Simmons’ case. We remand both cases for further proceedings consistent with this opinion. It is so ordered. |
555.US.2008_07-463 | After the U. S. Forest Service approved the Burnt Ridge Project, a salvage sale of timber on 238 acres of fire-damaged federal land, respondent environmentalist organizations filed suit to enjoin the Service from applying its regulations exempting such small sales from the notice, comment, and appeal process it uses for more significant land management decisions, and to challenge other regulations that did not apply to Burnt Ridge. The District Court granted a preliminary injunction against the sale, and the parties then settled their dispute as to Burnt Ridge. Although concluding that the sale was no longer at issue, and despite the Government’s argument that respondents therefore lacked standing to challenge the regulations, the court nevertheless proceeded to adjudicate the merits of their challenges, invalidating several regulations, including the notice and comment and the appeal provisions. Among its rulings, the Ninth Circuit affirmed the determination that the latter regulations, which were applicable to Burnt Ridge, were contrary to law, but held that challenges to other regulations not at issue in that project were not ripe for adjudication. Held: Respondents lack standing to challenge the regulations still at issue absent a live dispute over a concrete application of those regulations. Pp. 4–12. (a) In limiting the judicial power to “Cases” and “Controversies,” Article III restricts it to redressing or preventing actual or imminently threatened injury to persons caused by violation of law. See, e.g., Lujan v. Defenders of Wildlife, 504 U. S. 555, 559–560. The standing doctrine reflects this fundamental limitation, requiring that “the plaintiff … ‘alleg[e] such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction,” Warth v. Seldin, 422 U. S. 490, 498–499. Here, respondents can demonstrate standing only if application of the regulations will affect them in such a manner. Pp. 4–5. (b) As organizations, respondents can assert their members’ standing. Harm to their members’ recreational, or even their mere esthetic, interests in the National Forests will suffice to establish the requisite concrete and particularized injury, see Sierra Club v. Morton, 405 U. S. 727, 734–736, but generalized harm to the forest or the environment will not alone suffice. Respondents have identified no application of the invalidated regulations that threatens imminent and concrete harm to their members’ interests. Respondents’ argument that they have standing based on Burnt Ridge fails because, after voluntarily settling the portion of their lawsuit relevant to Burnt Ridge, respondents and their members are no longer under threat of injury from that project. The remaining affidavit submitted in support of standing fails to establish that any member has concrete plans to visit a site where the challenged regulations are being applied in a manner that will harm that member’s concrete interests. Additional affidavits purporting to establish standing were submitted after judgment had already been entered and notice of appeal filed, and are thus untimely. Pp. 5–8. (c) Respondents’ argument that they have standing because they have suffered procedural injury—i.e., they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied—fails because such a deprivation without some concrete interest affected thereby is insufficient to create Article III standing. See, e.g., Defenders of Wildlife, supra, at 572, n. 7. Pp. 8–9. (d) The dissent’s objections are addressed and rejected. Pp. 9–12. 490 F. 3d 687, reversed in part and affirmed in part. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined. | Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as “Earth Island.”) They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations. I In 1992, Congress enacted the Forest Service Decisionmaking and Appeals Reform Act (Appeals Reform Act or Act), Pub. L. 102–381, Tit. III, §322, 106 Stat. 1419, note following 16 U. S. C. §1612. Among other things, this required the Forest Service to establish a notice, comment, and appeal process for “proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of 1974.” Ibid. The Forest Service’s regulations implementing the Act provided that certain of its procedures would not be applied to projects that the Service considered categorically excluded from the requirement to file an environmental impact statement (EIS) or environmental assessment (EA). 36 CFR §§215.4(a) (notice and comment), 215.12(f) (appeal) (2008). Later amendments to the Forest Service’s manual of implementing procedures, adopted by rule after notice and comment, provided that fire-rehabilitation activities on areas of less than 4,200 acres, and salvage-timber sales of 250 acres or less, did not cause a significant environmental impact and thus would be categorically exempt from the requirement to file an EIS or EA. 68 Fed. Reg. 33824 (2003) (Forest Service Handbook (FSH) 1909.15, ch. 30, §31.2(11)); 68 Fed. Reg. 44607 (FSH 1909.15, ch. 30, §31.2(13)). This had the effect of excluding these projects from the notice, comment, and appeal process. In the summer of 2002, fire burned a significant area of the Sequoia National Forest. In September 2003, the Service issued a decision memo approving the Burnt Ridge Project, a salvage sale of timber on 238 acres damaged by that fire. Pursuant to its categorical exclusion of salvage sales of less than 250 acres, the Forest Service did not provide notice in a form consistent with the Appeals Reform Act, did not provide a period of public comment, and did not make an appeal process available. In December 2003, respondents filed a complaint in the Eastern District of California, challenging the failure of the Forest Service to apply to the Burnt Ridge Project §215.4(a) of its regulations implementing the Appeals Reform Act (requiring prior notice and comment), and §215.12(f) of the regulations (setting forth an appeal procedure). The complaint also challenged six other Forest Service regulations implementing the Act that were not applied to the Burnt Ridge Project. They are irrelevant to this appeal. The District Court granted a preliminary injunction against the Burnt Ridge salvage-timber sale. Soon thereafter, the parties settled their dispute over the Burnt Ridge Project and the District Court concluded that “the Burnt Ridge timber sale is not at issue in this case.” Earth Island Inst. v. Pengilly, 376 F. Supp. 2d 994, 999 (ED Cal. 2005). The Government argued that, with the Burnt Ridge dispute settled, and with no other project before the court in which respondents were threatened with injury in fact, respondents lacked standing to challenge the regulations; and that absent a concrete dispute over a particular project a challenge to the regulations would not be ripe. The District Court proceeded, however, to adjudicate the merits of Earth Island’s challenges. It invalidated five of the regulations (including §§215.4(a) and 215.12(f)), id., at 1011, and entered a nationwide injunction against their application, Earth Island Inst. v. Ruthenbeck, No. CIV F–03–6386 JKS, 2005 WL 5280466 *2 (Sept. 20, 2005). The Ninth Circuit held that Earth Island’s challenges to regulations not at issue in the Burnt Ridge Project were not ripe for adjudication because there was “not a sufficient ‘case or controversy’ ” before the court to sustain a facial challenge. Earth Island Inst. v. Ruthenbeck, 490 F. 3d 687, 696 (2007) (amended opinion). It affirmed, however, the District Court’s determination that §§215.4(a) and 215.12(f), which were applicable to the Burnt Ridge Project, were contrary to law, and upheld the nationwide injunction against their application. The Government sought review of the question whether Earth Island could challenge the regulations at issue in the Burnt Ridge Project, and if so whether a nationwide injunction was appropriate relief. We granted certiorari, 552 U. S. ___ (2008). II In limiting the judicial power to “Cases” and “Controversies,” Article III of the Constitution restricts it to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law. Except when necessary in the execution of that function, courts have no charter to review and revise legislative and executive action. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 559–560 (1992); Los Angeles v. Lyons, 461 U. S. 95, 111–112 (1983). This limitation “is founded in concern about the proper—and properly limited—role of the courts in a democratic society.” Warth v. Seldin, 422 U. S. 490, 498 (1975). See United States v. Richardson, 418 U. S. 166, 179 (1974). The doctrine of standing is one of several doctrines that reflect this fundamental limitation. It requires federal courts to satisfy themselves that “the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction.” 422 U. S., at 498–499. He bears the burden of showing that he has standing for each type of relief sought. See Lyons, supra, at 105. To seek injunctive relief, a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180–181 (2000). This requirement assures that “there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party,” Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 221 (1974). Where that need does not exist, allowing courts to oversee legislative or executive action “would significantly alter the allocation of power … away from a democratic form of government,” Richardson, supra, at 188 (Powell, J., concurring). The regulations under challenge here neither require nor forbid any action on the part of respondents. The standards and procedures that they prescribe for Forest Service appeals govern only the conduct of Forest Service officials engaged in project planning. “[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Defenders of Wildlife, supra, at 562. Here, respondents can demonstrate standing only if application of the regulations by the Government will affect them in the manner described above. It is common ground that the respondent organizations can assert the standing of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members’ recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice. Sierra Club v. Morton, 405 U. S. 727, 734–736 (1972). Affidavits submitted to the District Court alleged that organization member Ara Marderosian had repeatedly visited the Burnt Ridge site, that he had imminent plans to do so again, and that his interests in viewing the flora and fauna of the area would be harmed if the Burnt Ridge Project went forward without incorporation of the ideas he would have suggested if the Forest Service had provided him an opportunity to comment. The Government concedes this was sufficient to establish Article III standing with respect to Burnt Ridge. Brief for Petitioners 28. Marderosian’s threatened injury with regard to that project was originally one of the bases for the present suit. After the District Court had issued a preliminary injunction, however, the parties settled their differences on that score. Marderosian’s injury in fact with regard to that project has been remedied, and it is, as the District Court pronounced, “not at issue in this case.” 376 F. Supp. 2d, at 999. We know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action (here, the regulation in the abstract), apart from any concrete application that threatens imminent harm to his interests. Such a holding would fly in the face of Article III’s injury-in-fact requirement. See Lyons, supra, at 111. Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members. The only other affidavit relied on was that of Jim Bensman.* He asserted, first, that he had suffered injury in the past from development on Forest Service land. That does not suffice for several reasons: because it was not tied to application of the challenged regulations, because it does not identify any particular site, and because it relates to past injury rather than imminent future injury that is sought to be enjoined. Bensman’s affidavit further asserts that he has visited many National Forests and plans to visit several unnamed National Forests in the future. Respondents describe this as a mere failure to “provide the name of each timber sale that affected [Bensman’s] interests,” Brief for Respondents 44. It is much more (or much less) than that. It is a failure to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of Bensman’s to enjoy the National Forests. The National Forests occupy more than 190 million acres, an area larger than Texas. See Meet the Forest Service, http://www.fs.fed.us/aboutus/ meetfs.shtml (as visited Feb. 27, 2009, and available in Clerk of Court’s case file). There may be a chance, but is hardly a likelihood, that Bensman’s wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations. Indeed, without further specification it is impossible to tell which projects are (in respondents’ view) unlawfully subject to the regulations. The allegations here present a weaker likelihood of concrete harm than that which we found insufficient in Lyons, 461 U. S. 95, where a plaintiff who alleged that he had been injured by an improper police chokehold sought injunctive relief barring use of the hold in the future. We said it was “no more than conjecture” that Lyons would be subjected to that chokehold upon a later encounter. Id., at 108. Here we are asked to assume not only that Bensman will stumble across a project tract unlawfully subject to the regulations, but also that the tract is about to be developed by the Forest Service in a way that harms his recreational interests, and that he would have commented on the project but for the regulation. Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact. The Bensman affidavit does refer specifically to a series of projects in the Allegheny National Forest that are subject to the challenged regulations. It does not assert, however, any firm intention to visit their locations, saying only that Bensman “ ‘want[s] to’ ” go there. Brief for Petitioners 6. This vague desire to return is insufficient to satisfy the requirement of imminent injury: “Such ‘some day’ intentions—without any description of concrete plans, or indeed any specification of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our cases require.” Defenders of Wildlife, 504 U. S., at 564. Respondents argue that they have standing to bring their challenge because they have suffered procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing. Only a “person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.” Id., at 572, n. 7 (emphasis added). Respondents alleged such injury in their challenge to the Burnt Ridge Project, claiming that but for the allegedly unlawful abridged procedures they would have been able to oppose the project that threatened to impinge on their concrete plans to observe nature in that specific area. But Burnt Ridge is now off the table. It makes no difference that the procedural right has been accorded by Congress. That can loosen the strictures of the redressability prong of our standing inquiry—so that standing existed with regard to the Burnt Ridge Project, for example, despite the possibility that Earth Island’s allegedly guaranteed right to comment would not be successful in persuading the Forest Service to avoid impairment of Earth Island’s concrete interests. See Ibid. Unlike redressability, however, the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute. “[I]t would exceed [Article III’s] limitations if, at the behest of Congress and in the absence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws. … [T]he party bringing suit must show that the action injures him in a concrete and personal way.” Id., at 580–581 (Kennedy, J., concurring in part and concurring in judgment). III The dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization’s self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than “ ‘700,000 members nationwide, including thousands of members in California’ ” who “ ‘use and enjoy the Sequoia National Forest,’ ” post, at 2 (opinion of Breyer, J.), it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service’s procedures and will suffer (unidentified) concrete harm as a result. This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm. In Defenders of Wildlife, supra, at 563, we held that the organization lacked standing because it failed to “submit affidavits … showing, through specific facts … that one or more of [its] members would … be ‘directly’ affected” by the allegedly illegal activity. Morton, 405 U. S. 727, involved the same Sierra Club that is a party in the present case, and a project in the Sequoia National Forest. The principal difference from the present case is that the challenged project was truly massive, involving the construction of motels, restaurants, swimming pools, parking lots, and other structures on 80 acres of the Forest, plus ski lifts, ski trails, and a 20-mile access highway. We did not engage in an assessment of statistical probabilities that one of the Sierra Club’s members would be adversely affected, but held that the Sierra Club lacked standing. We said: “The Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the Disney development. Nowhere in the pleadings or affidavits did the Club state that its members use Mineral King for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents.” Id., at 735. And in FW/PBS, Inc. v. Dallas, 493 U. S. 215, 235 (1990), we noted that the affidavit provided by the city to establish standing would be insufficient because it did not name the individuals who were harmed by the challenged license-revocation program. This requirement of naming the affected members has never been dispensed with in light of statistical probabilities, but only where all the members of the organization are affected by the challenged activity. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 459 (1958) (all organization members affected by release of membership lists). A major problem with the dissent’s approach is that it accepts the organizations’ self-descriptions of their membership, on the simple ground that “no one denies” them, post, at 6. But it is well established that the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties. Bender v. Williamsport Area School Dist., 475 U. S. 534, 541 (1986). Without individual affidavits, how is the court to assure itself that the Sierra Club, for example, has “ ‘thousands of members’ ” who “ ‘use and enjoy the Sequoia National Forest’ ”? And, because to establish standing plaintiffs must show that they “use the area affected by the challenged activity and not an area roughly in the vicinity of ” a project site, Defenders of Wildlife, 504 U. S., at 566 (internal quotation marks omitted), how is the court to assure itself that some of these members plan to make use of the specific sites upon which projects may take place? Or that these same individuals will find their recreation burdened by the Forest Service’s use of the challenged procedures? While it is certainly possible—perhaps even likely—that one individual will meet all of these criteria, that speculation does not suffice. “Standing,” we have said, “is not ‘an ingenious academic exercise in the conceivable’ … [but] requires … a factual showing of perceptible harm.” Ibid. In part because of the difficulty of verifying the facts upon which such probabilistic standing depends, the Court has required plaintiffs claiming an organizational standing to identify members who have suffered the requisite harm—surely not a difficult task here, when so many thousands are alleged to have been harmed. The dissent would have us replace the requirement of “ ‘imminent’ ” harm, which it acknowledges our cases establish, see post, at 4, with the requirement of “ ‘a realistic threat’ that reoccurrence of the challenged activity would cause [the plaintiff] harm ‘in the reasonably near future,’ ” post, at 5. That language is taken, of course, from an opinion that did not find standing, so the seeming expansiveness of the test made not a bit of difference. The problem for the dissent is that the timely affidavits no more meet that requirement than they meet the usual formulation. They fail to establish that the affiants’ members will ever visit one of the small parcels at issue. The dissent insists, however, that we should also have considered the late-filed affidavits. It invokes Federal Rule of Civil Procedure 15(d) (West 2008 rev. ed.), which says that “[t]he court may permit supplementation even though the original pleading is defective in stating of a claim or defense.” So also does Rule 21 permit joinder of parties “at any time.” But the latter no more permits joinder of parties, than the former permits the supplementation of the record, in the circumstances here: after the trial is over, judgment has been entered, and a notice of appeal has been filed. The dissent cites no instance in which “supplementation” has been permitted to resurrect and alter the outcome in a case that has gone to judgment, and indeed after notice of appeal had been filed. If Rule 15(b) allows additional facts to be inserted into the record after appeal has been filed, we are at the threshold of a brave new world of trial practice in which Rule 60 has been swallowed whole by Rule 15(b). * * * Since we have resolved this case on the ground of standing, we need not reach the Government’s contention that plaintiffs have not demonstrated that the regulations are ripe for review under the Administrative Procedure Act. We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate. And we do not disturb the dismissal of respondents’ challenge to the remaining regulations, which has not been appealed. The judgment of the Court of Appeals is reversed in part and affirmed in part. It is so ordered. * After the District Court had entered judgment, and after the Government had filed its notice of appeal, respondents submitted additional affidavits to the District Court. We do not consider these. If respondents had not met the challenge to their standing at the time of judgment, they could not remedy the defect retroactively. |
557.US.2008_08-295 | As part of the 1986 reorganization plan of the Johns-Manville Corporation (Manville), an asbestos supplier and manufacturer of asbestos-containing products, the Bankruptcy Court approved a settlement providing that Manville’s insurers, including The Travelers Indemnity Company and related companies (Travelers), would contribute to the corpus of the Manville Personal Injury Settlement Trust (Trust), and releasing those insurers from any “Policy Claims,” which were channeled to the Trust. “Policy Claims” include, as relevant here, “claims” and “allegations” against the insurers “based upon, arising out of or relating to” the Manville insurance policies. The settlement agreement and reorganization plan were approved by the Bankruptcy Court (1986 Orders) and were affirmed by the District Court and the Second Circuit. Over a decade later plaintiffs began filing asbestos actions against Travelers in state courts (Direct Actions), often seeking to recover from Travelers not for Manville’s wrongdoing but for Travelers’ own alleged violations of state consumer-protection statutes or of common law duties. Invoking the 1986 Orders, Travelers asked the Bankruptcy Court to enjoin 26 Direct Actions. Ultimately, a settlement was reached, in which Travelers agreed to make payments to compensate the Direct Action claimants, contingent on the court’s order clarifying that the Direct Actions were, and remained, prohibited by the 1986 Orders. The court made extensive factual findings, uncontested here, concluding that Travelers derived its knowledge of asbestos from its insurance relationship with Manville and that the Direct Actions are based on acts or omissions by Travelers arising from or related to the insurance policies. It then approved the settlement and entered an order (Clarifying Order), which provided that the 1986 Orders barred the pending Direct Actions and various other claims. Objectors to the settlement (respondents here) appealed. The District Court affirmed, but the Second Circuit reversed. Agreeing that the Bankruptcy Court had jurisdiction to interpret and enforce the 1986 Orders, the Circuit nevertheless held that the Bankruptcy Court lacked jurisdiction to enjoin the Direct Actions because those actions sought not to recover based on Manville’s conduct, but to recover directly from Travelers for its own conduct. Held: The terms of the injunction bar the Direct Actions against Travelers, and the finality of the Bankruptcy Court’s 1986 Orders generally stands in the way of challenging their enforceability. Pp. 9–18. (a) The Direct Actions are “Policy Claims” enjoined as against Travelers by the 1986 Orders, which covered, inter alia, “claims” and “allegations” “relating to” Travelers’ insurance coverage of Manville. In a statute, “[t]he phrase ‘in relation to’ is expansive,” Smith v. United States, 508 U. S. 223, 237, and so is its reach here. While it would be possible to suggest that a “claim” only relates to Travelers’ insurance coverage if it seeks recovery based upon Travelers’ specific contractual obligation to Manville, “allegations” is not amenable to such a narrow construction and clearly reaches factual assertions that relate in a more comprehensive way to Travelers’ dealings with Manville. The Bankruptcy Court’s detailed factual findings place the Direct Actions within the terms of the 1986 Orders. Contrary to respondents’ argument, the 1986 Orders contain no language limiting “Policy Claims” to claims derivative of Manville’s liability. Even if, before the entry of the 1986 Orders, Travelers understood the proposed injunction to bar only such derivative claims, where a court order’s plain terms unambiguously apply, as they do here, they are entitled to their effect. If it is black-letter law that an unambiguous private contract’s terms must be enforced irrespective of the parties’ subjective intent, it is also clear that a court, such as the Bankruptcy Court here, should enforce a court order, a public governmental act, according to its unambiguous terms. Pp. 10–13. (b) Because the 1986 Orders became final on direct review over two decades ago, whether the Bankruptcy Court had jurisdiction and authority to enter the injunction in 1986 was not properly before the Second Circuit in 2008 and is not properly before this Court. The Bankruptcy Court plainly had jurisdiction to interpret and enforce its own prior orders, see Local Loan Co. v. Hunt, 292 U. S. 234, 239, and it explicitly retained jurisdiction to enforce its injunctions when it issued the 1986 Orders. The Second Circuit erred in holding the 1986 Orders unenforceable according to their terms on the ground that the Bankruptcy Court had exceeded its jurisdiction in 1986. On direct appeal of the 1986 Orders, any objector was free to argue that the Bankruptcy Court had exceeded its jurisdiction, and the District Court or Court of Appeals could have raised such concerns sua sponte. But once those orders became final on direct review, they became res judicata to the “ ‘parties and those in privity with them.’ ” Nevada v. United States, 463 U. S. 110, 130. So long as respondents or those in privity with them were parties to Manville’s bankruptcy proceeding, and were given a fair chance to challenge the Bankruptcy Court’s subject-matter jurisdiction, they cannot challenge it now by resisting enforcement of the 1986 Orders. The Second Circuit’s willingness to entertain this collateral attack cannot be squared with res judicata and the practical necessity served by that rule. Almost a quarter-century after the 1986 Orders were entered, the time to prune them is over. Pp. 13–16. (c) This holding in narrow. The Court neither resolves whether a bankruptcy court, in 1986 or today, could properly enjoin claims against nondebtor insurers that are not derivative of the debtor’s wrongdoing, nor decides whether any particular respondent is bound by the 1986 Orders, which is a question that the Second Circuit did not consider. Pp. 17–18. 517 F. 3d 52, 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. Together with No. 08–307, Common Law Settlement Counsel v. Bailey et al., also on certiorari to the same court. | As an element of the 1986 reorganization plan of the Johns-Manville Corporation (Manville), the United States Bankruptcy Court for the Southern District of New York enjoined certain lawsuits against Manville’s insurers, including The Travelers Indemnity Company and its affiliates (Travelers). The question is whether the injunction bars state-law actions against Travelers based on allegations either of its own wrongdoing while acting as Manville’s insurer or of its misuse of information obtained from Manville as its insurer. We hold that the terms of the injunction bar the actions and that the finality of the Bankruptcy Court’s orders following the conclusion of direct review generally stands in the way of challenging the enforceability of the injunction. I From the 1920s to the 1970s, Manville was, by most accounts, the largest supplier of raw asbestos and manufacturer of asbestos-containing products in the United States, In re Johns-Manville Corp., 517 F. 3d 52, 55–56 (CA2 2008), and for much of that time Travelers was Manville’s primary liability insurer. In re Johns-Manville Corp., No. 82 B 11656 etc. (Bkrtcy. Ct. SDNY 2004), App. to Pet. for Cert. in No. 08–295, pp. 111a–112a (hereinafter Bkrtcy. Ct. Op.). As studies began to link asbestos exposure to respiratory disease and thousands of lawsuits were filed against Manville, Travelers, as the insurer, worked closely with Manville to learn what its insured knew and to assess the dangers of asbestos exposure; it evaluated Manville’s potential liability and defenses, and paid Manville’s litigation costs. Id., at 114a–117a, 121a–122a. In 1982, the prospect of overwhelming liability led Manville to file for bankruptcy protection in the Southern District of New York. It thus became incumbent on the Bankruptcy Court to devise “a plan of reorganization for [Manville] which would provide for payment to holders of present or known asbestos health related claims … and [to] those persons who had not yet manifested an injury but who would manifest symptoms of asbestos-related illnesses at some future time.” In re Johns-Manville Corp., 97 B. R. 174, 176 (Bkrtcy. Ct. SDNY 1989). The ensuing reorganization plan created the Manville Personal Injury Settlement Trust (Trust) to pay all asbestos claims against Manville, which would be channeled to the Trust. See Kane v. Johns-Manville Corp., 843 F. 2d 636, 640–641 (CA2 1988); In re Johns-Manville Corp., 340 B. R. 49, 54 (SDNY 2006). The Trust has since paid out more than $3.2 billion to over 600,000 claimants. Bkrtcy. Ct. Op. 136a–137a. In the period leading up to the reorganization, Manville and its insurers litigated over the scope and limits of liability coverage, and Travelers faced suits by third parties, such as Manville factory workers and vendors of Manville products, seeking compensation under the insurance policies. There was also litigation among the insurers themselves, who brought various indemnity claims, contribution claims, and cross-claims. Id., at 132a–134a. In a settlement described as the “cornerstone” of the Manville reorganization, the insurers agreed to provide most of the initial corpus of the Trust, with a payment of $770 million to the bankruptcy estate, $80 million of it from Travelers. MacArthur Co. v. Johns-Manville Corp., 837 F. 2d 89, 90 (CA2 1988); Bkrtcy. Ct. Op. 134a; In re Johns-Manville Corp., 68 B. R. 618, 621 (Bkrtcy. Ct. SDNY 1986). There would have been no such payment without the injunction at the heart of the present dispute. The December 18, 1986, order of the Bankruptcy Court approving the insurance settlement agreements (Insurance Settlement Order) provides that, upon the insurers’ payment of the settlement funds to the Trust, “all Persons are permanently restrained and enjoined from commencing and/or continuing any suit, arbitration or other proceeding of any type or nature for Policy Claims against any or all members of the Settling Insurer Group.” App. to Pet. for Cert. in No. 08–295, at 446a. The Insurance Settlement Order goes on to provide that the insurers are “released from any and all Policy Claims,” which are to be channeled to the Trust. Ibid. The order defines “Policy Claims” as “any and all claims, demands, allegations, duties, liabilities and obligations (whether or not presently known) which have been, or could have been, or might be, asserted by any Person against … any or all members of the Settling Insurer Group based upon, arising out of or relating to any or all of the Policies.” Id., at 439a. The insurers were entitled “to terminate the settlements if the injunctive orders [were] not issued or if they [were] set aside on appeal.” MacArthur, supra, at 90. The Insurance Settlement Order was incorporated by reference in the Bankruptcy Court’s December 22, 1986, order confirming Manville’s Second Amended and Restated Plan of Reorganization (Confirmation Order).[Footnote 1] App. to Pet. for Cert. in No. 08–295, at 271a–272a. Both the Confirmation Order and the Insurance Settlement Order (collectively, 1986 Orders) were affirmed by the District Court, see In re Johns-Manville Corp., 78 B. R. 407 (SDNY 1987), and the Court of Appeals for the Second Circuit, see MacArthur, supra; Kane, supra. Nonetheless, over a decade later plaintiffs started filing asbestos actions against Travelers in various state courts, cases that have been spoken of in this litigation as Direct Actions. They are of two sorts. The Statutory Direct Actions are brought under state consumer-protection statutes, and allege that Travelers conspired with other insurers and with asbestos manufacturers to hide the dangers of asbestos and to raise a fraudulent “state of the art” (or “no duty to warn”) defense to personal injury claims. Bkrtcy. Ct. Op. 140a–143a. The Common Law Direct Actions claim that Travelers violated common law duties by failing to warn the public about the dangers of asbestos or by acting to keep its knowledge of those dangers from the public. Id., at 143a–147a. It is undisputed that many of the plaintiffs seek to recover from Travelers, not indirectly for Manville’s wrongdoing, but for Travelers’ own alleged violations of state law. See 517 F. 3d, at 63.[Footnote 2] In 2002, Travelers invoked the terms of the 1986 Orders in moving the Bankruptcy Court to enjoin 26 Direct Actions pending in state courts. Id., at 58. The court issued a temporary restraining order, repeatedly extended, and referred the parties to mediation, which led to settlements between Travelers and three sets of plaintiffs in both Statutory and Common Law Direct Actions. Bkrtcy. Ct. Op. 103a–104a. Under the settlement terms Travelers would pay more than $400 million to settlement funds to compensate Direct Action claimants, contingent upon the entry of an order by the Bankruptcy Court clarifying that the Direct Actions were, and remained, prohibited by the 1986 Orders. Id., at 150a–152a. The settlement requires claimants seeking payment from the settlement funds to grant Travelers a release from further liability, separate and apart from Travelers’ protection under the 1986 Orders. Id., at 151a–152a. After notice of the settlement was given to potential claimants, the Bankruptcy Court (the same judge who had issued the 1986 Orders) held an evidentiary hearing and made extensive factual findings that are not challenged here. The court determined that “Travelers[’] knowledge of the hazards of asbestos was derived from its nearly three decade insurance relationship with Manville and the performance by Travelers of its obligations under the Policies, including through the underwriting, loss control activities, defense obligations and generally through its lengthy and confidential insurance relationship under the policies.” Id., at 128a–129a. In sum, the Bankruptcy Court found that “Travelers learned virtually everything it knew about asbestos from its relationship with Manville.” Id., at 131a. As for the Direct Actions, the court saw “[t]he gravamen of the Statutory Direct Action Lawsuits” as “center[ing] on Travelers[’] defense of Manville in asbestos-related claims.” Id., at 142a. The court read the “alleged factual predicate” of the Common Law Direct Actions as being “essentially identical to the statutory actions: Travelers … influence[d] Manville’s purported failure to disclose knowledge about asbestos hazards; Travelers defended Manville; Travelers advanced the state of the art defense; and Travelers coordinated Manville’s national defense effort.” Id., at 147a (citations omitted). The court understood “the direct action claims against Travelers [to be] inextricably intertwined with Travelers[’] long relationship as Manville’s insurer,” id., at 169a, and found that “[a]fter the Court preliminarily enjoined prosecution of Direct Action Claims against Travelers pending final ruling on the merits, certain plaintiffs’ lawyers violated the letter and the spirit of this Court’s rulings by simply deleting the term ‘Manville’ from their complaints—but leaving the substance unchanged,” id., at 147a. Hence, the court’s conclusion that “[t]he evidence in this proceeding establishes that the gravamen of Direct Action Claims were acts or omissions by Travelers arising from or relating to Travelers[’] insurance relationship with Manville.” Id., at 173a. Finding that the “claims against Travelers based on such actions or omissions necessarily ‘arise out of’ and [are] ‘related to’ ” the insurance policies, ibid., which compelled Travelers to defend Manville against asbestos-related claims, id., at 173a–176a, the Bankruptcy Court held that the Direct Actions “are—and always have been—permanently barred” by the 1986 Orders, id., at 170a. The settlement was accordingly approved and an order dated August 17, 2004 (Clarifying Order), was entered, providing that the 1986 Orders barred the pending Direct Actions and “[t]he commencement or prosecution of all actions and proceedings against Travelers that directly or indirectly are based upon, arise out of or relate to Travelers[’] insurance relationship with Manville or Travelers[’] knowledge or alleged knowledge concerning the hazards of asbestos,” including claims for contribution or indemnification. Id., at 95a. The Clarifying Order does not, however, block “the commencement and prosecution of claims against Travelers by policyholders other than Manville . . . for insurance proceeds or other obligations arising under any policy of insurance provided by Travelers to a policyholder other than Manville.” Id., at 96a. The Clarifying Order also separately disclaims that it enjoins bringing “claims arising from contractual obligations by Travelers to policyholders other than Manville, as long as Travelers[’] alleged liability or the proof required to establish Travelers[’] alleged liability is unrelated to any knowledge Travelers gained from its insurance relationship with Manville or acts, errors, omissions or evidence related to Travelers[’] insurance relationship with Manville.” Ibid. Some individual claimants and Chubb Indemnity Insurance Company (Chubb), respondents before this Court, objected to the settlement and subsequently appealed.[Footnote 3] So far as it matters here, the District Court affirmed, but the Court of Appeals for the Second Circuit reversed. In presenting the case to the Second Circuit the objectors argued that the Direct Actions fall outside the scope of the 1986 Orders and that the Clarifying Order erroneously expands those orders to bar actions beyond the Bankruptcy Court’s subject-matter jurisdiction and statutory authority. Travelers and the settling claimants responded that the Clarifying Order is consistent with the terms of the 1986 Orders, that this reading of the 1986 Orders does not generate any jurisdictional or other statutory concerns, and that the Second Circuit’s prior rejection of a challenge to the Insurance Settlement Order in MacArthur, 837 F. 2d 89, is controlling. In its opinion explaining the judgment under review here, the Second Circuit recognized that “[i]t is undisputed that the bankruptcy court had continuing jurisdiction to interpret and enforce its own 1986 orders,” and that “there is no doubt that the bankruptcy court had jurisdiction to clarify its prior orders.” 517 F. 3d, at 60–61. It also had “little doubt that, in a literal sense, the instant claims against Travelers ‘arise out of’ its provision of insurance coverage to Manville,” id., at 67, and the court emphasized that “[t]he bankruptcy court’s extensive factual findings regarding Manville’s all-encompassing presence in the asbestos industry and its extensive relationship with Travelers support this notion” that the subjects of the Clarifying Order fall within the scope of the 1986 Orders, ibid. The Circuit nevertheless held that the Bankruptcy Court could not, in enforcing the 1986 Orders, “enjoin claims over which it had no jurisdiction,” id., at 61, and that “[t]he ancillary jurisdiction courts possess to enforce their own orders is itself limited by the jurisdictional limits of the order sought to be enforced,” id., at 65, n. 22 (internal quotation marks omitted). See also id., at 65 (“The fact that our case involves a clarification of the bankruptcy court’s prior order does not alter the jurisdictional predicate necessary to enjoin third-party non-debtor claims”). The Court of Appeals found that “the jurisdictional analysis by the lower courts falls short,” id., at 62, in failing to recognize the significance of the fact that the Direct Actions “do not seek to collect on the basis of Manville’s conduct,” but rather “seek to recover directly from Travelers, a non-debtor insurer, for its own alleged misconduct,” id., at 63. The Court of Appeals held that the Bankruptcy Court mistook its jurisdiction when it enjoined “claims brought against a third-party non-debtor solely on the basis of that third-party’s financial contribution to a debtor’s estate,” because “a bankruptcy court only has jurisdiction to enjoin third-party non-debtor claims that directly affect the res of the bankruptcy estate.” Id., at 66. In reaching this result, the court explained that its prior decision in MacArthur was not controlling, as there a Manville asbestos distributor had challenged the authority of the Bankruptcy Court to bar it from collecting out of Manville’s own insurance coverage. 517 F. 3d, at 62. Here, by contrast, “Travelers candidly admits that both the statutory and common law claims seek damages from Travelers that are unrelated to the policy proceeds.” Id., at 63. The Court of Appeals also considered the 1994 enactment of 11 U. S. C. §524(g), which provides explicit statutory authority for a bankruptcy court to order the channeling of claims against a debtor’s insurers to the bankruptcy estate, but the court understood §524(g) to be “limited to situations where a third party has derivative liability for the claims against the debtor” and “was not intended to reach non-derivative claims.” 517 F. 3d, at 68 (ellipsis and internal quotation marks omitted). We granted certiorari, 555 U. S. ___ (2009) and now reverse. II The Bankruptcy Court correctly understood that the Direct Actions fall within the scope of the 1986 Orders, as suits of this sort always have. The Court of Appeals, however, believed it was free to look beyond the terms of the 1986 Orders and so treated the action as one “concern[ing] the outer reaches of a bankruptcy court’s jurisdiction.” 517 F. 3d, at 55. This, we think, was error. If this were a direct review of the 1986 Orders, the Court of Appeals would indeed have been duty bound to consider whether the Bankruptcy Court had acted beyond its subject-matter jurisdiction. See Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006); Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884). But the 1986 Orders became final on direct review over two decades ago, and Travelers’ response to the Circuit’s jurisdictional ruling is correct: whether the Bankruptcy Court had jurisdiction and authority to enter the injunction in 1986 was not properly before the Court of Appeals in 2008 and is not properly before us. A We begin at our point of agreement with the Second Circuit, that the Direct Actions are “Policy Claims” enjoined as against Travelers by the language of the 1986 Orders, which covered “claims, demands, allegations, duties, liabilities and obligations” against Travelers, known or unknown at the time, “based upon, arising out of or relating to” Travelers’ insurance coverage of Manville. App. to Pet. for Cert. in No. 08–295, at 439a. In a statute, “[t]he phrase ‘in relation to’ is expansive,” Smith v. United States, 508 U. S. 223, 237 (1993), and so is its reach here, where “Policy Claims” covers not only “claims,” but even “allegations” relating to the insurance coverage. Although it would be possible (albeit quite a stretch) to suggest that a “claim” only relates to Travelers’ insurance coverage if it seeks recovery based upon Travelers’ specific contractual obligation to Manville, “allegations” is not even remotely amenable to such a narrow construction and clearly reaches factual assertions that relate in a more comprehensive way to Travelers’ dealings with Manville. The Bankruptcy Court’s uncontested factual findings drive the point home. In substance, the Bankruptcy Court found that the Direct Actions seek to recover against Travelers either for supposed wrongdoing in its capacity as Manville’s insurer or for improper use of information that Travelers obtained from Manville as its insurer. These actions so clearly involve “claims” (and, all the more so, “allegations”) “based upon, arising out of or relating to” Travelers’ insurance coverage of Manville, that we have no need here to stake out the ultimate bounds of the injunction. There is, of course, a cutoff at some point, where the connection between the insurer’s action complained of and the insurance coverage would be thin to the point of absurd. See California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 335 (1997) (Scalia, J., concurring) (“[A]pplying the ‘relate to’ provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else”); New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995). But the detailed findings of the Bankruptcy Court place the Direct Actions within the terms of the 1986 Orders without pushing the limits. Respondents argue that this is just revisionism perpetrated by the Clarifying Order, which they say improperly expanded the scope of the 1986 Orders to enjoin the Direct Actions. Their position appears to be that the 1986 Orders only bar actions against insurers seeking to recover derivatively for Manville’s wrongdoing, but not actions to recover for Travelers’ own misconduct, no matter what its relationship to Travelers’ coverage of Manville. But this simply is not what the 1986 Orders say. The definition of “Policy Claims” contains nothing limiting it to derivative actions, and there is language in the 1986 Orders directly to the contrary: The 1986 Orders not only enjoin bringing expansively defined “Policy Claims” against the settling insurers, but they go on to provide that the injunction has no application to a claim previously brought against a settling insurer “seeking any and all damages (other than or in addition to policy proceeds) for bad faith or other insurer misconduct alleged in connection with the handling or disposition of claims.” App. to Pet. for Cert. in No. 08–295, at 446a. There is no doubt about the implication, that this same sort of claim brought after the 1986 Orders become final will be barred. There would have been no need for this exception if “Policy Claims” were limited to claims against Travelers for Manville’s wrongdoing. Respondents seek further refuge in evidence that before entry of the 1986 Orders some parties to the Manville bankruptcy (including Travelers) understood the proposed injunction to bar only claims derivative of Manville’s liability. They may well be right about that: we are in no position to engage in factfinding on this point, but there certainly are statements in the record that seem to support respondents’ contention. See App. for Respondent Chubb 1a–3a, 5a, 13a–14a. But be that as it may, where the plain terms of a court order unambiguously apply, as they do here, they are entitled to their effect. See, e.g., Negrón-Almeda v. Santiago, 528 F. 3d 15, 23 (CA1 2008) (“[A] court must carry out and enforce an order that is clear and unambiguous on its face”); United States v. Spallone, 399 F. 3d 415, 421 (CA2 2005) (“[I]f a judgment is clear and unambiguous, a court must adopt, and give effect to, the plain meaning of the judgment” (internal quotation marks omitted)). If it is black-letter law that the terms of an unambiguous private contract must be enforced irrespective of the parties’ subjective intent, see 11 R. Lord, Williston on Contracts §30:4 (4th ed. 1999), it is all the clearer that a court should enforce a court order, a public governmental act, according to its unambiguous terms.[Footnote 4] This is all the Bankruptcy Court did. B Given the Clarifying Order’s correct reading of the 1986 Orders, the only question left is whether the Bankruptcy Court had subject-matter jurisdiction to enter the Clarifying Order. The answer here is easy: as the Second Circuit recognized, and respondents do not dispute, the Bankruptcy Court plainly had jurisdiction to interpret and enforce its own prior orders. See Local Loan Co. v. Hunt, 292 U. S. 234, 239 (1934). What is more, when the Bankruptcy Court issued the 1986 Orders it explicitly retained jurisdiction to enforce its injunctions. See App. to Pet. for Cert. in No. 08–295, at 284a–286a. The Court of Appeals, however, went on to a different jurisdictional enquiry. It held that the 1986 Orders could not be enforced according to their terms because, as the panel saw it, the Bankruptcy Court had exceeded its jurisdiction when it issued the orders in 1986. We think, though, that it was error for the Court of Appeals to reevaluate the Bankruptcy Court’s exercise of jurisdiction in 1986. On direct appeal of the 1986 Orders, anyone who objected was free to argue that the Bankruptcy Court had exceeded its jurisdiction, and the District Court or Court of Appeals could have raised such concerns sua sponte. In fact, one objector argued just that. In MacArthur, a distributor of Manville asbestos claimed to be a coinsured under certain Manville insurance policies and argued that the 1986 Orders exceeded the Bankruptcy Court’s jurisdiction by preventing the distributor from recovering under the policies; the Second Circuit disagreed, concluding that the Bankruptcy Court had not stepped outside its jurisdiction or statutory authority.[Footnote 5] See 837 F. 2d, at 91–94. But once the 1986 Orders became final on direct review (whether or not proper exercises of bankruptcy court jurisdiction and power), they became res judicata to the “ ‘parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ ” Nevada v. United States, 463 U. S. 110, 130 (1983) (quoting Cromwell v. County of Sac, 94 U. S. 351, 352 (1877)). Those orders are not any the less preclusive because the attack is on the Bankruptcy Court’s conformity with its subject-matter jurisdiction, for “[e]ven subject-matter jurisdiction … may not be attacked collaterally.” Kontrick v. Ryan, 540 U. S. 443, 455, n. 9 (2004). See also Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 376 (1940) (“[Federal courts] are courts with authority, when parties are brought before them in accordance with the requirements of due process, to determine whether or not they have jurisdiction to entertain the cause and for this purpose to construe and apply the statute under which they are asked to act. Their determinations of such questions, while open to direct review, may not be assailed collaterally”). So long as respondents or those in privity with them were parties to the Manville bankruptcy proceeding, and were given a fair chance to challenge the Bankruptcy Court’s subject-matter jurisdiction, they cannot challenge it now by resisting enforcement of the 1986 Orders. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 702, n. 9 (1982) (“A party that has had an opportunity to litigate the question of subject-matter jurisdiction may not … reopen that question in a collateral attack upon an adverse judgment”); Chicot County, supra, at 375 (“[T]hese bondholders, having the opportunity to raise the question of invalidity, were not the less bound by the decree because they failed to raise it”).[Footnote 6] The willingness of the Court of Appeals to entertain this sort of collateral attack cannot be squared with res judicata and the practical necessity served by that rule. “It is just as important that there should be a place to end as that there should be a place to begin litigation,” Stoll v. Gottlieb, 305 U. S. 165, 172 (1938), and the need for finality forbids a court called upon to enforce a final order to “tunnel back … for the purpose of reassessing prior jurisdiction de novo,” In re Optical Technologies, Inc., 425 F. 3d 1294, 1308 (CA11 2005). If the law were otherwise, and “courts could evaluate the jurisdiction that they may or may not have had to issue a final judgment, the rules of res judicata … would be entirely short-circuited.” Id., at 1307; see Willy v. Coastal Corp., 503 U. S. 131, 137 (1992) (“[T]he practical concern with providing an end to litigation justifies a rule preventing collateral attack on subject-matter jurisdiction”). Almost a quarter-century after the 1986 Orders were entered, the time to prune them is over.[Footnote 7] III Our holding is narrow. We do not resolve whether a bankruptcy court, in 1986 or today, could properly enjoin claims against nondebtor insurers that are not derivative of the debtor’s wrongdoing. As the Court of Appeals noted, in 1994 Congress explicitly authorized bankruptcy courts, in some circumstances, to enjoin actions against a nondebtor “alleged to be directly or indirectly liable for the conduct of, claims against, or demands on the debtor to the extent such alleged liability … arises by reason of … the third party’s provision of insurance to the debtor or a related party,” and to channel those claims to a trust for payments to asbestos claimants. 11 U. S. C. §524 (g)(4)(A)(ii). On direct review today, a channeling injunction of the sort issued by the Bankruptcy Court in 1986 would have to be measured against the requirements of §524 (to begin with, at least). But owing to the posture of this litigation, we do not address the scope of an injunction authorized by that section.[Footnote 8] Nor do we decide whether any particular respondent is bound by the 1986 Orders. We have assumed that respondents are bound, but the Court of Appeals did not consider this question. Chubb, in fact, relying on Amchem Products, Inc. v. Windsor, 521 U. S. 591 (1997), and Ortiz v. Fibreboard Corp., 527 U. S. 815 (1999), has maintained that it was not given constitutionally sufficient notice of the 1986 Orders, so that due process absolves it from following them, whatever their scope. See 340 B. R., at 68. The District Court rejected this argument, id., at 68–69, but the Court of Appeals did not reach it, 517 F. 3d, at 60, n. 17. On remand, the Court of Appeals can take up this objection and any others that respondents have preserved. IV We reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The Confirmation Order itself contains an additional injunction barring certain claims against the settling insurance companies. Bkrtcy. Ct. Op. 286a–288a. That injunction does not bear on our decision, and we do not consider it. Footnote 2 A true “direct action” suit is “[a] lawsuit by a person claiming against an insured but suing the insurer directly instead of pursuing compensation indirectly through the insured.” Black’s Law Dictionary 491 (8th ed. 2004). Because many of the suits at issue seek to hold Travelers liable for independent wrongdoing rather than for a legal wrong by Manville, they are not direct actions in the terms of strict usage. Nonetheless, because the suits are referred to as “direct actions” in the decisions of the Bankruptcy Court, the District Court, and the Court of Appeals, we call them that as well, in the interest of simplicity. See 517 F. 3d, at 55, n. 4. Footnote 3 Chubb is a codefendant with Travelers in certain Common Law Direct Actions, and the Clarifying Order prevents it from bringing contribution and indemnity claims against Travelers under certain circumstances. See Brief for Respondent Chubb 16. Footnote 4 Even if we found the 1986 Orders to be ambiguous as applied to the Direct Actions, and even if we concluded that it would be proper to look to the parties’ communications to resolve that ambiguity, it is far from clear that respondents would be entitled to upset the Bankruptcy Court’s interpretation of the 1986 Orders. Numerous Courts of Appeals have held that a bankruptcy court’s interpretation of its own confirmation order is entitled to substantial deference. See In re Shenango Group Inc., 501 F. 3d 338, 346 (CA3 2007); In re Dow Corning Corp., 456 F. 3d 668, 675 (CA6 2006); In re Optical Technologies, Inc., 425 F. 3d 1294, 1300 (CA11 2005); In re Dial Business Forms, Inc., 341 F. 3d 738, 744 (CA8 2003); In re National Gypsum Co., 219 F. 3d 478, 484 (CA5 2000); In re Casse, 198 F. 3d 327, 333 (CA2 1999); In re Tomlin, 105 F. 3d 933, 941 (CA4 1997); Monarch Life Ins. Co. v. Ropes & Gray, 65 F. 3d 973, 983 (CA1 1995); In re Weber, 25 F. 3d 413, 416 (CA7 1994). Because the 1986 Orders clearly cover the Direct Actions, we need not determine the proper standard of review. Footnote 5 We agree with the Court of Appeals that MacArthur only resolved the narrow question whether the Bankruptcy Court could enjoin derivative claims against the insurers and did not address whether the 1986 Orders, in their entirety, were proper. We note MacArthur merely to illustrate the obvious: the 1986 Orders were subject to challenge, on jurisdictional grounds or otherwise, on direct review. The dissent suggests that MacArthur limited the scope of the 1986 Orders to derivative claims, see post, at 1, 7–9, but it did not. The question whether the Bankruptcy Court had enjoined or could properly enjoin nonderivative claims was not at issue in MacArthur and the court did not answer it. Footnote 6 The rule is not absolute, and we have recognized rare situations in which subject-matter jurisdiction is subject to collateral attack. See, e.g., United States v. United States Fidelity & Guaranty Co., 309 U. S. 506, 514 (1940) (a collateral attack on subject-matter jurisdiction is permissible “where the issue is the waiver of [sovereign] immunity”); Kalb v. Feuerstein, 308 U. S. 433, 439–440, 444 (1940) (where debtor’s petition for relief was pending in bankruptcy court and federal statute affirmatively divested other courts of jurisdiction to continue foreclosure proceedings, state-court foreclosure judgment was subject to collateral attack). More broadly, the Restatement (Second) of Judgments §12, p. 115 (1980), describes three exceptional circumstances in which a collateral attack on subject-matter jurisdiction is permitted: “(1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or “(2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or “(3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.” This is no occasion to address whether we adopt all of these exceptions. Respondents do not claim any of them, and we do not see how any would apply here. This is not a situation, for example, in which a bankruptcy court decided to conduct a criminal trial, or to resolve a custody dispute, matters “so plainly beyond the court’s jurisdiction” that a different result might be called for. Footnote 7 Respondents point out that it is Travelers, not they, who moved the Bankruptcy Court to enforce the 1986 Orders. But who began the present proceedings has no bearing on the application of res judicata; to the extent respondents argue that the 1986 Orders should not be enforced according to their terms because of a jurisdictional flaw in 1986, this argument is an impermissible collateral attack. And to the extent respondents disclaim any initial intent to mount such an attack, this too is irrelevant, since the decision of the Court of Appeals is what we review and find at odds with finality. Footnote 8 Section 524(h) provides that under some circumstances §524(g) operates retroactively to validate an injunction. We need not decide whether those circumstances are present here. |
