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Lawson v. FMR LLC

2014-03-04

https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/

https://www.courtlistener.com/api/rest/v3/clusters/2655498/

2013-024

To safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation, Congress enacted the Sarbanes-Oxley Act of 2002, 116 Stat. 745. See S. Rep. No. 107–146, pp. 2–11 (2002). A provision of the Act, 18 U.S. C. §1514A, protects whistleblowers. Section 1514A, at the time here relevant, instructed: “No [public] company . . . , or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an em- ployee in the terms and conditions of employment be- cause of [whistleblowing or other protected activity].” §1514A(a) (2006 ed.). This case concerns the definition of the protected class: Does §1514A shield only those employed by the public company itself, or does it shield as well employees of pri- vately held contractors and subcontractors—for example, investment advisers, law firms, accounting enterprises— who perform work for the public company? 2 LAWSON v. FMR LLC Opinion of the Court We hold, based on the text of §1514A, the mischief to which Congress was responding, and earlier legislation Congress drew upon, that the provision shelters employees of private contractors and subcontractors, just as it shel- ters employees of the public company served by the con- tractors and subcontractors. We first summarize our principal reasons, then describe this controversy and explain our decision more comprehensively. Plaintiffs below, petitioners here, are former employees of private companies that contract to advise or manage mutual funds. The mutual funds themselves are public companies that have no employees. Hence, if the whistle is to be blown on fraud detrimental to mutual fund inves- tors, the whistleblowing employee must be on another company’s payroll, most likely, the payroll of the mutual fund’s investment adviser or manager. Taking the allegations of the complaint as true, both plaintiffs blew the whistle on putative fraud relating to the mutual funds and, as a consequence, suffered adverse action by their employers. Plaintiffs read §1514A to con- vey that “[n]o . . . contractor . . . may . . . discriminate against [its own] employee [for whistleblowing].” We find that reading consistent with the text of the statute and with common sense. Contractors are in control of their own employees, but are not ordinarily positioned to control someone else’s workers. Moreover, we resist attributing to Congress a purpose to stop a contractor from retaliating against whistleblowers employed by the public company the contractor serves, while leaving the contractor free to retaliate against its own employees when they reveal corporate fraud. In the Enron scandal that prompted the Sarbanes-Oxley Act, contractors and subcontractors, including the ac- counting firm Arthur Andersen, participated in Enron’s fraud and its coverup. When employees of those contrac- tors attempted to bring misconduct to light, they encoun- Cite as: 571 U. S. ____ (2014) 3 Opinion of the Court tered retaliation by their employers. The Sarbanes-Oxley Act contains numerous provisions aimed at controlling the conduct of accountants, auditors, and lawyers who work with public companies. See, e.g., 116 Stat. 750–765, 773– 774, 784, §§101–107, 203–206, 307. Given Congress’ concern about contractor conduct of the kind that contrib- uted to Enron’s collapse, we regard with suspicion con- struction of §1514A to protect whistleblowers only when they are employed by a public company, and not when they work for the public company’s contractor. Congress borrowed §1514A’s prohibition against retalia- tion from the wording of the 2000 Wendell H. Ford Avia- tion Investment and Reform Act for the 21st Century (AIR 21), 49 U.S. C. §42121. That Act provides: “No air carrier or contractor or subcontractor of an air carrier may dis- charge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment” when the employee provides information regarding violations “relating to air carrier safety” to his or her employer or federal authorities. §42121(a)(1). AIR 21 has been read to cover, in addition to employees of air carriers, employees of contractors and subcontractors of the carriers. Given the parallel statu- tory texts and whistleblower protective aims, we read the words “an employee” in AIR 21 and in §1514A to have similar import. I A The Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley or Act) aims to “prevent and punish corporate and criminal fraud, protect the victims of such fraud, preserve evidence of such fraud, and hold wrongdoers accountable for their actions.” S. Rep. No. 107–146, p. 2 (2002) (hereinafter 4 LAWSON v. FMR LLC Opinion of the Court S. Rep.).1 Of particular concern to Congress was abundant evidence that Enron had succeeded in perpetuating its massive shareholder fraud in large part due to a “corpo- rate code of silence”; that code, Congress found, “discour- age[d] employees from reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally.” Id., at 4–5 (internal quotation marks omitted). When employees of Enron and its ac- counting firm, Arthur Andersen, attempted to report corporate misconduct, Congress learned, they faced retali- ation, including discharge. As outside counsel advised company officials at the time, Enron’s efforts to “quiet” whistleblowers generally were not proscribed under then- existing law. Id., at 5, 10. Congress identified the lack of whistleblower protection as “a significant deficiency” in the law, for in complex securities fraud investigations, employees “are [often] the only firsthand witnesses to the fraud.” Id., at 10. Section 806 of Sarbanes-Oxley addresses this concern. Titled “Protection for Employees of Publicly Traded Com- panies Who Provide Evidence of Fraud,” §806 added a new provision to Title 18 of the United States Code, 18 U.S. C. §1514A, which reads in relevant part: “Civil action to protect against retaliation in fraud cases “(a) WHISTLEBLOWER PROTECTION FOR EMPLOYEES —————— 1 Title VIII of the Act, which contains the whistleblower protection provision at issue in this case, was authored by Senators Leahy and Grassley and originally constituted a discrete bill, S. 2010. We thus look to the Senate Report for S. 2010, S. Rep. No. 107–146, as the Senate Report relevant here. See 148 Cong. Rec. S7418 (daily ed. July 26, 2002) (statement of Sen. Leahy) (“unanimous consent” to “includ[e] in the CONGRESSIONAL RECORD as part of the official legislative history” of Sarbanes-Oxley that Title VIII’s “terms track almost exactly the provisions of S. 2010, introduced by Senator Leahy and reported unanimously from the Committee on the Judiciary”). Cite as: 571 U. S. ____ (2014) 5 Opinion of the Court OF PUBLICLY TRADED COMPANIES.—No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S. C. §78l), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S. C. §78o(d)), or any officer, employee, contractor, subcon- tractor, or agent of such company, may discharge, de- mote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee— “(1) to provide information, cause information to be provided, or otherwise assist in an investigation re- garding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities or commodities fraud], any rule or regula- tion of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by [a fed- eral agency, Congress, or supervisor] . . . .” §806, 116 Stat. 802.2 Congress has assigned whistleblower protection largely to the Department of Labor (DOL), which administers some 20 United States Code incorporated whistleblower protection provisions. See 78 Fed. Reg. 3918 (2013). The Secretary has delegated investigatory and initial adju- dicatory responsibility over claims under a number of these —————— 2 As discussed infra, at 24–26, Congress amended §1514A in 2010 to extend whistleblower coverage to employees of public companies’ subsidiaries and nationally recognized statistical ratings organizations. 124 Stat. 1848. Plaintiffs do not fall in either category and, in any event, their claims are governed by the prior version of §1514A. Unless otherwise noted, all citations to §1514A are to the original text in the 2006 edition of the United States Code. 6 LAWSON v. FMR LLC Opinion of the Court provisions, including §1514A, to DOL’s Occupational Safety and Health Administration (OSHA). Ibid. OSHA’s order may be appealed to an administrative law judge, and then to DOL’s Administrative Review Board (ARB). 29 CFR §§1980.104 to 1980.110 (2011). In common with other whistleblower protection provi- sions enforced by DOL, see 77 Fed. Reg. 3912 (2012), the ARB’s determination on a §1514A claim constitutes the agency’s final decision and is reviewable in federal court under the standards stated in the Administrative Proce- dure Act, 5 U.S. C. §706. If, however, the ARB does not issue a final decision within 180 days of the filing of the complaint, and the delay is not due to bad faith on the claimant’s part, the claimant may proceed to federal dis- trict court for de novo review. 18 U.S. C. §1514A(b). An employee prevailing in a proceeding under §1514A is entitled to “all relief necessary to make the employee whole,” including “reinstatement with the same seniority status that the employee would have had, but for the discrimination,” backpay with interest, and compensation for litigation costs. §1514A(c). Congress modeled §1514A on the anti-retaliation provi- sion of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S. C. §42121, a measure enacted two years earlier. See S. Rep., at 30 (corporate whistleblower protections “track [AIR 21’s] protections as closely as possible”). Section 1514A incorporates by cross-reference AIR 21’s administrative enforcement procedures. 18 U.S. C. §1514A(b)(2). B Petitioners Jackie Hosang Lawson and Jonathan M. Zang (plaintiffs) separately initiated proceedings under §1514A against their former employers, privately held companies that provide advisory and management ser- vices to the Fidelity family of mutual funds. The Fidelity Cite as: 571 U. S. ____ (2014) 7 Opinion of the Court funds are not parties to either case; as is common in the mutual fund industry, the Fidelity funds themselves have no employees. Instead, they contract with investment advisers like respondents to handle their day-to-day oper- ations, which include making investment decisions, pre- paring reports for shareholders, and filing reports with the Securities and Exchange Commission (SEC). Lawson was employed by Fidelity Brokerage Services, LLC, a subsidi- ary of FMR Corp., which was succeeded by FMR LLC. Zang was employed by a different FMR LLC subsidiary, Fidelity Management & Research Co., and later by one of that company’s subsidiaries, FMR Co., Inc. For conven- ience, we refer to respondents collectively as FMR. Lawson worked for FMR for 14 years, eventually serv- ing as a Senior Director of Finance. She alleges that, after she raised concerns about certain cost accounting method- ologies, believing that they overstated expenses associated with operating the mutual funds, she suffered a series of adverse actions, ultimately amounting to constructive discharge. Zang was employed by FMR for eight years, most recently as a portfolio manager for several of the funds. He alleges that he was fired in retaliation for raising concerns about inaccuracies in a draft SEC reg- istration statement concerning certain Fidelity funds. Lawson and Zang separately filed administrative com- plaints alleging retaliation proscribed by §1514A. After expiration of the 180-day period specified in §1514A(b)(1), Lawson and Zang each filed suit in the U. S. District Court for the District of Massachusetts. FMR moved to dismiss the suits, arguing, as relevant, that neither plaintiff has a claim for relief under §1514A. FMR is privately held, and maintained that §1514A pro- tects only employees of public companies—i.e., companies that either have “a class of securities registered under section 12 of the Securities Exchange Act of 1934,” or that are “required to file reports under section 15(d)” of that 8 LAWSON v. FMR LLC Opinion of the Court Act. §1514A(a).3 In a joint order, the District Court re- jected FMR’s interpretation of §1514A and denied the dismissal motions in both suits. 724 F. Supp. 2d 141 (Mass. 2010). On interlocutory appeal, a divided panel of the First Circuit reversed. 670 F.3d 61 (2012). The Court of Ap- peals majority acknowledged that FMR is a “contractor”4 within the meaning of §1514A(a), and thus among the actors prohibited from retaliating against “an employee” who engages in protected activity. The majority agreed with FMR, however, that “an employee” refers only to employees of public companies and does not cover a con- tractor’s own employees. Id., at 68–80. Judge Thompson dissented. In her view, the majority had “impose[d] an unwarranted restriction on the intentionally broad lan- guage of the Sarbanes-Oxley Act” and “bar[red] a signifi- cant class of potential securities-fraud whistleblowers from any legal protection.” Id., at 83. Several months later, the ARB issued a decision in an unrelated case, Spinner v. David Landau & Assoc., LLC, No. 10–111 etc., ALJ No. 2010–SOX–029 (May 31, 2012),5 disagreeing with the Court of Appeals’ interpretation of §1514A. In a comprehensive opinion, the ARB explained its position that §1514A affords whistleblower protection to employees of privately held contractors that render services to public companies. Ibid.6 —————— 3 Here,as just noted, the public company has no employees. See su- pra, at 2. 4 As §1514A treats contractors and subcontractors identically, we generally refer simply to “contractors” without distinguishing between the two. 5 The whistleblower in Spinner was an employee of an accounting firm that provided auditing, consulting, and Sarbanes-Oxley compli- ance services to a public company. 6 The dissent maintains that the ARB’s interpretation of §1514A is not entitled to deference because, “if any agency has the authority to resolve ambiguities in §1514A with the force of law, it is the SEC, not Cite as: 571 U. S. ____ (2014) 9 Opinion of the Court We granted certiorari, 569 U. S. ___ (2013), to resolve the division of opinion on whether §1514A extends whis- tleblower protection to employees of privately held con- tractors who perform work for public companies. II A In determining the meaning of a statutory provision, “we look first to its language, giving the words used their ordinary meaning.” Moskal v. United States, 498 U.S. 103, 108 (1990) (citation and internal quotation marks omitted). As Judge Thompson observed in her dissent from the Court of Appeals’ judgment, “boiling [§1514A(a)] down to its relevant syntactic elements, it provides that ‘no . . . contractor . . . may discharge . . . an employee.’ ” 670 F.3d, at 84 (quoting §1514A(a)). The ordinary mean- ing of “an employee” in this proscription is the contractor’s own employee. FMR’s interpretation of the text requires insertion of “of a public company” after “an employee.” But where Con- gress meant “an employee of a public company,” it said so: With respect to the actors governed by §1514A, the provi- —————— the Department of Labor.” Post, at 18. Because we agree with the ARB’s conclusion that §1514A affords protection to a contractor’s employees, we need not decide what weight that conclusion should carry. We note, however, that the SEC apparently does not share the dissent’s view that it, rather than DOL, has interpretive authority over §1514A. To the contrary, the SEC is a signatory to the Government’s brief in this case, which takes the position that Congress has charged the Secretary of Labor with interpreting §1514A. Brief for United States as Amicus Curiae 9–11, 31–34. That view is hardly surprising given the lead role played by DOL in administering whistleblower statutes. See supra, at 5. The dissent observes that the SEC “has not issued a regulation applying §1514A whistleblower protection to employees of public company contractors,” post, at 18, but omits to inform that the SEC has not promulgated any regulations interpreting §1514A, consistent with its view that Congress delegated that respon- sibility to DOL. 10 LAWSON v. FMR LLC Opinion of the Court sion’s interdictions run to the officers, employees, contrac- tors, subcontractors, and agents “of such company,” i.e., a public company. §1514A(a). Another anti-retaliation pro- vision in Sarbanes-Oxley provides: “[A] broker or dealer and persons employed by a broker or dealer who are involved with investment banking activities may not, directly or indirectly, retaliate against or threaten to retaliate against any securities analyst employed by that broker or dealer or its affiliates . . . .” 15 U.S. C. §78o– 6(a)(1)(C) (emphasis added). In contrast, nothing in §1514A’s language confines the class of employees protected to those of a designated employer. Absent any textual qualification, we presume the operative language means what it appears to mean: A contractor may not retaliate against its own employee for engaging in protected whistle- blowing activity.7 Section 1514A’s application to contractor employees is confirmed when we enlarge our view from the term “an employee” to the provision as a whole. The prohib- ited retaliatory measures enumerated in §1514A(a)— discharge, demotion, suspension, threats, harassment, or dis- crimination in the terms and conditions of employment— are commonly actions an employer takes against its own employees. Contractors are not ordinarily posi- tioned to take adverse actions against employees of the public company with whom they contract. FMR’s inter- pretation of §1514A, therefore, would shrink to insignifi- cance the provision’s ban on retaliation by contractors. The dissent embraces FMR’s “narrower” construction. See post, at 2, 3, 4, 7. FMR urges that Congress included contractors in §1514A’s list of governed actors simply to prevent public —————— 7 We need not decide in this case whether §1514A also prohibits a contractor from retaliating against an employee of one of the other actors governed by the provision. Cite as: 571 U. S. ____ (2014) 11 Opinion of the Court companies from avoiding liability by employing contrac- tors to effectuate retaliatory discharges. FMR describes such a contractor as an “ax-wielding specialist,” illustrated by George Clooney’s character in the movie Up in the Air.8 Brief for Respondents 24–25 (internal quotation marks omitted). As portrayed by Clooney, an ax-wielding special- ist is a contractor engaged only as the bearer of the bad news that the employee has been fired; he plays no role in deciding who to terminate. If the company employing the ax-wielder chose the recipients of the bad tidings for retal- iatory reasons, the §1514A claim would properly be di- rected at the company. Hiring the ax-wielder would not insulate the company from liability. Moreover, we see no indication that retaliatory ax-wielding specialists are the real-world problem that prompted Congress to add con- tractors to §1514A.9 Moving further through §1514A to the protected activity described in subsection (a)(1), we find further reason to —————— 8 This hypothetical originates in a Seventh Circuit opinion, Fleszar v. United States Dept. of Labor, 598 F.3d 912, 915 (2010), and is men- tioned in a footnote in the First Circuit’s opinion in this case, 670 F.3d 61, 69, n. 11 (2012). 9 When asked during oral argument for an example of actual circum- stances in which a contractor would have employment decisionmak- ing authority over public company employees, FMR’s counsel cited Kalkunte v. DVI Financial Servs., Inc., No. 05–139 etc., ALJ No. 2004– SOX–056 (Feb. 27, 2009). Tr. of Oral Arg. 33. That case involved a bankrupt public company that hired a private company to handle its dissolution. The ARB found the private company liable under §1514A because it acted as a “contractor, subcontractor, or agent” of the public company in discharging the claimant. ALJ No. 2004–SOX–056, at 10 (emphasis added). Neither FMR nor its amici have pointed us to any actual situation in which a public company employee would be vulner- able to retaliatory conduct by a contractor not already covered as an “agent” under §1514A. Notably, even in Tides v. The Boeing Co., 644 F.3d 809 (CA9 2011), the case cited by the dissent for the proposition that contractors may possess “managerial authority” over public company employees, post, at 10, the alleged retaliation was by the public company itself. 12 LAWSON v. FMR LLC Opinion of the Court believe that Congress presumed an employer-employee relationship between the retaliator and the whistleblower. Employees gain protection for furnishing information to a federal agency, Congress, or “a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct).” §1514A(a)(1) (em- phasis added). And under §1514A(a)(2), employees are protected from retaliation for assisting “in a proceeding filed or about to be filed (with any knowledge of the em- ployer) relating to an alleged violation” of any of the enu- merated fraud provisions, securities regulations, or other federal law relating to shareholder fraud. §1514A(a)(2) (emphasis added). The reference to employer knowledge is an additional indicator of Congress’ expectation that the retaliator typically will be the employee’s employer, not another entity less likely to know of whistleblower com- plaints filed or about to be filed. Section 1514A’s enforcement procedures and remedies similarly contemplate that the whistleblower is an em- ployee of the retaliator. As earlier noted, see supra, at 6, §1514A(b)(2)(A) provides that a claim under §1514A “shall be governed under the rules and procedures set forth in section 42121(b) of title 49,” i.e., AIR 21’s anti-retaliation provision. Throughout §42121(b), the respondent is re- ferred to as “the employer.” See 49 U.S. C. §42121(b)(2) (B)(ii) (The Secretary shall not conduct an investigation into a retaliation claim “if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”); §42121(b)(2)(B)(iv) (“Relief may not be ordered . . . if the employer demon- strates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”). Regarding remedies, §1514A(c)(2) states that a success- Cite as: 571 U. S. ____ (2014) 13 Opinion of the Court ful claimant shall be entitled to “reinstatement with the same seniority status that the employee would have had, but for the discrimination,” as well as “the amount of back pay, with interest.” As the Solicitor General, for the United States as amicus curiae, observed, “It is difficult, if not impossible, to see how a contractor or subcontractor could provide those remedies to an employee of a public company.” Brief for United States as Amicus Curiae 15. The most sensible reading of §1514A’s numerous references to an employer-employee relationship between the respondent and the claimant is that the provision’s protections run between contractors and their own employees. Remarkably, the dissent attributes to Congress a strange design. Under the dissent’s “narrower” construc- tion, post, at 2, 3, 4, 7, a public company’s contractor may not retaliate against a public company’s employees, aca- demic here because the public company has no employees. According to the dissent, this coverage is necessary to prevent “a gaping hole” that would allow public companies to “evade §1514A simply by hiring a contractor to engage in the very retaliatory acts that an officer or employee could not.” Post, at 10. This cannot be right—even if Congress had omitted any reference to contractors, sub- contractors, or agents in §1514A, the remaining language surely would prohibit a public company from directing someone else to engage in retaliatory conduct against the public company’s employees; hiring an ax-wielder to an- nounce an employee’s demotion does not change the fact that the public company is the entity commanding the demotion. Under the dissent’s reading of §1514A, the inclusion of contractors as covered employers does no more than make the contractor secondarily liable for complying with such marching orders—hardly a hole at all.10 —————— 10 The dissent suggests that we “fai[l] to recognize” that its construc- tion also makes contractors primarily liable for retaliating of their own 14 LAWSON v. FMR LLC Opinion of the Court There would be a huge hole, on the other hand, were the dissent’s view of §1514A’s reach to prevail: Contractors’ employees would be disarmed; they would be vulnerable to retaliation by their employers for blowing the whistle on a scheme to defraud the public company’s investors, even a scheme engineered entirely by the contractor. Not only would mutual fund advisers and managers escape §1514A’s control. Legions of accountants and lawyers would be denied §1514A’s protections. See infra, at 19–22. Instead of indulging in fanciful visions of whistleblowing babysitters and the like, post, at 1–2, 6, 12–13, 20, the dissent might pause to consider whether a Congress, prompted by the Enron debacle, would exclude from whis- tleblower protection countless professionals equipped to bring fraud on investors to a halt. B We turn next to two textual arguments made by FMR. First, FMR urges that “an employee” must be read to refer exclusively to public company employees to avoid the absurd result of extending protection to the personal employees of company officers and employees, e.g., their housekeepers or gardeners. See Brief for Respondents 19– 20; post, at 1–2, 6, 12–13, 20. Plaintiffs and the Solicitor General do not defend §1514A’s application to personal employees. They argue, instead, that the prohibition against an “officer” or “employee” retaliating against “an employee” may be read as imposing personal liability only on officers and employees who retaliate against other public company employees. Brief for Petitioners 12; Brief —————— volition against employees of public companies. Post, at 10, n. 6. As explained supra, at 11–12, n. 9, however, FMR and its supporters have identified not even one real-world instance of a public company employee asserting a §1514A claim alleging retaliatory conduct by a contractor. Again, no “gaping hole,” practically no hole at all. Cite as: 571 U. S. ____ (2014) 15 Opinion of the Court for United States as Amicus Curiae 16.11 FMR calls this reading “bizarre,” for it would ascribe to the words “an employee” in §1514A(a) “one meaning if the respondent is an ‘officer’ and a different meaning if the respondent is a ‘contractor.’ ” Brief for Respondents 20–21. We agree with FMR that plaintiffs and the Solicitor General offer an interpretation at odds with the text Con- gress enacted. If, as we hold, “an employee” includes employees of contractors, then grammatically, the term also includes employees of public company officers and employees. Nothing suggests Congress’ attention was drawn to the curiosity its drafting produced. The issue, however, is likely more theoretical than real. Few house- keepers or gardeners, we suspect, are likely to come upon and comprehend evidence of their employer’s complicity in fraud. In any event, FMR’s point is outweighed by the compelling arguments opposing FMR’s contention that “an employee” refers simply and only to public company em- ployees. See supra, at 9–14. See also infra, at 23–24 (limiting principles may serve as check against overbroad applications). Second, FMR argues that the statutory headings support the exclusion of contractor employees from §1514A’s protections. Although §1514A’s own heading is broad (“Civil action to protect against retaliation in fraud cases”), subsection (a) is captioned “Whistleblower Protec- tion for Employees of Publicly Traded Companies.” Simi- larly, the relevant public law section, §806 of Sarbanes- Oxley, is captioned “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” 116 —————— 11 The ARB endorsed this view in Spinner v. David Landau & Assoc., LLC, No. 10–111 etc., ALJ No. 2010–SOX–029, p. 8 (May 31, 2012). We have no occasion to determine whether the ARB would be entitled to deference in this regard, for, as explained in text, we find that the statutory text unambiguously affords protection to personal employees of public company officers and employees. §1514A(a). 16 LAWSON v. FMR LLC Opinion of the Court Stat. 802. The Court of Appeals described the latter two headings as “explicit guides” limiting protection under §1514A to employees of public companies. 670 F.3d, at 69. This Court has placed less weight on captions. In Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519 (1947), we explained that where, as here, “the [statutory] text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner.” Id., at 528. The under-inclusiveness of the two headings relied on by the Court of Appeals is apparent. The provision indisputably extends protection to employ- ees of companies that file reports with the SEC pursuant to §15(d) of the 1934 Act, even when such companies are not “publicly traded.” And the activity protected under §1514A is not limited to “provid[ing] evidence of fraud”; it also includes reporting violations of SEC rules or regula- tions. §1514A(a)(1). As in Trainmen, the headings here are “but a short-hand reference to the general subject matter” of the provision, “not meant to take the place of the detailed provisions of the text.” 331 U.S., at 528. Section 1514A is attended by numerous indicators that the statute’s prohibitions govern the relationship between a contractor and its own employees; we do not read the headings to “undo or limit” those signals. Id., at 529.12 III A Our textual analysis of §1514A fits the provision’s pur- pose. It is common ground that Congress installed whis- tleblower protection in the Sarbanes-Oxley Act as one —————— 12 AIR 21’s anti-retaliation provision, on which §1514A is based, in- cludes a similarly composed heading, “Discrimination against airline employees.” 49 U.S. C. §42121(a). Nevertheless, that provision has been read to cover employees of companies rendering contract services to airlines. See infra, at 27–29. Cite as: 571 U. S. ____ (2014) 17 Opinion of the Court means to ward off another Enron debacle. S. Rep., at 2– 11. And, as the ARB observed in Spinner, “Congress plainly recognized that outside professionals—ac- countants, law firms, contractors, agents, and the like— were complicit in, if not integral to, the shareholder fraud and subsequent cover-up [Enron] officers . . . perpetrated.” ALJ No. 2010–SOX–029, pp. 12–13. Indeed, the Senate Report demonstrates that Congress was as focused on the role of Enron’s outside contractors in facilitating the fraud as it was on the actions of Enron’s own officers. See, e.g., S. Rep., at 3 (fraud “occurred with extensive participation and structuring advice from Arthur Andersen . . . which was simultaneously serving as both consultant and inde- pendent auditor for Enron” (internal quotation marks and brackets omitted)); id., at 4 (“professionals from account- ing firms, law firms and business consulting firms, who were paid millions to advise Enron on these practices, assured others that Enron was a solid investment”); id., at 4–5 (team of Andersen employees were tasked with de- stroying “physical evidence and documents” relating to Enron’s fraud); id., at 5 (“Enron and Andersen were taking advantage of a system that allowed them to behave in an apparently fraudulent manner”); id., at 11 (Enron’s fraud partly attributable to “the well-paid professionals who helped create, carry out, and cover up the complicated corporate ruse when they should have been raising con- cerns”); id., at 20–21 (“Enron’s accountants and lawyers brought all their skills and knowledge to bear in assisting the fraud to succeed and then in covering it up.”). Also clear from the legislative record is Congress’ under- standing that outside professionals bear significant re- sponsibility for reporting fraud by the public companies with whom they contract, and that fear of retaliation was the primary deterrent to such reporting by the employ- ees of Enron’s contractors. Congressional investigators discovered ample evidence of contractors demoting or dis- 18 LAWSON v. FMR LLC Opinion of the Court charging employees they have engaged who jeopardized the contractor’s business relationship with Enron by ob- jecting to Enron’s financial practices. See, e.g., Oppel, Merrill Replaced Research Analyst Who Upset Enron, N. Y. Times, July 30, 2002, p. A1 (“In the summer of 1998, when it was eager to win more investment banking busi- ness from Enron, Merrill Lynch replaced a research ana- lyst who had angered Enron executives by rating the company’s stock ‘neutral’ with an analyst who soon up- graded the rating, according to Congressional investi- gators.”); Yost, Andersen Whistleblower Was Removed, Associated Press (Apr. 3, 2002) (Congressional investiga- tion reveals that Andersen removed one of its partners from its Enron team after Enron officials expressed un- happiness with the partner’s questioning of certain ac- counting practices); Oppel, The Man Who Paid the Price for Sizing up Enron, N. Y. Times, Mar. 27, 2002, p. C1 (“Enron executives pressed UBS PaineWebber to take action against a broker who advised some Enron employ- ees to sell their shares in August and was fired by the brokerage firm within hours of the complaint, according to e-mail messages released today by Congressional investigators.”). In the same vein, two of the four examples of whistle- blower retaliation recounted in the Senate Report involved outside professionals retaliated against by their own employers. S. Rep., at 5 (on Andersen and UBS Paine- Webber employees); see also id., at 4–5 (Andersen employ- ees who “attempted to report or ‘blow the whistle’ on [Enron’s] fraud . . . were discouraged at nearly every turn”). Emphasizing the importance of outside profes- sionals as “gatekeepers who detect and deter fraud,” the Senate Report concludes: “Congress must reconsider the incentive system that has been set up that encourages accountants and lawyers who come across fraud in their work to remain silent.” Id., at 20–21. From this legisla- Cite as: 571 U. S. ____ (2014) 19 Opinion of the Court tive history, one can safely conclude that Congress enacted §1514A aiming to encourage whistleblowing by contractor employees who suspect fraud involving the public compa- nies with whom they work.13 FMR argues that Congress addressed its concerns about the role of outside accountants and lawyers in facilitating Enron’s wrongdoing, not in §1514A, but exclusively in other provisions of Sarbanes-Oxley “directly regulat[ing] accountants and lawyers.” Brief for Respondents 40. In particular, FMR points to sections of the Act requiring accountants and lawyers for public companies to investi- gate and report misconduct, or risk being banned from further practice before the SEC. Id., at 41 (citing 15 U.S. C. §§7215(c)(4), 7245). These requirements, however, indicate why Congress would have wanted to extend §1514A’s coverage to the many lawyers and accountants who perform outside work for public companies. Although lawyers and accountants are subject to extensive regula- tions and sanctions throughout Sarbanes-Oxley, no provi- sion of the Act other than §1514A affords them protection from retaliation by their employers for complying with the Act’s reporting requirements.14 In short, we cannot coun- —————— 13 FMR urges that the Senate Report’s references to “employees of publicly traded companies” demonstrate that Congress wanted to limit whistleblower protection to such employees. Brief for Respondents 30– 31. This argument fails for the same reason that FMR’s reliance on the statutory section headings fails: “employees of publicly traded compa- nies” must be understood as shorthand not designed to capture every employee covered by §1514A. See supra, at 15–16. Senator Sarbanes’ statement, cited in the concurring opinion, post, at 2, is similarly imprecise. The Act indisputably covers private accounting firms and law firms that provide services to public companies. See, e.g., 15 U.S. C. §§7215, 7245. Indeed, Senator Sarbanes acknowledged this point in his very next sentence. See 148 Cong. Rec. 14440 (2002) (remarks of Sen. Sarbanes) (“This legislation prohibits accounting firms from providing certain specified consulting services if they are also the auditors of the company.”). 14 The dissent suggests that the Public Company Accounting Oversight 20 LAWSON v. FMR LLC Opinion of the Court tenance the position advanced by FMR and the dissent, see post, at 14–16, that Congress intended to leave these professionals vulnerable to discharge or other retaliatory action for complying with the law. B Our reading of §1514A avoids insulating the entire mutual fund industry from §1514A, as FMR’s and the dissent’s “narrower construction” would do. As companies “required to file reports under section 15(d) of the Securi- ties Exchange Act of 1934,” 18 U.S. C. §1514A(a), mutual funds unquestionably are governed by §1514A. Because mutual funds figure prominently among such report-filing companies, Congress presumably had them in mind when it added to “publicly traded companies” the discrete cate- gory of companies “required to file reports under section 15(d).” Virtually all mutual funds are structured so that they have no employees of their own; they are managed, in- stead, by independent investment advisers. See S. Rep. No. 91–184, p. 5 (1969) (accompanying the 1970 amend- ments to the Investment Company Act of 1940). The United States investment advising industry manages $14.7 trillion on behalf of nearly 94 million investors. See 2013 Investment Company Fact Book 7 (53d ed.), availa- ble at http://www.icifactbook.org/pdf/2013_factbook.pdf (as visited Feb. 20, 2014, and available in Clerk of Court’s case file). These investment advisers, under our reading —————— Board’s and the SEC’s authority to sanction unprofessional conduct by accountants and lawyers, respectively, “could well provide” a disincen- tive to retaliate against other accountants and lawyers. See post, at 15. The possibility of such sanctions, however, is cold comfort to the ac- countant or lawyer who loses her job in retaliation for her efforts to comply with the Act’s requirements if, as the dissent would have it, §1514A does not enable her to seek reinstatement or backpay. Cite as: 571 U. S. ____ (2014) 21 Opinion of the Court of §1514A, are contractors prohibited from retaliating against their own employees for engaging in whistleblow- ing activity. This construction protects the “insiders [who] are the only firsthand witnesses to the [shareholder] fraud.” S. Rep., at 10. Under FMR’s and the dissent’s reading, in contrast, §1514A has no application to mutual funds, for all of the potential whistleblowers are employed by the privately held investment management companies, not by the mutual funds themselves. See Brief for Re- spondents 45 (describing this glaring gap as “merely a consequence of the corporate structure” of mutual funds). The Court of Appeals found exclusion of the mutual fund industry from §1514A tenable because mutual funds and their investment advisers are separately regulated under the Investment Company Act of 1940, 15 U.S. C. §80a–1 et seq., the Investment Advisers Act of 1940, 15 U.S. C. §80b–1 et seq., and elsewhere in Sarbanes-Oxley. 670 F.3d, at 72–73. See also post, at 16–17, n. 10. But this separate regulation does not remove the problem, for nowhere else in these legislative measures are investment management employees afforded whistleblower protection. Section 1514A alone shields them from retaliation for bringing fraud to light. Indeed, affording whistleblower protection to mutual fund investment advisers is crucial to Sarbanes-Oxley’s endeavor to “protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws.” 116 Stat. 745. As plaintiffs observe, these disclosures are written, not by anyone at the mutual funds themselves, but by employees of the investment advisers. “Under FMR’s [and the dissent’s] proposed in- terpretation of section 1514A, FMR could dismiss any FMR employee who disclosed to the directors of or lawyers for the Fidelity funds that there were material falsehoods in the documents being filed by FMR with the SEC in the name of those funds.” Reply Brief 13. It is implausible 22 LAWSON v. FMR LLC Opinion of the Court that Congress intended to leave such an employee remedi- less. See id., at 14. C Unable credibly to contest the glaring under- inclusiveness of the “narrower reading” FMR urges, the dissent emphasizes instead FMR’s claim that the reading of §1514A we adopt is all too inclusive. See post, at 1–2, 6, 12–13, 20–21. FMR’s amici also press this point, observ- ing that the activity protected under §1514A(a)(1) encom- passes reporting not only securities fraud (18 U.S. C. §1348), but also mail, wire, and bank fraud (§§1341, 1343, 1344). Including contractor employees in the protected class, they therefore assert, could “cas[t] a wide net over employees who have no exposure to investor-related activ- ities and thus could not possibly assist in detecting inves- tor fraud.” Brief for Chamber of Commerce of the United States of America as Amicus Curiae 3. See also Brief for Securities Industry and Financial Markets Association as Amicus Curiae 7–16. There is scant evidence, however, that these floodgate- opening concerns are more than hypothetical. DOL’s regulations have interpreted §1514A as protecting con- tractor employees for almost a decade.15 See 69 Fed. Reg. 52105–52106 (2004). Yet no “narrower construction” advocate has identified even a single case in which the employee of a private contractor has asserted a §1514A claim based on allegations unrelated to shareholder fraud. FMR’s parade of horribles rests solely on Lockheed Martin Corp. v. ARB, 717 F.3d 1121 (CA10 2013), a case involv- ing mail and wire fraud claims asserted by an employee of —————— 15 Although the dissent suggests that the ARB had not provided “de- finitive clarification” on the issue prior to Spinner, post at 14, the ARB “repeatedly interpreted [§1514A] as affording whistleblower protection to employees of [private] contractors” before Spinner. See Spinner, No. 10–111 etc., ALJ No. 2010–SOX–029, p. 5 (citing prior decisions). Cite as: 571 U. S. ____ (2014) 23 Opinion of the Court a public company—i.e., claims in no way affected by to- day’s decision. The dissent’s fears that household employ- ees and others, on learning of today’s decision, will be prompted to pursue retaliation claims, post, at 13, and that OSHA will find them meritorious under §1514A, seem to us unwarranted. If we are wrong, however, Con- gress can easily fix the problem by amending §1514A explicitly to remove personal employees of public company officers and employees from the provision’s reach. But it would thwart Congress’ dominant aim if contractors were taken off the hook for retaliating against their whistle- blowing employees, just to avoid the unlikely prospect that babysitters, nannies, gardeners, and the like will flood OSHA with §1514A complaints. Plaintiffs and the Solicitor General observe that over- breadth problems may be resolved by various limit- ing principles. They point specifically to the word “contractor.” Plaintiffs note that in “common parlance,” “contractor” does not extend to every fleeting business relationship. Instead, the word “refers to a party whose performance of a contract will take place over a significant period of time.” Reply Brief 16. See also Fleszar v. United States Dept. of Labor, 598 F.3d 912, 915 (CA7 2010) (“Nothing in §1514A implies that, if [a privately held business] buys a box of rubber bands from Wal-Mart, a company with traded securities, the [business] becomes covered by §1514A.”). The Solicitor General further maintains that §1514A protects contractor employees only to the extent that their whistleblowing relates to “the contractor . . . fulfilling its role as a contractor for the public company, not the con- tractor in some other capacity.” Tr. of Oral Arg. 18–19 (Government counsel). See also id., at 23 (“[I]t has to be a person who is in a position to detect and report the types of fraud and securities violations that are included in the statute. . . . [W]e think that ‘the contractor of such com- 24 LAWSON v. FMR LLC Opinion of the Court pany’ refers to the contractor in that role, working for the public company.’ ”). Finally, the Solicitor General suggests that we need not determine the bounds of §1514A today, because plaintiffs seek only a “mainstream application” of the provision’s protections. Id., at 20 (Government counsel). We agree. Plaintiffs’ allegations fall squarely within Congress’ aim in enacting §1514A. Lawson alleges that she was construc- tively discharged for reporting accounting practices that overstated expenses associated with managing certain Fidelity mutual funds. This alleged fraud directly impli- cates the funds’ shareholders: “By inflating its expenses, and thus understating its profits, [FMR] could potentially increase the fees it would earn from the mutual funds, fees ultimately paid by the shareholders of those funds.” Brief for Petitioners 3. Zang alleges that he was fired for ex- pressing concerns about inaccuracies in a draft registra- tion statement FMR prepared for the SEC on behalf of certain Fidelity funds. The potential impact on share- holders of false or misleading registration statements needs no elaboration. If Lawson and Zang’s allegations prove true, these plaintiffs would indeed be “firsthand witnesses to [the shareholder] fraud” Congress anticipated §1514A would protect. S. Rep., at 10. D FMR urges that legislative events subsequent to Sarbanes-Oxley’s enactment show that Congress did not intend to extend §1514A’s protections to contractor em- ployees.16 In particular, FMR calls our attention to the —————— 16 We can easily dismiss FMR’s invocation of a failed bill from 2004, the Mutual Fund Reform Act, S. 2059, 108th Cong., 2d Sess., §116(b), which would have amended §1514A explicitly to cover employees of investment advisers and affiliates. Brief for Respondents 34–35. “[F]ailed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute.” United States v. Cite as: 571 U. S. ____ (2014) 25 Opinion of the Court 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, 124 Stat. 1376 (Dodd-Frank). Dodd-Frank amended §1514A(a) to read: “No company with a class of securities registered un- der section 12 of the Securities Exchange Act of 1934 (15 U.S. C. 78l), or that is required to file reports un- der [section 12] of the [1934 Act] (15 U.S. C. 78o(d)) including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company, or nationally recognized statistical rating organization (as defined in section 3(a) of the [1934 Act] (15 U.S. C. 78c), or any officer, employee, contractor, subcontractor, or agent of such company or nationally recognized statistical rating or- ganization, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any [protected activity].” 18 U.S. C. §1514A(a) (2012 ed.) (emphasis added; foot- note omitted.) The amended provision extends §1514A’s protection to employees of public company subsidiaries and nationally recognized statistical rating organizations (NRSROs). FMR asserts that Congress’ decision to add NRSROs to §1514A shows that the provision did not previously cover contractor employees: “If [§1514A] already covered every private company contracting with a public company, there would have been no need for Congress to extend [§1514A] to certain private companies.” Brief for Respondents 35– 36. This argument fails at the starting gate, for FMR —————— Craft, 535 U.S. 274, 287 (2002) (internal quotation marks omitted). Where, as here, the proposed amendment amounted to six lines in a 51- page bill that died without any committee action, its failure is scarcely relevant to Congress’ intentions regarding a different bill enacted two years earlier. 26 LAWSON v. FMR LLC Opinion of the Court concedes that not all NRSROs are privately held, and not all NRSROs contract with public companies. Id., at 36. We see nothing useful to our inquiry in Congress’ deci- sion to amend §1514A to include public company sub- sidiaries and NRSROs. More telling, at the time of the Dodd-Frank amendments, DOL regulations provided that §1514A protects contractor employees. See 29 CFR §1980.101 (2009). Congress included in its alterations no language gainsaying that protection. As Judge Thomp- son’s dissent from the First Circuit’s judgment observes, “Congress had a miles-wide opening to nip [DOL’s] regula- tion in the bud if it had wished to do so. It did not.” 670 F.3d, at 88. Dodd-Frank also establishes a corporate whistleblowing reward program, accompanied by a new provision pro- hibiting any employer from retaliating against “a whistle- blower” for providing information to the SEC, participating in an SEC proceeding, or making disclosures required or protected under Sarbanes-Oxley and certain other securities laws. 15 U.S. C. §78u–6(a)(6), (b)(1), (h). FMR urges that, as this provision covers employees of all com- panies, public or private, “[t]here is no justification” for reading §1514A to cover employees of contractors: “Any ‘gap’ that might, arguendo, have existed for employees of private entities between 2002 and 2010 has now been closed.” Brief for Respondents 44.17 FMR, we note, somewhat overstates Dodd-Frank’s cov- erage. Section 1514A’s protections include employees who provide information to any “person with supervisory authority over the employee.” §1514A(a)(1)(C). Dodd- Frank’s whistleblower provision, however, focuses primarily on reporting to federal authorities. See Brief for United States as Amicus Curiae 30 (“[I]f employees of contrac- —————— 17 FMR acknowledges that plaintiffs’ claims could have proceeded un- der Dodd-Frank, but for the date of enactment. Brief for Respondents 43. Cite as: 571 U. S. ____ (2014) 27 Opinion of the Court tors of public companies are not protected under Section 1514A, they are not protected for making internal com- plaints under . . . the Dodd-Frank Act.”). In any event, our task is not to determine whether including contractor employees in the class protected by §1514A remains necessary in 2014. It is, instead, to de- termine whether Congress afforded protection to contractor employees when it enacted §1514A in 2002. If anything relevant to our inquiry can be gleaned from Dodd-Frank, it is that Congress apparently does not share FMR’s concerns about extending protection comprehensively to corporate whistleblowers.18 IV We end by returning to AIR 21’s whistleblower protec- tion provision, 49 U.S. C. §42121, enacted two years before Sarbanes-Oxley. Congress designed §1514A to “track . . . as closely as possible” the protections afforded by §42121. S. Rep., at 30. To this end, §1514A incorpo- rates by cross-reference §42121’s administrative enforce- ment regime, see 18 U.S. C. §1514A(b)(2), and contains parallel statutory text. Compare §1514A(a) (“No [public] company . . . or any officer, employee, contractor, subcon- tractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner dis- criminate against an employee in the terms and conditions of employment” for engaging in protected activity) with 49 U.S. C. §42121(a) (“No air carrier or contractor or subcon- tractor of an air carrier may discharge an employee or otherwise discriminate against an employee with respect —————— 18 Section 1107 of the Act is of similar breadth, declaring it a criminal offense to “tak[e] any action harmful to any person, including interfer- ence with the lawful employment or livelihood of any person, for provid- ing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense.” 18 U.S. C. §1513(e). 28 LAWSON v. FMR LLC Opinion of the Court to compensation, terms, conditions, or privileges of em- ployment” for engaging in protected activity).19 Section 42121 has been read to protect employees of contractors covered by the provision. The ARB has con- sistently construed AIR 21 to cover contractor employees. E.g., Evans v. Miami Valley Hospital, ARB No. 07–118 etc., ALJ No. 2006–AIR–022, pp. 9–11 (June 30, 2009); Peck v. Safe Air Int’l, Inc., ARB No. 02–028, ALJ No. 2001–AIR–3, p. 13 (Jan. 30, 2004).20 And DOL’s regula- tions adopting this interpretation of §42121 date back to April 1, 2002, before §1514A was enacted. 67 Fed. Reg. 15454, 15457–15458 (2002). The Senate Report for AIR 21 supports this reading, explaining that the Act “provide[s] employees of airlines, and employees of airline contractors and subcontractors, with statutory whistleblower protec- tion.” S. Rep. No. 105–278, p. 22 (1998).21 The Court of Appeals recognized that Congress modeled §1514A on §42121, and that §42121 has been understood to protect contractor employees. 670 F.3d, at 73–74. It nonetheless declined to interpret §1514A the same way, because, in its view, “important differences” separate the two provisions. First, unlike §1514A, §42121 contains a —————— 19 For other provisions borrowing from AIR 21, see 49 U.S. C. §20109, governing rail carriers, which incorporates AIR 21’s enforcement procedures, and §31105, governing motor carriers, which incorporates AIR 21’s proof burdens. 20 The ARB has also interpreted similarly worded whistleblower pro- tection provisions in the Pipeline Safety Improvement Act of 2002, 49 U.S. C. §60129(a), and the Energy Reorganization Act of 1974, 42 U.S. C. §5851(a), as protecting employees of contractors. See Rocha v. AHR Utility Corp., ARB No. 07–112, ALJ No. 2006–PSI–001 etc., p. 2 (June 25, 2009); Robinson v. Triconex Corp., ARB No. 10–013, ALJ No. 2006–ERA–031, pp. 8–9 (Mar. 28, 2012). 21 FMR protests that there is no court of appeals precedent on point, Brief for Respondents 24, n. 6, but the courts of appeals are not, of course, the only lodestar for determining whether a proposition of law is plainly established. Cite as: 571 U. S. ____ (2014) 29 Opinion of the Court definition of “contractor”: “a company that performs safety- sensitive functions by contract for an air carrier.” 49 U.S. C. §42121(e). Second, unlike §1514A, §42121 does not include “officers” or “employees” among governed actors. 670 F.3d, at 74. These distinctions, the Court of Appeals reasoned, render §1514A less amenable to an inclusive construction of the protected class. Ibid.22 We do not find these textual differences overwhelming. True, Congress strayed from §42121’s pattern in failing to define “contractor” for purposes of §1514A, and in adding “officers” and “employees” to §1514A’s list of governed actors. And we agree that §1514A covers a far wider range than §42121 does. But in our view, neither differ- ence warrants the determination that §1514A omits em- ployees of contractors while §42121 includes them. The provisions’ parallel text and purposes counsel in favor of interpreting the two provisions consistently. And we have already canvassed the many reasons why §1514A is most sensibly read to protect employees of contractors. See supra, at 9–22. * * * For the reasons stated, we hold that 18 U.S. C. §1514A whistleblower protection extends to employees of contrac- tors and subcontractors. The judgment of the U. S. Court of Appeals for the First Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— 22 The dissent suggests the provisions’ headings are also distinguish- able because §42121’s title—“Protection of employees providing air safety information”—“comfortably encompasses the employees of contractors.” Post, at 8. The dissent omits, however, the subsection heading directly following the title: “Discrimination against airline employees.” §42121(a). Cite as: 571 U. S. ____ (2014) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES _________________ No. 12–3 _________________ JACKIE HOSANG LAWSON AND JONATHAN M. ZANG, PETITIONERS v. FMR LLC ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT [March 4, 2014] JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in principal part and concurring in the judgment. I agree with the Court’s conclusion that 18 U.S. C. §1514A protects employees of private contractors from retaliation when they report covered forms of fraud. As the Court carefully demonstrates, that conclusion logically flows from §1514A’s text and broader context. I therefore join the Court’s opinion in principal part. I do not endorse, however, the Court’s occasional excur- sions beyond the interpretative terra firma of text and context, into the swamps of legislative history. Reliance on legislative history rests upon several frail premises. First, and most important: That the statute means what Congress intended. It does not. Because we are a govern- ment of laws, not of men, and are governed by what Congress enacted rather than by what it intended, the sole object of the interpretative enterprise is to determine what a law says. Second: That there was a congressional “in- tent” apart from that reflected in the enacted text. On most issues of detail that come before this Court, I am confident that the majority of Senators and Representa- tives had no views whatever on how the issues should be resolved—indeed, were unaware of the issues entirely. Third: That the views expressed in a committee report or a 2 LAWSON v. FMR LLC Opinion of SCALIA, J. floor statement represent those of all the Members of that House. Many of them almost certainly did not read the report or hear the statement, much less agree with it—not to mention the Members of the other House and the Presi- dent who signed the bill. Since congressional “intent” apart from enacted text is fiction to begin with, courts understandably allow them- selves a good deal of poetic license in defining it. Today’s opinion is no exception. It cites parts of the legislative record that are consistent with its holding that §1514A covers employees of private contractors and subcontrac- tors, but it ignores other parts that unequivocally cut in the opposite direction. For example, the following remark by the Sarbanes-Oxley Act’s lead sponsor in the Senate: “[L]et me make very clear that [the Act] applies exclusively to public companies—that is, to companies registered with the Securities and Exchange Commission. It is not applicable to pr[i]v[at]e companies,[*] who make up the vast majority of companies across the country.” 148 Cong. Rec. 14440 (2002) (remarks of Sen. Sarbanes). Two other minor points in the Court’s opinion I do not agree with. First, I do not rely on the fact that a separate anti-retaliation provision, 49 U.S. C. §42121(a), “has been read” by an administrative tribunal to cover contractor employees. Ante, at 29. Section 1514A(b)(2), entitled “Procedure,” contains cross-references to the procedural rules set forth in §42121(b), but the substantive provisions of §1514A(a) are worded quite differently from the sub- stantive prohibition of §42121, which is contained in sub- section (a)—thus making interpretation of the latter an unreliable guide to §1514A’s meaning. Second, I do not agree with the Court’s acceptance of the possible validity —————— * The Congressional Record reads “provide companies,” but context as well as grammar makes clear that this is a scrivener’s error for “private companies.” Cite as: 571 U. S. ____ (2014) 3 Opinion of SCALIA, J. of the Government’s suggestion that “§1514A protects contractor employees only to the extent that their whistle- blowing relates to ‘the contractor . . . fulfilling its role as a contractor for the public company.’ ” Ante, at 23 (quoting Tr. of Oral Arg. 18–19). Although that “limiting prin- cipl[e],” ibid., may be appealing from a policy standpoint, it has no basis whatsoever in the statute’s text. So long as an employee works for one of the actors enumerated in §1514A(a) and reports a covered form of fraud in a manner identified in §1514(a)(1)–(2), the employee is protected from retaliation. For all the other reasons given by the Court, the stat- ute’s text is clear, and I would reverse the judgment of the Court of Appeals and remand the case. Cite as: 571 U. S. ____ (2014) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 12–3 _________________ JACKIE HOSANG LAWSON AND JONATHAN M. ZANG, PETITIONERS v. FMR LLC ET AL.

To safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation, Congress enacted the Sarbanes-Oxley Act of 2002, See S. Rep. No. 107–146, pp. 2–11 A provision of the Act, 18 U.S. C. protects whistleblowers. Section 1514A, at the time here relevant, instructed: “No [public] company or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an em- ployee in the terms and conditions of employment be- cause of [whistleblowing or other protected activity].” (2006 ed.). This case concerns the definition of the protected class: Does shield only those employed by the public company itself, or does it shield as well employees of pri- vately held contractors and subcontractors—for example, investment advisers, law firms, accounting enterprises— who perform work for the public company? 2 LAWSON v. FMR LLC Opinion of the Court We hold, based on the text of the mischief to which Congress was responding, and earlier legislation Congress drew upon, that the provision shelters employees of private contractors and subcontractors, just as it shel- ters employees of the public company served by the con- tractors and subcontr We first summarize our principal reasons, then describe this controversy and explain our decision more comprehensively. Plaintiffs below, petitioners here, are former employees of private companies that contract to advise or manage mutual funds. The mutual funds themselves are public companies that have no Hence, if the whistle is to be blown on fraud detrimental to mutual fund inves- tors, the whistleblowing employee must be on another company’s payroll, most likely, the payroll of the mutual fund’s investment adviser or manager. Taking the allegations of the complaint as true, both plaintiffs blew the whistle on putative fraud relating to the mutual funds and, as a consequence, suffered adverse action by their employers. Plaintiffs read to con- vey that “[n]o contractor may discriminate against [its own] employee [for whistleblowing].” We find that reading consistent with the text of the statute and with common sense. Contractors are in control of their own employees, but are not ordinarily positioned to control someone else’s workers. Moreover, we resist attributing to Congress a purpose to stop a contractor from retaliating against whistleblowers employed by the public company the contractor serves, while leaving the contractor free to retaliate against its own employees when they reveal corporate fraud. In the Enron scandal that prompted the Sarbanes-Oxley Act, contractors and subcontractors, including the ac- counting firm Arthur Andersen, participated in Enron’s fraud and its coverup. When employees of those contrac- tors attempted to bring misconduct to light, they encoun- Cite as: 571 U. S. (2014) 3 Opinion of the Court tered retaliation by their employers. The Sarbanes-Oxley Act contains numerous provisions aimed at controlling the conduct of accountants, auditors, and lawyers who work with public companies. See, e.g., –765, 773– 774, 784, 203–206, 307. Given Congress’ concern about contractor conduct of the kind that contrib- uted to Enron’s collapse, we regard with suspicion con- struction of to protect whistleblowers only when they are employed by a public company, and not when they work for the public company’s contractor. Congress borrowed ’s prohibition against retalia- tion from the wording of the 2000 Wendell H. Ford Avia- tion Investment and Reform Act for the 21st Century (AIR 21), 49 U.S. C. That Act provides: “No air carrier or contractor or subcontractor of an air carrier may dis- charge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment” when the employee provides information regarding violations “relating to air carrier safety” to his or her employer or federal authorities. AIR 21 has been read to cover, in addition to employees of air carriers, employees of contractors and subcontractors of the carriers. Given the parallel statu- tory texts and whistleblower protective aims, we read the words “an employee” in AIR 21 and in to have similar import. I A The Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley or Act) aims to “prevent and punish corporate and criminal fraud, protect the victims of such fraud, preserve evidence of such fraud, and hold wrongdoers accountable for their actions.” S. Rep. No. 107–146, p. 2 (hereinafter 4 LAWSON v. FMR LLC Opinion of the Court S. Rep.).1 Of particular concern to Congress was abundant evidence that Enron had succeeded in perpetuating its massive shareholder fraud in large part due to a “corpo- rate code of silence”; that code, Congress found, “discour- age[d] employees from reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally.” –5 (internal quotation marks omitted). When employees of Enron and its ac- counting firm, Arthur Andersen, attempted to report corporate misconduct, Congress learned, they faced retali- ation, including discharge. As outside counsel advised company officials at the time, Enron’s efforts to “quiet” whistleblowers generally were not proscribed under then- existing law. Congress identified the lack of whistleblower protection as “a significant deficiency” in the law, for in complex securities fraud investigations, employees “are [often] the only firsthand witnesses to the fraud.” Section 806 of Sarbanes-Oxley addresses this concern. Titled “Protection for Employees of Publicly Traded Com- panies Who Provide Evidence of Fraud,” added a new provision to Title 18 of the United States Code, 18 U.S. C. which reads in relevant part: “Civil action to protect against retaliation in fraud cases “(a) WHISTLEBLOWER PROTECTION FOR EMPLOYEES —————— 1 Title VIII of the Act, which contains the whistleblower protection provision at issue in this case, was authored by Senators Leahy and Grassley and originally constituted a discrete bill, S. We thus look to the Senate Report for S. S. Rep. No. 107–146, as the Senate Report relevant here. See 148 Cong. Rec. S7418 (statement of Sen. Leahy) (“unanimous consent” to “includ[e] in the CONGRESSIONAL RECORD as part of the official legislative history” of Sarbanes-Oxley that Title VIII’s “terms track almost exactly the provisions of S. introduced by Senator Leahy and reported unanimously from the Committee on the Judiciary”). Cite as: 571 U. S. (2014) 5 Opinion of the Court OF PUBLICLY TRADED COMPANIES.—No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S. C. or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S. C. or any officer, employee, contractor, subcon- tractor, or agent of such company, may discharge, de- mote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee— “(1) to provide information, cause information to be provided, or otherwise assist in an investigation re- garding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities or commodities fraud], any rule or regula- tion of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by [a fed- eral agency, Congress, or supervisor]” 116 Stat. 802.2 Congress has assigned whistleblower protection largely to the Department of Labor (DOL), which administers some 20 United States Code incorporated whistleblower protection provisions. See The Secretary has delegated investigatory and initial adju- dicatory responsibility over claims under a number of these —————— 2 As discussed infra, at 24–26, Congress amended in to extend whistleblower coverage to employees of public companies’ subsidiaries and nationally recognized statistical ratings organizations. Plaintiffs do not fall in either category and, in any event, their claims are governed by the prior version of Unless otherwise noted, all citations to are to the original text in the 2006 edition of the United States Code. 6 LAWSON v. FMR LLC Opinion of the Court provisions, including to DOL’s Occupational Safety and Health Administration (OSHA). OSHA’s order may be appealed to an administrative law judge, and then to DOL’s Administrative Review Board (ARB). to 1980.110 (2011). In common with other whistleblower protection provi- sions enforced by DOL, see the ARB’s determination on a claim constitutes the agency’s final decision and is reviewable in federal court under the standards stated in the Administrative Proce- dure Act, 5 U.S. C. If, however, the ARB does not issue a final decision within 180 days of the filing of the complaint, and the delay is not due to bad faith on the claimant’s part, the claimant may proceed to federal dis- trict court for de novo review. 18 U.S. C. (b). An employee prevailing in a proceeding under is entitled to “all relief necessary to make the employee whole,” including “reinstatement with the same seniority status that the employee would have had, but for the discrimination,” backpay with interest, and compensation for litigation costs. (c). Congress modeled on the anti-retaliation provi- sion of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S. C. a measure enacted two years earlier. See S. Rep., at 30 (corporate whistleblower protections “track [AIR 21’s] protections as closely as possible”). Section 1514A incorporates by cross-reference AIR 21’s administrative enforcement procedures. 18 U.S. C. (b)(2). B Petitioners Jackie Hosang Lawson and Jonathan M. Zang (plaintiffs) separately initiated proceedings under against their former employers, privately held companies that provide advisory and management ser- vices to the Fidelity family of mutual funds. The Fidelity Cite as: 571 U. S. (2014) 7 Opinion of the Court funds are not parties to either case; as is common in the mutual fund industry, the Fidelity funds themselves have no Instead, they contract with investment advisers like respondents to handle their day-to-day oper- ations, which include making investment decisions, pre- paring reports for shareholders, and filing reports with the Securities and Exchange Commission (SEC). Lawson was employed by Fidelity Brokerage Services, LLC, a subsidi- ary of FMR Corp., which was succeeded by FMR LLC. Zang was employed by a different FMR LLC subsidiary, Fidelity Management & Research Co., and later by one of that company’s subsidiaries, FMR Co., Inc. For conven- ience, we refer to respondents collectively as FMR. Lawson worked for FMR for 14 years, eventually serv- ing as a Senior Director of Finance. She alleges that, after she raised concerns about certain cost accounting method- ologies, believing that they overstated expenses associated with operating the mutual funds, she suffered a series of adverse actions, ultimately amounting to constructive discharge. Zang was employed by FMR for eight years, most recently as a portfolio manager for several of the funds. He alleges that he was fired in retaliation for raising concerns about inaccuracies in a draft SEC reg- istration statement concerning certain Fidelity funds. Lawson and Zang separately filed administrative com- plaints alleging retaliation proscribed by After expiration of the 180-day period specified in (b)(1), Lawson and Zang each filed suit in the U. S. District Court for the District of Massachusetts. FMR moved to dismiss the suits, arguing, as relevant, that neither plaintiff has a claim for relief under FMR is privately held, and maintained that pro- tects only employees of public companies—i.e., companies that either have “a class of securities registered under section 12 of the Securities Exchange Act of 1934,” or that are “required to file reports under section 15(d)” of that 8 LAWSON v. FMR LLC Opinion of the Court Act.3 In a joint order, the District Court re- jected FMR’s interpretation of and denied the dismissal motions in both suits. On interlocutory appeal, a divided panel of the First Circuit reversed. The Court of Ap- peals majority acknowledged that FMR is a “contractor”4 within the meaning of and thus among the actors prohibited from retaliating against “an employee” who engages in protected activity. The majority agreed with FMR, however, that “an employee” refers only to employees of public companies and does not cover a con- tractor’s own 8–80. Judge Thompson dissented. In her view, the majority had “impose[d] an unwarranted restriction on the intentionally broad lan- guage of the Sarbanes-Oxley Act” and “bar[red] a signifi- cant class of potential securities-fraud whistleblowers from any legal protection.” Several months later, the ARB issued a decision in an unrelated case, Spinner v. David Landau & Assoc., LLC, No. 10–111 etc., ALJ No. –SOX–0295 disagreeing with the Court of Appeals’ interpretation of In a comprehensive opinion, the ARB its position that affords whistleblower protection to employees of privately held contractors that render services to public companies. 6 —————— 3 Here,as just noted, the public company has no See su- pra, at 2. 4 As treats contractors and subcontractors identically, we generally refer simply to “contractors” without distinguishing between the two. 5 The whistleblower in Spinner was an employee of an accounting firm that provided auditing, consulting, and Sarbanes-Oxley compli- ance services to a public company. 6 The dissent maintains that the ARB’s interpretation of is not entitled to deference because, “if any agency has the authority to resolve ambiguities in with the force of law, it is the SEC, not Cite as: 571 U. S. (2014) 9 Opinion of the Court We granted certiorari, 569 U. S. to resolve the division of opinion on whether extends whis- tleblower protection to employees of privately held con- tractors who perform work for public companies. II A In determining the meaning of a statutory provision, “we look first to its language, giving the words used their ordinary meaning.” Moskal v. United States, 498 U.S. 103, 108 (1990) (citation and internal quotation marks omitted). As Judge Thompson observed in her dissent from the Court of Appeals’ judgment, “boiling [] down to its relevant syntactic elements, it provides that ‘no contractor may discharge an employee.’ ” (quoting ). The ordinary mean- ing of “an employee” in this proscription is the contractor’s own employee. FMR’s interpretation of the text requires insertion of “of a public company” after “an employee.” But where Con- gress meant “an employee of a public company,” it said so: With respect to the actors governed by the provi- —————— the Department of Labor.” Post, at 18. Because we agree with the ARB’s conclusion that affords protection to a contractor’s employees, we need not decide what weight that conclusion should carry. We note, however, that the SEC apparently does not share the dissent’s view that it, rather than DOL, has interpretive authority over To the contrary, the SEC is a signatory to the Government’s brief in this case, which takes the position that Congress has charged the Secretary of Labor with interpreting Brief for United States as Amicus Curiae 9–11, 31–34. That view is hardly surprising given the lead role played by DOL in administering whistleblower statutes. See The dissent observes that the SEC “has not issued a regulation applying whistleblower protection to employees of public company contractors,” post, at 18, but omits to inform that the SEC has not promulgated any regulations interpreting consistent with its view that Congress delegated that respon- sibility to DOL. 10 LAWSON v. FMR LLC Opinion of the Court sion’s interdictions run to the officers, employees, contrac- tors, subcontractors, and agents “of such company,” i.e., a public company. Another anti-retaliation pro- vision in Sarbanes-Oxley provides: “[A] broker or dealer and persons employed by a broker or dealer who are involved with investment banking activities may not, directly or indirectly, retaliate against or threaten to retaliate against any securities analyst employed by that broker or dealer or its affiliates” 15 U.S. C. 6(a)(1)(C) (emphasis added). In contrast, nothing in ’s language confines the class of employees protected to those of a designated employer. Absent any textual qualification, we presume the operative language means what it appears to mean: A contractor may not retaliate against its own employee for engaging in protected whistle- blowing activity.7 Section 1514A’s application to contractor employees is confirmed when we enlarge our view from the term “an employee” to the provision as a whole. The prohib- ited retaliatory measures enumerated in — discharge, demotion, suspension, threats, harassment, or dis- crimination in the terms and conditions of employment— are commonly actions an employer takes against its own Contractors are not ordinarily posi- tioned to take adverse actions against employees of the public company with whom they contract. FMR’s inter- pretation of therefore, would shrink to insignifi- cance the provision’s ban on retaliation by contr The dissent embraces FMR’s “narrower” construction. See post, at 2, 3, 4, 7. FMR urges that Congress included contractors in ’s list of governed actors simply to prevent public —————— 7 We need not decide in this case whether also prohibits a contractor from retaliating against an employee of one of the other actors governed by the provision. Cite as: 571 U. S. (2014) 11 Opinion of the Court companies from avoiding liability by employing contrac- tors to effectuate retaliatory discharges. FMR describes such a contractor as an “ax-wielding specialist,” illustrated by George Clooney’s character in the movie Up in the Air.8 Brief for Respondents 24–25 (internal quotation marks omitted). As portrayed by Clooney, an ax-wielding special- ist is a contractor engaged only as the bearer of the bad news that the employee has been fired; he plays no role in deciding who to terminate. If the company employing the ax-wielder chose the recipients of the bad tidings for retal- iatory reasons, the claim would properly be di- rected at the company. Hiring the ax-wielder would not insulate the company from liability. Moreover, we see no indication that retaliatory ax-wielding specialists are the real-world problem that prompted Congress to add con- tractors to9 Moving further through to the protected activity described in subsection (a)(1), we find further reason to —————— 8 This hypothetical originates in a Seventh Circuit opinion, Fleszar v. United States Dept. of Labor, and is men- tioned in a footnote in the First Circuit’s opinion in this case, 670 F.3d 61, 69, n. 11 9 When asked during oral argument for an example of actual circum- stances in which a contractor would have employment decisionmak- ing authority over public company employees, FMR’s counsel cited Kalkunte v. DVI Financial Servs., Inc., No. 05–139 etc., ALJ No. 2004– SOX–056 (Feb. 27, 2009). Tr. of Oral Arg. 33. That case involved a bankrupt public company that hired a private company to handle its dissolution. The ARB found the private company liable under because it acted as a “contractor, subcontractor, or agent” of the public company in discharging the claimant. ALJ No. 2004–SOX–056, (emphasis added). Neither FMR nor its amici have pointed us to any actual situation in which a public company employee would be vulner- able to retaliatory conduct by a contractor not already covered as an “agent” under Notably, even in Tides v. The Boeing Co., 644 F.3d 809 (CA9 2011), the case cited by the dissent for the proposition that contractors may possess “managerial authority” over public company employees, post, the alleged retaliation was by the public company itself. 12 LAWSON v. FMR LLC Opinion of the Court believe that Congress presumed an employer-employee relationship between the retaliator and the whistleblower. Employees gain protection for furnishing information to a federal agency, Congress, or “a person with supervisory authority over the employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct).” (1) (em- phasis added). And under (2), employees are protected from retaliation for assisting “in a proceeding filed or about to be filed (with any knowledge of the em- ployer) relating to an alleged violation” of any of the enu- merated fraud provisions, securities regulations, or other federal law relating to shareholder fraud. (2) (emphasis added). The reference to employer knowledge is an additional indicator of Congress’ expectation that the retaliator typically will be the employee’s employer, not another entity less likely to know of whistleblower com- plaints filed or about to be filed. Section 1514A’s enforcement procedures and remedies similarly contemplate that the whistleblower is an em- ployee of the retaliator. As earlier noted, see (b)(2)(A) provides that a claim under “shall be governed under the rules and procedures set forth in section 42121(b) of title 49,” i.e., AIR 21’s anti-retaliation provision. Throughout the respondent is re- ferred to as “the employer.” See 49 U.S. C. (B)(ii) (The Secretary shall not conduct an investigation into a retaliation claim “if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”); (B)(iv) (“Relief may not be ordered if the employer demon- strates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”). Regarding remedies, (c)(2) states that a success- Cite as: 571 U. S. (2014) 13 Opinion of the Court ful claimant shall be entitled to “reinstatement with the same seniority status that the employee would have had, but for the discrimination,” as well as “the amount of back pay, with interest.” As the Solicitor General, for the United States as amicus curiae, observed, “It is difficult, if not impossible, to see how a contractor or subcontractor could provide those remedies to an employee of a public company.” Brief for United States as Amicus Curiae 15. The most sensible reading of ’s numerous references to an employer-employee relationship between the respondent and the claimant is that the provision’s protections run between contractors and their own Remarkably, the dissent attributes to Congress a strange design. Under the dissent’s “narrower” construc- tion, post, at 2, 3, 4, 7, a public company’s contractor may not retaliate against a public company’s employees, aca- demic here because the public company has no According to the dissent, this coverage is necessary to prevent “a gaping hole” that would allow public companies to “evade simply by hiring a contractor to engage in the very retaliatory acts that an officer or employee could not.” Post, This cannot be right—even if Congress had omitted any reference to contractors, sub- contractors, or agents in the remaining language surely would prohibit a public company from directing someone else to engage in retaliatory conduct against the public company’s employees; hiring an ax-wielder to an- nounce an employee’s demotion does not change the fact that the public company is the entity commanding the demotion. Under the dissent’s reading of the inclusion of contractors as covered employers does no more than make the contractor secondarily liable for complying with such marching orders—hardly a hole at all.10 —————— 10 The dissent suggests that we “fai[l] to recognize” that its construc- tion also makes contractors primarily liable for retaliating of their own 14 LAWSON v. FMR LLC Opinion of the Court There would be a huge hole, on the other hand, were the dissent’s view of ’s reach to prevail: Contractors’ employees would be disarmed; they would be vulnerable to retaliation by their employers for blowing the whistle on a scheme to defraud the public company’s investors, even a scheme engineered entirely by the contractor. Not only would mutual fund advisers and managers escape ’s control. Legions of accountants and lawyers would be denied ’s protections. See infra, at 19–22. Instead of indulging in fanciful visions of whistleblowing babysitters and the like, post, at 1–2, 6, 12–13, 20, the dissent might pause to consider whether a Congress, prompted by the Enron debacle, would exclude from whis- tleblower protection countless professionals equipped to bring fraud on investors to a halt. B We turn next to two textual arguments made by FMR. First, FMR urges that “an employee” must be read to refer exclusively to public company employees to avoid the absurd result of extending protection to the personal employees of company officers and employees, e.g., their housekeepers or gardeners. See Brief for Respondents 19– 20; post, at 1–2, 6, 12–13, 20. Plaintiffs and the Solicitor General do not defend ’s application to personal They argue, instead, that the prohibition against an “officer” or “employee” retaliating against “an employee” may be read as imposing personal liability only on officers and employees who retaliate against other public company Brief for Petitioners 12; Brief —————— volition against employees of public companies. Post, n. 6. As –12, n. 9, however, FMR and its supporters have identified not even one real-world instance of a public company employee asserting a claim alleging retaliatory conduct by a contractor. Again, no “gaping hole,” practically no hole at all. Cite as: 571 U. S. (2014) 15 Opinion of the Court for United States as Amicus Curiae 16.11 FMR calls this reading “bizarre,” for it would ascribe to the words “an employee” in “one meaning if the respondent is an ‘officer’ and a different meaning if the respondent is a ‘contractor.’ ” Brief for Respondents 20–21. We agree with FMR that plaintiffs and the Solicitor General offer an interpretation at odds with the text Con- gress enacted. If, as we hold, “an employee” includes employees of contractors, then grammatically, the term also includes employees of public company officers and Nothing suggests Congress’ attention was drawn to the curiosity its drafting produced. The issue, however, is likely more theoretical than real. Few house- keepers or gardeners, we suspect, are likely to come upon and comprehend evidence of their employer’s complicity in fraud. In any event, FMR’s point is outweighed by the compelling arguments opposing FMR’s contention that “an employee” refers simply and only to public company em- ployees. See at 9–14. See also infra, –24 (limiting principles may serve as check against overbroad applications). Second, FMR argues that the statutory headings support the exclusion of contractor employees from ’s protections. Although ’s own heading is broad (“Civil action to protect against retaliation in fraud cases”), subsection (a) is captioned “Whistleblower Protec- tion for Employees of Publicly Traded Companies.” Simi- larly, the relevant public law section, of Sarbanes- Oxley, is captioned “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” 116 —————— 11 The ARB endorsed this view in Spinner v. David Landau & Assoc., LLC, No. 10–111 etc., ALJ No. –SOX–029, p. 8 We have no occasion to determine whether the ARB would be entitled to deference in this regard, for, as in text, we find that the statutory text unambiguously affords protection to personal employees of public company officers and 16 LAWSON v. FMR LLC Opinion of the Court Stat. 802. The Court of Appeals described the latter two headings as “explicit guides” limiting protection under to employees of public companies. 670 F.3d, at 69. This Court has placed less weight on captions. In (1947), we that where, as here, “the [statutory] text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner.” 28. The under-inclusiveness of the two headings relied on by the Court of Appeals is apparent. The provision indisputably extends protection to employ- ees of companies that file reports with the SEC pursuant to of the 1934 Act, even when such companies are not “publicly traded.” And the activity protected under is not limited to “provid[ing] evidence of fraud”; it also includes reporting violations of SEC rules or regula- tions. (1). As in Trainmen, the headings here are “but a short-hand reference to the general subject matter” of the provision, “not meant to take the place of the detailed provisions of the text.” 331 U.S., 28. Section 1514A is attended by numerous indicators that the statute’s prohibitions govern the relationship between a contractor and its own employees; we do not read the headings to “undo or limit” those signals. 29.12 III A Our textual analysis of fits the provision’s pur- pose. It is common ground that Congress installed whis- tleblower protection in the Sarbanes-Oxley Act as one —————— 12 AIR 21’s anti-retaliation provision, on which is based, in- cludes a similarly composed heading, “Discrimination against airline ” 49 U.S. C. Nevertheless, that provision has been read to cover employees of companies rendering contract services to airlines. See infra, at 27–29. Cite as: 571 U. S. (2014) 17 Opinion of the Court means to ward off another Enron debacle. S. Rep., at 2– 11. And, as the ARB observed in Spinner, “Congress plainly recognized that outside professionals—ac- countants, law firms, contractors, agents, and the like— were complicit in, if not integral to, the shareholder fraud and subsequent cover-up [Enron] officers perpetrated.” ALJ No. –SOX–029, pp. 12–13. Indeed, the Senate Report demonstrates that Congress was as focused on the role of Enron’s outside contractors in facilitating the fraud as it was on the actions of Enron’s own officers. See, e.g., S. Rep., at 3 (fraud “occurred with extensive participation and structuring advice from Arthur Andersen which was simultaneously serving as both consultant and inde- pendent auditor for Enron” (internal quotation marks and brackets omitted)); (“professionals from account- ing firms, law firms and business consulting firms, who were paid millions to advise Enron on these practices, assured others that Enron was a solid investment”); at 4–5 (team of Andersen employees were tasked with de- stroying “physical evidence and documents” relating to Enron’s fraud); (“Enron and Andersen were taking advantage of a system that allowed them to behave in an apparently fraudulent manner”); (Enron’s fraud partly attributable to “the well-paid professionals who helped create, carry out, and cover up the complicated corporate ruse when they should have been raising con- cerns”); –21 (“Enron’s accountants and lawyers brought all their skills and knowledge to bear in assisting the fraud to succeed and then in covering it up.”). Also clear from the legislative record is Congress’ under- standing that outside professionals bear significant re- sponsibility for reporting fraud by the public companies with whom they contract, and that fear of retaliation was the primary deterrent to such reporting by the employ- ees of Enron’s contr Congressional investigators discovered ample evidence of contractors demoting or dis- 18 LAWSON v. FMR LLC Opinion of the Court charging employees they have engaged who jeopardized the contractor’s business relationship with Enron by ob- jecting to Enron’s financial practices. See, e.g., Oppel, Merrill Replaced Research Analyst Who Upset Enron, N. Y. Times, July 30, 2002, p. A1 (“In the summer of 1998, when it was eager to win more investment banking busi- ness from Enron, Merrill Lynch replaced a research ana- lyst who had angered Enron executives by rating the company’s stock ‘neutral’ with an analyst who soon up- graded the rating, according to Congressional investi- gators.”); Yost, Andersen Whistleblower Was Removed, Associated Press (Congressional investiga- tion reveals that Andersen removed one of its partners from its Enron team after Enron officials expressed un- happiness with the partner’s questioning of certain ac- counting practices); Oppel, The Man Who Paid the Price for Sizing up Enron, N. Y. Times, Mar. 27, 2002, p. C1 (“Enron executives pressed UBS PaineWebber to take action against a broker who advised some Enron employ- ees to sell their shares in August and was fired by the brokerage firm within hours of the complaint, according to e-mail messages released today by Congressional investigators.”). In the same vein, two of the four examples of whistle- blower retaliation recounted in the Senate Report involved outside professionals retaliated against by their own employers. S. Rep., (on Andersen and UBS Paine- Webber employees); see also –5 (Andersen employ- ees who “attempted to report or ‘blow the whistle’ on [Enron’s] fraud were discouraged at nearly every turn”). Emphasizing the importance of outside profes- sionals as “gatekeepers who detect and deter fraud,” the Senate Report concludes: “Congress must reconsider the incentive system that has been set up that encourages accountants and lawyers who come across fraud in their work to remain silent.” –21. From this legisla- Cite as: 571 U. S. (2014) 19 Opinion of the Court tive history, one can safely conclude that Congress enacted aiming to encourage whistleblowing by contractor employees who suspect fraud involving the public compa- nies with whom they work.13 FMR argues that Congress addressed its concerns about the role of outside accountants and lawyers in facilitating Enron’s wrongdoing, not in but exclusively in other provisions of Sarbanes-Oxley “directly regulat[ing] accountants and lawyers.” Brief for Respondents 40. In particular, FMR points to sections of the Act requiring accountants and lawyers for public companies to investi- gate and report misconduct, or risk being banned from further practice before the SEC. 1 (citing 15 U.S. C. 7245). These requirements, however, indicate why Congress would have wanted to extend ’s coverage to the many lawyers and accountants who perform outside work for public companies. Although lawyers and accountants are subject to extensive regula- tions and sanctions throughout Sarbanes-Oxley, no provi- sion of the Act other than affords them protection from retaliation by their employers for complying with the Act’s reporting requirements.14 In short, we cannot coun- —————— 13 FMR urges that the Senate Report’s references to “employees of publicly traded companies” demonstrate that Congress wanted to limit whistleblower protection to such Brief for Respondents 30– 31. This argument fails for the same reason that FMR’s reliance on the statutory section headings fails: “employees of publicly traded compa- nies” must be understood as shorthand not designed to capture every employee covered by See at 15–16. Senator Sarbanes’ statement, cited in the concurring opinion, post, at 2, is similarly imprecise. The Act indisputably covers private accounting firms and law firms that provide services to public companies. See, e.g., 15 U.S. C. 7245. Indeed, Senator Sarbanes acknowledged this point in his very next sentence. See 148 Cong. Rec. 14440 (remarks of Sen. Sarbanes) (“This legislation prohibits accounting firms from providing certain specified consulting services if they are also the auditors of the company.”). 14 The dissent suggests that the Public Company Accounting Oversight 20 LAWSON v. FMR LLC Opinion of the Court tenance the position advanced by FMR and the dissent, see post, –16, that Congress intended to leave these professionals vulnerable to discharge or other retaliatory action for complying with the law. B Our reading of avoids insulating the entire mutual fund industry from as FMR’s and the dissent’s “narrower construction” would do. As companies “required to file reports under section 15(d) of the Securi- ties Exchange Act of 1934,” 18 U.S. C. mutual funds unquestionably are governed by Because mutual funds figure prominently among such report-filing companies, Congress presumably had them in mind when it added to “publicly traded companies” the discrete cate- gory of companies “required to file reports under section 15(d).” Virtually all mutual funds are structured so that they have no employees of their own; they are managed, in- stead, by independent investment advisers. See S. Rep. No. 91–184, p. 5 (1969) (accompanying the 1970 amend- ments to the Investment Company Act of 1940). The United States investment advising industry manages $14.7 trillion on behalf of nearly 94 million investors. See Investment Company Fact Book 7 (53d ed.), availa- ble at http://www.icifactbook.org/pdf/_factbook.pdf (as visited Feb. 20, 2014, and available in Clerk of Court’s case file). These investment advisers, under our reading —————— Board’s and the SEC’s authority to sanction unprofessional conduct by accountants and lawyers, respectively, “could well provide” a disincen- tive to retaliate against other accountants and lawyers. See post, at 15. The possibility of such sanctions, however, is cold comfort to the ac- countant or lawyer who loses her job in retaliation for her efforts to comply with the Act’s requirements if, as the dissent would have it, does not enable her to seek reinstatement or backpay. Cite as: 571 U. S. (2014) 21 Opinion of the Court of are contractors prohibited from retaliating against their own employees for engaging in whistleblow- ing activity. This construction protects the “insiders [who] are the only firsthand witnesses to the [shareholder] fraud.” S. Rep., Under FMR’s and the dissent’s reading, in contrast, has no application to mutual funds, for all of the potential whistleblowers are employed by the privately held investment management companies, not by the mutual funds themselves. See Brief for Re- spondents 45 (describing this glaring gap as “merely a consequence of the corporate structure” of mutual funds). The Court of Appeals found exclusion of the mutual fund industry from tenable because mutual funds and their investment advisers are separately regulated under the Investment Company Act of 1940, 15 U.S. C. et seq., the Investment Advisers Act of 1940, 15 U.S. C. et seq., and elsewhere in Sarbanes-Oxley. –73. See also post, at 16–17, n. 10. But this separate regulation does not remove the problem, for nowhere else in these legislative measures are investment management employees afforded whistleblower protection. Section 1514A alone shields them from retaliation for bringing fraud to light. Indeed, affording whistleblower protection to mutual fund investment advisers is crucial to Sarbanes-Oxley’s endeavor to “protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws.” As plaintiffs observe, these disclosures are written, not by anyone at the mutual funds themselves, but by employees of the investment advisers. “Under FMR’s [and the dissent’s] proposed in- terpretation of section 1514A, FMR could dismiss any FMR employee who disclosed to the directors of or lawyers for the Fidelity funds that there were material falsehoods in the documents being filed by FMR with the SEC in the name of those funds.” Reply Brief 13. It is implausible 22 LAWSON v. FMR LLC Opinion of the Court that Congress intended to leave such an employee remedi- less. See C Unable credibly to contest the glaring under- inclusiveness of the “narrower reading” FMR urges, the dissent emphasizes instead FMR’s claim that the reading of we adopt is all too inclusive. See post, at 1–2, 6, 12–13, 20–21. FMR’s amici also press this point, observ- ing that the activity protected under (1) encom- passes reporting not only securities fraud (18 U.S. C. but also mail, wire, and bank fraud 1343, 1344). Including contractor employees in the protected class, they therefore assert, could “cas[t] a wide net over employees who have no exposure to investor-related activ- ities and thus could not possibly assist in detecting inves- tor fraud.” Brief for Chamber of Commerce of the United States of America as Amicus Curiae 3. See also Brief for Securities Industry and Financial Markets Association as Amicus Curiae 7–16. There is scant evidence, however, that these floodgate- opening concerns are more than hypothetical. DOL’s regulations have interpreted as protecting con- tractor employees for almost a decade.15 See 69 Fed. Reg. 52105–52106 (2004). Yet no “narrower construction” advocate has identified even a single case in which the employee of a private contractor has asserted a claim based on allegations unrelated to shareholder fraud. FMR’s parade of horribles rests solely on Lockheed Martin a case involv- ing mail and wire fraud claims asserted by an employee of —————— 15 Although the dissent suggests that the ARB had not provided “de- finitive clarification” on the issue prior to Spinner, post the ARB “repeatedly interpreted [] as affording whistleblower protection to employees of [private] contractors” before Spinner. See Spinner, No. 10–111 etc., ALJ No. –SOX–029, p. 5 (citing prior decisions). Cite as: 571 U. S. (2014) 23 Opinion of the Court a public company—i.e., claims in no way affected by to- day’s decision. The dissent’s fears that household employ- ees and others, on learning of today’s decision, will be prompted to pursue retaliation claims, post, at 13, and that OSHA will find them meritorious under seem to us unwarranted. If we are wrong, however, Con- gress can easily fix the problem by amending explicitly to remove personal employees of public company officers and employees from the provision’s reach. But it would thwart Congress’ dominant aim if contractors were taken off the hook for retaliating against their whistle- blowing employees, just to avoid the unlikely prospect that babysitters, nannies, gardeners, and the like will flood OSHA with complaints. Plaintiffs and the Solicitor General observe that over- breadth problems may be resolved by various limit- ing principles. They point specifically to the word “contractor.” Plaintiffs note that in “common parlance,” “contractor” does not extend to every fleeting business relationship. Instead, the word “refers to a party whose performance of a contract will take place over a significant period of time.” Reply Brief 16. See also (“Nothing in implies that, if [a privately held business] buys a box of rubber bands from Wal-Mart, a company with traded securities, the [business] becomes covered by”). The Solicitor General further maintains that protects contractor employees only to the extent that their whistleblowing relates to “the contractor fulfilling its role as a contractor for the public company, not the con- tractor in some other capacity.” Tr. of Oral Arg. 18–19 See also (“[I]t has to be a person who is in a position to detect and report the types of fraud and securities violations that are included in the statute. [W]e think that ‘the contractor of such com- 24 LAWSON v. FMR LLC Opinion of the Court pany’ refers to the contractor in that role, working for the public company.’ ”). Finally, the Solicitor General suggests that we need not determine the bounds of today, because plaintiffs seek only a “mainstream application” of the provision’s protections. We agree. Plaintiffs’ allegations fall squarely within Congress’ aim in enacting Lawson alleges that she was construc- tively discharged for reporting accounting practices that overstated expenses associated with managing certain Fidelity mutual funds. This alleged fraud directly impli- cates the funds’ shareholders: “By inflating its expenses, and thus understating its profits, [FMR] could potentially increase the fees it would earn from the mutual funds, fees ultimately paid by the shareholders of those funds.” Brief for Petitioners 3. Zang alleges that he was fired for ex- pressing concerns about inaccuracies in a draft registra- tion statement FMR prepared for the SEC on behalf of certain Fidelity funds. The potential impact on share- holders of false or misleading registration statements needs no elaboration. If Lawson and Zang’s allegations prove true, these plaintiffs would indeed be “firsthand witnesses to [the shareholder] fraud” Congress anticipated would protect. S. Rep., D FMR urges that legislative events subsequent to Sarbanes-Oxley’s enactment show that Congress did not intend to extend ’s protections to contractor em- ployees.16 In particular, FMR calls our attention to the —————— 16 We can easily dismiss FMR’s invocation of a failed bill from 2004, the Mutual Fund Reform Act, S. 2059, 108th Cong., 2d Sess., which would have amended explicitly to cover employees of investment advisers and affiliates. Brief for Respondents 34–35. “[F]ailed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute.” United States v. Cite as: 571 U. S. (2014) 25 Opinion of the Court Dodd-Frank Wall Street Reform and Consumer Protection Act, Dodd-Frank amended to read: “No company with a class of securities registered un- der section 12 of the Securities Exchange Act of 1934 (15 U.S. C. 78l), or that is required to file reports un- der [section 12] of the [1934 Act] (15 U.S. C. 78o(d)) including any subsidiary or affiliate whose financial information is included in the consolidated financial statements of such company, or nationally recognized statistical rating organization (as defined in section 3(a) of the [1934 Act] (15 U.S. C. 78c), or any officer, employee, contractor, subcontractor, or agent of such company or nationally recognized statistical rating or- ganization, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any [protected activity].” 18 U.S. C. ( ed.) (emphasis added; foot- note omitted.) The amended provision extends ’s protection to employees of public company subsidiaries and nationally recognized statistical rating organizations (NRSROs). FMR asserts that Congress’ decision to add NRSROs to shows that the provision did not previously cover contractor employees: “If [] already covered every private company contracting with a public company, there would have been no need for Congress to extend [] to certain private companies.” Brief for Respondents 35– 36. This argument fails at the starting gate, for FMR —————— Craft, Where, as here, the proposed amendment amounted to six lines in a 51- page bill that died without any committee action, its failure is scarcely relevant to Congress’ intentions regarding a different bill enacted two years earlier. 26 LAWSON v. FMR LLC Opinion of the Court concedes that not all NRSROs are privately held, and not all NRSROs contract with public companies. We see nothing useful to our inquiry in Congress’ deci- sion to amend to include public company sub- sidiaries and NRSROs. More telling, at the time of the Dodd-Frank amendments, DOL regulations provided that protects contractor See 29 CFR (2009). Congress included in its alterations no language gainsaying that protection. As Judge Thomp- son’s dissent from the First Circuit’s judgment observes, “Congress had a miles-wide opening to nip [DOL’s] regula- tion in the bud if it had wished to do so. It did not.” 670 F.3d, at 88. Dodd-Frank also establishes a corporate whistleblowing reward program, accompanied by a new provision pro- hibiting any employer from retaliating against “a whistle- blower” for providing information to the SEC, participating in an SEC proceeding, or making disclosures required or protected under Sarbanes-Oxley and certain other securities laws. 15 U.S. C. (b)(1), (h). FMR urges that, as this provision covers employees of all com- panies, public or private, “[t]here is no justification” for reading to cover employees of contractors: “Any ‘gap’ that might, arguendo, have existed for employees of private entities between 2002 and has now been closed.” Brief for Respondents 44.17 FMR, we note, somewhat overstates Dodd-Frank’s cov- erage. Section 1514A’s protections include employees who provide information to any “person with supervisory authority over the employee.” (1)(C). Dodd- Frank’s whistleblower provision, however, focuses primarily on reporting to federal authorities. See Brief for United States as Amicus Curiae 30 (“[I]f employees of contrac- —————— 17 FMR acknowledges that plaintiffs’ claims could have proceeded un- der Dodd-Frank, but for the date of enactment. Brief for Respondents 43. Cite as: 571 U. S. (2014) 27 Opinion of the Court tors of public companies are not protected under Section 1514A, they are not protected for making internal com- plaints under the Dodd-Frank Act.”). In any event, our task is not to determine whether including contractor employees in the class protected by remains necessary in 2014. It is, instead, to de- termine whether Congress afforded protection to contractor employees when it enacted in 2002. If anything relevant to our inquiry can be gleaned from Dodd-Frank, it is that Congress apparently does not share FMR’s concerns about extending protection comprehensively to corporate whistleblowers.18 IV We end by returning to AIR 21’s whistleblower protec- tion provision, 49 U.S. C. enacted two years before Sarbanes-Oxley. Congress designed to “track as closely as possible” the protections afforded by S. Rep., at 30. To this end, incorpo- rates by cross-reference administrative enforce- ment regime, see 18 U.S. C. (b)(2), and contains parallel statutory text. Compare (“No [public] company or any officer, employee, contractor, subcon- tractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner dis- criminate against an employee in the terms and conditions of employment” for engaging in protected activity) with 49 U.S. C. (“No air carrier or contractor or subcon- tractor of an air carrier may discharge an employee or otherwise discriminate against an employee with respect —————— 18 Section 1107 of the Act is of similar breadth, declaring it a criminal offense to “tak[e] any action harmful to any person, including interfer- ence with the lawful employment or livelihood of any person, for provid- ing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense.” 18 U.S. C. 28 LAWSON v. FMR LLC Opinion of the Court to compensation, terms, conditions, or privileges of em- ployment” for engaging in protected activity).19 Section 42121 has been read to protect employees of contractors covered by the provision. The ARB has con- sistently construed AIR 21 to cover contractor E.g., Evans v. Miami Valley Hospital, ARB No. 07–118 etc., ALJ No. 2006–AIR–022, pp. 9–11 (June 30, 2009); Peck v. Safe Air Int’l, Inc., ARB No. 02–028, ALJ No. 2001–AIR–3, p. 13 (Jan. 30, 2004).20 And DOL’s regula- tions adopting this interpretation of date back to April 1, 2002, before was enacted. 67 Fed. Reg. 15454, 15457–15458 The Senate Report for AIR 21 supports this reading, explaining that the Act “provide[s] employees of airlines, and employees of airline contractors and subcontractors, with statutory whistleblower protec- tion.” S. Rep. No. 105–278, p. 22 (1998).21 The Court of Appeals recognized that Congress modeled on and that has been understood to protect contractor –74. It nonetheless declined to interpret the same way, because, in its view, “important differences” separate the two provisions. First, unlike contains a —————— 19 For other provisions borrowing from AIR 21, see 49 U.S. C. §9, governing rail carriers, which incorporates AIR 21’s enforcement procedures, and governing motor carriers, which incorporates AIR 21’s proof burdens. 20 The ARB has also interpreted similarly worded whistleblower pro- tection provisions in the Pipeline Safety Improvement Act of 2002, 49 U.S. C. and the Energy Reorganization Act of 1974, 42 U.S. C. as protecting employees of contr See Rocha v. AHR Utility Corp., ARB No. 07–112, ALJ No. 2006–PSI–001 etc., p. 2 (June 25, 2009); Robinson v. Triconex Corp., ARB No. 10–013, ALJ No. 2006–ERA–031, pp. 8–9 21 FMR protests that there is no court of appeals precedent on point, Brief for Respondents 24, n. 6, but the courts of appeals are not, of course, the only lodestar for determining whether a proposition of law is plainly established. Cite as: 571 U. S. (2014) 29 Opinion of the Court definition of “contractor”: “a company that performs safety- sensitive functions by contract for an air carrier.” 49 U.S. C. (e). Second, unlike does not include “officers” or “employees” among governed These distinctions, the Court of Appeals reasoned, render less amenable to an inclusive construction of the protected class. 22 We do not find these textual differences overwhelming. True, Congress strayed from pattern in failing to define “contractor” for purposes of and in adding “officers” and “employees” to ’s list of governed And we agree that covers a far wider range than does. But in our view, neither differ- ence warrants the determination that omits em- ployees of contractors while includes them. The provisions’ parallel text and purposes counsel in favor of interpreting the two provisions consistently. And we have already canvassed the many reasons why is most sensibly read to protect employees of contr See at 9–22. * * * For the reasons stated, we hold that 18 U.S. C. whistleblower protection extends to employees of contrac- tors and subcontr The judgment of the U. S. Court of Appeals for the First Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— 22 The dissent suggests the provisions’ headings are also distinguish- able because title—“Protection of employees providing air safety information”—“comfortably encompasses the employees of contr” Post, at 8. The dissent omits, however, the subsection heading directly following the title: “Discrimination against airline ” Cite as: 571 U. S. (2014) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 12–3 JACKIE HOSANG LAWSON AND JONATHAN M. ZANG, PETITIONERS v. FMR LLC ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT [March 4, 2014] JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in principal part and concurring in the judgment. I agree with the Court’s conclusion that 18 U.S. C. protects employees of private contractors from retaliation when they report covered forms of fraud. As the Court carefully demonstrates, that conclusion logically flows from ’s text and broader context. I therefore join the Court’s opinion in principal part. I do not endorse, however, the Court’s occasional excur- sions beyond the interpretative terra firma of text and context, into the swamps of legislative history. Reliance on legislative history rests upon several frail premises. First, and most important: That the statute means what Congress intended. It does not. Because we are a govern- ment of laws, not of men, and are governed by what Congress enacted rather than by what it intended, the sole object of the interpretative enterprise is to determine what a law says. Second: That there was a congressional “in- tent” apart from that reflected in the enacted text. On most issues of detail that come before this Court, I am confident that the majority of Senators and Representa- tives had no views whatever on how the issues should be resolved—indeed, were unaware of the issues entirely. Third: That the views expressed in a committee report or a 2 LAWSON v. FMR LLC Opinion of SCALIA, J. floor statement represent those of all the Members of that House. Many of them almost certainly did not read the report or hear the statement, much less agree with it—not to mention the Members of the other House and the Presi- dent who signed the bill. Since congressional “intent” apart from enacted text is fiction to begin with, courts understandably allow them- selves a good deal of poetic license in defining it. Today’s opinion is no exception. It cites parts of the legislative record that are consistent with its holding that covers employees of private contractors and subcontrac- tors, but it ignores other parts that unequivocally cut in the opposite direction. For example, the following remark by the Sarbanes-Oxley Act’s lead sponsor in the Senate: “[L]et me make very clear that [the Act] applies exclusively to public companies—that is, to companies registered with the Securities and Exchange Commission. It is not applicable to pr[i]v[at]e companies,[*] who make up the vast majority of companies across the country.” 148 Cong. Rec. 14440 (remarks of Sen. Sarbanes). Two other minor points in the Court’s opinion I do not agree with. First, I do not rely on the fact that a separate anti-retaliation provision, 49 U.S. C. “has been read” by an administrative tribunal to cover contractor Ante, at 29. Section 1514A(b)(2), entitled “Procedure,” contains cross-references to the procedural rules set forth in but the substantive provisions of are worded quite differently from the sub- stantive prohibition of which is contained in sub- section (a)—thus making interpretation of the latter an unreliable guide to ’s meaning. Second, I do not agree with the Court’s acceptance of the possible validity —————— * The Congressional Record reads “provide companies,” but context as well as grammar makes clear that this is a scrivener’s error for “private companies.” Cite as: 571 U. S. (2014) 3 Opinion of SCALIA, J. of the Government’s suggestion that “ protects contractor employees only to the extent that their whistle- blowing relates to ‘the contractor fulfilling its role as a contractor for the public company.’ ” Ante, (quoting Tr. of Oral Arg. 18–19). Although that “limiting prin- cipl[e],” ib may be appealing from a policy standpoint, it has no basis whatsoever in the statute’s text. So long as an employee works for one of the actors enumerated in and reports a covered form of fraud in a manner identified in the employee is protected from retaliation. For all the other reasons given by the Court, the stat- ute’s text is clear, and I would reverse the judgment of the Court of Appeals and remand the case. Cite as: 571 U. S. (2014) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 12–3 JACKIE HOSANG LAWSON AND JONATHAN M. ZANG, PETITIONERS v. FMR LLC ET AL.