556.US.2008_08-660 | Petitioner filed this qui tam action in the name of the United States against respondent city and several of its officials under the False Claims Act (FCA), 31 U. S. C. §3729. The Government declined to exercise its statutory right to intervene, the District Court dismissed the complaint and entered judgment for respondents, and petitioner filed a notice of appeal 54 days later. Federal Rule of Appellate Procedure 4(a)(1)(A) and 28 U. S. C. §2107(a) require, generally, that such a notice be filed within 30 days of the entry of judgment, but Rule 4(a)(1)(B) and §2107(b) extend the period to 60 days when the United States is a “party.” The Second Circuit held that the 30-day limit applied and dismissed petitioner’s appeal as untimely. Held: When the United States has declined to intervene in a privately initiated FCA action, it is not a “party” to the litigation for purposes of either §2107 or Rule 4. Because petitioner’s time for filing a notice of appeal in this case was therefore 30 days, his appeal was untimely. Pp. 3–9. (a) Although the United States is aware of and minimally involved in every FCA action, it is not a “party” thereto unless it has brought the action or exercised its statutory right to intervene in the case. Indeed, intervention is the requisite method for a nonparty to become a party. See Marino v. Ortiz, 484 U. S. 301, 304. To hold otherwise would render the FCA’s intervention provisions superfluous, contradicting the requirement that statutes be construed in a manner that gives effect to all their provisions, see, e.g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 166. The FCA expressly gave the United States discretion to intervene in FCA actions, and the Court cannot disregard that congressional assignment of discretion by designating the United States a “party” even after it has declined to assume the rights and burdens attendant to full party status. Pp. 3–6. (b) Petitioner’s arguments for designating the United States a party in all FCA actions are unconvincing. First, neither the United States’ “real party in interest” status, see Fed. Rule Civ. Proc. 17(a), nor the requirement that an FCA action be “brought in the name of the Government,” 31 U. S. C. §3730(b)(1), converts the United States into a “party” where, as here, it has declined to bring the action or intervene. Second, the Government’s right to receive pleadings and deposition transcripts when it declines to intervene, see §3730(c)(3), does not support, but weighs against, petitioner’s argument: If the United States were a party to every FCA suit, it would already be entitled to such materials under Federal Rule of Civil Procedure 5. Third, the fact that the United States is bound by the judgment in all FCA actions regardless of its participation in the case is not a legitimate basis for disregarding the statute’s intervention scheme. Finally, given that Rule 4(a)(1)(B) hinges its 60-day time limit on the United States’ “party” status, petitioner’s contention that the limit’s underlying purpose would be best served by applying it in every FCA case is unavailing. Pp. 6–9. 540 F. 3d 94, affirmed. Thomas, J., delivered the opinion for a unanimous Court. | The question presented is whether the 30-day time limit to file a notice of appeal in Federal Rule of Appellate Procedure 4(a)(1)(A) or the 60-day time limit in Rule 4(a)(1)(B) applies when the United States declines to formally intervene in a qui tam action brought under the False Claims Act (FCA), 31 U. S. C. §3729. The United States Court of Appeals for the Second Circuit held that the 30-day limit applies. We affirm. I Petitioner Irwin Eisenstein and four New York City (City) employees filed this lawsuit against the City to challenge a fee charged by the City to nonresident workers. They contended, inter alia, that the City deprived the United States of tax revenue that it otherwise would have received if the fee had not been deducted as an expense from the workers’ taxable income. In their view, this violated the FCA, which creates civil liability for “[a]ny person who knowingly presents, or causes to be presented, to an officer or employee of the United States Government … a false or fraudulent claim for payment or approval.” §3729(a)(1). Although the United States is a “real party in interest” in a case brought under the FCA, Fed. Rule Civ. Proc. 17(a), an FCA action does not need to be brought by the United States. The FCA also allows “[a] person [to] bring a civil action for a violation of section 3729 for the person and for the United States Government,” §3730(b)(1). In a case brought by a person rather than the United States, the FCA grants the United States 60 days to review the claim and decide whether it will “elect to intervene and proceed with the action.” §3730(b)(2). After reviewing the complaint in this case, the United States declined to intervene but requested continued service of the pleadings. The United States took no other action with respect to the litigation. The District Court subsequently granted respondents’ motion to dismiss the complaint and entered final judgment in their favor. Petitioner filed a notice of appeal 54 days later. While the appeal was pending, the Court of Appeals sU. S.onte ordered the parties to brief the issue whether the notice of appeal had been timely filed. Federal Rule of Appellate Procedure 4(a)(1)(A)–(B) and 28 U. S. C. §§2107(a)–(b) generally require that a notice of appeal be filed within 30 days of the entry of judgment but extend the period to 60 days when “the United States or an officer or agency thereof is a party,” §2107(b). Petitioner argued that his appeal was timely filed under the 60-day limit because the United States is a “party” to every FCA suit. Respondents countered that the appeal was untimely under the 30-day limit because the United States is not a party to an FCA action absent formal intervention or other meaningful participation. The Court of Appeals agreed with respondents that the 30-day limit applied and dismissed the appeal as untimely. See 540 F. 3d 94 (CA2 2008). We granted certiorari, 555 U. S. ___ (2009), to resolve division in the courts of appeals on the question,[Footnote 1] and now affirm. II A party has 60 days to file a notice of appeal if “the United States or an officer or agency thereof is a party” to the action. See §2107(b) (“In any such [civil] action, suit or proceeding in which the United States or an officer or agency thereof is a party, the time as to all parties shall be sixty days from such entry [of judgment]”); Fed. Rule App. Proc. 4(a)(1)(B) (“When the United States or its officer or agency is a party, the notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered”). Although the United States is aware of and minimally involved in every FCA action, we hold that it is not a “party” to an FCA action for purposes of the appellate filing deadline unless it has exercised its right to intervene in the case.[Footnote 2] A The FCA establishes a scheme that permits either the Attorney General, §3730(a), or a private party, §3730(b), to initiate a civil action alleging fraud on the Government. A private enforcement action under the FCA is called a qui tam action, with the private party referred to as the “relator.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 769 (2000). When a relator initiates such an action, the United States is given 60 days to review the claim and decide whether it will “elect to intervene and proceed with the action,” §§3730(b)(2), 3730(b)(4); see also §3730(c)(3) (permitting the United States to intervene even after the expiration of the 60-day period “upon a showing of good cause”). If the United States intervenes, the relator has “the right to continue as a party to the action,” but the United States acquires the “primary responsibility for prosecuting the action.” §3730(c)(1). If the United States declines to intervene, the relator retains “the right to conduct the action.” §3730(c)(3). The United States is thereafter limited to exercising only specific rights during the proceeding. These rights include requesting service of pleadings and deposition transcripts, §3730(c)(3), seeking to stay discovery that “would interfere with the Government’s investigation or prosecution of a criminal or civil matter arising out of the same facts,” §3730(c)(4), and vetoing a relator’s decision to voluntarily dismiss the action, §3730(b)(1). Petitioner nonetheless asserts that the Government is a “party” to the action even when it has not exercised its right to intervene. We disagree. A “party” to litigation is “[o]ne by or against whom a lawsuit is brought.” Black’s Law Dictionary 1154 (8th ed. 2004). An individual may also become a “party” to a lawsuit by intervening in the action. See id., at 840 (defining “intervention” as “[t]he legal procedure by which … a third party is allowed to become a party to the litigation”). As the Court long ago explained, “ [w]hen the term [to intervene] is used in reference to legal proceedings, it covers the right of one to interpose in, or become a party to, a proceeding already instituted. ” Rocca v. Thompson, 223 U. S. 317, 330 (1912) (emphasis added). The Court has further indicated that intervention is the requisite method for a nonparty to become a party to a lawsuit. See Marino v. Ortiz, 484 U. S. 301, 304 (1988) (per curiam) (holding that “when [a] nonparty has an interest that is affected by the trial court’s judgment … the better practice is for such a nonparty to seek intervention for purposes of appeal” because “only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment” (internal quotation marks omitted; emphasis added)). The United States, therefore, is a “party” to a privately filed FCA action only if it intervenes in accordance with the procedures established by federal law. To hold otherwise would render the intervention provisions of the FCA superfluous, as there would be no reason for the United States to intervene in an action in which it is already a party. Such a holding would contradict well-established principles of statutory interpretation that require statutes to be construed in a manner that gives effect to all of their provisions. See, e.g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 166 (2004); Dole Food Co. v. Patrickson, 538 U. S. 468, 476–477 (2003). Congress expressly gave the United States discretion to intervene in FCA actions—a decision that requires consideration of the costs and benefits of party status. See, e.g., Fed. Rule Civ. Proc. 26(a) (requiring a party to disclose certain information without awaiting any discovery request); Rule 34 (imposing obligations on parties served with requests for production of information); Rule 37 (providing for sanctions for noncompliance with certain party obligations). The Court cannot disregard that congressional assignment of discretion by designating the United States a “party” even after it has declined to assume the rights and burdens attendant to full party status.[Footnote 3] B Petitioner’s arguments that the United States should be designated a party in all FCA actions irrespective of its decision to intervene are unconvincing. First, petitioner points to the United States’ status as a “real party in interest” in an FCA action and its right to a share of any resulting damages. See Fed. Rule Civ. Proc. 17(a); Vermont Agency of Natural Resources, supra, at 772; see also 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1545, pp. 351–353 (2d ed. 1990) (“[W]hen there has been … a partial assignment the assignor and the assignee each retain an interest in the claim and are both real parties in interest”). But the United States’ status as a “real party in interest” in a qui tam action does not automatically convert it into a “party.” The phrase, “real party in interest,” is a term of art utilized in federal law to refer to an actor with a substantive right whose interests may be represented in litigation by another. See, e.g., Fed. Rule Civ. Proc. 17(a); see also Cts. Crim. App. Rule Prac. & Proc. 20(b), 44 M. J. lxxii (1996) (“When an accused has not been named as a party, the accused … shall be designated as the real party in interest”); Black’s Law Dictionary, supra, at 1154 (defining a “real party in interest” as “[a] person entitled under the substantive law to enforce the right sued upon and who generally … benefits from the action’s final outcome”). Congress’ choice of the term “party” in Rule 4(a)(1)(B) and §2107(b), and not the distinctive phrase, “real party in interest,” indicates that the 60-day time limit applies only when the United States is an actual “party” in qui tam actions—and not when the United States holds the status of “real party in interest.” Cf. Barnhart v. Sigmon Coal Co., 534 U. S. 438, 452 (2002) (“[W]hen 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)). Consequently, when, as here, a real party in interest has declined to bring the action or intervene, there is no basis for deeming it a “party” for purposes of Rule 4(a)(1)(B). We likewise reject petitioner’s related claim that the United States’ party status for purposes of Rule 4(a)(1)(B) is controlled by the statutory requirement that an FCA action be “brought in the name of the Government.” 31 U. S. C. §3730(b)(1). A person or entity can be named in the caption of a complaint without necessarily becoming a party to the action. See 5A C. Wright & A. Miller, Federal Practice and Procedure §1321, p. 388 (3d ed. 2004) (“[T]he caption is not determinative as to the identity of the parties to the action”). And here, it would make little sense to interpret the naming requirement of §3730(b)(1) to dispense with the specific procedures for intervention provided elsewhere in the statute. Second, petitioner relies on the Government’s right to receive pleadings and deposition transcripts in cases where it declines to intervene, see §3730(c)(3). But the existence of this right, if anything, weighs against petitioner’s argument. If the United States were a party to every FCA suit, it would already be entitled to such materials under Federal Rule of Civil Procedure 5, thus leaving no need for a separate provision preserving this basic right of litigation for the Government. Third, petitioner relies on the fact that the United States is bound by the judgment in all FCA actions regardless of its participation in the case. But this fact is not determinative; nonparties may be bound by a judgment for a host of different reasons. See Taylor v. Sturgell, 553 U. S. ___, ___ (2008) (slip op., at 9–14) (describing “six established categories” in which a nonparty may be bound by a judgment); see also Restatement (Second) of Judgments §41(1)(d), p. 393 (1980) (noting that a nonparty may be bound by a judgment obtained by a party who, inter alia, is “an official or agency invested by law with authority to represent the person’s interests”). If the United States believes that its rights are jeopardized by an ongoing qui tam action, the FCA provides for intervention—including “for good cause shown” after the expiration of the 60-day review period. The fact that the Government is bound by the judgment is not a legitimate basis for disregarding this statutory scheme. Finally, petitioner contends that the underlying purpose of the 60-day time limit would be best served by applying Rule 4(a)(1)(B) in every FCA case. The purpose of the extended 60-day limit in cases where the United States is a party, he claims, is to provide the Government with sufficient time to review a case and decide whether to appeal. Petitioner contends that, even in cases where the Government did not intervene before the district court issued its decision, the Government may want to intervene for purposes of appeal, and should have the full 60 days to decide. But regardless of the purpose of Rule 4(a)(1)(B) and the convenience that additional time may provide to the Government, this Court cannot ignore the Rule’s text, which hinges the applicability of the 60-day period on the requirement that the United States be a “party” to the action.[Footnote 4] III We hold that when the United States has declined to intervene in a privately initiated FCA action, it is not a “party” to the litigation for purposes of either §2107 or Federal Rule of Appellate Procedure 4. Because petitioner’s time for filing a notice of appeal in this case was therefore 30 days, his appeal was untimely. The judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 Compare Rodriguez v. Our Lady of Lourdes Medical Center, 552 F. 3d 297, 302 (CA3 2008); United States ex rel. Lu v. Ou, 368 F. 3d 773, 775 (CA7 2004); United States ex rel. Russell v. Epic Healthcare Mgmt. Group, 193 F. 3d 304, 308 (CA5 1999); United States ex rel. Haycock v. Hughes Aircraft Co., 98 F. 3d 1100, 1102 (CA9 1996), with United States ex rel. Petrofsky v. Van Cott, Bagley, Cornwall, McCarthy, 588 F. 2d 1327, 1329 (CA10 1978) (per curiam). Footnote 2 This does not mean that the United States must intervene before it can appeal any order of the court in an FCA action. Under the collateral-order doctrine recognized by this Court in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546–547 (1949), the United States may appeal, for example, the dismissal of an FCA action over its objection. See 31 U. S. C. §3730(b)(1); see also §3730(c)(3); Marino v. Ortiz, 484 U. S. 301, 304 (1988) (per curiam) (noting that “denials of [motions to intervene] are, of course, appealable”). In such a case, the Government is a party for purposes of appealing the specific order at issue even though it is not a party for purposes of the final judgment and Federal Rule of Appellate Procedure 4(a)(1)(B). Footnote 3 This Court’s decision in Devlin v. Scardelletti, 536 U. S. 1 (2002), is not to the contrary. There, the Court held that in a class-action suit, a class member who was not a named party in the litigation could appeal the approval of a settlement without formally intervening. See id., at 6–14. But the Court’s ruling was premised on the class-action nature of the suit, see id., at 10–11, and specifically noted that party status depends on “the applicability of various procedural rules that may differ based on context,” id., at 10. For the reasons explained above, we conclude that in the specific context of the FCA, intervention is necessary for the United States to obtain status as a “party” for purposes of Rule 4(a)(1)(B). Footnote 4 Petitioner contends that the uncertainty regarding Rule 4(a)(1)(B) has created a “tra[p] for the unwary,” and that our decision will unfairly punish those who relied on the holdings of courts adopting the 60-day limit in cases in which the United States was not a party. See Brief for Petitioner 25–27. As an initial matter, it is unclear how many pending cases are implicated by petitioner’s concern as such cases would have to involve parties who waited more than 30 days to appeal from the judgment in an FCA case in which the United States declined to intervene. But to the extent that there are such cases, the Court must nonetheless decide the jurisdictional question before it irrespective of the possibility of harsh consequences. See Torres v. Oakland Scavenger Co., 487 U. S. 312, 318 (1988) (“We recognize that construing Rule3(c) [of the Federal Rules of Appellate Procedure] as a jurisdictional prerequisite leads to a harsh result in this case, but we are convinced that the harshness of our construction is ‘imposed by the legislature and not the judicial process’ ” (quoting Schiavone v. Fortune, 477 U. S. 21, 31 (1986))). |
556.US.2008_08-267 | Military authorities charged respondent, a native Nigerian serving in the U. S. Navy, with violating of the Uniform Code of Military Justice (UCMJ). With counsel’s assistance, respondent agreed to plead guilty to reduced charges. The special court-martial accepted the plea and convicted and sentenced respondent; the Navy-Marine Corps Court of Criminal Appeals (NMCCA) affirmed; and he was discharged from the Navy in 2000. In 2006, the Department of Homeland Security commenced removal proceedings against respondent based on the conviction. To avoid deportation, he filed a petition for a writ of coram nobis under the authority of the All Writs Act, asking the NMCCA to vacate the conviction it had earlier affirmed on the ground that his guilty plea resulted from ineffective assistance of counsel, who had assured him his plea bargain carried no risk of deportation. Though rejecting the Government’s contention that it lacked jurisdiction to grant the writ, the NMCCA denied relief for lack of merit. Agreeing that the NMCCA has jurisdiction, the Court of Appeals for the Armed Forces (CAAF) remanded for further proceedings on the merits. Held: 1. This Court has subject-matter jurisdiction under 28 U. S. C. §1259(4), which permits it to review CAAF decisions in cases “in which [that court] granted relief.” Respondent’s parsimonious view that the CAAF did not “ ‘gran[t] relief’ ” in this case, but simply remanded to the NMCCA, is rejected. Though §1259 does not define “relief,” the word’s familiar meaning encompasses any redress or benefit provided by a court. The CAAF’s judgment reversing the NMCCA satisfies that definition. Pp. 4–5. 2. Article I military courts have jurisdiction to entertain coram nobis petitions to consider allegations that an earlier judgment of conviction was flawed in a fundamental respect. Pp. 5–13. (a) Military courts’ power to issue extraordinary writs under the All Writs Act, see Noyd v. Bond, 395 U. S. 683, 695, n. 7, does not determine the anterior question whether those courts have jurisdiction to entertain a coram nobis petition. As recognized by the All Writs Act—which permits “courts established by Act of Congress” to issue “all writs necessary or appropriate in aid of their respective jurisdictions,” 28 U. S. C. §1651(a)—a court’s power to issue any form of relief, extraordinary or otherwise, is contingent on its subject-matter jurisdiction over the case or controversy. Such jurisdiction is determined by Congress. Bowles v. Russell, 551 U. S. 205, 212. Thus, to issue respondent a writ of coram nobis on remand, the NMCCA must have had statutory subject-matter jurisdiction over respondent’s original judgment of conviction. Pp. 5–8. (b) Pursuant to the UCMJ, the NMCCA and the CAAF have subject-matter jurisdiction over this case. The NMCCA has jurisdiction to entertain respondent’s coram nobis request under UCMJ Article 66, which provides: “For the purpose of reviewing court-martial cases, the [NMCCA] may sit … .” 10 U. S. C. §866(a). Because respondent’s coram nobis request is simply a further “step in [his] criminal” appeal, United States v. Morgan, 346 U. S. 502, 505 n. 4, the NMCCA’s jurisdiction to issue the writ derives from the earlier jurisdiction it exercised under §866(a) to hear and determine the conviction’s validity on direct review. Respondent’s coram nobis request is not barred by the requirement that the NMCCA “act only with respect to the findings and sentence as approved by the convening authority.” §866(c). An alleged error in the original judgment predicated on ineffective-assistance-of-counsel challenges the conviction’s validity, see Knowles v. Mirzayance, ante, at ___, so respondent’s Sixth Amendment claim is “with respect to” the special-court-martial’s “findings” of guilty. Because the NMCCA has jurisdiction, the CAAF has jurisdiction to review the NMCCA’s denial of respondent’s petition challenging the validity of his original conviction. That the CAAF’s authority is confined “to matters of law” connected to “the findings and sentence as approved by the convening authority and as affirmed or set aside by the Court of Criminal Appeals,” §867(c), poses no obstacle to respondent’s requested review. His Sixth Amendment claim presents a “matte[r] of law” “with respect to the [guilty] findings … as approved by the [special court-martial] and as affirmed … by” the NMCCA. Pp. 8–10. (c) The Government’s argument that UCMJ Article 76 affirmatively prohibits the type of collateral review respondent seeks errs in “conflating the jurisdictional question with the merits” of respondent’s petition, Arthur Andersen LLP v. Carlisle, ante, at ___. Article 76 provides for the finality of judgments in military cases. Just as the finality principle did not jurisdictionally bar the court in Morgan, supra, from examining its earlier judgment, neither does it bar the NMCCA from doing so here. The Government’s contention that coram nobis permits a court to correct its own errors, not those of an inferior court, is disposed of on similar grounds. Pp. 10–12. 66 M. J. 114, affirmed and remanded. Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed an opinion concurring in part and dissenting in part, in which Scalia, Thomas, and Alito, JJ., joined. | The case before us presents a single issue: whether an Article I military appellate court has jurisdiction to entertain a petition for a writ of error coram nobis to challenge its earlier, and final, decision affirming a criminal conviction. The military court which had affirmed the conviction and where the writ of coram nobis was sought is the Navy-Marine Corps Court of Criminal Appeals (NMCCA). Its ruling that it had jurisdiction to grant the writ, but then denying its issuance for lack of merit, was appealed to the United States Court of Appeals for the Armed Forces (CAAF). After the CAAF agreed that the NMCCA has jurisdiction to issue the writ, it remanded for further proceedings on the merits. The Government of the United States, contending that a writ of coram nobis directed to a final judgment of conviction is beyond the jurisdiction of the military courts, now brings the case to us. I Respondent Jacob Denedo came to the United States in 1984 from his native Nigeria. He enlisted in the Navy in 1989 and became a lawful permanent resident in 1990. In 1998, military authorities charged him with conspiracy, larceny, and forgery—in contravention of Articles 81, 121, and 123 of the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §§881, 921, 923—all for his role in a scheme to defraud a community college. With the assistance of both military and civilian counsel, respondent made a plea bargain to plead guilty to reduced charges. In exchange for his plea the convening authority referred respondent’s case to a special court-martial, §819, which, at that time, could not impose a sentence greater than six months’ confinement. The special court-martial, consisting of a single military judge, accepted respondent’s guilty plea after determining that it was both knowing and voluntary. The court convicted respondent of conspiracy and larceny. It sentenced him to three months’ confinement, a bad-conduct discharge, and a reduction to the lowest enlisted pay grade. Respondent appealed on the ground that his sentence was unduly severe. The NMCCA affirmed. App. to Pet. for Cert. 64a–67a. Respondent did not seek further review in the CAAF, and he was discharged from the Navy on May 30, 2000. In 2006, the Department of Homeland Security commenced removal proceedings against respondent based upon his special court-martial conviction. To avoid deportation, respondent decided to challenge his conviction once more, though at this point it had been final for eight years. He maintained, in a petition for a writ of coram nobis filed with the NMCCA, that the conviction it had earlier affirmed must be deemed void because his guilty plea was the result of ineffective assistance of counsel. Respondent alleged that he informed his civilian attorney during plea negotiations that “ ‘his primary concern and objective’ ” was to avoid deportation and that he was willing to “ ‘risk … going to jail’ ” to avert separation from his family. 66 M. J. 114, 118 (C. A. Armed Forces 2008). On respondent’s account, his attorney—an alcoholic who was not sober during the course of the special court-martial proceeding—erroneously assured him that “ ‘if he agreed to plead guilty at a special-court-martial he would avoid any risk of deportation.’ ” Ibid. Petitioner argued that the NMCCA could set aside its earlier decision by issuing a writ of coram nobis under the authority of the All Writs Act, 28 U. S. C. §1651(a). The Government filed a motion to dismiss for want of jurisdiction. It contended that the NMCCA had no authority to conduct postconviction proceedings. In a terse, four-sentence order, the NMCCA summarily denied both the Government’s motion and respondent’s petition for a writ of coram nobis. App. to Pet. for Cert. 63a. Respondent appealed and the CAAF, dividing 3 to 2, affirmed in part and reversed in part. The CAAF agreed with the NMCCA that standing military courts have jurisdiction to conduct “collateral review under the All Writs Act.” 66 M. J., at 119. This is so, the CAAF explained, because “when a petitioner seeks collateral relief to modify an action that was taken within the subject matter jurisdiction of the military justice system … a writ that is necessary or appropriate may be issued under the All Writs Act ‘in aid of’ the court’s existing jurisdiction.” Id., at 120 (citing 28 U. S. C. §1651(a)). Satisfied that it had jurisdiction, the CAAF next turned to whether the writ of coram nobis should issue. It held that a nondefaulted, ineffective-assistance claim that was yet to receive a full and fair review “within the military justice system” could justify issuance of the writ. 66 M. J., at 125. Finding that respondent’s ineffective-assistance claim satisfied “the threshold criteria for coram nobis review,” the CAAF remanded to the NMCCA so it could ascertain in the first instance “whether the merits of [respondent’s] petition can be resolved on the basis of the written submissions, or whether a factfinding hearing is required.” Id., at 126, 130. Judge Stucky filed a dissenting opinion. Assuming that the majority had correctly determined its jurisdiction to grant the requested relief, he concluded that respondent’s ineffective-assistance claim lacked merit. Id., at 131. Judge Ryan also dissented. Reasoning that the majority had misapplied this Court’s holding in Clinton v. Goldsmith, 526 U. S. 529 (1999), she concluded that the UCMJ does not confer jurisdiction upon military tribunals to conduct “post-finality collateral review.” 66 M. J., at 136. We granted certiorari, 555 U. S. ___ (2008), and now affirm. II Before we address another court’s subject-matter jurisdiction we must first determine our own. See Ashcroft v. Iqbal, ante, at 6 (“Subject-matter jurisdiction … should be considered when fairly in doubt”). The Government, upon which the burden to demonstrate subject-matter jurisdiction lies, DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 342 (2006), claims that our power to hear this appeal rests on 28 U. S. C. §1259(4). That jurisdictional provision permits us to review CAAF decisions in “ ‘cases … in which the Court of Appeals for the Armed Forces … granted relief.’ ” Respondent maintains that we lack jurisdiction because the CAAF did not “ ‘grant relief ’ ”; “all it did was remand” to the NMCCA. Brief for Respondent 6–7 (brackets omitted). Respondent’s parsimonious construction of the word “relief” need not detain us long. Though §1259 does not define the term, its familiar meaning encompasses any “redress or benefit” provided by a court. Black’s Law Dictionary 1317 (8th ed. 2004). The CAAF’s judgment reversing the NMCCA satisfies that definition. The NMCCA denied respondent’s petition for a writ of coram nobis, while the CAAF’s decision reversed and remanded so that the NMCCA could determine anew if the writ should issue. That decision conferred a palpable benefit on respondent; for a chance of success on the merits, however slight, is superior to no possibility at all. To be sure, respondent would have preferred the CAAF to issue a writ of coram nobis or to direct the NMCCA to do so rather than remanding for the NMCCA to conduct further proceedings. We have jurisdiction, however, to review any decision granting “relief,” not just those providing “ultimate relief” or “complete relief.” Indeed, appellate courts reverse and remand lower court judgments—rather than issuing complete relief—with regularity. See, e.g., Arthur Andersen LLP v. Carlisle, ante, at ___; FCC v. Fox Television Stations, Inc., ante, at ___. There is no merit to the view that a decision granting partial relief should be construed as granting no relief at all. Because the CAAF “granted relief” to respondent, the text of §1259 is satisfied here. We have jurisdiction to determine whether the CAAF was correct in ruling that the NMCCA had authority to entertain the petition for a writ of coram nobis. III A The writ of coram nobis is an ancient common-law remedy designed “to correct errors of fact.” United States v. Morgan, 346 U. S. 502, 507 (1954). In American jurisprudence the precise contours of coram nobis have not been “well defined,” Bronson v. Schulten, 104 U. S. 410, 416 (1882), but the writ traces its origins to the King’s Bench and the Court of Common Pleas. United States v. Plumer, 27 F. Cas. 561, 573 (No. 16,056) (CC Mass. 1859) (opinion for the court by Clifford, Circuit Justice); see also Morgan, supra, at 507, n. 9 (citing 2 W. Tidd, Practice of Courts of King’s Bench and Common Pleas *1136–*1137). In English practice the office of the writ was to foster respect for judicial rulings by enabling the same court “where the action was commenced and where the judgment was rendered” to avoid the rigid strictures of judgment finality by correcting technical errors “such as happened through the fault of the clerk in the record of the proceedings prior to the judgment.” Plumer, supra, at 572–573. Any rationale confining the writ to technical errors, however, has been superseded; for in its modern iteration coram nobis is broader than its common-law predecessor. This is confirmed by our opinion in Morgan. In that case we found that a writ of coram nobis can issue to redress a fundamental error, there a deprivation of counsel in violation of the Sixth Amendment, as opposed to mere technical errors. 346 U. S., at 513. The potential universe of cases that range from technical errors to fundamental ones perhaps illustrates, in the case of coram nobis, the “tendency of a principle to expand itself to the limit of its logic.” B. Cardozo, The Nature of the Judicial Process 51 (1921). To confine the use of coram nobis so that finality is not at risk in a great number of cases, we were careful in Morgan to limit the availability of the writ to “extraordinary” cases presenting circumstances compelling its use “to achieve justice.” 346 U. S., at 511. Another limit, of course, is that an extraordinary remedy may not issue when alternative remedies, such as habeas corpus, are available. See id., at 510–511. In federal courts the authority to grant a writ of coram nobis is conferred by the All Writs Act, which permits “courts established by Act of Congress” to issue “all writs necessary or appropriate in aid of their respective jurisdictions.” 28 U. S. C. §1651(a). Though military courts, like Article III tribunals, are empowered to issue extraordinary writs under the All Writs Act, Noyd v. Bond, 395 U. S. 683, 695, n. 7 (1969), that authority does not determine the anterior question whether military courts have jurisdiction to entertain a petition for coram nobis. As the text of the All Writs Act recognizes, a court’s power to issue any form of relief—extraordinary or otherwise—is contingent on that court’s subject-matter jurisdiction over the case or controversy. Assuming no constraints or limitations grounded in the Constitution are implicated, it is for Congress to determine the subject-matter jurisdiction of federal courts. Bowles v. Russell, 551 U. S. 205, 212 (2007) (“Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider”). This rule applies with added force to Article I tribunals, such as the NMCCA and CAAF, which owe their existence to Congress’ authority to enact legislation pursuant to Art. I, §8 of the Constitution. Goldsmith, 526 U. S., at 533–534. Our decision in Goldsmith demonstrates these teachings. There an Air Force officer, James Goldsmith, was convicted of various crimes by general court-martial and sentenced to six years’ confinement. Id., at 531. Following his conviction, Congress enacted a statute authorizing the President to drop convicted officers from the rolls of the Armed Forces. When the Air Force notified Goldsmith that he would be dropped from the rolls, he lodged a petition before the Air Force Court of Criminal Appeals (AFCCA) claiming that the proposed action contravened the Ex Post Facto Clause of the Constitution. Id., at 532–533. Goldsmith sought extraordinary relief as authorized by the All Writs Act to enjoin the President from removing him from the rolls. The AFCCA denied relief, but the CAAF granted it. Concluding that the UCMJ does not authorize military courts to review executive action—including a decision to drop an officer from the rolls—we held that the AFCCA and the CAAF lacked jurisdiction over Goldsmith’s case. Id., at 535. This was so, we unequivocally found, irrespective of the military court’s authority to issue extraordinary relief pursuant to the All Writs Act and its previous jurisdiction over Goldsmith’s criminal proceeding. The power to issue relief depends upon, rather than enlarges, a court’s jurisdiction. Id., at 536–537. That principle does not control the question before us. Because coram nobis is but an extraordinary tool to correct a legal or factual error, an application for the writ is properly viewed as a belated extension of the original proceeding during which the error allegedly transpired. See Morgan, supra, at 505, n. 4 (coram nobis is “a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding”); see also United States v. Beggerly, 524 U. S. 38, 46 (1998) (citing Pacific R. Co. of Mo. v. Missouri Pacific R. Co., 111 U. S. 505, 522 (1884) (noting that an “independent action”—which, like coram nobis, is an equitable means to obtain relief from a judgment—“ ‘may be regarded as ancillary to the prior suit, so that the relief asked may be granted by the court which made the decree in that suit … . The bill, though an original bill in the chancery sense of the word, is a continuation of the former suit, on the question of the jurisdiction of the [court]’ ”). It follows that to issue respondent a writ of coram nobis on remand, the NMCCA must have had statutory subject-matter jurisdiction over respondent’s original judgment of conviction. B In the critical part of its opinion discussing the jurisdiction and authority of the NMCCA to issue a writ of coram nobis in an appropriate case, the CAAF describes respondent’s request for review as one “under the All Writs Act.” 66 M. J., at 119. This is correct, of course, if it simply confirms that the Act authorizes federal courts to issue writs “in aid of” their jurisdiction; but it does not advance the inquiry into whether jurisdiction exists. And there are limits to the use of coram nobis to alter or interpret earlier judgments. As Goldsmith makes plain, the All Writs Act and the extraordinary relief the statute authorizes are not a source of subject-matter jurisdiction. 526 U. S., at 534–535. Statutes which address the power of a court to use certain writs or remedies or to decree certain forms of relief, for instance to award damages in some specified measure, in some circumstances might be construed also as a grant of jurisdiction to hear and determine the underlying cause of action. Cf. Marbury v. Madison, 1 Cranch 137 (1803). We have long held, however, that the All Writs Act should not be interpreted in this way. Goldsmith, supra, at 536; Plumer, 27 F. Cas., at 574 (jurisdiction cannot be acquired “by means of the writ to be issued”). The authority to issue a writ under the All Writs Act is not a font of jurisdiction. See Syngenta Crop Protection, Inc. v. Henson, 537 U. S. 28, 31 (2002). Quite apart from the All Writs Act, we conclude that the NMCCA has jurisdiction to entertain respondent’s request for a writ of coram nobis. Article 66 of the UCMJ provides: “For the purpose of reviewing court-martial cases, the [Court of Criminal Appeals] may sit … .” 10 U. S. C. §866(a). Because respondent’s request for coram nobis is simply a further “step in [his] criminal” appeal, Morgan, 346 U. S., at 505, n. 4, the NMCCA’s jurisdiction to issue the writ derives from the earlier jurisdiction it exercised to hear and determine the validity of the conviction on direct review. As even the Government concedes, the textual authority under the UCMJ to “ ‘revie[w] court-martial cases’ ” provided the NMCCA with jurisdiction to hear an appeal of respondent’s judgment of conviction. See Brief for United States 17–18. That jurisdiction is sufficient to permit the NMCCA to entertain respondent’s petition for coram nobis. See also Courts of Criminal Appeals Rule of Practice and Procedure 2(b) (recognizing NMCCA discretionary authority to entertain petitions for extraordinary writs). It is true that when exercising its jurisdiction under §866(a), the NMCCA “may act only with respect to the findings and sentence as approved by the convening authority.” §866(c). That limitation does not bar respondent’s request for a writ of coram nobis. An alleged error in the original judgment predicated on ineffective-assistance-of-counsel challenges the validity of a conviction, see Knowles v. Mirzayance, ante, at 3, so respondent’s Sixth Amendment claim is “with respect to” the special-court-martial’s “findings of guilty,” 10 U. S. C. §866(c). Pursuant to the UCMJ, the NMCCA has subject-matter jurisdiction to hear respondent’s request for extraordinary relief. Because the NMCCA had jurisdiction over respondent’s petition for coram nobis, the CAAF had jurisdiction to entertain respondent’s appeal from the NMCCA’s judgment. When exercising its jurisdiction, the CAAF’s authority is confined “to matters of law” connected to “the findings and sentence as approved by the convening authority and as affirmed or set aside … by the Court of Criminal Appeals,” §867(c), but these limitations pose no obstacle to respondent’s requested review of the NMCCA’s decision. Respondent’s Sixth Amendment claim presents a “matte[r] of law” “with respect to the [guilty] findings … as approved by the [special court-martial] and as affirmed … by the Court of Criminal Appeals.” Ibid. The CAAF had subject-matter jurisdiction to review the NMCCA’s denial of respondent’s petition challenging the validity of his original conviction. C The Government counters that Article 76 of the UCMJ, 10 U. S. C. §876, “affirmatively prohibit[s] the type of collateral review sought by respondent.” Brief for United States 18. That is incorrect. The Government’s argument commits the error of “conflating the jurisdictional question with the merits” of respondent’s petition. Arthur Andersen LLP, ante, at 3. Article 76 states in relevant part: “The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States … .” 10 U. S. C. §876. Article 76 codifies the common-law rule that respects the finality of judgments. Schlesinger v. Councilman, 420 U. S. 738, 749 (1975). Just as the rules of finality did not jurisdictionally bar the court in Morgan from examining its earlier judgment, neither does the principle of finality bar the NMCCA from doing so here. The Government may ultimately be correct that the facts of respondent’s case are insufficient to set aside the final judgment that Article 76 makes binding. No doubt, judgment finality is not to be lightly cast aside; and courts must be cautious so that the extraordinary remedy of coram nobis issues only in extreme cases. But the long-recognized authority of a court to protect the integrity of its earlier judgments impels the conclusion that the finality rule is not so inflexible that it trumps each and every competing consideration. Our holding allows military courts to protect the integrity of their dispositions and processes by granting relief from final judgments in extraordinary cases when it is shown that there were fundamental flaws in the proceedings leading to their issuance. The Government remains free to argue that respondent’s is a merely ordinary case that is not entitled to extraordinary relief. But respondent’s entitlement to relief is a merits question outside the scope of the jurisdictional question presented. The Government’s contention that coram nobis permits a court “to correct its own errors, not … those of an inferior court,” Brief for United States 36, can be disposed of on similar grounds. Just as respondent’s request for coram nobis does not confer subject-matter jurisdiction, the Government’s argument that the relief should not issue “in light of the writ’s traditional scope” does not undermine it, ibid. (emphasis deleted). In sum, the Government’s argument speaks to the scope of the writ, not the NMCCA’s jurisdiction to issue it. The CAAF rejected the former argument. Only the latter one is before us. We hold that Article I military courts have jurisdiction to entertain coram nobis petitions to consider allegations that an earlier judgment of conviction was flawed in a fundamental respect. That conclusion is consistent with our holding that Article III courts have a like authority. Morgan, 346 U. S., at 508. The result we reach today is of central importance for military courts. The military justice system relies upon courts that must take all appropriate means, consistent with their statutory jurisdiction, to ensure the neutrality and integrity of their judgments. Under the premises and statutes we have relied upon here, the jurisdiction and the responsibility of military courts to reexamine judgments in rare cases where a fundamental flaw is alleged and other judicial processes for correction are unavailable are consistent with the powers Congress has granted those courts under Article I and with the system Congress has designed. * * * We do not prejudge the merits of respondent’s petition. To be sure, the writ of error coram nobis is an extraordinary writ; and “an extraordinary remedy … should not be granted in the ordinary case.” Nken v. Holder, ante, at 1 (Kennedy, J., concurring). The relative strength of respondent’s ineffective-assistance claim, his delay in lodging his petition, when he learned or should have learned of his counsel’s alleged deficiencies, and the effect of the rule of judgment finality expressed in Article 76 are all factors the NMCCA can explore on remand. We hold only that the military appellate courts had jurisdiction to hear respondent’s request for a writ of coram nobis. The judgment of the CAAF is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
555.US.2008_07-1059 | Nuclear utilities generally procure their fuel, “low enriched uranium” (LEU), through one of two types of contracts. Under an “enriched uranium product” (EUP) contract, the utility simply pays the enricher cash for LEU of a desired quantity and “assay,” i.e., its percentage of the isotope necessary for a nuclear reaction. The amount of energy required to enrich a quantity of “feed uranium” to a given assay is described in terms of an industry standard called a “separative work unit” (SWU). Under a “SWU contract,” the utility provides a quantity of feed uranium and pays the enricher for the SWUs to produce the required LEU quantity and assay. SWU contracts do not require that the required number of SWUs actually be applied to the utility’s uranium. Because feed uranium is fungible and essentially trades like a commodity, and because profitable operation of an enrichment plant requires the constant processing of feed uranium from the enricher’s undifferentiated stock, the LEU provided to a utility under a SWU contract cannot be traced to the particular unenriched uranium the utility provided. Petitioners (collectively, USEC), who run the only uranium enrichment factory in the United States, petitioned the Commerce Department (Department) for relief under the Tariff Act of 1930, which calls for “antidumping” duties on “foreign merchandise” sold in this country at “less than its fair value,” 19 U. S. C. §1673, but does not touch international sales of services. USEC alleged that LEU imported from European countries under both EUP and SWU contracts was being sold in the United States at less than fair value and was materially harming domestic industry. In its final determination, the Department concluded that LEU from France, including LEU acquired under SWU contracts, was being sold here at less than fair value. Among other things, the Department rejected the claim that such transactions were sales of enrichment services, as provided in SWU contracts. The Court of International Trade (CIT) ultimately reversed, noting the “legal fiction” expressed in SWU contracts that the very feed uranium delivered by a utility to an enricher is enriched and then returned as LEU to the utility. Finding that the record did not support a determination that the enricher has any ownership rights, the CIT reasoned that the Department’s decision was unsupported by substantial evidence and not in accordance with law. The Federal Circuit affirmed, approaching the issues much as the CIT had. Held: The Department’s take on the transactions at issue as sales of goods rather than services reflects a permissible interpretation and application of §1673. Because §1677(1) gives this determination to the Department in the first instance, the Department’s interpretation governs in the absence of unambiguous statutory language to the contrary or an unreasonable resolution of ambiguous language. See, e.g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837. Two threshold propositions must be accepted. First, the Department reasonably concluded that §1673 is not limited by its terms to cash-only sales. If that were the case, any sale of a manufactured product could be exempted from the section’s operation by a contractual term stating part of the purchase price in terms of a commodity. Second, since public law is not constrained by private fiction, see, e.g., Tcherepnin v. Knight, 389 U. S. 332, 336, the Department is not bound by the legal fiction created by SWU contracts that the very feed uranium delivered by a utility to an enricher is enriched and then returned as LEU to the utility. Thus, the test of the Department’s position turns first on whether the statute clearly excludes a transaction involving mixed payment for LEU that may and almost certainly will be produced from uranium feed distinct from what the utility provides. Although it is undisputed that §1673 applies to the sale of goods, not services, the section simply does not speak with the precision necessary to say definitively whether it applies to the LEU and the agreement giving the utility a right to get it. This is the very situation in which the Court looks to an authoritative agency for a decision about a statute’s scope. Once the choice is made, the Court asks only whether the Department’s application of the statute was reasonable. Where, as here, cash plus an untracked fungible commodity are exchanged for a substantially transformed version of the same commodity, the Department may reasonably treat the transaction as the sale of a good under §1673. Cf. Powder Co. v. Burkhardt, 97 U. S. 110, 116. The Department’s position is reinforced by practical reasons aimed at preserving antidumping duties’ effectiveness. It is undisputed that such duties apply to LEU sold to a domestic utility by foreign enrichers under an EUP contract calling for a single cash price that is less than fair value. Such a transaction obviously opens the domestic enrichment industry to material injury, the very threat that §1673 was meant to counter. But the same injury will occur if a SWU contract is untouchable. Under a SWU contract, the domestic utility pays cash to a third party for unenriched uranium and provides this along with additional cash in exchange for LEU; any EUP contract could be structured as a SWU contract simply by splitting the transaction in two, one contract to buy unenriched uranium and another to enrich it. And the restructuring would not stop with uranium; contracts for many types of goods would be replaced by separate contracts for the goods and for processing services, and antidumping duties would primarily chastise the uncreative. The Department’s attempt to foreclose this absurd result by treating such transactions as sales of goods is eminently reasonable. Pp. 9–16. 506 F. 3d 1051, reversed and remanded. Souter, J., delivered the opinion for a unanimous Court. Together with No. 07–1078, USEC Inc. et al. v. Eurodif S. A. et al., also on certiorari to the same court. | Section 731 of the Tariff Act of 1930 calls for “antidumping” duties on “foreign merchandise” sold in the United States at “less than its fair value,” 19 U. S. C. §1673, but does not touch international sales of services. These cases test the application of this antidumping provision to imports of low enriched uranium (LEU), a highly processed derivative of natural uranium used as nuclear fuel, when domestic utilities contract to obtain LEU for cash plus unenriched uranium delivered to a foreign enricher. Although the parties’ contracts call these transactions sales of uranium enrichment services, the Commerce Department treats them as sales of “foreign merchandise” subject to the antidumping provision. The issue is whether the Commerce Department’s way of seeing the transactions as sales of goods rather than services reflects a permissible interpretation and application of §1673. We hold that it does. I There are five steps in transforming elemental uranium into fuel rods for nuclear powerplants. After uranium ore is mined, it is milled into uranium concentrate called “yellowcake,” which is next converted into uranium hexafluoride gas or “feed uranium.” The fissionable isotope in unenriched feed uranium is then concentrated, producing LEU in pellet form, which is in turn made into uranium fuel rods. These cases are about the fourth step: enriching uranium feedstock into LEU. The uranium isotope needed for a nuclear reaction, U-235, amounts only to .711 percent by weight of natural uranium. Uranium whose concentration or “assay,” of U-235 has been enhanced to 20 percent or more is weapons-grade, highly enriched uranium (HEU), whereas LEU has a U-235 assay of 3 to 5 percent, making it useful as nuclear fuel. One way to produce LEU, and the method at issue in these cases, is gaseous diffusion,[Footnote 1] whereby gaseous feed uranium is pushed through a long series of filters, separating the gas into two streams. The stream passing through the filters (the “product stream”) gains a higher concentration of the lighter U-235 isotope than the stream that is filtered out (the “tails”). Because the concentration reached at each individual filter is minor, the gas must be forced through hundreds or even thousands of filters, at great expenditure of electricity, before the product stream reaches the desired assay. The amount of energy required to enrich a quantity of feed uranium to a given assay is measured in terms of an industry standard called a “separative work unit” or SWU (pronounced “swoo”). In practice, however, a given degree of enrichment will depend on adjusting the quantities of two separate variables, feed uranium and electricity, in inverse proportions. Thus, if the electric rate is stable but the value of feed uranium falls, an enricher may produce LEU by “overfeeding,” subjecting a greater quantity of feed uranium to fewer SWUs, and when the value of feed uranium goes up and electricity does not, “underfeeding” can use more SWUs to squeeze extra U-235 from the tails. Nuclear utilities generally get LEU in one of two ways. Under an “enriched uranium product” or “EUP” contract, a utility simply buys a desired quantity and assay of LEU for cash. Under a “SWU contract,” the utility provides a quantity of feed uranium and pays the enricher for the SWUs to produce the quantity and assay of LEU called for.[Footnote 2] Despite their name, SWU contracts do not require that the contractual number of SWUs actually be applied to the quantity of uranium provided, Notice of Final Determination of Sales at Less Than Fair Value: Low Enriched Uranium From France, 66 Fed. Reg. 65877, 65884 (2001) (hereinafter LEU from France); rather, the enricher remains free to overfeed or underfeed so long as it delivers the specified LEU. Moreover, because feed uranium is fungible, and “for all intents and purposes, trades like a commodity,” ibid., and because profitable operation of an enrichment plant requires the constant processing of feed uranium from the enricher’s undifferentiated stock, the LEU provided to a utility under a SWU contract cannot be traced to the particular unenriched uranium the utility provided. Petitioners, USEC Inc. and its subsidiary, United States Enrichment Corporation, (USEC collectively) run the only uranium enrichment factory in the United States,[Footnote 3] which was built by the United States Government in the 1950s and run by various federal agencies until it was leased to USEC in 1998. In December 2000, USEC petitioned the Commerce Department for relief under §731 of the Tariff Act, alleging that LEU imported from France and other European countries under both EUP and SWU contracts was being sold in the United States at less than fair value and was materially harming domestic industry. Notice of Initiation of Antidumping Duty Investigations: Low Enriched Uranium From France, Germany, the Netherlands, and the United Kingdom, 66 Fed. Reg. 1080 (2001). Section 731 of the Tariff Act of 1930, as added by §101 of the Trade Agreements Act of 1979, 93 Stat. 144, as amended, 19 U. S. C. §1673, provides a two-step process to address harm to domestic manufacturing from foreign goods sold at an unfair price: “If— “(1) the administering authority [the Secretary of Commerce] determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and “(2) the [United States International Trade] Commission determines that— “(A) an industry in the United States— “(i) is materially injured, or “(ii) is threatened with material injury, or “(B) the establishment of an industry in the United States is materially retarded, by reason of imports of that merchandise or by reason of sales (or the likelihood of sales) of that merchandise for importation, “then there shall be imposed upon such merchandise an antidumping duty, in addition to any other duty imposed, in an amount equal to the amount by which the normal value exceeds the export price (or the constructed export price) for the merchandise. . . .” See also §1677(1) (designating the Secretary of Commerce as the “ ‘administering authority’ ”); §1677(2) (explaining that the term “ ‘Commission’ ” refers to the United States International Trade Commission). The Tariff Act’s antidumping provision derives from similar terms in the Anti-Dumping Act, 1921, 42 Stat. 11, which were adopted to “protec[t] our industries and labor against a now common species of commercial warfare of dumping goods on our markets at less than cost or home value if necessary until our industries are destroyed . . . .” H. R. Rep. No. 1, 67th Cong., 1st Sess., p. 23 (1921). Following the USEC charges, the Commerce Department opened an investigation into the practices of respondents, a French enricher, Eurodif, S. A., its owner, Compagnie Général des Matières Nucléaires (now AREVA NC), its U. S. subsidiary, COGEMA (now AREVA NC, Inc.), and United States utilities that consume LEU (Eurodif collectively). Eurodif conceded that EUP contracts were for the sale of LEU, but argued that SWU contracts involved only the sale of uranium enrichment services, and were therefore outside the scope of §1673. LEU From France, 66 Fed. Reg. 65882–65883. In its final determination, the Commerce Department concluded that LEU from France, including LEU acquired under SWU contracts, was being sold, or likely to be sold, in the United States at less than fair value.[Footnote 4] Id., at 65878. In deciding that SWU contracts are for a sale of LEU, not enrichment services, the Department stressed several features of the transactions. First, because the enrichment process accounts for approximately 60 percent of the value of LEU and works a “substantial transformation” on uranium feedstock, id., at 65881, enrichment creates “the essential character” of LEU, id., at 65884. Second, “enrichers not only have complete control over the enrichment process, but in fact control the level of usage of the natural uranium provided.” Ibid. Third, the utilities themselves take no part in the manufacture of LEU and are the sole purchasers of the product. Ibid. The Commerce Department also rejected the argument that LEU transferred pursuant to SWU contracts should not be considered “sold” in light of a “tolling” regulation then (but no longer) in effect. Ibid. The regulation stated that a “toller,” a subcontractor who sells processing services in, or material for incorporation into, subject merchandise, would not be considered a manufacturer or producer “where the toller or subcontractor does not acquire ownership, and does not control the relevant sale, of the subject merchandise.” 19 CFR §351.401(h) (2000) (withdrawn in Import Administration, Withdrawal of Regulations Governing the Treatment of Subcontractors, (“Tolling” Operations), 73 Fed. Reg. 16517 (2008) (hereinafter Tolling Operations)). This regulation, the Commerce Department explained, was intended to apply in situations where a good is first sold by a manufacturer and then resold by an exporter or reseller. LEU from France, 66 Fed. Reg. 65880. The regulation provides that in such a situation the second sale should be used to calculate the U. S. price and normal value of the manufactured good; however, the Commerce Department concluded, the regulation was not meant to preclude antidumping duties where a manufacturer makes the only relevant sale that can be used to establish U. S. price and normal value. Ibid.; id., at 65884–65885. Finally, the Commerce Department reasoned that language in SWU contracts speaking of the transactions as the sale of enrichment services could not control, lest deferring to the parties’ characterizations allow them to “convert trade in goods into trade in so-called ‘manufacturing services,’ . . . thereby exposing industries to injury by unfair trade practices without the remedy of the [antidumping] laws.” Id., at 65881. In economic reality, the Commerce Department said, “the contracts designated as SWU contracts are functionally equivalent to those designated as EUP transactions.” Id., at 65885.[Footnote 5] Eurodif challenged the Department’s determination before the Court of International Trade (CIT), which remanded for “a more persuasive explanation” of the tolling regulation. USEC Inc. v. United States, 259 F. Supp. 2d 1310, 1326 (2003). On remand, the Commerce Department repeated that the tolling regulation governed which price should be used to calculate antidumping duties, not whether imports are subject to the antidumping provision in the first instance. Final Remand Determination, USEC Inc. and United States Enrichment Corporation v. United States (June 23, 2003), App. G to Pet. for Cert. 211a (hereinafter Final Remand Determination). The Department further explained its conclusion that SWU contracts lead to transfers of LEU for consideration. The contracts and other evidence in the record convinced the Department that “enrichers own, and hold title to, all the LEU they produce,” id., at 217a, a conclusion grounded on findings that “enrichers hold inventories of uranium from various sources, including uranium owned by the enricher itself, and produce LEU without relying solely upon the input from a particular customer.” Id., at 221a. Finally, the Department emphasized that the enrichers “have complete control over the enrichment process and control the amount of uranium and energy actually used in producing the LEU.” Id., at 231a. The CIT was unconvinced and reversed, relying on what it candidly recognized as a “legal fiction” expressed in SWU contracts, “that the very feed uranium delivered by a utility to an enricher is enriched and then returned as LEU to the utility.” USEC Inc. v. United States, 281 F. Supp. 2d 1334, 1339 (2003). The CIT reasoned, because “nothing in the record support[ed] a determination that the enricher has any ownership rights,” the Commerce Department’s determination was “unsupported by substantial evidence and not in accordance with law.” Id., at 1340. USEC challenged this conclusion in an interlocutory appeal to the Court of Appeals for the Federal Circuit, which affirmed. Eurodif S. A. v. United States, 411 F. 3d 1355 (2005) (Eurodif I). The court approached the issues much as the CIT had, with the observation that “the SWU contracts in this case do not evidence any intention by the parties to vest the enrichers with ownership rights in the delivered unenriched uranium or the finished LEU.” Id., at 1362. It recalled that in a previous case, Florida Power & Light Co. v. United States, 307 F. 3d 1364 (CA Fed. 2002), it had accepted the Government’s position that SWU contracts were for services, not for “ ‘disposal of personal property,’ ” and so were outside the cause of action provided by the Contract Disputes Act of 1978, 41 U. S. C. §601 et seq. Eurodif I, supra, at 1363, and n. 3 (quoting Florida Power & Light Co., supra, at 1373). While the court conceded that SWU agreements “do ‘not fall neatly’ either into the category of contracts for services or the category of contracts for the sale of goods,” 411 F. 3d, at 1364 (quoting Florida Power & Light Co., supra, at 1373–1374), it still concluded that “even under the deferential standard of review that we apply in this case, we choose not to ignore our previous holdings.” Eurodif I, supra, at 1363. Shortly after this decision, we held in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 982–983 (2005), that a court’s choice of one reasonable reading of an ambiguous statute does not preclude an implementing agency from later adopting a different reasonable interpretation. On rehearing, the Federal Circuit responded to National Cable & Telecommunications Association by explaining that it had not rejected the Commerce Department’s position because it conflicted with the prior interpretive choice that carried the day in Florida Power & Light. Eurodif S. A. v. United States, 423 F. 3d 1275, 1277–1278 (2005) (Eurodif II). The Circuit, rather, saw no statutory uncertainty to be resolved: “the antidumping duty statute unambiguously applies to the sale of goods and not services” and “it is clear that [SWU] contracts are contracts for services and not goods.” Id., at 1278. After final judgment was entered, Eurodif S. A. v. United States, 506 F. 3d 1051, 1053 (CA Fed. 2007) (Eurodif III), we granted certiorari 553 U. S. ___ (2008), to consider whether transactions under SWU contracts may be subjected to antidumping duties under the Tariff Act. We now reverse. II The issue is not whether, for purposes of 19 U. S. C. §1673, the better view is that a SWU contract is one for the sale of services, not goods. The statute gives this determination to the Department of Commerce in the first instance, §1677(1), and when the Department exercises this authority in the course of adjudication, its interpretation governs in the absence of unambiguous statutory language to the contrary or unreasonable resolution of language that is ambiguous.[Footnote 6] United States v. Mead Corp., 533 U. S. 218, 229–230 (2001) (citing Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984)). This is so even after a change in regulatory treatment, which “is not a basis for declining to analyze the agency’s interpretation under the Chevron framework.” National Cable & Telecommunications Assn., 545 U. S., at 981. “ ‘[T]he whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.’ ” Ibid. (quoting Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996)).[Footnote 7] In approaching the Department’s position on the application of §1673, two threshold propositions must be taken as given. First, we think the Department reasonably concluded that §1673 is not limited by its terms to cash-only sales. Otherwise, any sale of a manufactured product could be exempted from the operation of §1673 by a contractual term stating part of the purchase price in terms of a commodity.[Footnote 8] Second, in applying §1673, the Commerce Department is not bound by the “legal fiction [created by SWU contracts] that the very feed uranium delivered by a utility to an enricher is enriched and then returned as LEU to the utility.” USEC, 281 F. Supp. 2d, at 1339. The parties are free to contract as they wish, and they may genuinely regard SWU agreements as contracts for the sale of enrichment services. But, whatever the significance of such a term in a contract dispute, cf. Florida Power & Light Co., 307 F. 3d 1364, it is well settled that in reading regulatory and taxation statutes, “form should be disregarded for substance and the emphasis should be on economic reality.” Tcherepnin v. Knight, 389 U. S. 332, 336 (1967). See also Frank Lyon Co. v. United States, 435 U. S. 561, 573 (1978) (“ ‘In the field of taxation, administrators of the laws, and the courts, are concerned with substance and realities, and formal written documents are not rigidly binding’ ” (quoting Helvering v. F. & R. Lazarus & Co., 308 U. S. 252, 255 (1939))). Surrender to private contractual terms is especially uncalled for in dealing with international tariffs, as Congress saw when it amended the Tariff Act to say that the sale of foreign merchandise includes “the entering into of any leasing arrangement regarding the merchandise that is equivalent to the sale of the merchandise.” Trade and Tariff Act of 1984, §602(b)(2), 98 Stat. 3024, 19 U. S.C. §1673. Since public law is not constrained by private fiction, the test of the Department’s position turns first on whether the statute clearly excludes a transaction involving mixed payment for LEU that may and almost certainly will be produced from uranium feed distinct from what the utility provides. No one disputes that §1673 applies to the sale of goods, not services, LEU From France, 66 Fed. Reg. 65882–65883. Nor do we think anyone would deny that the exchange of cash combined with a commodity for a product that uses that very commodity as a constituent material is sometimes a sale of services and sometimes a sale of goods, the distinction being clear at the extremes. A customer who comes to a laundry with cash and dirty shirts is clearly purchasing cleaning services, not clean shirts. And a customer who provides cash and sand to a manufacturer of generic silicon processors is clearly buying computer chips rather than sand enhancement services. But the line blurs when the facts get more complicated, and SWU contracts exemplify a class of transactions that the Federal Circuit recognized does “ ‘not fall neatly’ either into the category of contracts for services or the category of contracts for the sale of goods.” Eurodif I, 411 F. 3d, at 1364 (quoting Florida Power & Light Co., supra, at 1373–1374). The agreement is not like the laundry ticket, which says that the same shirts are supposed to come back, just minus the dirt around the collar. And it is not on all fours with the agreement of the chip buyer and the manufacturer, in which it is inescapable that the silicon processors delivered are a separate good from the sand provided. Section 1673 simply does not speak with the precision necessary to say definitively whether it applies to the LEU and the agreement that gives the utility a right to get it. This is the very situation in which we look to an authoritative agency for a decision about the statute’s scope, which is defined in cases at the statutory margin by the agency’s application of it, and once the choice is made we ask only whether the Department’s application was reasonable. As to that, the Commerce Department relied on two related characteristics of these transactions in deciding SWU contracts should be treated as a sale of LEU. It stressed that the utility in a SWU contract provides cash plus a fungible commodity that is not tracked after its delivery to the enricher, in exchange for a product owned by the enricher.[Footnote 9] And it recognized that the enrichment process results in a substantial transformation of the unenriched uranium. The combination of these characteristics reasonably captures a common understanding of the sale of a good. Because an individual’s shirts are not fungible, they are tracked during the cleaning process and returned to the same customer who brought them in; there are no good reasons to treat them as owned for a time by the laundry, and no one does. And without any transfer of ownership, the salient feature of the transaction is the cleaning of the shirt, a service. Conversely, where a constituent material is untracked and fungible, ownership is usually seen as transferred, and the transaction is less likely to be a sale of services, as the Court explained years ago in distinguishing a common-law bailment from a sale: “[W]here logs are delivered to be sawed into boards, or leather to be made into shoes, rags into paper, olives into oil, grapes into wine, wheat into flour, if the product of the identical articles delivered is to be returned to the original owner in a new form, it is said to be a bailment, and the title never vests in the manufacturer. If, on the other hand, the manufacturer is not bound to return the same wheat or flour or paper, but may deliver any other of equal value, it is said to be a sale or a loan, and the title to the thing delivered vests in the manufacturer.” Powder Co. v. Burkhardt, 97 U. S. 110, 116 (1878).[Footnote 10] And when the manufacturer is not only free to return different material, but also substantially transforms the material it uses, it is even more likely that the object of the transaction will be seen as a new product, not work on enduring material of primary interest to the buyer. After all, what makes the hypothetical exchange of sand for silicon processors so obviously a sale of goods is the extreme transformation brought about by the chip manufacturer. These are good analytical grounds to show that SWU transactions are reasonably placed within the ambit of sale of goods, and the Department’s reliance on them is reinforced by practical reasons aimed at preserving the effectiveness of antidumping duties. There is no dispute that LEU sold under an EUP contract at less than fair value must be subjected to antidumping duties under §1673, there being a clear sale of goods when a domestic utility pays a single sale price in cash for the feed uranium and enrichment components represented by LEU. If foreign enrichers set this price below the fair value of LEU, the domestic enrichment industry is obviously open to material injury, the very threat the antidumping statute was meant to counter, see H. R. Rep. No. 1, at 23. But the same injury would occur if a SWU contract were untouchable. Under a SWU contract, the domestic utility pays cash to a third party for unenriched uranium and provides this along with additional cash in exchange for LEU; any EUP contract could be structured as a SWU contract simply by splitting the transaction in two, one contract to buy unenriched uranium and another to enrich it.[Footnote 11] And the restructuring would not stop with uranium; contracts for imported pasta would be replaced by separate contracts for wheat and wheat processing services, sweater imports would give way to separate contracts for wool and knitting services, and antidumping duties would primarily chastise the uncreative.[Footnote 12] The Commerce Department’s attempt to foreclose this absurd result by treating SWU transactions as sales of goods is eminently reasonable. III Where a domestic buyer’s cash and an untracked, fungible commodity are exchanged with a foreign contractor for a substantially transformed version of the same commodity, the Commerce Department may reasonably treat the transaction as the sale of a good under §1673. We therefore reverse the judgment of the Federal Circuit and remand the cases for further proceedings consistent with this opinion. It is so ordered. Footnote 1 LEU can also be produced through a centrifuge method or by back-blending unenriched uranium with weapons-grade uranium. Footnote 2 Many SWU contracts give the utility the option of providing a comparable quantity of uranium concentrate in lieu of the specified feed uranium. App. 13, 83, 268–69 (Sealed). Footnote 3 There are only five major uranium enrichers in the world, a scarcity that illustrates the “huge financial investment in facilities and a technically skilled work force” necessary to support the enrichment process. LEU from France, 66 Fed. Reg. 65884. Footnote 4 The Commerce Department concluded in a separate determination that LEU from the United Kingdom, Germany, and the Netherlands was not being sold, or likely to be sold, at less than fair value. Notice of Final Determinations of Sales at Not Less Than Fair Value: Low Enriched Uranium from the United Kingdom, Germany and the Netherlands, id., at 65886. Footnote 5 In February 2002, the International Trade Commission found that imports of LEU from France materially injured the enrichment industry in the United States, allowing the imposition of antidumping duties. U. S. Int’l Trade Comm’n, Low Enriched Uranium from France, Germany, the Netherlands, and the United Kingdom (Pub. No. 3486). Footnote 6 The specific factual findings on which an agency relies in applying its interpretation are conclusive unless unsupported by substantial evidence. 5 U. S. C. §706(2)(E). Footnote 7 Respondents’ assertion that the Commerce Department’s prior tolling regulation is inconsistent with its position in these cases is therefore beside the point. For the reasons given by the Department in its remand determination, we are not convinced that the tolling regulation precludes viewing SWU transactions as the sale of LEU; but even if it did, it has since been withdrawn, Tolling Operations, 73 Fed. Reg. 16517, and cannot now constrain the Commerce Department’s interpretive authority under Chevron. National Cable & Telecommunications Assn., 545 U. S., at 981 (“Unexplained inconsistency is, at most, a reason for holding an interpretation to be an arbitrary and capricious change from agency practice under the Administrative Procedure Act”). Likewise, even if the position taken by the Department of Energy in Florida Power & Light Co. v. United States, 307 F. 3d 1364 (CA Fed. 2002), was inconsistent with the Government’s position here, it would not speak to the deference owed the Commerce Department under Chevron. Footnote 8 Respondents argue that, after determining that SWU contracts involved the sale of LEU, the Commerce Department employed an impermissible methodology by constructing the normal value of the LEU based on the combined costs to Eurodif of obtaining feed uranium and enrichment. Brief for Respondent Eurodif S. A. et al. 48–50. These calculations, respondents argue, “were a charade, underscoring that the antidumping laws cannot be applied to these SWU contracts.” Id., at 48. To the degree respondents’ argument is that antidumping duties may never be applied to mixed cash-commodity sales, it is doomed by implausibility. If respondents are contending that the Commerce Department’s dumping determination improperly assessed the normal value of LEU, they are raising an issue well outside the scope of our grant of certiorari. Footnote 9 Eurodif argues that the Commerce Department erred in concluding that enrichers own LEU prior to its delivery under a SWU contract. Id., at 36–37. While the precise form of this argument is unclear, it fails under any reading. Respondents seem to mean that the Commerce Department’s interpretation of §1673 is impermissible as being inconsistent with the formal terms of SWU contracts, an argument we rejected above. The argument could also be read to suggest that the Commerce Department lacked substantial evidence to conclude that, contractual formalities aside, enrichers in fact own the LEU provided under SWU contracts prior to its delivery. But the evidence in the record not only supports the Department’s conclusion, it compels it. It is undisputed that the LEU delivered under a SWU contract is not actually derived from the feed uranium provided as consideration; as CIT observed, the notion that the same feed uranium delivered by a utility to an enricher is enriched and then returned as LEU to the utility is “a legal fiction.” USEC Inc. v. United States, 281 F. Supp. 2d 1334, 1339 (2003). Moreover, the enricher is free to vary the amount of feed uranium used to produce an order of LEU, either stockpiling feed uranium or supplementing its stores from other sources. Finally, the SWU contracts at issue provide that the utility retains title to the feed uranium until delivery of the LEU, at which point it obtains title in the LEU. In light of this process, some entity must own the LEU prior to delivery and obtain title to the feed uranium after delivery, absent some modern analog to the abhorrent possibility of an abeyance of seizen; the enricher is the only serious candidate. Footnote 10 Common law definitions do not necessarily control the meaning of terms in modern trade laws; we merely mean to show the long pedigree of the distinction relied upon by the Commerce Department. Footnote 11 This would be particularly easy in these cases, since COGEMA, Eurodif’s parent company, “is a major world supplier of natural uranium for the production of LEU.” Final Remand Determination, App. G to Pet. for Cert. 221a, n. 38. In fact, many SWU contracts provide that if a utility fails to deliver feed uranium, the enricher will substitute feed uranium of its own, which may then be purchased from the enricher. App. 13–14, 185–186, 537 (Sealed). Footnote 12 Eurodif suggests the Commerce Department could combat such circumvention of antidumping duties by taxing domestic downstream sales of such products. Brief for Respondent Eurodif S. A. et al. 53–54. But this ignores the substantial number of manufactured goods that are not resold. More fundamentally, this argument fails to explain why the Commerce Department should be required to chase after downstream resellers when the first sale has the same economic substance. |
555.US.2008_07-608 | In 1996, Congress extended the federal Gun Control Act of 1968’s prohibition on possession of a firearm by convicted felons to include persons convicted of “a misdemeanor crime of domestic violence,” 18 U. S. C. §922(g)(9). Responding to a 911 call reporting domestic violence, police officers discovered a rifle in respondent Hayes’s home. Based on this and other evidence, Hayes was charged under §§922(g)(9) and 924(a)(2) with possessing firearms after having been convicted of a misdemeanor crime of domestic violence. The indictment identified as the predicate misdemeanor offense Hayes’s 1994 conviction for battery against his then-wife, in violation of West Virginia law. Hayes moved to dismiss the indictment on the ground that his 1994 conviction did not qualify as a predicate offense under §922(g)(9) because West Virginia’s generic battery law did not designate a domestic relationship between aggressor and victim as an element of the offense. When the District Court denied the motion, Hayes entered a conditional guilty plea and appealed. The Fourth Circuit reversed, holding that a §922(g)(9) predicate offense must have as an element a domestic relationship between offender and victim. Held: A domestic relationship, although it must be established beyond a reasonable doubt in a §922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense. Pp. 4–13. (a) The definition of “misdemeanor crime of domestic violence,” contained in §921(a)(33)(A), imposes two requirements. First, the crime must have, “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” §921(a)(33)(A)(ii). Second, it must be “committed by” a person who has a specified domestic relationship with the victim. Ibid. The definition does not, however, require the predicate-offense statute to include, as an element, the existence of that domestic relationship. Instead, it suffices for the Government to charge and prove a prior conviction that was, in fact, for “an offense … committed by” the defendant against a spouse or other domestic victim. Pp. 4–9. (1) As an initial matter, §921(a)(33)(A)’s use of the singular word “element” suggests that Congress intended to describe only one required element, the use of force. Had Congress also meant to make the specified relationship a predicate-offense element, it likely would have used the plural “elements,” as it has done in other offense-defining provisions. See, e.g., 18 U. S. C. §3559(c)(2)(A). Treating the specified relationship as a predicate-offense element is also awkward as a matter of syntax. It requires the reader to regard “the use or attempted use of physical force, or the threatened use of a deadly weapon” as an expression modified by the relative clause “committed by.” It is more natural, however, to say a person “commit[s]” an “offense” than to say one “commit[s]” a “use.” Pp. 5–6. (2) The Fourth Circuit’s textual arguments to the contrary are unpersuasive. First, that court noted, clause (ii) is separated from clause (i)—which defines “misdemeanor”—by a line break and a semicolon, while clause (ii)’s components—force and domestic relationship—are joined in an unbroken word flow. Such less-than-meticulous drafting hardly shows that Congress meant to exclude from §922(g)(9)’s prohibition domestic abusers convicted under generic assault or battery laws. As structured, §921(a)(33)(A) defines “misdemeanor crime of domestic violence” by addressing in clause (i) the meaning of “misdemeanor,” and in clause (ii) “crime of domestic violence.” Because a “crime of domestic violence” involves both a use of force and a domestic relationship, joining these features together in clause (ii) would make sense even if Congress had no design to confine laws qualifying under §921(a)(33)(A) to those designating as elements both use of force and domestic relationship. A related statutory provision, 25 U. S. C. §2803(3)(C), indicates that Congress did not ascribe substantive significance to the placement of line breaks and semicolons in 18 U. S. C. §921(a)(33)(A). Second, the Fourth Circuit relied on the “rule of the last antecedent” to read “committed by” as modifying the immediately preceding use-of-force phrase rather than the earlier word “offense.” The last-antecedent rule, however, “is not an absolute and can assuredly be overcome by other indicia of meaning.” Barnhart v. Thomas, 540 U. S. 20, 26. Applying the rule here would require the Court to accept the unlikely premises that Congress employed the singular “element” to encompass two distinct concepts, and that it adopted the awkward construction “commi[t]” a use. The rule, moreover, would render the word “committed” superfluous, for Congress could have conveyed the same meaning by referring simply to “the use … of physical force … by a current or former spouse … .” Pp. 6–9. (b) Practical considerations strongly support this Court’s reading of §921(a)(33)(A). By extending the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence, §922(g)(9)’s proponents sought to close a loophole: Existing felon-in-possession laws often failed to keep firearms out of the hands of domestic abusers, for such offenders generally were not charged with, or convicted of, felonies. Construing §922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute would frustrate Congress’ manifest purpose. The statute would have been a dead letter in some two-thirds of the States because, in 1996, only about one-third of them had criminal statutes specifically proscribing domestic violence. Hayes argues that the measure that became §§922(g)(9) and 921(a)(33)(A), though it initially may have had a broadly remedial purpose, was revised and narrowed during the legislative process, but his argument is not corroborated by the revisions he identifies. Indeed, §922(g)(9)’s Senate sponsor observed that a domestic relationship often would not be a designated element of the predicate offense. Such remarks are “not controlling,” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 118, but the legislative record is otherwise silent. Pp. 10–12. (c) The rule of lenity, on which Hayes also relies, applies only when a statute is ambiguous. Section 921(a)(33)(A)’s definition, though not a model of the careful drafter’s art, is also not “grievous[ly] ambigu[ous].” Huddleston v. United States, 415 U. S. 814, 831. The text, context, purpose, and what little drafting history there is all point in the same direction: Congress defined “misdemeanor crime of domestic violence” to include an offense “committed by” a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime. Pp. 12–13. 482 F. 3d 749, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, Breyer, and Alito, JJ., joined, and in which Thomas, J., joined as to all but Part III. Roberts, C. J., filed a dissenting opinion, in which Scalia, J., joined. | * The federal Gun Control Act of 1968, 18 U. S. C. §921 et seq., has long prohibited possession of a firearm by any person convicted of a felony. In 1996, Congress extended the prohibition to include persons convicted of “a misdemeanor crime of domestic violence.” §922(g)(9). The definition of “misdemeanor crime of domestic violence,” contained in §921(a)(33)(A), is at issue in this case. Does that term cover a misdemeanor battery whenever the battered victim was in fact the offender’s spouse (or other relation specified in §921(a)(33)(A))? Or, to trigger the possession ban, must the predicate misdemeanor identify as an element of the crime a domestic relationship between aggressor and victim? We hold that the domestic relationship, although it must be established beyond a reasonable doubt in a §922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense. I In 2004, law enforcement officers in Marion County, West Virginia, came to the home of Randy Edward Hayes in response to a 911 call reporting domestic violence. Hayes consented to a search of his home, and the officers discovered a rifle. Further investigation revealed that Hayes had recently possessed several other firearms as well. Based on this evidence, a federal grand jury returned an indictment in 2005, charging Hayes, under §§922(g)(9) and 924(a)(2), with three counts of possessing firearms after having been convicted of a misdemeanor crime of domestic violence. The indictment identified Hayes’s predicate misdemeanor crime of domestic violence as a 1994 conviction for battery in violation of West Virginia law.[Footnote 1] The victim of that battery, the indictment alleged, was Hayes’s then-wife—a person who “shared a child in common” with Hayes and “who was cohabitating with . . . him as a spouse.” App. 3.[Footnote 2] Asserting that his 1994 West Virginia battery conviction did not qualify as a predicate offense under §922(g)(9), Hayes moved to dismiss the indictment. Section 922(g)(9), Hayes maintained, applies only to persons previously convicted of an offense that has as an element a domestic relationship between aggressor and victim. The West Virginia statute under which he was convicted in 1994, Hayes observed, was a generic battery proscription, not a law designating a domestic relationship between offender and victim as an element of the offense. The United States District Court for the Northern District of West Virginia rejected Hayes’s argument and denied his motion to dismiss the indictment. 377 F. Supp. 2d 540, 541–542 (2005). Hayes then entered a conditional guilty plea and appealed. In a 2-to-1 decision, the United States Court of Appeals for the Fourth Circuit reversed. A §922(g)(9) predicate offense, the Court of Appeals held, must “have as an element a domestic relationship between the offender and the victim.” 482 F. 3d 749, 751 (2007). In so ruling, the Fourth Circuit created a split between itself and the nine other Courts of Appeals that had previously published opinions deciding the same question.[Footnote 3] According to those courts, §922(g)(9) does not require that the offense predicate to the defendant’s firearm possession conviction have as an element a domestic relationship between offender and victim. We granted certiorari, 552 U. S. ___ (2008), to resolve this conflict. II Section 922(g)(9) makes it “unlawful for any person … who has been convicted in any court of a misdemeanor crime of domestic violence … [to] possess in or affecting commerce, any firearm or ammunition.” Section 921(a)(33)(A) defines “misdemeanor crime of domestic violence” as follows: “[T]he term ‘misdemeanor crime of domestic violence’ means an offense that— “(i) is a misdemeanor under Federal, State, or Tribal law; and “(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim” (footnotes omitted). This definition, all agree, imposes two requirements: First, a “misdemeanor crime of domestic violence” must have, “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” Second, it must be “committed by” a person who has a specified domestic relationship with the victim. The question here is whether the language of §921(a)(33)(A) calls for a further limitation: Must the statute describing the predicate offense include, as a discrete element, the existence of a domestic relationship between offender and victim? In line with the large majority of the Courts of Appeals, we conclude that §921(a)(33)(A) does not require a predicate-offense statute of that specificity. Instead, in a §922(g)(9) prosecution, it suffices for the Government to charge and prove a prior conviction that was, in fact, for “an offense … committed by” the defendant against a spouse or other domestic victim. We note as an initial matter that §921(a)(33)(A) uses the word “element” in the singular, which suggests that Congress intended to describe only one required element. Immediately following the word “element,” §921(a)(33)(A)(ii) refers to the use of force (undoubtedly a required element) and thereafter to the relationship between aggressor and victim, e.g., a current or former spouse. The manner in which the offender acts, and the offender’s relationship with the victim, are “conceptually distinct attributes.” United States v. Meade, 175 F. 3d 215, 218 (CA1 1999).[Footnote 4] Had Congress meant to make the latter as well as the former an element of the predicate offense, it likely would have used the plural “elements,” as it has done in other offense-defining provisions. See, e.g., 18 U. S. C. §3559(c)(2)(A) (“[T]he term ‘assault with intent to commit rape’ means an offense that has as its elements engaging in physical contact with another person or using or brandishing a weapon against another person with intent to commit aggravated sexual abuse or sexual abuse.”). Cf. Black’s Law Dictionary 559 (8th ed. 2004) (defining “element” as “[a] constituent part of a claim that must be proved for the claim to succeed <Burke failed to prove the element of proximate cause in prosecuting his negligence claim>”).[Footnote 5] Treating the relationship between aggressor and victim as an element of the predicate offense is also awkward as a matter of syntax. It requires the reader to regard “the use or attempted use of physical force, or the threatened use of a deadly weapon” as an expression modified by the relative clause “committed by.” In ordinary usage, however, we would not say that a person “commit[s]” a “use.” It is more natural to say that a person “commit[s]” an “offense.” See, e.g., United States v. Belless, 338 F. 3d 1063, 1066 (CA9 2003) (“One can ‘commit’ a crime or an offense, but one does not ‘commit’ ‘force’ or ‘use.’ ”). In reaching the conclusion that §921(a)(33)(A) renders both the use of force and a domestic relationship between aggressor and victim necessary elements of a qualifying predicate offense, the Fourth Circuit majority relied on two textual arguments. First, the court noted that clause (ii) is separated from clause (i) by a line break and a semicolon; in contrast, the components of clause (ii)—force and domestic relationship—are joined in an unbroken word flow. See 482 F. 3d, at 753. Had Congress placed the “committed by” phrase in its own clause, set off from clause (ii) by a semicolon or a line break, the lawmakers might have better conveyed that “committed by” modifies only “offense” and not “use” or “element.” Congress’ less-than-meticulous drafting, however, hardly shows that the legislators meant to exclude from §922(g)(9)’s firearm possession prohibition domes- tic abusers convicted under generic assault or battery provisions. As structured, §921(a)(33)(A) defines “misdemeanor crime of domestic violence” by addressing in clause (i) the meaning of “misdemeanor” and, in turn, in clause (ii), “crime of domestic violence.” Because a “crime of domestic violence” involves both a use of force and a domestic relationship, joining these features together in clause (ii) would make sense even if Congress had no design to confine laws qualifying under §921(a)(33)(A) to those designating as elements both use of force and domestic relationship between aggressor and victim. See id., at 761 (Williams, J., dissenting). See also United States v. Barnes, 295 F. 3d 1354, 1358–1360, 1361 (CADC 2002) (“The fact that the Congress somewhat awkwardly included the ‘committed by’ phrase in subpart (ii) (instead of adding a subpart (iii)) is not significant in view of the unnatural reading that would result if ‘committed by’ were construed to modify ‘use of force.’ ”). A related statutory provision, 25 U. S. C. §2803(3)(C), indicates that Congress did not ascribe substantive significance to the placement of line breaks and semicolons in 18 U. S. C. §921(a)(33)(A). In 2006, Congress amended §921(a)(33)(A)(i) to include misdemeanors under “[t]ribal law” as predicate offenses. As a companion measure, Congress simultaneously enacted §2803(3)(C), which employs use-of-force and domestic-relationship language virtually identical to the language earlier placed in §921(a)(33)(A)(i), except that §2803(3)(C) uses no semicolon or line break. Section 2803(3)(C) authorizes federal agents to “make an arrest without a warrant for an offense committed in Indian country if—” “the offense is a misdemeanor crime of domestic violence … and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim . . . .” At the time Congress enacted §2803(3)(C), the Courts of Appeals uniformly agreed that §921(a)(33)(A) did not limit predicate offenses to statutory texts specifying both a use of force and a domestic relationship as offense elements. Congress presumably knew how §921(a)(33)(A) had been construed, and presumably intended §2803(3)(C) to bear the same meaning. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 85–86 (2006) (“[W]hen ‘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.’ ” (quoting Bragdon v. Abbott, 524 U. S. 624, 645 (1998))). Relying on spacing and punctuation to hem in §921(a)(33)(A), while reading §2803(3)(C) to contain no similar limitation, would create a disjunction between these two provisions that Congress could not have intended. As a second justification for its construction of §921(a)(33)(A), the Court of Appeals invoked the “rule of the last antecedent,” under which “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas, 540 U. S. 20, 26 (2003). The words “committed by” immediately follow the use-of-force language, the court observed, and therefore should be read to modify that phrase, not the earlier word “offense.” See 482 F. 3d, at 753–755. The rule of the last antecedent, however, “is not an absolute and can assuredly be overcome by other indicia of meaning.” Barnhart, 540 U. S., at 26.[Footnote 6] Applying the rule of the last antecedent here would require us to accept two unlikely premises: that Congress employed the singular “element” to encompass two distinct concepts, and that it adopted the awkward construction “commi[t]” a “use.” See supra, at 5–6. Moreover, as the dissent acknowledges, post, at 4, the last-antecedent rule would render the word “committed” superfluous: Congress could have conveyed the same meaning by referring simply to “the use … of physical force … by a current or former spouse … .” See Tr. of Oral Arg. 29. “Committed” retains its operative meaning only if it is read to modify “offense.” Most sensibly read, then, §921(a)(33)(A) defines “misdemeanor crime of domestic violence” as a misdemeanor offense that (1) “has, as an element, the use [of force],” and (2) is committed by a person who has a specified domestic relationship with the victim. To obtain a conviction in a §922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant’s current or former spouse or was related to the defendant in another specified way. But that relationship, while it must be established, need not be denominated an element of the predicate offense.[Footnote 7] III Practical considerations strongly support our reading of §921(a)(33)(A)’s language. Existing felon-in-possession laws, Congress recognized, were not keeping firearms out of the hands of domestic abusers, because “many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.” 142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg). By extending the federal firearm prohibition to persons convicted of “misdemeanor crime[s] of domestic violence,” proponents of §922(g)(9) sought to “close this dangerous loophole.” Id., at 22986. Construing §922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute (one that does not designate a domestic relationship as an element of the offense) would frustrate Congress’ manifest purpose. Firearms and domestic strife are a potentially deadly combination nationwide. See, e.g., Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae 8–15; Brief for National Network to End Domestic Violence et al. as Amici Curiae 2–8. Yet, as interpreted by the Fourth Circuit, §922(g)(9) would have been “a dead letter” in some two-thirds of the States from the very moment of its enactment. 482 F. 3d, at 762 (Williams, J., dissenting). As of 1996, only about one-third of the States had criminal statutes that specifically proscribed domestic violence. See Brief for United States 23, n. 8.[Footnote 8] Even in those States, domestic abusers were (and are) routinely prosecuted under generally applicable assault or battery laws. See Tr. of Oral Arg. 19. And no statute defining a distinct federal misdemeanor designated as an element of the offense a domestic relationship between aggressor and victim. Yet Congress defined “misdemeanor crime of domestic violence” to include “misdemeanor[s] under Federal … law.” §921(a)(33)(A)(i). Given the paucity of state and federal statutes targeting domestic violence, we find it highly improbable that Congress meant to extend §922(g)(9)’s firearm possession ban only to the relatively few domestic abusers prosecuted under laws rendering a domestic relationship an element of the offense. See Barnes, 295 F. 3d, at 1364 (rejecting the view that “Congress remedied one disparity—between felony and misdemeanor domestic violence convictions—while at the same time creating a new disparity among (and sometimes, within) states”).[Footnote 9] The measure that became §922(g)(9) and §921(a)(33)(A), Hayes acknowledges, initially may have had a broadly remedial purpose, see Brief for Respondent 28–29, but the text of the proposal, he maintains, was revised and narrowed while the measure remained in the congressional hopper. The compromise reflected in the text that gained passage, Hayes argues, restricted the legislation to offenses specifically denominating a domestic relationship as a defining element. The changes Hayes identifies, however, do not corroborate his argument. Congress did revise the language of §921(a)(33)(A) to spell out the use-of-force requirement. The proposed legislation initially described the predicate domestic-violence offense as a “crime of violence … committed by” a person who had a domestic relationship with the victim. 142 Cong. Rec. 5840. The final version replaced the unelaborated phrase “crime of violence” with the phrase “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” This apparently last-minute insertion may help to explain some of the syntactical awkwardness of the enacted language, but it does not evince an intention to convert the “committed by” phrase into a required element of the predicate offense. Indeed, in a floor statement discussing the revised version of §922(g)(9), Senator Frank Lautenberg, the sponsor of the provision, observed that a domestic relationship between aggressor and victim often would not be a designated element of the predicate offense: “[C]onvictions for domestic violence-related crimes often are for crimes, such as assault, that are not explicitly identified as related to domestic violence. Therefore, it will not always be possible for law enforcement authorities to determine from the face of someone’s criminal record whether a particular misdemeanor conviction involves domestic violence, as defined in the new law.” Id., at 26675. The remarks of a single Senator are “not controlling,” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 118 (1980), but, as Hayes recognizes, the legislative record is otherwise “absolutely silent.” See Tr. of Oral Arg. 32, 35. It contains no suggestion that Congress intended to confine §922(g)(9) to abusers who had violated statutes rendering the domestic relationship between aggressor and victim an element of the offense. IV The rule of lenity, Hayes contends, provides an additional reason to construe §922(g)(9) and §921(a)(33)(A) to apply only to predicate offenses that specify a domestic relationship as an element of the crime. “[T]he touchstone of the rule of lenity is statutory ambiguity.” Bifulco v. United States, 447 U. S. 381, 387 (1980) (internal quotation marks omitted). We apply the rule “only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.” United States v. Shabani, 513 U. S. 10, 17 (1994). Section 921(a)(33)(A)’s definition of “misdemeanor crime of domestic violence,” we acknowledge, is not a model of the careful drafter’s art. See Barnes, 295 F. 3d, at 1356. But neither is it “grievous[ly] ambigu[ous].” Huddleston v. United States, 415 U. S. 814, 831 (1974). The text, context, purpose, and what little there is of drafting history all point in the same direction: Congress defined “misdemeanor crime of domestic violence” to include an offense “committed by” a person who had a specified domestic relationship with the victim, whether or not the misdemeanor statute itself designates the domestic relationship as an element of the crime. * * * 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 joins all but Part III of this opinion. Footnote 1 West Virginia’s battery statute provides: “[A]ny person [who] unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person, … shall be guilty of a misdemeanor.” W. Va. Code Ann. §61–2–9(c) (Lexis 2005). Footnote 2 The indictment stated, in relevant part: “Defendant RANDY EDWARD HAYES’ February 24, 1994 Battery conviction … constituted a misdemeanor crime of domestic violence because: “a. Battery is a misdemeanor under State law in West Virginia; “b. Battery has, as an element, the use and attempted use of physical force; “c. Defendant RANDY EDWARD HAYES committed the offense of Battery against the victim: “i. who was his current spouse; and “ii. who was a person with whom he shared a child in common; and “iii. who was cohabitating with and had cohabitated with him as a spouse.” App. 2–3 (bold typeface deleted). Footnote 3 See United States v. Heckenliable, 446 F. 3d 1048, 1049 (CA10 2006); United States v. Belless, 338 F. 3d 1063, 1067 (CA9 2003); White v. Department of Justice, 328 F. 3d 1361, 1364–1367 (CA Fed. 2003); United States v. Shelton, 325 F. 3d 553, 562 (CA5 2003); United States v. Kavoukian, 315 F. 3d 139, 142–144 (CA2 2002); United States v. Barnes, 295 F. 3d 1354, 1358–1361 (CADC 2002); United States v. Chavez, 204 F. 3d 1305, 1313–1314 (CA11 2000); United States v. Meade, 175 F. 3d 215, 218–221 (CA1 1999); United States v. Smith, 171 F. 3d 617, 619–621 (CA8 1999). Footnote 4 Hayes observes, see Brief for Respondent 24–25, that Congress has used the singular “element” in defining a “crime of violence” to require both an action (the use of force) and its object (the person of another). See, e.g., 18 U. S. C. §16(a) (defining “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”). Although one might conceive of an action and its object as separate elements, it is unsurprising that Congress would have chosen to denominate “the use of force against another” as a single, undifferentiated element. In contrast, the two requirements set out in §921(a)(33)(A)(ii)—the use of force and the existence of a specified relationship between aggressor and victim—are not readily conceptualized as a single element. Footnote 5 Invoking the Dictionary Act, Hayes contends that the singular “element” encompasses the plural “elements.” See Brief for Respondent 25. The Dictionary Act provides that, “unless the context indicates otherwise,” “words importing the singular include and apply to several persons, parties, or things.” 1 U. S. C. §1. On the rare occasions when we have relied on this rule, doing so was “necessary to carry out the evident intent of the statute.” First Nat. Bank in St. Louis v. Missouri, 263 U. S. 640, 657 (1924). As we explain infra, at 10–12, Hayes’s reading of 18 U. S. C. §921(a)(33)(A) does not accord with Congress’ aim in extending the gun possession ban. Footnote 6 As the United States points out, the Court of Appeals “itself recognized the flexibility of the rule [of the last antecedent].” Brief for United States 20, n. 7. Under a strict application of the rule, the “committed by” phrase would modify only its immediate antecedent, i.e., “the threatened use of a deadly weapon,” and not the entire phrase “use or attempted use of physical force, or the threatened use of a deadly weapon.” The court rightly regarded such a reading as implausible. See 482 F. 3d 749, 755 (CA4 2007). Footnote 7 We find it not at all “surprising”—indeed, it seems to us “most natural”—to read §921(a)(33)(A) to convey that a person convicted of battering a spouse or other domestic victim has committed a “crime of domestic violence,” whether or not the statute of conviction happens to contain a domestic-relationship element. Cf. post, at 2. Footnote 8 Additional States have enacted such statutes since 1996, but about one-half of the States still prosecute domestic violence exclusively under generally applicable criminal laws. See Brief for United States 23–24, and n. 9. Footnote 9 Generally, as in this case, it would entail no “ ‘elaborate factfinding process,’ ” cf. post, at 7, to determine whether the victim of a violent assault was the perpetrator’s “current or former spouse” or bore one of the other domestic relationships specified in §921(a)(33)(A)(ii) to the perpetrator. |
556.US.2008_07-1410 | The Navajo Nation has long sought damages under the Indian Tucker Act (ITA) for an asserted breach of fiduciary duty by the Secretary of the Interior in connection with his failure promptly to approve a royalty rate increase under a coal lease (Lease 8580) the Tribe executed in 1964. Six years ago, this Court held that “the Tribe’s claim for compensation … fails.” United States v. Navajo Nation, 537 U. S. 488, 493 (Navajo I). The Court explained that in order to invoke the ITA and thereby bypass federal sovereign immunity, a tribe “must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” Id., at 506. Holding that such duties were not imposed by the Indian Mineral Leasing Act of 1938 (IMLA), by the Indian Mineral Development Act of 1982 (IMDA), or by 25 U. S. C. §399, the Court reversed a judgment for the Tribe and remanded. The Court of Federal Claims then dismissed the Tribe’s claim, but the Federal Circuit reversed, finding violations of duties imposed by the Navajo-Hopi Rehabilitation Act of 1950, 25 U. S. C. §§635(a), 638, and the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. §1300(e), as well as common-law duties arising from the Government’s “comprehensive control” over tribal coal. Held: The Tribe’s claim for compensation fails. None of the sources of law cited by the Federal Circuit and relied upon by the Tribe provides any more sound a basis for its lawsuit than those analyzed in Navajo I. Pp. 8–14. (a) Navajo I did not definitively terminate the Tribe’s claim. Because the Court in that case did not analyze statutes other than the IMLA, the IMDA, and §399, it is conceivable, albeit unlikely, that another relevant statute might have provided a basis for the suit. However, Navajo I’s reasoning—particularly its instruction to “train on specific rights-creating or duty-imposing statutory or regulatory prescriptions,” 537 U. S., at 506—left no room for that result based on the sources of law relied on below. P. 8. (b) Lease 8580 was not issued under §635(a), so the Tribe cannot invoke that law as a source of money-mandating duties. Section 635(a) authorizes leases only for terms of up to 25 years, renewable for up to another 25 years. In contrast, the IMLA allows “terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities.” §396a. Mirroring the latter language, Lease 8580’s indefinite term strongly suggests that it was negotiated and approved under the IMLA. This conclusion is not refuted by §635(a)’s saving clause or by testimony that coal leasing was a centerpiece of the Rehabilitation Act’s program. Pp. 8–11. (c) Also unavailing is the argument that the Secretary violated §638’s requirement that he follow the Tribe’s recommendations in administering the “program authorized by this subchapter.” The word “program” refers back to §631, which directs the Secretary to undertake “a program of basic improvements for the conservation and development of the [Tribe’s] resources” and lists various projects to be included in the program. The statute certainly does not require the Secretary to follow recommendations of the Tribe as to royalty rates under coal leases executed pursuant to another Act. Pp. 11–12. (d) Title 30 U. S. C. §1300(e) is irrelevant. That provision applies only “[w]ith respect to leases issued after” the statute was enacted in 1977. Lease 8580 was issued in 1964; §1300(e) is therefore inapplicable. Pp. 12–13. (e) The Government’s “comprehensive control” over Indian coal, alone, does not create enforceable fiduciary duties. The ITA limits cognizable claims to those arising under, inter alia, “the … laws … of the United States,” 28 U. S. C. §1505, and Navajo I reiterated that the analysis must begin with “specific rights-creating or duty-imposing statutory or regulatory prescriptions,” 537 U. S., at 506. If a statute or regulation imposes a trust relationship, then common-law principles are relevant in determining whether damages are available for breach of the duty, but the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, so trust principles do not come into play here. Pp. 13–14. 501 F. 3d 1327, reversed and remanded. Scalia, J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Stevens, J., joined. | For over 15 years, the Indian Tribe known as the Navajo Nation has been pursuing a claim for money damages against the Federal Government based on an asserted breach of trust by the Secretary of the Interior in connection with his approval of amendments to a coal lease executed by the Tribe. The original lease took effect in 1964. The amendments were approved in 1987. The litigation was initiated in 1993. Six years ago, we held that “the Tribe’s claim for compensation . . . fails,” United States v. Navajo Nation, 537 U. S. 488, 493 (2003) (Navajo I), but after further proceedings on remand the United States Court of Appeals for the Federal Circuit resuscitated it. 501 F. 3d 1327 (2007). Today we hold, once again, that the Tribe’s claim for compensation fails. This matter should now be regarded as closed. I. Legal Background The Federal Government cannot be sued without its consent. FDIC v. Meyer, 510 U. S. 471, 475 (1994). Limited consent has been granted through a variety of statutes, including one colloquially referred to as the Indian Tucker Act: “The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe . . . whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group.” 28 U. S. C. §1505. The last clause refers to the (ordinary) Tucker Act, which waives immunity with respect to any claim “founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” §1491(a)(1). Neither the Tucker Act nor the Indian Tucker Act creates substantive rights; they are simply jurisdictional provisions that operate to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts). United States v. Testan, 424 U. S. 392, 400 (1976); United States v. Mitchell, 445 U. S. 535, 538 (1980) (Mitchell I). The other source of law need not explicitly provide that the right or duty it creates is enforceable through a suit for damages, but it triggers liability only if it “ ‘can fairly be interpreted as mandating compensation by the Federal Government.’ ” Testan, supra, at 400 (quoting Eastport S. S. Corp. v. United States, 178 Ct. Cl. 599, 607, 372 F. 2d 1002, 1009 (1967)); see also United States v. Mitchell, 463 U. S. 206, 218 (1983) (Mitchell II); Navajo I, 537 U. S., at 503. As we explained in Navajo I, there are thus two hurdles that must be cleared before a tribe can invoke jurisdiction under the Indian Tucker Act. First, the tribe “must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties.” Id., at 506. “If that threshold is passed, the court must then determine whether the relevant source of substantive law ‘can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].’ ” Ibid. (alteration in original). At the second stage, principles of trust law might be relevant “in drawing the inference that Congress intended damages to remedy a breach.” United States v. White Mountain Apache Tribe, 537 U. S. 465, 477 (2003). II. History of the Present Case A. The Facts A comprehensive recitation of the facts can be found in Navajo I, supra, at 495–502. By way of executive summary: The Tribe occupies a large Indian reservation in the American Southwest, on which there are significant coal deposits. In 1964 the Secretary of the Interior approved a lease (Lease 8580), executed by the Tribe and the predecessor of Peabody Coal Company, allowing the company to engage in coal mining on a tract of the reservation in exchange for royalty payments to the Tribe. The term of the lease was set at “ten (10) years from the date hereof, and for so long thereafter as the substances produced are being mined by the Lessee in accordance with its terms, in paying quantities,” App. 189; it is still in effect today. The royalty rates were originally set at a maximum of 37.5 cents per ton of coal, but the lease also said that the rates were “subject to reasonable adjustment by the Secretary of the Interior” after 20 years and again “at the end of each successive ten-year period thereafter.” Id., at 194. The dispute in this case concerns the Tribe’s attempt to secure such an adjustment to the royalty rate after the initial 20-year period elapsed in 1984. At that point, the Tribe requested that the Secretary exercise his power to increase the royalty rate, and the Director of the Bureau of Indian Affairs for the Navajo Area issued an opinion letter imposing a new rate of 20 percent of gross proceeds. Id., at 8–9. But Peabody filed an administrative appeal, and while it was pending the Tribe and the company reached a negotiated agreement to set a rate of 12.5 percent of gross proceeds instead. As a result, the Area Director’s decision was vacated, the administrative appeal was dismissed, and the Secretary approved the amendments to the lease. B. This Litigation through Navajo I The Tribe launched the present lawsuit in 1993, claiming that the Secretary’s actions in connection with the approval of the lease amendments constituted a breach of trust. In particular, the Tribe alleged that the Secretary, following upon improper ex parte contacts with Peabody, had delayed action on Peabody’s administrative appeal in order to pressure the economically desperate Tribe to return to the bargaining table. This, the complaint charged, was in violation of the United States’ fiduciary duty to act in the Indians’ best interests. The Tribe sought $600 million in damages, invoking the Indian Tucker Act to bypass sovereign immunity. The Court of Federal Claims granted summary judgment to the United States, concluding that “the Navajo Nation has failed to present statutory authority which can be fairly interpreted as mandating compensation for the government’s fiduciary wrongs,” Navajo Nation v. United States, 46 Fed. Cl. 217, 236 (2000), and therefore could not sue under the Indian Tucker Act. The Federal Circuit reversed that ruling and held that the Indian Mineral Leasing Act of 1938 (IMLA), 52 Stat. 347, 25 U. S. C. §396a et seq., among other statutes, gave the Government broad control over mineral leasing on Indian lands, thus creating a fiduciary duty enforceable through suits for monetary damages. Navajo Nation v. United States, 263 F. 3d 1325, 1330–1332 (2001). Finding that the Government had in fact violated its obligations, the Court of Appeals reinstated the suit. We granted certiorari, United States v. Navajo Nation, 535 U. S. 1111 (2002), and (as described by the author of the ensuing opinion, concurring in a companion case) considered “the threshold question” presented by the Tribe’s attempt to invoke the Indian Tucker Act: “[W]hether the IMLA and its regulations impose any concrete substantive obligations, fiduciary or otherwise, on the Government,” White Mountain, supra, at 480 (Ginsburg, J., concurring). The answer was an unequivocal no. The relevant provision of the IMLA provided as follows: “[U]nallotted lands within any Indian reservation or lands owned by any tribe . . . may, with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council or other authorized spokesmen for such Indians, for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities.” 25 U. S. C. §396a. Another provision of the IMLA authorized the Secretary to promulgate regulations governing operations under such leases, §396d, but during the relevant period the regulations applicable to coal leases, beyond setting a minimum royalty rate of 10 cents per ton, 25 CFR §211.15(c) (1985), did not limit the Secretary’s approval authority. We construed the IMLA in light of its purpose: to “enhance tribal self-determination by giving Tribes, not the Government, the lead role in negotiating mining leases with third parties.” Navajo I, 537 U. S., at 508. Consistent with that goal, the IMLA gave the Secretary not a “comprehensive managerial role,” id., at 507, but only the power to approve coal leases already negotiated by Tribes. That authority did not create, expressly or otherwise, a trust duty with respect to coal leasing and so there existed no enforceable fiduciary obligations that the Tribe could sue the Government for having neglected. Id., at 507–508. We distinguished Mitchell II, which involved a series of statutes and regulations that gave the Federal Government “full responsibility to manage Indian resources and land for the benefit of the Indians.” 463 U. S., at 224. Title 25 U. S. C. §406(a) permitted Indians to sell timber with the consent of the Secretary of the Interior, but directed the Secretary to base his decisions on “a consideration of the needs and best interests of the Indian owner and his heirs” and enumerated specific factors to guide that decisionmaking. We understood that statute—in combination with several other provisions and the applicable regulations—to create a fiduciary duty with respect to Indian timber. Mitchell II, supra, at 219–224. But neither the IMLA nor its regulations established any analogous duties or obligations in the coal context. Navajo I, supra, at 507–508. Nor did the other statutes cited by the Tribe—25 U. S. C. §399 and the Indian Mineral Development Act of 1982 (IMDA), 96 Stat. 1938, 25 U. S. C. §2101 et seq.