Justice Sotomayor

dissenting

Lawson v. FMR LLC

2014-03-04

https://www.courtlistener.com/opinion/2655498/lawson-v-fmr-llc/

https://www.courtlistener.com/api/rest/v3/clusters/2655498/

2013-024

Section 806 of the Sarbanes-Oxley Act of 2002, 116 Stat. 802, forbids any public company,1 or any “officer, em- ployee, contractor, subcontractor, or agent of such company,” to retaliate against “an employee” who reports a potential fraud. 18 U.S. C. §1514A(a). The Court recognizes that the core purpose of the Act is to “safeguard investors in public companies.” Ante, at 1. And the Court points out that Congress entitled the whistleblower provision, “Pro- tection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” §806, 116 Stat. 802. Despite these clear markers of intent, the Court does not construe §1514A to apply only to public company employees who blow the whistle on fraud relating to their public company employers. The Court instead holds that the law encom- passes any household employee of the millions of people who work for a public company and any employee of the hundreds of thousands of private businesses that contract —————— 1 The majority uses the term “public company” as shorthand for 18 U.S. C. §1514A’s reference to companies that either have “ ‘a class of securities registered under section 12 of the Securities Exchange Act of 1934,’ ” or that are “ ‘required to file reports under section 15(d).’ ” Ante, at 7–8. I do the same. 2 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting to perform work for a public company. The Court’s interpretation gives §1514A a stunning reach. As interpreted today, the Sarbanes-Oxley Act au- thorizes a babysitter to bring a federal case against his employer—a parent who happens to work at the local Walmart (a public company)—if the parent stops employ- ing the babysitter after he expresses concern that the parent’s teenage son may have participated in an Internet purchase fraud. And it opens the door to a cause of action against a small business that contracts to clean the local Starbucks (a public company) if an employee is demoted after reporting that another nonpublic company client has mailed the cleaning company a fraudulent invoice. Congress was of course free to create this kind of sweep- ing regime that subjects a multitude of individuals and private businesses to litigation over fraud reports that have no connection to, or impact on, the interests of pub- lic company shareholders. But because nothing in the text, context, or purpose of the Sarbanes-Oxley Act suggests that Congress actually wanted to do so, I respectfully dissent. I Although the majority correctly starts its analysis with the statutory text, it fails to recognize that §1514A is deeply ambiguous. Three indicators of Congress’ intent clearly resolve this ambiguity in favor of a narrower inter- pretation of §1514A: the statute’s headings, the statutory context, and the absurd results that follow from the major- ity’s interpretation. A The majority begins its textual analysis by declaring that the “ ‘relevant syntactic elements’ ” of §1514A are that “ ‘ “no . . . contractor . . . may discharge . . . an employee.” ’ ” Ante, at 9. After “ ‘boiling . . . down’ ” the text to this for- Cite as: 571 U. S. ____ (2014) 3 SOTOMAYOR, J., dissenting mulation, the majority concludes that the “ordinary mean- ing of ‘an employee’ ” is obviously “the contractor’s own employee.” Ibid. If that were what the statute said, the majority’s deci- sion would undoubtedly be correct. But §1514A(a) actu- ally provides that “[n]o [public] company . . . or any officer, employee, contractor, subcontractor, or agent of such company . . . may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee.” The provision thus does not speak only (or even primarily) to “contractors.” It speaks to public com- panies, and then includes a list of five types of representa- tives that companies hire to carry out their business: “officer[s], employee[s], contractor[s], subcontractor[s], [and] agent[s].” Read in full, then, the statute is ambiguous. The major- ity is correct that it may be read broadly, to create a cause of action both for employees of public companies and for employees of the enumerated public company representa- tives. But the statute can also be read more narrowly, to prohibit the public company and the listed representa- tives—all of whom act on the company’s behalf—from retaliating against just the public company’s employees. The narrower reading of the text makes particular sense when one considers the other terms in the list of com- pany representatives. The majority acknowledges that, as a matter of “gramma[r],” the scope of protected employees must be consistent with respect to all five types of com- pany representatives listed in §1514A(a). Ante, at 15. Yet the Government and petitioners readily concede that §1514A is meant to bar two of the enumerated repre- sentatives—“officer[s]” and “employee[s]”—from retaliating against other employees of the public company, as opposed to their own babysitters and housekeepers. See Brief for United States as Amicus Curiae 16 (§1514A “impose[s] personal liability on corporate officers and employees who 4 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting are involved in retaliation against other employees of their employer”); Brief for Petitioners 12 (similar). The De- partment of Labor’s Administrative Review Board (ARB) agrees. Spinner v. David Landau & Assoc., LLC, No. 10– 111 etc., ALJ No. 2010–SOX–029, p. 8 (May 31, 2012). And if §1514A prohibits an “officer” or “employee” of a public company from retaliating against only the public company’s own employees, then as the majority points out, the same should be true “grammatically” of contractors, subcontractors, and agents as well, ante, at 15.2 The majority responds by suggesting that the narrower interpretation could have been clearer if Congress had added the phrase “ ‘of a public company’ after ‘an em- ployee.’ ” Ante, at 9–10. Fair enough. But Congress could more clearly have dictated the majority’s construction of the statute, too: It could have specified that public compa- nies and their officers, employees, contractors, subcontrac- tors, and agents may not retaliate against “their own employees.” In any case, that Congress could have spoken with greater specificity in both directions only underscores that the words Congress actually chose are ambiguous. To resolve this ambiguity, we must rely on other markers of intent. B We have long held that where the text is ambiguous, a statute’s titles can offer “a useful aid in resolving [the] —————— 2 In reaching the opposite conclusion, the majority rejects the conces- sions by the Government and petitioners and gives no weight to the ARB’s interpretation. If §1514A creates a cause of action for contractor employees, the majority concludes, so too must it create a cause of action for “housekeepers” and “gardeners” against their individual employers if they happen to work for a public company. Ante, at 15. In reaching this result, however, the majority only adds to the absurdities produced by its holding. See infra, at 12–13. Cite as: 571 U. S. ____ (2014) 5 SOTOMAYOR, J., dissenting ambiguity.” FTC v. Mandel Brothers, Inc., 359 U.S. 385, 388–389 (1959). Here, two headings strongly suggest that Congress intended §1514A to apply only to employees of public companies. First, the title of §806—the section of the Sarbanes-Oxley Act that enacted §1514A—speaks clearly to the scope of employees protected by the provi- sion: “Protection for Employees of Publicly Traded Com- panies Who Provide Evidence of Fraud.” 116 Stat. 802. Second, the heading of §1514A(a) reinforces that the pro- vision provides “[w]histleblower protection for employees of publicly traded companies.” The majority suggests that in covering “employees of publicly traded companies,” the headings may be impre- cise. Ante, at 16. Section 1514A(a) technically applies to the employees of two types of companies: those “with a class of securities registered under section 12 of the Secu- rities Exchange Act of 1934,” and those that are “required to file reports under section 15(d) of the” same Act. Both types of companies are “public” in that they are publicly owned. See ante, at 7–8. The difference is that shares of the §12 companies are listed and traded on a national securities exchange; §15(d) companies, by contrast, ex- change their securities directly with the public. The head- ings may therefore be inexact in the sense that the phrase “publicly traded” is commonly associated with companies whose securities are traded on national exchanges. Con- gress, however, had good reason to use the phrase to refer to §15(d) companies as well: Section 15(d) companies are traded publicly, too. For instance, as the majority recog- nizes, ante, at 20, a mutual fund is one paradigmatic example of a §15(d) company. And mutual funds, like other §15(d) companies, are both publicly owned and widely traded; the trades just take place typically between the fund and its investors directly. In any case, even if referring to employees of §12 and §15(d) companies together as “employees of publicly traded 6 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting companies” may be slightly imprecise, the majority’s com- peting interpretation of §1514A would stretch the stat- ute’s headings far past the point of recognition. As the majority understands the law, Congress used the term “employees of publicly traded companies” as shorthand not just for (1) employees of §12 and §15(d) companies, but also for (2) household employees of any individual who works for a §12 or §15(d) company; (3) employees of any private company that contracts with a §12 or §15(d) com- pany; (4) employees of any private company that, even if it does not contract with a public company, subcontracts with a private company that does; and (5) employees of any agent of a §12 or §15(d) company. If Congress had wanted to enact such a far-reaching provision, it would have called it something other than “[w]histleblower protection for employees of publicly traded companies.” Recognizing that Congress chose headings that are inconsistent with its interpretation, the majority notes that the Court has “placed less weight on captions.” Ante, at 16. But where the captions favor one interpretation so decisively, their significance should not be dismissed so quickly. As we have explained, headings are important “ ‘tools available for the resolution of a doubt’ about the meaning of a statute.” Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998). C 1 Statutory context confirms that Congress intended §1514A to apply only to employees of public companies. To start, the Sarbanes-Oxley Act as a whole evinces a clear focus on public companies. Congress stated in the Act’s preamble that its objective was to “protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws,” 116 Stat. 745, disclosures that public companies alone must Cite as: 571 U. S. ____ (2014) 7 SOTOMAYOR, J., dissenting file. The Act thus created enhanced disclosure obligations for public companies, §401; added new conflict of interest rules for their executives, §402; increased the responsibili- ties of their audit committees, §301; and created new rules governing insider trading by their executives and direc- tors, §306. The common denominator among all of these provisions is their singular focus on the activities of public companies. When Congress wanted to depart from the Act’s public company focus to regulate private firms and their employ- ees, it spoke clearly. For example, §307 of the Act ordered the Securities and Exchange Commission (SEC) to issue rules “setting forth minimum standards of professional conduct for attorneys appearing and practicing before the [SEC],” including a rule requiring outside counsel to re- port violations of the securities laws to public company officers and directors. 15 U.S. C. §7245. Similarly, Title I of the Act created the Public Company Accounting Over- sight Board (PCAOB) and vested it with the authority to register, regulate, investigate, and discipline privately held outside accounting firms and their employees. §§7211–7215. And Title V required the SEC to adopt rules governing outside securities analysts when they make public recommendations regarding securities. §78o–6. Section 1514A, by contrast, does not unambiguously cover the employees of private businesses that contract with public companies or the employees of individuals who work for public companies. Far from it, for the reasons noted above. Yet as the rest of the Sarbanes-Oxley Act demonstrates, if Congress had really wanted §1514A to impose liability upon broad swaths of the private sector, it would have said so more clearly. Congress’ intent to adopt the narrower understanding of §1514A is also clear when the statute is compared to the whistleblower provision that served as its model. That provision, enacted as part of the Wendell H. Ford Aviation 8 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting Investment and Reform Act for the 21st Century, 49 U.S. C. §42121, provides that “[n]o air carrier or contrac- tor or subcontractor of an air carrier” may retaliate against an employee who reports a potential airline safety violation. Section 42121 protects employees of contractors. But as the majority acknowledges, “Congress strayed” from §42121 in significant ways when it wrote §1514A. Ante, at 29. First, §42121 specifically defines the term “con- tractor,” limiting the term to “a company that performs safety-sensitive functions by contract for an air carrier.” §42121(e). That is in notable distinction to §1514A, which does not define the word “contractor” as a particular type of company, instead placing the term in a list alongside individual “officer[s]” and “employee[s]” who act on a company’s behalf. Second, unlike §42121, §1514A sets off the term “contractor” in a separate clause that is subsidi- ary to the primary subject of the provision—the public company itself. Third, the title of §42121 is “[p]rotection of employees providing air safety information,” a title that comfortably encompasses the employees of contractors. Not so of §1514A’s headings, as explained above. In short, §42121 shows that Congress had an easy-to-follow model if it wanted to protect the employees of contractors, yet chose to depart from that model in several important ways. We should not presume that choice to be accidental. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 734 (1975). 2 The majority relies on statutory context as well, but its examples are unconvincing. It first argues that the types of conduct prohibited by the statute—“discharge, demo- tion, suspension, threats, harassment, [and] discrimina- tion in the terms and conditions of employment”—are “commonly actions an employer takes against its own Cite as: 571 U. S. ____ (2014) 9 SOTOMAYOR, J., dissenting employees.” Ante, at 10. The problem is that §1514A does not forbid retaliation by an “employer”; it forbids retalia- tion by a “[public] company . . . or any officer, employee, contractor, subcontractor, or agent of such company.” For the reasons already discussed, Congress could have rea- sonably included the five types of representatives not in their capacity as employers, but rather as representatives of the company who are barred from retaliating against a public company’s employees on the company’s behalf. The majority next suggests that contractors are rarely “positioned to take adverse actions against employees of the public company with whom they contract.” Ante, at 10. That misconceives the nature of modern work forces, which increasingly comprise a mix of contractors and persons laboring under more typical employment relation- ships. For example, public companies often hire “inde- pendent contractors,” of whom there are more than 10 million,3 and contract workers,4 of whom there are more than 11 million.5 And they employ outside lawyers, ac- countants, and auditors as well. While not every person who works for a public company in these nonemployee capacities may be positioned to threaten or harass em- —————— 3 Dept. of Labor, Bureau of Labor Statistics, News, Contingent and Alternative Employment Arrangements, Feb. 2005, (July 27, 2005), online at http://www.bls.gov/news.release/conemp.nr0.htm (all Internet materials as visited on Feb. 28, 2014, and available in Clerk of Court’s case file). 4 The Bureau of Labor Statistics distinguishes contract workers from independent contractors, defining the former as “[w]orkers who are employed by a company that provides them or their services to others under contract and who . . . usually work at the customer’s worksite.” Id., at 2 (Table A). 5 Penn, Staffing Firms Added Nearly 1 Million Jobs Over Four Years Since Recession, ASA Says, Bloomberg Law (Oct. 8, 2012), online at http://about.bloomberglaw.com/law-reports/staffing-firms-added-nearly- 1-million-jobs-over-four-years-since-recession-asa-says/. 10 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting ployees of the public company, many are. See, e.g., Tides v. The Boeing Co., 644 F.3d 809, 811 (CA9 2011) (noting that “approximately seventy contract auditors from [an] accounting firm” possessed “managerial authority” over the 10 Boeing employees in the company’s audit division). Congress therefore had as much reason to shield a public company’s employees from retaliation by the company’s contractors as it had to bar retaliation by officers and employees. Otherwise, the statute would have had a gaping hole—a public company could evade §1514A simply by hiring a contractor to engage in the very retaliatory acts that an officer or employee could not.6 The majority also too quickly dismisses the prominence of “outplacement” firms, or consultants that help compa- nies determine whom to fire. See ante, at 11. Companies spent $3.6 billion on these services in 2009 alone.7 Con- —————— 6 The majority submits that the hole might not be so problematic because §1514A “surely” prohibits a “public company from directing someone else to engage in retaliatory conduct against the public com- pany’s employees.” Ante, at 13. It surely does, but that is the point— the whole reason §1514A(a) clearly does so is because it expressly forbids a public company to retaliate against its employees through “any officer, employee, contractor, subcontractor, or agent.” The prohi- bition on retaliation through a contractor would be far less certain (hence the hole) if Congress had merely forbidden a public company to retaliate through its “officers and employees.” Moreover, while the majority concedes that, under the narrower reading of §1514A, Con- gress’ inclusion of the term “contractor” imposes secondary liability in the event a public company is judgment proof, ante, at 13, the majority fails to recognize that Congress’ use of the term also imposes primary liability against contractors who threaten public company employees without direction from the company. Thus, for example, FMR’s inter- pretation of §1514A would prevent an outside accountant from threat- ening or harassing a public company employee who discovers that the accountant is defrauding the public company and who seeks to blow the whistle on that fraud. 7 Rogers, Do Firing Consultants Really Exist, Slate, Jan. 7, 2010, www.slate.com / articles / news_and_politics / explainer/2010/01/getting_ Cite as: 571 U. S. ____ (2014) 11 SOTOMAYOR, J., dissenting gress surely could have meant to protect public company employees against retaliation at the hands of such firms, especially in the event that the public company itself goes bankrupt (as companies engaged in fraud often do). See, e.g., Kalkunte v. DVI Financial Servs., Inc., No. 05–139 etc., ALJ No. 2004–SOX–056 (Feb. 27, 2009) (former em- ployee of bankrupt public company permitted to bring §1514A action against corporate restructuring firm that terminated her employment).8 The majority points next to the remedies afforded by §1514A(c), which authorizes “all relief necessary to make the employee whole,” in addition to “reinstatement,” “back pay,” and “special damages . . . including litigation costs, expert witness fees, and reasonable attorney fees.” The majority posits that Congress could not have intended to bar contractors from retaliating against public company employees because one of the remedies (reinstatement) would likely be outside of the contractor’s power. Ante, at 13. But there is no requirement that a statute must make every type of remedy available against every type of de- fendant. A contractor can compensate a whistleblower with backpay, costs, and fees, and that is more than —————— the_ax_from_george_clooney.html. 8 The majority suggests that an outplacement firm would likely be acting as an “agent” for the public company, such that Congress’ additional inclusion of the word “contractor” would be superfluous under the narrower reading of §1514A. Ante, at 11, n. 9. The two words are not legally synonymous, however. An outplacement firm and public company might, for example, enter into a contract with a provi- sion expressly disclaiming an agency relationship. Moreover, Congress’ use of the term “contractor” would in all events have an independent and important effect: If Congress had not included the term, no one could be held liable if a contractor were to threaten or harass a public company employee without the company’s direction. While the major- ity may speculate that such occurrences are rare, ibid., it is hardly unthinkable. See n. 6, supra. 12 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting enough for the statute’s remedial scheme to make sense. The majority’s reference to the affirmative defense for public company “employers” who lack “knowledge” that an employee has participated in a proceeding relating to the fraud report, ante, at 12 (citing §1514(A)(a)(2)), fails for a similar reason. There is no rule that Congress may only provide an affirmative defense if it is available to every conceivable defendant. D 1 Finally, the majority’s reading runs afoul of the precept that “interpretations of a statute which would produce absurd results are to be avoided if alternative interpreta- tions consistent with the legislative purpose are avail- able.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). The majority’s interpretation transforms §1514A into a sweeping source of litigation that Congress could not have intended. As construed by the majority, the Sarbanes-Oxley Act regulates employment relation- ships between individuals and their nannies, housekeep- ers, and caretakers, subjecting individual employers to litigation if their employees claim to have been harassed for providing information regarding any of a host of of- fenses. If, for example, a nanny is discharged after ex- pressing a concern to his employer that the employer’s teenage son may be participating in some Internet fraud, the nanny can bring a §1514A suit. The employer may prevail, of course, if the nanny cannot prove he was fired “because of” the fraud report. §1514A. But there is little reason to think Congress intended to sweep such disputes into federal court. Nor is it plausible that Congress intended the Act to impose costly litigation burdens on any private business that happens to have an ongoing contract with a public company. As the majority acknowledges, the purpose of Cite as: 571 U. S. ____ (2014) 13 SOTOMAYOR, J., dissenting the Act was to protect public company investors and the financial markets. Yet the majority might well embroil federal agencies and courts in the resolution of mundane labor disputes that have nothing to do with such concerns. For instance, a construction worker could file a §1514A suit against her employer (that has a long-term contract with a public company) if the worker is demoted after reporting that another client has mailed the company a false invoice.9 The majority’s interpretation also produces truly odd distinctions. Under the rule it announces, a babysitter can bring a §1514A retaliation suit against his employer if his employer is a checkout clerk for the local PetSmart (a public company), but not if she is a checkout clerk for the local Petco (a private company). Likewise, the day laborer who works for a construction business can avail himself of §1514A if her company has been hired to help remodel the local Dick’s Sporting Goods store (a public company), but not if it is remodeling a nearby Sports Authority (a private company). In light of the reasonable alternative reading of §1514A, there is no reason to accept these absurd results. The majority begs to differ, arguing that “[t]here is scant evi- dence” that lawsuits have been brought by the multitude of newly covered employees “ ‘who have no exposure to investor-related activities and thus could not possibly —————— 9 Recognizing that the majority’s reading would lead to a “notably expansive scope untethered to the purpose of the statute,” the District Court in this case sought to impose an extratextual limiting principle under which an employee who reports fraud is entitled to protection only if her report “relat[es] to fraud against shareholders.” 724 F. Supp. 2d 141, 160 (Mass. 2010). The District Court acknowledged, however, that “the language of the statute itself does not plainly provide such a limiting principle,” id., at 158, and the majority does not attempt to revive that limitation here. 14 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting assist in detecting investor fraud.’ ” Ante, at 22. Until today, however, no court has deemed §1514A applicable to household employees of individuals who work for public companies; even the Department of Labor’s ARB rejected that view. Spinner, ALJ No. 2010–SOX–029, at 8. And as the District Court noted, prior to the ARB’s 2012 decision in Spinner, the ARB “ha[d] yet to provide . . . definitive clarification” on the question whether §1514A extends to the employees of a public company’s private contractors. 724 F. Supp. 2d 141, 155 (Mass. 2010). So the fact that individuals and private businesses have yet to suffer burdensome litigation offers little assurance that the ma- jority’s capacious reading of §1514A will produce no un- toward effects. Finally, it must be noted that §1514A protects the re- porting of a variety of frauds—not only securities fraud, but also mail, wire, and bank fraud. By interpreting a statute that already protects an expansive class of conduct also to cover a large class of employees, today’s opinion threatens to subject private companies to a costly new front of employment litigation. Congress almost certainly did not intend the statute to have that reach. 2 The majority argues that the broader reading of §1514A is necessary because a small number of the millions of individuals and private companies affected by its ruling have a special role to play in preventing public company fraud. If §1514A does not bar retaliation against employ- ees of contractors, the majority cautions, then law firms and accounting firms will be free to retaliate against their employees when those employees report fraud on the part of their public company clients. It is undisputed that Congress was aware of the role that outside accountants and lawyers played in the Enron debacle and the importance of encouraging them to play Cite as: 571 U. S. ____ (2014) 15 SOTOMAYOR, J., dissenting an active part in preventing future scandals. But it hardly follows that Congress must have meant to apply §1514A to every employee of every public company contractor, sub- contractor, officer, and employee as a result. It is far more likely that Congress saw the unique ethical duties and professional concerns implicated by outside lawyers and accountants as reason to vest regulatory authority in the hands of experts with the power to sanction wrongdoers. Specifically, rather than imposing §1514A’s generic approach on outside accounting firms, Congress estab- lished the PCAOB, which regulates “every detail” of an accounting firm’s practice, including “supervision of au- dit work,” “internal inspection procedures,” “professional ethics rules,” and “ ‘such other requirements as the Board may prescribe.’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. ___, ___ (2010) (slip op., at 3–4). Importantly, the PCAOB is empowered to levy “severe sanctions in its disciplinary proceedings, up to and including the permanent revocation of a firm’s regis- tration . . . and money penalties of $15 million.” Id., at ___ (slip op., at 4) (citing 15 U.S. C. §7215(c)(4)). Such sanc- tions could well provide a more powerful incentive to prevent an accounting firm from retaliating against its employees than §1514A. The Sarbanes-Oxley Act confers similar regulatory authority upon the SEC with respect to attorneys. The Act requires the SEC to establish rules of professional conduct for attorneys, §307 (codified at 15 U.S. C. §7245), and confers broad power on the SEC to punish attorneys for “improper professional conduct,” which would include, for example, a law firm partner’s decision to retaliate against an associate who reports fraud. §602 (codified at 15 U.S. C. §78d–3). Indeed, the Act grants the SEC the power to censure culpable attorneys and to deny “perma- nently” to any such attorney the “privilege of appearing of practicing before” the SEC “in any way.” §602. 16 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting Congress thus evidently made the judgment that deci- sions concerning how best to punish law firms and ac- counting firms ought to be handled not by the Department of Labor, but by the SEC and the PCAOB. Such judgment should not be disturbed under usual circumstances, much less at the cost to congressional intent produced by today’s ruling. The majority does offer cogent policy arguments for why Congress might have been wiser to include certain types of contractors within §1514A, noting for example that a law firm or accounting firm might be able to retali- ate against its employees for making reports required under the Sarbanes-Oxley Act. Ante, at 19. But as the majority recognizes, Congress has since remedied that precise concern, enacting a comprehensive whistleblower incentive and protection program that unequivocally “prohibit[s] any employer”—public or private—“from re- taliating against ‘a whistleblower’ for providing infor- mation to the SEC, participating in an SEC proceeding, or making disclosures required or protected under Sarbanes- Oxley and certain other securities laws.” Ante, at 26 (citing 15 U.S. C. §§78u–6(a)(6), (b)(1), (h)). The majority thus acknowledges that, moving forward, retaliation claims like the petitioners’ may “procee[d] under [§78u-6],” ante, at 26, n. 17. In other words, to the extent the major- ity worries about a “hole” in FMR’s interpretation, ante, at 14, Congress has already addressed it.10 —————— 10 The majority also contends that its reading is necessary to avoid “insulating the entire mutual fund industry from §1514A.” Ante, at 20. But that argument is misguided for a reason similar to the majority’s concern about lawyers and accountants. As this Court has observed, Congress responded to the “ ‘potential for abuse inherent in the struc- ture of investment companies,’ ” Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536 (1984), by enacting the Investment Company Act of 1940 and the Investment Advisers Act of 1940. 15 U.S. C. §80a–1 et seq.; §80b–1 et seq. The Advisers Act in particular grants the SEC broad regulatory authority to regulate mutual fund investment advisers. Cite as: 571 U. S. ____ (2014) 17 SOTOMAYOR, J., dissenting II Because the statute is ambiguous, and because the majority’s broad interpretation has also been adopted by the ARB, there remains the question whether the ARB’s decision in Spinner, ALJ No. 2010–SOX–029, is entitled to deference under Chevron U. S. A. Inc. v. Natural Re- sources Defense Council, Inc., 467 U.S. 837 (1984).11 Under United States v. Mead Corp., 533 U.S. 218, 226– 227 (2001), an agency may claim Chevron deference “when it appears [1] that Congress delegated authority to the agency generally to make rules carrying the force of law, and [2] that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Nei- ther requirement is met here. First, the agency interpretation for which petitioners claim deference is the position announced by the ARB, the board to which the Secretary of Labor has delegated au- thority “in review or on appeal” in connection with §1514A proceedings. 75 Fed. Reg. 3924 (2010). According to petitioners, the ARB’s rulings are entitled to deference because the “Secretary is responsible for enforcing Section 1514A both through investigation and through formal adjudication.” Brief for Petitioners 61. That is right as far as it goes, but even if the Secretary has the power to in —————— §80b–11. The Act also authorizes fines and imprisonment of up to five years for violations of SEC rules. The SEC thus has broad discretion to punish retaliatory actions taken by mutual fund advisers against their employees. And to the extent these provisions may have been insuffi- cient to protect mutual fund adviser employees, §78u–6’s extensive whistleblower incentive and protection program now unambiguously covers such employees. 11 Although it claims not to reach the issue, ante, at 9, n. 6, the major- ity implicitly declines to defer to a portion of the ARB’s ruling as well, rejecting the ARB’s ruling that §1514A does not apply to the household employees of public company officers and employees, ante, at 15, and n. 11. 18 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting vestigate and adjudicate §1514A claims, Congress did not delegate authority to the Secretary to “make rules carry- ing the force of law,” Mead, 533 U.S., at 226–227. Con- gress instead delegated that power to the SEC: Section 3(a) of the Sarbanes-Oxley Act, codified at 15 U.S. C. §7202(a), provides that the SEC “shall promulgate such rules and regulations, as may be necessary or appropriate in the public interest or for the protection of investors, and in furtherance of this Act.” So if any agency has the au- thority to resolve ambiguities in §1514A with the force of law, it is the SEC, not the Department of Labor. See Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 154 (1991). The SEC, however, has not issued a regulation applying §1514A whistleblower protection to employees of public company contractors. And while the majority notes that the SEC may share the (incorrect) view that the Department of Labor has inter- pretive authority regarding §1514A, ante, at 9, n. 6, the majority cites nothing to suggest that one agency may transfer authority unambiguously delegated to it by Con- gress to a different agency simply by signing onto an amicus brief. That Congress did not intend for the Secretary to re- solve ambiguities in the law is confirmed by §1514A’s mechanism for judicial review. The statute does not merely permit courts to review the Secretary’s final adjudicatory rulings under the Administrative Procedure Act’s defer- ential standard. It instead allows a claimant to bring an action in a federal district court, and allows district courts to adjudicate such actions de novo, in any case where the Secretary has not issued a final decision within 180 days. That is a conspicuously short amount of time in light of the three-tiered process of agency review of §1514A claims. See ante, at 5–6. As a result, even if Congress had not delegated to the SEC the authority to resolve ambigui- ties in §1514A, the muscular scheme of judicial review Cite as: 571 U. S. ____ (2014) 19 SOTOMAYOR, J., dissenting suggests that Congress would have wanted federal courts, and not the Secretary of Labor, to have that power. See Mead, 533 U.S., at 232 (declining to defer to Customs Service classifications where, among other things, the statute authorized “independent review of Customs classi- fications by the [Court of International Trade]”). As to the second Mead requirement, even if Congress had delegated authority to the Secretary to make “rules carrying the force of law,” the “agency interpretation claiming deference” in this case was not “promulgated in the exercise of that authority.” Id., at 226–227. That is because the Secretary has explicitly vested any policymak- ing authority he may have with respect to §1514A in the Occupational Safety and Health Administration (OSHA) instead of the ARB. See 67 Fed. Reg. 65008 (2002). In fact, the Secretary has expressly withdrawn from the ARB any power to deviate from the rules OSHA issues on the Department of Labor’s behalf. 75 Fed. Reg. 3925 (“The [ARB] shall not have jurisdiction to pass on the validity of any portion of the Code of Federal Regulations that has been duly promulgated by the Department of Labor and shall observe the provisions thereof, where pertinent, in its decisions”). OSHA has promulgated regulations supporting the majority’s reading of §1514A. See 29 CFR §1980.101(f )–(g) (2013). The Secretary, however, has expressly disclaimed any claim of deference to them. See Brief for United States as Amicus Curiae 33, n. 8. As a result, the ARB’s understanding of §1514A’s coverage in Spinner was not an “exercise of [the Secretary’s] authority” to make rules carrying the force of law, Mead, 533 U.S., at 226–227, but rather the ARB’s necessary compliance with a regulation that no one claims is deserving of deference in the first place. See Spinner, ALJ No. 2010–SOX–029, at 10 (recog- nizing that “the ARB is bound by the [Department of Labor] regulations”). 20 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting In the absence of Chevron deference, the ARB’s decision in Spinner may claim only “respect according to its per- suasiveness” under Skidmore v. Swift & Co., 323 U.S. 134 (1944). See Mead, 533 U.S., at 221. But the ARB’s decision is unpersuasive, for the many reasons already discussed. * * * The Court’s interpretation of §1514A undeniably serves a laudatory purpose. By covering employees of every of- ficer, employee, and contractor of every public company, the majority’s interpretation extends §1514A’s protections to the outside lawyers and accountants who could have helped prevent the Enron fraud. But that is not the statute Congress wrote. Congress envisioned a system in which public company employees would be covered by §1514A, and in which outside law- yers, investment advisers, and accountants would be regulated by the SEC and PCAOB. Congress did not envision a system in which employees of other private businesses—such as cleaning and construction company workers who have little interaction with investor-related activities and who are thus ill suited to assist in detecting fraud against shareholders—would fall within §1514A. Nor, needless to say, did it envision §1514A applying to the household employees of millions of individuals who happen to work for public companies—housekeepers, gardeners, and babysitters who are also poorly positioned to prevent fraud against public company investors. And to the extent §1514A may have been underinclusive as first drafted, Congress has shown itself capable of filling in any gaps. See, e.g., Dodd-Frank Wall Street Reform and Con- sumer Protection Act, §§922, 929A, 124 Stat. 1848, 1852 (extending §1514A to credit rating agencies and public company subsidiaries); §922, id., at 1841–1848 (codifying additional whistleblower incentive and protection program Cite as: 571 U. S. ____ (2014) 21 SOTOMAYOR, J., dissenting at 15 U.S. C. §78u–6). The Court’s decision upsets the balance struck by Con- gress. Fortunately, just as Congress has added further protections to the system it originally designed when necessary, so too may Congress now respond to limit the far-reaching implications of the Court’s interpretation.12 But because that interpretation relies on a debatable view of §1514A’s text, is inconsistent with the statute’s titles and its context, and leads to absurd results that Congress did not intend, I respectfully dissent. —————— 12 Congress could, for example, limit §1514A to contractor employees in only those professions that can assist in detecting fraud on public company shareholders, or it could restrict the fraud reports that trigger whistleblower protection to those that implicate the interests of public company investors, see n. 9, supra