—help its case. Section 399 “is not part of the IMLA and [did] not govern Lease 8580,” Navajo I, 537 U. S., at 509; rather, it granted to the Secretary the power to lease Indian land on his own say-so. We therefore found it irrelevant to the question whether “the Secretary’s more limited approval role under the IMLA” created any enforceable duties. Ibid. And while the IMDA did set standards to govern the Secretary’s approval of other mining-related agreements, Lease 8580 “falls outside the IMDA’s domain,” ibid.; that law was accordingly beside the point. Having resolved that “we ha[d] no warrant from any relevant statute or regulation to conclude that [the Secretary’s] conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act,” this Court reversed the Federal Circuit’s judgment in favor of the Tribe and “remanded for further proceedings consistent with this opinion.” Id., at 514. C. Proceedings on Remand On remand, the Tribe argued that even if its suit could not be maintained on the basis of the IMLA, the IMDA, or §399, a “network” of other statutes, treaties, and regulations could provide the basis for its claims. The Government objected that our opinion foreclosed that possibility, but the Federal Circuit disagreed and remanded for consideration of the argument in the first instance. 347 F. 3d 1327 (2003). The Court of Federal Claims, however, persisted in its original decision to dismiss the Tribe’s claim, explaining that nothing in the suggested “network” succeeded in tying “specific laws or regulatory provisions to the issue at hand,” namely, the Secretary’s approval of royalty rates in coal leases negotiated by tribes. 68 Fed. Cl. 805, 811 (2005). Once again the Federal Circuit reversed, this time relying primarily on three statutory provisions—two sections of the Navajo-Hopi Rehabilitation Act of 1950, 64 Stat. 46, 25 U. S. C. §§635(a), 638; and one section of the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. §1300(e)—to allow the Tribe’s claim to proceed. The Court held that the Government had violated the specific duties created by those statutes, as well as “common law trust duties of care, candor, and loyalty” that arise from the comprehensive control over tribal coal that is exercised by the Government. 501 F. 3d 1327, 1346 (2007). Once again we granted the Government’s petition for a writ of certiorari. 554 U. S. ___ (2008). III. Analysis A. Threshold Matter The Government points to our categorical concluding language in Navajo I: “[W]e have no warrant from any relevant statute or regulation to conclude that [the Secretary’s] conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act,” 537 U. S., at 514. This proves, the Government claims, that this Court definitively terminated the Tribe’s claim last time around, so that the lower court’s later resurrection of the suit was flatly inconsistent with our mandate. But, to be fair, our opinion (like the Court of Appeals decision we were reviewing, Navajo Nation, 263 F. 3d, at 1327, 1330–1331) did not analyze any statutes beyond the IMLA, the IMDA, and §399. It is thus conceivable, albeit unlikely, that some other relevant statute, though invoked by the Tribe at the outset of the litigation, might have gone unmentioned by the Federal Circuit and unanalyzed by this Court. So we cannot say that our mandate completely foreclosed the possibility that such a statute might allow for the Tribe to succeed on remand. What we can say, however, is that our reasoning in Navajo I—in particular, our emphasis on the need for courts to “train on specific rights-creating or duty-imposing statutory or regulatory prescriptions,” 537 U. S., at 506—left no room for that result based on the sources of law that the Court of Appeals relied upon. B. 25 U. S. C. §635(a) The first of the two discussed provisions of the Navajo-Hopi Rehabilitation Act of 1950—like the IMLA—permits Indians to lease reservation lands if the Secretary approves of the deal: “Any restricted Indian lands owned by the Navajo Tribe, members thereof, or associations of such members . . . may be leased by the Indian owners, with the approval of the Secretary of the Interior, for public, religious, educational, recreational, or business purposes, including the development or utilization of natural resources in connection with operations under such leases. All leases so granted shall be for a term of not to exceed twenty-five years, but may include provisions authorizing their renewal for an additional term of not to exceed twenty-five years, and shall be made under such regulations as may be prescribed by the Secretary. . . . Nothing contained in this section shall be construed to repeal or affect any authority to lease restricted Indian lands conferred by or pursuant to any other provision of law.” 25 U. S. C. §635(a). The Tribe contends that this section renders the Government liable for any breach of trust in connection with the approval of leases executed pursuant to the authority it grants. Whether or not that is so, the provision only even arguably matters if Lease 8580 was issued under its authority. In Navajo I we presumed, as did the parties, that the lease had been issued pursuant to the IMLA. 537 U. S., at 495. But now the Tribe has changed its tune, and contends that Lease 8580 was approved under §635(a), not under the IMLA at all. Brief for Respondent 39. The Government says otherwise. Section 635(a) permits leasing only for “public, religious, educational, recreational, or business purposes,” and the Government contends that mining is not embraced by those terms. While leases under §635(a) may provide for “the development or utilization of natural resources,” they may do so only “in connection with operations under such leases,” i.e., in connection with operations for the enumerated purposes. By contrast, mining leases were permitted and governed by the IMLA even before the Navajo-Hopi Rehabilitation Act was enacted in 1950. We need not decide whether the Government is correct on that point, or whether mining could ever qualify as a “business purpose” under the statute, because the Tribe’s argument suffers from a more fundamental problem. Section 635(a) authorizes leases only for terms of up to 25 years, renewable for up to another 25 years. In contrast, the IMLA allows “for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities.” 25 U. S. C. §396a. Lease 8580, mirroring the latter language, sets a term of “ten (10) years from the date hereof, and for so long thereafter as the substances produced are being mined by the Lessee in accordance with its terms, in paying quantities.” App. 189. That indefinite lease term strongly suggests that it was negotiated by the Tribe and approved by the Secretary under the powers authorized by the IMLA, not the Rehabilitation Act. The Tribe’s only responses to this apparently fatal defect in its argument are (1) that §635(a) expressly leaves unaffected “any authority to lease restricted Indian lands conferred by or pursuant to any other provision of law,” including the authority to lease for indefinite terms; and (2) that Stewart Udall, who served as Secretary of the Interior during the 1960’s, recently testified that “coal leasing and related development was the centerpiece of the resources development program” under the Rehabilitation Act, id., at 569. As to the former: That is precisely the point. Section 635(a) creates a supplemental authority for leasing Indian land; it does not displace authority granted elsewhere. But in light of the different conditions attached to the different grants, it is apparent that a particular lease must be executed and approved pursuant to a particular authorization. The saving clause in §635(a) does not allow the Tribe to mix-and-match, to combine the (allegedly) duty-creating mechanism of the Rehabilitation Act with the indefinite lease term of the IMLA. It must be one or the other, and the record persuasively demonstrates that Lease 8580 is an IMLA lease. As to Secretary Udall’s testimony: That is not inconsistent with our conclusion. The Interior Department may have viewed coal leasing as an important part of the program to rehabilitate the Navajo Tribe but that does not prove that Lease 8580 was issued pursuant to the supplemental leasing authority granted by the Rehabilitation Act, rather than the pre-existing leasing authority of the IMLA preserved by the Rehabilitation Act. The latter, perhaps because of its longer lease terms, was evidently preferable to the Tribe or the coal company or both. Because the lease in this case “falls outside” §635(a)’s “domain,” Navajo I, supra, at 509, the Tribe cannot invoke it as a source of money-mandating rights or duties. C. 25 U. S. C. §638 Next, the Tribe points to a second provision in the Navajo-Hopi Rehabilitation Act: “The Tribal Councils of the Navajo and Hopi Tribes and the Indian communities affected shall be kept informed and afforded opportunity to consider from their inception plans pertaining to the program authorized by this subchapter. In the administration of the program, the Secretary of the Interior shall consider the recommendations of the tribal councils and shall follow such recommendations whenever he deems them feasible and consistent with the objectives of this subchapter.” 25 U. S. C. §638. In the Tribe’s view, the Secretary violated this provision by failing promptly to abide by its wishes to affirm the Area Director’s order increasing the royalty rate under Lease 8580 to a full 20 percent of gross proceeds. We cannot agree. The “program” twice mentioned in §638 refers back to the Act’s opening provision, which directs the Secretary to undertake “a program of basic improvements for the conservation and development of the resources of the Navajo and Hopi Indians, the more productive employment of their manpower, and the supplying of means to be used in their rehabilitation.” §631. The statute then enumerates various projects to be included in that program, and authorizes appropriation of funds (in specific amounts) for each. E.g., “Soil and water conservation and range improvement work, $10,000,000.” §631(1). The only listed project even remotely related to this case is “[s]urveys and studies of timber, coal, mineral, and other physical and human resources.” §631(3). Of course a lease is neither a survey nor a study. To read §638 as imposing a money-mandating duty on the Secretary to follow recommendations of the Tribe as to royalty rates under coal leases executed pursuant to another Act, and to allow for the enforcement of that duty through the Indian Tucker Act, would simply be too far a stretch. D. 30 U. S. C. §1201 et seq. The final statute invoked by the Tribe is the most easily dispensed with. The Surface Mining Control and Reclamation Act of 1977 (SMCRA), 91 Stat. 445, 30 U. S. C. §1201 et seq., is a comprehensive statute that regulates all surface coal mining operations. See generally §1202; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 268–272 (1981). One section of the Act, §1300, deals with coal mining specifically on Indian lands, and the Tribe cites subsection (e): “With respect to leases issued after [the date of enactment of this Act], the Secretary shall include and enforce terms and conditions in addition to those required by subsections (c) and (d) of this section as may be requested by the Indian tribe in such leases.” According to the Tribe, this provision requires the Secretary to enforce whatever terms the Indians request with respect to coal leases. In light of the fact that the referenced subsections (c) and (d) refer exclusively to environmental protection standards, that interpretation is highly suspect. In any event, because Lease 8580 was issued in 1964—some 13 years before the date of enactment of the SMCRA—the provision is categorically inapplicable. The Federal Circuit concluded otherwise on the theory that the amendments to the lease were approved after 1977. But §1300(e) is limited to leases “issued” after that date; and even the Tribe does not contend that a lease is “issued” whenever it is amended. The SMCRA is irrelevant here. E. Government’s “Comprehensive Control” over Coal The Federal Circuit’s opinion also suggested that the Government’s “comprehensive control” over coal on Indian land gives rise to fiduciary duties based on common-law trust principles. It noted that the Government had conducted surveys and studies of the Tribe’s coal resources, 501 F. 3d, at 1341; that the Interior Department imposed various requirements on coal mining operations on Indian land—regulating, for example, “signs and markers, postmining use of land, backfilling and grading, waste disposal, topsoil handling, protection of hydrologic systems, revegetation, and steep-slope mining,” id., at 1342; and that the Government in practice exercised control over the calculation of coal values and quantities for royalty purposes, even though such control was codified by regulation only after the events at issue here, id., at 1342–1343. The Federal Government’s liability cannot be premised on control alone. The text of the Indian Tucker Act makes clear that only claims arising under “the Constitution, laws or treaties of the United States, or Executive orders of the President” are cognizable (unless the claim could be brought by a non-Indian plaintiff under the ordinary Tucker Act). 28 U. S. C. §1505. In Navajo I we reiterated that the analysis must begin with “specific rights-creating or duty-imposing statutory or regulatory prescriptions.” 537 U. S., at 506. If a plaintiff identifies such a prescription, and if that prescription bears the hallmarks of a “conventional fiduciary relationship,” White Mountain, 537 U. S., at 473, then trust principles (including any such principles premised on “control”) could play a role in “inferring that the trust obligation [is] enforceable by damages,” id., at 477. But that must be the second step of the analysis, not (as the Federal Circuit made it) the starting point. Navajo I determined that the IMLA, which governs the lease at issue here, does not create even a “ ‘limited trust relationship’ ” with respect to coal leasing. Navajo I, supra, at 508 (quoting Mitchell I, 445 U. S., at 542). Since the statutes discussed in the preceding subparts, supra, at 8–13, do not apply to the lease at all, they likewise create no such relationship. Because the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, we do not reach the question whether the trust duty was money mandating. Thus, neither the Government’s “control” over coal nor common-law trust principles matter. * * * None of the sources of law cited by the Federal Circuit and relied upon by the Tribe provides any more sound a basis for its breach-of-trust lawsuit against the Federal Government than those we analyzed in Navajo I. This case is at an end. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to affirm the Court of Federal Claims’ dismissal of the Tribe’s complaint. It is so ordered. |
556.US.49 | Section 4 of the Federal Arbitration Act (FAA or Act), 9 U. S. C. §4, authorizes a United States district court to entertain a petition to compel arbitration if the court would have jurisdiction, “save for [the arbitration] agreement,” over “a suit arising out of the controversy between the parties.” Discover Bank’s servicing affiliate filed a complaint in Maryland state court to recover past-due charges from one of its credit cardholders, petitioner Vaden. Discover’s pleading presented a claim arising solely under state law. Vaden answered and counterclaimed, alleging that Discover’s finance charges, interest, and late fees violated state law. Invoking an arbitration clause in its cardholder agreement with Vaden, Discover then filed a §4 petition in Federal District Court to compel arbitration of Vaden’s counterclaims. The District Court ordered arbitration. On Vaden’s initial appeal, the Fourth Circuit remanded the case for the District Court to determine whether it had subject-matter jurisdiction over Discover’s §4 petition pursuant to 28 U. S. C. §1331, which gives federal courts jurisdiction over cases “arising under” federal law. The Fourth Circuit instructed the District Court to conduct this inquiry by “looking through” the §4 petition to the substantive controversy between the parties. With Vaden conceding that her state-law counterclaims were completely preempted by §27 of the Federal Deposit Insurance Act (FDIA), the District Court expressly held that it had federal-question jurisdiction and again ordered arbitration. The Fourth Circuit then affirmed. The Court of Appeals recognized that, in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U. S. 826, this Court held that federal-question jurisdiction depends on the contents of a well-pleaded complaint, and may not be predicated on counterclaims. It concluded, however, that the complete preemption doctrine is paramount and thus overrides the well-pleaded complaint rule. Held: A federal court may “look through” a §4 petition to determine whether it is predicated on a controversy that “arises under” federal law; in keeping with the well-pleaded complaint rule as amplified in Holmes Group, however, a federal court may not entertain a §4 petition based on the contents of a counterclaim when the whole controversy between the parties does not qualify for federal-court adjudication. Pp. 6–21. (a) Congress enacted the FAA “[t]o overcome judicial resistance to arbitration,” Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 443, and to declare “ ‘a national policy favoring arbitration’ of claims that parties contract to settle in that manner,” Preston v. Ferrer, 552 U. S. ___, ___. To that end, §2 makes arbitration agreements in contracts “involving commerce” “valid, irrevocable, and enforceable,” while §4 provides for federal district court enforcement of those agreements. The “body of federal substantive law” generated by elaboration of §2 is equally binding on state and federal courts. Southland Corp. v. Keating, 465 U. S. 1, 12. However, the FAA “requir[es] [for access to a federal forum] an independent jurisdictional basis” over the parties’ dispute. Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U. S. ___, ___. Under the well-pleaded complaint rule, a suit “arises under” federal law for 28 U. S. C. §1331 purposes “only when the plaintiff’s statement of his own cause of action shows that it is based upon [federal law].” Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152. Federal jurisdiction cannot be predicated on an actual or anticipated defense, ibid., or rest upon an actual or anticipated counterclaim, Holmes Group, 535 U. S. 826. A complaint purporting to rest on state law can be recharacterized as one “arising under” federal law if the law governing the complaint is exclusively federal, see Beneficial Nat. Bank v. Anderson, 539 U. S. 1, 8, but a state-law-based counterclaim, even if similarly susceptible to recharacterization, remains nonremovable. Pp. 6–11. (b) FAA §4’s text drives the conclusion that a federal court should determine its jurisdiction by “looking through” a §4 petition to the parties’ underlying substantive controversy. The phrase “save for [the arbitration] agreement” indicates that the district court should assume the absence of the agreement and determine whether it “would have jurisdiction under title 28” over “the controversy between the parties,” which is most straightforwardly read to mean the “underlying dispute” between the parties. See Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 25, n. 32. Vaden’s argument that the relevant “controversy” is simply and only the parties’ discrete dispute over the arbitrability of their claims is difficult to square with §4’s language. If courts are to determine whether they would have jurisdiction “save for [the arbitration] agreement,” how can a dispute over an arbitration agreement’s existence or applicability be the controversy that counts? The Court is unpersuaded that the “save for” clause means only that the “antiquated and arcane” ouster notion no longer holds sway. To the extent that the ancient “ouster” doctrine continued to impede specific enforcement of arbitration agreements, FAA §2, the Act’s “centerpiece provision,” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 625, directly attended to the problem by commanding that an arbitration agreement is enforceable just as any other contract. Vaden’s approach also has curious practical consequences. It would permit a federal court to entertain a §4 petition only when a federal-question suit is already before the court, when the parties satisfy the requirements for diversity-of-citizenship jurisdiction, or when the dispute over arbitrability involves a maritime contract, yet would not accommodate a §4 petitioner who could file a federal-question suit in, or remove such a suit to, federal court, but has not done so. In contrast, the “look through” approach permits a §4 petitioner to ask a federal court to compel arbitration without first taking the formal step of initiating or removing a federal-question suit. Pp. 11–15. (c) Having determined that a district court should look through a §4 petition, this Court considers whether the court “would have [federal-question] jurisdiction” over “a suit arising out of the controversy” between Discover and Vaden. Because §4 does not enlarge federal-court jurisdiction, a party seeking to compel arbitration may gain such a court’s assistance only if, “save for” the agreement, the entire, actual “controversy between the parties,” as they have framed it, could be litigated in federal court. Here, the actual controversy is not amenable to federal-court adjudication. The “controversy between the parties” arose from Vaden’s “alleged debt,” a claim that plainly did not “arise under” federal law; nor did it qualify under any other head of federal-court jurisdiction. The Fourth Circuit misapprehended Holmes Group when it concluded that jurisdiction was proper because Vaden’s state-law counterclaims were completely preempted. Under the well-pleaded complaint rule, a completely preempted counterclaim remains a counterclaim, and thus does not provide a key capable of opening a federal court’s door. Vaden’s responsive counterclaims challenging the legality of Discover’s charges are merely an aspect of the whole controversy Discover and Vaden brought to state court. Whether one might hypothesize a federal-question suit involving that subsidiary disagreement is beside the point. The relevant question is whether the whole controversy is one over which the federal courts would have jurisdiction. Section 4 does not give parties license to recharacterize an existing controversy, or manufacture a new controversy, in order to obtain a federal court’s aid in compelling arbitration. It is hardly fortuitous that the controversy in this case took the shape it did. Seeking to collect a debt, Discover filed an entirely state-law-grounded complaint in state court, and Vaden chose to file responsive counterclaims. Section 4 does not invite federal courts to dream up counterfactuals when actual litigation has defined the parties’ controversy. Allowing parties to commandeer a federal court to slice off responsive pleadings for discrete arbitration while leaving the remainder of the parties’ controversy pending in state court makes scant sense. Furthermore, the presence of a threshold question whether a counterclaim alleged to be based on state law is totally preempted by federal law may complicate the §4 inquiry. Although FAA §4 does not empower a federal court to order arbitration here, Discover is not left without recourse. Because the FAA obliges both state and federal courts to honor and enforce arbitration agreements, Discover may petition Maryland’s courts for appropriate aid in enforcing the arbitration clause of its contracts with Maryland credit cardholders. Pp. 15–20. 489 F. 3d 594, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Scalia, Kennedy, Souter, and Thomas, JJ., joined. Roberts, C. J., filed an opinion concurring in part and dissenting in part, in which Stevens, Breyer, and Alito, JJ., joined. | Section 4 of the Federal Arbitration Act, 9 U. S. C. §4, authorizes a United States district court to entertain a petition to compel arbitration if the court would have jurisdiction, “save for [the arbitration] agreement,” over “a suit arising out of the controversy between the parties.” We consider in this opinion two questions concerning a district court’s subject-matter jurisdiction over a §4 petition: Should a district court, if asked to compel arbitration pursuant to §4, “look through” the petition and grant the requested relief if the court would have federal-question jurisdiction over the underlying controversy? And if the answer to that question is yes, may a district court exercise jurisdiction over a §4 petition when the petitioner’s complaint rests on state law but an actual or potential counterclaim rests on federal law? The litigation giving rise to these questions began when Discover Bank’s servicing affiliate filed a complaint in Maryland state court. Presenting a claim arising solely under state law, Discover sought to recover past-due charges from one of its credit cardholders, Betty Vaden. Vaden answered and counterclaimed, alleging that Discover’s finance charges, interest, and late fees violated state law. Invoking an arbitration clause in its cardholder agreement with Vaden, Discover then filed a §4 petition in the United States District Court for the District of Maryland to compel arbitration of Vaden’s counterclaims. The District Court had subject-matter jurisdiction over its petition, Discover maintained, because Vaden’s state-law counterclaims were completely preempted by federal banking law. The District Court agreed and ordered arbitration. Reasoning that a federal court has jurisdiction over a §4 petition if the parties’ underlying dispute presents a federal question, the Fourth Circuit eventually affirmed. We agree with the Fourth Circuit in part. A federal court may “look through” a §4 petition and order arbitration if, “save for [the arbitration] agreement,” the court would have jurisdiction over “the [substantive] controversy between the parties.” We hold, however, that the Court of Appeals misidentified the dimensions of “the controversy between the parties.” Focusing on only a slice of the parties’ entire controversy, the court seized on Vaden’s counterclaims, held them completely preempted, and on that basis affirmed the District Court’s order compelling arbitration. Lost from sight was the triggering plea—Discover’s claim for the balance due on Vaden’s account. Given that entirely state-based plea and the established rule that federal-court jurisdiction cannot be invoked on the basis of a defense or counterclaim, the whole “controversy between the parties” does not qualify for federal-court adjudication. Accordingly, we reverse the Court of Appeals’ judgment. I This case originated as a garden-variety, state-law-based contract action: Discover sued its cardholder, Vaden, in a Maryland state court to recover arrearages amounting to $10,610.74, plus interest and counsel fees.[Footnote 1] Vaden’s answer asserted usury as an affirmative defense. Vaden also filed several counterclaims, styled as class actions. Like Discover’s complaint, Vaden’s pleadings invoked only state law: Vaden asserted that Discover’s demands for finance charges, interest, and late fees violated Maryland’s credit laws. See Md. Com. Law Code Ann. §§12–506, 12–506.2 (Lexis 2005). Neither party invoked—by notice to the other or petition to the state court—the clause in the credit card agreement providing for arbitration of “any claim or dispute between [Discover and Vaden],” App. 44 (capitalization and bold typeface omitted).[Footnote 2] Faced with Vaden’s counterclaims, Discover sought federal-court aid. It petitioned the United States District Court for the District of Maryland for an order, pursuant to §4 of the Federal Arbitration Act (FAA or Act), 9 U. S. C. §4, compelling arbitration of Vaden’s counterclaims.[Footnote 3] Although those counterclaims were framed under state law, Discover urged that they were governed entirely by federal law, specifically, §27(a) of the Federal Deposit Insurance Act (FDIA), 12 U. S. C. §1831d(a). Section 27(a) prescribes the interest rates state-chartered, federally insured banks like Discover can charge, “notwithstanding any State constitution or statute which is hereby preempted.” This provision, Discover maintained, was completely preemptive, i.e., it superseded otherwise applicable Maryland law, and placed Vaden’s counterclaims under the exclusive governance of the FDIA. On that basis, Discover asserted, the District Court had authority to entertain the §4 petition pursuant to 28 U. S. C. §1331, which gives federal courts jurisdiction over cases “arising under” federal law. The District Court granted Discover’s petition, ordered arbitration, and stayed Vaden’s prosecution of her counterclaims in state court pending the outcome of arbitration. App. to Pet. for Cert. 89a–90a. On Vaden’s initial appeal, the Fourth Circuit inquired whether the District Court had federal-question jurisdiction over Discover’s §4 petition. To make that determination, the Court of Appeals instructed, the District Court should “look through” the §4 petition to the substantive controversy between the parties. 396 F. 3d 366, 369, 373 (2005). The appellate court then remanded the case for an express determination whether that controversy presented “a properly invoked federal question.” Id., at 373. On remand, Vaden “concede[d] that the FDIA completely preempts any state claims against a federally insured bank.” 409 F. Supp. 2d 632, 636 (Md. 2006). Accepting this concession, the District Court expressly held that it had federal-question jurisdiction over Discover’s §4 petition and again ordered arbitration. Id., at 634–636, 639. In this second round, the Fourth Circuit affirmed, dividing 2 to 1. 489 F. 3d 594 (2007). Recognizing that “a party may not create jurisdiction by concession,” id., at 604, n. 10, the Fourth Circuit majority conducted its own analysis of FDIA §27(a), ultimately concluding that the provision completely preempted state law and therefore governed Vaden’s counterclaims.[Footnote 4] This Court’s decision in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U. S. 826 (2002), the majority recognized, held that federal-question jurisdiction depends on the contents of a well-pleaded complaint, and may not be predicated on counterclaims. 489 F. 3d, at 600, n. 4. Nevertheless, the majority concluded, the complete preemption doctrine is paramount, “overrid[ing] such fundamental cornerstones of federal subject-matter jurisdiction as the well-pleaded complaint rule.” Ibid. (quoting 14B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3722.1, p. 511 (3d ed. 1998) (hereinafter Wright & Miller)).[Footnote 5] The dissenting judge considered Holmes Group dispositive. As §27(a) of the FDIA formed no part of Discover’s complaint, but came into the case only as a result of Vaden’s responsive pleadings, the dissent reasoned, “[t]here was no ‘properly invoked federal question’ in the underlying state case.” 489 F. 3d, at 610. We granted certiorari, 552 U. S. ___ (2008), in view of the conflict among lower federal courts on whether district courts, petitioned to order arbitration pursuant to §4 of the FAA, may “look through” the petition and examine the parties’ underlying dispute to determine whether federal-question jurisdiction exists over the §4 petition. Compare Wisconsin v. Ho-Chunk Nation, 463 F. 3d 655, 659 (CA7 2006) (in determining jurisdiction over a §4 petition, the court may not “look through” the petition and focus on the underlying dispute); Smith Barney, Inc. v. Sarver, 108 F. 3d 92, 94 (CA6 1997) (same); Westmoreland Capital Corp. v. Findlay, 100 F. 3d 263, 267–269 (CA2 1996) (same); and Prudential-Bache Securities, Inc. v. Fitch, 966 F. 2d 981, 986–989 (CA5 1992) (same), with Community State Bank v. Strong, 485 F. 3d 597, 605–606 (court may “look through” the petition and train on the underlying dispute), vacated, reh’g en banc granted, 508 F. 3d 576 (CA11 2007);[Footnote 6] and 396 F. 3d, at 369–370 (case below) (same). As this case shows, if the underlying dispute is the proper focus of a §4 petition, a further question may arise. The dispute brought to state court by Discover concerned Vaden’s failure to pay over $10,000 in past-due credit card charges. In support of that complaint, Discover invoked no federal law. When Vaden answered and counterclaimed, however, Discover asserted that federal law, specifically §27(a) of the FDIA, displaced the state laws on which Vaden relied. What counts as the underlying dispute in a case so postured? May Discover invoke §4, not on the basis of its own complaint, which had no federal element, but on the basis of counterclaims asserted by Vaden? To answer these questions, we first review relevant provisions of the FAA, 9 U. S. C. §1 et seq., and controlling tenets of federal jurisdiction. II In 1925, Congress enacted the FAA “[t]o overcome judicial resistance to arbitration,” Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 443 (2006), and to declare “ ‘a national policy favoring arbitration’ of claims that parties contract to settle in that manner,” Preston v. Ferrer, 552 U. S. ___, ___ (2008) (slip op., at 5) (quoting Southland Corp. v. Keating, 465 U. S. 1, 10 (1984)). To that end, §2 provides that arbitration agreements in contracts “involving commerce” are “valid, irrevocable, and enforceable.” 9 U. S. C. §2.[Footnote 7] Section 4—the section at issue here—provides for United States district court enforcement of arbitration agreements. Petitions to compel arbitration, §4 states, may be brought before “any United States district court which, save for such agreement, would have jurisdiction under title 28 … of the subject matter of a suit arising out of the controversy between the parties.” See supra, at 3, n. 3.[Footnote 8] The “body of federal substantive law” generated by elaboration of FAA §2 is equally binding on state and federal courts. Southland, 465 U. S., at 12 (quoting Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 25, n. 32 (1983)); accord Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 271–272 (1995). “As for jurisdiction over controversies touching arbitration,” however, the Act is “something of an anomaly” in the realm of federal legislation: It “bestow[s] no federal jurisdiction but rather requir[es] [for access to a federal forum] an independent jurisdictional basis” over the parties’ dispute. Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U. S. ___, ___ (2008) (slip op., at 4) (quoting Moses H. Cone, 460 U. S., at 25, n. 32).[Footnote 9] Given the substantive supremacy of the FAA, but the Act’s nonjurisdictional cast, state courts have a prominent role to play as enforcers of agreements to arbitrate. See Southland, 465 U. S., at 15; Moses H. Cone, 460 U. S., at 25, and n. 32. The independent jurisdictional basis Discover relies upon in this case is 28 U. S. C. §1331, which vests in federal district courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” Under the longstanding well-pleaded complaint rule, however, a suit “arises under” federal law “only when the plaintiff’s statement of his own cause of action shows that it is based upon [federal law].” Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 (1908). Federal jurisdiction cannot be predicated on an actual or anticipated defense: “It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of [federal law].” Ibid. Nor can federal jurisdiction rest upon an actual or anticipated counterclaim. We so ruled, emphatically, in Holmes Group, 535 U. S. 826. Without dissent, the Court held in Holmes Group that a federal counterclaim, even when compulsory, does not establish “arising under” jurisdiction.[Footnote 10] Adhering assiduously to the well-pleaded complaint rule, the Court observed, inter alia, that it would undermine the clarity and simplicity of that rule if federal courts were obliged to consider the contents not only of the complaint but also of responsive pleadings in determining whether a case “arises under” federal law. Id., at 832. See also id., at 830 (“[T]he well-pleaded complaint rule, properly understood, [does not] allo[w] a counterclaim to serve as the basis for a district court’s ‘arising under’ jurisdiction.”); Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 10–11, and n. 9 (1983) (“The well-pleaded complaint rule applies to the original jurisdiction of the district courts as well as to their removal jurisdiction.”).[Footnote 11] A complaint purporting to rest on state law, we have recognized, can be recharacterized as one “arising under” federal law if the law governing the complaint is exclusively federal. See Beneficial Nat. Bank v. Anderson, 539 U. S. 1, 8 (2003). Under this so-called “complete preemption doctrine,” a plaintiff’s “state cause of action [may be recast] as a federal claim for relief, making [its] removal [by the defendant] proper on the basis of federal question jurisdiction.” 14B Wright & Miller §3722.1, p. 511.[Footnote 12] A state-law-based counterclaim, however, even if similarly susceptible to recharacterization, would remain nonremovable. Under our precedent construing §1331, as just explained, counterclaims, even if they rely exclusively on federal substantive law, do not qualify a case for federal-court cognizance. III Attending to the language of the FAA and the above-described jurisdictional tenets, we approve the “look through” approach to this extent: A federal court may “look through” a §4 petition to determine whether it is predicated on an action that “arises under” federal law; in keeping with the well-pleaded complaint rule as amplified in Holmes Group, however, a federal court may not entertain a §4 petition based on the contents, actual or hypothetical, of a counterclaim. A The text of §4 drives our conclusion that a federal court should determine its jurisdiction by “looking through” a §4 petition to the parties’ underlying substantive controversy. We reiterate §4’s relevant instruction: When one party seeks arbitration pursuant to a written agreement and the other resists, the proponent of arbitration may petition for an order compelling arbitration in “any United States district court which, save for [the arbitration] agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties.” 9 U. S. C. §4. The phrase “save for [the arbitration] agreement” indicates that the district court should assume the absence of the arbitration agreement and determine whether it “would have jurisdiction under title 28” without it. See 396 F. 3d, at 369, 372 (case below). Jurisdiction over what? The text of §4 refers us to “the controversy between the parties.” That phrase, the Fourth Circuit said, and we agree, is most straightforwardly read to mean the “substantive conflict between the parties.” Id., at 370. See also Moses H. Cone, 460 U. S., at 25, n. 32 (noting in dicta that, to entertain a §4 petition, a federal court must have jurisdiction over the “underlying dispute”).[Footnote 13] The majority of Courts of Appeals to address the question, we acknowledge, have rejected the “look through” approach entirely, as Vaden asks us to do here. See supra, at 5–6. The relevant “controversy between the parties,” Vaden insists, is simply and only the parties’ discrete dispute over the arbitrability of their claims. She relies, quite reasonably, on the fact that a §4 petition to compel arbitration seeks no adjudication on the merits of the underlying controversy. Indeed, its very purpose is to have an arbitrator, rather than a court, resolve the merits. A §4 petition, Vaden observes, is essentially a plea for specific performance of an agreement to arbitrate, and it thus presents principally contractual questions: Did the parties validly agree to arbitrate? What issues does their agreement encompass? Has one party dishonored the agreement? Vaden’s argument, though reasonable, is difficult to square with the statutory language. Section 4 directs courts to determine whether they would have jurisdiction “save for [the arbitration] agreement.” How, then, can a dispute over the existence or applicability of an arbitration agreement be the controversy that counts? The “save for” clause, courts espousing the view embraced by Vaden respond, means only that the “antiquated and arcane” ouster notion no longer holds sway. Drexel Burnham Lambert, Inc. v. Valenzuela Bock, 696 F. Supp. 957, 961 (SDNY 1988). Adherents to this “ouster” explanation of §4’s language recall that courts traditionally viewed arbitration clauses as unworthy attempts to “oust” them of jurisdiction; accordingly, to guard against encroachment on their domain, they refused to order specific enforcement of agreements to arbitrate. See H. R. Rep. No. 96, 68th Cong., 1st Sess., 1–2 (1924) (discussed in Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 219–220, and n. 6 (1985)). The “save for” clause, as comprehended by proponents of the “ouster” explanation, was designed to ensure that courts would no longer consider themselves ousted of jurisdiction and would therefore specifically enforce arbitration agreements. See, e.g., Westmoreland, 100 F. 3d, at 267–268, and n. 6 (adopting the “ouster” interpretation advanced in Drexel Burnham Lambert, 696 F. Supp., at 961–963); Strong, 485 F. 3d, at 631 (Marcus, J., specially concurring) (reading §4’s “save for” clause “as instructing the court to ‘set aside’ not the arbitration agreement … , but merely the previous judicial hostility to arbitration agreements”). We are not persuaded that the “ouster” explanation of §4’s “save for” clause carries the day. To the extent that the ancient “ouster” doctrine continued to impede specific enforcement of arbitration agreements, §2 of the FAA, the Act’s “centerpiece provision,” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 625 (1985), directly attended to the problem. Covered agreements to arbitrate, §2 declares, are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Having commanded that an arbitration agreement is enforceable just as any other contract, Congress had no cause to repeat the point. See 1 I. MacNeil, R. Speidel, & T. Stipanowich, Federal Arbitration Law §9.2.3.3, p. 9:18 (1995) (hereinafter MacNeil) (“Th[e] effort to connect the ‘save for’ language to the ancient problem of ‘ouster of jurisdiction’ is imaginative, but utterly unfounded and historically inaccurate.” (footnote omitted)).[Footnote 14] In addition to its textual implausibility, the approach Vaden advocates has curious practical consequences. It would permit a federal court to entertain a §4 petition only when a federal-question suit is already before the court, when the parties satisfy the requirements for diversity-of-citizenship jurisdiction, or when the dispute over arbitrability involves a maritime contract. See, e.g., Westmoreland, 100 F. 3d, at 268–269; 1 MacNeil §9.2.3.1, pp. 9:12–9:13 (when a federal-question suit has been filed in or removed to federal court, the court “may order arbitration under FAA §4”).[Footnote 15] Vaden’s approach would not accommodate a §4 petitioner who could file a federal-question suit in (or remove such a suit to) federal court, but who has not done so. In contrast, when the parties’ underlying dispute arises under federal law, the “look through” approach permits a §4 petitioner to ask a federal court to compel arbitration without first taking the formal step of initiating or removing a federal-question suit—that is, without seeking federal adjudication of the very questions it wants to arbitrate rather than litigate. See 1 id., §9.2.3.3, p. 9:21 (explaining that the approach Vaden advocates “creates a totally artificial distinction” based on whether a dispute is subject to pending federal litigation). B Having determined that a district court should “look through” a §4 petition, we now consider whether the court “would have [federal-question] jurisdiction” over “a suit arising out of the controversy” between Discover and Vaden. 9 U. S. C. §4. As explained above, §4 of the FAA does not enlarge federal-court jurisdiction; rather, it confines federal courts to the jurisdiction they would have “save for [the arbitration] agreement.” See supra, at 7–8. Mindful of that limitation, we read §4 to convey that a party seeking to compel arbitration may gain a federal court’s assistance only if, “save for” the agreement, the entire, actual “controversy between the parties,” as they have framed it, could be litigated in federal court. We conclude that the parties’ actual controversy, here precipitated by Discover’s state-court suit for the balance due on Vaden’s account, is not amenable to federal-court adjudication. Consequently, the §4 petition Discover filed in the United States District Court for the District of Maryland must be dismissed. As the Fourth Circuit initially stated, the “controversy between the parties” arose from the “alleged debt” Vaden owed to Discover. 396 F. 3d, at 370. Discover’s complaint in Maryland state court plainly did not “arise under” federal law, nor did it qualify under any other head of federal-court jurisdiction. See supra, at 3, and n. 1. In holding that Discover properly invoked federal-court jurisdiction, the Fourth Circuit looked beyond Discover’s complaint and homed in on Vaden’s state-law-based defense and counterclaims. Those responsive pleadings, Discover alleged, and the Fourth Circuit determined, were completely preempted by the FDIA. See supra, at 3–4. The Fourth Circuit, however, misapprehended our decision in Holmes Group. Under the well-pleaded complaint rule, a completely preempted counterclaim remains a counterclaim and thus does not provide a key capable of opening a federal court’s door. See supra, at 8–11. See also Taylor v. Anderson, 234 U. S. 74, 75–76 (1914) (“[W]hether a case is one arising under [federal law] . . . must be determined from what necessarily appears in the plaintiff’s statement of his own claim . . . , unaided by anything alleged in anticipation o[r] avoidance of defenses which it is thought the defendant may interpose.”). Neither Discover nor The Chief Justice, concurring in part and dissenting in part (hereinafter dissent), defends the Fourth Circuit’s reasoning. Instead, the dissent insists that a federal court “would have” jurisdiction over “the controversy Discover seeks to arbitrate”—namely, “whether ‘Discover Bank charged illegal finance charges, interest and late fees.’ ” Post, at 1 (quoting App. 30). The dissent hypothesizes two federal suits that might arise from this purported controversy: “an action by Vaden asserting that the charges violate the FDIA, or one by Discover seeking a declaratory judgment that they do not.” Post, at 2. There is a fundamental flaw in the dissent’s analysis: In lieu of focusing on the whole controversy as framed by the parties, the dissent hypothesizes discrete controversies of its own design. As the parties’ state-court filings reflect, the originating controversy here concerns Vaden’s alleged debt to Discover. Vaden’s responsive counterclaims challenging the legality of Discover’s charges are a discrete aspect of the whole controversy Discover and Vaden brought to state court. Whether one might imagine a federal-question suit involving the parties’ disagreement over Discover’s charges is beside the point. The relevant question is whether the whole controversy between the parties—not just a piece broken off from that controversy—is one over which the federal courts would have jurisdiction. The dissent would have us treat a §4 petitioner’s statement of the issues to be arbitrated as the relevant controversy even when that statement does not convey the full flavor of the parties’ entire dispute. Artful dodges by a §4 petitioner should not divert us from recognizing the actual dimensions of that controversy. The text of §4 instructs federal courts to determine whether they would have jurisdiction over “a suit arising out of the controversy between the parties”; it does not give §4 petitioners license to recharacterize an existing controversy, or manufacture a new controversy, in an effort to obtain a federal court’s aid in compelling arbitration.[Footnote 16] Viewed contextually and straightforwardly, it is hardly “fortuit[ous]” that the controversy in this case took the shape it did. Cf. post, at 2. Seeking to collect a debt, Discover filed an entirely state-law-grounded complaint in state court, and Vaden chose to file responsive counterclaims. Perhaps events could have unfolded differently, but §4 does not invite federal courts to dream up counterfactuals when actual litigation has defined the parties’ controversy.[Footnote 17] As the dissent would have it, parties could commandeer a federal court to slice off responsive pleadings for arbitration while leaving the remainder of the parties’ controversy pending in state court. That seems a bizarre way to proceed. In this case, Vaden’s counterclaims would be sent to arbitration while the complaint to which they are addressed—Discover’s state-law-grounded debt-collection action—would remain pending in a Maryland court. When the controversy between the parties is not one over which a federal court would have jurisdiction, it makes scant sense to allow one of the parties to enlist a federal court to disturb the state-court proceedings by carving out issues for separate resolution.[Footnote 18] Furthermore, the presence of a threshold question whether a counterclaim alleged to be based on state law is totally preempted by federal law may complicate the dissent’s §4 inquiry. This case is illustrative. The dissent relates that Vaden eventually conceded that FDIA §27(a), not Maryland law, governs the charges and fees Discover may impose. Post, at 1–2. But because the issue is jurisdictional, Vaden’s concession is not determinative. See supra, at 4–5, and n. 4. The dissent simply glides by the preemption issue, devoting no attention to it, although this Court has not yet resolved the matter. In sum, §4 of the FAA instructs district courts asked to compel arbitration to inquire whether the court would have jurisdiction, “save for [the arbitration] agreement,” over “a suit arising out of the controversy between the parties.” We read that prescription in light of the well-pleaded complaint rule and the corollary rule that federal jurisdiction cannot be invoked on the basis of a defense or counterclaim. Parties may not circumvent those rules by asking a federal court to order arbitration of the portion of a controversy that implicates federal law when the court would not have federal-question jurisdiction over the controversy as a whole. It does not suffice to show that a federal question lurks somewhere inside the parties’ controversy, or that a defense or counterclaim would arise under federal law. Because the controversy between Discover and Vaden, properly perceived, is not one qualifying for federal-court adjudication, §4 of the FAA does not empower a federal court to order arbitration of that controversy, in whole or in part.[Footnote 19] Discover, we note, is not left without recourse. Under the FAA, state courts as well as federal courts are obliged to honor and enforce agreements to arbitrate. Southland, 465 U. S., at 12; Moses H. Cone, 460 U. S., at 25, 26, n. 34. See also supra, at 7–8. Discover may therefore petition a Maryland court for aid in enforcing the arbitration clause of its contracts with Maryland cardholders. True, Maryland’s high court has held that §§3 and 4 of the FAA prescribe federal-court procedures and, therefore, do not bind the state courts.[Footnote 20] But Discover scarcely lacks an available state remedy. Section 2 of the FAA, which does bind the state courts, renders agreements to arbitrate “valid, irrevocable, and enforceable.” This provision “carries with it duties [to credit and enforce arbitration agreements] indistinguishable from those imposed on federal courts by FAA §§3 and 4.” 1 MacNeil §10.8.1, p. 10:77. Notably, Maryland, like many other States, provides a statutory remedy nearly identical to §4. See Md. Cts. & Jud. Proc. Code Ann. §3–207 (Lexis 2006) (“If a party to an arbitration agreement . . . refuses to arbitrate, the other party may file a petition with a court to order arbitration. . . . If the court determines that the agreement exists, it shall order arbitration. Otherwise it shall deny the petition.”). See also Walther v. Sovereign Bank, 386 Md. 412, 424, 872 A. 2d 735, 742 (2005) (“The Maryland Arbitration Act has been called the ‘State analogue … to the Federal Arbitration Act.’ The same policy favoring enforcement of arbitration agreements is present in both our own and the federal acts.” (internal quotation marks and citation omitted)). Even before it filed its debt-recovery action in a Maryland state court, Discover could have sought from that court an order compelling arbitration of any agreement-related dispute between itself and cardholder Vaden. At no time was federal-court intervention needed to place the controversy between the parties before an arbitrator. * * * For the reasons stated, the District Court lacked jurisdiction to entertain Discover’s §4 petition to compel arbitration. The judgment of the Court of Appeals affirming the District Court’s order is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Discover apparently had no access to a federal forum for its suit against Vaden on the basis of diversity-of-citizenship jurisdiction. Under that head of federal-court jurisdiction, the amount in controversy must “excee[d] … $75,000.” 28 U. S. C. §1332(a). Footnote 2 Vaden’s preference for court adjudication is unsurprising. The arbitration clause, framed by Discover, prohibited presentation of “any claims as a representative or member of a class.” App. 45 (capitalization omitted). Footnote 3 Section 4 reads, in relevant part: “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 which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.” 9 U. S. C. §4. Footnote 4 Our disposition of this case makes it unnecessary to take up the question of §27(a)’s preemptive force generally or in the particular context of Discover’s finance charges. We therefore express no opinion on those issues. Cf. Beneficial Nat. Bank v. Anderson, 539 U. S. 1, 9–10 (2003) (holding that the National Bank Act, 12 U. S. C. §§85, 86, completely preempts state-law usury claims against national banks). Footnote 5 But see 489 F. 3d 594, 612 (CA4 2007) (dissenting opinion) (observing that the passage from Wright & Miller referenced by the majority “makes clear that the doctrine of complete preemption is exclusively focused on claims in a plaintiff’s complaint”). Footnote 6 In Community State Bank v. Strong, 485 F. 3d 597, 605–606 (CA11 2007), the Court of Appeals approved the “look through” approach as advanced in circuit precedent. But Judge Marcus, who authored the court’s unanimous opinion, wrote a special concurrence, noting that, were he writing on a clean slate, he would reject the “look through” approach. Footnote 7 Section 2 reads, in full: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. Footnote 8 A companion provision, §3, provides for stays of litigation pending arbitration. It reads: “If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” 9 U. S. C. §3. Footnote 9 Chapter 2 of the FAA, not implicated here, does expressly grant federal courts jurisdiction to hear actions seeking to enforce an agreement or award falling under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. See 9 U. S. C. §203 (“An action or proceeding falling under the Convention shall be deemed to arise under the laws and treaties of the United States. The district courts of the United States … shall have original jurisdiction over such an action or proceeding … .”). FAA §205 goes further and overrides the well-pleaded complaint rule pro tanto. 9 U. S. C. §205 (“The procedure for removal of causes otherwise provided by law shall apply, except that the ground for removal provided in this section need not appear on the face of the complaint but may be shown in the petition for removal.”). As Vaden points out, these sections demonstrate that “when Congress wants to expand [federal-court] jurisdiction, it knows how to do so clearly and unequivocally.” Brief for Petitioner 38. Footnote 10 Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U. S. 826 (2002), involved 28 U. S. C. §1295(a)(1), which vests in the Federal Circuit exclusive jurisdiction over “an appeal from a final decision of a district court … if the jurisdiction of that court was based, in whole or in part, on [28 U. S. C. §]1338.” Section 1338(a), in turn, confers on district courts “[exclusive] original jurisdiction of any civil action arising under any Act of Congress relating to patents.” The plaintiff’s complaint in Holmes Group presented a federal claim, but not one relating to patents; the defendant counterclaimed for patent infringement. The Court ruled that the case did not “aris[e] under” the patent laws by virtue of the patent counterclaim, and therefore held that the Federal Circuit lacked appellate jurisdiction under §1295(a)(1). See 535 U. S., at 830–832. In reaching its decision in Holmes Group, the Court first attributed to the words “arising under” in §1338(a) the same meaning those words have in §1331. See id., at 829–830. It then reasoned that a counterclaim asserted in a responsive pleading cannot provide the basis for “arising under” jurisdiction consistently with the well-pleaded complaint rule. See id., at 830–832. Footnote 11 The Court noted in Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 10–11, n. 9 (1983), and in Holmes Group, 535 U. S., at 831, that commentators have repeatedly suggested Judicial Code revisions under which responsive pleadings that may be dispositive would count in determining whether a case “arises under” federal law. See American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts §1312, pp. 188–194 (1969) (discussed in 14B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3722, pp. 505–507 (3d ed. 1998) (hereinafter Wright & Miller)); cf. Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob. 216, 233–234 (1948). Congress, however, has not responded to these suggestions. Footnote 12 Recharacterization of an asserted state-law claim as in fact a claim arising exclusively under federal law, and therefore removable on the defendant’s petition, of course does not mean that the claim cannot remain in state court. There is nothing inappropriate or exceptional, Discover acknowledges, about a state court’s entertaining, and applying federal law to, completely preempted claims or counterclaims. See Tr. of Oral Arg. 35. Footnote 13 The parties’ underlying dispute may or may not be the subject of pending litigation. This explains §4’s use of the conditional “would” and the indefinite “a suit.” A party often files a §4 petition to compel arbitration precisely because it does not want to bring suit and litigate in court. Sometimes, however, a §4 petition is filed after litigation has commenced. The party seeking to compel arbitration in such cases is typically the defendant, who claims to be aggrieved by the plaintiff’s attempt to litigate rather than arbitrate. This case involves the relatively unusual situation in which the party that initiated litigation of the underlying dispute is also the party seeking to compel arbitration. Footnote 14 Because “the ouster problem was just as great under state law as it was under federal,” the absence of “save for” language in contemporaneous state arbitration acts bolsters our conclusion that §4 was not devised to dislodge the common-law ouster doctrine. 1 I. MacNeil, R. Speidel, & T. Stipanowich, Federal Arbitration Law §9.2.3.3, p. 9:18 (1995). See also 396 F. 3d 366, 369–370, n. 2 (CA4 2005) (case below). Footnote 15 Specific jurisdiction-granting provisions may also authorize a federal court to entertain a petition to compel arbitration. See, e.g., 9 U. S. C. §§203, 205 (providing for federal-court jurisdiction over arbitration agreements covered by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards). Footnote 16 Noting that the FAA sometimes uses “controversy” to refer to the dispute to be arbitrated, the dissent insists that it must have the same meaning in §4. Cf. post, at 2–3. But §4 does not ask a district court to determine whether it would have jurisdiction over “the controversy the §4 petitioner seeks to arbitrate”; it asks whether the court would have jurisdiction over “the controversy between the parties.” Here, the issue Discover seeks to arbitrate is undeniably only a fraction of the controversy between the parties. We decline to rewrite the statute to ignore this reality. Moreover, our reading of §4 fully accords with the statute’s subjunctive construction (“would have jurisdiction”) and its reference to “a suit.” Cf. post, at 5. Section 4, we recognize, enables a party to seek an order compelling arbitration even when the parties’ controversy is not the subject of pending litigation. See supra, at 12, n. 13, 14–15. Whether or not the controversy between the parties is embodied in an existing suit, the relevant question remains the same: Would a federal court have jurisdiction over an action arising out of that full-bodied controversy? Footnote 17Our approach, the dissent asserts, would produce “inconsistent results” based “upon the happenstance of how state-court litigation has unfolded.” Post, at 5, 6. Of course, a party’s ability to gain adjudication of a federal question in federal court often depends on how that question happens to have been presented, and the dissent’s argument is little more than a veiled criticism of Holmes Group and the well-pleaded complaint rule. When a litigant files a state-law claim in state court, and her opponent parries with a federal counterclaim, the action is not removable to federal court, even though it would have been removable had the order of filings been reversed. See Holmes Group, 535 U. S., at 831–832. True, the outcome in this case may well have been different had Vaden initiated an FDIA claim about the legality of Discover’s charges. Because that controversy likely would have been amenable to adjudication in a federal forum, Discover could have asked a federal court to send the parties to arbitration. But that is not what occurred here. Vaden did not invoke the FDIA. Indeed, she framed her counterclaims under state law and clearly preferred the Maryland forum. The dissent’s hypothesizing about the case that might have been brought does not provide a basis for federal-court jurisdiction. Footnote 18 The dissent observes, post, at 4, that our rule might enable a party to request a federal court’s aid in compelling arbitration of a state-law counterclaim that might otherwise be adjudicated in state court. But if a federal court would have jurisdiction over the parties’ whole controversy, we see nothing anomalous about the court’s ordering arbitration of a state-law claim constituting part of that controversy. Federal courts routinely exercise supplemental jurisdiction over state-law claims. See 28 U. S. C. §1367. Footnote 19 This Court’s declaratory judgment jurisprudence in no way undercuts our analysis. Cf. post, at 2, 7. Discover, the dissent implies, could have brought suit in federal court seeking a declaration that its charges conform to federal law. Again, the dissent’s position rests on its misconception of “the controversy between the parties.” Like §4 itself, the Declaratory Judgment Act does not enlarge the jurisdiction of the federal courts; it is “procedural only.” Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240 (1937). Thus, even in a declaratory judgment action, a federal court could not entertain Discover’s state-law debt-collection claim. Cf. 10B Wright & Miller §2758, pp. 519–521 (“The Declaratory Judgment Act was not intended to enable a party to obtain a change of tribunal from a state to federal court, and it is not the function of the federal declaratory action merely to anticipate a defense that otherwise could be presented in a state action.” (footnote omitted)). Footnote 20This Court has not decided whether §§3 and 4 apply to proceedings in state courts, see Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 477, n. 6 (1989), and we do not do so here. |
555.US.2008_07-854 | Respondent Goldstein was released from a California prison after he filed a successful federal habeas petition alleging that his murder conviction depended, in critical part, on the false testimony of a jailhouse informant (Fink), who had received reduced sentences for providing prosecutors with favorable testimony in other cases; that prosecutors knew, but failed to give his attorney, this potential impeachment information; and that, among other things, that failure had led to his erroneous conviction. Once released, Goldstein filed this suit under 42 U. S. C. §1983, asserting the prosecution violated its constitutional duty to communicate impeachment information, see Giglio v. United States, 405 U. S. 150, 154, due to the failure of petitioners, supervisory prosecutors, to properly train or supervise prosecutors or to establish an information system containing potential impeachment material about informants. Claiming absolute immunity, petitioners asked the District Court to dismiss the complaint, but the court declined, finding that the conduct was “administrative,” not “prosecutorial,” and hence fell outside the scope of an absolute immunity claim. The Ninth Circuit, on interlocutory appeal, affirmed. Held: Petitioners are entitled to absolute immunity in respect to Goldstein’s supervision, training, and information-system management claims. Pp. 3–12. (a) Prosecutors are absolutely immune from liability in §1983 suits brought against prosecutorial actions that are “intimately associated with the judicial phase of the criminal process,” Imbler v. Pachtman, 424 U. S. 409, 428, 430, because of “concern that harassment by unfounded litigation” could both “cause a deflection of the prosecutor’s energies from his public duties” and lead him to “shade his decisions instead of exercising the independence of judgment required by his public trust,” id., at 423. However, absolute immunity may not apply when a prosecutor is not acting as “an officer of the court,” but is instead engaged in, say, investigative or administrative tasks. Id., at 431, n. 33. To decide whether absolute immunity attaches to a particular prosecutorial activity, one must take account of Imbler’s “functional” considerations. The fact that one constitutional duty in Imbler was positive (the duty to supply “information relevant to the defense”) rather than negative (the duty not to “use … perjured testimony”) was not critical to the finding of absolute immunity. Pp. 3–6. (b) Although Goldstein challenges administrative procedures, they are procedures that are directly connected with a trial’s conduct. A prosecutor’s error in a specific criminal trial constitutes an essential element of the plaintiff’s claim. The obligations here are thus unlike administrative duties concerning, e.g., workplace hiring. Moreover, they necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in training, supervision, or information-system management. Given these features, absolute immunity must follow. Pp. 6–12. (1) Had Goldstein brought a suit directly attacking supervisory prosecutors’ actions related to an individual trial, instead of one involving administration, all the prosecutors would have enjoyed absolute immunity under Imbler. Their behavior, individually or separately, would have involved “[p]reparation … for … trial,” 424 U. S., at 431, n. 33, and would have been “intimately associated with the judicial phase of the criminal process,” id., at 430. The only difference between Imbler and the hypothetical, i.e., that a supervisor or colleague might be liable instead of the trial prosecutor, is not critical. Pp. 7–8. (2) Just as supervisory prosecutors are immune in a suit directly attacking their actions in an individual trial, they are immune here. The fact that the office’s general supervision and training methods are at issue is not a critical difference for present purposes. The relevant management tasks concern how and when to make impeachment information available at trial, and, thus, are directly connected with a prosecutor’s basic trial advocacy duties. In terms of Imbler’s functional concerns, a suit claiming that a supervisor made a mistake directly related to a particular trial and one claiming that a supervisor trained and supervised inadequately seem very much alike. The type of “faulty training” claim here rests in part on a consequent error by an individual prosecutor in the midst of trial. If, as Imbler says, the threat of damages liability for such an error could lead a trial prosecutor to take account of that risk when making trial-related decisions, so, too, could the threat of more widespread liability throughout the office lead both that prosecutor and other office prosecutors to take account of such a risk. Because better training or supervision might prevent most prosecutorial errors at trial, permission to bring suit here would grant criminal defendants permission to bring claims for other trial-related training or supervisory failings. Further, such suits could “pose substantial danger of liability even to the honest prosecutor.” Imbler, 425 U. S., at 425. And defending prosecutorial decisions, often years later, could impose “unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.” Id., at 425–426. Permitting this suit to go forward would also create practical anomalies. A trial prosecutor would remain immune for intentional misconduct, while her supervisor might be liable for negligent training or supervision. And the ease with which a plaintiff could restyle a complaint charging trial failure to one charging a training or supervision failure would eviscerate Imbler. Pp. 8–11. (3) The differences between an information management system and training or supervision do not require a different outcome, for the critical element of any information system is the information it contains. Deciding what to include and what not to include is little different from making similar decisions regarding training, for it requires knowledge of the law. Moreover, were this claim allowed, a court would have to review the office’s legal judgments, not simply about whether to have an information system but also about what kind of system is appropriate, and whether an appropriate system would have included Giglio-related information about one particular kind of informant. Such decisions—whether made before or during trial—are “intimately associated with the judicial phase of the criminal process,” Imbler, supra, at 430, and all Imbler’s functional considerations apply. Pp. 11–12. 481 F. 3d 1170, reversed and remanded. Breyer, J., delivered the opinion for a unanimous Court. | We here consider the scope of a prosecutor’s absolute immunity from claims asserted under Rev. Stat. §1979, 42 U. S. C. §1983. See Imbler v. Pachtman, 424 U. S. 409 (1976). We ask whether that immunity extends to claims that the prosecution failed to disclose impeachment material, see Giglio v. United States, 405 U. S. 150 (1972), due to: (1) a failure properly to train prosecutors, (2) a failure properly to supervise prosecutors, or (3) a failure to establish an information system containing potential impeachment material about informants. We conclude that a prosecutor’s absolute immunity extends to all these claims. I In 1998, respondent Thomas Goldstein (then a prisoner) filed a habeas corpus action in the Federal District Court for the Central District of California. He claimed that in 1980 he was convicted of murder; that his conviction depended in critical part upon the testimony of Edward Floyd Fink, a jailhouse informant; that Fink’s testimony was unreliable, indeed false; that Fink had previously received reduced sentences for providing prosecutors with favorable testimony in other cases; that at least some prosecutors in the Los Angeles County District Attorney’s Office knew about the favorable treatment; that the office had not provided Goldstein’s attorney with that information; and that, among other things, the prosecution’s failure to provide Goldstein’s attorney with this potential impeachment information had led to his erroneous conviction. Goldstein v. Long Beach, 481 F. 3d 1170, 1171–1172 (CA9 2007). After an evidentiary hearing the District Court agreed with Goldstein that Fink had not been truthful and that if the prosecution had told Goldstein’s lawyer that Fink had received prior rewards in return for favorable testimony it might have made a difference. The court ordered the State either to grant Goldstein a new trial or to release him. The Court of Appeals affirmed the District Court’s determination. And the State decided that, rather than retry Goldstein (who had already served 24 years of his sentence), it would release him. App. 54–55, 59–60. Upon his release Goldstein filed this §1983 action against petitioners, the former Los Angeles County district attorney and chief deputy district attorney. Goldstein’s complaint (which for present purposes we take as accurate) asserts in relevant part that the prosecution’s failure to communicate to his attorney the facts about Fink’s earlier testimony-related rewards violated the prosecution’s constitutional duty to “insure communication of all relevant information on each case [including agreements made with informants] to every lawyer who deals with it.” Giglio, supra, at 154. Moreover, it alleges that this failure resulted from the failure of petitioners (the office’s chief supervisory attorneys) adequately to train and to supervise the prosecutors who worked for them as well as their failure to establish an information system about informants. And it asks for damages based upon these training, supervision, and information-system related failings. Petitioners, claiming absolute immunity from such a §1983 action, asked the District Court to dismiss the complaint. See Imbler, supra. The District Court denied the motion to dismiss on the ground that the conduct asserted amounted to “administrative,” not “prosecutorial,” conduct; hence it fell outside the scope of the prosecutor’s absolute immunity to §1983 claims. The Ninth Circuit, considering petitioners’ claim on an interlocutory appeal, affirmed the District Court’s “no immunity” determination. We now review the Ninth Circuit’s decision, and we reverse its determination. II A half-century ago Chief Judge Learned Hand explained that a prosecutor’s absolute immunity reflects “a balance” of “evils.” Gregoire v. Biddle, 177 F. 2d 579, 581 (CA2 1949). “[I]t has been thought in the end better,” he said, “to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Ibid. In Imbler, supra, this Court considered prosecutorial actions that are “intimately associated with the judicial phase of the criminal process.” Id., at 430. And, referring to Chief Judge Hand’s views, it held that prosecutors are absolutely immune from liability in §1983 lawsuits brought under such circumstances. Id., at 428. The §1983 action at issue was that of a prisoner freed on a writ of habeas corpus who subsequently sought damages from his former prosecutor. His action, like the action now before us, tracked the claims that a federal court had found valid when granting his habeas corpus petition. In particular, the prisoner claimed that the trial prosecutor had permitted a fingerprint expert to give false testimony, that the prosecutor was responsible for the expert’s having suppressed important evidence, and that the prosecutor had introduced a misleading artist’s sketch into evidence. Id., at 416. In concluding that the prosecutor was absolutely immune, the Court pointed out that legislators have long “enjoyed absolute immunity for their official actions,” id., at 417; that the common law granted immunity to “judges and … jurors acting within the scope of their duties,” id., at 423, and that the law had also granted prosecutors absolute immunity from common-law tort actions, say, those underlying a “decision to initiate a prosecution,” id., at 421. The Court then held that the “same considerations of public policy that underlie” a prosecutor’s common-law immunity “countenance absolute immunity under §1983.” Id., at 424. Those considerations, the Court said, arise out of the general common-law “concern that harassment by unfounded litigation” could both “cause a deflection of the prosecutor’s energies from his public duties” and also lead the prosecutor to “shade his decisions instead of exercising the independence of judgment required by his public trust.” Id., at 423. Where §1983 actions are at issue, the Court said, both sets of concerns are present and serious. The “public trust of the prosecutor’s office would suffer” were the prosecutor to have in mind his “own potential” damages “liability” when making prosecutorial decisions—as he might well were he subject to §1983 liability. Id., at 424. This is no small concern, given the frequency with which criminal defendants bring such suits, id., at 425 (“[A] defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate”), and the “substantial danger of liability even to the honest prosecutor” that such suits pose when they survive pretrial dismissal, ibid.; see also ibid. (complex, close, fair-trial questions “often would require a virtual retrial of the criminal offense in a new forum, and the resolution of some technical issues by the lay jury”). A “prosecutor,” the Court noted, “inevitably makes many decisions that could engender colorable claims of constitutional deprivation. Defending these decisions, often years after they were made, could impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.” Id., at 425–426. The Court thus rejected the idea of applying the less-than-absolute “qualified immunity” that the law accords to other “executive or administrative officials,” noting that the “honest prosecutor would face greater difficulty” than would those officials “in meeting the standards of qualified immunity.” Id., at 425. Accordingly, the immunity that the law grants prosecutors is “absolute.” Id., at 424. The Court made clear that absolute immunity may not apply when a prosecutor is not acting as “an officer of the court,” but is instead engaged in other tasks, say, investigative or administrative tasks. Id., at 431, n. 33. To decide whether absolute immunity attaches to a particular kind of prosecutorial activity, one must take account of the “functional” considerations discussed above. See Burns v. Reed, 500 U. S. 478, 486 (1991) (collecting cases applying “functional approach” to immunity); Kalina v. Fletcher, 522 U. S. 118, 127, 130 (1997). In Imbler, the Court concluded that the “reasons for absolute immunity appl[ied] with full force” to the conduct at issue because it was “intimately associated with the judicial phase of the criminal process.” 424 U. S., at 430. The fact that one constitutional duty at issue was a positive duty (the duty to supply “information relevant to the defense”) rather than a negative duty (the duty not to “use … perjured testimony”) made no difference. After all, a plaintiff can often transform a positive into a negative duty simply by reframing the pleadings; in either case, a constitutional violation is at issue. Id., at 431, n. 34. Finally, the Court specifically reserved the question whether or when “similar reasons require immunity for those aspects of the prosecutor’s responsibility that cast him in the role of an administrator … rather than that of advocate.” Id., at 430–431. It said that “[d]rawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.” Id., at 431, n. 33. In the years since Imbler, we have held that absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding, Burns, supra, at 492, or appears in court to present evidence in support of a search warrant application, Kalina, supra, at 126. We have held that absolute immunity does not apply when a prosecutor gives advice to police during a criminal investigation, see Burns, supra, at 496, when the prosecutor makes statements to the press, Buckley v. Fitzsimmons, 509 U. S. 259, 277 (1993), or when a prosecutor acts as a complaining witness in support of a warrant application, Kalina, supra, at 132 (Scalia, J., concurring). This case, unlike these earlier cases, requires us to consider how immunity applies where a prosecutor is engaged in certain administrative activities. III Goldstein claims that the district attorney and his chief assistant violated their constitutional obligation to provide his attorney with impeachment-related information, see Giglio, 405 U. S. 150, because, as the Court of Appeals wrote, they failed “to adequately train and supervise deputy district attorneys on that subject,” 481 F. 3d, at 1176, and because, as Goldstein’s complaint adds, they “failed to create any system for the Deputy District Attorneys handling criminal cases to access information pertaining to the benefits provided to jailhouse informants and other impeachment information.” App. 45. We agree with Goldstein that, in making these claims, he attacks the office’s administrative procedures. We are also willing to assume with Goldstein, but purely for argument’s sake, that Giglio imposes certain obligations as to training, supervision, or information-system management. Even so, we conclude that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here. Those claims focus upon a certain kind of administrative obligation—a kind that itself is directly connected with the conduct of a trial. Here, unlike with other claims related to administrative decisions, an individual prosecutor’s error in the plaintiff’s specific criminal trial constitutes an essential element of the plaintiff’s claim. The administrative obligations at issue here are thus unlike administrative duties concerning, for example, workplace hiring, payroll administration, the maintenance of physical facilities, and the like. Moreover, the types of activities on which Goldstein’s claims focus necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in the training or the supervision or the information-system management. And in that sense also Goldstein’s claims are unlike claims of, say, unlawful discrimination in hiring employees. Given these features of the case before us, we believe absolute immunity must follow. A We reach this conclusion by initially considering a hypothetical case that involves supervisory or other office prosecutors but does not involve administration. Suppose that Goldstein had brought such a case, seeking damages not only from the trial prosecutor but also from a supervisory prosecutor or from the trial prosecutor’s colleagues—all on the ground that they should have found and turned over the impeachment material about Fink. Imbler makes clear that all these prosecutors would enjoy absolute immunity from such a suit. The prosecutors’ behavior, taken individually or separately, would involve “[p]reparation … for … trial,” 424 U. S., at 431, n. 33, and would be “intimately associated with the judicial phase of the criminal process” because it concerned the evidence presented at trial. Id., at 430. And all of the considerations that this Court found to militate in favor of absolute immunity in Imbler would militate in favor of immunity in such a case. The only difference we can find between Imbler and our hypothetical case lies in the fact that, in our hypothetical case, a prosecutorial supervisor or colleague might himself be liable for damages instead of the trial prosecutor. But we cannot find that difference (in the pattern of liability among prosecutors within a single office) to be critical. Decisions about indictment or trial prosecution will often involve more than one prosecutor within an office. We do not see how such differences in the pattern of liability among a group of prosecutors in a single office could alleviate Imbler’s basic fear, namely, that the threat of damages liability would affect the way in which prosecutors carried out their basic court-related tasks. Moreover, this Court has pointed out that “it is the interest in protecting the proper functioning of the office, rather than the interest in protecting its occupant, that is of primary importance.” Kalina, 522 U. S., at 125. Thus, we must assume that the prosecutors in our hypothetical suit would enjoy absolute immunity. B Once we determine that supervisory prosecutors are immune in a suit directly attacking their actions related to an individual trial, we must find they are similarly immune in the case before us. We agree with the Court of Appeals that the office’s general methods of supervision and training are at issue here, but we do not agree that that difference is critical for present purposes. That difference does not preclude an intimate connection between prosecutorial activity and the trial process. The management tasks at issue, insofar as they are relevant, concern how and when to make impeachment information available at a trial. They are thereby directly connected with the prosecutor’s basic trial advocacy duties. And, in terms of Imbler’s functional concerns, a suit charging that a supervisor made a mistake directly related to a particular trial, on the one hand, and a suit charging that a supervisor trained and supervised inadequately, on the other, would seem very much alike. That is true, in part, for the practical reason that it will often prove difficult to draw a line between general office supervision or office training (say, related to Giglio) and specific supervision or training related to a particular case. To permit claims based upon the former is almost inevitably to permit the bringing of claims that include the latter. It is also true because one cannot easily distinguish, for immunity purposes, between claims based upon training or supervisory failures related to Giglio and similar claims related to other constitutional matters (obligations under Brady v. Maryland, 373 U. S. 83 (1963), for example). And that being so, every consideration that Imbler mentions militates in favor of immunity. As we have said, the type of “faulty training” claim at issue here rests in necessary part upon a consequent error by an individual prosecutor in the midst of trial, namely, the plaintiff’s trial. If, as Imbler says, the threat of damages liability for such an error could lead a trial prosecutor to take account of that risk when making trial-related decisions, so, too, could the threat of more widespread liability throughout the office (ultimately traceable to that trial error) lead both that prosecutor and other office prosecutors as well to take account of such a risk. Indeed, members of a large prosecutorial office, when making prosecutorial decisions, could have in mind the “consequences in terms of” damages liability whether they are making general decisions about supervising or training or whether they are making individual trial-related decisions. Imbler, 424 U. S., at 424. Moreover, because better training or supervision might prevent most, if not all, prosecutorial errors at trial, permission to bring such a suit here would grant permission to criminal defendants to bring claims in other similar instances, in effect claiming damages for (trial-related) training or supervisory failings. Cf. Imbler, supra. Further, given the complexity of the constitutional issues, inadequate training and supervision suits could, as in Imbler, “pose substantial danger of liability even to the honest prosecutor.” Id., at 425. Finally, as Imbler pointed out, defending prosecutorial decisions, often years after they were made, could impose “unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials.” Id., at 425–426. At the same time, to permit this suit to go forward would create practical anomalies. A trial prosecutor would remain immune, even for intentionally failing to turn over, say Giglio material; but her supervisor might be liable for negligent training or supervision. Small prosecution offices where supervisors can personally participate in all of the cases would likewise remain immune from prosecution; but large offices, making use of more general office-wide supervision and training, would not. Most important, the ease with which a plaintiff could restyle a complaint charging a trial failure so that it becomes a complaint charging a failure of training or supervision would eviscerate Imbler. We conclude that the very reasons that led this Court in Imbler to find absolute immunity require a similar finding in this case. We recognize, as Chief Judge Hand pointed out, that sometimes such immunity deprives a plaintiff of compensation that he undoubtedly merits; but the impediments to the fair, efficient functioning of a prosecutorial office that liability could create lead us to find that Imbler must apply here. C We treat separately Goldstein’s claim that the Los Angeles County District Attorney’s Office should have established a system that would have permitted prosecutors “handling criminal cases to access information pertaining to the benefits provided to jailhouse informants and other impeachment information.” App. 45. We do so because Goldstein argues that the creation of an information management system is a more purely administrative task, less closely related to the “judicial phase of the criminal process,” Imbler, supra, at 430, than are supervisory or training tasks. He adds that technically qualified individuals other than prosecutors could create such a system and that they could do so prior to the initiation of criminal proceedings. In our view, however, these differences do not require a different outcome. The critical element of any information system is the information it contains. Deciding what to include and what not to include in an information system is little different from making similar decisions in respect to training. Again, determining the criteria for inclusion or exclusion requires knowledge of the law. Moreover, the absence of an information system is relevant here if, and only if, a proper system would have included information about the informant Fink. Thus, were this claim allowed, a court would have to review the office’s legal judgments, not simply about whether to have an information system but also about what kind of system is appropriate, and whether an appropriate system would have included Giglio-related information about one particular kind of trial informant. Such decisions—whether made prior to or during a particular trial—are “intimately associated with the judicial phase of the criminal process.” Imbler, supra, at 430; see Burns, 500 U. S., at 486. And, for the reasons set out above, all Imbler’s functional considerations (and the anomalies we mentioned earlier, supra, at 10) apply here as well. We recognize that sometimes it would be easy for a court to determine that an office’s decision about an information system was inadequate. Suppose, for example, the office had no system at all. But the same could be said of a prosecutor’s trial error. Immunity does not exist to help prosecutors in the easy case; it exists because the easy cases bring difficult cases in their wake. And, as Imbler pointed out, the likely presence of too many difficult cases threatens, not prosecutors, but the public, for the reason that it threatens to undermine the necessary independence and integrity of the prosecutorial decision-making process. Such is true of the kinds of claims before us, to all of which Imbler’s functional considerations apply. Consequently, where a §1983 plaintiff claims that a prosecutor’s management of a trial-related information system is responsible for a constitutional error at his or her particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself. * * * For these reasons we conclude that petitioners are entitled to absolute immunity in respect to Goldstein’s claims that their supervision, training, or information-system management was constitutionally inadequate. Accordingly, 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. |
556.US.2008_08-88 | In July 2001, respondent Brillon was arrested on felony domestic assault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sentenced to 12 to 20 years in prison. During the time between his arrest and his trial, at least six different attorneys were appointed to represent him. Brillon “fired” his first attorney, who served from July 2001 to February 2002. His third lawyer, who served from March 2002 until June 2002, was allowed to withdraw when he reported that Brillon had threatened his life. His fourth lawyer served from June 2002 until November 2002, when the trial court released him from the case. His fifth lawyer, assigned two months later, withdrew in April 2003. Four months thereafter, his sixth lawyer was assigned, and she took the case to trial in June 2004. The trial court denied Brillon’s motion to dismiss for want of a speedy trial. The Vermont Supreme Court, however, reversed, holding that Brillon’s conviction must be vacated, and the charges against him dismissed, because the State did not accord him the speedy trial required by the Sixth Amendment. Citing the balancing test this Court stated in Barker v. Wingo, 407 U. S. 514, the Vermont Supreme Court concluded that all four factors described in Barker—“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant,” id., at 530—weighed against the State. Weighing heavily in Brillon’s favor, the Vermont court said, the three-year delay in bringing him to trial was “extreme.” In assessing the reasons for that delay, the court separately considered the period of each counsel’s representation. It acknowledged that the first year, when Brillon was represented by his first and third lawyers, should not count against the State. But the court counted much of the remaining two years against the State. Delays in that period, the court determined, were caused, for the most part, by the failure or unwillingness of several of the assigned counsel, over an inordinate period of time, to move the case forward. As for the third and fourth Barker v. Wingo factors, the court found that Brillon repeatedly and adamantly demanded a trial and that his lengthy pretrial incarceration was prejudicial. Held: The Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. Pp. 6–11. (a) Primarily at issue here is the reason for the delay in Brillon’s trial. In applying Barker, the Court has asked “whether the government or the criminal defendant is more to blame for th[e] delay.” Doggett v. United States, 505 U. S. 647, 651. Delay “to hamper the defense” weighs heavily against the prosecution, Barker, 407 U. S., at 531, while delay caused by the defense weighs against the defendant, id., at 529. Because “the attorney is the [defendant’s] agent when acting, or failing to act, in furtherance of the litigation,” delay caused by the defendant’s counsel is charged against the defendant. Coleman v. Thompson, 501 U. S. 722, 753. The same principle applies whether counsel is privately retained or publicly assigned, for “ ‘[o]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.’ ” Polk County v. Dodson, 454 U. S. 312, 318. Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor. Pp. 6–8. (b) Although the balance arrived at in close cases ordinarily would not prompt this Court’s review, the Vermont Supreme Court made a fundamental error in its application of Barker that calls for this Court’s correction. The court erred in attributing to the State delays caused by the failure of several assigned counsel to move Brillon’s case forward and in failing adequately to take into account the role of Brillon’s disruptive behavior in the overall balance. Pp. 8–11. (1) An assigned counsel’s failure to move the case forward does not warrant attribution of delay to the State. Most of the delay the Vermont court attributed to the State must therefore be attributed to Brillon as delays caused by his counsel, each of whom requested time extensions. Their inability or unwillingness to move the case forward may not be attributed to the State simply because they are assigned counsel. A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by appointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic. Yet the same considerations would not attend a privately retained counsel’s requests for time extensions. There is no justification for treating defendants’ speedy-trial claims differently based on whether their counsel is privately retained or publicly assigned. Pp. 9–10. (2) The Vermont Supreme Court further erred by treating the period of each counsel’s representation discretely. The court failed appropriately to take into account Brillon’s role during the first year of delay. Brillon sought to dismiss his first attorney on the eve of trial. His strident, aggressive behavior with regard to his third attorney further impeded prompt trial and likely made it more difficult for the Defender General’s office to find replacement counsel. Absent Brillon’s efforts to force the withdrawal of his first and third attorneys, no speedy-trial issue would have arisen. Pp. 10–11. (c) The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting from a systemic breakdown in the public defender system could be charged to the State. Cf. Polk County, 454 U. S., at 324–325. But the Vermont Supreme Court made no determination, and nothing in the record suggests, that institutional problems caused any part of the delay in Brillon’s case. P. 11. 955 A. 2d 1108, reversed and remanded. Ginsburg, J,. delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, and Alito, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined. | This case concerns the Sixth Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy … trial.” Michael Brillon, defendant below, respondent here, was arrested in July 2001 on felony domestic assault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sentenced to 12 to 20 years in prison. The Vermont Supreme Court vacated Brillon’s conviction and held that the charges against him must be dismissed because he had been denied his right to a speedy trial. During the time between Brillon’s arrest and his trial, at least six different attorneys were appointed to represent him. Brillon “fired” the first, who served from July 2001 to February 2002. His third lawyer, who served from March 2002 until June 2002, was allowed to withdraw when he reported that Brillon had threatened his life. The Vermont Supreme Court charged against Brillon the delays associated with those periods, but charged against the State periods in which assigned counsel failed “to move the case forward.” 955 A. 2d 1108, 1121, 1122 (2008). We hold that the Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. For a total of some six months of the time that elapsed between Brillon’s arrest and his trial, Brillon lacked an attorney. The State may be charged with those months if the gaps resulted from the trial court’s failure to appoint replacement counsel with dispatch. Similarly, the State may bear responsibility if there is “a breakdown in the public defender system.” Id., at 1111. But, as the Vermont Supreme Court acknowledged, id., at 1126, the record does not establish any such institutional breakdown. I On July 27, 2001, Michael Brillon was arrested after striking his girlfriend. Three days later he was arraigned in state court in Bennington County, Vermont and charged with felony domestic assault. His alleged status as a habitual offender exposed him to a potential life sentence. The court ordered him held without bail. Richard Ammons, from the county public defender’s office, was assigned on the day of arraignment as Brillon’s first counsel.[Footnote 1] In October, Ammons filed a motion to recuse the trial judge. It was denied the next month and trial was scheduled for February 2002. In mid-January, Ammons moved for a continuance, but the State objected, and the trial court denied the motion. On February 22, four days before the jury draw, Ammons again moved for a continuance, citing his heavy workload and the need for further investigation. Ammons acknowledged that any delay would not count (presumably against the State) for speedy-trial purposes. The State opposed the motion,[Footnote 2] and at the conclusion of a hearing, the trial court denied it. Brillon, participating in the proceedings through interactive television, then announced: “You’re fired, Rick.” App. 187. Three days later, the trial court—over the State’s objection—granted Ammons’ motion to withdraw as counsel, citing Brillon’s termination of Ammons and Ammons’ statement that he could no longer zealously represent Brillon.[Footnote 3] The trial court warned Brillon that further delay would occur while a new attorney became familiar with the case. The same day, the trial court appointed a second attorney, but he immediately withdrew based on a conflict. On March 1, 2002, Gerard Altieri was assigned as Brillon’s third counsel. On May 20, Brillon filed a motion to dismiss Altieri for, among other reasons, failure to file motions, “[v]irtually no communication whatsoever,” and his lack of diligence “because of heavy case load.” Id., ¶¶2, 5, at 113–114. At a June 11 hearing, Altieri denied several of Brillon’s allegations, noted his disagreement with Brillon’s trial strategy,[Footnote 4] and insisted he had plenty of time to prepare. The State opposed Brillon’s motion as well. Near the end of the hearing, however, Altieri moved to withdraw on the ground that Brillon had threatened his life during a break in the proceedings. The trial court granted Brillon’s motion to dismiss Altieri, but warned Brillon that “this is somewhat of a dubious victory in your case because it simply prolongs the time that you will remain in jail until we can bring this matter to trial.” Id., at 226. That same day, the trial court appointed Paul Donaldson as Brillon’s fourth counsel. At an August 5 status conference, Donaldson requested additional time to conduct discovery in light of his caseload. A few weeks later, Brillon sent a letter to the court complaining about Donaldson’s unresponsiveness and lack of competence. Two months later, Brillon filed a motion to dismiss Donaldson—similar to his motion to dismiss Altieri—for failure to file motions and “virtually no communication whatsoever.” Id., ¶¶1, 2, at 115–116. At a November 26 hearing, Donaldson reported that his contract with the Defender General’s office had expired in June and that he had been in discussions to have Brillon’s case reassigned. The trial court released Donaldson from the case “[w]ithout making any findings regarding the adequacy of [Donaldson]’s representation.” 955 A. 2d, at 1119. Cf. post, at 2. Brillon’s fifth counsel, David Sleigh, was not assigned until January 15, 2003; Brillon was without counsel during the intervening two months. On February 25, Sleigh sought extensions of various discovery deadlines, noting that he had been in trial out of town. App. 117. On April 10, however, Sleigh withdrew from the case, based on “modifications to [his] firm’s contract with the Defender General.” Id., at 158. Brillon was then without counsel for the next four months. On June 20, the Defender General’s office notified the court that it had received “funding from the legislature” and would hire a new special felony unit defender for Brillon. Id., at 159. On August 1, Kathleen Moore was appointed as Brillon’s sixth counsel. The trial court set November 7 as the deadline for motions, but granted several extensions in accord with the parties’ stipulation. On February 23, 2004, Moore filed a motion to dismiss for lack of a speedy trial. The trial court denied the motion on April 19. The case finally went to trial on June 14, 2004. Brillon was found guilty and sentenced to 12 to 20 years in prison. The trial court denied a post-trial motion to dismiss for want of a speedy trial, concluding that the delay in Brillon’s trial was “in large part the result of his own actions” and that Brillon had “failed to demonstrate prejudice as a result of [the] pre-trial delay.” App. to Pet. for Cert. 72. On appeal, the Vermont Supreme Court held 3 to 2 that Brillon’s conviction must be vacated and the charges dismissed for violation of his Sixth Amendment right to a speedy trial. Citing the balancing test of Barker v. Wingo, 407 U. S. 514 (1972), the majority concluded that all four of the factors described in Barker—“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant”—weighed against the State. Id., at 530. The court first found that the three-year delay in bringing Brillon to trial was “extreme” and weighed heavily in his favor. See 955 A. 2d, at 1116. In assessing the reasons for that delay, the Vermont Supreme Court separately considered the period of each counsel’s representation. It acknowledged that the first year, when Brillon was represented by Ammons and Altieri, should not count against the State. Id., at 1120. But the court counted much of the remaining two years against the State for delays “caused, for the most part, by the failure of several of defendant’s assigned counsel, over an inordinate period of time, to move his case forward.” Id., at 1122. As for the third and fourth factors, the court found that Brillon “repeatedly and adamantly demanded to be tried,” ibid., and that his “lengthy pretrial incarceration” was prejudicial, despite his insubstantial assertions of evidentiary prejudice, id., at 1125. The dissent strongly disputed the majority’s characterization of the periods of delay. It concluded that “the lion’s share of delay in this case is attributable to defendant, and not to the state.” Id., at 1127. But for Brillon’s “repeated maneuvers to dismiss his lawyers and avoid trial through the first eleven months following arraignment,” the dissent explained, “the difficulty in finding additional counsel would not have arisen.” Id., at 1128. We granted certiorari, 554 U. S. ___ (2008),[Footnote 5] and now reverse the judgment of the Vermont Supreme Court. II The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy … trial.” The speedy-trial right is “amorphous,” “slippery,” and “necessarily relative.” Barker, 407 U. S., at 522 (quoting Beavers v. Haubert, 198 U. S. 77, 87 (1905)). It is “consistent with delays and depend[ent] upon circumstances.” 407 U. S., at 522 (internal quotation marks omitted). In Barker, the Court refused to “quantif[y]” the right “into a specified number of days or months” or to hinge the right on a defendant’s explicit request for a speedy trial. Id., at 522–525. Rejecting such “inflexible approaches,” Barker established a “balancing test, in which the conduct of both the prosecution and the defendant are weighed.” Id., at 529, 530. “[S]ome of the factors” that courts should weigh include “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Ibid. Primarily at issue here is the reason for the delay in Brillon’s trial. Barker instructs that “different weights should be assigned to different reasons,” id., at 531, and in applying Barker, we have asked “whether the government or the criminal defendant is more to blame for th[e] delay.” Doggett v. United States, 505 U. S. 647, 651 (1992). Deliberate delay “to hamper the defense” weighs heavily against the prosecution. Barker, 407 U. S., at 531. “[M]ore neutral reason[s] such as negligence or overcrowded courts” weigh less heavily “but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Ibid. In contrast, delay caused by the defense weighs against the defendant: “[I]f delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine.” Id., at 529. Cf. United States v. Loud Hawk, 474 U. S. 302, 316 (1986) (noting that a defendant whose trial was delayed by his interlocutory appeal “normally should not be able … to reap the reward of dismissal for failure to receive a speedy trial”). That rule accords with the reality that defendants may have incentives to employ delay as a “defense tactic”: delay may “work to the accused’s advantage” because “witnesses may become unavailable or their memories may fade” over time. Barker, 407 U. S., at 521. Because “the attorney is the [defendant’s] agent when acting, or failing to act, in furtherance of the litigation,” delay caused by the defendant’s counsel is also charged against the defendant. Coleman v. Thompson, 501 U. S. 722, 753 (1991).[Footnote 6] The same principle applies whether counsel is privately retained or publicly assigned, for “[o]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.” Polk County v. Dodson, 454 U. S. 312, 318 (1981) (internal quotation marks omitted). “Except for the source of payment,” the relationship between a defendant and the public defender representing him is “identical to that existing between any other lawyer and client.” Ibid. Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor.[Footnote 7] III Barker’s formulation “necessarily compels courts to approach speedy trial cases on an ad hoc basis,” 407 U. S., at 530, and the balance arrived at in close cases ordinarily would not prompt this Court’s review. But the Vermont Supreme Court made a fundamental error in its application of Barker that calls for this Court’s correction. The Vermont Supreme Court erred in attributing to the State delays caused by “the failure of several assigned counsel … to move his case forward,” 955 A. 2d, at 1122, and in failing adequately to take into account the role of Brillon’s disruptive behavior in the overall balance. A The Vermont Supreme Court’s opinion is driven by the notion that delay caused by assigned counsel’s “inaction” or failure “to move [the] case forward” is chargeable to the State, not the defendant. Id., at 1111, 1122. In this case, that court concluded, “a significant portion of the delay in bringing defendant to trial must be attributed to the state, even though most of the delay was caused by the inability or unwillingness of assigned counsel to move the case forward.” Id., at 1121. We disagree. An assigned counsel’s failure “to move the case forward” does not warrant attribution of delay to the State. Contrary to the Vermont Supreme Court’s analysis, assigned counsel generally are not state actors for purposes of a speedy-trial claim. While the Vermont Defender General’s office is indeed “part of the criminal justice system,” ibid., the individual counsel here acted only on behalf of Brillon, not the State. See Polk County, 454 U. S., at 320–322 (rejecting the view that public defenders act under color of state law because they are paid by the State). See also supra, at 8. Most of the delay that the Vermont Supreme Court attributed to the State must therefore be attributed to Brillon as delays caused by his counsel. During those periods, Brillon was represented by Donaldson, Sleigh, and Moore, all of whom requested extensions and continuances.[Footnote 8] Their “inability or unwillingness … to move the case forward,” 955 A. 2d, at 1121, may not be attributed to the State simply because they are assigned counsel. A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by appointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic. Yet the same considerations would not attend a privately retained counsel’s requests for time extensions. We see no justification for treating defendants’ speedy-trial claims differently based on whether their counsel is privately retained or publicly assigned. B In addition to making assigned counsel’s “failure … to move [the] case forward” the touchstone of its speedy-trial inquiry, the Vermont Supreme Court further erred by treating the period of each counsel’s representation discretely. The factors identified in Barker “have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” 407 U. S., at 533. Yet the Vermont Supreme Court failed appropriately to take into account Brillon’s role during the first year of delay in “the chain of events that started all this.” Tr. of Oral Arg. 46. Brillon sought to dismiss Ammons on the eve of trial. His strident, aggressive behavior with regard to Altieri, whom he threatened, further impeded prompt trial and likely made it more difficult for the Defender General’s office to find replacement counsel. Even after the trial court’s warning regarding delay, Brillon sought dismissal of yet another attorney, Donaldson. Just as a State’s “deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the [State],” Barker, 407 U. S., at 531, so too should a defendant’s deliberate attempt to disrupt proceedings be weighted heavily against the defendant. Absent Brillon’s deliberate efforts to force the withdrawal of Ammons and Altieri, no speedy-trial issue would have arisen. The effect of these earlier events should have been factored into the court’s analysis of subsequent delay.[Footnote 9] C The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting from a systemic “breakdown in the public defender system,” 955 A. 2d, at 1111, could be charged to the State. Cf. Polk County, 454 U. S., at 324–325. But the Vermont Supreme Court made no determination, and nothing in the record suggests, that institutional problems caused any part of the delay in Brillon’s case. In sum, delays caused by defense counsel are properly attributed to the defendant, even where counsel is assigned. “[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case,” Barker, 407 U. S., at 522, and the record in this case does not show that Brillon was denied his constitutional right to a speedy trial. * * * For the reasons stated, the judgment of the Vermont Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Vermont’s Defender General has “the primary responsibility for providing needy persons with legal services.” Vt. Stat. Ann., Tit. 13, §5253(a) (1998). These services may be provided “personally, through public defenders,” or through contract attorneys. Ibid. Footnote 2 The State expressed its concern that the continuance request was “just part and parcel of an effort by the defense to have the Court not hear this matter.” App. 180. Under Vermont procedures, the judge presiding over the trial was scheduled to “rotate” out of the county where Brillon’s case was pending in March 2002. See id., ¶6, at 109. Thus, a continuance past March would have caused a different judge to preside over Brillon’s trial, despite the denial of his motion to recuse the initial judge. Ammons requested a continuance until April. Footnote 3 Ammons also cited as cause to withdraw, “certain irreconcilable differences in preferred approach between Mr. Brillon and counsel as to trial strategy, as well as other legitimate legal decisions.” Id., ¶2, at 104. Footnote 4 Specifically, Altieri appeared reluctant to follow Brillon’s tactic that he “bring in a lot of people” at trial, “some of them young kids and relatives … in an attempt by Mr. Brillon—this is his theory—I don’t want to use the words trash, [to] impeach [the victim].” Id., at 216–217. Footnote 5 Vermont’s Constitution contains a speedy-trial clause which reads: “[I]n all prosecutions for criminal offenses, a person hath a right to … a speedy public trial by an impartial jury … .” Vt. Const., Ch. I, Art. 10. Notably, the Vermont Supreme Court made no ruling under the State’s own prescription, but instead relied solely on the Federal Constitution. Because it did so, our review authority was properly invoked and exercised. See Oregon v. Hass, 420 U. S. 714, 719–720 (1975); Ginsburg, Book Review, 92 Harv. L. Rev. 340, 343–344 (1978). But see post, at 1–4. Footnote 6 Several States’ speedy-trial statutes expressly exclude from computation of the time limit continuances and delays caused by the defendant or defense counsel. See, e.g., Cal. Penal Code Ann. §1381 (West 2000); Ill. Comp. Stat., ch. 725, §5/103–5(f) (2006); N. Y. Crim. Proc. Law Ann. §30.30(4) (West Supp. 2009); Alaska Rule Crim. Proc. 45(d) (1993); Ark. Rule Crim. Proc. 28.3 (2006); Ind. Rule Crim. Proc. 4(A) (2009). See also Brief for National Governors Association et al. as Amici Curiae 17–18, and n. 12. Footnote 7 A public defender may act for the State, however, “when making hiring and firing decisions on behalf of the State,” and “while performing certain administrative and possibly investigative functions.” Polk County v. Dodson, 454 U. S. 312, 325 (1981). Footnote 8 The State conceded before the Vermont Supreme Court that the period of Sleigh’s representation—along with a six-month period of no representation—was properly attributed to the State. 955 A. 2d 1108, 1120–1121 (2008). The State sought to avoid its concession at oral argument before this Court, but in the alternative, noted that the period of Sleigh’s representation “is really inconsequential.” Tr. of Oral Arg. 5–6. We agree that in light of the three-year delay caused mostly by Brillon, the attribution of Sleigh’s three-month representation does not tip the balance for either side. Footnote 9 Brillon lacked counsel for some six months. In light of his own role in the initial periods of delay, however, this six-month period, even if attributed to the State, does not establish a speedy-trial violation. |