Section 80 of the Sarbanes-Oxley Act of 2002, 11 Stat. 802, forbids any public company,1 or any “officer, em- ployee, contractor, subcontractor, or agent of such company,” to retaliate against “an employee” who reports a potential fraud. 18 U.S. C. The Court recognizes that the core purpose of the Act is to “safeguard investors in public companies.” Ante, at 1. And the Court points out that Congress entitled the whistleblower provision, “Pro- tection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” Despite these clear markers of intent, the Court does not construe to apply only to public company employees who blow the whistle on fraud relating to their public company employers. The Court instead holds that the law encom- passes any household employee of the millions of people who work for a public company and any employee of the hundreds of thousands of private businesses that contract —————— 1 The majority uses the term “public company” as shorthand for 18 U.S. C. ’s reference to companies that either have “ ‘a class of securities registered under section 12 of the Securities Exchange Act of 134,’ ” or that are “ ‘required to file reports under section 15(d).’ ” Ante, at 7–8. I do the same. 2 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting to perform work for a public company. The Court’s interpretation gives a stunning reach. As interpreted today, the Sarbanes-Oxley Act au- thorizes a babysitter to bring a federal case against his employer—a parent who happens to work at the local Walmart (a public company)—if the parent stops employ- ing the babysitter after he expresses concern that the parent’s teenage son may have participated in an Internet purchase fraud. And it opens the door to a cause of action against a small business that contracts to clean the local Starbucks (a public company) if an employee is demoted after reporting that another nonpublic company client has mailed the cleaning company a fraudulent invoice. Congress was of course free to create this kind of sweep- ing regime that subjects a multitude of individuals and private businesses to litigation over fraud reports that have no connection to, or impact on, the interests of pub- lic company shareholders. But because nothing in the text, context, or purpose of the Sarbanes-Oxley Act suggests that Congress actually wanted to do so, I respectfully dissent. I Although the majority correctly starts its analysis with the statutory text, it fails to recognize that is deeply ambiguous. Three indicators of Congress’ intent clearly resolve this ambiguity in favor of a narrower inter- pretation of : the statute’s headings, the statutory context, and the absurd results that follow from the major- ity’s interpretation. A The majority begins its textual analysis by declaring that the “ ‘relevant syntactic elements’ ” of are that “ ‘ “no contractor may discharge an employee.” ’ ” Ante, at After “ ‘boiling down’ ” the text to this for- Cite as: 571 U. S. (2014) 3 SOTOMAYOR, J., dissenting mulation, the majority concludes that the “ordinary mean- ing of ‘an employee’ ” is obviously “the contractor’s own employee.” If that were what the statute said, the majority’s deci- sion would undoubtedly be correct. But (a) actu- ally provides that “[n]o [public] company or any officer, employee, contractor, subcontractor, or agent of such company may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee.” The provision thus does not speak only (or even primarily) to “contractors.” It speaks to public com- panies, and then includes a list of five types of representa- tives that companies hire to carry out their business: “officer[s], employee[s], contractor[s], subcontractor[s], [and] agent[s].” Read in full, then, the statute is ambiguous. The major- ity is correct that it may be read broadly, to create a cause of action both for employees of public companies and for employees of the enumerated public company representa- tives. But the statute can also be read more narrowly, to prohibit the public company and the listed representa- tives—all of whom act on the company’s behalf—from retaliating against just the public company’s employees. The narrower reading of the text makes particular sense when one considers the other terms in the list of com- pany representatives. The majority acknowledges that, as a matter of “gramma[r],” the scope of protected employees must be consistent with respect to all five types of com- pany representatives listed in Ante, at 15. Yet the Government and petitioners readily concede that is meant to bar two of the enumerated repre- sentatives—“officer[s]” and “employee[s]”—from retaliating against other employees of the public company, as opposed to their own babysitters and housekeepers. See Brief for United States as Amicus Curiae 1 ( “impose[s] personal liability on corporate officers and employees who 4 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting are involved in retaliation against other employees of their employer”); Brief for Petitioners 12 (similar). The De- partment of Labor’s Administrative Review Board (ARB) agrees. Spinner v. David Landau & Assoc., LLC, No. 10– 111 etc., ALJ No. 2010–SOX–02, p. 8 (May 31, 2012). And if prohibits an “officer” or “employee” of a public company from retaliating against only the public company’s own employees, then as the majority points out, the same should be true “grammatically” of contractors, subcontractors, and agents as well, ante, at 15.2 The majority responds by suggesting that the narrower interpretation could have been clearer if Congress had added the phrase “ ‘of a public company’ after ‘an em- ployee.’ ” Ante, at –10. Fair enough. But Congress could more clearly have dictated the majority’s construction of the statute, too: It could have specified that public compa- nies and their officers, employees, contractors, subcontrac- tors, and agents may not retaliate against “their own employees.” In any case, that Congress could have spoken with greater specificity in both directions only underscores that the words Congress actually chose are ambiguous. To resolve this ambiguity, we must rely on other markers of intent. B We have long held that where the text is ambiguous, a statute’s titles can offer “a useful aid in resolving [the] —————— 2 In reaching the opposite conclusion, the majority rejects the conces- sions by the Government and petitioners and gives no weight to the ARB’s interpretation. If creates a cause of action for contractor employees, the majority concludes, so too must it create a cause of action for “housekeepers” and “gardeners” against their individual employers if they happen to work for a public company. Ante, at 15. In reaching this result, however, the majority only adds to the absurdities produced by its holding. See infra, at 12–13. Cite as: 571 U. S. (2014) 5 SOTOMAYOR, J., dissenting ambiguity.” 388–38 (15). Here, two headings strongly suggest that Congress intended to apply only to employees of public companies. First, the title of section of the Sarbanes-Oxley Act that enacted —speaks clearly to the scope of employees protected by the provi- sion: “Protection for Employees of Publicly Traded Com- panies Who Provide Evidence of Fraud.” Second, the heading of (a) reinforces that the pro- vision provides “[w]histleblower protection for employees of publicly traded companies.” The majority suggests that in covering “employees of publicly traded companies,” the headings may be impre- cise. Ante, at 1. Section 1514A(a) technically applies to the employees of two types of companies: those “with a class of securities registered under section 12 of the Secu- rities Exchange Act of 134,” and those that are “required to file reports under section 15(d) of the” same Act. Both types of companies are “public” in that they are publicly owned. See ante, at 7–8. The difference is that shares of the companies are listed and traded on a national securities exchange; companies, by contrast, ex- change their securities directly with the public. The head- ings may therefore be inexact in the sense that the phrase “publicly traded” is commonly associated with companies whose securities are traded on national exchanges. Con- gress, however, had good reason to use the phrase to refer to companies as well: Section 15(d) companies are traded publicly, too. For instance, as the majority recog- nizes, ante, 0, a mutual fund is one paradigmatic example of a company. And mutual funds, like other companies, are both publicly owned and widely traded; the trades just take place typically between the fund and its investors directly. In any case, even if referring to employees of and companies together as “employees of publicly traded LAWSON v. FMR LLC SOTOMAYOR, J., dissenting companies” may be slightly imprecise, the majority’s com- peting interpretation of would stretch the stat- ute’s headings far past the point of recognition. As the majority understands the law, Congress used the term “employees of publicly traded companies” as shorthand not just for (1) employees of and companies, but also for (2) household employees of any individual who works for a or company; (3) employees of any private company that contracts with a or com- pany; (4) employees of any private company that, even if it does not contract with a public company, subcontracts with a private company that does; and (5) employees of any agent of a or company. If Congress had wanted to enact such a far-reaching provision, it would have called it something other than “[w]histleblower protection for employees of publicly traded companies.” Recognizing that Congress chose headings that are inconsistent with its interpretation, the majority notes that the Court has “placed less weight on captions.” Ante, at 1. But where the captions favor one interpretation so decisively, their significance should not be dismissed so quickly. As we have explained, headings are important “ ‘tools available for the resolution of a doubt’ about the meaning of a statute.” C 1 Statutory context confirms that Congress intended to apply only to employees of public companies. To start, the Sarbanes-Oxley Act as a whole evinces a clear focus on public companies. Congress stated in the Act’s preamble that its objective was to “protect investors by improving the accuracy and reliability of corporate disclosures made pursuant to the securities laws,” 11 Stat. 745, disclosures that public companies alone must Cite as: 571 U. S. (2014) 7 SOTOMAYOR, J., dissenting file. The Act thus created enhanced disclosure obligations for public companies, added new conflict of interest rules for their executives, increased the responsibili- ties of their audit committees, and created new rules governing insider trading by their executives and direc- tors, The common denominator among all of these provisions is their singular focus on the activities of public companies. When Congress wanted to depart from the Act’s public company focus to regulate private firms and their employ- ees, it spoke clearly. For example, of the Act ordered the Securities and Exchange Commission (SEC) to issue rules “setting forth minimum standards of professional conduct for attorneys appearing and practicing before the [SEC],” including a rule requiring outside counsel to re- port violations of the securities laws to public company officers and directors. 15 U.S. C. Similarly, Title I of the Act created the Public Company Accounting Over- sight Board (PCAOB) and vested it with the authority to register, regulate, investigate, and discipline privately held outside accounting firms and their employees. And Title V required the SEC to adopt rules governing outside securities analysts when they make public recommendations regarding securities. Section 1514A, by contrast, does not unambiguously cover the employees of private businesses that contract with public companies or the employees of individuals who work for public companies. Far from it, for the reasons noted above. Yet as the rest of the Sarbanes-Oxley Act demonstrates, if Congress had really wanted to impose liability upon broad swaths of the private sector, it would have said so more clearly. Congress’ intent to adopt the narrower understanding of is also clear when the statute is compared to the whistleblower provision that served as its model. That provision, enacted as part of the Wendell H. Ford Aviation 8 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting Investment and Reform Act for the 21st Century, 4 U.S. C. provides that “[n]o air carrier or contrac- tor or subcontractor of an air carrier” may retaliate against an employee who reports a potential airline safety violation. Section 42121 protects employees of contractors. But as the majority acknowledges, “Congress strayed” from in significant ways when it wrote Ante, First, specifically defines the term “con- tractor,” limiting the term to “a company that performs safety-sensitive functions by contract for an air carrier.” (e). That is in notable distinction to which does not define the word “contractor” as a particular type of company, instead placing the term in a list alongside individual “officer[s]” and “employee[s]” who act on a company’s behalf. Second, unlike sets off the term “contractor” in a separate clause that is subsidi- ary to the primary subject of the provision—the public company itself. Third, the title of is “[p]rotection of employees providing air safety information,” a title that comfortably encompasses the employees of contractors. Not so of ’s headings, as explained above. In short, shows that Congress had an easy-to-follow model if it wanted to protect the employees of contractors, yet chose to depart from that model in several important ways. We should not presume that choice to be accidental. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 734 (175). 2 The majority relies on statutory context as well, but its examples are unconvincing. It first argues that the types of conduct prohibited by the statute—“discharge, demo- tion, suspension, threats, harassment, [and] discrimina- tion in the terms and conditions of employment”—are “commonly actions an employer takes against its own Cite as: 571 U. S. (2014) SOTOMAYOR, J., dissenting employees.” Ante, at 10. The problem is that does not forbid retaliation by an “employer”; it forbids retalia- tion by a “[public] company or any officer, employee, contractor, subcontractor, or agent of such company.” For the reasons already discussed, Congress could have rea- sonably included the five types of representatives not in their capacity as employers, but rather as representatives of the company who are barred from retaliating against a public company’s employees on the company’s behalf. The majority next suggests that contractors are rarely “positioned to take adverse actions against employees of the public company with whom they contract.” Ante, at 10. That misconceives the nature of modern work forces, which increasingly comprise a mix of contractors and persons laboring under more typical employment relation- ships. For example, public companies often hire “inde- pendent contractors,” of whom there are more than 10 million,3 and contract workers,4 of whom there are more than 11 million.5 And they employ outside lawyers, ac- countants, and auditors as well. While not every person who works for a public company in these nonemployee capacities may be positioned to threaten or harass em- —————— 3 Dept. of Labor, Bureau of Labor Statistics, News, Contingent and Alternative Employment Arrangements, Feb. 2005, (July 27, 2005), online at http://www.bls.gov/news.release/conemp.nr0.htm (all Internet materials as visited on Feb. 28, 2014, and available in Clerk of Court’s case file). 4 The Bureau of Labor Statistics distinguishes contract workers from independent contractors, defining the former as “[w]orkers who are employed by a company that provides them or their services to others under contract and who usually work at the customer’s worksite.” 5 Penn, Staffing Firms Added Nearly 1 Million Jobs Over Four Years Since Recession, ASA Says, Bloomberg Law (Oct. 8, 2012), online at http://about.bloomberglaw.com/law-reports/staffing-firms-added-nearly- 1-million-jobs-over-four-years-since-recession-asa-says/. 10 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting ployees of the public company, many are. See, e.g., Tides v. The Boeing Co., (noting that “approximately seventy contract auditors from [an] accounting firm” possessed “managerial authority” over the 10 Boeing employees in the company’s audit division). Congress therefore had as much reason to shield a public company’s employees from retaliation by the company’s contractors as it had to bar retaliation by officers and employees. Otherwise, the statute would have had a gaping hole—a public company could evade simply by hiring a contractor to engage in the very retaliatory acts that an officer or employee could not. The majority also too quickly dismisses the prominence of “outplacement” firms, or consultants that help compa- nies determine whom to fire. See ante, at 11. Companies spent $3. billion on these services in 200 alone.7 Con- —————— The majority submits that the hole might not be so problematic because “surely” prohibits a “public company from directing someone else to engage in retaliatory conduct against the public com- pany’s employees.” Ante, at 13. It surely does, but that is the point— the whole reason (a) clearly does so is because it expressly forbids a public company to retaliate against its employees through “any officer, employee, contractor, subcontractor, or agent.” The prohi- bition on retaliation through a contractor would be far less certain (hence the hole) if Congress had merely forbidden a public company to retaliate through its “officers and employees.” Moreover, while the majority concedes that, under the narrower reading of Con- gress’ inclusion of the term “contractor” imposes secondary liability in the event a public company is judgment proof, ante, at 13, the majority fails to recognize that Congress’ use of the term also imposes primary liability against contractors who threaten public company employees without direction from the company. Thus, for example, FMR’s inter- pretation of would prevent an outside accountant from threat- ening or harassing a public company employee who discovers that the accountant is defrauding the public company and who seeks to blow the whistle on that fraud. 7 Rogers, Do Firing Consultants Really Exist, Slate, Jan. 7, 2010, www.slate.com / articles / news_and_politics / explainer/2010/01/getting_ Cite as: 571 U. S. (2014) 11 SOTOMAYOR, J., dissenting gress surely could have meant to protect public company employees against retaliation at the hands of such firms, especially in the event that the public company itself goes bankrupt (as companies engaged in fraud often do). See, e.g., Kalkunte v. DVI Financial Servs., Inc., No. 05–13 etc., ALJ No. 2004–SOX–05 (Feb. 27, 200) (former em- ployee of bankrupt public company permitted to bring action against corporate restructuring firm that terminated her employment).8 The majority points next to the remedies afforded by (c), which authorizes “all relief necessary to make the employee whole,” in addition to “reinstatement,” “back pay,” and “special damages including litigation costs, expert witness fees, and reasonable attorney fees.” The majority posits that Congress could not have intended to bar contractors from retaliating against public company employees because one of the remedies (reinstatement) would likely be outside of the contractor’s power. Ante, at 13. But there is no requirement that a statute must make every type of remedy available against every type of de- fendant. A contractor can compensate a whistleblower with backpay, costs, and fees, and that is more than —————— the_ax_from_george_clooney.html. 8 The majority suggests that an outplacement firm would likely be acting as an “agent” for the public company, such that Congress’ additional inclusion of the word “contractor” would be superfluous under the narrower reading of Ante, at 11, n. The two words are not legally synonymous, however. An outplacement firm and public company might, for example, enter into a contract with a provi- sion expressly disclaiming an agency relationship. Moreover, Congress’ use of the term “contractor” would in all events have an independent and important effect: If Congress had not included the term, no one could be held liable if a contractor were to threaten or harass a public company employee without the company’s direction. While the major- ity may speculate that such occurrences are rare, ib it is hardly unthinkable. See n. 12 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting enough for the statute’s remedial scheme to make sense. The majority’s reference to the affirmative defense for public company “employers” who lack “knowledge” that an employee has participated in a proceeding relating to the fraud report, ante, at 12 (citing fails for a similar reason. There is no rule that Congress may only provide an affirmative defense if it is available to every conceivable defendant. D 1 Finally, the majority’s reading runs afoul of the precept that “interpretations of a statute which would produce absurd results are to be avoided if alternative interpreta- tions consistent with the legislative purpose are avail- able.” 458 U.S. 54, 575 (182). The majority’s interpretation transforms into a sweeping source of litigation that Congress could not have intended. As construed by the majority, the Sarbanes-Oxley Act regulates employment relation- ships between individuals and their nannies, housekeep- ers, and caretakers, subjecting individual employers to litigation if their employees claim to have been harassed for providing information regarding any of a host of of- fenses. If, for example, a nanny is discharged after ex- pressing a concern to his employer that the employer’s teenage son may be participating in some Internet fraud, the nanny can bring a suit. The employer may prevail, of course, if the nanny cannot prove he was fired “because of” the fraud report. But there is little reason to think Congress intended to sweep such disputes into federal court. Nor is it plausible that Congress intended the Act to impose costly litigation burdens on any private business that happens to have an ongoing contract with a public company. As the majority acknowledges, the purpose of Cite as: 571 U. S. (2014) 13 SOTOMAYOR, J., dissenting the Act was to protect public company investors and the financial markets. Yet the majority might well embroil federal agencies and courts in the resolution of mundane labor disputes that have nothing to do with such concerns. For instance, a construction worker could file a suit against her employer (that has a long-term contract with a public company) if the worker is demoted after reporting that another client has mailed the company a false invoice. The majority’s interpretation also produces truly odd distinctions. Under the rule it announces, a babysitter can bring a retaliation suit against his employer if his employer is a checkout clerk for the local PetSmart (a public company), but not if she is a checkout clerk for the local Petco (a private company). Likewise, the day laborer who works for a construction business can avail himself of if her company has been hired to help remodel the local Dick’s Sporting Goods store (a public company), but not if it is remodeling a nearby Sports Authority (a private company). In light of the reasonable alternative reading of there is no reason to accept these absurd results. The majority begs to differ, arguing that “[t]here is scant evi- dence” that lawsuits have been brought by the multitude of newly covered employees “ ‘who have no exposure to investor-related activities and thus could not possibly —————— Recognizing that the majority’s reading would lead to a “notably expansive scope untethered to the purpose of the statute,” the District Court in this case sought to impose an extratextual limiting principle under which an employee who reports fraud is entitled to protection only if her report “relat[es] to fraud against shareholders.” 724 F. Supp. 2d 141, 10 The District Court acknowledged, however, that “the language of the statute itself does not plainly provide such a limiting principle,” and the majority does not attempt to revive that limitation here. 14 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting assist in detecting investor fraud.’ ” Ante, 2. Until today, however, no court has deemed applicable to household employees of individuals who work for public companies; even the Department of Labor’s ARB rejected that view. Spinner, ALJ No. 2010–SOX–02, at 8. And as the District Court noted, prior to the ARB’s 2012 decision in Spinner, the ARB “ha[d] yet to provide definitive clarification” on the question whether extends to the employees of a public company’s private contractors. So the fact that individuals and private businesses have yet to suffer burdensome litigation offers little assurance that the ma- jority’s capacious reading of will produce no un- toward effects. Finally, it must be noted that protects the re- porting of a variety of frauds—not only securities fraud, but also mail, wire, and bank fraud. By interpreting a statute that already protects an expansive class of conduct also to cover a large class of employees, today’s opinion threatens to subject private companies to a costly new front of employment litigation. Congress almost certainly did not intend the statute to have that reach. 2 The majority argues that the broader reading of is necessary because a small number of the millions of individuals and private companies affected by its ruling have a special role to play in preventing public company fraud. If does not bar retaliation against employ- ees of contractors, the majority cautions, then law firms and accounting firms will be free to retaliate against their employees when those employees report fraud on the part of their public company clients. It is undisputed that Congress was aware of the role that outside accountants and lawyers played in the Enron debacle and the importance of encouraging them to play Cite as: 571 U. S. (2014) 15 SOTOMAYOR, J., dissenting an active part in preventing future scandals. But it hardly follows that Congress must have meant to apply to every employee of every public company contractor, sub- contractor, officer, and employee as a result. It is far more likely that Congress saw the unique ethical duties and professional concerns implicated by outside lawyers and accountants as reason to vest regulatory authority in the hands of experts with the power to sanction wrongdoers. Specifically, rather than imposing ’s generic approach on outside accounting firms, Congress estab- lished the PCAOB, which regulates “every detail” of an accounting firm’s practice, including “supervision of au- dit work,” “internal inspection procedures,” “professional ethics rules,” and “ ‘such other requirements as the Board may prescribe.’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 51 U. S. (slip op., at 3–4). Importantly, the PCAOB is empowered to levy “severe sanctions in its disciplinary proceedings, up to and including the permanent revocation of a firm’s regis- tration and money penalties of $15 million.” at (slip op., at 4) (citing 15 U.S. C. Such sanc- tions could well provide a more powerful incentive to prevent an accounting firm from retaliating against its employees than The Sarbanes-Oxley Act confers similar regulatory authority upon the SEC with respect to attorneys. The Act requires the SEC to establish rules of professional conduct for attorneys, (codified at 15 U.S. C. and confers broad power on the SEC to punish attorneys for “improper professional conduct,” which would include, for example, a law firm partner’s decision to retaliate against an associate who reports fraud. §02 (codified at 15 U.S. C. Indeed, the Act grants the SEC the power to censure culpable attorneys and to deny “perma- nently” to any such attorney the “privilege of appearing of practicing before” the SEC “in any way.” §02. 1 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting Congress thus evidently made the judgment that deci- sions concerning how best to punish law firms and ac- counting firms ought to be handled not by the Department of Labor, but by the SEC and the PCAOB. Such judgment should not be disturbed under usual circumstances, much less at the cost to congressional intent produced by today’s ruling. The majority does offer cogent policy arguments for why Congress might have been wiser to include certain types of contractors within noting for example that a law firm or accounting firm might be able to retali- ate against its employees for making reports required under the Sarbanes-Oxley Act. Ante, at 1. But as the majority recognizes, Congress has since remedied that precise concern, enacting a comprehensive whistleblower incentive and protection program that unequivocally “prohibit[s] any employer”—public or private—“from re- taliating against ‘a whistleblower’ for providing infor- mation to the SEC, participating in an SEC proceeding, or making disclosures required or protected under Sarbanes- Oxley and certain other securities laws.” Ante, (citing 15 U.S. C. §§78u–(a)(), (b)(1), (h)). The majority thus acknowledges that, moving forward, retaliation claims like the petitioners’ may “procee[d] under [§78u-],” ante, n. 17. In other words, to the extent the major- ity worries about a “hole” in FMR’s interpretation, ante, at 14, Congress has already addressed it.10 —————— 10 The majority also contends that its reading is necessary to avoid “insulating the entire mutual fund industry from” Ante, 0. But that argument is misguided for a reason similar to the majority’s concern about lawyers and accountants. As this Court has observed, Congress responded to the “ ‘potential for abuse inherent in the struc- ture of investment companies,’ ” Daily Income Fund, Inc. v. Fox, 44 U.S. 523, 53 by enacting the Investment Company Act of 140 and the Investment Advisers Act of 140. 15 U.S. C. et seq.; et seq. The Advisers Act in particular grants the SEC broad regulatory authority to regulate mutual fund investment advisers. Cite as: 571 U. S. (2014) 17 SOTOMAYOR, J., dissenting II Because the statute is ambiguous, and because the majority’s broad interpretation has also been adopted by the ARB, there remains the question whether the ARB’s decision in Spinner, ALJ No. 2010–SOX–02, is entitled to deference under Chevron U. S. A. Inc. v. Natural Re- sources Defense Council, Inc., 47 U.S. 83711 Under United 22– 227 (2001), an agency may claim Chevron deference “when it appears [1] that Congress delegated authority to the agency generally to make rules carrying the force of law, and [2] that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Nei- ther requirement is met here. First, the agency interpretation for which petitioners claim deference is the position announced by the ARB, the board to which the Secretary of Labor has delegated au- thority “in review or on appeal” in connection with proceedings. According to petitioners, the ARB’s rulings are entitled to deference because the “Secretary is responsible for enforcing Section 1514A both through investigation and through formal adjudication.” Brief for Petitioners 1. That is right as far as it goes, but even if the Secretary has the power to in —————— 1. The Act also authorizes fines and imprisonment of up to five years for violations of SEC rules. The SEC thus has broad discretion to punish retaliatory actions taken by mutual fund advisers against their employees. And to the extent these provisions may have been insuffi- cient to protect mutual fund adviser employees, §78u–’s extensive whistleblower incentive and protection program now unambiguously covers such employees. 11 Although it claims not to reach the issue, ante, at n. the major- ity implicitly declines to defer to a portion of the ARB’s ruling as well, rejecting the ARB’s ruling that does not apply to the household employees of public company officers and employees, ante, at 15, and n. 11. 18 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting vestigate and adjudicate claims, Congress did not delegate authority to the Secretary to “make rules carry- ing the force of law,” 533 U.S., 2–227. Con- gress instead delegated that power to the SEC: Section 3(a) of the Sarbanes-Oxley Act, codified at 15 U.S. C. provides that the SEC “shall promulgate such rules and regulations, as may be necessary or appropriate in the public interest or for the protection of investors, and in furtherance of this Act.” So if any agency has the au- thority to resolve ambiguities in with the force of law, it is the SEC, not the Department of Labor. See The SEC, however, has not issued a regulation applying whistleblower protection to employees of public company contractors. And while the majority notes that the SEC may share the (incorrect) view that the Department of Labor has inter- pretive authority regarding ante, at n. the majority cites nothing to suggest that one agency may transfer authority unambiguously delegated to it by Con- gress to a different agency simply by signing onto an amicus brief. That Congress did not intend for the Secretary to re- solve ambiguities in the law is confirmed by ’s mechanism for judicial review. The statute does not merely permit courts to review the Secretary’s final adjudicatory rulings under the Administrative Procedure Act’s defer- ential standard. It instead allows a claimant to bring an action in a federal district court, and allows district courts to adjudicate such actions de novo, in any case where the Secretary has not issued a final decision within 180 days. That is a conspicuously short amount of time in light of the three-tiered process of agency review of claims. See ante, at 5–. As a result, even if Congress had not delegated to the SEC the authority to resolve ambigui- ties in the muscular scheme of judicial review Cite as: 571 U. S. (2014) 1 SOTOMAYOR, J., dissenting suggests that Congress would have wanted federal courts, and not the Secretary of Labor, to have that power. See 533 U.S., 32 (declining to defer to Customs Service classifications where, among other things, the statute authorized “independent review of Customs classi- fications by the [Court of International Trade]”). As to the second requirement, even if Congress had delegated authority to the Secretary to make “rules carrying the force of law,” the “agency interpretation claiming deference” in this case was not “promulgated in the exercise of that authority.” 2–227. That is because the Secretary has explicitly vested any policymak- ing authority he may have with respect to in the Occupational Safety and Health Administration (OSHA) instead of the ARB. See 7 Fed. Reg. 5008 (2002). In fact, the Secretary has expressly withdrawn from the ARB any power to deviate from the rules OSHA issues on the Department of Labor’s behalf. (“The [ARB] shall not have jurisdiction to pass on the validity of any portion of the Code of Federal Regulations that has been duly promulgated by the Department of Labor and shall observe the provisions thereof, where pertinent, in its decisions”). OSHA has promulgated regulations supporting the majority’s reading of See –(g) (2013). The Secretary, however, has expressly disclaimed any claim of deference to them. See Brief for United States as Amicus Curiae 33, n. 8. As a result, the ARB’s understanding of ’s coverage in Spinner was not an “exercise of [the Secretary’s] authority” to make rules carrying the force of law, 533 U.S., 2–227, but rather the ARB’s necessary compliance with a regulation that no one claims is deserving of deference in the first place. See Spinner, ALJ No. 2010–SOX–02, at 10 (recog- nizing that “the ARB is bound by the [Department of Labor] regulations”). 20 LAWSON v. FMR LLC SOTOMAYOR, J., dissenting In the absence of Chevron deference, the ARB’s decision in Spinner may claim only “respect according to its per- suasiveness” under Skidmore v. Swift & Co., 323 U.S. 134 (144). See 533 U.S., 21. But the ARB’s decision is unpersuasive, for the many reasons already discussed. * * * The Court’s interpretation of undeniably serves a laudatory purpose. By covering employees of every of- ficer, employee, and contractor of every public company, the majority’s interpretation extends ’s protections to the outside lawyers and accountants who could have helped prevent the Enron fraud. But that is not the statute Congress wrote. Congress envisioned a system in which public company employees would be covered by and in which outside law- yers, investment advisers, and accountants would be regulated by the SEC and PCAOB. Congress did not envision a system in which employees of other private businesses—such as cleaning and construction company workers who have little interaction with investor-related activities and who are thus ill suited to assist in detecting fraud against shareholders—would fall within Nor, needless to say, did it envision applying to the household employees of millions of individuals who happen to work for public companies—housekeepers, gardeners, and babysitters who are also poorly positioned to prevent fraud against public company investors. And to the extent may have been underinclusive as first drafted, Congress has shown itself capable of filling in any gaps. See, e.g., Dodd-Frank Wall Street Reform and Con- sumer Protection Act, 2A, 1852 (extending to credit rating agencies and public company subsidiaries); at 1841–1848 (codifying additional whistleblower incentive and protection program Cite as: 571 U. S. (2014) 21 SOTOMAYOR, J., dissenting at 15 U.S. C. §78u–). The Court’s decision upsets the balance struck by Con- gress. Fortunately, just as Congress has added further protections to the system it originally designed when necessary, so too may Congress now respond to limit the far-reaching implications of the Court’s interpretation.12 But because that interpretation relies on a debatable view of ’s text, is inconsistent with the statute’s titles and its context, and leads to absurd results that Congress did not intend, I respectfully dissent. —————— 12 Congress could, for example, limit to contractor employees in only those professions that can assist in detecting fraud on public company shareholders, or it could restrict the fraud reports that trigger whistleblower protection to those that implicate the interests of public company investors, see n.

Justice Breyer

majority

First Options of Chicago, Inc. v. Kaplan

1995-05-22

https://www.courtlistener.com/opinion/117937/first-options-of-chicago-inc-v-kaplan/

https://www.courtlistener.com/api/rest/v3/clusters/117937/

1994-061

In this case we consider two questions about how courts should review certain matters under the federal Arbitration Act, 9 U.S. C.§ 1 et seq. (1988 ed. and Supp. V): (1) how a district court should review an arbitrator's decision that the parties agreed to arbitrate a dispute, and (2) how a court of appeals should review a district court's decision confirming, or refusing to vacate, an arbitration award. I The case concerns several related disputes between, on one side, First Options of Chicago, Inc., a firm that clears stock trades on the Philadelphia Stock Exchange, and, on the other side, three parties: Manuel Kaplan; his wife, Carol Kaplan; and his wholly owned investment company, MK Investments, Inc. (MKI), whose trading account First Options cleared. The disputes center on a "workout" agreement, embodied in four separate documents, which governs the "working out" of debts to First Options that MKI and the Kaplans incurred as a result of the October 1987 stock market crash. In 1989, after entering into the agreement, MKI lost an additional $1.5 million. First Options then took control of, and liquidated, certain MKI assets; demanded immediate payment of the entire MKI debt; and insisted that the Kaplans personally pay any deficiency. When its demands went unsatisfied, First Options sought arbitration by a panel of the Philadelphia Stock Exchange. *941 MKI, having signed the only workout document (out of four) that contained an arbitration clause, accepted arbitration. The Kaplans, however, who had not personally signed that document, denied that their disagreement with First Options was arbitrable and filed written objections to that effect with the arbitration panel. The arbitrators decided that they had the power to rule on the merits of the parties' dispute, and did so in favor of First Options. The Kaplans then asked the Federal District Court to vacate the arbitration award, see 9 U.S. C. § 10 (1988 ed., Supp. V), and First Options requested its confirmation, see § 9. The court confirmed the award. Nonetheless, on appeal the Court of Appeals for the Third Circuit agreed with the Kaplans that their dispute was not arbitrable; and it reversed the District Court's confirmation of the award against them. 19 F.3d 1503 (1994). We granted certiorari to consider two questions regarding the standards that the Court of Appeals used to review the determination that the Kaplans' dispute with First Options was arbitrable. 513 U.S. 1040 (1994). First, the Court of Appeals said that courts "should independently decide whether an arbitration panel has jurisdiction over the merits of any particular dispute." 19 F.3d, at 1509 (emphasis added). First Options asked us to decide whether this is so (i. e., whether courts, in "reviewing the arbitrators' decision on arbitrability," should "apply a de novo standard of review or the more deferential standard applied to arbitrators' decisions on the merits") when the objecting party "submitted the issue to the arbitrators for decision." Pet. for Cert. i. Second, the Court of Appeals stated that it would review a district court's denial of a motion to vacate a commercial arbitration award (and the correlative grant of a motion to confirm it) "de novo." 19 F. 3d, at 1509. First Options argues that the Court of Appeals instead should have applied an "abuse of discretion" standard. See Robbins v. Day, 954 F.2d 679, 681-682 (CA11 1992). *942 II The first question—the standard of review applied to an arbitrator's decision about arbitrability—is a narrow one. To understand just how narrow, consider three types of disagreement present in this case. First, the Kaplans and First Options disagree about whether the Kaplans are personally liable for MKI's debt to First Options. That disagreement makes up the merits of the dispute. Second, they disagree about whether they agreed to arbitrate the merits. That disagreement is about the arbitrability of the dispute. Third, they disagree about who should have the primary power to decide the second matter. Does that power belong primarily to the arbitrators (because the court reviews their arbitrability decision deferentially) or to the court (because the court makes up its mind about arbitrability independently)? We consider here only this third question. Although the question is a narrow one, it has a certain practical importance. That is because a party who has not agreed to arbitrate will normally have a right to a court's decision about the merits of its dispute (say, as here, its obligation under a contract). But, where the party has agreed to arbitrate, he or she, in effect, has relinquished much of that right's practical value. The party still can ask a court to review the arbitrator's decision, but the court will set that decision aside only in very unusual circumstances. See, e. g., 9 U.S. C. § 10 (award procured by corruption, fraud, or undue means; arbitrator exceeded his powers); Wilko v. Swan, 346 U.S. 427, 436-437 (1953) (parties bound by arbitrator's decision not in "manifest disregard" of the law), overruled on other grounds, Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989). Hence, who—court or arbitrator—has the primary authority to decide whether a party has agreed to arbitrate can make a critical difference to a party resisting arbitration. *943 We believe the answer to the "who" question (i. e., the standard-of-review question) is fairly simple. Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, see, e. g., Mastrobuono v. Shearson Lehman Hutton, Inc., ante, at 57; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985), so the question "who has the primary power to decide arbitrability" turns upon what the parties agreed about that matter. Did the parties agree to submit the arbitrability question itself to arbitration? If so, then the court's standard for reviewing the arbitrator's decision about that matter should not differ from the standard courts apply when they review any other matter that parties have agreed to arbitrate. See AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986) (parties may agree to arbitrate arbitrability); Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 583, n. 7 (1960) (same). That is to say, the court should give considerable leeway to the arbitrator, setting aside his or her decision only in certain narrow circumstances. See, e. g., 9 U.S. C. § 10. If, on the other hand, the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently. These two answers flow inexorably from the fact that arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration. See, e. g., AT&T Technologies, supra, at 649; Mastrobuono, ante, at 57-58, and n. 9; Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 271 (1995); Mitsubishi Motors Corp., supra, at 625-626. We agree with First Options, therefore, that a court must defer to an arbitrator's arbitrability decision when the parties submitted that matter to arbitration. Nevertheless, *944 that conclusion does not help First Options win this case. That is because a fair and complete answer to the standardof-review question requires a word about how a court should decide whether the parties have agreed to submit the arbitrability issue to arbitration. And, that word makes clear that the Kaplans did not agree to arbitrate arbitrability here. When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally (though with a qualification we discuss below) should apply ordinary state-law principles that govern the formation of contracts. See, e. g., Mastrobuono, ante, at 62-63, and n. 9; Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 475-476 (1989); Perry v. Thomas, 482 U.S. 483, 492-493, n. 9 (1987); G. Wilner, 1 Domke on Commercial Arbitration § 4:04, p. 15 (rev. ed. Supp. 1993) (hereinafter Domke). The relevant state law here, for example, would require the court to see whether the parties objectively revealed an intent to submit the arbitrability issue to arbitration. See, e. g., Estate of Jesmer v. Rohlev, 241 Ill. App. 3d 798, 803, 609 N.E.2d 816, 820 (1993) (law of the State whose law governs the workout agreement); Burkett v. Allstate Ins. Co., 368 Pa. 600, 608, 534 A.2d 819, 823-824 (1987) (law of the State where the Kaplans objected to arbitrability). See generally Mitsubishi Motors, supra, at 626. This Court, however, has (as we just said) added an important qualification, applicable when courts decide whether a party has agreed that arbitrators should decide arbitrability: Courts should not assume that the parties agreed to arbitrate arbitrability unless there is "clea[r] and unmistakabl[e]" evidence that they did so. AT&T Technologies, supra, at 649; see Warrior & Gulf, supra, at 583, n. 7. In this manner the law treats silence or ambiguity about the question "who (primarily) should decide arbitrability" differently from the way it treats silence or ambiguity about the question "whether a particular merits-related dispute is arbitrable because *945 it is within the scope of a valid arbitration agreement"—for in respect to this latter question the law reverses the presumption. See Mitsubishi Motors, supra, at 626 ("`[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration' ") (quoting Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)); Warrior & Gulf, supra, at 582-583. But, this difference in treatment is understandable. The latter question arises when the parties have a contract that provides for arbitration of some issues. In such circumstances, the parties likely gave at least some thought to the scope of arbitration. And, given the law's permissive policies in respect to arbitration, see, e. g., Mitsubishi Motors, supra, at 626, one can understand why the law would insist upon clarity before concluding that the parties did not want to arbitrate a related matter. See Domke § 12.02, p. 156 (issues will be deemed arbitrable unless "it is clear that the arbitration clause has not included" them). On the other hand, the former question—the "who (primarily) should decide arbitrability" question—is rather arcane. A party often might not focus upon that question or upon the significance of having arbitrators decide the scope of their own powers. Cf. Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1508-1509 (1959), cited in Warrior & Gulf, 363 U. S., at 583, n. 7. And, given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration, one can understand why courts might hesitate to interpret silence or ambiguity on the "who should decide arbitrability" point as giving the arbitrators that power, for doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide. Ibid. See generally Dean Witter Reynolds Inc. v. Byrd , 470 U.S. 213, 219-220 (1985) (Arbitration Act's basic purpose is to "ensure judicial enforcement of privately made agreements to arbitrate"). *946 On the record before us, First Options cannot show that the Kaplans clearly agreed to have the arbitrators decide (i. e., to arbitrate) the question of arbitrability. First Options relies on the Kaplans' filing with the arbitrators a written memorandum objecting to the arbitrators' jurisdiction. But merely arguing the arbitrability issue to an arbitrator does not indicate a clear willingness to arbitrate that issue, i. e., a willingness to be effectively bound by the arbitrator's decision on that point. To the contrary, insofar as the Kaplans were forcefully objecting to the arbitrators deciding their dispute with First Options, one naturally would think that they did not want the arbitrators to have binding authority over them. This conclusion draws added support from (1) an obvious explanation for the Kaplans' presence before the arbitrators (i. e., that MKI, Mr. Kaplan's wholly owned firm, was arbitrating workout agreement matters); and (2) Third Circuit law that suggested that the Kaplans might argue arbitrability to the arbitrators without losing their right to independent court review, Teamsters v. Western Pennsylvania Motor Carriers Assn., 574 F.2d 783, 786— 788 (1978); see 19 F.3d, at 1512, n. 13. First Options makes several counter arguments: (1) that the Kaplans had other ways to get an independent court decision on the question of arbitrability without arguing the issue to the arbitrators (e. g., by trying to enjoin the arbitration, or by refusing to participate in the arbitration and then defending against a court petition First Options would have brought to compel arbitration, see 9 U.S. C. § 4); (2) that permitting parties to argue arbitrability to an arbitrator without being bound by the result would cause delay and waste in the resolution of disputes; and (3) that the Arbitration Act therefore requires a presumption that the Kaplans agreed to be bound by the arbitrators' decision, not the contrary. The first of these points, however, while true, simply does not say anything about whether the Kaplans intended to be bound by the arbitrators' decision. The second point, too, is inconclusive, *947 for factual circumstances vary too greatly to permit a confident conclusion about whether allowing the arbitrator to make an initial (but independently reviewable) arbitrability determination would, in general, slow down the dispute resolution process. And, the third point is legally erroneous, for there is no strong arbitration-related policy favoring First Options in respect to its particular argument here. After all, the basic objective in this area is not to resolve disputes in the quickest manner possible, no matter what the parties' wishes, Dean Witter Reynolds , supra, at 219-220, but to ensure that commercial arbitration agreements, like other contracts, "`are enforced according to their terms,' " Mastrobuono, ante, at 54 (quoting Volt Information Sciences, 489 U. S., at 479), and according to the intentions of the parties, Mitsubishi Motors, 473 U. S., at 626. See Allied-Bruce, 513 U. S., at 271. That policy favors the Kaplans, not First Options. We conclude that, because the Kaplans did not clearly agree to submit the question of arbitrability to arbitration, the Court of Appeals was correct in finding that the arbitrability of the Kaplan/First Options dispute was subject to independent review by the courts. III We turn next to the standard a court of appeals should apply when reviewing a district court decision that refuses to vacate, see 9 U.S. C. § 10 (1988 ed., Supp. V), or confirms, see § 9, an arbitration award. Although the Third Circuit sometimes used the words "de novo " to describe this standard, its opinion makes clear that it simply believes (as do all Circuits but one) that there is no special standard governing its review of a district court's decision in these circumstances. Rather, review of, for example, a district court decision confirming an arbitration award on the ground that the parties agreed to submit their dispute to arbitration should proceed like review of any other district court decision finding *948 an agreement between parties, e. g., accepting findings of fact that are not "clearly erroneous" but deciding questions of law de novo. See 19 F.3d, at 1509. One Court of Appeals, the Eleventh Circuit, has said something different. Because of federal policy favoring arbitration, that court says that it applies a specially lenient "abuse of discretion" standard (even as to questions of law) when reviewing district court decisions that confirm (but not those that set aside) arbitration awards. See, e. g., Robbins v. Day, 954 F. 2d, at 681-682. First Options asks us to hold that the Eleventh Circuit's view is correct. We believe, however, that the majority of Circuits is right in saying that courts of appeals should apply ordinary, not special, standards when reviewing district court decisions upholding arbitration awards. For one thing, it is undesirable to make the law more complicated by proliferating review standards without good reasons. More importantly, the reviewing attitude that a court of appeals takes toward a district court decision should depend upon "the respective institutional advantages of trial and appellate courts," not upon what standard of review will more likely produce a particular substantive result. Salve Regina College v. Russell, 499 U.S. 225, 231-233 (1991). The law, for example, tells all courts (trial and appellate) to give administrative agencies a degree of legal leeway when they review certain interpretations of the law that those agencies have made. See, e. g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-844 (1984). But no one, to our knowledge, has suggested that this policy of giving leeway to agencies means that a court of appeals should give extra leeway to a district court decision that upholds an agency. Similarly, courts grant arbitrators considerable leeway when reviewing most arbitration decisions; but that fact does not mean that appellate courts should give extra leeway to district courts that uphold arbitrators. First Options argues that the Arbitration Act is special because the Act, in one *949 section, allows courts of appeals to conduct interlocutory review of certain antiarbitration district court rulings (e. g., orders enjoining arbitrations), but not those upholding arbitration (e. g., orders refusing to enjoin arbitrations). 9 U.S. C. § 16 (1988 ed., Supp. V). But that portion of the Act governs the timing of review; it is therefore too weak a support for the distinct claim that the court of appeals should use a different standard when reviewing certain district court decisions. The Act says nothing about standards of review. We conclude that the Court of Appeals used the proper standards for reviewing the District Court's arbitrability determinations. IV Finally, First Options argues that, even if we rule against it on the standard-of-review questions, we nonetheless should hold that the Court of Appeals erred in its ultimate conclusion that the merits of the Kaplan/First Options dispute were not arbitrable. This factbound issue is beyond the scope of the questions we agreed to review. The judgment of the Court of Appeals is affirmed. It is so ordered.

In this case we consider two questions about how courts should review certain matters under the federal Arbitration Act, 9 U.S. 1 et seq. (1988 ed. and Supp. V): (1) how a district court should review an arbitrator's decision that the parties agreed to arbitrate a dispute, and (2) how a court of appeals should review a district court's decision confirming, or refusing to vacate, an arbitration award. I The case concerns several related disputes between, on one side, First Options of Chicago, Inc., a firm that clears stock trades on the Philadelphia Stock Exchange, and, on the other side, three parties: Manuel Kaplan; his wife, Carol Kaplan; and his wholly owned investment company, MK Investments, Inc. (MKI), whose trading account First Options cleared. The disputes center on a "workout" agreement, embodied in four separate documents, which governs the "working out" of debts to First Options that MKI and the Kaplans incurred as a result of the October stock market crash. In 1989, after entering into the agreement, MKI lost an additional $1.5 million. First Options then took control of, and liquidated, certain MKI assets; demanded immediate payment of the entire MKI debt; and insisted that the Kaplans personally pay any deficiency. When its demands went unsatisfied, First Options sought arbitration by a panel of the Philadelphia Stock Exchange. *941 MKI, having signed the only workout document (out of four) that contained an arbitration clause, accepted arbitration. The Kaplans, however, who had not personally signed that document, denied that their disagreement with First Options was arbitrable and filed written objections to that effect with the arbitration panel. The arbitrators decided that they had the power to rule on the merits of the parties' dispute, and did so in favor of First Options. The Kaplans then asked the Federal District Court to vacate the arbitration award, see 9 U.S. C. 10 (1988 ed., Supp. V), and First Options requested its confirmation, see 9. The court confirmed the award. Nonetheless, on appeal the Court of Appeals for the Third Circuit agreed with the Kaplans that their dispute was not arbitrable; and it reversed the District Court's confirmation of the award against them. We granted certiorari to consider two questions regarding the standards that the Court of Appeals used to review the determination that the Kaplans' dispute with First Options was arbitrable. First, the Court of Appeals said that courts "should independently decide whether an arbitration panel has jurisdiction over the merits of any particular dispute." First Options asked us to decide whether this is so (i. e., whether courts, in "reviewing the arbitrators' decision on arbitrability," should "apply a de novo standard of review or the more deferential standard applied to arbitrators' decisions on the merits") when the objecting party "submitted the issue to the arbitrators for decision." Pet. for Cert. i. Second, the Court of Appeals stated that it would review a district court's denial of a motion to vacate a commercial arbitration award (and the correlative grant of a motion to confirm it) "de novo." First Options argues that the Court of Appeals instead should have applied an "abuse of discretion" standard. See *942 II The first question—the standard of review applied to an arbitrator's decision about arbitrability—is a narrow one. To understand just how narrow, consider three types of disagreement present in this case. First, the Kaplans and First Options disagree about whether the Kaplans are personally liable for MKI's debt to First Options. That disagreement makes up the merits of the dispute. Second, they disagree about whether they agreed to arbitrate the merits. That disagreement is about the arbitrability of the dispute. Third, they disagree about who should have the primary power to decide the second matter. Does that power belong primarily to the arbitrators (because the court reviews their arbitrability decision deferentially) or to the court (because the court makes up its mind about arbitrability independently)? We consider here only this third question. Although the question is a narrow one, it has a certain practical importance. That is because a party who has not agreed to arbitrate will normally have a right to a court's decision about the merits of its dispute (say, as here, its obligation under a contract). But, where the party has agreed to arbitrate, he or she, in effect, has relinquished much of that right's practical value. The party still can ask a court to review the arbitrator's decision, but the court will set that decision aside only in very unusual circumstances. See, e. g., 9 U.S. C. 10 (award procured by corruption, fraud, or undue means; arbitrator exceeded his powers); overruled on other grounds, Rodriguez de Hence, who—court or arbitrator—has the primary authority to decide whether a party has agreed to arbitrate can make a critical difference to a party resisting arbitration. *943 We believe the answer to the "who" question (i. e., the standard-of-review question) is fairly simple. Just as the arbitrability of the merits of a dispute depends upon whether the parties agreed to arbitrate that dispute, see, e. g., Mastrobuono v. Shearson Lehman Hutton, Inc., ante, at 57; Mitsubishi so the question "who has the primary power to decide arbitrability" turns upon what the parties agreed about that matter. Did the parties agree to submit the arbitrability question itself to arbitration? If so, then the court's standard for reviewing the arbitrator's decision about that matter should not differ from the standard courts apply when they review any other matter that parties have agreed to arbitrate. See AT&T ; That is to say, the court should give considerable leeway to the arbitrator, setting aside his or her decision only in certain narrow circumstances. See, e. g., 9 U.S. C. 10. If, on the other hand, the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently. These two answers flow inexorably from the fact that arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbitration. See, e. g., AT&T at ; Mastrobuono, ante, at 57-58, and n. 9; Terminix ; Mitsubishi at 625-. We agree with First Options, therefore, that a court must defer to an arbitrator's arbitrability decision when the parties submitted that matter to arbitration. Nevertheless, *944 that conclusion does not help First Options win this case. That is because a fair and complete answer to the standardof-review question requires a word about how a court should decide whether the parties have agreed to submit the arbitrability issue to arbitration. And, that word makes clear that the Kaplans did not agree to arbitrate arbitrability here. When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally (though with a qualification we discuss below) should apply ordinary state-law principles that govern the formation of contracts. See, e. g., Mastrobuono, ante, at 62-63, and n. 9; Volt Information ; ; G. Wilner, 1 Domke on Commercial Arbitration 4:04, p. 15 (hereinafter Domke). The relevant state law here, for example, would require the court to see whether the parties objectively revealed an intent to submit the arbitrability issue to arbitration. See, e. g., Estate of ; See generally Mitsubishi at This Court, however, has (as we just said) added an important qualification, applicable when courts decide whether a party has agreed that arbitrators should decide arbitrability: Courts should not assume that the parties agreed to arbitrate arbitrability unless there is "clea[r] and unmistakabl[e]" evidence that they did so. AT&T at ; see Warrior & at In this manner the law treats silence or ambiguity about the question "who (primarily) should decide arbitrability" differently from the way it treats silence or ambiguity about the question "whether a particular merits-related dispute is arbitrable because *945 it is within the scope of a valid arbitration agreement"—for in respect to this latter question the law reverses the presumption. See Mitsubishi at ); Warrior & But, this difference in treatment is understandable. The latter question arises when the parties have a contract that provides for arbitration of some issues. In such circumstances, the parties likely gave at least some thought to the scope of arbitration. And, given the law's permissive policies in respect to arbitration, see, e. g., Mitsubishi at one can understand why the law would insist upon clarity before concluding that the parties did not want to arbitrate a related matter. See Domke 12.02, p. 156 (issues will be deemed arbitrable unless "it is clear that the arbitration clause has not included" them). On the other hand, the former question—the "who (primarily) should decide arbitrability" question—is rather arcane. A party often might not focus upon that question or upon the significance of having arbitrators decide the scope of their own powers. Cf. Cox, Reflections Upon Labor Arbitration, cited in Warrior & 363 U. S., at And, given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration, one can understand why courts might hesitate to interpret silence or ambiguity on the "who should decide arbitrability" point as giving the arbitrators that power, for doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide. See generally Dean Witter Reynolds *946 On the record before us, First Options cannot show that the Kaplans clearly agreed to have the arbitrators decide (i. e., to arbitrate) the question of arbitrability. First Options relies on the Kaplans' filing with the arbitrators a written memorandum objecting to the arbitrators' jurisdiction. But merely arguing the arbitrability issue to an arbitrator does not indicate a clear willingness to arbitrate that issue, i. e., a willingness to be effectively bound by the arbitrator's decision on that point. To the contrary, insofar as the Kaplans were forcefully objecting to the arbitrators deciding their dispute with First Options, one naturally would think that they did not want the arbitrators to have binding authority over them. This conclusion draws added support from (1) an obvious explanation for the Kaplans' presence before the arbitrators (i. e., that MKI, Mr. Kaplan's wholly owned firm, was arbitrating workout agreement matters); and (2) Third Circuit law that suggested that the Kaplans might argue arbitrability to the arbitrators without losing their right to independent court review, ; see n. 13. First Options makes several counter arguments: (1) that the Kaplans had other ways to get an independent court decision on the question of arbitrability without arguing the issue to the arbitrators (e. g., by trying to enjoin the arbitration, or by refusing to participate in the arbitration and then defending against a court petition First Options would have brought to compel arbitration, see 9 U.S. C. 4); (2) that permitting parties to argue arbitrability to an arbitrator without being bound by the result would cause delay and waste in the resolution of disputes; and (3) that the Arbitration Act therefore requires a presumption that the Kaplans agreed to be bound by the arbitrators' decision, not the contrary. The first of these points, however, while true, simply does not say anything about whether the Kaplans intended to be bound by the arbitrators' decision. The second point, too, is inconclusive, *947 for factual circumstances vary too greatly to permit a confident conclusion about whether allowing the arbitrator to make an initial (but independently reviewable) arbitrability determination would, in general, slow down the dispute resolution process. And, the third point is legally erroneous, for there is no strong arbitration-related policy favoring First Options in respect to its particular argument here. After all, the basic objective in this area is not to resolve disputes in the quickest manner possible, no matter what the parties' wishes, Dean Witter Reynolds at but to ensure that commercial arbitration agreements, like other contracts, "`are enforced according to their terms,' " Mastrobuono, ante, at 54 (quoting Volt Information ), and according to the intentions of the parties, Mitsubishi 473 U. S., at See 513 U. S., at That policy favors the Kaplans, not First Options. We conclude that, because the Kaplans did not clearly agree to submit the question of arbitrability to arbitration, the Court of Appeals was correct in finding that the arbitrability of the Kaplan/First Options dispute was subject to independent review by the courts. III We turn next to the standard a court of appeals should apply when reviewing a district court decision that refuses to vacate, see 9 U.S. C. 10 (1988 ed., Supp. V), or confirms, see 9, an arbitration award. Although the Third Circuit sometimes used the words "de novo " to describe this standard, its opinion makes clear that it simply believes (as do all Circuits but one) that there is no special standard governing its review of a district court's decision in these circumstances. Rather, review of, for example, a district court decision confirming an arbitration award on the ground that the parties agreed to submit their dispute to arbitration should proceed like review of any other district court decision finding *948 an agreement between parties, e. g., accepting findings of fact that are not "clearly erroneous" but deciding questions of law de novo. See One Court of Appeals, the Eleventh Circuit, has said something different. Because of federal policy favoring arbitration, that court says that it applies a specially lenient "abuse of discretion" standard (even as to questions of law) when reviewing district court decisions that confirm (but not those that set aside) arbitration awards. See, e. g., 954 F. 2d, at First Options asks us to hold that the Eleventh Circuit's view is correct. We believe, however, that the majority of Circuits is right in saying that courts of appeals should apply ordinary, not special, standards when reviewing district court decisions upholding arbitration awards. For one thing, it is undesirable to make the law more complicated by proliferating review standards without good reasons. More importantly, the reviewing attitude that a court of appeals takes toward a district court decision should depend upon "the respective institutional advantages of trial and appellate courts," not upon what standard of review will more likely produce a particular substantive result. Salve Regina The law, for example, tells all courts (trial and appellate) to give administrative agencies a degree of legal leeway when they review certain interpretations of the law that those agencies have made. See, e. g., Chevron U. S. A. But no one, to our knowledge, has suggested that this policy of giving leeway to agencies means that a court of appeals should give extra leeway to a district court decision that upholds an agency. Similarly, courts grant arbitrators considerable leeway when reviewing most arbitration decisions; but that fact does not mean that appellate courts should give extra leeway to district courts that uphold arbitrators. First Options argues that the Arbitration Act is special because the Act, in one *949 section, allows courts of appeals to conduct interlocutory review of certain antiarbitration district court rulings (e. g., orders enjoining arbitrations), but not those upholding arbitration (e. g., orders refusing to enjoin arbitrations). 9 U.S. C. 16 (1988 ed., Supp. V). But that portion of the Act governs the timing of review; it is therefore too weak a support for the distinct claim that the court of appeals should use a different standard when reviewing certain district court decisions. The Act says nothing about standards of review. We conclude that the Court of Appeals used the proper standards for reviewing the District Court's arbitrability determinations. IV Finally, First Options argues that, even if we rule against it on the standard-of-review questions, we nonetheless should hold that the Court of Appeals erred in its ultimate conclusion that the merits of the Kaplan/First Options dispute were not arbitrable. This factbound issue is beyond the scope of the questions we agreed to review. The judgment of the Court of Appeals is affirmed. It is so ordered.