555.US.2008_07-772 | Respondent Sarausad drove the car in a driveby shooting at a high school, which was the culmination of a gang dispute. En route to school, Ronquillo, the front seat passenger, covered his lower face and readied a handgun. Sarausad abruptly slowed down upon reaching the school, Ronquillo fired at a group of students, killing one and wounding another, and Sarausad then sped away. He, Ronquillo, and Reyes, another passenger, were tried on murder and related charges. Sarausad and Reyes, who were tried as accomplices, argued that they were not accomplices to murder because they had not known Ronquillo’s plan and had expected at most another fistfight. In her closing argument, the prosecutor stressed Sarausad’s knowledge of a shooting, noting how he drove at the scene, that he knew that fighting alone would not regain respect for his gang, and that he was “in for a dime, in for a dollar.” The jury received two instructions that directly quoted Washington’s accomplice-liability law. When it failed to reach a verdict as to Reyes, the judge declared a mistrial as to him. The jury then convicted Ronquillo on all counts and convicted Sarausad of second-degree murder and related crimes. In affirming Sarausad’s conviction, the State Court of Appeals, among other things, referred to an “in for a dime, in for a dollar” accomplice-liability theory. The State Supreme Court denied review, but in its subsequent Roberts case, it clarified that “in for a dime, in for a dollar” was not the best descriptor of accomplice liability because an accomplice must have knowledge of the crime that occurred. The court also explicitly reaffirmed its precedent that the type of jury instructions used at Sarausad’s trial comport with Washington law. Sarausad sought state postconviction relief, arguing that the prosecutor’s improper “in for a dime, in for a dollar” argument may have led the jury to convict him as an accomplice to murder based solely on a finding that he had anticipated that an assault would occur. The state appeals court reexamined the trial record in light of Roberts, but found no error requiring correction. The State Supreme Court denied Sarausad’s petition, holding that the trial court correctly instructed the jury and that no prejudicial error resulted from the prosecutor’s potentially improper hypothetical. Sarausad then sought review under 28 U. S. C. §2254, which, inter alia, permits a federal court to grant habeas relief on a claim “adjudicated on the merits” in state court only if the decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” this Court, §2254(d)(1). The District Court granted the petition, and the Ninth Circuit affirmed, finding it unreasonable for the state court to affirm Sarausad’s conviction because the jury instruction on accomplice liability was ambiguous and there was a reasonable likelihood that the jury misinterpreted the instruction in a way that relieved the State of its burden of proving Sarausad’s knowledge of a shooting beyond a reasonable doubt. Held: Because the state-court decision did not result in an “unreasonable application of … clearly established Federal law,” §2254(d)(1), the Ninth Circuit erred in granting habeas relief to Sarausad. Pp. 10–17. (a) When a state court’s application of governing federal law is challenged, the decision “ ‘must be shown to be not only erroneous, but objectively unreasonable.’ ” Middleton v. McNeil, 541 U. S. 433, 436 (per curiam). A defendant challenging the constitutionality of a jury instruction that quotes a state statute must show both that the instruction was ambiguous and that there was “ ‘a reasonable likelihood’ ” that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt. Estelle v. McGuire, 502 U. S. 62, 72. The instruction “must be considered in the context of the instructions as a whole and the trial record,” ibid., and the pertinent question is whether the “instruction by itself so infected the entire trial that the resulting conviction violates due process,’ ” ibid. Pp. 10–11. (b) Because the Washington courts’ conclusion that the jury instruction was unambiguous was not objectively unreasonable, the Ninth Circuit should have ended its §2254(d)(1) inquiry there. The instruction parroted the state statute’s language, requiring the jury to find Sarausad guilty as an accomplice “in the commission of the [murder]” if he acted “with knowledge that [his conduct would] promote or facilitate the commission of the [murder],” Wash. Rev. Code §§9A.08.020(2)(c), (3)(a). The instruction cannot be assigned any meaning different from the one given to it by the Washington courts. Pp. 11–12. (c) Even if the instruction were ambiguous, the Ninth Circuit still erred in finding it so ambiguous as to cause a federal constitutional violation requiring reversal under AEDPA. The Washington courts reasonably applied this Court’s precedent when they found no “reasonable likelihood” that the prosecutor’s closing argument caused the jury to apply the instruction in a way that relieved the State of its burden to prove every element of the crime beyond a reasonable doubt. The prosecutor consistently argued that Sarausad was guilty as an accomplice because he acted with knowledge that he was facilitating a driveby shooting. She never argued that the admission by Sarausad and Reyes that they anticipated a fight was a concession of accomplice liability for murder. Sarausad’s attorney also homed in on the key question, stressing a lack of evidence showing that Sarausad knew that his assistance would promote or facilitate a premeditated murder. Every state and federal appellate court that reviewed the verdict found the evidence supporting Sarausad’s knowledge of a shooting legally sufficient to convict him under Washington law. Given the strength of that evidence, and the jury’s failure to convict Reyes—who had also been charged as an accomplice to murder and admitted knowledge of a possible fight—it was not objectively unreasonable for the Washington courts to conclude that the jury convicted Sarausad because it believed that he, unlike Reyes, had knowledge of more than just a fistfight. The Ninth Circuit’s contrary reasoning is unconvincing. Pp. 13–17. 479 F. 3d 671, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined. | This case arose from a fatal driveby shooting into a group of students standing in front of a Seattle high school. Brian Ronquillo was ultimately identified as the gunman; at the time of the shooting, he was a passenger in a car driven by respondent Cesar Sarausad II. A jury convicted Sarausad as an accomplice to second-degree murder, attempted murder, and assault; he was sentenced to just over 27 years of imprisonment. The Washington courts affirmed his conviction and sentence on direct review, and his state-court motions for postconviction relief were denied. Respondent, then, filed a federal petition for a writ of habeas corpus. The District Court granted the writ. On appeal, the Court of Appeals for the Ninth Circuit agreed with the District Court that the state-court decision was an objectively “unreasonable application of … clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1). The Court of Appeals found it unreasonable for the state court to reject Sarausad’s argument that certain jury instructions used at his trial were ambiguous and were likely misinterpreted by the jury to relieve the State of its burden of proving every element of the crime beyond a reasonable doubt. Sarausad v. Porter, 479 F. 3d 671 (2007). We disagree. Because the Washington courts reasonably applied our precedent to the facts of this case, we reverse the judgment below. I A The driveby shooting was the culmination of a gang dispute between the 23d Street Diablos, of which Cesar Sarausad was a member, and the Bad Side Posse, which was headquartered at Ballard High School in Seattle, Washington. A member of the Diablos, Jerome Reyes, had been chased from Ballard by members of the Bad Side Posse, so the Diablos decided to go “to Ballard High School to show that the Diablos were not afraid” of the rival gang. App. to Pet. for Cert. 235a. The Diablos started a fight with the Bad Side Posse, but left quickly after someone indicated that police were nearby. They went to a gang member’s house, still angry because the Bad Side Posse had “called [them] weak.” Tr. 2660–2661. Brian Ronquillo retrieved a handgun, and the gang decided to return to Ballard and “get [their] respect back.” Id., at 2699. Sarausad drove, with Ronquillo in the front passenger seat and Reyes and two other Diablos in the back seat. En route, someone in the car mentioned “ ‘capping’ ” the Bad Side Posse, and Ronquillo tied a bandana over the lower part of his face and readied the handgun. Sarausad v. State, 109 Wash. App. 824, 844, 39 P. 3d 308, 319 (2001). Shortly before reaching the high school, a second car of Diablos pulled up next to Sarausad’s car and the drivers of the two cars talked briefly. Sarausad asked the other driver, “ ‘Are you ready?’ ” id., at 844–845, 39 P. 3d, at 319, and then sped the rest of the way to the high school. Once in front of the school, Sarausad abruptly slowed to about five miles per hour while Ronquillo fired 6 to 10 shots at a group of students standing in front of it. Id., at 831, 39 P. 3d, at 312. Sarausad “saw everyone go down,” Tr. 2870, and then sped away, 109 Wash. App., at 832, 39 P. 3d, at 313. The gunfire killed one student; another student was wounded when a bullet fragment struck his leg. Id., at 831–832, 39 P. 3d, at 312–313. B Sarausad, Ronquillo, and Reyes were tried for the first-degree murder of Melissa Fernandes, the attempted first-degree murders of Ryan Lam and Tam Nguyen, and the second-degree assault of Brent Mason. Sarausad and Reyes, who were tried as accomplices, argued at trial that they could not have been accomplices to murder because they “had no idea whatsoever that Ronquillo had armed himself for the return trip.” Id., at 832, 39 P. 3d, at 313. They claimed that they expected, at most, another fistfight with the Bad Side Posse and were “totally and utterly dismayed when Ronquillo started shooting.” Ibid. Sarausad’s counsel, in particular, argued that there was no evidence that Sarausad expected anything more than that the two gangs “would exchange insults, and maybe, maybe get into a fight.” Tr. 1151. Sarausad testified that he considered only the “possibility of a fight,” id., at 2799, but never the possibility of a shooting, 109 Wash. App., at 832, 39 P. 3d, at 313. During closing arguments, Sarausad’s attorney again argued that the evidence showed only that Sarausad was “willing to fight them the way they fought them the first time. And that is by pushing and shoving and more tough talk.” App. 81. That was not sufficient, the attorney argued, to find that “Cesar [Sarausad] had knowledge that his assistance would promote or facilitate the crime of premeditated murder.” Id., at 83. Sarausad’s attorney also explained to the jury that knowledge of just any crime, such as knowledge that criminal assistance would be rendered after the shooting, would be insufficient to hold Sarausad responsible as an accomplice to murder because “[a]ccomplice liability requires that one assists with knowledge, that their actions will promote or facilitate the commission of the crime.” Id., at 100 (emphasis added). In response, the prosecutor focused much of her closing argument on the evidence of Sarausad’s knowledge of a shooting. He had “slowed down before the shots were fired, stayed slowed down until the shots were over and immediately sped up.” Id., at 39. “There was no hesitation, there was no stopping the car. There was no attempt for Mr. Sarausad to swerve his car out of the way so that innocent people wouldn’t get shot.” Id., at 40. She also argued that Sarausad knew when he drove back to the school that his gang’s “fists didn’t work, the pushing didn’t work, the flashing of the signs, the violent altercation didn’t work” because the Bad Side Posse still “laughed at them, they called them weak, they called them nothing.” Id., at 44. So, “[w]hen they rode down to Ballard High School that last time, … [t]hey knew they were there to commit a crime, to disrespect the gang, to fight, to shoot, to get that respect back. A fist didn’t work, pushing didn’t work. Shouting insults at them didn’t work. Shooting was going to work. In for a dime, you’re in for a dollar.” Id., at 123–124. At the close of trial, the jury received two instructions that directly quoted Washington’s accomplice-liability statute.[Footnote 1] Instruction number 45 provided: “You are instructed that a person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the crime.” Id., at 16 (emphasis added). Instruction number 46 provided, in relevant part: “A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either: “(1) solicits, commands, encourages, or requests another person to commit the crime or “(2) aids or agrees to aid another person in planning or committing the crime.” Id., at 17 (emphasis added). During seven days of deliberations, the jury asked five questions, three of which related to the intent requirement for accomplice liability. One questioned the accomplice-liability standard as it related to the first-degree murder instructions; one questioned the standard as it related to the second-degree murder instructions; and one stated that the jury was “having difficulty agreeing on the legal definition and concept of ‘accomplice’ ” and whether a person’s “willing participat[ion] in a group activity” makes “that person an accomplice to any crime committed by anyone in the group.” Id., at 129. In response to each question, the judge instructed the jury to reread the accomplice-liability instructions and to consider the instructions as a whole. The jury was unable to reach a verdict as to Reyes, and the judge declared a mistrial as to him. The jury then returned guilty verdicts on all counts for Ronquillo and convicted Sarausad of the lesser included crimes of second-degree murder, attempted second-degree murder, and second-degree assault. C On appeal, Sarausad argued that because the State did not prove that he had intent to kill, he could not be convicted as an accomplice to second-degree murder under Washington law. The Washington Court of Appeals affirmed his convictions, explaining that under Washington law, an accomplice must have “general knowledge” that the crime will occur, but need not have the specific intent required for that crime’s commission. App. to Pet. for Cert. 259a. The court referred to accomplice liability as “a theory of criminal liability that in Washington has been reduced to the maxim, ‘in for a dime, in for a dollar.’ ” Id., at 235a. The Washington Supreme Court denied discretionary review. State v. Ronquillo, 136 Wash. 2d 1018, 966 P. 2d 1277 (1998). Shortly thereafter, the Washington Supreme Court clarified in an unrelated criminal case that “in for a dime, in for a dollar” is not the best descriptor of accomplice liability under Washington law because an accomplice must have knowledge of “the crime” that occurs. State v. Roberts, 142 Wash. 2d 471, 509–510, 14 P. 3d 713, 734–735 (2000). Therefore, an accomplice who knows of one crime—the dime—is not guilty of a greater crime—the dollar—if he has no knowledge of that greater crime. It was error, then, to instruct a jury that an accomplice’s knowledge of “ ‘a crime’ ” was sufficient to establish accomplice liability for “ ‘the crime.’ ” Ibid.[Footnote 2] The Washington Supreme Court limited this decision to instructions containing the phrase “a crime” and explicitly reaffirmed its precedent establishing that jury instructions linking an accomplice’s knowledge to “the crime,” such as the instruction used at Sarausad’s trial, comport with Washington law. Id., at 511–512, 14 P. 3d, at 736 (discussing State v. Davis, 101 Wash. 2d 654, 656, 682 P. 2d 883, 884 (1984)). An instruction that references “the crime” “copie[s] exactly the language from the accomplice liability statute” and properly hinges criminal punishment on knowledge of “the crime” for which the defendant was charged as an accomplice. 142 Wash. 2d, at 512, 14 P. 3d, at 736. D Sarausad next sought postconviction relief from the Washington courts. He argued that although the accomplice-liability instruction used at his trial complied with Roberts, “an additional clarifying instruction should have been given” because the prosecutor may have confused the jury by improperly arguing that he had been “ ‘in for a dime, in for a dollar.’ ” Sarausad, 109 Wash. App., at 829, 39 P. 3d, at 311. Therefore, he argued, the jury may have convicted him as an accomplice to second-degree murder based solely on his admission that he anticipated that an assault would occur at Ballard High School. The Washington Court of Appeals reexamined the trial record in its entirety in light of Roberts, see 109 Wash. App., at 834, 39 P. 3d, at 313–314, but found no error requiring correction. According to the court, the prosecutor’s closing argument in its entirety did not convey “that the jury could find Sarausad guilty as an accomplice to murder if he had the purpose to facilitate an offense of any kind whatsoever, even a shoving match or fist fight.” Id., at 840, 39 P. 3d, at 317. The prosecutor’s “ ‘in for a dime, in for a dollar’ ” illustration also did not convey that standard. Id., at 842–843, 39 P. 3d, at 318. The court explained that in every situation but one, the prosecutor clearly did not use that phrase to argue that Sarausad could be convicted of murder if he intended only a fistfight. Instead, she used it to convey a “gang mentality” that requires a wrong to the gang to be avenged by any means necessary. Ibid. Thus, according to the prosecutor, when a fight did not work, Sarausad knew that a shooting was required to avenge his gang. See ibid. There was one “in for a dime, in for a dollar” hypothetical in the prosecutor’s closing that did not convey this gang-mentality meaning and thus, the court recognized, “may or may not be problematic under Roberts” depending on how it was interpreted. Id., at 843, 39 P. 3d, at 318.[Footnote 3] The court concluded that it did not need to decide whether the hypothetical was improper under state law because, even if it was, it did not prejudice Sarausad. Sarausad’s jury was properly instructed and “the prosecutor made it crystal clear to the jury that the State wanted Sarausad found guilty … because he knowingly facilitated the drive-by shooting and for no other reason.” Id., at 843–844, 39 P. 3d, at 319. Sarausad sought discretionary postconviction review from the Supreme Court of Washington. In denying his petition, the court held that “the trial court correctly instructed the jury” that knowledge of the particular crime committed was required. App. to Pet. for Cert. 191a. The court also found that no prejudicial error resulted from the prosecutor’s potentially improper hypothetical. Id., at 192a. “[W]hatever the flaws in the argument, the prosecutor properly focused on Mr. Sarausad’s knowing participation in the shooting, not in some lesser altercation.” Ibid. E Sarausad filed this petition for a writ of habeas corpus in Federal District Court pursuant to 28 U. S. C. §2254. The District Court granted the petition, finding “ample evidence that the jury was confused about what elements had to be established in order for [Sarausad] to be found guilty of second degree murder and second degree attempted murder.” App. to Pet. for Cert. 129a. The Court of Appeals for the Ninth Circuit affirmed, finding that the state postconviction court unreasonably applied this Court’s decisions in Estelle v. McGuire, 502 U. S. 62 (1991), Sandstrom v. Montana, 442 U. S. 510 (1979), and In re Winship, 397 U. S. 358 (1970), in affirming Sarausad’s conviction in spite of ambiguous jury instructions and the “ ‘reasonable likelihood that the jury … applied the challenged instruction in a way’ that violates the Constitution.” 479 F. 3d, at 683 (quoting Estelle, supra, at 72). The court denied rehearing en banc over the dissent of five judges. Sarausad v. Porter, 503 F. 3d 822 (2007). We granted certiorari, 552 U. S. ___ (2008), and now reverse. II Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, a federal court may grant habeas relief on a claim “adjudicated on the merits” in state court only if the decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. §2254(d)(1). Where, as here, it is the state court’s application of governing federal law that is challenged, the decision “ ‘must be shown to be not only erroneous, but objectively unreasonable.’ ” Middleton v. McNeil, 541 U. S. 433, 436 (2004) (per curiam) (quoting Yarborough v. Gentry, 540 U. S. 1, 5 (2003) (per curiam)); see also Schriro v. Landrigan, 550 U. S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable—a substantially higher threshold”). Our habeas precedent places an “especially heavy” burden on a defendant who, like Sarausad, seeks to show constitutional error from a jury instruction that quotes a state statute. Henderson v. Kibbe, 431 U. S. 145, 155 (1977). Even if there is some “ambiguity, inconsistency, or deficiency” in the instruction, such an error does not necessarily constitute a due process violation. Middleton, supra, at 437. Rather, the defendant must show both that the instruction was ambiguous and that there was “ ‘a reasonable likelihood’ ” that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt. Estelle, supra, at 72 (quoting Boyde v. California, 494 U. S. 370, 380 (1990)). In making this determination, the jury instruction “ ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.” Estelle, supra, at 72 (quoting Cupp v. Naughten, 414 U. S. 141, 147 (1973)). Because it is not enough that there is some “slight possibility” that the jury misapplied the instruction, Weeks v. Angelone, 528 U. S. 225, 236 (2000), the pertinent question “is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,’ ” Estelle, supra, at 72 (quoting Cupp, supra, at 147). A The Washington courts reasonably concluded that the trial court’s instruction to the jury was not ambiguous. The instruction parroted the language of the statute, requiring that an accomplice “in the commission of the crime” take action “with knowledge that it will promote or facilitate the commission of the crime.” App. 16–17 (emphasis added); Wash. Rev. Code §§9A.08.020(2)(c), (3)(a) (2008). It is impossible to assign any meaning to this instruction different from the meaning given to it by the Washington courts. By its plain terms, it instructed the jury to find Sarausad guilty as an accomplice “in the commission of the [murder]” only if he acted “with knowledge that [his conduct] will promote or facilitate the commission of the [murder].” App. 16–17.[Footnote 4] Because the conclusion reached by the Washington courts that the jury instruction was unambiguous was not objectively unreasonable, the Court of Appeals’ 28 U. S. C. §2254(d)(1) inquiry should have ended there.[Footnote 5] B Even if we agreed that the instruction was ambiguous, the Court of Appeals still erred in finding that the instruction was so ambiguous as to cause a federal constitutional violation, as required for us to reverse the state court’s determination under AEDPA, 28 U. S. C. §2254(d). The Washington courts reasonably applied this Court’s precedent when they determined that there was no “reasonable likelihood” that the prosecutor’s closing argument caused Sarausad’s jury to apply the instruction in a way that relieved the State of its burden to prove every element of the crime beyond a reasonable doubt. The prosecutor consistently argued that Sarausad was guilty as an accomplice because he acted with knowledge that he was facilitating a driveby shooting. Indeed, Sarausad and Reyes had admitted under oath that they anticipated a fight, Tr. 2671, 2794, and yet the prosecutor never argued that their admission was a concession of accomplice liability for murder. She instead argued that Sarausad knew that a shooting was intended, App. 123, because he drove his car in a way that would help Ronquillo “fire those shots,” id., at 39. The closing argument of Sarausad’s attorney also homed in on the key legal question: He challenged the jury to look for evidence that Sarausad “had knowledge that his assistance would promote or facilitate the crime of premeditated murder” and argued that no such evidence existed. Id., at 83. Put simply, there was no evidence of ultimate juror confusion as to the test for accomplice liability under Washington law. Rather, the jury simply reached a unanimous decision that the State had proved Sarausad’s guilt beyond a reasonable doubt. Indeed, every state and federal appellate court that reviewed the verdict found that the evidence supporting Sarausad’s knowledge of a shooting was legally sufficient to convict him under Washington law. 479 F. 3d, at 677–683; Sarausad, 109 Wash. App., at 844–845, 39 P. 3d, at 319. Given the strength of the evidence supporting the conviction, along with the jury’s failure to convict Reyes—who also had been charged as an accomplice to murder and also had admitted knowledge of a possible fight—it was not objectively unreasonable for the Washington courts to conclude that the jury convicted Sarausad only because it believed that he, unlike Reyes, had knowledge of more than just a fistfight. The reasoning of the Court of Appeals, which failed to review the state courts’ resolution of this question through the deferential lens of AEDPA, does not convince us otherwise. First, the Court of Appeals found that the evidence of Sarausad’s knowledge of the shooting was so “thin” that the jury must have incorrectly believed that proof of such knowledge was not required. 479 F. 3d, at 692–693. That conclusion, however, is foreclosed by the Court of Appeals’ own determination that the evidence was sufficient for a rational jury to reasonably infer that Sarausad knowingly facilitated the driveby shooting. As explained above, the Court of Appeals acknowledged that the evidence showed that Ronquillo, while seated in Sarausad’s front passenger seat, tied a bandana over the lower part of his face and pulled out a gun. Id., at 681. There also was evidence that Sarausad then asked the Diablos in the other car, “ ‘Are you ready?’ ” before driving to the school and “slow[ing] his car in front of the school in a manner that facilitated a drive-by shooting.” Ibid. Other gang members testified to prior knowledge of the gun and to discussing the shooting as an option during the gang meeting held between trips to Ballard High School. Id., at 682. There also was testimony from Sarausad that he suspected that members of the Bad Side Posse would be armed when they returned to Ballard High School, ibid., making it reasonable to conclude that Sarausad would expect his gang to be similarly prepared for the confrontation. There was nothing “thin” about the evidence of Sarausad’s guilt. Second, the Court of Appeals faulted the prosecutor for arguing “clearly and forcefully” for an “in for a dime, in for a dollar” theory of accomplice liability. Id., at 693. But the Washington Court of Appeals conducted an in-depth analysis of the prosecutor’s argument and reasonably found that it contained, at most, one problematic hypothetical. Sarausad, supra, at 842–843, 39 P. 3d, at 318–319. The state court’s conclusion that the one hypothetical did not taint the proper instruction of state law was reasonable under this Court’s precedent, which acknowledges that “arguments of counsel generally carry less weight with a jury than do instructions from the court.” Boyde, 494 U. S., at 384. On habeas review, the Court of Appeals should not have dissected the closing argument and exaggerated the possible effect of one hypothetical in it. There was nothing objectively unreasonable about the Washington courts’ resolution of this question.[Footnote 6] Third, and last, the Court of Appeals believed that the jury’s questions “demonstrated substantial confusion about what the State was required to prove.” 479 F. 3d, at 693. Sarausad focuses special attention on this factor, arguing that it was the “failure to remedy” this confusion that sets this case apart from previous decisions and establishes that the jury likely “did not understand accomplice liability” when it returned its verdict. Brief for Respondent 29, 31. But this Court has determined that the Constitution generally requires nothing more from a trial judge than the type of answers given to the jury here. Weeks, 528 U. S., at 234. Where a judge “respond[s] to the jury’s question by directing its attention to the precise paragraph of the constitutionally adequate instruction that answers its inquiry,” and the jury asks no followup question, this Court has presumed that the jury fully understood the judge’s answer and appropriately applied the jury instructions. Ibid. Under this established standard, it was not objectively unreasonable for the state court to conclude that Sarausad’s jury received the answers it needed to resolve its confusion.[Footnote 7] Its questions were spaced throughout seven days of deliberations, involved different criminal charges, and implicated the interrelation of several different jury instructions. The judge pinpointed his answers to the particular instructions responsive to the questions and those instructions reflected state law. Under these circumstances, the state court did not act in an objectively unreasonable manner in finding that the jury knew the proper legal standard for conviction. III Because the state-court decision did not result in an “unreasonable application of … clearly established Federal law,” 28 U. S. C. §2254(d)(1), the Court of Appeals erred in granting a writ of habeas corpus to Sarausad. The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Washington’s accomplice-liability statute provides, in pertinent part: “A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when: . . . . . “He is an accomplice of such other person in the commission of the crime. “A person is an accomplice of another person in the commission of a crime if … [w]ith knowledge that it will promote or facilitate the commission of the crime, he “(i) solicits, commands, encourages, or requests such other person to commit it; or “(ii) aids or agrees to aid such other person in planning or committing it.” Wash. Rev. Code §§9A.08.020(1)–(3) (2008) (internal numbering omitted). Footnote 2 The instruction found faulty in Roberts provided in full: “You are instructed that a person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of a crime. “A person is an accomplice in the commission of a crime, whether present at the time of its commission or not, if, with knowledge that it will promote or facilitate its commission, he either: “(a) solicits, commands, encourages, or requests another person to commit the crime; or “(b) aids or agrees to aid another person in planning or committing the crime.” 142 Wash. 2d, at 488–489, 14 P. 3d, at 724 (emphasis added). Footnote 3 The prosecutor had argued in the hypothetical that an accomplice who knows that he is helping someone assault a victim bears responsibility if the victim is killed. The hypothetical stated in full: “Let me give you a good example of accomplice liability. A friend comes up to you and says, ‘Hold this person’s arms while I hit him.’ You say, ‘Okay, I don’t know that person, anyway.’ You hold the arms. The person not only gets assaulted, he gets killed. You are an accomplice and you can’t come back and say, ‘Well, I only intended this much damage to happen.’ Your presence, your readiness to assist caused the crime to occur and you are an accomplice. The law in the State of Washington says, if you’re in for a dime, you’re in for a dollar. If you’re there or even if you’re not there and you’re helping in some fashion to bring about this crime, you are just as guilty.” App. 38. Footnote 4 The dissent would reverse the Washington state courts based on the alleged confusion in Washington courts, and specifically in the Washington Court of Appeals on direct review, about the meaning of the Washington accomplice liability statute. Post, at 2–5 (opinion of Souter, J.). But the confusion in the Court of Appeals over the application of the statute involved the related, but legally distinct, question whether an accomplice is required to share the specific intent of the principal actor under Washington law. On direct appeal, respondent argued that he should not have been convicted as an accomplice to murder because he did not have the specific intent to kill. The Washington Court of Appeals rejected that argument because “it was not necessary for the State to prove Sarausad knew Ronquillo had a gun, or knew that there was a potential for gunplay that day” under Washington law, App. to Pet. for Cert. 266a, where “accomplice liability predicates criminal liability on general knowledge of a crime, rather than specific knowledge of the elements of the principal’s crime,” id., at 259a. But the Washington Court of Appeals never held that knowledge of a completely different crime, such as assault, would be sufficient under Washington law for accomplice liability for murder. See id., at 258a–259a; see also In re Domingo, 155 Wash. 2d 356, 367–368, 119 P. 3d 816, 822 (2005) (“[N]either Davis nor any of this court’s decisions subsequent to Davis approves of the proposition that accomplice liability attaches for any and all crimes committed by the principal so long as the putative accomplice knowingly aided in any one of the crimes”). In other words, the Court of Appeals had evaluated whether respondent’s conviction required a specific intent versus a general intent to kill, not whether it required knowledge of a murder versus knowledge of an assault—the issue under review here. Thus, the confusion in the state courts referenced by the dissent has no bearing on the question presented in this appeal, and does not support the dissent’s argument that the jury instruction in question was ambiguous. Footnote 5 To the extent that the Court of Appeals attempted to rewrite state law by proposing that the instruction should have included “an explicit statement that an accomplice must have knowledge of … the actual crime the principal intends to commit,” 479 F. 3d 671, 689–690 (CA9 2007), it compounded its error. The Washington Supreme Court expressly held that the jury instruction correctly set forth state law, App. to Pet. for Cert. 191a, and we have repeatedly held that “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U. S. 62, 67–68 (1991). Footnote 6 The dissent accuses us of downplaying this ambiguous hypothetical, arguing that it is so rife with improper meaning that it “infect[ed] every further statement bearing on accomplice law the prosecutor made,” post, at 7, and ensured that the jury misinterpreted the trial court’s properly-phrased instruction. We disagree. The proper inquiry is whether the state court was objectively unreasonable in concluding that the instruction (which precisely tracked the language of the accomplice-liability statute) was not warped by this one-paragraph hypothetical in an argument and rebuttal spanning 31 pages of the joint appendix. The state court’s conclusion was not unreasonable. The hypothetical was presented during closing arguments, which juries generally “vie[w] as the statements of advocates” rather than “as definitive and binding statements of the law,” Boyde v. California, 494 U. S. 370, 384 (1990), and which, as a whole, made clear that the State sought a guilty verdict based solely on Sarausad’s “knowledge that his assistance would promote or facilitate the crime of premeditated murder,” App. 83; see also id., at 123–124. Footnote 7 The dissent argues that we “sideste[p] the thrust of this record” by finding that the trial judge’s answers to the jury’s questions were satisfactory. Post, at 9–10. But our decision cannot turn on a de novo review of the record or a finding that the answers were “the best way to answer jurors’ questions,” id., at 10. On federal habeas review, this Court’s inquiry is limited to whether the state court violated clearly established federal law when it held that the jury applied the correct standard, in light of the answers given to its questions. See 28 U. S. C. §2254(d)(1). On that issue, the state court was not objectively unreasonable; the jury’s questions were answered in a manner previously approved by this Court, and they consistently referred the jury to the correct standard for accomplice liability in Washington. The dissent also ignores the important fact that the jury convicted Ronquillo of first-degree murder, convicted respondent of second-degree murder, and failed to reach an agreement on Reyes’ guilt, causing a mistrial on the first-degree murder charge pending against him. The jury’s assignment of culpability to two of the codefendants, versus its deadlock over a third who, like respondent, conceded knowledge of an assault, demonstrates that the jury understood the legal significance of each defendant’s relative knowledge and intent with respect to the murder. |
555.US.2008_07-1239 | Antisubmarine warfare is one of the Navy’s highest priorities. The Navy’s fleet faces a significant threat from modern diesel-electric submarines, which are extremely difficult to detect and track because they can operate almost silently. The most effective tool for identifying submerged diesel-electric submarines is active sonar, which emits pulses of sound underwater and then receives the acoustic waves that echo off the target. Active sonar is a complex technology, and sonar operators must undergo extensive training to become proficient in its use. This case concerns the Navy’s use of “mid-frequency active” (MFA) sonar during integrated training exercises in the waters off southern California (SOCAL). In these exercises, ships, submarines, and aircraft train together as members of a “strike group.” Due to the importance of antisubmarine warfare, a strike group may not be certified for deployment until it demonstrates proficiency in the use of active sonar to detect, track, and neutralize enemy submarines. The SOCAL waters contain at least 37 species of marine mammals. The plaintiffs—groups and individuals devoted to the protection of marine mammals and ocean habitats—assert that MFA sonar causes serious injuries to these animals. The Navy disputes that claim, noting that MFA sonar training in SOCAL waters has been conducted for 40 years without a single documented sonar-related injury to any marine mammal. Plaintiffs sued the Navy, seeking declaratory and injunctive relief on the grounds that the training exercises violated the National Environmental Policy Act of 1969 (NEPA) and other federal laws; in particular, plaintiffs contend that the Navy should have prepared an environmental impact statement (EIS) before conducting the latest round of SOCAL exercises. The District Court entered a preliminary injunction prohibiting the Navy from using MFA sonar during its training exercises. The Court of Appeals held that this injunction was overbroad and remanded to the District Court for a narrower remedy. The District Court then entered another preliminary injunction, imposing six restrictions on the Navy’s use of sonar during its SOCAL training exercises. As relevant to this case, the injunction required the Navy to shut down MFA sonar when a marine mammal was spotted within 2,200 yards of a vessel, and to power down sonar by 6 decibels during conditions known as “surface ducting.” The Navy then sought relief from the Executive Branch. The Council on Environmental Quality (CEQ) authorized the Navy to implement “alternative arrangements” to NEPA compliance in light of “emergency circumstances.” The CEQ allowed the Navy to continue its training exercises under voluntary mitigation procedures that the Navy had previously adopted. The Navy moved to vacate the District Court’s preliminary injunction in light of the CEQ’s actions. The District Court refused to do so, and the Court of Appeals affirmed. The Court of Appeals held that there was a serious question whether the CEQ’s interpretation of the “emergency circumstances” regulation was lawful, that plaintiffs had carried their burden of establishing a “possibility” of irreparable injury, and that the preliminary injunction was appropriate because the balance of hardships and consideration of the public interest favored the plaintiffs. The Court of Appeals emphasized that any negative impact of the injunction on the Navy’s training exercises was “speculative,” and determined that (1) the 2,200-yard shutdown zone was unlikely to affect naval operations, because MFA sonar systems are often shut down during training exercises; and (2) the power-down requirement during surface ducting conditions was not unreasonable, because such conditions are rare and the Navy has previously certified strike groups not trained under these conditions. Held: The preliminary injunction is vacated to the extent challenged by the Navy. The balance of equities and the public interest—which were barely addressed by the District Court—tip strongly in favor of the Navy. The Navy’s need to conduct realistic training with active sonar to respond to the threat posed by enemy submarines plainly outweighs the interests advanced by the plaintiffs. Pp. 10–24. (a) The lower courts held that when a plaintiff demonstrates a strong likelihood of success on the merits, a preliminary injunction may be entered based only on a “possibility” of irreparable harm. The “possibility” standard is too lenient. This Court’s frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Even if plaintiffs have demonstrated a likelihood of irreparable injury, such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. For the same reason, it is unnecessary to address the lower courts’ holding that plaintiffs have established a likelihood of success on the merits. Pp. 10–14. (b) A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and consider the effect of granting or withholding the requested relief, paying particular regard to the public consequences. Weinberger v. Romero-Barcelo, 456 U. S. 305, 312. Military interests do not always trump other considerations, and the Court has not held that they do, but courts must give deference to the professional judgment of military authorities concerning the relative importance of a particular military interest. Goldman v. Weinberger, 475 U. S. 503, 507. Here, the record contains declarations from some of the Navy’s most senior officers, all of whom underscored the threat posed by enemy submarines and the need for extensive sonar training to counter this threat. Those officers emphasized that realistic training cannot be accomplished under the two challenged restrictions imposed by the District Court—the 2,200-yard shutdown zone and the power-down requirement during surface ducting conditions. The use of MFA sonar under realistic conditions during training exercises is clearly of the utmost importance to the Navy and the Nation. The Court does not question the importance of plaintiffs’ ecological, scientific, and recreational interests, but it concludes that the balance of equities and consideration of the overall public interest tip strongly in favor of the Navy. The determination of where the public interest lies in this case does not strike the Court as a close question. Pp. 14–16. (c) The lower courts’ justifications for entering the preliminary injunction are not persuasive. Pp. 16–21. (1) The District Court did not give serious consideration to the balance of equities and the public interest. The Court of Appeals did consider these factors and conclude that the Navy’s concerns about the preliminary injunction were “speculative.” But that is almost always the case when a plaintiff seeks injunctive relief to alter a defendant’s conduct. The lower courts failed properly to defer to senior Navy officers’ specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy’s SOCAL training exercises. Pp. 16–17. (2) The District Court abused its discretion by requiring the Navy to shut down MFA sonar when a marine mammal is spotted within 2,200 yards of a sonar-emitting vessel. The Court of Appeals concluded that the zone would not be overly burdensome because marine mammal sightings during training exercises are relatively rare. But regardless of the frequency of such sightings, the injunction will increase the radius of the shutdown zone from 200 to 2,200 yards, which expands its surface area by a factor of over 100. Moreover, because training scenarios can take several days to develop, each additional shutdown can result in the loss of several days’ worth of training. The Court of Appeals also concluded that the shutdown zone would not be overly burdensome because the Navy had shut down MFA sonar several times during prior exercises when marine mammals were spotted well beyond the Navy’s self-imposed 200-yard zone. But the court ignored undisputed evidence that these voluntary shutdowns only occurred during tactically insignificant times. Pp. 18–20. (3) The District Court also abused its discretion by requiring the Navy to power down MFA sonar by 6 decibels during significant surface ducting conditions. When surface ducting occurs, active sonar becomes more useful near the surface, but less effective at greater depths. Diesel-electric submariners are trained to take advantage of these distortions to avoid being detected by sonar. The Court of Appeals concluded that the power-down requirement was reasonable because surface ducting occurs relatively rarely, and the Navy has previously certified strike groups that did not train under such conditions. This reasoning is backwards. Given that surface ducting is both rare and unpredictable, it is especially important for the Navy to be able to train under these conditions when they occur. Pp. 20–21. (4) The Navy has previously taken voluntary measures to address concerns about marine mammals, and has chosen not to challenge four other restrictions imposed by the District Court in this case. But that hardly means that other, more intrusive restrictions pose no threat to preparedness for war. The Court of Appeals noted that the Navy could return to the District Court to seek modification of the preliminary injunction if it actually resulted in an inability to train. The Navy is not required to wait until it is unable to train sufficient forces for national defense before seeking dissolution of the preliminary injunction. By then it may be too late. P. 21. (d) This Court does not address the underlying merits of plaintiffs’ claims, but the foregoing analysis makes clear that it would also be an abuse of discretion to enter a permanent injunction along the same lines as the preliminary injunction. Plaintiffs’ ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training. There is accordingly no basis for enjoining such training pending preparation of an EIS—if one is determined to be required—when doing so is credibly alleged to pose a serious threat to national security. There are many other remedial tools available, including declaratory relief or an injunction specifically tailored to preparation of an EIS, that do not carry such dire consequences. Pp. 21–23. 518 F. 3d 658, reversed; preliminary injunction vacated in part. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined as to Part I. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined. | “To be prepared for war is one of the most effectual means of preserving peace.” 1 Messages and Papers of the Presidents 57 (J. Richardson comp. 1897). So said George Washington in his first Annual Address to Congress, 218 years ago. One of the most important ways the Navy prepares for war is through integrated training exercises at sea. These exercises include training in the use of modern sonar to detect and track enemy submarines, something the Navy has done for the past 40 years. The plaintiffs complained that the Navy’s sonar training program harmed marine mammals, and that the Navy should have prepared an environmental impact statement before commencing its latest round of training exercises. The Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy’s sonar training, even though that court acknowledged that “the record contains no evidence that marine mammals have been harmed” by the Navy’s exercises. 518 F. 3d 658, 696 (CA9 2008). The Court of Appeals was wrong, and its decision is reversed. I The Navy deploys its forces in “strike groups,” which are groups of surface ships, submarines, and aircraft centered around either an aircraft carrier or an amphibious assault ship. App. to Pet. for Cert. (Pet. App.) 316a–317a. Seamless coordination among strike-group assets is critical. Before deploying a strike group, the Navy requires extensive integrated training in analysis and prioritization of threats, execution of military missions, and maintenance of force protection. App. 110–111. Antisubmarine warfare is currently the Pacific Fleet’s top war-fighting priority. Pet. App. 270a–271a. Modern diesel-electric submarines pose a significant threat to Navy vessels because they can operate almost silently, making them extremely difficult to detect and track. Potential adversaries of the United States possess at least 300 of these submarines. App. 571. The most effective technology for identifying submerged diesel-electric submarines within their torpedo range is active sonar, which involves emitting pulses of sound underwater and then receiving the acoustic waves that echo off the target. Pet. App. 266a–267a, 274a. Active sonar is a particularly useful tool because it provides both the bearing and the distance of target submarines; it is also sensitive enough to allow the Navy to track enemy submarines that are quieter than the surrounding marine environment.[Footnote 1] This case concerns the Navy’s use of “mid-frequency active” (MFA) sonar, which transmits sound waves at frequencies between 1 kHz and 10 kHz. Not surprisingly, MFA sonar is a complex technology, and sonar operators must undergo extensive training to become proficient in its use. Sonar reception can be affected by countless different factors, including the time of day, water density, salinity, currents, weather conditions, and the contours of the sea floor. Id., at 278a–279a. When working as part of a strike group, sonar operators must be able to coordinate with other Navy ships and planes while avoiding interference. The Navy conducts regular training exercises under realistic conditions to ensure that sonar operators are thoroughly skilled in its use in a variety of situations. The waters off the coast of southern California (SOCAL) are an ideal location for conducting integrated training exercises, as this is the only area on the west coast that is relatively close to land, air, and sea bases, as well as amphibious landing areas. App. 141–142. At issue in this case are the Composite Training Unit Exercises and the Joint Tactical Force Exercises, in which individual naval units (ships, submarines, and aircraft) train together as members of a strike group. A strike group cannot be certified for deployment until it has successfully completed the integrated training exercises, including a demonstration of its ability to operate under simulated hostile conditions. Id., at 564–565. In light of the threat posed by enemy submarines, all strike groups must demonstrate proficiency in antisubmarine warfare. Accordingly, the SOCAL exercises include extensive training in detecting, tracking, and neutralizing enemy submarines. The use of MFA sonar during these exercises is “mission-critical,” given that MFA sonar is the only proven method of identifying submerged diesel-electric submarines operating on battery power. Id., at 568–571. Sharing the waters in the SOCAL operating area are at least 37 species of marine mammals, including dolphins, whales, and sea lions. The parties strongly dispute the extent to which the Navy’s training activities will harm those animals or disrupt their behavioral patterns. The Navy emphasizes that it has used MFA sonar during training exercises in SOCAL for 40 years, without a single documented sonar-related injury to any marine mammal. The Navy asserts that, at most, MFA sonar may cause temporary hearing loss or brief disruptions of marine mammals’ behavioral patterns. The plaintiffs are the Natural Resources Defense Council, Jean-Michael Cousteau (an environmental enthusiast and filmmaker), and several other groups devoted to the protection of marine mammals and ocean habitats. They contend that MFA sonar can cause much more serious injuries to marine mammals than the Navy acknowledges, including permanent hearing loss, decompression sickness, and major behavioral disruptions. According to the plaintiffs, several mass strandings of marine mammals (outside of SOCAL) have been “associated” with the use of active sonar. They argue that certain species of marine mammals—such as beaked whales—are uniquely susceptible to injury from active sonar; these injuries would not necessarily be detected by the Navy, given that beaked whales are “very deep divers” that spend little time at the surface. II The procedural history of this case is rather complicated. The Marine Mammal Protection Act of 1972 (MMPA), 86 Stat. 1027, generally prohibits any individual from “taking” a marine mammal, defined as harassing, hunting, capturing, or killing it. 16 U. S. C. §§1362(13), 1372(a). The Secretary of Defense may “exempt any action or category of actions” from the MMPA if such actions are “necessary for national defense.” §1371(f)(1). In January 2007, the Deputy Secretary of Defense—acting for the Secretary—granted the Navy a 2-year exemption from the MMPA for the training exercises at issue in this case. Pet. App. 219a–220a. The exemption was conditioned on the Navy adopting several mitigation procedures, including: (1) training lookouts and officers to watch for marine mammals; (2) requiring at least five lookouts with binoculars on each vessel to watch for anomalies on the water surface (including marine mammals); (3) requiring aircraft and sonar operators to report detected marine mammals in the vicinity of the training exercises; (4) requiring reduction of active sonar transmission levels by 6 dB if a marine mammal is detected within 1,000 yards of the bow of the vessel, or by 10 dB if detected within 500 yards; (5) requiring complete shutdown of active sonar transmission if a marine mammal is detected within 200 yards of the vessel; (6) requiring active sonar to be operated at the “lowest practicable level”; and (7) adopting coordination and reporting procedures. Id., at 222a–230a. The National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, requires federal agencies “to the fullest extent possible” to prepare an environmental impact statement (EIS) for “every . . . major Federal actio[n] significantly affecting the quality of the human environment.” 42 U. S. C. §4332(2)(C) (2000 ed.). An agency is not required to prepare a full EIS if it determines—based on a shorter environmental assessment (EA)—that the proposed action will not have a significant impact on the environment. 40 CFR §§1508.9(a), 1508.13 (2007). In February 2007, the Navy issued an EA concluding that the 14 SOCAL training exercises scheduled through January 2009 would not have a significant impact on the environment. App. 226–227. The EA divided potential injury to marine mammals into two categories: Level A harassment, defined as the potential destruction or loss of biological tissue (i.e., physical injury), and Level B harassment, defined as temporary injury or disruption of behavioral patterns such as migration, feeding, surfacing, and breeding. Id., at 160–161. The Navy’s computer models predicted that the SOCAL training exercises would cause only eight Level A harassments of common dolphins each year, and that even these injuries could be avoided through the Navy’s voluntary mitigation measures, given that dolphins travel in large pods easily located by Navy lookouts. Id., at 176–177, 183. The EA also predicted 274 Level B harassments of beaked whales per year, none of which would result in permanent injury. Id., at 185–186. Beaked whales spend little time at the surface, so the precise effect of active sonar on these mammals is unclear. Erring on the side of caution, the Navy classified all projected harassments of beaked whales as Level A. Id., at 186, 223. In light of its conclusion that the SOCAL training exercises would not have a significant impact on the environment, the Navy determined that it was unnecessary to prepare a full EIS. See 40 CFR §1508.13. Shortly after the Navy released its EA, the plaintiffs sued the Navy, seeking declaratory and injunctive relief on the grounds that the Navy’s SOCAL training exercises violated NEPA, the Endangered Species Act of 1973 (ESA), and the Coastal Zone Management Act of 1972 (CZMA).[Footnote 2] The District Court granted plaintiffs’ motion for a preliminary injunction and prohibited the Navy from using MFA sonar during its remaining training exercises. The court held that plaintiffs had “demonstrated a probability of success” on their claims under NEPA and the CZMA. Pet. App. 207a, 215a. The court also determined that equitable relief was appropriate because, under Ninth Circuit precedent, plaintiffs had established at least a “ ‘possibility’ ” of irreparable harm to the environment. Id., at 217a. Based on scientific studies, declarations from experts, and other evidence in the record, the District Court concluded that there was in fact a “near certainty” of irreparable injury to the environment, and that this injury outweighed any possible harm to the Navy. Id., at 217a–218a. The Navy filed an emergency appeal, and the Ninth Circuit stayed the injunction pending appeal. 502 F. 3d 859, 865 (2007). After hearing oral argument, the Court of Appeals agreed with the District Court that preliminary injunctive relief was appropriate. The appellate court concluded, however, that a blanket injunction prohibiting the Navy from using MFA sonar in SOCAL was overbroad, and remanded the case to the District Court “to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises.” 508 F. 3d 885, 887 (2007). On remand, the District Court entered a new preliminary injunction allowing the Navy to use MFA sonar only as long as it implemented the following mitigation measures (in addition to the measures the Navy had adopted pursuant to its MMPA exemption): (1) imposing a 12-mile “exclusion zone” from the coastline; (2) using lookouts to conduct additional monitoring for marine mammals; (3) restricting the use of “helicopter-dipping” sonar; (4) limiting the use of MFA sonar in geographic “choke points”; (5) shutting down MFA sonar when a marine mammal is spotted within 2,200 yards of a vessel; and (6) powering down MFA sonar by 6 dB during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water. 530 F. Supp. 2d 1110, 1118–1121 (CD Cal. 2008). The Navy filed a notice of appeal, challenging only the last two restrictions. The Navy then sought relief from the Executive Branch. The President, pursuant to 16 U. S. C. §1456(c)(1)(B), granted the Navy an exemption from the CZMA. Section 1456(c)(1)(B) permits such exemptions if the activity in question is “in the paramount interest of the United States.” The President determined that continuation of the exercises as limited by the Navy was “essential to national security.” Pet. App. 232a. He concluded that compliance with the District Court’s injunction would “undermine the Navy’s ability to conduct realistic training exercises that are necessary to ensure the combat effectiveness of . . . strike groups.” Ibid. Simultaneously, the Council on Environmental Quality (CEQ) authorized the Navy to implement “alternative arrangements” to NEPA compliance in light of “emergency circumstances.” See 40 CFR §1506.11.[Footnote 3] The CEQ determined that alternative arrangements were appropriate because the District Court’s injunction “create[s] a significant and unreasonable risk that Strike Groups will not be able to train and be certified as fully mission capable.” Pet. App. 238a. Under the alternative arrangements, the Navy would be permitted to conduct its training exercises under the mitigation procedures adopted in con- junction with the exemption from the MMPA. The CEQ also imposed additional notice, research, and reporting requirements. In light of these actions, the Navy then moved to vacate the District Court’s injunction with respect to the 2,200-yard shutdown zone and the restrictions on training in surface ducting conditions. The District Court refused to do so, 527 F. Supp. 2d 1216 (2008), and the Court of Appeals affirmed. The Ninth Circuit held that there was a serious question regarding whether the CEQ’s interpretation of the “emergency circumstances” regulation was lawful. Specifically, the court questioned whether there was a true “emergency” in this case, given that the Navy has been on notice of its obligation to comply with NEPA from the moment it first planned the SOCAL training exercises. 518 F. 3d, at 681. The Court of Appeals concluded that the preliminary injunction was entirely predictable in light of the parties’ litigation history. Ibid. The court also held that plaintiffs had established a likelihood of success on their claim that the Navy was required to prepare a full EIS for the SOCAL training exercises. Id., at 693. The Ninth Circuit agreed with the District Court’s holding that the Navy’s EA—which resulted in a finding of no significant environmental impact—was “cursory, unsupported by cited evidence, or unconvincing.” Ibid.[Footnote 4] The Court of Appeals further determined that plaintiffs had carried their burden of establishing a “possibility” of irreparable injury. Even under the Navy’s own figures, the court concluded, the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturbances of marine mammals’ behavior. Id., at 696. Lastly, the Court of Appeals held that the balance of hardships and consideration of the public interest weighed in favor of the plaintiffs. The court emphasized that the negative impact on the Navy’s training exercises was “speculative,” since the Navy has never before operated under the procedures required by the District Court. Id., at 698–699. In particular, the court determined that: (1) the 2,200-yard shutdown zone imposed by the District Court was unlikely to affect the Navy’s operations, because the Navy often shuts down its MFA sonar systems during the course of training exercises; and (2) the power-down requirement during significant surface ducting conditions was not unreasonable because such conditions are rare, and the Navy has previously certified strike groups that had not trained under such conditions. Id., at 699–702. The Ninth Circuit concluded that the District Court’s preliminary injunction struck a proper balance between the competing interests at stake. We granted certiorari, 554 U. S. __ (2008), and now reverse and vacate the injunction. III A A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. See Munaf v. Geren, 553 U. S. __, __ (2008) (slip op., at 12); Amoco Production Co. v. Gambell, 480 U. S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U. S. 305, 311–312 (1982). The District Court and the Ninth Circuit concluded that plaintiffs have shown a likelihood of success on the merits of their NEPA claim. The Navy strongly disputes this determination, arguing that plaintiffs’ likelihood of success is low because the CEQ reasonably concluded that “emergency circumstances” justified alternative arrangements to NEPA compliance. 40 CFR §1506.11. Plaintiffs’ briefs before this Court barely discuss the ground relied upon by the lower courts—that the plain meaning of “emergency circumstances” does not encompass a court order that was “entirely predictable” in light of the parties’ litigation history. 518 F. 3d, at 681. Instead, plaintiffs contend that the CEQ’s actions violated the separation of powers by readjudicating a factual issue already decided by an Article III court. Moreover, they assert that the CEQ’s interpretations of NEPA are not entitled to deference because the CEQ has not been given statutory authority to conduct adjudications. The District Court and the Ninth Circuit also held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a “possibility” of irreparable harm. Id., at 696–697; 530 F. Supp. 2d, at 1118 (quoting Faith Center Church Evangelistic Ministries v. Glover, 480 F. 3d 891, 906 (CA9 2007); Earth Island Inst. v. United States Forest Serv., 442 F. 3d 1147, 1159 (CA9 2006)). The lower courts held that plaintiffs had met this standard because the scientific studies, declarations, and other evidence in the record established to “a near certainty” that the Navy’s training exercises would cause irreparable harm to the environment. 530 F. Supp. 2d, at 1118. The Navy challenges these holdings, arguing that plaintiffs must demonstrate a likelihood of irreparable injury—not just a possibility—in order to obtain preliminary relief. On the facts of this case, the Navy contends that plaintiffs’ alleged injuries are too speculative to give rise to irreparable injury, given that ever since the Navy’s training program began 40 years ago, there has been no documented case of sonar-related injury to marine mammals in SOCAL. And even if MFA sonar does cause a limited number of injuries to individual marine mammals, the Navy asserts that plaintiffs have failed to offer evidence of species-level harm that would adversely affect their scientific, recreational, and ecological interests. For their part, plaintiffs assert that they would prevail under any formulation of the irreparable injury standard, because the District Court found that they had established a “near certainty” of irreparable harm. We agree with the Navy that the Ninth Circuit’s “possibility” standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Los Angeles v. Lyons, 461 U. S. 95, 103 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U. S. 423, 441 (1974); O’Shea v. Littleton, 414 U. S. 488, 502 (1974); see also 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.1, p. 139 (2d ed. 1995) (hereinafter Wright & Miller) (applicant must demonstrate that in the absence of a preliminary injunction, “the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered”); id., at 155 (“a preliminary injunction will not be issued simply to prevent the possibility of some remote future injury”). Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U. S. 968, 972 (1997) (per curiam). It is not clear that articulating the incorrect standard affected the Ninth Circuit’s analysis of irreparable harm. Although the court referred to the “possibility” standard, and cited Circuit precedent along the same lines, it affirmed the District Court’s conclusion that plaintiffs had established a “ ‘near certainty’ ” of irreparable harm. 518 F. 3d, at 696–697. At the same time, however, the nature of the District Court’s conclusion is itself unclear. The District Court originally found irreparable harm from sonar-training exercises generally. But by the time of the District Court’s final decision, the Navy challenged only two of six restrictions imposed by the court. See supra, at 7–8. The District Court did not reconsider the likelihood of irreparable harm in light of the four restrictions not challenged by the Navy. This failure is significant in light of the District Court’s own statement that the 12-mile exclusion zone from the coastline—one of the unchallenged mitigation restrictions—“would bar the use of MFA sonar in a significant portion of important marine mammal habitat.” 530 F. Supp. 2d, at 1119. We also find it pertinent that this is not a case in which the defendant is conducting a new type of activity with completely unknown effects on the environment. When the Government conducts an activity, “NEPA itself does not mandate particular results.” Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 350 (1989). Instead, NEPA imposes only procedural requirements to “ensur[e] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” Id., at 349. Part of the harm NEPA attempts to prevent in requiring an EIS is that, without one, there may be little if any information about prospective environmental harms and potential mitigating measures. Here, in contrast, the plaintiffs are seeking to enjoin—or substantially restrict—training exercises that have been taking place in SOCAL for the last 40 years. And the latest series of exercises were not approved until after the defendant took a “hard look at environmental consequences,” id., at 350 (quoting Kleppe v. Sierra Club, 427 U. S. 390, 410, n. 21 (1976) (internal quotation marks omitted)), as evidenced by the issuance of a detailed, 293-page EA. As explained in the next section, even if plaintiffs have shown irreparable injury from the Navy’s training exercises, any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief. For the same reason, we do not address the lower courts’ holding that plaintiffs have also established a likelihood of success on the merits. B A preliminary injunction is an extraordinary remedy never awarded as of right. Munaf, 553 U. S., at __ (slip op., at 12). In each case, courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Production Co., 480 U. S., at 542. “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Romero-Barcelo, 456 U. S., at 312; see also Railroad Comm’n of Tex. v. Pullman Co., 312 U. S. 496, 500 (1941). In this case, the District Court and the Ninth Circuit significantly understated the burden the preliminary injunction would impose on the Navy’s ability to conduct realistic training exercises, and the injunction’s consequent adverse impact on the public interest in national defense. This case involves “complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force,” which are “essentially professional military judgments.” Gilligan v. Morgan, 413 U. S. 1, 10 (1973). We “give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.” Goldman v. Weinberger, 475 U. S. 503, 507 (1986). As the Court emphasized just last Term, “neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” Boumediene v. Bush, 553 U. S. __, __ (2008) (slip op., at 68). Here, the record contains declarations from some of the Navy’s most senior officers, all of whom underscored the threat posed by enemy submarines and the need for extensive sonar training to counter this threat. Admiral Gary Roughead—the Chief of Naval Operations—stated that during training exercises: “It is important to stress the ship crews in all dimensions of warfare simultaneously. If one of these training elements were impacted—for example, if effective sonar training were not possible—the training value of the other elements would also be degraded . . . .” Pet. App. 342a. Captain Martin May—the Third Fleet’s Assistant Chief of Staff for Training and Readiness—emphasized that the use of MFA sonar is “mission-critical.” App. 570–571. He described the ability to operate MFA sonar as a “highly perishable skill” that must be repeatedly practiced under realistic conditions. Id., at 577. During training exercises, MFA sonar operators learn how to avoid sound-reducing “clutter” from ocean floor topography and environmental conditions; they also learn how to avoid interference and how to coordinate their efforts with other sonar operators in the strike group. Id., at 574. Several Navy officers emphasized that realistic training cannot be accomplished under the two challenged restrictions imposed by the District Court—the 2,200-yard shutdown zone and the requirement that the Navy power down its sonar systems during significant surface ducting conditions. See, e.g., Pet. App. 333a (powering down in presence of surface ducting “unreasonably prevent[s] realistic training”); id., at 356a (shutdown zone would “result in a significant, adverse impact to realistic training”). We accept these officers’ assertions that the use of MFA sonar under realistic conditions during training exercises is of the utmost importance to the Navy and the Nation. These interests must be weighed against the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court. Plaintiffs have submitted declarations asserting that they take whale watching trips, observe marine mammals underwater, conduct scientific research on marine mammals, and photograph these animals in their natural habitats. Plaintiffs contend that the Navy’s use of MFA sonar will injure marine mammals or alter their behavioral patterns, impairing plaintiffs’ ability to study and observe the animals. While we do not question the seriousness of these interests, we conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy. For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet. Active sonar is the only reliable technology for detecting and tracking enemy diesel-electric submarines, and the President—the Commander in Chief—has determined that training with active sonar is “essential to national security.” Pet. App. 232a. The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question. C 1. Despite the importance of assessing the balance of equities and the public interest in determining whether to grant a preliminary injunction, the District Court addressed these considerations in only a cursory fashion. The court’s entire discussion of these factors consisted of one (albeit lengthy) sentence: “The Court is also satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period.” Id., at 217a–218a. As the prior Ninth Circuit panel in this case put it, in staying the District Court’s original preliminary injunction, “[t]he district court did not give serious consideration to the public interest factor.” 502 F. 3d, at 863. The District Court’s order on remand did nothing to cure this defect, but simply repeated nearly verbatim the same sentence from its previous order. Compare 530 F. Supp. 2d, at 1118, with Pet. App. 217a–218a. The subsequent Ninth Circuit panel framed its opinion as reviewing the District Court’s exercise of discretion, 518 F. 3d, at 697–699, but that discretion was barely exercised here. The Court of Appeals held that the balance of equities and the public interest favored the plaintiffs, largely based on its view that the preliminary injunction would not in fact impose a significant burden on the Navy’s ability to conduct its training exercises and certify its strike groups. Id., at 698–699. The court deemed the Navy’s concerns about the preliminary injunction “speculative” because the Navy had not operated under similar procedures before. Ibid. But this is almost always the case when a plaintiff seeks injunctive relief to alter a defendant’s conduct. The lower courts failed properly to defer to senior Navy officers’ specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy’s SOCAL training exercises. See Wright & Miller §2948.2, at 167–68 (“The policy against the imposition of judicial restraints prior to an adjudication of the merits becomes more significant when there is reason to believe that the decree will be burdensome”). 2. The preliminary injunction requires the Navy to shut down its MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-emitting vessel. The Ninth Circuit stated that the 2,200-yard shutdown zone would not be overly burdensome because sightings of marine mammals during training exercises are relatively rare. But regardless of the frequency of marine mammal sightings, the injunction will greatly increase the size of the shutdown zone. Pursuant to its exemption from the MMPA, the Navy agreed to reduce the power of its MFA sonar at 1,000 yards and 500 yards, and to completely turn off the system at 200 yards. Pet. App. 222a–230a. The District Court’s injunction does not include a graduated power-down, instead requiring a total shutdown of MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-emitting vessel. There is an exponential relationship between radius length and surface area (Area = r2). Increasing the radius of the shutdown zone from 200 to 2,200 yards would accordingly expand the surface area of the shutdown zone by a factor of over 100 (from 125,664 square yards to 15,205,308 square yards). The lower courts did not give sufficient weight to the views of several top Navy officers, who emphasized that because training scenarios can take several days to develop, each additional shutdown can result in the loss of several days’ worth of training. Id., at 344a. Limiting the number of sonar shutdowns is particularly important during the Joint Tactical Force Exercises, which usually last for less than two weeks. Ibid. Admiral Bird explained that the 2,200-yard shutdown zone would cause operational commanders to “lose awareness of the tactical situation through the constant stopping and starting of MFA [sonar].” Id., at 332a; see also id., at 356a (“It may take days to get to the pivotal attack in antisubmarine warfare, but only minutes to confound the results upon which certification is based”). Even if there is a low likelihood of a marine mammal sighting, the preliminary injunction would clearly increase the number of disruptive sonar shutdowns the Navy is forced to perform during its SOCAL training exercises. The Court of Appeals also concluded that the 2,200-yard shutdown zone would not be overly burdensome because the Navy had shut down MFA sonar 27 times during its eight prior training exercises in SOCAL; in several of these cases, the Navy turned off its sonar when marine mammals were spotted well beyond the Navy’s self-imposed 200-yard shutdown zone. 518 F. 3d, at 700, n. 65. Admiral Locklear—the Commander of the Navy’s Third Fleet—stated that any shutdowns beyond the 200-yard zone were voluntary avoidance measures that likely took place at tactically insignificant times; the Ninth Circuit discounted this explanation as not supported by the record. Ibid. In reaching this conclusion, the Court of Appeals ignored key portions of Admiral Locklear’s declaration, in which he stated unequivocally that commanding officers “would not shut down sonar until legally required to do so if in contact with a submarine.” Pet. App. 354a–355a. Similarly, if a commanding officer is in contact with a target submarine, “the CO will be expected to continue to use active sonar unless another ship or helicopter can gain contact or if regulatory reasons dictate otherwise.” Id., at 355a. The record supports the Navy’s contention that its shutdowns of MFA sonar during prior training exercises only occurred during tactically insignificant times; those voluntary shutdowns do not justify the District Court’s imposition of a mandatory 2,200-yard shutdown zone. Lastly, the Ninth Circuit stated that a 2,200-yard shutdown zone was feasible because the Navy had previously adopted a 2,000-meter zone for low-frequency active (LFA) sonar. The Court of Appeals failed to give sufficient weight to the fact that LFA sonar is used for long-range detection of enemy submarines, and thus its use and shutdown involve tactical considerations quite different from those associated with MFA sonar. See App. 508 (noting that equating MFA sonar with LFA sonar “is completely misleading and is like comparing 20 degrees Fahrenheit to 20 degrees Celsius”). 3. The Court of Appeals also concluded that the Navy’s training exercises would not be significantly affected by the requirement that it power down MFA sonar by 6 dB during significant surface ducting conditions. Again, we think the Ninth Circuit understated the burden this requirement would impose on the Navy’s ability to conduct realistic training exercises. Surface ducting is a phenomenon in which relatively little sound energy penetrates beyond a narrow layer near the surface of the water. When surface ducting occurs, active sonar becomes more useful near the surface but less useful at greater depths. Pet. App. 299a–300a. Diesel-electric submariners are trained to take advantage of these distortions to avoid being detected by sonar. Id., at 333a. The Ninth Circuit determined that the power-down requirement during surface ducting conditions was unlikely to affect certification of the Navy’s strike groups because surface ducting occurs relatively rarely, and the Navy has previously certified strike groups that did not train under such conditions. 518 F. 3d, at 701–702. This reasoning is backwards. Given that surface ducting is both rare and unpredictable, it is especially important for the Navy to be able to train under these conditions when they occur. Admiral Bird explained that the 6 dB power-down requirement makes the training less valuable because it “exposes [sonar operators] to unrealistically lower levels of mutual interference caused by multiple sonar systems operating together by the ships within the Strike Group.” Pet. App. 281a (footnote omitted). Although a 6 dB reduction may not seem terribly significant, decibels are measured on a logarithmic scale, so a 6 dB decrease in power equates to a 75% reduction. Id., at 284a–285a. 4. The District Court acknowledged that “ ‘the imposition of these mitigation measures will require the Navy to alter and adapt the way it conducts antisubmarine warfare training—a substantial challenge. Nevertheless, evidence presented to the Court reflects that the Navy has employed mitigation measures in the past, without sacrificing training objectives.’ ” 527 F. Supp. 2d, at 1238. Apparently no good deed goes unpunished. The fact that the Navy has taken measures in the past to address concerns about marine mammals—or, for that matter, has elected not to challenge four additional restrictions imposed by the District Court in this case, see supra, at 7–8—hardly means that other, more intrusive restrictions pose no threat to preparedness for war. The Court of Appeals concluded its opinion by stating that “the Navy may return to the district court to request relief on an emergency basis” if the preliminary injunction “actually result[s] in an inability to train and certify sufficient naval forces to provide for the national defense.” 518 F. 3d, at 703. This is cold comfort to the Navy. The Navy contends that the injunction will hinder efforts to train sonar operators under realistic conditions, ultimately leaving strike groups more vulnerable to enemy submarines. Unlike the Ninth Circuit, we do not think the Navy is required to wait until the injunction “actually result[s] in an inability to train . . . sufficient naval forces for the national defense” before seeking its dissolution. By then it may be too late. IV As noted above, we do not address the underlying merits of plaintiffs’ claims. While we have authority to proceed to such a decision at this point, see Munaf, 553 U. S., at __ (slip op., at 13–14), doing so is not necessary here. In addition, reaching the merits is complicated by the fact that the lower courts addressed only one of several issues raised, and plaintiffs have largely chosen not to defend the decision below on that ground.[Footnote 5] At the same time, what we have said makes clear that it would be an abuse of discretion to enter a permanent injunction, after final decision on the merits, along the same lines as the preliminary injunction. An injunction is a matter of equitable discretion; it does not follow from success on the merits as a matter of course. Romero-Barcelo, 456 U. S., at 313 (“a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law”). The factors examined above—the balance of equities and consideration of the public interest—are pertinent in assessing the propriety of any injunctive relief, preliminary or permanent. See Amoco Production Co., 480 U. S., at 546, n. 12 (“The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success”). Given that the ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training, there is no basis for enjoining such training in a manner credibly alleged to pose a serious threat to national security. This is particularly true in light of the fact that the training has been going on for 40 years with no documented episode of harm to a marine mammal. A court concluding that the Navy is required to prepare an EIS has many remedial tools at its disposal, including declaratory relief or an injunction tailored to the preparation of an EIS rather than the Navy’s training in the interim. See, e.g., Steffel v. Thompson, 415 U. S. 452, 466 (1974) (“Congress plainly intended declaratory relief to act as an alternative to the strong medicine of the injunction”). In the meantime, we see no basis for jeopardizing national security, as the present injunction does. Plaintiffs confirmed at oral argument that the preliminary injunction was “the whole ball game,” Tr. of Oral Arg. 33, and our analysis of the propriety of preliminary relief is applicable to any permanent injunction as well. * * * President Theodore Roosevelt explained that “the only way in which a navy can ever be made efficient is by practice at sea, under all the conditions which would have to be met if war existed.” President’s Annual Message, 42 Cong. Rec. 67, 81 (1907). We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. The District Court abused its discretion by imposing a 2,200-yard shutdown zone and by requiring the Navy to power down its MFA sonar during significant surface ducting conditions. The judgment of the Court of Appeals is reversed, and the preliminary injunction is vacated to the extent it has been challenged by the Navy. It is so ordered. Footnote 1 In contrast, passive sonar “listens” for sound waves but does not introduce sound into the water. Passive sonar is not effective for tracking diesel-electric submarines because those vessels can operate almost silently. Passive sonar also has a more limited range than active sonar, and cannot identify the exact location of an enemy submarine. Pet. App. 266a–271a. Footnote 2 The CZMA states that federal agencies taking actions “that affec[t] any land or water use or natural resources of the coastal zone” shall carry out these activities “in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs.” 16 U. S. C. §1456(c)(1)(A). Footnote 3 That provision states in full: “Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.” Footnote 4 The Ninth Circuit’s discussion of the plaintiffs’ likelihood of success was limited to their NEPA claims. The court did not discuss claims under the CZMA or ESA. Footnote 5 The bulk of Justice Ginsburg’s dissent is devoted to the merits. For the reasons stated, we find the injunctive relief granted in this case an abuse of discretion, even if plaintiffs are correct on the underlying merits. As to the injunction, the dissent barely mentions the Navy’s interests. Post, at 11. We find that those interests, and the documented risks to national security, clearly outweigh the harm on the other side of the balance. We agree with much of Justice Breyer’s analysis, post, at 3–9 (opinion concurring in part and dissenting in part), but disagree with his conclusion that the modified conditions imposed by the stay order should remain in force until the Navy completes its EIS, post, at 9–11. The Court is reviewing the District Court’s imposition of the preliminary injunction; once we conclude, as Justice Breyer does, post, at 9, that the preliminary injunction should be vacated, the stay order is no longer pertinent. A stay is a useful tool for managing the impact of injunctive relief pending further appeal, but once the Court resolves the merits of the appeal, the stay ceases to be relevant. See 518 F. 3d 704, 706 (CA9 2008) (“the partial stay . . . shall remain in effect until final disposition by the Supreme Court”). Unexamined conditions imposed by the stay order are certainly no basis for what would be in effect the entry of a new preliminary injunction by this Court. |
555.US.555 | Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the “IV-push” method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label included an adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as a professional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claims were pre-empted by federal law because Phenergan’s labeling had been approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed. Held: Federal law does not pre-empt Levine’s claim that Phenergan’s label did not contain an adequate warning about the IV-push method of administration. Pp. 6–25. (a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-law duties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug label only after the FDA approves a supplemental application, the agency’s “changes being effected” (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration, and there is no evidence that the FDA would ultimately have rejected such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenergan label would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. It is a central premise of the Food, Drug, and Cosmetic Act (FDCA) and the FDA’s regulations that the manufacturer bears responsibility for the content of its label at all times. Pp. 11–16. (b) Wyeth’s argument that requiring it to comply with a state-law duty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to pre-empt state law. The history of the FDCA shows that Congress did not intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that state-law failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can pre-empt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacle to achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, the weight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the pre-emption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding position that state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished. Pp. 17–25. ___ Vt. ___, 944 A. 2d 179, affirmed. Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia, J., joined. | Directly injecting the drug Phenergan into a patient’s vein creates a significant risk of catastrophic consequences. A Vermont jury found that petitioner Wyeth, the manufacturer of the drug, had failed to provide an adequate warning of that risk and awarded damages to respondent Diana Levine to compensate her for the amputation of her arm. The warnings on Phenergan’s label had been deemed sufficient by the federal Food and Drug Administration (FDA) when it approved Wyeth’s new drug application in 1955 and when it later approved changes in the drug’s labeling. The question we must decide is whether the FDA’s approvals provide Wyeth with a complete defense to Levine’s tort claims. We conclude that they do not. I Phenergan is Wyeth’s brand name for promethazine hydrochloride, an antihistamine used to treat nausea. The injectable form of Phenergan can be administered intramuscularly or intravenously, and it can be administered intravenously through either the “IV-push” method, whereby the drug is injected directly into a patient’s vein, or the “IV-drip” method, whereby the drug is introduced into a saline solution in a hanging intravenous bag and slowly descends through a catheter inserted in a patient’s vein. The drug is corrosive and causes irreversible gangrene if it enters a patient’s artery. Levine’s injury resulted from an IV-push injection of Phenergan. On April 7, 2000, as on previous visits to her local clinic for treatment of a migraine headache, she received an intramuscular injection of Demerol for her headache and Phenergan for her nausea. Because the combination did not provide relief, she returned later that day and received a second injection of both drugs. This time, the physician assistant administered the drugs by the IV-push method, and Phenergan entered Levine’s artery, either because the needle penetrated an artery directly or because the drug escaped from the vein into surrounding tissue (a phenomenon called “perivascular extravasation”) where it came in contact with arterial blood. As a result, Levine developed gangrene, and doctors amputated first her right hand and then her entire forearm. In addition to her pain and suffering, Levine incurred substantial medical expenses and the loss of her livelihood as a professional musician. After settling claims against the health center and clinician, Levine brought an action for damages against Wyeth, relying on common-law negligence and strict-liability theories. Although Phenergan’s labeling warned of the danger of gangrene and amputation following inadvertent intra-arterial injection,[Footnote 1] Levine alleged that the labeling was defective because it failed to instruct clinicians to use the IV-drip method of intravenous administration instead of the higher risk IV-push method. More broadly, she alleged that Phenergan is not reasonably safe for intravenous administration because the foreseeable risks of gangrene and loss of limb are great in relation to the drug’s therapeutic benefits. App. 14–15. Wyeth filed a motion for summary judgment, arguing that Levine’s failure-to-warn claims were pre-empted by federal law. The court found no merit in either Wyeth’s field pre-emption argument, which it has since abandoned, or its conflict pre-emption argument. With respect to the contention that there was an “actual conflict between a specific FDA order,” id., at 21, and Levine’s failure-to-warn action, the court reviewed the sparse correspondence between Wyeth and the FDA about Phenergan’s labeling and found no evidence that Wyeth had “earnestly attempted” to strengthen the intra-arterial injection warning or that the FDA had “specifically disallowed” stronger language, id., at 23. The record, as then developed, “lack[ed] any evidence that the FDA set a ceiling on this matter.” Ibid. The evidence presented during the 5-day jury trial showed that the risk of intra-arterial injection or perivascular extravasation can be almost entirely eliminated through the use of IV-drip, rather than IV-push, administration. An IV drip is started with saline, which will not flow properly if the catheter is not in the vein and fluid is entering an artery or surrounding tissue. See id., at 50–51, 60, 66–68, 75. By contrast, even a careful and experienced clinician using the IV-push method will occasionally expose an artery to Phenergan. See id., at 73, 75–76. While Phenergan’s labeling warned against intra-arterial injection and perivascular extravasation and advised that “[w]hen administering any irritant drug intravenously it is usually preferable to inject it through the tubing of an intravenous infusion set that is known to be function- ing satisfactorily,” id., at 390, the labeling did not con- tain a specific warning about the risks of IV-push administration. The trial record also contains correspondence between Wyeth and the FDA discussing Phenergan’s label. The FDA first approved injectable Phenergan in 1955. In 1973 and 1976, Wyeth submitted supplemental new drug applications, which the agency approved after proposing labeling changes. Wyeth submitted a third supplemental application in 1981 in response to a new FDA rule governing drug labels. Over the next 17 years, Wyeth and the FDA intermittently corresponded about Phenergan’s label. The most notable activity occurred in 1987, when the FDA suggested different warnings about the risk of arterial exposure, and in 1988, when Wyeth submitted revised labeling incorporating the proposed changes. The FDA did not respond. Instead, in 1996, it requested from Wyeth the labeling then in use and, without addressing Wyeth’s 1988 submission, instructed it to “[r]etain verbiage in current label” regarding intra-arterial injection. Id., at 359. After a few further changes to the labeling not related to intra-arterial injection, the FDA approved Wyeth’s 1981 application in 1998, instructing that Phenergan’s final printed label “must be identical” to the approved package insert. Id., at 382. Based on this regulatory history, the trial judge instructed the jury that it could consider evidence of Wyeth’s compliance with FDA requirements but that such compliance did not establish that the warnings were adequate. He also instructed, without objection from Wyeth, that FDA regulations “permit a drug manufacturer to change a product label to add or strengthen a warning about its product without prior FDA approval so long as it later submits the revised warning for review and approval.” Id., at 228. Answering questions on a special verdict form, the jury found that Wyeth was negligent, that Phenergan was a defective product as a result of inadequate warnings and instructions, and that no intervening cause had broken the causal connection between the product defects and the plaintiff’s injury. Id., at 233–235. It awarded total damages of $7,400,000, which the court reduced to account for Levine’s earlier settlement with the health center and clinician. Id., at 235–236. On August 3, 2004, the trial court filed a comprehensive opinion denying Wyeth’s motion for judgment as a matter of law. After making findings of fact based on the trial record (supplemented by one letter that Wyeth found after the trial), the court rejected Wyeth’s pre-emption arguments. It determined that there was no direct conflict between FDA regulations and Levine’s state-law claims because those regulations permit strengthened warnings without FDA approval on an interim basis and the record contained evidence of at least 20 reports of amputations similar to Levine’s since the 1960’s. The court also found that state tort liability in this case would not obstruct the FDA’s work because the agency had paid no more than passing attention to the question whether to warn against IV-push administration of Phenergan. In addition, the court noted that state law serves a compensatory function distinct from federal regulation. Id., at 249–252. The Vermont Supreme Court affirmed. It held that the jury’s verdict “did not conflict with FDA’s labeling requirements for Phenergan because [Wyeth] could have warned against IV-push administration without prior FDA approval, and because federal labeling requirements create a floor, not a ceiling, for state regulation.” ___ Vt. ___, ___ 944 A. 2d 179, 184 (2006). In dissent, Chief Justice Reiber argued that the jury’s verdict conflicted with federal law because it was inconsistent with the FDA’s conclusion that intravenous administration of Phenergan was safe and effective. The importance of the pre-emption issue, coupled with the fact that the FDA has changed its position on state tort law and now endorses the views expressed in Chief Justice Reiber’s dissent, persuaded us to grant Wyeth’s petition for certiorari. 552 U. S. ___ (2008). The question presented by the petition is whether the FDA’s drug labeling judgments “preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.” Pet. for Cert. i. II Wyeth makes two separate pre-emption arguments: first, that it would have been impossible for it to comply with the state-law duty to modify Phenergan’s labeling without violating federal law, see Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982), and second, that recognition of Levine’s state tort action creates an unacceptable “obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U. S. 52, 67 (1941), because it substitutes a lay jury’s decision about drug labeling for the expert judgment of the FDA. As a preface to our evaluation of these arguments, we identify two factual propositions decided during the trial court proceedings, emphasize two legal principles that guide our analysis, and review the history of the controlling federal statute. The trial court proceedings established that Levine’s injury would not have occurred if Phenergan’s label had included an adequate warning about the risks of the IV-push method of administering the drug. The record contains evidence that the physician assistant administered a greater dose than the label prescribed, that she may have inadvertently injected the drug into an artery rather than a vein, and that she continued to inject the drug after Levine complained of pain. Nevertheless, the jury rejected Wyeth’s argument that the clinician’s conduct was an intervening cause that absolved it of liability. See App. 234 (jury verdict), 252–254. In finding Wyeth negligent as well as strictly liable, the jury also determined that Levine’s injury was foreseeable. That the inadequate label was both a but-for and proximate cause of Levine’s injury is supported by the record and no longer challenged by Wyeth.[Footnote 2] The trial court proceedings further established that the critical defect in Phenergan’s label was the lack of an adequate warning about the risks of IV-push administration. Levine also offered evidence that the IV-push method should be contraindicated and that Phenergan should never be administered intravenously, even by the IV-drip method. Perhaps for this reason, the dissent incorrectly assumes that the state-law duty at issue is the duty to contraindicate the IV-push method. See, e.g., post, at 8, 25. But, as the Vermont Supreme Court explained, the jury verdict established only that Phenergan’s warning was insufficient. It did not mandate a particular replacement warning, nor did it require contraindicating IV-push administration: “There may have been any number of ways for [Wyeth] to strengthen the Phenergan warning without completely eliminating IV-push administration.” ___ Vt., at ___, n. 2, 944 A. 2d, at 189, n. 2. We therefore need not decide whether a state rule proscribing intravenous administration would be pre-empted. The narrower question presented is whether federal law pre-empts Levine’s claim that Phenergan’s label did not contain an adequate warning about using the IV-push method of administration. Our answer to that question must be guided by two cornerstones of our pre-emption jurisprudence. First, “the purpose of Congress is the ultimate touchstone in every pre-emption case.” Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) (internal quotation marks omitted); see Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963). Second, “[i]n all pre-emption cases, and particularly in those in which Congress has ‘legislated … in a field which the States have traditionally occupied,’ … we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Lohr, 518 U. S., at 485 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)).[Footnote 3] In order to identify the “purpose of Congress,” it is appropriate to briefly review the history of federal regulation of drugs and drug labeling. In 1906, Congress enacted its first significant public health law, the Federal Food and Drugs Act, ch. 3915, 34 Stat. 768. The Act, which prohibited the manufacture or interstate shipment of adulterated or misbranded drugs, supplemented the protection for consumers already provided by state regulation and common-law liability. In the 1930’s, Congress became increasingly concerned about unsafe drugs and fraudulent marketing, and it enacted the Federal Food, Drug, and Cosmetic Act (FDCA), ch. 675, 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq. The Act’s most substantial innovation was its provision for premarket approval of new drugs. It required every manufacturer to submit a new drug application, including reports of investigations and specimens of proposed labeling, to the FDA for review. Until its application became effective, a manufacturer was prohibited from distributing a drug. The FDA could reject an application if it determined that the drug was not safe for use as labeled, though if the agency failed to act, an application became effective 60 days after the filing. FDCA, §505(c), 52 Stat. 1052. In 1962, Congress amended the FDCA and shifted the burden of proof from the FDA to the manufacturer. Before 1962, the agency had to prove harm to keep a drug out of the market, but the amendments required the manufacturer to demonstrate that its drug was “safe for use under the conditions prescribed, recommended, or suggested in the proposed labeling” before it could distribute the drug. §§102(d), 104(b), 76 Stat. 781, 784. In addition, the amendments required the manufacturer to prove the drug’s effectiveness by introducing “substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the proposed labeling.” §102(d), id., at 781. As it enlarged the FDA’s powers to “protect the public health” and “assure the safety, effectiveness, and reliability of drugs,” id., at 780, Congress took care to preserve state law. The 1962 amendments added a saving clause, indicating that a provision of state law would only be invalidated upon a “direct and positive conflict” with the FDCA. §202, id., at 793. Consistent with that provision, state common-law suits “continued unabated despite … FDA regulation.” Riegel v. Medtronic, Inc., 552 U. S. ___, ___ (2008) (slip op., at 8) (Ginsburg, J., dissenting); see ibid., n. 11 (collecting state cases). And when Congress enacted an express pre-emption provision for medical devices in 1976, see §521, 90 Stat. 574 (codified at 21 U. S. C. §360k(a)), it declined to enact such a provision for prescription drugs. In 2007, after Levine’s injury and lawsuit, Congress again amended the FDCA. 121 Stat. 823. For the first time, it granted the FDA statutory authority to require a manufacturer to change its drug label based on safety information that becomes available after a drug’s initial approval. §901(a), id., at 924–926. In doing so, however, Congress did not enact a provision in the Senate bill that would have required the FDA to preapprove all changes to drug labels. See S. 1082, 110th Cong., 1st Sess., §208, pp. 107–114 (2007) (as passed) (proposing new §506D). Instead, it adopted a rule of construction to make it clear that manufacturers remain responsible for updating their labels. See 121 Stat. 925–926. III Wyeth first argues that Levine’s state-law claims are pre-empted because it is impossible for it to comply with both the state-law duties underlying those claims and its federal labeling duties. See De la Cuesta, 458 U. S., at 153. The FDA’s premarket approval of a new drug application includes the approval of the exact text in the proposed label. See 21 U. S. C. §355; 21 CFR §314.105(b) (2008). Generally speaking, a manufacturer may only change a drug label after the FDA approves a supplemental application. There is, however, an FDA regulation that permits a manufacturer to make certain changes to its label before receiving the agency’s approval. Among other things, this “changes being effected” (CBE) regulation provides that if a manufacturer is changing a label to “add or strengthen a contraindication, warning, precaution, or adverse reaction” or to “add or strengthen an instruction about dosage and administration that is intended to increase the safe use of the drug product,” it may make the labeling change upon filing its supplemental application with the FDA; it need not wait for FDA approval. §§314.70(c)(6)(iii)(A), (C). Wyeth argues that the CBE regulation is not implicated in this case because a 2008 amendment provides that a manufacturer may only change its label “to reflect newly acquired information.” 73 Fed. Reg. 49609. Resting on this language (which Wyeth argues simply reaffirmed the interpretation of the regulation in effect when this case was tried), Wyeth contends that it could have changed Phenergan’s label only in response to new information that the FDA had not considered. And it maintains that Levine has not pointed to any such information concerning the risks of IV-push administration. Thus, Wyeth insists, it was impossible for it to discharge its state-law obligation to provide a stronger warning about IV-push administration without violating federal law. Wyeth’s argument misapprehends both the federal drug regulatory scheme and its burden in establishing a pre-emption defense. We need not decide whether the 2008 CBE regulation is consistent with the FDCA and the previous version of the regulation, as Wyeth and the United States urge, because Wyeth could have revised Phenergan’s label even in accordance with the amended regulation. As the FDA explained in its notice of the final rule, “ ‘newly acquired information’ ” is not limited to new data, but also encompasses “new analyses of previously submitted data.” Id., at 49604. The rule accounts for the fact that risk information accumulates over time and that the same data may take on a different meaning in light of subsequent developments: “[I]f the sponsor submits adverse event information to FDA, and then later conducts a new analysis of data showing risks of a different type or of greater severity or frequency than did reports previously submitted to FDA, the sponsor meets the requirement for ‘newly acquired information.’ ” Id., at 49607; see also id., at 49606. The record is limited concerning what newly acquired information Wyeth had or should have had about the risks of IV-push administration of Phenergan because Wyeth did not argue before the trial court that such information was required for a CBE labeling change. Levine did, however, present evidence of at least 20 incidents prior to her injury in which a Phenergan injection resulted in gangrene and an amputation. See App. 74, 252.[Footnote 4] After the first such incident came to Wyeth’s attention in 1967, it notified the FDA and worked with the agency to change Phenergan’s label. In later years, as amputations continued to occur, Wyeth could have analyzed the accumulating data and added a stronger warning about IV-push administration of the drug. Wyeth argues that if it had unilaterally added such a warning, it would have violated federal law governing unauthorized distribution and misbranding. Its argument that a change in Phenergan’s labeling would have subjected it to liability for unauthorized distribution rests on the assumption that this labeling change would have rendered Phenergan a new drug lacking an effective application. But strengthening the warning about IV-push administration would not have made Phenergan a new drug. See 21 U. S. C. §321(p)(1) (defining “new drug”); 21 CFR §310.3(h). Nor would this warning have rendered Phenergan misbranded. The FDCA does not provide that a drug is misbranded simply because the manufacturer has altered an FDA-approved label; instead, the misbranding provision focuses on the substance of the label and, among other things, proscribes labels that fail to include “adequate warnings.” 21 U. S. C. §352(f). Moreover, because the statute contemplates that federal juries will resolve most misbranding claims, the FDA’s belief that a drug is misbranded is not conclusive. See §§331, 332, 334(a)–(b). And the very idea that the FDA would bring an enforcement action against a manufacturer for strengthening a warning pursuant to the CBE regulation is difficult to accept—neither Wyeth nor the United States has identified a case in which the FDA has done so. Wyeth’s cramped reading of the CBE regulation and its broad reading of the FDCA’s misbranding and unauthorized distribution provisions are premised on a more fundamental misunderstanding. Wyeth suggests that the FDA, rather than the manufacturer, bears primary responsibility for drug labeling. Yet through many amendments to the FDCA and to FDA regulations, it has remained a central premise of federal drug regulation that the manufacturer bears responsibility for the content of its label at all times. It is charged both with crafting an adequate label and with ensuring that its warnings remain adequate as long as the drug is on the market. See, e.g., 21 CFR §201.80(e) (requiring a manufacturer to revise its label “to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug”); §314.80(b) (placing responsibility for postmarketing surveillance on the manufacturer); 73 Fed. Reg. 49605 (“Manufacturers continue to have a responsibility under Federal law … to maintain their labeling and update the labeling with new safety information”). Indeed, prior to 2007, the FDA lacked the authority to order manufacturers to revise their labels. See 121 Stat. 924–926. When Congress granted the FDA this authority, it reaffirmed the manufacturer’s obligations and referred specifically to the CBE regulation, which both reflects the manufacturer’s ultimate responsibility for its label and provides a mechanism for adding safety information to the label prior to FDA approval. See id., at 925–926 (stating that a manufacturer retains the responsibility “to maintain its label in accordance with existing requirements, including subpart B of part 201 and sections 314.70 and 601.12 of title 21, Code of Federal Regulations (or any successor regulations)” (emphasis added)). Thus, when the risk of gangrene from IV-push injection of Phenergan became apparent, Wyeth had a duty to provide a warning that adequately described that risk, and the CBE regulation permitted it to provide such a warning before receiving the FDA’s approval. Of course, the FDA retains authority to reject labeling changes made pursuant to the CBE regulation in its review of the manufacturer’s supplemental application, just as it retains such authority in reviewing all supplemental applications. But absent clear evidence that the FDA would not have approved a change to Phenergan’s label, we will not conclude that it was impossible for Wyeth to comply with both federal and state requirements. Wyeth has offered no such evidence. It does not argue that it attempted to give the kind of warning required by the Vermont jury but was prohibited from doing so by the FDA.[Footnote 5] See Tr. of Oral Arg. 12–13; see also Brief for United States as Amicus Curiae 25. And while it does suggest that the FDA intended to prohibit it from strengthening the warning about IV-push administration because the agency deemed such a warning inappropriate in reviewing Phenergan’s drug applications, both the trial court and the Vermont Supreme Court rejected this account as a matter of fact. In its decision on Wyeth’s motion for judgment as a matter of law, the trial court found “no evidence in this record that either the FDA or the manufacturer gave more than passing attention to the issue of” IV-push versus IV-drip administration. App. 249. The Vermont Supreme Court likewise concluded that the FDA had not made an affirmative decision to preserve the IV-push method or intended to prohibit Wyeth from strengthening its warning about IV-push administration. ___ Vt., at ___, 944 A. 2d, at 188–189. Moreover, Wyeth does not argue that it supplied the FDA with an evaluation or analysis concerning the specific dangers posed by the IV-push method. We accordingly cannot credit Wyeth’s contention that the FDA would have prevented it from adding a stronger warning about the IV-push method of intravenous administration.[Footnote 6] Impossibility pre-emption is a demanding defense. On the record before us, Wyeth has failed to demonstrate that it was impossible for it to comply with both federal and state requirements. The CBE regulation permitted Wyeth to unilaterally strengthen its warning, and the mere fact that the FDA approved Phenergan’s label does not establish that it would have prohibited such a change. IV Wyeth also argues that requiring it to comply with a state-law duty to provide a stronger warning about IV-push administration would obstruct the purposes and objectives of federal drug labeling regulation. Levine’s tort claims, it maintains, are pre-empted because they interfere with “Congress’s purpose to entrust an expert agency to make drug labeling decisions that strike a balance between competing objectives.” Brief for Petitioner 46. We find no merit in this argument, which relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to pre-empt state law. Wyeth contends that the FDCA establishes both a floor and a ceiling for drug regulation: Once the FDA has approved a drug’s label, a state-law verdict may not deem the label inadequate, regardless of whether there is any evidence that the FDA has considered the stronger warning at issue. The most glaring problem with this argument is that all evidence of Congress’ purposes is to the contrary. Building on its 1906 Act, Congress enacted the FDCA to bolster consumer protection against harmful products. See Kordel v. United States, 335 U. S. 345, 349 (1948); United States v. Sullivan, 332 U. S. 689, 696 (1948). Congress did not provide a federal remedy for consumers harmed by unsafe or ineffective drugs in the 1938 statute or in any subsequent amendment. Evidently, it determined that widely available state rights of action provided appropriate relief for injured consumers.[Footnote 7] It may also have recognized that state-law remedies further consumer protection by motivating manufacturers to produce safe and effective drugs and to give adequate warnings. If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA’s 70-year history. But despite its 1976 enactment of an express pre-emption provision for medical devices, see §521, 90 Stat. 574 (codified at 21 U. S. C. §360k(a)), Congress has not enacted such a provision for prescription drugs. See Riegel, 552 U. S., at ___ (slip op., at 14) (“Congress could have applied the pre-emption clause to the entire FDCA. It did not do so, but instead wrote a pre-emption clause that applies only to medical devices”).[Footnote 8] Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness. As Justice O’Connor explained in her opinion for a unanimous Court: “The case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 166–167 (1989) (internal quotation marks omitted); see also supra, at 8 (discussing the presumption against pre-emption). Despite this evidence that Congress did not regard state tort litigation as an obstacle to achieving its purposes, Wyeth nonetheless maintains that, because the FDCA requires the FDA to determine that a drug is safe and effective under the conditions set forth in its labeling, the agency must be presumed to have performed a precise balancing of risks and benefits and to have established a specific labeling standard that leaves no room for different state-law judgments. In advancing this argument, Wyeth relies not on any statement by Congress, but instead on the preamble to a 2006 FDA regulation governing the content and format of prescription drug labels. See Brief for Petitioner 8, 11, 42, 45, and 50 (citing 71 Fed. Reg. 3922 (2006)). In that preamble, the FDA declared that the FDCA establishes “both a ‘floor’ and a ‘ceiling,’ ” so that “FDA approval of labeling … preempts conflicting or contrary State law.” Id., at 3934–3935. It further stated that certain state-law actions, such as those involving failure-to-warn claims, “threaten FDA’s statutorily prescribed role as the expert Federal agency responsible for evaluating and regulating drugs.” Id., at 3935. This Court has recognized that an agency regulation with the force of law can pre-empt conflicting state requirements. See, e.g., Geier v. American Honda Motor Co., 529 U. S. 861 (2000); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 713 (1985). In such cases, the Court has performed its own conflict determination, relying on the substance of state and federal law and not on agency proclamations of pre-emption. We are faced with no such regulation in this case, but rather with an agency’s mere assertion that state law is an obstacle to achieving its statutory objectives. Because Congress has not authorized the FDA to pre-empt state law directly, cf. 21 U. S. C. §360k (authorizing the FDA to determine the scope of the Medical Devices Amendments’ pre-emption clause),[Footnote 9] the question is what weight we should accord the FDA’s opinion. In prior cases, we have given “some weight” to an agency’s views about the impact of tort law on federal objectives when “the subject matter is technica[l] and the relevant history and background are complex and extensive.” Geier, 529 U. S., at 883. Even in such cases, however, we have not deferred to an agency’s conclusion that state law is pre-empted. Rather, we have attended to an agency’s explanation of how state law affects the regulatory scheme. While agencies have no special authority to pronounce on pre-emption absent delegation by Congress, they do have a unique understanding of the statutes they administer and an attendant ability to make informed determinations about how state requirements may pose an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U.S, at 67; see Geier, 529 U. S., at 883; Lohr, 518 U. S., at 495–496. The weight we accord the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency, and persuasiveness. Cf. United States v. Mead Corp., 533 U. S. 218, 234–235 (2001); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). Under this standard, the FDA’s 2006 preamble does not merit deference. When the FDA issued its notice of proposed rulemaking in December 2000, it explained that the rule would “not contain policies that have federalism implications or that preempt State law.” 65 Fed. Reg. 81103; see also 71 id., at 3969 (noting that the “proposed rule did not propose to preempt state law”). In 2006, the agency finalized the rule and, without offering States or other interested parties notice or opportunity for comment, articulated a sweeping position on the FDCA’s pre-emptive effect in the regulatory preamble. The agency’s views on state law are inherently suspect in light of this procedural failure. Further, the preamble is at odds with what evidence we have of Congress’ purposes, and it reverses the FDA’s own longstanding position without providing a reasoned explanation, including any discussion of how state law has interfered with the FDA’s regulation of drug labeling during decades of coexistence. The FDA’s 2006 position plainly does not reflect the agency’s own view at all times relevant to this litigation. Not once prior to Levine’s injury did the FDA suggest that state tort law stood as an obstacle to its statutory mission. To the contrary, it cast federal labeling standards as a floor upon which States could build and repeatedly disclaimed any attempt to pre-empt failure-to-warn claims. For instance, in 1998, the FDA stated that it did “not believe that the evolution of state tort law [would] cause the development of standards that would be at odds with the agency’s regulations.” 63 id., at 66384. It further noted that, in establishing “minimal standards” for drug labels, it did not intend “to preclude the states from imposing additional labeling requirements.” Ibid.[Footnote 10] In keeping with Congress’ decision not to pre-empt common-law tort suits, it appears that the FDA traditionally regarded state law as a complementary form of drug regulation. The FDA has limited resources to monitor the 11,000 drugs on the market,[Footnote 11] and manufacturers have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge. State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come forward with information. Failure-to-warn actions, in particular, lend force to the FDCA’s premise that manufacturers, not the FDA, bear primary responsibility for their drug labeling at all times. Thus, the FDA long maintained that state law offers an additional, and important, layer of consumer protection that complements FDA regulation.[Footnote 12] The agency’s 2006 preamble represents a dramatic change in position. Largely based on the FDA’s new position, Wyeth argues that this case presents a conflict between state and federal law analogous to the one at issue in Geier. There, we held that state tort claims premised on Honda’s failure to install airbags conflicted with a federal regulation that did not require airbags for all cars. The Department of Transportation (DOT) had promulgated a rule that provided car manufacturers with a range of choices among passive restraint devices. Geier, 529 U. S., at 875. Rejecting an “ ‘all airbag’ ” standard, the agency had called for a gradual phase-in of a mix of passive restraints in order to spur technological development and win consumer acceptance. Id., at 879. Because the plaintiff’s claim was that car manufacturers had a duty to install airbags, it presented an obstacle to achieving “the variety and mix of devices that the federal regulation sought.” Id., at 881. Wyeth and the dissent contend that the regulatory scheme in this case is nearly identical, but, as we have described, it is quite different. In Geier, the DOT conducted a formal rulemaking and then adopted a plan to phase in a mix of passive restraint devices. Examining the rule itself and the DOT’s contemporaneous record, which revealed the factors the agency had weighed and the balance it had struck, we determined that state tort suits presented an obstacle to the federal scheme. After conducting our own pre-emption analysis, we considered the agency’s explanation of how state law interfered with its regulation, regarding it as further support for our independent conclusion that the plaintiff’s tort claim obstructed the federal regime. By contrast, we have no occasion in this case to consider the pre-emptive effect of a specific agency regulation bearing the force of law. And the FDA’s newfound opinion, expressed in its 2006 preamble, that state law “frustrate[s] the agency’s implementation of its statutory mandate,” 71 Fed. Reg. 3934, does not merit deference for the reasons we have explained.[Footnote 13] Indeed, the “complex and extensive” regulatory history and background relevant to this case, Geier, 529 U. S., at 883, undercut the FDA’s recent pronouncements of pre-emption, as they reveal the longstanding coexistence of state and federal law and the FDA’s traditional recognition of state-law remedies—a recognition in place each time the agency reviewed Wyeth’s Phenergan label.[Footnote 14] In short, Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case. V We conclude that it is not impossible for Wyeth to comply with its state and federal law obligations and that Levine’s common-law claims do not stand as an obstacle to the accomplishment of Congress’ purposes in the FDCA. Accordingly, the judgment of the Vermont Supreme Court is affirmed. It is so ordered. Footnote 1 The warning for “Inadvertent Intra-arterial Injection” stated: “Due to the close proximity of arteries and veins in the areas most commonly used for intravenous injection, extreme care should be exercised to avoid perivascular extravasation or inadvertent intra-arterial injection. Reports compatible with inadvertent intra-arterial injection of Phenergan Injection, usually in conjunction with other drugs intended for intravenous use, suggest that pain, severe chemical irritation, severe spasm of distal vessels, and resultant gangrene requiring amputation are likely under such circumstances. Intravenous injection was intended in all the cases reported but perivascular extravasation or arterial placement of the needle is now suspect. There is no proven successful management of this condition after it occurs. . . . Aspiration of dark blood does not preclude intra-arterial needle placement, because blood is discolored upon contact with Phenergan Injection. Use of syringes with rigid plungers or of small bore needles might obscure typical arterial backflow if this is relied upon alone. When used intravenously, Phenergan Injection should be given in a concentration no greater than 25 mg per mL and at a rate not to exceed 25 mg per minute. When administering any irritant drug intravenously, it is usually preferable to inject it through the tubing of an intravenous infusion set that is known to be functioning satisfactorily. In the event that a patient complains of pain during intended intravenous injection of Phenergan Injection, the injection should be stopped immediately to provide for evaluation of possible arterial placement or perivascular extravasation.” App. 390. Footnote 2 The dissent nonetheless suggests that physician malpractice was the exclusive cause of Levine’s injury. See, e.g., post, at 1 (opinion of Alito, J.) (“[I]t is unclear how a ‘stronger’ warning could have helped respondent”); post, at 16–18 (suggesting that the physician assistant’s conduct was the sole cause of the injury). The dissent’s frustration with the jury’s verdict does not put the merits of Levine’s tort claim before us, nor does it change the question we must decide—whether federal law pre-empts Levine’s state-law claims. Footnote 3 Wyeth argues that the presumption against pre-emption should not apply to this case because the Federal Government has regulated drug labeling for more than a century. That argument misunderstands the principle: We rely on the presumption because respect for the States as “independent sovereigns in our federal system” leads us to assume that “Congress does not cavalierly pre-empt state-law causes of action.” Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996). The presumption thus accounts for the historic presence of state law but does not rely on the absence of federal regulation. For its part, the dissent argues that the presumption against pre-emption should not apply to claims of implied conflict pre-emption at all, post, at 21, but this Court has long held to the contrary. See, e.g., California v. ARC America Corp., 490 U. S. 93, 101–102 (1989); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 716 (1985); see also Rush Prudential HMO, Inc. v. Moran, 536 U. S. 355, 387 (2002). The dissent’s reliance on Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341 (2001), see post, at 21, and n. 14, is especially curious, as that case involved state-law fraud-on-the-agency claims, and the Court distinguished state regulation of health and safety as matters to which the presumption does apply. See 531 U. S., at 347–348. Footnote 4 Levine also introduced evidence that Pfizer had withdrawn Vistaril, another antinausea drug, from intravenous use several decades earlier because its intravenous injection had resulted in gangrene and amputations. See App. 79. Footnote 5 The record would not, in any event, support such an argument. In 1988, Wyeth did propose different language for Phenergan’s warning about intra-arterial injection, adapted from revisions the FDA proposed in 1987. See App. 339–341, 311–312. When the FDA approved Wyeth’s application, it instructed Wyeth to retain the wording in its current label. During the trial court proceedings, Levine indicated that the language proposed in 1988 would have more strongly warned against IV-push administration. But the trial court and the Vermont Supreme Court found that the 1988 warning did not differ in any material respect from the FDA-approved warning. See ___ Vt. ___, ___, 944 A. 2d 179, 189 (2006) (“Simply stated, the proposed warning was different, but not stronger. It was also no longer or more prominent than the original warning …”); App. 248–250. Indeed, the United States concedes that the FDA did not regard the proposed warning as substantively different: “[I]t appears the FDA viewed the change as non-substantive and rejected it for formatting reasons.” Brief for United States as Amicus Curiae 25; see also ___ Vt., at ___, 944 A. 2d, at 189. Footnote 6 The dissent’s suggestion that the FDA intended to prohibit Wyeth from strengthening its warning does not fairly reflect the record. The dissent creatively paraphrases a few FDA orders—for instance by conflating warnings about IV-push administration and intra-arterial injection, see, e.g., post, at 9, 11–12, 15–16—to suggest greater agency attention to the question, and it undertakes a study of Phenergan’s labeling that is more elaborate than any FDA order. But even the dissent’s account does not support the conclusion that the FDA would have prohibited Wyeth from adding a stronger warning pursuant to the CBE regulation. Footnote 7 Although the first version of the bill that became the FDCA would have provided a federal cause of action for damages for injured consumers, see H. R. 6110, 73d Cong., 1st Sess., §25 (1933) (as introduced), witnesses testified that such a right of action was unnecessary because common-law claims were already available under state law. See Hearings on S. 1944 before a Subcommittee of the Senate Committee on Commerce, 73d Cong., 2d Sess., 400 (1933) (statement of W. A. Hines); see id., at 403 (statement of J. A. Ladds) (“This act should not attempt to modify or restate the common law with respect to personal injuries”). Footnote 8 In 1997, Congress pre-empted certain state requirements concerning over-the-counter medications and cosmetics but expressly preserved product liability actions. See 21 U. S. C. §§379r(e), 379s(d) (“Nothing in this section shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State”). Footnote 9 For similar examples, see 47 U. S. C. §§253(a), (d) (2000 ed.) (authorizing the Federal Communications Commission to pre-empt “any [state] statute, regulation, or legal requirement” that “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service”); 30 U. S. C. §1254(g) (2006 ed.) (pre-empting any statute that conflicts with “the purposes and the requirements of this chapter” and permitting the Secretary of the Interior to “set forth any State law or regulation which is preempted and superseded”); and 49 U. S. C. §5125(d) (2000 ed. and Supp. V) (authorizing the Secretary of Transportation to decide whether a state or local statute that conflicts with the regulation of hazardous waste transportation is pre-empted). Footnote 10 See also 44 Fed. Reg. 37437 (1979) (“It is not the intent of the FDA to influence the civil tort liability of the manufacturer”); 59 Fed. Reg. 3948 (1994) (“[P]roduct liability plays an important role in consumer protection”); Porter, The Lohr Decision: FDA Perspective and Position, 52 Food & Drug L. J. 7, 10 (1997) (former chief counsel to the FDA stating that the FDA regarded state law as complementing the agency’s mission of consumer protection). Footnote 11 In 1955, the same year that the agency approved Wyeth’s Phenergan application, an FDA advisory committee issued a report finding “conclusively” that “the budget and staff of the Food and Drug Administration are inadequate to permit the discharge of its existing responsibilities for the protection of the American public.” Citizens Advisory Committee on the FDA, Report to the Secretary of Health, Education, and Welfare, H. R. Doc. No. 227, 84th Cong., 1st Sess., 53. Three recent studies have reached similar conclusions. See FDA Science Board, Report of the Subcommittee on Science and Technology: FDA Science and Mission at Risk 2, 6 (2007), online at http://www.fda.gov/ohrms/ dockets/ac/07/briefing/2007-4329b_02_01_FDA%20Report%20on%20Sci ence%20and%20Technology.pdf (all Internet materials as visited Feb. 23, 2009, and available in Clerk of Court’s case file) (“[T]he Agency suffers from serious scientific deficiencies and is not positioned to meet current or emerging regulatory responsibilities”); National Academies, Institute of Medicine, The Future of Drug Safety: Promoting and Protecting the Health of the Public 193–194 (2007) (“The [FDA] lacks the resources needed to accomplish its large and complex mission … . There is widespread agreement that resources for postmarketing drug safety work are especially inadequate and that resource limitations have hobbled the agency’s ability to improve and expand this essential component of its mission”); GAO, Drug Safety: Improvement Needed in FDA’s Postmarket Decision-making and Oversight Process 5 (GAO–06–402, 2006), http://www.gao.gov/new.items/d06402.pdf (“FDA lacks a clear and effective process for making decisions about, and providing management oversight of, postmarket safety issues”); see also House Committee on Oversight and Government Reform, Majority Staff Report, FDA Career Staff Objected to Agency Preemption Policies 4 (2008) (“[T]he Office of Chief Counsel ignored the warnings from FDA scientists and career officials that the preemption language [of the 2006 preamble] was based on erroneous assertions about the ability of the drug approval process to ensure accurate and up-to-date drug labels”). Footnote 12 See generally Brief for Former FDA Commissioners Drs. Donald Kennedy and David Kessler as Amici Curiae; see also Kessler & Vladeck, A Critical Examination of the FDA’s Efforts To Preempt Failure-To-Warn Claims, 96 Geo. L. J. 461, 463 (2008); Bates v. Dow Agrosciences LLC, 544 U. S. 431, 451 (2005) (noting that state tort suits “can serve as a catalyst” by aiding in the exposure of new dangers and prompting a manufacturer or the federal agency to decide that a revised label is required). Footnote 13 The United States’ amicus brief is similarly undeserving of deference. Unlike the Government’s brief in Geier v. American Honda Motor Co., 529 U. S. 861 (2000), which explained the effects of state law on the DOT’s regulation in a manner consistent with the agency’s prior accounts, see id., at 861, the Government’s explanation of federal drug regulation departs markedly from the FDA’s understanding at all times relevant to this case. Footnote 14 Wyeth’s more specific contention—that this case resembles Geier because the FDA determined that no additional warning on IV-push administration was needed, thereby setting a ceiling on Phenergan’s label—is belied by the record. As we have discussed, the FDA did not consider and reject a stronger warning against IV-push injection of Phenergan. See also App. 249–250 (“[A] tort case is unlikely to obstruct the regulatory process when the record shows that the FDA has paid very little attention to the issues raised by the parties at trial”). |