Justice Souter

majority

Miller-El v. Dretke

2005-06-13

https://www.courtlistener.com/opinion/799976/miller-el-v-dretke/

https://www.courtlistener.com/api/rest/v3/clusters/799976/

2004-061

Two years ago, we ordered that a certificate of appealability, under 28 U.S. C. § 2253(c), be issued to habeas petitioner Miller-El, affording review of the District Court's rejection of the claim that prosecutors in his capital murder trial made peremptory strikes of potential jurors based on race. Today we find Miller-El entitled to prevail on that claim and order relief under § 2254. I In the course of robbing a Holiday Inn in Dallas, Texas in late 1985, Miller-El and his accomplices bound and gagged *236 two hotel employees, whom Miller-El then shot, killing one and severely injuring the other. During jury selection in Miller-El's trial for capital murder, prosecutors used peremptory strikes against 10 qualified black venire members. Miller-El objected that the strikes were based on race and could not be presumed legitimate, given a history of excluding black members from criminal juries by the Dallas County District Attorney's Office. The trial court received evidence of the practice alleged but found no "systematic exclusion of blacks as a matter of policy" by that office, App. 882-883, and therefore no entitlement to relief under Swain v. Alabama, 380 U.S. 202 (1965), the case then defining and marking the limits of relief from racially biased jury selection. The court denied Miller-El's request to pick a new jury, and the trial ended with his death sentence for capital murder. While an appeal was pending, this Court decided Batson v. Kentucky, 476 U.S. 79 (1986), which replaced Swain's threshold requirement to prove systemic discrimination under a Fourteenth Amendment jury claim, with the rule that discrimination by the prosecutor in selecting the defendant's jury sufficed to establish the constitutional violation. The Texas Court of Criminal Appeals then remanded the matter to the trial court to determine whether Miller-El could show that prosecutors in his case peremptorily struck prospective black jurors because of race. Miller-El v. State, 748 S.W.2d 459 (1988) (en banc). The trial court found no such demonstration. After reviewing the voir dire record of the explanations given for some of the challenged strikes, and after hearing one of the prosecutors, Paul Macaluso, give his justification for those previously unexplained, the trial court accepted the stated race-neutral reasons for the strikes, which the judge called "completely credible [and] sufficient" as the grounds for a finding of "no purposeful discrimination." Findings of Fact and Conclusions of Law Upon Remand from the Court of Criminal Appeals in State v. Miller-El, No. 8668-NL (5th Crim. Dist. Ct., Dallas County, Tex., Jan. 13, 1989), pp. 5-6, *237 App. 928-929. The Court of Criminal Appeals affirmed, stating it found "ample support" in the voir dire record for the race-neutral explanations offered by prosecutors for the peremptory strikes. Miller-El v. State, No. 69,677 (Sept. 16, 1992) (per curiam), p. 2, App. 931. Miller-El then sought habeas relief under 28 U.S. C. § 2254, again pressing his Batson claim, among others not now before us. The District Court denied relief, Miller-El v. Johnson, Civil No. 3:96-CV-1992-H (ND Tex., June 5, 2000), App. 987, and the Court of Appeals for the Fifth Circuit precluded appeal by denying a certificate of appealability, Miller-El v. Johnson, 261 F.3d 445 (2001). We granted certiorari to consider whether Miller-El was entitled to review on the Batson claim, Miller-El v. Cockrell, 534 U.S. 1122 (2002), and reversed the Court of Appeals. After examining the record of Miller-El's extensive evidence of purposeful discrimination by the Dallas County District Attorney's Office before and during his trial, we found an appeal was in order, since the merits of the Batson claim were, at the least, debatable by jurists of reason. Miller-El v. Cockrell, 537 U.S. 322 (2003). After granting a certificate of appealability, the Fifth Circuit rejected Miller-El's Batson claim on the merits. 361 F.3d 849 (2004). We again granted certiorari, 542 U.S. 936 (2004), and again we reverse. II A "It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy." Strauder v. West Virginia, 100 U.S. 303, 309 (1880); see also Batson v. Kentucky, supra, at 86. Defendants are harmed, of course, when racial discrimination in jury selection compromises the right of trial by impartial jury, Strauder v. West Virginia, supra, at 308, but racial minorities are harmed more generally, for prosecutors *238 drawing racial lines in picking juries establish "state-sponsored group stereotypes rooted in, and reflective of, historical prejudice," J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 128 (1994). Nor is the harm confined to minorities. When the government's choice of jurors is tainted with racial bias, that "overt wrong . . . casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial. . . ." Powers v. Ohio, 499 U.S. 400, 412 (1991). That is, the very integrity of the courts is jeopardized when a prosecutor's discrimination "invites cynicism respecting the jury's neutrality," ibid., and undermines public confidence in adjudication, Georgia v. McCollum, 505 U.S. 42, 49 (1992); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628 (1991); Batson v. Kentucky, supra, at 87. So, "[f]or more than a century, this Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause." Georgia v. McCollum, supra, at 44; see Strauder v. West Virginia, supra, at 308, 310; Norris v. Alabama, 294 U.S. 587, 596 (1935); Swain v. Alabama, supra, at 223-224; Batson v. Kentucky, supra, at 84; Powers v. Ohio, supra, at 404. The rub has been the practical difficulty of ferreting out discrimination in selections discretionary by nature, and choices subject to myriad legitimate influences, whatever the race of the individuals on the panel from which jurors are selected. In Swain v. Alabama, we tackled the problem of "the quantum of proof necessary" to show purposeful discrimination, 380 U. S., at 205, with an eye to preserving each side's historical prerogative to make a peremptory strike or challenge, the very nature of which is traditionally "without a reason stated," id., at 220. The Swain Court tried to relate peremptory challenge to equal protection by presuming the legitimacy of prosecutors' strikes except in the face of a longstanding pattern of discrimination: when "in case after case, whatever the circumstances," no blacks served on juries, *239 then "giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purposes of the peremptory challenge [were] being perverted." Id., at 223-224. Swain's demand to make out a continuity of discrimination over time, however, turned out to be difficult to the point of unworkable, and in Batson v. Kentucky, we recognized that this requirement to show an extended pattern imposed a "crippling burden of proof" that left prosecutors' use of peremptories "largely immune from constitutional scrutiny." 476 U. S., at 92-93. By Batson's day, the law implementing equal protection elsewhere had evolved into less discouraging standards for assessing a claim of purposeful discrimination, id., at 93-95 (citing, e. g., Washington v. Davis, 426 U.S. 229 (1976), and Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977)), and we accordingly held that a defendant could make out a prima facie case of discriminatory jury selection by "the totality of the relevant facts" about a prosecutor's conduct during the defendant's own trial. Batson v. Kentucky, 476 U. S., at 94, 96. "Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging . . . jurors" within an arguably targeted class. Id., at 97. Although there may be "any number of bases on which a prosecutor reasonably [might] believe that it is desirable to strike a juror who is not excusable for cause . . . , the prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challeng[e]." Id., at 98, n. 20 (internal quotation marks omitted). "The trial court then will have the duty to determine if the defendant has established purposeful discrimination." Id., at 98. Although the move from Swain to Batson left a defendant free to challenge the prosecution without having to cast Swain's wide net, the net was not entirely consigned to history, for Batson's individualized focus came with a weakness *240 of its own owing to its very emphasis on the particular reasons a prosecutor might give. If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to much more than Swain. Some stated reasons are false, and although some false reasons are shown up within the four corners of a given case, sometimes a court may not be sure unless it looks beyond the case at hand. Hence Batson's explanation that a defendant may rely on "all relevant circumstances" to raise an inference of purposeful discrimination. 476 U. S., at 96-97. B This case comes to us on review of a denial of habeas relief sought under 28 U.S. C. § 2254, following the Texas trial court's prior determination of fact that the State's race-neutral explanations were true, see Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam); Batson v. Kentucky, supra, at 98, n. 21. Under the Antiterrorism and Effective Death Penalty Act of 1996, Miller-El may obtain relief only by showing the Texas conclusion to be "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S. C. § 2254(d)(2). Thus we presume the Texas court's factual findings to be sound unless Miller-El rebuts the "presumption of correctness by clear and convincing evidence." § 2254(e)(1). The standard is demanding but not insatiable; as we said the last time this case was here, "[d]eference does not by definition preclude relief." Miller-El v. Cockrell, 537 U. S., at 340. III A The numbers describing the prosecution's use of peremptories are remarkable. Out of 20 black members of the 108-person venire panel for Miller-El's trial, only 1 served. Although 9 were excused for cause or by agreement, 10 were *241 peremptorily struck by the prosecution. Id., at 331. "The prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members . . . . Happenstance is unlikely to produce this disparity." Id., at 342. More powerful than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve. If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step. Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (in employment discrimination cases, "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive"). While we did not develop a comparative juror analysis last time, we did note that the prosecution's reasons for exercising peremptory strikes against some black panel members appeared equally on point as to some white jurors who served. Miller-El v. Cockrell, supra, at 343.[1] The details of two panel member comparisons bear this out.[2] *242 The prosecution used its second peremptory strike to exclude Billy Jean Fields, a black man who expressed unwavering support for the death penalty. On the questionnaire filled out by all panel members before individual examination on the stand, Fields said that he believed in capital punishment, Joint Lodging 14, and during questioning he disclosed his belief that the State acts on God's behalf when it imposes the death penalty. "Therefore, if the State exacts death, then that's what it should be." App. 174. He testified that he had no religious or philosophical reservations about the death penalty and that the death penalty deterred crime. Id., at 174-175. He twice averred, without apparent hesitation, that he could sit on Miller-El's jury and make a decision to impose this penalty. Id., at 176-177. Although at one point in the questioning, Fields indicated that the possibility of rehabilitation might be relevant to the likelihood that a defendant would commit future acts of violence, id., at 183, he responded to ensuing questions by saying that although he believed anyone could be rehabilitated, this belief would not stand in the way of a decision to impose the death penalty: "[B]ased on what you [the prosecutor] said as far as the crime goes, there are only two things that could be rendered, death or life in prison. If for some reason the testimony didn't warrant death, then life imprisonment *243 would give an individual an opportunity to rehabilitate. But, you know, you said that the jurors didn't have the opportunity to make a personal decision in the matter with reference to what I thought or felt, but it was just based on the questions according to the way the law has been handed down." Id., at 185 (alteration omitted). Fields also noted on his questionnaire that his brother had a criminal history. Joint Lodging 13. During questioning, the prosecution went into this, too: "Q Could you tell me a little bit about that? "A He was arrested and convicted on [a] number of occasions for possession of a controlled substance. "Q Was that here in Dallas? "A Yes. "Q Was he involved in any trials or anything like that? "A I suppose of sorts. I don't really know too much about it. "Q Was he ever convicted? "A Yeah, he served time. "Q Do you feel that that would in any way interfere with your service on this jury at all? "A No." App. 190 (alteration omitted). Fields was struck peremptorily by the prosecution, with prosecutor James Nelson offering a race-neutral reason: "[W]e . . . have concern with reference to some of his statements as to the death penalty in that he said that he could only give death if he thought a person could not be rehabilitated and he later made the comment that any person could be rehabilitated if they find God or are introduced to God and the fact that we have a concern that his religious feelings may affect his jury service in this case." Id., at 197 (alteration omitted). *244 Thus, Nelson simply mischaracterized Fields's testimony. He represented that Fields said he would not vote for death if rehabilitation was possible, whereas Fields unequivocally stated that he could impose the death penalty regardless of the possibility of rehabilitation. Perhaps Nelson misunderstood, but unless he had an ulterior reason for keeping Fields off the jury we think he would have proceeded differently. In light of Fields's outspoken support for the death penalty, we expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike. If, indeed, Fields's thoughts on rehabilitation did make the prosecutor uneasy, he should have worried about a number of white panel members he accepted with no evident reservations. Sandra Hearn said that she believed in the death penalty "if a criminal cannot be rehabilitated and continues to commit the same type of crime." Id., at 429.[3] Hearn went so far as to express doubt that at the penalty phase of a capital case she could conclude that a convicted murderer "would probably commit some criminal acts of violence in the future." Id., at 440. "People change," she said, making it hard to assess the risk of someone's future dangerousness. "[T]he evidence would have to be awful strong." Ibid. But the prosecution did not respond to Hearn the way it did to Fields, and without delving into her views about rehabilitation with any further question, it raised no objection to her serving on the jury. White panelist Mary Witt said she would take the possibility of rehabilitation into account in deciding at the penalty phase of the trial about a defendant's probability of future dangerousness, 6 Record of Voir Dire 2433 (hereinafter Record), but the prosecutors asked her no further question about her views on reformation, and they *245 accepted her as a juror. Id., at 2464-2465.[4] Latino venireman Fernando Gutierrez, who served on the jury, said that he would consider the death penalty for someone who could not be rehabilitated, App. 777, but the prosecutors did not question him further about this view. In sum, nonblack jurors whose remarks on rehabilitation could well have signaled a limit on their willingness to impose a death sentence were not questioned further and drew no objection, but the prosecution expressed apprehension about a black juror's belief in the possibility of reformation even though he repeatedly stated his approval of the death penalty and testified that he could impose it according to state legal standards even when the alternative sentence of life imprisonment would give a defendant (like everyone else in the world) the opportunity to reform.[5] The unlikelihood that his position on rehabilitation had anything to do with the peremptory strike of Fields is underscored by the prosecution's response after Miller-El's lawyer pointed out that the prosecutor had misrepresented Fields's responses on the subject. A moment earlier the prosecutor *246 had finished his misdescription of Fields's views on potential rehabilitation with the words, "Those are our reasons for exercising our . . . strike at this time." Id., at 197. When defense counsel called him on his misstatement, he neither defended what he said nor withdrew the strike. Id., at 198. Instead, he suddenly came up with Fields's brother's prior conviction as another reason for the strike. Id., at 199. It would be difficult to credit the State's new explanation, which reeks of afterthought. While the Court of Appeals tried to bolster it with the observation that no seated juror was in Fields's position with respect to his brother, 361 F. 3d, at 859-860, the court's readiness to accept the State's substitute reason ignores not only its pretextual timing but the other reasons rendering it implausible. Fields's testimony indicated he was not close to his brother, App. 190 ("I don't really know too much about it"), and the prosecution asked nothing further about the influence his brother's history might have had on Fields, as it probably would have done if the family history had actually mattered. See, e. g., Ex parte Travis, 776 So. 2d 874, 881 (Ala. 2000) ("[T]he State's failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination"). There is no good reason to doubt that the State's afterthought about Fields's brother was anything but makeweight. The Court of Appeals's judgment on the Fields strike is unsupportable for the same reason the State's first explanation is itself unsupportable. The Appeals Court's description of Fields's voir dire testimony mentioned only his statements that everyone could be rehabilitated, failing to note that Fields affirmed that he could give the death penalty if the law and evidence called for it, regardless of the possibility of divine grace. The Court of Appeals made no mention of the fact that the prosecution mischaracterized Fields as *247 saying he could not give death if rehabilitation were possible. 361 F. 3d, at 856. In sum, when we look for nonblack jurors similarly situated to Fields, we find strong similarities as well as some differences.[6] But the differences seem far from significant, particularly when we read Fields's voir dire testimony in its entirety. Upon that reading, Fields should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecutors' explanations for the strike cannot reasonably be accepted. See Miller-El v. Cockrell, 537 U. S., at 339 (the credibility of reasons given can be measured by "how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy"). The prosecution's proffered reasons for striking Joe Warren, another black venireman, are comparably unlikely. Warren gave this answer when he was asked what the death penalty accomplished: "I don't know. It's really hard to say because I know sometimes you feel that it might help to deter crime and then you feel that the person is not really suffering. You're taking the suffering away from him. So it's like I said, sometimes you have mixed feelings about whether or not this is punishment or, you know, you're *248 relieving personal punishment." App. 205; 3 Record 1532. The prosecution said nothing about these remarks when it struck Warren from the panel, but prosecutor Paul Macaluso referred to this answer as the first of his reasons when he testified at the later Batson hearing: "I thought [Warren's statements on voir dire] were inconsistent responses. At one point he says, you know, on a case-by-case basis and at another point he said, well, I think — I got the impression, at least, that he suggested that the death penalty was an easy way out, that they should be made to suffer more." App. 909. On the face of it, the explanation is reasonable from the State's point of view, but its plausibility is severely undercut by the prosecution's failure to object to other panel members who expressed views much like Warren's. Kevin Duke, who served on the jury, said, "sometimes death would be better to me than — being in prison would be like dying every day and, if you were in prison for life with no hope of parole, I['d] just as soon have it over with than be in prison for the rest of your life." Id., at 372. Troy Woods, the one black panelist to serve as juror, said that capital punishment "is too easy. I think that's a quick relief. . . . I feel like [hard labor is] more of a punishment than putting them to sleep." Id., at 408. Sandra Jenkins, whom the State accepted (but who was then struck by the defense) testified that she thought "a harsher treatment is life imprisonment with no parole." Id., at 542. Leta Girard, accepted by the State (but also struck by the defense) gave her opinion that "living sometimes is a worse — is worse to me than dying would be." Id., at 624. The fact that Macaluso's reason also applied to these other panel members, most of them white, none of them struck, is evidence of pretext. *249 The suggestion of pretext is not, moreover, mitigated much by Macaluso's explanation that Warren was struck when the State had 10 peremptory challenges left and could afford to be liberal in using them. Id., at 908. If that were the explanation for striking Warren and later accepting panel members who thought death would be too easy, the prosecutors should have struck Sandra Jenkins, whom they examined and accepted before Warren. Indeed, the disparate treatment is the more remarkable for the fact that the prosecutors repeatedly questioned Warren on his capacity and willingness to impose a sentence of death and elicited statements of his ability to do so if the evidence supported that result and the answer to each special question was yes, id., at 202.2, 202.3, 205, 207, whereas the record before us discloses no attempt to determine whether Jenkins would be able to vote for death in spite of her view that it was easy on the convict, id., at 541-546. Yet the prosecutors accepted the white panel member Jenkins and struck the black venireman Warren. Macaluso's explanation that the prosecutors grew more sparing with peremptory challenges as the jury selection wore on does, however, weaken any suggestion that the State's acceptance of Woods, the one black juror, shows that race was not in play. Woods was the eighth juror, qualified in the fifth week of jury selection. Joint Lodging 125. When the State accepted him, 11 of its 15 peremptory strikes were gone, 7 of them used to strike black panel members. Id., at 137. The juror questionnaires show that at least three members of the venire panel yet to be questioned on the stand were opposed to capital punishment, Janice Mackey, id., at 79; Paul Bailey, id., at 63; and Anna Keaton, id., at 55.[7] With at least three remaining panel members *250 highly undesirable to the State, the prosecutors had to exercise prudent restraint in using strikes. This late-stage decision to accept a black panel member willing to impose a death sentence does not, therefore, neutralize the early-stage decision to challenge a comparable venireman, Warren. In fact, if the prosecutors were going to accept any black juror to obscure the otherwise consistent pattern of opposition to seating one, the time to do so was getting late.[8] The Court of Appeals pretermitted these difficulties by stating that the prosecution's reason for striking Warren was a more general ambivalence about the penalty and his ability to impose it, 361 F. 3d, at 856-857 (and the dissent presses that explanation here, post, at 286-289). But this rationalization was erroneous as a matter of fact and as a matter of law. As to fact, Macaluso said nothing about any general ambivalence. He simply alluded to the possibility that Warren might think the death penalty too easy on some defendants, saying nothing about Warren's ability to impose the penalty when it appeared to be warranted.[9] On the contrary, though *251 Warren had indeed questioned the extent to which the death penalty served a purpose in society, App. 205, he explained his position in response to the very next question: it was not any qualm about imposing what society generally deems its harshest punishment, but his concern that the death penalty might not be severe enough, ibid. When Warren was asked whether he could impose the death penalty he said he thought he could; when told that answering yes to the special issue questions would be tantamount to voting for death he said he could give yes answers if the evidence supported them. Id., at 207.[10] As for law, the rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and *252 it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. 476 U. S., at 96-97; Miller-El v. Cockrell, 537 U. S., at 339. It is true that peremptories are often the subjects of instinct, Batson v. Kentucky, supra, at 106 (Marshall, J., concurring), and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false. The Court of Appeals's and the dissent's substitution of a reason for eliminating Warren does nothing to satisfy the prosecutors' burden of stating a racially neutral explanation for their own actions. The whole of the voir dire testimony subject to consideration casts the prosecution's reasons for striking Warren in an implausible light. Comparing his strike with the treatment of panel members who expressed similar views supports a conclusion that race was significant in determining who was challenged and who was not.[11] *253 B The case for discrimination goes beyond these comparisons to include broader patterns of practice during the jury selection. The prosecution's shuffling of the venire panel, its enquiry into views on the death penalty, its questioning about minimum acceptable sentences: all indicate decisions probably based on race. Finally, the appearance of discrimination is confirmed by widely known evidence of the general policy of the Dallas County District Attorney's Office to exclude black venire members from juries at the time Miller-El's jury was selected. The first clue to the prosecutors' intentions, distinct from the peremptory challenges themselves, is their resort during voir dire to a procedure known in Texas as the jury shuffle. In the State's criminal practice, either side may literally reshuffle the cards bearing panel members' names, thus rearranging the order in which members of a venire panel are seated and reached for questioning.[12] Once the order is established, the panel members seated at the back are likely to escape voir dire altogether, for those not questioned by the end of the week are dismissed. As we previously explained, *254 "the prosecution's decision to seek a jury shuffle when a predominant number of African-Americans were seated in the front of the panel, along with its decision to delay a formal objection to the defense's shuffle until after the new racial composition was revealed, raise a suspicion that the State sought to exclude African-Americans from the jury. Our concerns are amplified by the fact that the state court also had before it, and apparently ignored, testimony demonstrating that the Dallas County District Attorney's Office had, by its own admission, used this process to manipulate the racial composition of the jury in the past." Miller-El v. Cockrell, 537 U. S., at 346. In this case, the prosecution and then the defense shuffled the cards at the beginning of the first week of voir dire; the record does not reflect the changes in order. App. 113-114. At the beginning of the second week, when a number of black members were seated at the front of the panel, the prosecution shuffled.[13] 2 Record 836-837. At the beginning of the third week, the first four panel members were black. The prosecution shuffled, and these black panel members ended up at the back. Then the defense shuffled, and the black panel members again appeared at the front. The prosecution requested another shuffle, but the trial court refused. App. 124-132. Finally, the defense shuffled at the beginning of the fourth and fifth weeks of voir dire; the record does not reflect the panel's racial composition before or after those shuffles. Id., at 621-622; 9 Record 3585-3586. The State notes in its brief that there might be racially neutral reasons for shuffling the jury, Brief for Respondent 36-37, and we suppose there might be. But no racially neutral reason has ever been offered in this case, and nothing *255 stops the suspicion of discriminatory intent from rising to an inference.[14] The next body of evidence that the State was trying to avoid black jurors is the contrasting voir dire questions posed respectively to black and nonblack panel members, on two different subjects. First, there were the prosecutors' statements preceding questions about a potential juror's thoughts on capital punishment. Some of these prefatory statements were cast in general terms, but some followed the so-called graphic script, describing the method of execution in rhetorical and clinical detail. It is intended, Miller-El contends, to prompt some expression of hesitation to consider the death penalty and thus to elicit plausibly neutral grounds for a peremptory strike of a potential juror subjected to it, if not a strike for cause. If the graphic script is given to a higher proportion of blacks than whites, this is evidence that prosecutors more often wanted blacks off the jury, absent some neutral and extenuating explanation. As we pointed out last time, for 94% of white venire panel members, prosecutors gave a bland description of the death penalty before asking about the individual's feelings on the subject. Miller-El v. Cockrell, supra, at 332. The abstract account went something like this: "I feel like it [is] only fair that we tell you our position in this case. The State of Texas . . . is actively seeking the death penalty in this case for Thomas Joe Miller-El. We anticipate that we will be able to present to a jury the quantity and type of evidence necessary to convict him of capital murder and the quantity and type of evidence *256 sufficient to allow a jury to answer these three questions over here in the affirmative. A yes answer to each of those questions results in an automatic death penalty from Judge McDowell." App. 564-565. Only 6% of white venire panelists, but 53% of those who were black, heard a different description of the death penalty before being asked their feelings about it. This is an example of the graphic script: "I feel like you have a right to know right up front what our position is. Mr. Kinne, Mr. Macaluso and myself, representing the people of Dallas County and the state of Texas, are actively seeking the death penalty for Thomas Joe Miller-El. . . . "We do that with the anticipation that, when the death penalty is assessed, at some point Mr. Thomas Joe Miller-El — the man sitting right down there — will be taken to Huntsville and will be put on death row and at some point taken to the death house and placed on a gurney and injected with a lethal substance until he is dead as a result of the proceedings that we have in this court on this case. So that's basically our position going into this thing." Id., at 572-573 (alteration omitted). The State concedes that this disparate questioning did occur but argues that use of the graphic script turned not on a panelist's race but on expressed ambivalence about the death penalty in the preliminary questionnaire.[15] Prosecutors *257 were trying, the argument goes, to weed out noncommittal or uncertain jurors, not black jurors. And while some white venire members expressed opposition to the death penalty on their questionnaires, they were not read the graphic script because their feelings were already clear. The State says that giving the graphic script to these panel members would only have antagonized them. Brief for Respondent 27-32. This argument, however, first advanced in dissent when the case was last here, Miller-El v. Cockrell, 537 U. S., at 364-368 (opinion of THOMAS, J.), and later adopted by the State and the Court of Appeals, simply does not fit the facts. Looking at the answers on the questionnaires, and at voir dire testimony expressly discussing answers on the questionnaires,[16]*258 we find that black venire members were more likely than nonblacks to receive the graphic script regardless of their expressions of certainty or ambivalence about the death penalty, and the State's chosen explanation for the graphic script fails in the cases of four out of the eight black panel members who received it.[17] Two of them, Janice Mackey and Anna Keaton, clearly stated opposition to the death penalty but they received the graphic script,[18] while the black panel members Wayman Kennedy and Jeannette Butler were unambiguously in favor[19] but got the graphic *259 anyway.[20] The State's explanation does even worse in the instances of the five nonblacks who received the graphic script, missing the mark four times out of five: Vivian Sztybel and Filemon Zablan received it,[21] although each was unambiguously in favor of the death penalty,[22] while Dominick Desinise and Clara Evans unambiguously opposed it[23] but were given the graphic version.[24] The State's purported rationale fails again if we look only to the treatment of ambivalent panel members, ambivalent black individuals having been more likely to receive the graphic description than ambivalent nonblacks. Three nonblack members of the venire indicated ambivalence to the death penalty on their questionnaires;[25] only one of them, *260 Fernando Gutierrez, received the graphic script.[26] But of the four black panel members who expressed ambivalence,[27] all got the graphic treatment.[28] The State's attempt at a race-neutral rationalization thus simply fails to explain what the prosecutors did. But if we posit instead that the prosecutors' first object was to use the graphic script to make a case for excluding black panel members opposed to or ambivalent about the death penalty, there is a much tighter fit of fact and explanation.[29] Of the 10 nonblacks whose questionnaires expressed ambivalence or opposition,[30] only 30% received the graphic treatment.[31] But of the seven blacks who expressed ambivalence or opposition,[32] 86% heard the graphic script.[33] As between the State's ambivalence explanation and Miller-El's racial one, race is much the better, and the reasonable inference is that race was the major consideration when the prosecution chose to follow the graphic script. *261 The same is true for another kind of disparate questioning, which might fairly be called trickery. The prosecutors asked members of the panel how low a sentence they would consider imposing for murder. Most potential jurors were first told that Texas law provided for a minimum term of five years, but some members of the panel were not, and if a panel member then insisted on a minimum above five years, the prosecutor would suppress his normal preference for tough jurors and claim cause to strike. Two Terms ago, we described how this disparate questioning was correlated with race: "Ninety-four percent of whites were informed of the statutory minimum sentence, compared [with] only twelve and a half percent of African-Americans. No explanation is proffered for the statistical disparity. Pierre v. Louisiana, 306 U.S. 354, 361-362 (1939) (`"The fact that the testimony . . . was not challenged by evidence appropriately direct, cannot be brushed aside." Had there been evidence obtainable to contradict and disprove the testimony offered by petitioner, it cannot be assumed that the State would have refrained from introducing it' (quoting Norris v. Alabama, 294 U.S. 587, 594-595 (1935))). Indeed, while petitioner's appeal was pending before the Texas Court of Criminal Appeals, that court found a Batson violation where this precise line of disparate questioning on mandatory minimums was employed by one of the same prosecutors who tried the instant case. Chambers v. State, 784 S.W.2d 29, 31 (Tex. Crim. App. 1989)." Miller-El v. Cockrell, 537 U. S., at 345. The State concedes that the manipulative minimum punishment questioning was used to create cause to strike, Brief for Respondent 33, and n. 26, but now it offers the extenuation that prosecutors omitted the 5-year information not on the basis of race, but on stated opposition to the death penalty, *262 or ambivalence about it, on the questionnaires and in the voir dire testimony. Id., at 34-35. On the State's identification of black panel members opposed or ambivalent, all were asked the trick question.[34] But the State's rationale flatly fails to explain why most white panel members who expressed similar opposition or ambivalence were not subjected to it. It is entirely true, as the State argues, id., at 35, that prosecutors struck a number of nonblack members of the panel (as well as black members) for cause or by agreement before they reached the point in the standard voir dire sequence to question about minimum punishment. But this is no answer; 8 of the 11 nonblack individuals who voiced opposition or ambivalence were asked about the acceptable minimum only after being told what state law required.[35]*263 Hence, only 27% of nonblacks questioned on the subject who expressed these views were subjected to the trick question, as against 100% of black members. Once again, the implication of race in the prosecutors' choice of questioning cannot be explained away.[36] There is a final body of evidence that confirms this conclusion. We know that for decades leading up to the time this case was tried prosecutors in the Dallas County office had followed a specific policy of systematically excluding blacks from juries, as we explained the last time the case was here. *264 "Although most of the witnesses [presented at the Swain hearing in 1986] denied the existence of a systematic policy to exclude African-Americans, others disagreed. A Dallas County district judge testified that, when he had served in the District Attorney's Office from the late-1950's to early-1960's, his superior warned him that he would be fired if he permitted any African-Americans to serve on a jury. Similarly, another Dallas County district judge and former assistant district attorney from 1976 to 1978 testified that he believed the office had a systematic policy of excluding African-Americans from juries. "Of more importance, the defense presented evidence that the District Attorney's Office had adopted a formal policy to exclude minorities from jury service. . . . A manual entitled `Jury Selection in a Criminal Case' [sometimes known as the Sparling Manual] was distributed to prosecutors. It contained an article authored by a former prosecutor (and later a judge) under the direction of his superiors in the District Attorney's Office, outlining the reasoning for excluding minorities from jury service. Although the manual was written in 1968, it remained in circulation until 1976, if not later, and was available at least to one of the prosecutors in Miller-El's trial." Miller-El v. Cockrell, 537 U. S., at 334-335.[37] Prosecutors here "marked the race of each prospective juror on their juror cards." Id., at 347.[38] *265 The Court of Appeals concluded that Miller-El failed to show by clear and convincing evidence that the state court's finding of no discrimination was wrong, whether his evidence was viewed collectively or separately. 361 F. 3d, at 862. We find this conclusion as unsupportable as the "dismissive and strained interpretation" of his evidence that we disapproved when we decided Miller-El was entitled to a certificate of appealability. See Miller-El v. Cockrell, supra, at 344. It is true, of course, that at some points the significance of Miller-El's evidence is open to judgment calls, but when this evidence on the issues raised is viewed cumulatively its direction is too powerful to conclude anything but discrimination. In the course of drawing a jury to try a black defendant, 10 of the 11 qualified black venire panel members were peremptorily struck. At least two of them, Fields and Warren, were ostensibly acceptable to prosecutors seeking a death verdict, and Fields was ideal. The prosecutors' chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny. The strikes that drew these incredible explanations occurred in a selection process replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race. At least two of the jury shuffles conducted by the State make no sense except as efforts to delay consideration of black jury panelists to the end of the week, when they might not even be reached. The State has in fact never offered any other explanation. Nor has the State denied that disparate lines of questioning were pursued: 53% of black panelists but only 3% of nonblacks were questioned with a graphic script meant to induce qualms about applying the death penalty (and thus explain a strike), and 100% of blacks but only 27% of nonblacks were subjected to a trick question about the minimum acceptable penalty for murder, *266 meant to induce a disqualifying answer. The State's attempts to explain the prosecutors' questioning of particular witnesses on nonracial grounds fit the evidence less well than the racially discriminatory hypothesis. If anything more is needed for an undeniable explanation of what was going on, history supplies it. The prosecutors took their cues from a 20-year-old manual of tips on jury selection, as shown by their notes of the race of each potential juror. By the time a jury was chosen, the State had peremptorily challenged 12% of qualified nonblack panel members, but eliminated 91% of the black ones. It blinks reality to deny that the State struck Fields and Warren, included in that 91%, because they were black. The strikes correlate with no fact as well as they correlate with race, and they occurred during a selection infected by shuffling and disparate questioning that race explains better than any race-neutral reason advanced by the State. The State's pretextual positions confirm Miller-El's claim, and the prosecutors' own notes proclaim that the Sparling Manual's emphasis on race was on their minds when they considered every potential juror. The state court's conclusion that the prosecutors' strikes of Fields and Warren were not racially determined is shown up as wrong to a clear and convincing degree; the state court's conclusion was unreasonable as well as erroneous. The judgment of the Court of Appeals is reversed, and the case is remanded for entry of judgment for petitioner together with orders of appropriate relief. It is so ordered.

Two years ago, we ordered that a certificate of appealabily, under 28 U.S. C. 2253(c), be issued to habeas petioner Miller-El, affording review of the District Court's rejection of the claim that prosecutors in his capal murder trial made peremptory strikes of potential jurors based on race. Today we find Miller-El entled to prevail on that claim and order relief under 2254. I In the course of robbing a Holiday Inn in Dallas, Texas in late 1985, Miller-El and his accomplices bound and gagged *236 two hotel employees, whom Miller-El then shot, killing one and severely injuring the other. During jury selection in Miller-El's trial for capal murder, prosecutors used peremptory strikes against 10 qualified black venire members. Miller-El objected that the strikes were based on race and could not be presumed legimate, given a history of excluding black members from criminal juries by the Dallas County District Attorney's Office. The trial court received evidence of the practice alleged but found no "systematic exclusion of blacks as a matter of policy" by that office, App. 882-883, and therefore no entlement to relief under the case then defining and marking the lims of relief from racially biased jury selection. The court denied Miller-El's request to pick a new jury, and the trial ended wh his death sentence for capal murder. While an appeal was pending, this Court decided which replaced Swain's threshold requirement to prove systemic under a Fourteenth Amendment jury claim, wh the rule that by the prosecutor in selecting the defendant's jury sufficed to establish the constutional violation. The Texas Court of Criminal Appeals then remanded the matter to the trial court to determine whether Miller-El could show that prosecutors in his case peremptorily struck prospective black jurors because of race. The trial court found no such demonstration. After reviewing the voir dire record of the explanations given for some of the challenged strikes, and after hearing one of the prosecutors, Paul Macaluso, give his justification for those previously unexplained, the trial court accepted the stated race-neutral reasons for the strikes, which the judge called "completely credible [and] sufficient" as the grounds for a finding of "no purposeful" Findings of Fact and Conclusions of Law Upon Remand from the Court of Criminal Appeals in State v. Miller-El, No. 8668-NL pp. 5-6, *-929. The Court of Criminal Appeals affirmed, stating found "ample support" in the voir dire record for the race-neutral explanations offered by prosecutors for the peremptory strikes. No. 69,677 p. 2, App. 9. Miller-El then sought habeas relief under 28 U.S. C. 2254, again pressing his Batson claim, among others not now before us. The District Court denied relief, Civil No. 3:96-CV--H App. 987, and the Court of Appeals for the Fifth Circu precluded appeal by denying a certificate of appealabily, We granted certiorari to consider whether Miller-El was entled to review on the Batson claim, and reversed the Court of Appeals. After examining the record of Miller-El's extensive evidence of purposeful by the Dallas County District Attorney's Office before and during his trial, we found an appeal was in order, since the mers of the Batson claim were, at the least, debatable by jurists of reason. After granting a certificate of appealabily, the Fifth Circu rejected Miller-El's Batson claim on the mers. We again granted certiorari, and again we reverse. II A "It is well known that prejudices often exist against particular classes in the communy, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy." ; see also Defendants are harmed, of course, when racial in jury selection compromises the right of trial by impartial jury, but racial minories are harmed more generally, for prosecutors *238 drawing racial lines in picking juries establish "state-sponsored group stereotypes rooted in, and reflective of, historical prejudice," J. E. Nor is the harm confined to minories. When the government's choice of jurors is tainted wh racial bias, that "overt wrong casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial." That is, the very integry of the courts is jeopardized when a prosecutor's "inves cynicism respecting the jury's neutraly," ib and undermines public confidence in adjudication, ; ; So, "[f]or more than a century, this Court consistently and repeatedly has reaffirmed that racial by the State in jury selection offends the Equal Protection Clause." ; see 0; ; ; ; The rub has been the practical difficulty of ferreting out in selections discretionary by nature, and choices subject to myriad legimate influences, whatever the race of the individuals on the panel from which jurors are selected. In we tackled the problem of "the quantum of proof necessary" to show purposeful wh an eye to preserving each side's historical prerogative to make a peremptory strike or challenge, the very nature of which is tradionally "whout a reason stated," The Swain Court tried to relate peremptory challenge to equal protection by presuming the legimacy of prosecutors' strikes except in the face of a longstanding pattern of : when "in case after case, whatever the circumstances," no blacks served on juries, *239 then "giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, would appear that the purposes of the peremptory challenge [were] being perverted." Swain's demand to make out a continuy of over time, however, turned out to be difficult to the point of unworkable, and in we recognized that this requirement to show an extended pattern imposed a "crippling burden of proof" that left prosecutors' use of peremptories "largely immune from constutional scrutiny." -93. By Batson's day, the law implementing equal protection elsewhere had evolved into less discouraging standards for assessing a claim of purposeful at 93-95 and Arlington ), and we accordingly held that a defendant could make out a prima facie case of discriminatory jury selection by "the totaly of the relevant facts" about a prosecutor's conduct during the defendant's own trial. 96. "Once the defendant makes a prima facie showing, the burden shifts to the State to come forward wh a neutral explanation for challenging jurors" whin an arguably targeted class. Although there may be "any number of bases on which a prosecutor reasonably [might] believe that is desirable to strike a juror who is not excusable for cause the prosecutor must give a clear and reasonably specific explanation of his legimate reasons for exercising the challeng[e]." "The trial court then will have the duty to determine if the defendant has established purposeful" Although the move from Swain to Batson left a defendant free to challenge the prosecution whout having to cast Swain's wide net, the net was not entirely consigned to history, for Batson's individualized focus came wh a weakness *240 of s own owing to s very emphasis on the particular reasons a prosecutor might give. If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to much more than Swain. Some stated reasons are false, and although some false reasons are shown up whin the four corners of a given case, sometimes a court may not be sure unless looks beyond the case at hand. Hence Batson's explanation that a defendant may rely on "all relevant circumstances" to raise an inference of purposeful -97. B This case comes to us on review of a denial of habeas relief sought under 28 U.S. C. 2254, following the Texas trial court's prior determination of fact that the State's race-neutral explanations were true, see ; n. 21. Under the Anterrorism and Effective Death Penalty Act of 1996, Miller-El may obtain relief only by showing the Texas conclusion to be "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S. C. 2254(d)(2). Thus we presume the Texas court's factual findings to be sound unless Miller-El rebuts the "presumption of correctness by clear and convincing evidence." 2254(e)(1). The standard is demanding but not insatiable; as we said the last time this case was here, "[d]eference does not by definion preclude relief." III A The numbers describing the prosecution's use of peremptories are remarkable. Out of 20 black members of the 108-person venire panel for Miller-El's trial, only 1 served. Although 9 were excused for cause or by agreement, 10 were *241 peremptorily struck by the prosecution. "The prosecutors used their peremptory strikes to exclude 91% of the eligible African-American venire members Happenstance is unlikely to produce this dispary." More powerful than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and whe panelists allowed to serve. If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permted to serve, that is evidence tending to prove purposeful to be considered at Batson's third step. Cf. (in employment cases, "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional and may be que persuasive"). While we did not develop a comparative juror analysis last time, we did note that the prosecution's reasons for exercising peremptory strikes against some black panel members appeared equally on point as to some whe jurors who served.[1] The details of two panel member comparisons bear this out.[2] *242 The prosecution used s second peremptory strike to exclude Billy Jean Fields, a black man who expressed unwavering support for the death penalty. On the questionnaire filled out by all panel members before individual examination on the stand, Fields said that he believed in capal punishment, Joint Lodging 14, and during questioning he disclosed his belief that the State acts on God's behalf when imposes the death penalty. "Therefore, if the State exacts death, then that's what should be." App. 174. He testified that he had no religious or philosophical reservations about the death penalty and that the death penalty deterred crime. He twice averred, whout apparent hesation, that he could s on Miller-El's jury and make a decision to impose this penalty. Although at one point in the questioning, Fields indicated that the possibily of rehabilation might be relevant to the likelihood that a defendant would comm future acts of violence, he responded to ensuing questions by saying that although he believed anyone could be rehabilated, this belief would not stand in the way of a decision to impose the death penalty: "[B]ased on what you [the prosecutor] said as far as the crime goes, there are only two things that could be rendered, death or life in prison. If for some reason the testimony didn't warrant death, then life imprisonment *243 would give an individual an opportuny to rehabilate. But, you know, you said that the jurors didn't have the opportuny to make a personal decision in the matter wh reference to what I thought or felt, but was just based on the questions according to the way the law has been handed down." Fields also noted on his questionnaire that his had a criminal history. Joint Lodging 13. During questioning, the prosecution went into this, too: "Q Could you tell me a ltle b about that? "A He was arrested and convicted on [a] number of occasions for possession of a controlled substance. "Q Was that here in Dallas? "A Yes. "Q Was he involved in any trials or anything like that? "A I suppose of sorts. I don't really know too much about "Q Was he ever convicted? "A Yeah, he served time. "Q Do you feel that that would in any way interfere wh your service on this jury at all? "A No." App. 190 Fields was struck peremptorily by the prosecution, wh prosecutor James Nelson offering a race-neutral reason: "[W]e have concern wh reference to some of his statements as to the death penalty in that he said that he could only give death if he thought a person could not be rehabilated and he later made the comment that any person could be rehabilated if they find God or are introduced to God and the fact that we have a concern that his religious feelings may affect his jury service in this case." *244 Thus, Nelson simply mischaracterized Fields's testimony. He represented that Fields said he would not vote for death if rehabilation was possible, whereas Fields unequivocally stated that he could impose the death penalty regardless of the possibily of rehabilation. Perhaps Nelson misunderstood, but unless he had an ulterior reason for keeping Fields off the jury we think he would have proceeded differently. In light of Fields's outspoken support for the death penalty, we expect the prosecutor would have cleared up any misunderstanding by asking further questions before getting to the point of exercising a strike. If, indeed, Fields's thoughts on rehabilation did make the prosecutor uneasy, he should have worried about a number of whe panel members he accepted wh no evident reservations. Sandra Hearn said that she believed in the death penalty "if a criminal cannot be rehabilated and continues to comm the same type of crime."[3] Hearn went so far as to express doubt that at the penalty phase of a capal case she could conclude that a convicted murderer "would probably comm some criminal acts of violence in the future." 0. "People change," she said, making hard to assess the risk of someone's future dangerousness. "[T]he evidence would have to be awful strong." But the prosecution did not respond to Hearn the way did to Fields, and whout delving into her views about rehabilation wh any further question, raised no objection to her serving on the jury. Whe panelist Mary Wt said she would take the possibily of rehabilation into account in deciding at the penalty phase of the trial about a defendant's probabily of future dangerousness, 6 Record of Voir Dire 2433 (hereinafter Record), but the prosecutors asked her no further question about her views on reformation, and they *245 accepted her as a juror.[4] Latino venireman Fernando Gutierrez, who served on the jury, said that he would consider the death penalty for someone who could not be rehabilated, App. 777, but the prosecutors did not question him further about this view. In sum, nonblack jurors whose remarks on rehabilation could well have signaled a lim on their willingness to impose a death sentence were not questioned further and drew no objection, but the prosecution expressed apprehension about a black juror's belief in the possibily of reformation even though he repeatedly stated his approval of the death penalty and testified that he could impose according to state legal standards even when the alternative sentence of life imprisonment would give a defendant (like everyone else in the world) the opportuny to reform.[5] The unlikelihood that his posion on rehabilation had anything to do wh the peremptory strike of Fields is underscored by the prosecution's response after Miller-El's lawyer pointed out that the prosecutor had misrepresented Fields's responses on the subject. A moment earlier the prosecutor *246 had finished his misdescription of Fields's views on potential rehabilation wh the words, "Those are our reasons for exercising our strike at this time." When defense counsel called him on his misstatement, he neher defended what he said nor whdrew the strike. Instead, he suddenly came up wh Fields's 's prior conviction as another reason for the strike. It would be difficult to cred the State's new explanation, which reeks of afterthought. While the Court of Appeals tried to bolster wh the observation that no seated juror was in Fields's posion wh respect to his -860, the court's readiness to accept the State's substute reason ignores not only s pretextual timing but the other reasons rendering implausible. Fields's testimony indicated he was not close to his App. 190 ("I don't really know too much about "), and the prosecution asked nothing further about the influence his 's history might have had on Fields, as probably would have done if the family history had actually mattered. See, e. g., Ex parte Travis, ("[T]he State's failure to engage in any meaningful voir dire examination on a subject the State alleges is concerned about is evidence suggesting that the explanation is a sham and a pretext for "). There is no good reason to doubt that the State's afterthought about Fields's was anything but makeweight. The Court of Appeals's judgment on the Fields strike is unsupportable for the same reason the State's first explanation is self unsupportable. The Appeals Court's description of Fields's voir dire testimony mentioned only his statements that everyone could be rehabilated, failing to note that Fields affirmed that he could give the death penalty if the law and evidence called for regardless of the possibily of divine grace. The Court of Appeals made no mention of the fact that the prosecution mischaracterized Fields as *247 saying he could not give death if rehabilation were In sum, when we look for nonblack jurors similarly suated to Fields, we find strong similaries as well as some differences.[6] But the differences seem far from significant, particularly when we read Fields's voir dire testimony in s entirety. Upon that reading, Fields should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecutors' explanations for the strike cannot reasonably be accepted. See The prosecution's proffered reasons for striking Joe Warren, another black venireman, are comparably unlikely. Warren gave this answer when he was asked what the death penalty accomplished: "I don't know. It's really hard to say because I know sometimes you feel that might help to deter crime and then you feel that the person is not really suffering. You're taking the suffering away from him. So 's like I said, sometimes you have mixed feelings about whether or not this is punishment or, you know, you're *248 relieving personal punishment." App. 205; 3 Record 1532. The prosecution said nothing about these remarks when struck Warren from the panel, but prosecutor Paul Macaluso referred to this answer as the first of his reasons when he testified at the later Batson hearing: "I thought [Warren's statements on voir dire] were inconsistent responses. At one point he says, you know, on a case-by-case basis and at another point he said, well, I think — I got the impression, at least, that he suggested that the death penalty was an easy way out, that they should be made to suffer more." App. 909. On the face of the explanation is reasonable from the State's point of view, but s plausibily is severely undercut by the prosecution's failure to object to other panel members who expressed views much like Warren's. Kevin Duke, who served on the jury, said, "sometimes death would be better to me than — being in prison would be like dying every day and, if you were in prison for life wh no hope of parole, I['d] just as soon have over wh than be in prison for the rest of your life." Troy Woods, the one black panelist to serve as juror, said that capal punishment "is too easy. I think that's a quick relief. I feel like [hard labor is] more of a punishment than putting them to sleep." Sandra Jenkins, whom the State accepted (but who was then struck by the defense) testified that she thought "a harsher treatment is life imprisonment wh no parole." Leta Girard, accepted by the State (but also struck by the defense) gave her opinion that "living sometimes is a worse — is worse to me than dying would be." The fact that Macaluso's reason also applied to these other panel members, most of them whe, none of them struck, is evidence of pretext. *2 The suggestion of pretext is not, moreover, migated much by Macaluso's explanation that Warren was struck when the State had 10 peremptory challenges left and could afford to be liberal in using them. If that were the explanation for striking Warren and later accepting panel members who thought death would be too easy, the prosecutors should have struck Sandra Jenkins, whom they examined and accepted before Warren. Indeed, the disparate treatment is the more remarkable for the fact that the prosecutors repeatedly questioned Warren on his capacy and willingness to impose a sentence of death and eliced statements of his abily to do so if the evidence supported that result and the answer to each special question was yes,2, 202.3, 205, 207, whereas the record before us discloses no attempt to determine whether Jenkins would be able to vote for death in spe of her view that was easy on the convict, Yet the prosecutors accepted the whe panel member Jenkins and struck the black venireman Warren. Macaluso's explanation that the prosecutors grew more sparing wh peremptory challenges as the jury selection wore on does, however, weaken any suggestion that the State's acceptance of Woods, the one black juror, shows that race was not in play. Woods was the eighth juror, qualified in the fifth week of jury selection. Joint Lodging 125. When the State accepted him, 11 of s 15 peremptory strikes were gone, 7 of them used to strike black panel members. The juror questionnaires show that at least three members of the venire panel yet to be questioned on the stand were opposed to capal punishment, Janice Mackey, ; Paul Bailey, ; and Anna Keaton,[7] Wh at least three remaining panel members *250 highly undesirable to the State, the prosecutors had to exercise prudent restraint in using strikes. This late-stage decision to accept a black panel member willing to impose a death sentence does not, therefore, neutralize the early-stage decision to challenge a comparable venireman, Warren. In fact, if the prosecutors were going to accept any black juror to obscure the otherwise consistent pattern of opposion to seating one, the time to do so was getting late.[8] The Court of Appeals pretermted these difficulties by stating that the prosecution's reason for striking Warren was a more general ambivalence about the penalty and his abily to impose -857 But this rationalization was erroneous as a matter of fact and as a matter of law. As to fact, Macaluso said nothing about any general ambivalence. He simply alluded to the possibily that Warren might think the death penalty too easy on some defendants, saying nothing about Warren's abily to impose the penalty when appeared to be warranted.[9] On the contrary, though *251 Warren had indeed questioned the extent to which the death penalty served a purpose in society, App. 205, he explained his posion in response to the very next question: was not any qualm about imposing what society generally deems s harshest punishment, but his concern that the death penalty might not be severe enough, When Warren was asked whether he could impose the death penalty he said he thought he could; when told that answering yes to the special issue questions would be tantamount to voting for death he said he could give yes answers if the evidence supported them.[10] As for law, the rule in Batson provides an opportuny to the prosecutor to give the reason for striking the juror, and *252 requires the judge to assess the plausibily of that reason in light of all evidence wh a bearing on -97; It is true that peremptories are often the subjects of instinct, and can sometimes be hard to say what the reason is. But when illegimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibily of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, s pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false. The Court of Appeals's and the dissent's substution of a reason for eliminating Warren does nothing to satisfy the prosecutors' burden of stating a racially neutral explanation for their own actions. The whole of the voir dire testimony subject to consideration casts the prosecution's reasons for striking Warren in an implausible light. Comparing his strike wh the treatment of panel members who expressed similar views supports a conclusion that race was significant in determining who was challenged and who was not.[11] *253 B The case for goes beyond these comparisons to include broader patterns of practice during the jury selection. The prosecution's shuffling of the venire panel, s enquiry into views on the death penalty, s questioning about minimum acceptable sentences: all indicate decisions probably based on race. Finally, the appearance of is confirmed by widely known evidence of the general policy of the Dallas County District Attorney's Office to exclude black venire members from juries at the time Miller-El's jury was selected. The first clue to the prosecutors' intentions, distinct from the peremptory challenges themselves, is their resort during voir dire to a procedure known in Texas as the jury shuffle. In the State's criminal practice, eher side may lerally reshuffle the cards bearing panel members' names, thus rearranging the order in which members of a venire panel are seated and reached for questioning.[12] Once the order is established, the panel members seated at the back are likely to escape voir dire altogether, for those not questioned by the end of the week are dismissed. As we previously explained, *254 "the prosecution's decision to seek a jury shuffle when a predominant number of African-Americans were seated in the front of the panel, along wh s decision to delay a formal objection to the defense's shuffle until after the new racial composion was revealed, raise a suspicion that the State sought to exclude African-Americans from the jury. Our concerns are amplified by the fact that the state court also had before and apparently ignored, testimony demonstrating that the Dallas County District Attorney's Office had, by s own admission, used this process to manipulate the racial composion of the jury in the past." In this case, the prosecution and then the defense shuffled the cards at the beginning of the first week of voir dire; the record does not reflect the changes in order. App. 113-114. At the beginning of the second week, when a number of black members were seated at the front of the panel, the prosecution shuffled.[13] 2 Record 836-837. At the beginning of the third week, the first four panel members were black. The prosecution shuffled, and these black panel members ended up at the back. Then the defense shuffled, and the black panel members again appeared at the front. The prosecution requested another shuffle, but the trial court refused. App. 124-132. Finally, the defense shuffled at the beginning of the fourth and fifth weeks of voir dire; the record does not reflect the panel's racial composion before or after those shuffles. ; 9 Record 3585-3586. The State notes in s brief that there might be racially neutral reasons for shuffling the jury, Brief for Respondent 36-37, and we suppose there might be. But no racially neutral reason has ever been offered in this case, and nothing *255 stops the suspicion of discriminatory intent from rising to an inference.[14] The next body of evidence that the State was trying to avoid black jurors is the contrasting voir dire questions posed respectively to black and nonblack panel members, on two different subjects. First, there were the prosecutors' statements preceding questions about a potential juror's thoughts on capal punishment. Some of these prefatory statements were cast in general terms, but some followed the so-called graphic script, describing the method of execution in rhetorical and clinical detail. It is intended, Miller-El contends, to prompt some expression of hesation to consider the death penalty and thus to elic plausibly neutral grounds for a peremptory strike of a potential juror subjected to if not a strike for cause. If the graphic script is given to a higher proportion of blacks than whes, this is evidence that prosecutors more often wanted blacks off the jury, absent some neutral and extenuating explanation. As we pointed out last time, for 94% of whe venire panel members, prosecutors gave a bland description of the death penalty before asking about the individual's feelings on the subject. The abstract account went something like this: "I feel like [is] only fair that we tell you our posion in this case. The State of Texas is actively seeking the death penalty in this case for Thomas Joe Miller-El. We anticipate that we will be able to present to a jury the quanty and type of evidence necessary to convict him of capal murder and the quanty and type of evidence *256 sufficient to allow a jury to answer these three questions over here in the affirmative. A yes answer to each of those questions results in an automatic death penalty from Judge McDowell." App. 564-565. Only 6% of whe venire panelists, but 53% of those who were black, heard a different description of the death penalty before being asked their feelings about This is an example of the graphic script: "I feel like you have a right to know right up front what our posion is. Mr. Kinne, Mr. Macaluso and myself, representing the people of Dallas County and the state of Texas, are actively seeking the death penalty for Thomas Joe Miller-El. "We do that wh the anticipation that, when the death penalty is assessed, at some point Mr. Thomas Joe Miller-El — the man sting right down there — will be taken to Huntsville and will be put on death row and at some point taken to the death house and placed on a gurney and injected wh a lethal substance until he is dead as a result of the proceedings that we have in this court on this case. So that's basically our posion going into this thing." The State concedes that this disparate questioning did occur but argues that use of the graphic script turned not on a panelist's race but on expressed ambivalence about the death penalty in the preliminary questionnaire.[15] Prosecutors *257 were trying, the argument goes, to weed out noncommtal or uncertain jurors, not black jurors. And while some whe venire members expressed opposion to the death penalty on their questionnaires, they were not read the graphic script because their feelings were already clear. The State says that giving the graphic script to these panel members would only have antagonized them. Brief for Respondent 27-32. This argument, however, first advanced in dissent when the case was last here, -368 and later adopted by the State and the Court of Appeals, simply does not f the facts. Looking at the answers on the questionnaires, and at voir dire testimony expressly discussing answers on the questionnaires,[16]*258 we find that black venire members were more likely than nonblacks to receive the graphic script regardless of their expressions of certainty or ambivalence about the death penalty, and the State's chosen explanation for the graphic script fails in the cases of four out of the eight black panel members who received[17] Two of them, Janice Mackey and Anna Keaton, clearly stated opposion to the death penalty but they received the graphic script,[18] while the black panel members Wayman Kennedy and Jeannette Butler were unambiguously in favor[19] but got the graphic *259 anyway.[20] The State's explanation does even worse in the instances of the five nonblacks who received the graphic script, missing the mark four times out of five: Vivian Sztybel and Filemon Zablan received[21] although each was unambiguously in favor of the death penalty,[22] while Dominick Desinise and Clara Evans unambiguously opposed [23] but were given the graphic version.[24] The State's purported rationale fails again if we look only to the treatment of ambivalent panel members, ambivalent black individuals having been more likely to receive the graphic description than ambivalent nonblacks. Three nonblack members of the venire indicated ambivalence to the death penalty on their questionnaires;[25] only one of them, *260 Fernando Gutierrez, received the graphic script.[26] But of the four black panel members who expressed ambivalence,[27] all got the graphic treatment.[28] The State's attempt at a race-neutral rationalization thus simply fails to explain what the prosecutors did. But if we pos instead that the prosecutors' first object was to use the graphic script to make a case for excluding black panel members opposed to or ambivalent about the death penalty, there is a much tighter f of fact and explanation.[29] Of the 10 nonblacks whose questionnaires expressed ambivalence or opposion,[30] only 30% received the graphic treatment.[] But of the seven blacks who expressed ambivalence or opposion,[32] 86% heard the graphic script.[33] As between the State's ambivalence explanation and Miller-El's racial one, race is much the better, and the reasonable inference is that race was the major consideration when the prosecution chose to follow the graphic script. *261 The same is true for another kind of disparate questioning, which might fairly be called trickery. The prosecutors asked members of the panel how low a sentence they would consider imposing for murder. Most potential jurors were first told that Texas law provided for a minimum term of five years, but some members of the panel were not, and if a panel member then insisted on a minimum above five years, the prosecutor would suppress his normal preference for tough jurors and claim cause to strike. Two Terms ago, we described how this disparate questioning was correlated wh race: "Ninety-four percent of whes were informed of the statutory minimum sentence, compared [wh] only twelve and a half percent of African-Americans. No explanation is proffered for the statistical dispary. )). Indeed, while petioner's appeal was pending before the Texas Court of Criminal Appeals, that court found a Batson violation where this precise line of disparate questioning on mandatory minimums was employed by one of the same prosecutors who tried the instant case." The State concedes that the manipulative minimum punishment questioning was used to create cause to strike, Brief for Respondent 33, and n. 26, but now offers the extenuation that prosecutors omted the 5-year information not on the basis of race, but on stated opposion to the death penalty, *262 or ambivalence about on the questionnaires and in the voir dire testimony. On the State's identification of black panel members opposed or ambivalent, all were asked the trick question.[34] But the State's rationale flatly fails to explain why most whe panel members who expressed similar opposion or ambivalence were not subjected to It is entirely true, as the State argues, that prosecutors struck a number of nonblack members of the panel (as well as black members) for cause or by agreement before they reached the point in the standard voir dire sequence to question about minimum punishment. But this is no answer; 8 of the 11 nonblack individuals who voiced opposion or ambivalence were asked about the acceptable minimum only after being told what state law required.[35]*263 Hence, only 27% of nonblacks questioned on the subject who expressed these views were subjected to the trick question, as against 100% of black members. Once again, the implication of race in the prosecutors' choice of questioning cannot be explained away.[36] There is a final body of evidence that confirms this conclusion. We know that for decades leading up to the time this case was tried prosecutors in the Dallas County office had followed a specific policy of systematically excluding blacks from juries, as we explained the last time the case was here. *264 "Although most of the wnesses [presented at the Swain hearing in 1986] denied the existence of a systematic policy to exclude African-Americans, others disagreed. A Dallas County district judge testified that, when he had served in the District Attorney's Office from the late-1950's to early-1960's, his superior warned him that he would be fired if he permted any African-Americans to serve on a jury. Similarly, another Dallas County district judge and former assistant district attorney from 1976 to 1978 testified that he believed the office had a systematic policy of excluding African-Americans from juries. "Of more importance, the defense presented evidence that the District Attorney's Office had adopted a formal policy to exclude minories from jury service. A manual entled `Jury Selection in a Criminal Case' [sometimes known as the Sparling Manual] was distributed to prosecutors. It contained an article authored by a former prosecutor (and later a judge) under the direction of his superiors in the District Attorney's Office, outlining the reasoning for excluding minories from jury service. Although the manual was wrten in 1968, remained in circulation until 1976, if not later, and was available at least to one of the prosecutors in Miller-El's trial." -335.[37] Prosecutors here "marked the race of each prospective juror on their juror cards."[38] *265 The Court of Appeals concluded that Miller-El failed to show by clear and convincing evidence that the state court's finding of no was wrong, whether his evidence was viewed collectively or 361 F. 3d, 2. We find this conclusion as unsupportable as the "dismissive and strained interpretation" of his evidence that we disapproved when we decided Miller-El was entled to a certificate of appealabily. See It is true, of course, that at some points the significance of Miller-El's evidence is open to judgment calls, but when this evidence on the issues raised is viewed cumulatively s direction is too powerful to conclude anything but In the course of drawing a jury to try a black defendant, 10 of the 11 qualified black venire panel members were peremptorily struck. At least two of them, Fields and Warren, were ostensibly acceptable to prosecutors seeking a death verdict, and Fields was ideal. The prosecutors' chosen race-neutral reasons for the strikes do not hold up and are so far at odds wh the evidence that pretext is the fair conclusion, indicating the very the explanations were meant to deny. The strikes that drew these incredible explanations occurred in a selection process replete wh evidence that the prosecutors were selecting and rejecting potential jurors because of race. At least two of the jury shuffles conducted by the State make no sense except as efforts to delay consideration of black jury panelists to the end of the week, when they might not even be reached. The State has in fact never offered any other explanation. Nor has the State denied that disparate lines of questioning were pursued: 53% of black panelists but only 3% of nonblacks were questioned wh a graphic script meant to induce qualms about applying the death penalty (and thus explain a strike), and 100% of blacks but only 27% of nonblacks were subjected to a trick question about the minimum acceptable penalty for murder, *266 meant to induce a disqualifying answer. The State's attempts to explain the prosecutors' questioning of particular wnesses on nonracial grounds f the evidence less well than the racially discriminatory hypothesis. If anything more is needed for an undeniable explanation of what was going on, history supplies The prosecutors took their cues from a 20-year-old manual of tips on jury selection, as shown by their notes of the race of each potential juror. By the time a jury was chosen, the State had peremptorily challenged 12% of qualified nonblack panel members, but eliminated 91% of the black ones. It blinks realy to deny that the State struck Fields and Warren, included in that 91%, because they were black. The strikes correlate wh no fact as well as they correlate wh race, and they occurred during a selection infected by shuffling and disparate questioning that race explains better than any race-neutral reason advanced by the State. The State's pretextual posions confirm Miller-El's claim, and the prosecutors' own notes proclaim that the Sparling Manual's emphasis on race was on their minds when they considered every potential juror. The state court's conclusion that the prosecutors' strikes of Fields and Warren were not racially determined is shown up as wrong to a clear and convincing degree; the state court's conclusion was unreasonable as well as erroneous. The judgment of the Court of Appeals is reversed, and the case is remanded for entry of judgment for petioner together wh orders of appropriate relief. It is so ordered.

Justice Breyer

concurring

Miller-El v. Dretke

2005-06-13

https://www.courtlistener.com/opinion/799976/miller-el-v-dretke/

https://www.courtlistener.com/api/rest/v3/clusters/799976/

2004-061

In Batson v. Kentucky, 476 U.S. 79 (1986), the Court adopted a burden-shifting rule designed to ferret out the unconstitutional use of race in jury selection. In his separate opinion, Justice Thurgood Marshall predicted that the Court's rule would not achieve its goal. The only way to *267 "end the racial discrimination that peremptories inject into the jury-selection process," he concluded, was to "eliminat[e] peremptory challenges entirely." Id., at 102-103 (concurring opinion). Today's case reinforces Justice Marshall's concerns. I To begin with, this case illustrates the practical problems of proof that Justice Marshall described. As the Court's opinion makes clear, Miller-El marshaled extensive evidence of racial bias. But despite the strength of his claim, Miller-El's challenge has resulted in 17 years of largely unsuccessful and protracted litigation — including 8 different judicial proceedings and 8 different judicial opinions, and involving 23 judges, of whom 6 found the Batson standard violated and 16 the contrary. The complexity of this process reflects the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge. Batson seeks to square this circle by (1) requiring defendants to establish a prima facie case of discrimination, (2) asking prosecutors then to offer a race-neutral explanation for their use of the peremptory, and then (3) requiring defendants to prove that the neutral reason offered is pretextual. See ante, at 239. But Batson embodies defects intrinsic to the task. At Batson's first step, litigants remain free to misuse peremptory challenges as long as the strikes fall below the prima facie threshold level. See 476 U. S., at 105 (Marshall, J., concurring). At Batson's second step, prosecutors need only tender a neutral reason, not a "persuasive, or even plausible," one. Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam); see also id., at 766 ("`mustaches and the beards look suspicious'"). And most importantly, at step three, Batson asks judges to engage in the awkward, sometime hopeless, task of second-guessing a prosecutor's instinctive judgment — the underlying basis for which may be invisible *268 even to the prosecutor exercising the challenge. See 476 U. S., at 106 (Marshall, J., concurring) (noting that the unconscious internalization of racial stereotypes may lead litigants more easily to conclude "that a prospective black juror is `sullen,' or `distant,'" even though that characterization would not have sprung to mind had the prospective juror been white); see also Page, Batson's Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B. U. L. Rev. 155, 161 (2005) ("`[s]ubtle forms of bias are automatic, unconscious, and unintentional'" and "`escape notice, even the notice of those enacting the bias'" (quoting Fiske, What's in a Category?: Responsibility, Intent, and the Avoidability of Bias Against Outgroups, in The Social Psychology of Good and Evil 127, 127-128 (A. Miller ed. 2004))). In such circumstances, it may be impossible for trial courts to discern if a "`seat-of-the-pants'" peremptory challenge reflects a "`seat-of-the-pants'" racial stereotype. Batson, 476 U. S., at 106 (Marshall, J., concurring) (quoting id., at 138 (REHNQUIST, J., dissenting)). Given the inevitably clumsy fit between any objectively measurable standard and the subjective decisionmaking at issue, I am not surprised to find studies and anecdotal reports suggesting that, despite Batson, the discriminatory use of peremptory challenges remains a problem. See, e. g., Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const. L. 3, 52-53, 73, n. 197 (2001) (in 317 capital trials in Philadelphia between 1981 and 1997, prosecutors struck 51% of black jurors and 26% of nonblack jurors; defense counsel struck 26% of black jurors and 54% of nonblack jurors; and race-based uses of prosecutorial peremptories declined by only 2% after Batson); Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data from One County, 23 Law and Human Behavior 695, 698-699 (1999) (in one North Carolina county, 71% of excused black jurors were removed *269 by the prosecution; 81% of excused white jurors were removed by the defense); Tucker, In Moore's Trials, Excluded Jurors Fit Racial Pattern, Washington Post, Apr. 2, 2001, p. A1 (in D. C. murder case spanning four trials, prosecutors excused 41 blacks or other minorities and 6 whites; defense counsel struck 29 whites and 13 black venire members); Mize, A Legal Discrimination; Juries Aren't Supposed to be Picked on the Basis of Race and Sex, But It Happens All the Time, Washington Post, Oct. 8, 2000, p. B8 (authored by judge on the D. C. Superior Court); see also Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 Notre Dame L. Rev. 447, 462-464 (1996) (finding Batson challenges' success rates lower where peremptories were used to strike black, rather than white, potential jurors); Brand, The Supreme Court, Equal Protection and Jury Selection: Denying That Race Still Matters, 1994 Wis. L. Rev. 511, 583-589 (examining judicial decisions and concluding that few Batson challenges succeed); Note, Batson v. Kentucky and J. E. B. v. Alabama ex rel. T. B.: Is the Peremptory Challenge Still Preeminent? 36 Boston College L. Rev. 161, 189, and n. 303 (1994) (same); Montoya, The Future of the Post-Batson Peremptory Challenge: Voir Dire by Questionnaire and the "Blind" Peremptory, 29 U. Mich. J. L. Reform 981, 1006, nn. 126-127, 1035 (1996) (reporting attorneys' views on the difficulty of proving Batson claims). II Practical problems of proof to the side, peremptory challenges seem increasingly anomalous in our judicial system. On the one hand, the Court has widened and deepened Batson's basic constitutional rule. It has applied Batson's antidiscrimination test to the use of peremptories by criminal defendants, Georgia v. McCollum, 505 U.S. 42 (1992), by private litigants in civil cases, Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), and by prosecutors where the defendant and the excluded juror are of different races, Powers *270 v. Ohio, 499 U.S. 400 (1991). It has recognized that the Constitution protects not just defendants, but the jurors themselves. Id., at 409. And it has held that equal protection principles prohibit excusing jurors on account of gender. See J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994). Some lower courts have extended Batson's rule to religious affiliation as well. See, e. g., United States v. Brown, 352 F.3d 654, 668-669 (CA2 2003); State v. Hodge, 248 Conn. 207, 244-246, 726 A.2d 531, 553 (1999); United States v. Stafford, 136 F.3d 1109, 1114 (CA7 1998) (suggesting same); see also Davis v. Minnesota, 511 U.S. 1115, 1117 (1994) (THOMAS, J., dissenting from denial of certiorari). But see Casarez v. State, 913 S.W.2d 468, 496 (Tex. Crim. App. 1994) (en banc) (declining to extend Batson to religious affiliation); State v. Davis, 504 N.W.2d 767, 771 (Minn. 1993) (same). On the other hand, the use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before. See, e. g., Post, A Loaded Box of Stereotypes: Despite `Batson,' Race, Gender Play Big Roles in Jury Selection., Nat. L. J., Apr. 25, 2005, pp. 1, 18 (discussing common reliance on race and gender in jury selection). For example, one jury-selection guide counsels attorneys to perform a "demographic analysis" that assigns numerical points to characteristics such as age, occupation, and marital status — in addition to race as well as gender. See V. Starr & M. McCormick, Jury Selection 193-200 (3d ed. 2001). Thus, in a hypothetical dispute between a white landlord and an African-American tenant, the authors suggest awarding two points to an African-American venire member while subtracting one point from her white counterpart. Id., at 197-199. For example, a bar journal article counsels lawyers to "rate" potential jurors "demographically (age, gender, marital status, etc.) and mark who would be under stereotypical circumstances [their] natural enemies and allies." Drake, *271 The Art of Litigating: Deselecting Jurors Like the Pros, 34 Md. Bar J. 18, 22 (Mar./Apr. 2001) (emphasis in original). For example, materials from a legal convention, while noting that "nationality" is less important than "once was thought," and emphasizing that "the answers a prospective juror gives to questions are much more valuable," still point out that "[s]tereotypically" those of "Italian, French, and Spanish" origin "are thought to be pro-plaintiff as well as other minorities, such as Mexican and Jewish[;] [p]ersons of German, Scandinavian, Swedish, Finnish, Dutch, Nordic, British, Scottish, Oriental, and Russian origin are thought to be better for the defense"; African-Americans "have always been considered good for the plaintiff," and "[m]ore politically conservative minorities will be more likely to lean toward defendants." Blue, Mirroring, Proxemics, Nonverbal Communication, and Other Psychological Tools, Advocacy Track—Psychology of Trial, Association of Trial Lawyers of America Annual Convention Reference Materials, 1 Ann. 2001 ATLA-CLE 153, available at WESTLAW, ATLA-CLE database (June 8, 2005). For example, a trial consulting firm advertises a new jury-selection technology: "Whether you are trying a civil case or a criminal case, SmartJURY™ has likely determined the exact demographics (age, race, gender, education, occupation, marital status, number of children, religion, and income) of the type of jurors you should select and the type you should strike." SmartJURY Product Information, http://www.cts-america.com/smartjury_pi.asp (as visited June 8, 2005, and available in Clerk of Court's case file). These examples reflect a professional effort to fulfill the lawyer's obligation to help his or her client. Cf. J. E. B., supra, at 148-149 (O'CONNOR, J., concurring) (observing that jurors' race and gender may inform their perspective). Nevertheless, the outcome in terms of jury selection is the same as it would be were the motive less benign. And as long as that is so, the law's antidiscrimination command and *272 a peremptory jury-selection system that permits or encourages the use of stereotypes work at cross-purposes. Finally, a jury system without peremptories is no longer unthinkable. Members of the legal profession have begun serious consideration of that possibility. See, e. g., Alen v. State, 596 So. 2d 1083, 1088-1089 (Fla. App. 1992) (Hubbart, J., concurring); Broderick, Why the Peremptory Challenge Should Be Abolished, 65 Temp. L. Rev. 369 (1992) (authored by Senior Judge on the U. S. District Court for the Eastern District of Pennsylvania); Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, 64 U. Chi. L. Rev. 809 (1997) (authored by a Colorado state-court judge); Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 199-211 (1989); Amar, Reinventing Juries: Ten Suggested Reforms, 28 U. C. D. L. Rev. 1169, 1182-1183 (1995); Melilli, 71 Notre Dame L. Rev., at 502-503; Page, 85 B. U. L. Rev., at 245-246. And England, a common-law jurisdiction that has eliminated peremptory challenges, continues to administer fair trials based largely on random jury selection. See Criminal Justice Act, 1988, ch. 33, § 118(1), 22 Halsbury's Statutes 357 (4th ed. 2003 reissue) (U. K.); see also 2 Jury Service in Victoria, Final Report, ch. 5, p. 165 (Dec. 1997) (1993 study of English barristers showed majority support for system without peremptory challenges). III I recognize that peremptory challenges have a long historical pedigree. They may help to reassure a party of the fairness of the jury. But long ago, Blackstone recognized the peremptory challenge as an "arbitrary and capricious species of [a] challenge." 4 W. Blackstone, Commentaries on the Laws of England 346 (1769). If used to express stereotypical judgments about race, gender, religion, or national origin, peremptory challenges betray the jury's democratic origins and undermine its representative function. See 1 A. de *273 Tocqueville, Democracy in America 287 (H. Reeve transl., rev. ed. 1900) ("[T]he institution of the jury raises the people . . . to the bench of judicial authority [and] invests [them] with the direction of society"); A. Amar, The Bill of Rights 94-96 (1998) (describing the Founders' vision of juries as venues for democratic participation); see also Stevens, Foreword, Symposium: The Jury at a Crossroad: The American Experience, 78 Chi.-Kent L. Rev. 907, 907-908 (2003) (citizens should not be denied the opportunity to serve as jurors unless an impartial judge states a reason for the denial, as with a strike for cause). The "scientific" use of peremptory challenges may also contribute to public cynicism about the fairness of the jury system and its role in American government. See, e. g., S. O'Connor, Juries: They May Be Broke, But We Can Fix Them, Chautauqua Institution Lecture, July 6, 1995. And, of course, the right to a jury free of discriminatory taint is constitutionally protected—the right to use peremptory challenges is not. See Stilson v. United States, 250 U.S. 583, 586 (1919); see also Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (defendant's loss of a peremptory challenge does not violate his right to an impartial jury). Justice Goldberg, dissenting in Swain v. Alabama, 380 U.S. 202 (1965), wrote, "Were it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former." Id., at 244; see also Batson, 476 U. S., at 107 (Marshall, J., concurring) (same); Edmonson, 500 U. S., at 630 (opinion for the Court by KENNEDY, J.) ("[I]f race stereotypes are the price for acceptance of a jury panel as fair, the price is too high to meet the standard of the Constitution"). This case suggests the need to confront that choice. In light of the considerations I have mentioned, I believe it necessary to reconsider Batson's test and the peremptory challenge system as a whole. With that qualification, I join the Court's opinion.