557.US.2008_08-67 | A federal indictment charged petitioner Yeager with securities and wire fraud for allegedly misleading the public about the virtues of a fiber-optic telecommunications system offered by his employer, a subsidiary of Enron Corp., and with insider trading for selling his Enron stock while in possession of material, nonpublic information about the new system’s performance and value to Enron. The indictment also charged petitioner with money laundering for conducting various transactions with the proceeds of his stock sales. The jury acquitted Yeager on the fraud counts but failed to reach a verdict on the insider-trading and money-laundering counts. After the Government recharged him with some of the insider-trading and money-laundering counts, Yeager moved to dismiss the charges on the ground that the jury, by acquitting him on the fraud counts, had necessarily decided that he did not possess material, nonpublic information about the project’s performance and value, and that the issue-preclusion component of the Double Jeopardy Clause therefore barred a second trial for insider trading and money laundering. The District Court denied the motion, and the Fifth Circuit affirmed, reasoning that the fact that the jury hung on the insider-trading and money-laundering counts—as opposed to acquitting petitioner—cast doubt on whether it had necessarily decided that petitioner did not possess material, nonpublic information. This inconsistency between the acquittals and the hung counts, the Fifth Circuit concluded, meant that the Government could prosecute petitioner anew for insider trading and money laundering. Held: An apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals’ preclusive force under the Double Jeopardy Clause. Pp. 6–15. (a) This case is controlled by the reasoning in Ashe v. Swenson, 397 U. S. 436, where the Court squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. For double jeopardy purposes, the jury’s inability to reach a verdict on Yeager’s insider-trading and money-laundering counts was a nonevent that should be given no weight in the issue-preclusion analysis. To identify what a jury necessarily determined at trial, courts should scrutinize the jury’s decisions, not its failures to decide. A jury’s verdict of acquittal represents the community’s collective judgment regarding all the evidence and arguments presented to it. Even if the verdict is “based upon an egregiously erroneous foundation,” Fong Foo v. United States, 369 U. S. 141, 143, its finality is unassailable, see, e.g., Arizona v. Washington, 434 U. S. 497, 503. Thus, if the possession of insider information was a critical issue of ultimate fact in all of the charges against Yeager, a jury verdict that necessarily decided that issue in his favor protects him from prosecution for any charge for which that is an essential element. Pp. 6–12. (b) Neither Richardson v. United States, 468 U. S. 317, nor United States v. Powell, 469 U. S. 57, supports the Government’s argument that it can retry Yeager for insider trading or money laundering. Richardson’s conclusion that a jury’s “failure … to reach a verdict is not an event which terminates jeopardy,” 468 U. S., at 325, did not open the door to using a hung count to ignore the preclusive effect of a jury’s acquittal, but was simply a rejection of the argument—similar to the Government’s today—that a mistrial is an event of significance. Also rejected is the contention that an acquittal can never preclude retrial on a hung count because it would impute irrationality to the jury in violation of Powell’s rule that issue preclusion is “predicated on the assumption that the jury acted rationally,” 469 U. S., at 68. The Court’s refusal in Powell and in Dunn v. United States, 284 U. S. 390, to impugn the legitimacy of jury verdicts that, on their face, were logically inconsistent shows, a fortiori, that a potentially inconsistent hung count could not command a different result. Pp. 12–14. (c) The Government has argued that, even if hung counts cannot enter the issue-preclusion analysis, Yeager has failed to show that the jury’s acquittals necessarily resolved in his favor an issue of ultimate fact that must be proved to convict him of insider trading and money laundering. Having granted certiorari on the assumption that the Fifth Circuit ruled correctly that the acquittals meant the jury found that Yeager did not have insider information that contradicted what was presented to the public, this Court declines to engage in a fact-intensive analysis of the voluminous record that is unnecessary to resolve the narrow legal question at issue. If the Court of Appeals chooses, it may revisit its factual analysis in light of the Government’s arguments before this Court. Pp. 14–15. 521 F. 3d 367, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Souter, Ginsburg, and Breyer, JJ., joined, and in which Kennedy, J., joined as to Parts I–III and V. Kennedy, J., filed an opinion concurring in part and concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined. | In Dunn v. United States, 284 U. S. 390, 393 (1932), the Court, speaking through Justice Holmes, held that a logical inconsistency between a guilty verdict and a verdict of acquittal does not impugn the validity of either verdict. The question presented in this case is whether an apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts affects the preclusive force of the acquittals under the Double Jeopardy Clause of the Fifth Amendment. We hold that it does not. I In 1997, Enron Corporation (Enron) acquired a telecommunications business that it expanded and ultimately renamed Enron Broadband Services (EBS). Petitioner F. Scott Yeager served as Senior Vice President of Strategic Development for EBS from October 1, 1998, until his employment was terminated a few months before Enron filed for bankruptcy on December 2, 2001. During his tenure, petitioner played an active role in EBS’s attempt to develop a nationwide fiber-optic telecommunications system called the Enron Intelligent Network (EIN). In the summer of 1999, Enron announced that EBS would become a “ ‘core’ ” Enron business and a major part of its overall strategy. App. 11. Thereafter, Enron issued press releases touting the advanced capabilities of EIN and claiming that the project was “ ‘lit,’ ” or operational. Id., at 10. On January 20, 2000, at the company’s annual equity analyst conference, petitioner and others allegedly made false and misleading statements about the value and performance of the EIN project. On January 21, 2000, the price of Enron stock rose from $54 to $67. The next day it reached $72. At that point petitioner sold more than 100,000 shares of Enron stock that he had received as part of his compensation. During the next several months petitioner sold an additional 600,000 shares. All told, petitioner’s stock sales generated more than $54 million in proceeds and $19 million in personal profit. As for the EIN project, its value turned out to be illusory. The “intelligent” network showcased to the public in the press releases and at the analyst conference was riddled with technological problems and never fully developed. On November 5, 2004, a grand jury returned a “Fifth Superseding Indictment” charging petitioner with 126 counts of five federal offenses: (1) conspiracy to commit securities and wire fraud; (2) securities fraud; (3) wire fraud; (4) insider trading; and (5) money laundering.[Footnote 1] The Government’s theory of prosecution was that petitioner—acting in concert with other Enron executives—purposefully deceived the public about the EIN project in order to inflate the value of Enron’s stock and, ultimately, to enrich himself.[Footnote 2] Id., at 6. Count 1 of the indictment described in some detail the alleged conspiracy to commit securities fraud and wire fraud and included as overt acts the substantive offenses charged in counts 2 through 6. Count 2, the securities fraud count, alleged that petitioner made false and misleading statements at the January 20, 2000, analyst conference or that he failed to state facts necessary to prevent statements made by others from being misleading. Counts 3 through 6 alleged that petitioner and others committed four acts of wire fraud when they issued four EBS-related press releases in 2000. Counts 27 through 46, the insider trading counts, alleged that petitioner made 20 separate sales of Enron stock “while in the possession of material non-public information regarding the technological capabilities, value, revenue and business performance of [EBS].” Id., at 31. And counts 67 through 165, the money laundering counts, described 99 financial transactions involving petitioner’s use of the proceeds of his sales of Enron stock, which the indictment characterized as “criminally derived property.” Id., at 37. To simplify our discussion, we shall refer to counts 1 through 6 as the “fraud counts” and the remaining counts as the “insider trading counts.” The trial lasted 13 weeks. After four days of deliberations, the jury notified the court that it had reached agreement on some counts but had deadlocked on others. The judge then gave the jury an Allen charge, see Allen v. United States, 164 U. S. 492, 501–502 (1896), urging the jurors to reexamine the grounds for their opinions and to continue deliberations “until the end of the day” to achieve a final verdict on all counts. Tr. 13724 (July 20, 2005). When the jury failed to break the deadlock, the court told the jurors that it would “take their verdict” instead of prolonging deliberations. Id., at 13725. The jury acquitted petitioner on the fraud counts but failed to reach a verdict on the insider trading counts. The court entered judgment on the acquittals and declared a mistrial on the hung counts. On November 9, 2005, the Government obtained a new indictment against petitioner. This “Eighth Superseding Indictment” recharged petitioner with some, but not all, of the insider trading counts on which the jury had previously hung. App. 188. The new indictment refined the Government’s case: Whereas the earlier indictment had named multiple defendants, the new indictment dealt exclusively with petitioner. And instead of alleging facts implicating a broader fraudulent scheme, the new indictment focused on petitioner’s knowledge of the EIN project and his failure to disclose that information to the public before selling his Enron stock. Petitioner moved to dismiss all counts in the new indictment on the ground that the acquittals on the fraud counts precluded the Government from retrying him on the insider trading counts.[Footnote 3] He argued that the jury’s acquittals had necessarily decided that he did not possess material, nonpublic information about the performance of the EIN project and its value to Enron. In petitioner’s view, because reprosecution for insider trading would require the Government to prove that critical fact, the issue-preclusion component of the Double Jeopardy Clause barred a second trial of that issue and mandated dismissal of all of the insider trading counts. The District Court denied the motion. After reviewing the trial record, the court disagreed with petitioner’s reading of what the jury necessarily decided. In the court’s telling, the jury likely concluded that petitioner “did not knowingly and willfully participate in the scheme to defraud described in the conspiracy, securities fraud, and wire fraud counts.” 446 F. Supp. 2d 719, 735 (SD Tex. 2006). The court therefore concluded that the question whether petitioner possessed insider information was not necessarily resolved in the first trial and could be litigated anew in a second prosecution. The Court of Appeals disagreed with the District Court’s analysis of the record, but nevertheless affirmed. It reasoned that petitioner “did not dispute” the Government’s theory that he “helped shape the message” of the allegedly fraudulent presentations made at the analyst conference, and therefore rejected the District Court’s conclusion that the jury had “acquitted [petitioner] on the groun[d] that he did not participate in the fraud.” 521 F. 3d 367, 377 (CA5 2008). Based on its independent review of the record, the Court of Appeals instead concluded that “the jury must have found when it acquitted [petitioner] that [he] did not have any insider information that contradicted what was presented to the public.” Id., at 378. The court acknowledged that this factual determination would normally preclude the Government from retrying petitioner for insider trading or money laundering. The court was nevertheless persuaded that a truly rational jury, having concluded that petitioner did not have any insider information, would have acquitted him on the insider trading counts. That the jury failed to acquit, and instead hung on those counts, was pivotal in the court’s issue-preclusion analysis. Considering “the hung counts along with the acquittals,” the court found it impossible “to decide with any certainty what the jury necessarily determined.” Ibid. Relying on Circuit precedent, United States v. Larkin, 605 F. 2d 1360 (1979), the court concluded that the conflict between the acquittals and the hung counts barred the application of issue preclusion in this case. 521 F. 3d, at 378–379. Several courts have taken the contrary view and have held that a jury’s failure to reach a verdict on some counts should play no role in determining the preclusive effect of an acquittal. See United States v. Ohayon, 483 F. 3d 1281 (CA11 2007); United States v. Romeo, 114 F. 3d 141 (CA9 1997); United States v. Bailin, 977 F. 2d 270 (CA7 1992); United States v. Frazier, 880 F. 2d 878 (CA6 1989). Others have sided with the Court of Appeals. See United States v. Howe, 538 F. 3d 820 (CA8 2008); United States v. Aguilar-Aranceta, 957 F. 2d 18 (CA1 1992); United States v. White, 936 F. 2d 1326 (CADC 1991). We granted certiorari to resolve the conflict, 555 U. S. ___ (2008), and now reverse. II The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” While we have decided an exceptionally large number of cases interpreting this provision, see, e.g., United States v. DiFrancesco, 449 U. S. 117, 126–127 (1980) (collecting cases), most of our decisions have found more guidance in the common-law ancestry of the Clause than in its brief text. Thus, for example, while the risk of being fined or imprisoned implicates neither “life” nor “limb,” our early cases held that double jeopardy protection extends to punishments that are not “positively covered by the language of [the] amendment.” Ex parte Lange, 18 Wall. 163, 170 (1874). As we explained, “[i]t is very clearly the spirit of the instrument to prevent a second punishment under judicial proceedings for the same crime, so far as the common law gave that protection.” Ibid. Our cases have recognized that the Clause embodies two vitally important interests. The first is the “deeply ingrained” principle that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U. S. 184, 187–188 (1957); see Benton v. Maryland, 395 U. S. 784, 795–795 (1969); DiFrancesco, 449 U. S., at 127–128. The second interest is the preservation of “the finality of judgments.” Crist v. Bretz, 437 U. S. 28, 33 (1978). The first interest is implicated whenever the State seeks a second trial after its first attempt to obtain a conviction results in a mistrial because the jury has failed to reach a verdict. In these circumstances, however, while the defendant has an interest in avoiding multiple trials, the Clause does not prevent the Government from seeking to reprosecute. Despite the argument’s textual appeal, we have held that the second trial does not place the defendant in jeopardy “twice.” Richardson v. United States, 468 U. S. 317, 323 (1984); see 3 J. Story, Commentaries on the Constitution §1781, pp. 659–660 (1833). Instead, a jury’s inability to reach a decision is the kind of “manifest necessity” that permits the declaration of a mistrial and the continuation of the initial jeopardy that commenced when the jury was first impaneled. See Arizona v. Washington, 434 U. S. 497, 505–506 (1978); United States v. Perez, 9 Wheat. 579, 580 (1824). The “interest in giving the prosecution one complete opportunity to convict those who have violated its laws” justifies treating the jury’s inability to reach a verdict as a nonevent that does not bar retrial. Washington, 434 U. S., at 509. While the case before us involves a mistrial on the insider trading counts, the question presented cannot be resolved by asking whether the Government should be given one complete opportunity to convict petitioner on those charges. Rather, the case turns on the second interest at the core of the Clause. We must determine whether the interest in preserving the finality of the jury’s judgment on the fraud counts, including the jury’s finding that petitioner did not possess insider information, bars a retrial on the insider trading counts. This requires us to look beyond the Clause’s prohibition on being put in jeopardy “twice”; the jury’s acquittals unquestionably terminated petitioner’s jeopardy with respect to the issues finally decided in those counts. The proper question, under the Clause’s text, is whether it is appropriate to treat the insider trading charges as the “same offence” as the fraud charges. Our opinion in Ashe v. Swenson, 397 U. S. 436 (1970), provides the basis for our answer. In Ashe, we squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. In that case, six poker players were robbed by a group of masked men. Ashe was charged with—and acquitted of—robbing Donald Knight, one of the six players. The State sought to retry Ashe for the robbery of another poker player only weeks after the first jury had acquitted him. The second prosecution was successful: Facing “substantially stronger” testimony from “witnesses [who] were for the most part the same,” id., at 439–440, Ashe was convicted and sentenced to a 35-year prison term. We concluded that the subsequent prosecution was constitutionally prohibited. Because the only contested issue at the first trial was whether Ashe was one of the robbers, we held that the jury’s verdict of acquittal collaterally estopped the State from trying him for robbing a different player during the same criminal episode. Id., at 446. We explained that “when an issue of ultimate fact has once been determined by a valid and final judgment” of acquittal, it “cannot again be litigated” in a second trial for a separate offense. Id., at 443.[Footnote 4] To decipher what a jury has necessarily decided, we held that courts should “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id., at 444 (internal quotation marks omitted). We explained that the inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Ibid. (quoting Sealfon v. United States, 332 U. S. 575, 579 (1948) (internal quotation marks omitted)). Unlike Ashe, the case before us today entails a trial that included multiple counts rather than a trial for a single offense. And, while Ashe involved an acquittal for that single offense, this case involves an acquittal on some counts and a mistrial declared on others. The reasoning in Ashe is nevertheless controlling because, for double jeopardy purposes, the jury’s inability to reach a verdict on the insider trading counts was a nonevent and the acquittals on the fraud counts are entitled to the same effect as Ashe’s acquittal. As noted above, see supra, at 4, the Court of Appeals reasoned that the hung counts must be considered to determine what issues the jury decided in the first trial. Viewed in isolation, the court explained, the acquittals on the fraud charges would preclude retrial because they appeared to support petitioner’s argument that the jury decided he lacked insider information. 521 F. 3d, at 378. Viewed alongside the hung counts, however, the acquittals appeared less decisive. The problem, as the court saw it, was that, if “the jury found that [petitioner] did not have insider information, then the jury, acting rationally, would also have acquitted [him] of the insider trading counts.” Ibid. The fact that the jury hung was a logical wrinkle that made it impossible for the court “to decide with any certainty what the jury necessarily determined.” Ibid. Because petitioner failed to show what the jury decided, id., at 380, the court refused to find the Government precluded from pursuing the hung counts in a new prosecution. The Court of Appeals’ issue-preclusion analysis was in error. A hung count is not a “relevant” part of the “record of [the] prior proceeding.” See Ashe, 397 U. S., at 444 (internal quotation marks omitted). Because a jury speaks only through its verdict, its failure to reach a verdict cannot—by negative implication—yield a piece of information that helps put together the trial puzzle. A mistried count is therefore nothing like the other forms of record material that Ashe suggested should be part of the preclusion inquiry. Ibid.; see also Black’s Law Dictionary 1301 (8th ed. 2004) (defining “record” as the “official report of the proceedings in a case, including the filed papers, verbatim transcript of the trial or hearing (if any), and tangible exhibits”). Unlike the pleadings, the jury charge, or the evidence introduced by the parties, there is no way to decipher what a hung count represents. Even in the usual sense of “relevance,” a hung count hardly “make[s] the existence of any fact … more probable or less probable.” Fed. Rule Evid. 401. A host of reasons—sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few—could work alone or in tandem to cause a jury to hang.[Footnote 5] To ascribe meaning to a hung count would presume an ability to identify which factor was at play in the jury room. But that is not reasoned analysis; it is guesswork.[Footnote 6] Such conjecture about possible reasons for a jury’s failure to reach a decision should play no part in assessing the legal consequences of a unanimous verdict that the jurors did return. A contrary conclusion would require speculation into what transpired in the jury room. Courts properly avoid such explorations into the jury’s sovereign space, see United States v. Powell, 469 U. S. 57, 66 (1984); Fed. Rule Evid. 606(b), and for good reason. The jury’s deliberations are secret and not subject to outside examination. If there is to be an inquiry into what the jury decided, the “evidence should be confined to the points in controversy on the former trial, to the testimony given by the parties, and to the questions submitted to the jury for their consideration.” Packet Co. v. Sickles, 5 Wall. 580, 593 (1866); see also Vaise v. Delaval, 99 Eng. Rep. 944 (K. B. 1785) (Lord Mansfield, C. J.) (refusing to rely on juror affidavits to impeach a verdict reached by a coin flip); J. Wigmore, Evidence §2349, pp. 681–690, and n. 2 (McNaughton rev. ed. 1961 and Supp. 1991). Accordingly, we hold that the consideration of hung counts has no place in the issue-preclusion analysis. Indeed, if it were relevant, the fact that petitioner has already survived one trial should be a factor cutting in favor of, rather than against, applying a double jeopardy bar. To identify what a jury necessarily determined at trial, courts should scrutinize a jury’s decisions, not its failures to decide. A jury’s verdict of acquittal represents the community’s collective judgment regarding all the evidence and arguments presented to it. Even if the verdict is “based upon an egregiously erroneous foundation,” Fong Foo v. United States, 369 U. S. 141, 143 (1962) (per curiam), its finality is unassailable. See, e.g., Washington, 434 U. S., at 503; Sanabria v. United States, 437 U. S. 54, 64 (1978). Thus, if the possession of insider information was a critical issue of ultimate fact in all of the charges against petitioner, a jury verdict that necessarily decided that issue in his favor protects him from prosecution for any charge for which that is an essential element. III The Government relies heavily on two of our cases, Richardson v. United States, 468 U. S. 317, and United States v. Powell, 469 U. S. 57, to argue that it is entitled to retry petitioner on the insider trading counts. Neither precedent can bear the weight the Government places on it. In Richardson, the defendant was indicted on three counts of narcotics violations. The jury acquitted him on one count but hung on the others. Richardson moved to bar retrial on the hung counts, insisting that reprosecution would place him twice in jeopardy for the same offense. Unlike petitioner in this case, Richardson did not argue that retrial was barred because the jury’s verdict of acquittal meant that it necessarily decided an essential fact in his favor. He simply asserted that the hung counts, standing alone, shielded him from reprosecution. We disagreed and held that “the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy.” 468 U. S., at 325. “[T]he failure of the jury to reach a verdict,” we explained, “is not an event which terminates jeopardy.” Ibid. From this the Government extrapolates the altogether different principle that retrial is always permitted whenever a jury convicts on some counts and hangs on others. Brief for United States 23–24. But Richardson was not so broad. Rather, our conclusion was a rejection of the argument—similar to the one the Government urges today—that a mistrial is an event of significance. In so holding, we did not open the door to using a mistried count to ignore the preclusive effect of a jury’s acquittal. The Government next contends that an acquittal can never preclude retrial on a mistried count because it would impute irrationality to the jury in violation of the rule articulated in Powell, 469 U. S. 57. In Powell, the defendant was charged with various drug offenses. The jury acquitted Powell of the substantive drug charges but convicted her of using a telephone in “ ‘committing and in causing and facilitating’ ” those same offenses. Id., at 59–60. Powell attacked the verdicts on appeal as irrationally inconsistent and urged the reversal of her convictions. She insisted that “collateral estoppel should apply to verdicts rendered by a single jury, to preclude acceptance of a guilty verdict on a telephone facilitation count where the jury acquits the defendant of the predicate felony.” Id., at 64. We rejected this argument, reasoning that issue preclusion is “predicated on the assumption that the jury acted rationally.” Id., at 68. Arguing that a jury that acquits on some counts while inexplicably hanging on others is not rational, the Government contends that issue preclusion is as inappropriate in this case as it was in Powell. There are two serious flaws in this line of reasoning. First, it takes Powell’s treatment of inconsistent verdicts and imports it into an entirely different context involving both verdicts and seemingly inconsistent hung counts. But the situations are quite dissimilar. In Powell, respect for the jury’s verdicts counseled giving each verdict full effect, however inconsistent. As we explained, the jury’s verdict “brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality.” Id., at 67. By comparison, hung counts have never been accorded respect as a matter of law or history, and are not similar to jury verdicts in any relevant sense. By equating them, the Government’s argument fails. Second, the Government’s reliance on Powell assumes that a mistried count can, in context, be evidence of irrationality. But, as we explained above, see supra, at 7–8, the fact that a jury hangs is evidence of nothing—other than, of course, that it has failed to decide anything. By relying on hung counts to question the basis of the jury’s verdicts, the Government violates the very assumption of rationality it invokes for support. At bottom, the Government misreads our cases that have rejected attempts to question the validity of a jury’s verdict. In Powell and, before that, in Dunn, 284 U. S. 390, we were faced with jury verdicts that, on their face, were logically inconsistent and yet we refused to impugn the legitimacy of either verdict. In this case, there is merely a suggestion that the jury may have acted irrationally. And instead of resting that suggestion on a verdict, the Government relies on a hung count, the thinnest reed of all. If the Court in Powell and Dunn declined to use a clearly inconsistent verdict to second-guess the soundness of another verdict, then, a fortiori, a potentially inconsistent hung count could not command a different result. IV One final matter requires discussion. The Government argues that even if we conclude (as we do) that acquittals can preclude retrial on counts on which the same jury hangs, we should nevertheless affirm the judgment of the Court of Appeals because petitioner failed to show that the jury necessarily resolved in his favor an issue of ultimate fact that the Government must prove in order to convict him of insider trading and money laundering. See Brief for United States 41–45. Given the length and complexity of the proceedings, this factual dispute is understandable. The District Court and Court of Appeals each read the record differently, disagreeing as to what the jury necessarily decided in its acquittals. Compare 446 F. Supp. 2d, at 735 (“[T]he jury necessarily determined that Defendant Yeager did not knowingly and willfully participate or agree to participate in a scheme to defraud in connection with the alleged false statements or material omissions made at the analyst conference and press releases”), with 521 F. 3d, at 378 (“[T]he jury must have found when it acquitted Yeager that Yeager himself did not have any insider information that contradicted what was presented to the public”). Our grant of certiorari was based on the assumption that the Court of Appeals’ interpretation of the record was correct. We recognize the Government’s right, as the prevailing party in the Court of Appeals, to “defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals.” Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U. S. 463, 476, n. 20 (1979). But we decline to engage in a fact-intensive analysis of the voluminous record, an undertaking unnecessary to the resolution of the narrow legal question we granted certiorari to answer. If it chooses, the Court of Appeals may revisit its factual analysis in light of the Government’s arguments before this Court. V The judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. Footnote 1 See 18 U. S. C. §371 (conspiracy to commit fraud against the United States); 15 U. S. C. §78j(b) (1994 ed.), §78ff (2000 ed.), and 17 CFR §240.10b–5 (2004) (securities fraud); 18 U. S. C. §1343 (2000 ed.) (wire fraud); 15 U. S. C. §78j(b) (1994 ed.), §78ff (2000 ed.), and 17 CFR §240.10b–5–1 (insider trading); 18 U. S. C. §1957 (money laundering). Footnote 2 While petitioner was charged with 126 counts, the indictment included 176 counts in all, covering conduct by executives purportedly involved in the alleged fraud. Footnote 3 Petitioner had also moved to dismiss the relevant counts in the earlier indictment in response to the Government’s assertion that it could reprosecute petitioner for the previously hung counts under that indictment as well. See 521 F. 3d 367, 370, n. 4 (CA5 2008). Footnote 4 Although the doctrine of collateral estoppel had developed in civil litigation, we had already extended it to criminal proceedings when Ashe was decided. The justification for this application was first offered by Justice Holmes, who observed that “[i]t cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.” United States v. Oppenheimer, 242 U. S. 85, 87 (1916). Currently, the more descriptive term “issue preclusion” is often used in lieu of “collateral estoppel.” See Restatement (Second) of Judgments §27 (1980). Footnote 5 Indeed, there were many indications that the jury in this case could have been exhausted after the 13-week trial. See Reply Brief for Petitioner 9–10 (cataloging numerous “statements on the record [that] reveal the very real possibility that the jurors cut their deliberations short out of exhaustion”). Footnote 6 It would also require too much of the defendant. To preclude retrial, he must show that the jury necessarily decided an issue in his favor. Yet, to borrow from the Court of Appeals, “[b]ecause it is impossible to determine why [a] jury hung,” 521 F. 3d, at 379, the defendant will have to rebut all inferences about what may have motivated the jury to hang without the ability to seek conclusive proof. See Fed. Rule Evid. 606(b). There is no reason to impose such a burden on a defendant. |
555.US.2008_07-869 | Idaho’s Right to Work Act permits public employees to authorize payroll deductions for general union dues, but prohibits such deductions for union political activities. Respondents—a group of Idaho public employee unions—sued, alleging that the ban on payroll deductions for political activities violated the First and Fourteenth Amendments. The District Court upheld the ban at the state level, but struck it down as it applies to local governments. In affirming, the Ninth Circuit stated that, while Idaho has the ultimate control over local governmental units, it did not actually operate or control their payroll deduction systems. The court applied strict scrutiny to hold that the statute was unconstitutional as applied at the local level. Held: Idaho’s ban on political payroll deductions, as applied to local governmental units, does not infringe the unions’ First Amendment rights. Pp. 5–11. (a) Content-based restrictions on speech are “presumptively invalid” and subject to strict scrutiny. Davenport v. Washington Ed. Assn., 551 U. S. 177, ___. The First Amendment does not, however, impose an obligation on government to subsidize speech. See Regan v. Taxation With Representation of Wash., 461 U. S. 540, 549. Idaho’s law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities. Idaho’s public employee unions are free to engage in such speech as they see fit. They simply are barred from enlisting the State in support of that endeavor. Idaho’s decision to limit public employee payroll deductions as it has does not infringe the unions’ First Amendment rights. The State accordingly need only demonstrate a rational basis to justify the ban. Idaho’s justification is the interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics. See, e.g., Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 565. And the State’s response to the problem is limited to its source—political payroll deductions. Cf. Davenport, supra. The ban plainly serves the State’s interest in separating public employment from political activities. Pp. 5–8. (b) The ban at issue is valid at the local level. The same deferential review applies whether the ban is directed at state or local governmental entities. Political subdivisions have never been considered sovereign entities but are instead “subordinate governmental instrumentalities.” Reynolds v. Sims, 377 U. S. 533, 575. The State’s legislative action is subject to First Amendment scrutiny whether it is applicable at the state level, the local level, both, or some subpart of either, but no case suggests that a different analysis applies depending on the level of government affected. The ban furthers Idaho’s interest in separating the operation of government from partisan politics, and that interest extends to all public employers at whatever level of government. Pp. 9–11. 504 F. 3d 1053, reversed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined, and in which Ginsburg, J., joined as to Parts I and III. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment. Breyer, J., filed an opinion concurring in part and dissenting in part. Stevens, J., and Souter, J., filed dissenting opinions. | Under Idaho law, a public employee may elect to have a portion of his wages deducted by his employer and remitted to his union to pay union dues. He may not, however, choose to have an amount deducted and remitted to the union’s political action committee, because Idaho law prohibits payroll deductions for political activities. A group of unions representing Idaho public employees challenged this limitation. They conceded that the limitation was valid as applied at the state level, but argued that it violated their First Amendment rights when applied to county, municipal, school district, and other local public employers. We do not agree. The First Amendment prohibits government from “abridging the freedom of speech”; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression. Idaho’s law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities. Such a decision is reasonable in light of the State’s interest in avoiding the appearance that carrying out the public’s business is tainted by partisan political activity. That interest extends to government at the local as well as state level, and nothing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions for political activities. I Idaho’s Right to Work Act declares that the “right to work shall not be infringed or restricted in any way based on membership in, affiliation with, or financial support of a labor organization or on refusal to join, affiliate with, or financially or otherwise support a labor organization.” 1985 Idaho Sess. Laws ch. 2, §1 (codified at Idaho Code §44–2001 (Michie 2003)). As part of that policy, the Act prohibits any requirement for the payment of dues or fees to a labor organization as a condition of employment, §44–2003, but authorizes employers to deduct union fees from an employee’s wages with the employee’s “signed written authorization,” §44–2004(1). The Act covers all employees, “including all employees of the state and its political subdivisions.” §44–2011. Prior to 2003, employees could authorize both a payroll deduction for general union dues and a payroll deduction for union political activities conducted through a political action committee. App. 55–56, 83–84. In 2003, the Idaho Legislature passed the Voluntary Contributions Act (VCA). 2003 Sess. Laws chs. 97 and 340 (codified at Idaho Code §§44–2601 through 44–2605, and §44–2004). That legislation, among other things, amended the Right to Work Act by adding a prohibition on payroll deductions for political purposes. That amendment provides: “Deductions for political activities as defined in chapter 26, title 44, Idaho Code, shall not be deducted from the wages, earnings or compensation of an employee.” §44–2004(2). The term “political activities” is defined as “electoral activities, independent expenditures, or expenditures made to any candidate, political party, political action committee or political issues committee or in support of or against any ballot measure.” §44–2602(1)(e). Violations of §44–2004(2) are punishable by a fine not exceeding $1,000 or up to 90 days of imprisonment, or both. §44–2007. Shortly before the VCA was to take effect, plaintiff labor organizations sued the Bannock County prosecuting attorney, the Idaho secretary of state, and the Idaho attorney general in their official capacities, alleging that the ban on political payroll deductions was unconstitutional under the First and Fourteenth Amendments to the United States Constitution. App. 18–41.[Footnote 1] The District Court rejected that argument with respect to public employers at the state level, concluding that the First Amendment does not compel the State “to subsidize speech by providing, at its own expense, payroll deductions for the purpose of paying union dues or association fees for State employees.” Pocatello Ed. Assn. v. Heideman, 2005 WL 3241745, *2 (D Idaho, Nov. 23, 2005). The ban was valid at the state level because “the State is incurring costs to set up and maintain the [payroll deduction] program.” Ibid. The court struck down the VCA, however, “to the extent that it applies to local governments and private employers,” because the State had failed to identify any subsidy it provided to such employers to administer payroll deductions. Id., at *2 (footnote omitted), *6. The state defendants appealed, contending that the ban on political payroll deductions may be constitutionally applied to local government employees. Pocatello Ed. Assn. v. Heideman, 504 F. 3d 1053, 1057 (CA9 2007). Neither party challenged the District Court’s rulings as to private and state-level employees, and therefore the only issue remaining concerned application of the ban to local government employees. The Court of Appeals agreed with the District Court that there was “no subsidy by the State of Idaho for the payroll deduction systems of local governments.” Id., at 1059. The appellate court remarked that “the generalized lawmaking power held by the legislature with respect to a state’s political subdivisions does not establish that the state is acting as a proprietor” with respect to local government employers. Id., at 1064. The court instead regarded the relationship between the State and its political subdivisions as analogous to that between the State and a regulated private utility. See id., at 1063–1065 (citing Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530 (1980)). While “Idaho has the ultimate power of control over the units of government at issue,” it did not “actually operat[e] or contro[l] the payroll deduction systems of local units of government.” 504 F. 3d, at 1068. The court therefore applied strict scrutiny to Idaho’s decision to prevent local government employers from allowing payroll deductions for political purposes, and held the statute unconstitutional as applied at the local level. Ibid. We granted certiorari, 552 U. S. __ (2008), and now reverse. II Restrictions on speech based on its content are “presumptively invalid” and subject to strict scrutiny. Davenport v. Washington Ed. Assn., 551 U. S. 177, 188 (2007); R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992). The unions assert that the ban on checkoffs for political activities falls into this category because the law singles out political speech for disfavored treatment. The First Amendment, however, protects the right to be free from government abridgment of speech. While in some contexts the government must accommodate expression, it is not required to assist others in funding the expression of particular ideas, including political ones. “[A] legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” Regan v. Taxation With Representation of Wash., 461 U. S. 540, 549 (1983); cf. Smith v. Highway Employees, 441 U. S. 463, 465 (1979) (per curiam) (“First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize [a labor] association and bargain with it”). The court below concluded, and Idaho does not dispute, that “unions face substantial difficulties in collecting funds for political speech without using payroll deductions.” 504 F. 3d, at 1058. But the parties agree that the State is not constitutionally obligated to provide payroll deductions at all. See Plaintiffs’ Reply Memorandum 10; see also Toledo Area AFL–CIO Council v. Pizza, 154 F. 3d 307, 319–320 (CA6 1998); cf. Charlotte v. Firefighters, 426 U. S. 283, 286 (1976) (“Court would reject … contention … that respondents’ status as union members or their interest in obtaining a dues checkoff … entitle[s] them to special treatment under the Equal Protection Clause”). While publicly administered payroll deductions for political purposes can enhance the unions’ exercise of First Amendment rights, Idaho is under no obligation to aid the unions in their political activities. And the State’s decision not to do so is not an abridgment of the unions’ speech; they are free to engage in such speech as they see fit. They simply are barred from enlisting the State in support of that endeavor. Idaho’s decision to limit public employer payroll deductions as it has “is not subject to strict scrutiny” under the First Amendment. Regan, 461 U. S., at 549. Given that the State has not infringed the unions’ First Amendment rights, the State need only demonstrate a rational basis to justify the ban on political payroll deductions. Id., at 546–551. The prohibition is not “aim[ed] at the suppression of dangerous ideas,” id., at 548 (internal quotation marks omitted), but is instead justified by the State’s interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics. We have previously recognized such a purpose in upholding limitations on public employee political activities. See Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 565 (1973) (public perception of partiality can undermine confidence in representative government); Public Workers v. Mitchell, 330 U. S. 75, 96–100 (1947) (Congress may limit political acts by public officials to promote integrity in the discharge of official duties); cf. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 809 (1985) (limitations on speech may be justified by interest in “avoiding the appearance of political favoritism”); Greer v. Spock, 424 U. S. 828, 839 (1976) (upholding policy aimed at keeping official military activities “wholly free of entanglement with partisan political campaigns of any kind”). Banning payroll deductions for political speech similarly furthers the government’s interest in distinguishing between internal governmental operations and private speech. Idaho’s decision to allow payroll deductions for some purposes but not for political activities is plainly reasonable.[Footnote 2] Davenport guides our resolution here. That case also involved a distinction based on the content of speech: Specific consent was required from nonunion members before agency fees charged to them could be used for election-related activities, but consent was not required with respect to agency fees used for other purposes. 551 U. S., at 181–182. We rejected the unions’ argument that this requirement violated the First Amendment because it turned on the content of the speech at issue. Id., at 188–190. We recognized that the statute, rather than suppressing union speech, simply declined to assist that speech by granting the unions the right to charge agency fees for election activities. That decision was reasonable given the State’s interest in preserving the integrity of the election process. Ibid. We also concluded that the State did “not have to enact an across-the-board limitation … to vindicate [its] more narrow concern.” Id., at 189. Here the restriction is on the use of a checkoff to fund political activities, but the same analysis governs. Idaho does not suppress political speech but simply declines to promote it through public employer checkoffs for political activities. The concern that political payroll deductions might be seen as involving public employers in politics arises only because Idaho permits public employer payroll deductions in the first place. As in Davenport, the State’s response to that problem is limited to its source—in this case, political payroll deductions. The ban on such deductions plainly serves the State’s interest in separating public employment from political activities.[Footnote 3] III The question remains whether the ban is valid at the local level. The unions abandoned their challenge to the restriction at the state level, but contend that strict scrutiny is still warranted when the ban is applied to local government employers. In that context, the unions argue, the State is no longer declining to facilitate speech through its own payroll system, but is obstructing speech in the local governments’ payroll systems. See Brief for Respondents 44–46. We find that distinction unpersuasive, and hold that the same deferential review applies whether the prohibition on payroll deductions for political speech is directed at state or local governmental entities. “Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities.” Reynolds v. Sims, 377 U. S. 533, 575 (1964). They are instead “subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” Ibid.; see also Louisiana ex rel. Folsom v. Mayor and Administrators of New Orleans, 109 U. S. 285, 287 (1883) (“Municipal corporations are instrumentalities of the State for the convenient administration of government within their limits”). State political subdivisions are “merely … department[s] of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit.” Trenton v. New Jersey, 262 U. S. 182, 187 (1923). Here the Idaho Legislature has elected to withhold from all public employers the power to provide payroll deductions for political activities. The State’s legislative action is of course subject to First Amendment and other constitutional scrutiny whether that action is applicable at the state level, the local level, both, or some subpart of either. But we are aware of no case suggesting that a different analysis applies under the First Amendment depending on the level of government affected, and the unions have cited none. The ban on political payroll deductions furthers Idaho’s interest in separating the operation of government from partisan politics. That interest extends to all public employers at whatever level of government. In reaching the opposite conclusion, the Court of Appeals invoked our decision in Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530. In that case, we held that a state commission could not, consistent with the First Amendment, prohibit a privately owned electric utility from discussing controversial issues in its bill inserts. Id., at 544. We ruled that the fact that the State regulated the utility did not authorize the prohibition. Id., at 540. The Court of Appeals concluded that the same analysis applied here, and that “the State’s broad powers of control over local government entities are solely those of a regulator, analogous to the [state commission’s] regulatory power over [the private utility].” 504 F. 3d, at 1065. That analogy is misguided. A private corporation is subject to the government’s legal authority to regulate its conduct. A political subdivision, on the other hand, is a subordinate unit of government created by the State to carry out delegated governmental functions. A private corporation enjoys constitutional protections, see First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 778, n. 14 (1978), but a political subdivision, “created by the state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.” Williams v. Mayor of Baltimore, 289 U. S. 36, 40 (1933); see Trenton v. New Jersey, supra, at 185 (municipality, as successor to a private water company, does not enjoy against the State the same constitutional rights as the water company: “[T]he relations existing between the State and the water company were not the same as those between the State and the City”). Both the District Court and the Court of Appeals found it significant that “there is no subsidy by the State of Idaho for the payroll deduction systems of local governments.” 504 F. 3d, at 1059; see also 2005 WL 3241745, *2. The Court of Appeals emphasized that there was no evidence that “Idaho has attempted to use its asserted powers to manage the day-to-day operations of local government personnel.” 504 F. 3d, at 1067. Given the relationship between the State and its political subdivisions, however, it is immaterial how the State allocates funding or management responsibilities between the different levels of government. The question is whether the State must affirmatively assist political speech by allowing public employers to administer payroll deductions for political activities. For the reasons set forth in this opinion, the answer is no. * * * The Court of Appeals ruling that Idaho Code §44–2004(2) is unconstitutional with respect to local units of government is reversed. It is so ordered. Footnote 1 The unions also challenged other provisions of the VCA, including one requiring labor organizations to establish a “separate segregated fund” for political activities. Idaho Code §§44–2601 through 44–2605 (Michie 2002); see App. 27–34. In response to that challenge, the State agreed to strike “all of the VCA except for its ban on political payroll deductions.” Pocatello Ed. Assn. v. Heideman, 2005 WL 3241745, *1 (D Idaho, Nov. 23, 2005). The State asserted that the ban could be “given effect since it operates without reference to the existence of a separate segregated fund.” Ibid. (internal quotation marks omitted). The unions do not dispute that the ban on political payroll deductions is severable from the other challenged provisions. Plaintiffs’ Reply Memorandum in Support of Their Motion for Summary Judgment and in Opposition to the State Defendants’ Motion for Summary Judgment, in No. Civ. 03–256–E–BLW (D Idaho, Aug. 15, 2005), p. 3 (hereinafter Plaintiffs’ Reply Memorandum). Footnote 2 Justice Breyer finds this analysis inapplicable because the challenged provision removes politically related deductions from an existing system. Post, at 2 (opinion concurring in part and dissenting in part). But available deductions do not have tenure; a legislature is free to address concerns as they arise. Justice Breyer would also subject the ban to more exacting scrutiny by analogizing it to various direct restrictions on expression. See post, at 2–4. That analogy misses the mark. A decision not to assist fundraising that may, as a practical matter, result in fewer contributions is simply not the same as directly limiting expression. Cf. Regan v. Taxation With Representation of Wash., 461 U. S. 540, 550 (1983) (“Although [a union] does not have as much money as it wants, and thus cannot exercise its freedom of speech as much as it would like, the Constitution does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom” (internal quotation marks omitted)). We therefore would not subject Idaho’s statute to the “open-ended rough-and-tumble of factors” proposed by the dissent as an alternative to rational basis review. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 547 (1995); see post, at 4. Footnote 3 Justice Breyer suggests that the ban on political payroll deductions may not be applied evenhandedly to all politically related deductions. Post, at 4–6 (opinion concurring in part and dissenting in part). Justice Stevens goes further and would find the ban unconstitutional in all its applications as discriminatory. Post, at 1 (dissenting opinion). The District Court, however, noted that the ban “is not viewpoint-based,” 2005 WL 3241745, *3; the unions acknowledged in their Court of Appeals brief that they “have not attempted to establish that Section 44–2004(2) is based on viewpoint discrimination,” Brief for Plaintiffs-Appellees in No. 06–35004 (CA9), p. 18, n. 13; and nothing in the Questions Presented before this Court raised any issue of viewpoint discrimination. The ban on political payroll deductions is by its terms not limited to any particular type of political contribution. Nothing in the record suggests that public employers permit deductions for some political activities but not for those of unions. Idaho’s attorney general—charged with enforcing the ban—explicitly confirmed that it “applies to all organizations, to any deduction regarding political issues, applies regardless of viewpoint or message, applies to all employers, and it does not single out any candidates or issues.” App. 110. If the ban is not enforced evenhandedly, plaintiffs are free to bring an as applied challenge. See National Endowment for Arts v. Finley, 524 U. S. 569, 587 (1998). |
Subsets and Splits