In the Court adopted a burden-shifting rule designed to ferret out the unconstitutional use of race in jury selection. In his separate opinion, Justice Thurgood Marshall predicted that the Court's rule would not achieve its goal. The only way to *267 "end the racial discrimination that peremptories inject into the jury-selection process," he concluded, was to "eliminat[e] peremptory challenges entirely." Today's case reinforces Justice Marshall's concerns. I To begin with, this case illustrates the practical problems of proof that Justice Marshall described. As the Court's opinion makes clear, Miller-El marshaled extensive evidence of racial bias. But despite the strength of his claim, Miller-El's challenge has resulted in 17 years of largely unsuccessful and protracted litigation — including 8 different judicial proceedings and 8 different judicial opinions, and involving 23 judges, of whom 6 found the standard violated and 16 the contrary. The complexity of this process reflects the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge. seeks to square this circle by (1) requiring defendants to establish a prima facie case of discrimination, (2) asking prosecutors then to offer a race-neutral explanation for their use of the peremptory, and then (3) requiring defendants to prove that the neutral reason offered is pretextual. See ante, at 239. But embodies defects intrinsic to the task. At 's first step, litigants remain free to misuse peremptory challenges as long as the strikes fall below the prima facie threshold level. See At 's second step, prosecutors need only tender a neutral reason, not a "persuasive, or even plausible," one. ; see also And most importantly, at step three, asks judges to engage in the awkward, sometime hopeless, task of second-guessing a prosecutor's instinctive judgment — the underlying basis for which may be invisible *268 even to the prosecutor exercising the challenge. See (noting that the unconscious internalization of racial stereotypes may lead litigants more easily to conclude "that a prospective black juror is `sullen,' or `distant,'" even though that characterization would not have sprung to mind had the prospective juror been white); see also Page, 's Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 U. L. Rev. 155, 161 (2005) ("`[s]ubtle forms of bias are automatic, unconscious, and unintentional'" and "`escape notice, even the notice of those enacting the bias'" (quoting Fiske, What's in a Category?: Responsibility, Intent, and the Avoidability of Bias Against Outgroups, in The Social Psychology of Good and Evil 127, 127-128 (A. Miller ed. 2004))). In such circumstances, it may be impossible for trial courts to discern if a "`seat-of-the-pants'" peremptory challenge reflects a "`seat-of-the-pants'" racial stereotype. (quoting ). Given the inevitably clumsy fit between any objectively measurable standard and the subjective decisionmaking at issue, I am not surprised to find studies and anecdotal reports suggesting that, despite the discriminatory use of peremptory challenges remains a problem. See, e. g., Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, (in 317 capital trials in Philadelphia between 1981 and 1997, prosecutors struck 51% of black jurors and 26% of nonblack jurors; defense counsel struck 26% of black jurors and 54% of nonblack jurors; and race-based uses of prosecutorial peremptories declined by only 2% after ); Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data from One County, 23 Law and Human Behavior 695, 698-699 (in one North Carolina county, 71% of excused black jurors were removed *269 by the prosecution; 81% of excused white jurors were removed by the defense); Tucker, In Moore's Trials, Excluded Jurors Fit Racial Pattern, Washington Post, Apr. 2, 2001, p. A1 (in D. C. murder case spanning four trials, prosecutors excused 41 blacks or other minorities and 6 whites; defense counsel struck 29 whites and 13 black venire members); Mize, A Legal Discrimination; Juries Aren't Supposed to be Picked on the Basis of Race and Sex, But It Happens All the Time, Washington Post, Oct. 8, 2000, p. B8 (authored by judge on the D. C. Superior Court); see also in Practice: What We Have Learned About and Peremptory Challenges, (finding challenges' success rates lower where peremptories were used to strike black, rather than white, potential jurors); Brand, The Supreme Court, Equal Protection and Jury Selection: Denying That Race Still Matters, (examining judicial decisions and concluding that few challenges succeed); Note, and J. E. : Is the Peremptory Challenge Still Preeminent? 36 Boston College L. Rev. 161, 189, and n. 303 ; Montoya, The Future of the Post- Peremptory Challenge: Voir Dire by Questionnaire and the "Blind" Peremptory, 29 U. Mich. J. L. Reform 981, 1006, nn. 126-127, 1035 (reporting attorneys' views on the difficulty of proving claims). II Practical problems of proof to the side, peremptory challenges seem increasingly anomalous in our judicial system. On the one hand, the Court has widened and deepened 's basic constitutional rule. It has applied 's antidiscrimination test to the use of peremptories by criminal defendants, by private litigants in civil cases, and by prosecutors where the defendant and the excluded juror are of different races, Powers It has recognized that the Constitution protects not just defendants, but the jurors themselves. And it has held that equal protection principles prohibit excusing jurors on account of gender. See J. E. Some lower courts have extended 's rule to religious affiliation as well. See, e. g., United ; ; United ; see also But see (declining to extend to religious affiliation); On the other hand, the use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before. See, e. g., Post, A Loaded Box of Stereotypes: Despite `,' Race, Gender Play Big Roles in Jury Selection., Nat. L. J., Apr. 25, 2005, pp. 1, 18 (discussing common reliance on race and gender in jury selection). For example, one jury-selection guide counsels attorneys to perform a "demographic analysis" that assigns numerical points to characteristics such as age, occupation, and marital status — in addition to race as well as gender. See V. Starr & M. McCormick, Jury Selection 193-200 Thus, in a hypothetical dispute between a white landlord and an African-American tenant, the authors suggest awarding two points to an African-American venire member while subtracting one point from her white counterpart. For example, a bar journal article counsels lawyers to "rate" potential jurors "demographically (age, gender, marital status, etc.) and mark who would be under stereotypical circumstances [their] natural enemies and allies." Drake, *271 The Art of Litigating: Deselecting Jurors Like the Pros, 34 Md. Bar J. 18, 22 (emphasis in original). For example, materials from a legal convention, while noting that "nationality" is less important than "once was thought," and emphasizing that "the answers a prospective juror gives to questions are much more valuable," still point out that "[s]tereotypically" those of "Italian, French, and Spanish" origin "are thought to be pro-plaintiff as well as other minorities, such as Mexican and Jewish[;] [p]ersons of German, Scandinavian, Swedish, Finnish, Dutch, Nordic, British, Scottish, Oriental, and Russian origin are thought to be better for the defense"; African-Americans "have always been considered good for the plaintiff," and "[m]ore politically conservative minorities will be more likely to lean toward defendants." Blue, Mirroring, Proxemics, Nonverbal Communication, and Other Psychological Tools, Advocacy Track—Psychology of Trial, Association of Trial Lawyers of America Annual Convention Reference Materials, 1 Ann. 2001 ATLA-CLE 153, available at WESTLAW, ATLA-CLE database (June 8, 2005). For example, a trial consulting firm advertises a new jury-selection technology: "Whether you are trying a civil case or a criminal case, SmartJURY™ has likely determined the exact demographics (age, race, gender, education, occupation, marital status, number of children, religion, and income) of the type of jurors you should select and the type you should strike." SmartJURY Product Information, http://www.cts-america.com/smartjury_pi.asp (as visited June 8, 2005, and available in Clerk of Court's case file). These examples reflect a professional effort to fulfill the lawyer's obligation to help his or her client. Cf. J. E. (observing that jurors' race and gender may inform their perspective). Nevertheless, the outcome in terms of jury selection is the same as it would be were the motive less benign. And as long as that is so, the law's antidiscrimination command and *272 a peremptory jury-selection system that permits or encourages the use of stereotypes work at cross-purposes. Finally, a jury system without peremptories is no longer unthinkable. Members of the legal profession have begun serious consideration of that possibility. See, e. g., ; Broderick, Why the Peremptory Challenge Should Be Abolished, ; Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, ; Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, ; Amar, Reinventing Juries: Ten Suggested Reforms, 28 U. C. D. L. Rev. 1169, 1182-1183 ; -503; Page, 85 U. L. Rev., at 245-246. And England, a common-law jurisdiction that has eliminated peremptory challenges, continues to administer fair trials based largely on random jury selection. See Criminal Justice Act, 19, ch. 33, 118(1), 22 Halsbury's Statutes 357 (4th ed. reissue) (U. K.); see also 2 Jury Service in Victoria, Final Report, ch. 5, p. 165 (1993 study of English barristers showed majority support for system without peremptory challenges). III I recognize that peremptory challenges have a long historical pedigree. They may help to reassure a party of the fairness of the jury. But long ago, Blackstone recognized the peremptory challenge as an "arbitrary and capricious species of [a] challenge." 4 W. Blackstone, Commentaries on the Laws of England 346 (1769). If used to express stereotypical judgments about race, gender, religion, or national origin, peremptory challenges betray the jury's democratic origins and undermine its representative function. See 1 A. de *273 Tocqueville, Democracy in America 287 (H. Reeve transl., rev. ed. 1900) ("[T]he institution of the jury raises the people to the bench of judicial authority [and] invests [them] with the direction of society"); A. Amar, The Bill of Rights 94-96 (describing the Founders' vision of juries as venues for democratic participation); see also Stevens, Foreword, Symposium: The Jury at a Crossroad: The American Experience, (citizens should not be denied the opportunity to serve as jurors unless an impartial judge states a reason for the denial, as with a strike for cause). The "scientific" use of peremptory challenges may also contribute to public cynicism about the fairness of the jury system and its role in American government. See, e. g., S. O'Connor, Juries: They May Be Broke, But We Can Fix Them, Chautauqua Institution Lecture, July 6, 1995. And, of course, the right to a jury free of discriminatory taint is constitutionally protected—the right to use peremptory challenges is not. See ; see also Justice Goldberg, dissenting in wrote, "Were it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former." ; see also ; ("[I]f race stereotypes are the price for acceptance of a jury panel as fair, the price is too high to meet the standard of the Constitution"). This case suggests the need to confront that choice. In light of the considerations I have mentioned, I believe it necessary to reconsider 's test and the peremptory challenge system as a whole. With that qualification, I join the Court's opinion.

Justice Thomas

dissenting

Miller-El v. Dretke

2005-06-13

https://www.courtlistener.com/opinion/799976/miller-el-v-dretke/

https://www.courtlistener.com/api/rest/v3/clusters/799976/

2004-061

In the early morning hours of November 16, 1985, petitioner Thomas Joe Miller-El and an accomplice, Kennard Flowers, robbed a Holiday Inn in Dallas, Texas. Miller-El and Flowers bound and gagged hotel employees Donald Hall and Doug Walker, and then laid them face down on the floor. When Flowers refused to shoot them, Miller-El shot each twice in the back, killing Walker and rendering Hall a paraplegic. Miller-El was convicted of capital murder by a jury composed of seven white females, two white males, a black male, a Filipino male, and a Hispanic male. For nearly 20 years now, Miller-El has contended that prosecutors peremptorily struck potential jurors on the basis of race. In that time, seven state and six federal judges have reviewed the evidence and found no error. This Court concludes otherwise, because it relies on evidence never presented to the Texas state courts. That evidence does not, much less "clear[ly] and convincing[ly]," show that the State racially discriminated against potential jurors. 28 U.S. C. § 2254(e)(1). However, we ought not even to consider it: In deciding whether to grant Miller-El relief, we may look only to "the evidence presented in the State court proceeding." § 2254(d)(2). The majority ignores that restriction on our review to grant Miller-El relief. I respectfully dissent. I Miller-El requests federal habeas relief from a state-court judgment, and hence our review is controlled by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. Because Miller-El's claim of racial discrimination in jury selection was adjudicated on the merits in Texas state court, AEDPA directs that a writ of habeas corpus "shall not be granted" unless the state court's decision "was based on an unreasonable determination of the facts in *275 light of the evidence presented in the State court proceeding." 28 U.S. C. § 2254(d)(2) (emphasis added). To obtain habeas relief, then, Miller-El must show that, based on the evidence before the Texas state courts, the only reasonable conclusion was that prosecutors had racially discriminated against prospective jurors. He has not even come close to such a showing. The state courts held two hearings, but despite ample opportunity, Miller-El presented little evidence that discrimination occurred during jury selection. In view of the evidence actually presented to the Texas courts, their conclusion that the State did not discriminate was eminently reasonable. As a close look at the state-court proceedings reveals, the majority relies almost entirely on evidence that Miller-El has never presented to any Texas state court. A Jury selection in Miller-El's trial took place over five weeks in February and March 1986. During the process, 19 of the 20 blacks on the 108-person venire panel were not seated on the jury: 3 were dismissed for cause, 6 were dismissed by the parties' agreement, and 10 were peremptorily struck by prosecutors. Miller-El objected to 8 of these 10 strikes, asserting that the prosecutors were discriminating against black veniremen. Each time, the prosecutors proffered a race-neutral, case-related reason for exercising the challenge, and the trial court permitted the venireman to be removed. The remaining black venireman, Troy Woods, served on the jury that convicted Miller-El. At the completion of voir dire, Miller-El moved to strike the jury under this Court's decision in Swain v. Alabama, 380 U.S. 202 (1965), which required Miller-El to prove "systematic exclusion of black persons through the use of peremptories over a period of time." Powers v. Ohio, 499 U.S. 400, 405 (1991). At the pretrial Swain hearing in March 1986, Miller-El presented three types of documentary evidence: the juror questionnaires of the 10 black veniremen *276 struck by the State; excerpts from a series of newspaper articles on racial bias in jury selection; and a manual on jury selection in criminal cases authored by a former Dallas County prosecutor. The voir dire transcript was part of the official record. Miller-El, however, introduced none of the other 98 juror questionnaires, no juror cards, and no evidence related to jury shuffling. See ante, at 256-257, n. 15. Miller-El also presented nine witnesses, five of whom had spent time as prosecutors in the Dallas County District Attorney's (D. A.) Office and five of whom were current or former judges in Dallas County. Their testimony made three things clear. First, the D. A.'s Office had never officially sanctioned or promoted racial discrimination in jury selection, as several witnesses testified, including the county's Chief Public Defender as well as one of the first black prosecutors to serve in the D. A.'s Office. App. 842 (Baraka); id., at 846-848 (Tait); id., at 860 (Entz); id., at 864 (Kinkeade). Second, witnesses testified that, despite the absence of any official policy, individual prosecutors had almost certainly excluded blacks in particular cases. Id., at 830, 833 (Hampton); id., at 841-842 (Baraka); id., at 846-848 (Tait); id., at 863-864 (Kinkeade). Third and most important, no witness testified that the prosecutors in Miller-El's trial—Norman Kinne, Paul Macaluso, and Jim Nelson—had ever engaged in racially discriminatory jury selection. Id., at 843 (Baraka); id., at 859 (Entz); id., at 863 (Kinkeade). The trial court concluded that, although racial discrimination "may have been done by individual prosecutors in individual cases," there was no evidence of "any systematic exclusion of blacks as a matter of policy by the District Attorney's office." Id., at 882-883. Miller-El was then tried, convicted, and sentenced to death. While his appeal was pending, this Court decided Batson v. Kentucky, 476 U.S. 79 (1986). Batson announced a new three-step process for evaluating claims that a prosecutor used peremptory challenges to strike prospective jurors because of their race: *277 "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. Cockrell, 537 U.S. 322, 328-329 (2003) (Miller-El I). The Texas Court of Criminal Appeals remanded Miller-El's case for a hearing to be held under Batson. B At the Batson hearing in May 1988, before the same judge who had presided over his trial, Miller-El sought to establish that prosecutors at his trial had struck potential jurors on the basis of their race. To make his prima facie case, Miller-El reintroduced some of what he had presented two years earlier at the Swain hearing: the testimony of the nine witnesses, the 10 juror questionnaires, and the excerpted newspaper articles. App. 893-895. The court instructed the State to explain its strikes. Id., at 898-899. Of the 10 peremptory strikes at issue, prosecutors had already explained 8 at trial in response to Miller-El's objections. The State therefore called Paul Macaluso, one of the prosecutors who had conducted the voir dire, to testify regarding his reasons for striking veniremen Paul Bailey and Joe Warren. Macaluso testified that he had struck Bailey because Bailey seemed firmly opposed to the death penalty, even though Bailey tempered his stance during voir dire. Id., at 905-906. This was accurate. Bailey expressed forceful opposition to the death penalty when questioned by Macaluso. See, e. g., 11-(A) Record of Voir Dire 4110 (hereinafter Record) ("I don't believe in capital punishment. Like I said on [my juror questionnaire], I don't believe anyone has the right to take another person's life"); id., at 4112 (saying that he *278 felt "[v]ery strongly" that the State should not impose the death penalty). Later, however, when questioned by defense counsel, Bailey said that he could impose the death penalty if the State proved the necessary aggravating circumstances. Id., at 4148-4150, 4152. When the trial court overruled the State's challenge for cause, the State exercised a peremptory challenge. Id., at 4168. Macaluso next testified that he dismissed venireman Warren because Warren gave inconsistent answers regarding his ability to apply the death penalty and because Warren's brother had been recently convicted. App. 908-910. Macaluso conceded that Warren was not as clearly unfavorable to the State as Bailey. Id., at 911. Nevertheless, Macaluso struck Warren because it was early in the jury selection process and the State had plenty of remaining peremptories with which it could remove marginal jurors. Macaluso candidly stated that he might not have removed Warren if fewer peremptories had been available. Id., at 910. After the State presented nonracial, case-related reasons for all its strikes, the focus shifted to Batson's third step: whether Miller-El had "carried his burden of proving purposeful discrimination." Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam); Batson, supra, at 97-98. At this point, Miller-El stood on his Swain evidence. App. 921. That evidence bore on whether some Dallas County prosecutors had discriminated generally in past years; none of the evidence indicated that the prosecutors at Miller-El's trial—Kinne, Macaluso, and Nelson—had discriminated in the selection of Miller-El's jury. Moreover, none of this generalized evidence came close to demonstrating that the State's explanations were pretextual in Miller-El's particular trial. Miller-El did not even attempt to rebut the State's racially neutral reasons at the hearing. He presented no evidence and made no arguments. Id., at 919-922. Nevertheless, the majority concludes that the trial judge was unreasonable in finding as a factual matter that the *279 State did not discriminate against black veniremen. Ante, at 266. That is not so "in light of the evidence presented in the State court proceeding." 28 U.S. C. § 2254(d)(2). From the scanty evidence presented to the trial court, "it is at least reasonable to conclude" that purposeful discrimination did not occur, "which means that the state court's determination to that effect must stand." Early v. Packer, 537 U.S. 3, 11 (2002) (per curiam). II Not even the majority is willing to argue that the evidence before the state court shows that the State discriminated against black veniremen. Instead, it bases its decision on juror questionnaires and juror cards that Miller-El's new attorneys unearthed during his federal habeas proceedings and that he never presented to the state courts.[1]Ante, at 256-257, n. 15. Worse still, the majority marshals those documents in support of theories that Miller-El never argued to the state courts. AEDPA does not permit habeas petitioners to engage in this sort of sandbagging of state courts. A The majority discusses four types of evidence: (1) the alleged similarity between black veniremen who were struck by the prosecution and white veniremen who were not; (2) the apparent disparate questioning of black and white veniremen with respect to their views on the death penalty and their ability to impose the minimum punishment; (3) the use of the "jury shuffle" by the prosecution; and (4) evidence of historical discrimination by the D. A.'s Office in the selection of juries. Only the last was ever put before the Texas courts—and it does not prove that any constitutional violation *280 occurred at Miller-El's trial. The majority's discussion of the other types of evidence relies on documents like juror questionnaires and juror cards that were added to the record before the District Court. The majority's willingness to reach outside the state-court record and embrace evidence never presented to the Texas state courts is hard to fathom. AEDPA mandates that the reasonableness of a state court's factual findings be assessed "in light of the evidence presented in the State court proceeding," 28 U.S. C. § 2254(d)(2), and also circumscribes the ability of federal habeas litigants to present evidence that they "failed to develop" before the state courts. § 2254(e)(2); Williams v. Taylor, 529 U.S. 420, 429-430 (2000). Miller-El did not argue disparate treatment or disparate questioning at the Batson hearing, so he had no reason to submit the juror questionnaires or cards to the trial court. However, Miller-El could have developed and presented all of that evidence at the Batson hearing.[2] Consequently, he must satisfy § 2254(e)(2)'s requirements to adduce the evidence in federal court—something he cannot do. Williams, supra, at 437 ("Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings"). For instance, there is no doubt that Miller-El's supplemental material could have been "previously discovered through the exercise of due diligence." § 2254(e)(2)(A)(ii). Just last Term, we summarily reversed the Court of Appeals for the Sixth Circuit for doing what the Court does *281 here: granting habeas relief on the basis of evidence not presented to the state court. See Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam). We reaffirmed "that whether a state court's decision was unreasonable must be assessed in light of the record the court had before it." Id., at 652; see also Miller-El I, 537 U. S., at 348 ("[P]etitioner must demonstrate that a state court's . . . factual determination was `objectively unreasonable' in light of the record before the court"). In an about-face, the majority now reverses the Court of Appeals for the Fifth Circuit for failing to grant habeas relief on the basis of evidence not before the state court. By crediting evidence that Miller-El never placed before the state courts, the majority flouts AEDPA's plain terms and encourages habeas applicants to attack state judgments collaterally with evidence never tested by the original triers of fact. B The majority presents three arguments for ignoring AEDPA's requirement that the state-court decision be unreasonable "in light of the evidence presented in the State court proceeding." 28 U.S. C. § 2254(d)(2). None is persuasive. 1 First, without briefing or argument on the question, the majority hints that we may ignore AEDPA's limitation on the record under § 2254(d)(2) because the parties have ignored it. Ante, at 256-257, n. 15. The majority then quickly retreats and expressly does not decide the question. Ibid. But its retreat is as inexplicable as its advance: Unless § 2254(d)(2) is waivable and the parties have waived it, the majority cannot consider evidence outside the state-court proceedings, as it concededly does. The majority's venture beyond the state-court record is indefensible. Even if § 2254(d) is not jurisdictional, but see Lindh v. Murphy, 521 U.S. 320, 343-344 (1997) (REHNQUIST, *282 C. J., dissenting), "it shares the most salient characteristic of jurisdictional statutes: Its commands are addressed to courts rather than to individuals," id., at 344. Section 2254(d) speaks directly to federal courts when it states that a habeas application by a state prisoner "shall not be granted" except under the specified conditions. (Emphasis added); ibid. The strictures of § 2254(d) are not discretionary or waivable. Through AEDPA, Congress sought to ensure that federal courts would defer to the judgments of state courts, not the wishes of litigants. Nevertheless, there is no need to decide whether § 2254(d)(2) may be waived, for the State has not waived it. Contrary to the majority's assertions, ante, at 256-257, n. 15, the State has argued that § 2254(d)(2) bars our review of certain evidence not before the state trial court, Brief for Respondent 41-42, just as it did in its last appearance, see Brief for Respondent in Miller-El I, O. T. 2002, No. 01-7662, pp. 28-29, 39. The majority is correct that the State has not argued § 2254(d)(2) precludes consideration of the juror questionnaires and juror cards in particular, ante, at 256-257, n. 15, but the majority does not assert that the State may selectively invoke § 2254(d)(2) to cherry-pick only favorable evidence that lies outside the state-court record. 2 The majority next suggests that the supplemental material, particularly the juror questionnaires, might not expand on what the state trial court knew, since "the same judge presided over the voir dire, the Swain hearing, and the Batson hearing, and the jury questionnaires were subjects of reference at the voir dire." Ante, at 257, n. 15. This is incorrect. At the Batson hearing, Miller-El introduced into evidence only the questionnaires of the 10 black veniremen peremptorily struck by the State. App. 893-895. The questionnaires of the other 98 veniremen—including many on which the majority relies—were never introduced into evidence *283 or otherwise placed before the trial judge. Miller-El and the State had copies; the trial judge did not. Yet the majority insinuates that the questionnaires effectively were before the state court because they "were subjects of reference at the voir dire." Ante, at 257, n. 15. That is extremely misleading on the facts of this case. Although counsel for Miller-El and the State questioned witnesses partially on the basis of their questionnaire responses, the lawyers' references to questionnaires were scattered and sporadic. Even the majority does not attempt to show that the specific questionnaire responses on which it relies were called to the trial court's attention. Clearly they were not called to the trial court's attention at the only time that mattered: the Batson hearing. The majority's insinuation is doubly misleading when coupled with its insistence that "the transcript of voir dire . . . was before the state courts." Ante, at 242, n. 2. Miller-El's arguments gave the state court no reason to go leafing through the voir dire transcript. What is more, voir dire at Miller-El's trial lasted five weeks, and the transcript occupies 11 volumes numbering 4,662 pages. To think that two years after the fact a trial court should dredge up on its own initiative passing references to unseen questionnaires—references buried in a more than 4,600-page transcript no less—is unrealistic. That is why § 2254(d)(2) demands that state courts be taken to task only on the basis of evidence "presented in the State court proceeding." The 98 questionnaires before the parties, unlike the 10 questionnaires that Miller-El entered into evidence, were not "presented" to the state court. The majority also asserts that by considering the questionnaires, it is only attempting to help the State. After all, the State claims that any disparate questioning and treatment of black and white veniremen resulted from their questionnaires, not their respective races. As the majority sees it, if the questionnaires are not properly before us, then the State cannot substantiate its defense. *284 This is a startling repudiation of both Batson and AEDPA. A strong presumption of validity attaches to a trial court's factual finding at Batson's third step, Hernandez v. New York, 500 U.S. 352, 364 (1991) (plurality opinion); id., at 372 (O'CONNOR, J., concurring in judgment); see also Batson, 476 U. S., at 98, n. 21, and that presumption is doubly strong when the Batson finding is under collateral attack in habeas, Miller-El I, 537 U. S., at 340. Thus, it is Miller-El's burden to prove racial discrimination under Batson, and it is his burden to prove it by clear and convincing evidence under AEDPA. Without the questionnaires never submitted to the trial court, Miller-El comes nowhere near establishing that race motivated any disparate questioning or treatment, which is precisely why the majority must strain to include the questionnaires within the state-court record. That Miller-El needs the juror questionnaires could not be clearer in light of how the Batson hearing unfolded. After offering racially neutral reasons for all of its strikes, the State could have remained silent—as Miller-El did. However, the State pointed out, among other things, that any disparate questioning of black and white veniremen was based on answers given on the juror questionnaires or during the voir dire process. App. 920-921. The State further noted that Miller-El had never alleged disparate treatment of black and white veniremen. Id., at 921. Because Miller-El did not dispute the State's assertions, there was no need for the State to enter the juror questionnaires into the record. There was nothing to argue about. Miller-El had presented only generalized evidence of historical discrimination by the D. A.'s Office, which no one believes was sufficient in itself to prove a Batson violation. That is why Miller-El, not the State, marshaled supplemental material during his federal habeas proceedings. Without that evidence, he cannot prove now what he never attempted to prove 17 years ago: that the State's justifications for its strikes were a pretext for discrimination. *285 3 Finally, the majority suggests that the 2-year delay between the voir dire and the post-trial Batson hearing is reason for weakened deference. See ante, at 241, n. 1. This is an argument not for setting aside § 2254(d)(2)'s limit on the record, but for relaxing the level of deference due state courts' factual findings under §§ 2254(d)(2) and (e)(1). The presumption of correctness afforded factual findings on habeas review, however, does not depend on the manner in which the trial court reaches its factual findings, for reasons I have explained before. Miller-El I, supra, at 357-359 (dissenting opinion). The majority leaves those arguments unanswered. The majority's own argument is implausible on its face: "`[T]he usual risks of imprecision and distortion from the passage of time'" are far greater after 17 years than after 2. Ante, at 241, n. 1 (quoting Miller-El I, supra, at 343). The majority has it just backward. The passage of time, as AEDPA requires and as this Court has held, counsels in favor of more deference, not less. At least the trial court, unlike this Court, had the benefit of gauging the witnesses' and prosecutors' credibility at both the Swain and Batson hearings. Miller-El I, supra, at 339 ("Deference is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations"); see also Hernandez, supra, at 364 (plurality opinion); Batson, supra, at 98, n. 21. III Even taken on its own terms, Miller-El's cumulative evidence does not come remotely close to clearly and convincingly establishing that the state court's factual finding was unreasonable. I discuss in turn Miller-El's four types of evidence: (1) the alleged disparate treatment and (2) disparate questioning of black and white veniremen; (3) the prosecution's *286 jury shuffles; and (4) historical discrimination by the D. A.'s Office in the selection of juries. Although each type of evidence "is open to judgment calls," ante, at 265, the majority finds that a succession of unpersuasive arguments amounts to a compelling case. In the end, the majority's opinion is its own best refutation: It strains to demonstrate what should instead be patently obvious. A The majority devotes the bulk of its opinion to a side-by-side comparison of white panelists who were allowed to serve and two black panelists who were struck, Billy Jean Fields and Joe Warren. Ante, at 240-252. The majority argues that the prosecution's reasons for striking Fields and Warren apply equally to whites who were permitted to serve, and thus those reasons must have been pretextual. The voir dire transcript reveals that the majority is mistaken. It is worth noting at the outset, however, that Miller-El's and the Court's claims have always been a moving target. Of the 20 black veniremen at Miller-El's trial, 9 were struck for cause or by the parties' agreement, and 1 served on the jury. Miller-El claimed at the Batson hearing that all 10 remaining black veniremen were dismissed on account of race. That number dropped to 7 on appeal, and then again to 6 during his federal habeas proceedings. Of those 6 black veniremen, this Court once found debatable that the entire lot was struck based on race. Miller-El I, 537 U. S., at 343. However, 4 (Carrol Boggess, Roderick Bozeman, Wayman Kennedy, and Edwin Rand) were dismissed for reasons other than race, as the majority effectively concedes. Ante, at 252-253, n. 11; Miller-El I, supra, at 351-354 (SCALIA, J., concurring). The majority now focuses exclusively on Fields and Warren. But Warren was obviously equivocal about the death penalty. In the end, the majority's case reduces to a single venireman, Fields, and its reading of a 20-year-old voir dire *287 transcript that is ambiguous at best. This is the antithesis of clear and convincing evidence. 1 From the outset of questioning, Warren did not specify when he would vote to impose the death penalty. When asked by prosecutor Paul Macaluso about his ability to impose the death penalty, Warren stated, "[T]here are some cases where I would agree, you know, and there are others that I don't." 3 Record 1526. Macaluso then explained at length the types of crimes that qualified as capital murder under Texas law, and asked whether Warren would be able to impose the death penalty for those types of heinous crimes. Id., at 1527-1530. Warren continued to hedge: "I would say it depends on the case and the circumstances involved at the time." Id., at 1530. He offered no sense of the circumstances that would lead him to conclude that the death penalty was an appropriate punishment. Macaluso then changed tack and asked whether Warren believed that the death penalty accomplished any social purpose. Id., at 1531-1532. Once again, Warren proved impossible to pin down: "Yes and no. Sometimes I think it does and sometimes I think it don't. Sometimes you have mixed feelings about things like that." Id., at 1532. Macaluso then focused on what the death penalty accomplished in those cases where Warren believed it useful. Ibid. Even then, Warren expressed no firm view: "I don't know. It's really hard to say because I know sometimes you feel that it might help to deter crime and then you feel that the person is not really suffering. You're taking the suffering away from him. So it's like I said, sometimes you have mixed feelings about whether or not this is punishment or, you know, you're relieving personal punishment." Ibid. While Warren's ambivalence was driven by his uncertainty that the death penalty was severe enough, ante, at 250-251, *288 that is beside the point. Throughout the examination, Warren gave no indication whether or when he would prefer the death penalty to other forms of punishment, specifically life imprisonment. 3 Record 1532-1533. To prosecutors seeking the death penalty, the reason for Warren's ambivalence was irrelevant. At voir dire, there was no dispute that the prosecution struck Warren not for his race, but for his ambivalence on the death penalty. Miller-El's attorneys did not object to the State's strikes of Warren or Paul Bailey, though they objected to the removal of every other black venireman. Both Bailey and Warren shared the same characteristic: It was not clear, based on their questionnaires and voir dire testimony, that they could impose the death penalty. See supra, at 277-278. In fact, Bailey was so clearly struck for nonracial reasons that Miller-El has never objected to his removal at any stage in this case. There also was no question at the Batson hearing why the prosecution struck Warren. Macaluso testified: "I thought [Warren's statements on voir dire] were inconsistent responses. At one point he says, you know, on a case-by-case basis and at another point he said, well, I think—I got the impression, at least, that he suggested that the death penalty was an easy way out, that they should be made to suffer more." App. 909. In addition, Macaluso noted that Warren's brother recently had been convicted for a crime involving food stamps. Id., at 909-910. This suggested that Warren might be more sympathetic to defendants than other jurors. Macaluso was quite candid that Warren was not as obviously disfavorable to the State as Bailey, and Macaluso stated that he might not have exercised a peremptory against Warren later in jury selection. Id., at 910-911. But Macaluso used only his 6th of 15 peremptory challenges against Warren. *289 According to the majority, Macaluso testified that he struck Warren for his statement that the death penalty was "`an easy way out,'" ante, at 248 (quoting App. 909), and not for his ambivalence about the death penalty, ante, at 250-251. This grossly mischaracterizes the record. Macaluso specifically testified at the Batson hearing that he was troubled by the "inconsisten[cy]" of Warren's responses. App. 909 (emphasis added). Macaluso was speaking of Warren's ambivalence about the death penalty, a reason wholly unrelated to race. This was Macaluso's "stated reason," and Macaluso ought to "stand or fall on the plausibility" of this reason—not one concocted by the majority. Ante, at 252. The majority points to four other panel members—Kevin Duke, Troy Woods, Sandra Jenkins, and Leta Girard—who supposedly expressed views much like Warren's, but who were not struck by the State. Ante, at 248. According to the majority, this is evidence of pretext. But the majority's premise is faulty. None of these veniremen was as difficult to pin down on the death penalty as Warren. For instance, Duke supported the death penalty. App. 373 ("I've always believed in having the death penalty. I think it serves a purpose"); ibid. ("I mean, it's a sad thing to see, to have to kill someone, but they shouldn't have done the things that they did. Sometimes they deserve to be killed"); id., at 394 ("If I feel that I can answer all three of these [special-issue] questions yes and I feel that he's done a crime worthy of the death penalty, yes, I will give the death penalty"). By contrast, Warren never expressed a firm view one way or the other. Troy Woods, who was black and who served on the jury, was even more supportive of the death penalty than Duke. The majority suggests that prosecutors might have allowed Woods to serve on the jury because they were running low on peremptories or they wanted to obscure a pattern of discrimination. Ante, at 249-250. That such rank conjecture *290 can serve as "clear and convincing evidence" is error in its own right, but it is also belied by the record. Woods said that capital punishment was "too quick" because defendants "don't feel the pain." App. 409. When asked what sort of punishment defendants ought to receive, Woods said that he would "[p]our some honey on them and stake them out over an ant bed." Ibid. He testified that he would mete out such sentences because if defendants "survive for a length of time, that would be enough punishment and . . . they wouldn't do it again." Id., at 410 (alteration omitted). Woods also testified that he was a lifelong believer in the death penalty, id., at 410-411; that he could impose death generally as a juror, id., at 413; and that he could impose death for murder during the course of a robbery, the specific crime of which Miller-El stood accused, ibid. It is beyond cavil why the State accepted Woods as a juror: He could impose the punishment sought by the State. Nevertheless, even assuming that any of these veniremen expressed views similar to Warren's, Duke, Woods, and Girard were questioned much later in the jury selection process, when the State had fewer peremptories to spare. Only Sandra Jenkins was questioned early in the voir dire process, and thus only Jenkins was even arguably similarly situated to Warren. However, Jenkins and Warren were different in important respects. Jenkins expressed no doubt whatsoever about the death penalty. She testified that she had researched the death penalty in high school, and she said in response to questioning by both parties that she strongly believed in the death penalty's value as a deterrent to crime. 3 Record 1074-1075, 1103-1104. This alone explains why the State accepted Jenkins as a juror, while Miller-El struck her. In addition, Jenkins did not have a relative who had been convicted of a crime, but Warren did. At the Batson hearing, Macaluso testified that he struck Warren both for Warren's inconsistent responses regarding the death penalty and for his brother's conviction. Supra, at 278. *291 The majority thinks it can prove pretext by pointing to white veniremen who match only one of the State's proffered reasons for striking Warren. Ante, at 248. This defies logic. "`Similarly situated' does not mean matching any one of several reasons the prosecution gave for striking a potential juror—it means matching all of them." Miller-El I, 537 U. S., at 362-363 (THOMAS, J., dissenting); cf. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 683 (1983) (Title VII of the Civil Rights Act of 1964 discrimination occurs when an employee is treated "`"in a manner which but for that person's sex would be different" '" (quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978))). Given limited peremptories, prosecutors often must focus on the potential jurors most likely to disfavor their case. By ignoring the totality of reasons that a prosecutor strikes any particular venireman, it is the majority that treats potential jurors as "products of a set of cookie cutters," ante, at 247, n. 6—as if potential jurors who share only some among many traits must be treated the same to avoid a Batson violation. Of course jurors must not be "identical in all respects" to gauge pretext, ante, at 247, n. 6, but to isolate race as a variable, the jurors must be comparable in all respects that the prosecutor proffers as important. This does not mean "that a defendant cannot win a Batson claim unless there is an exactly identical white juror." Ibid. It means that a defendant cannot support a Batson claim by comparing veniremen of different races unless the veniremen are truly similar. 2 The second black venireman on whom the majority relies is Billy Jean Fields. Fields expressed support for the death penalty, App. 174-175, but Fields also expressed views that called into question his ability to impose the death penalty. Fields was a deeply religious man, id., at 173-174, 192-194, and prosecutors feared that his religious convictions might make him reluctant to impose the death penalty. Those *292 fears were confirmed by Fields' view that all people could be rehabilitated if introduced to God, a fear that had special force considering the special-issue questions necessary to impose the death penalty in Texas. One of those questions asked whether there was a probability that the defendant would engage in future violence that threatened society. When they reached this question, Macaluso and Fields had the following exchange: "[MACALUSO:] What does that word probability mean to you in that connotation? "[FIELDS:] Well, it means is there a possibility that [a defendant] will continue to lead this type of life, will he be rehabilitated or does he intend to make this a life-long ambition. "[MACALUSO:] Let me ask you, Mr. Fields, do you feel as though some people simply cannot be rehabilitated? "[FIELDS:] No. "[MACALUSO:] You think everyone can be rehabilitated? "[FIELDS:] Yes." Id., at 183-184. Thus, Fields indicated that the possibility of rehabilitation was ever-present and relevant to whether a defendant might commit future acts of violence. In light of that view, it is understandable that prosecutors doubted whether he could vote to impose the death penalty. Fields did testify that he could impose the death penalty, even on a defendant who could be rehabilitated. Id., at 185. For the majority, this shows that the State's reason was pretextual. Ante, at 244. But of course Fields said that he could fairly consider the death penalty—if he had answered otherwise, he would have been challengeable for cause. The point is that Fields' earlier answers cast significant doubt on whether he could impose the death penalty. The very purpose of peremptory strikes is to allow parties to *293 remove potential jurors whom they suspect, but cannot prove, may exhibit a particular bias. See Swain, 380 U. S., at 220; J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 148 (1994) (O'CONNOR, J., concurring). Based on Fields' voir dire testimony, it was perfectly reasonable for prosecutors to suspect that Fields might be swayed by a penitent defendant's testimony.[3] The prosecutors may have been worried for nothing about Fields' religious sentiments, but that does not mean they were instead worried about Fields' race. As with Warren, the majority attempts to point to similarly situated nonblack veniremen who were not struck by the State, but its efforts again miss their mark for several reasons. First, the majority would do better to begin with white veniremen who were struck by the State. For instance, it skips over Penny Crowson, a white panelist who expressed a firm belief in the death penalty, but who also stated that she probably would not impose the death penalty if she believed there was a chance the defendant could be rehabilitated. Ante, at 245, n. 5; 3 Record 1211. The State struck Crowson, which demonstrates that it "was concerned *294 about views on rehabilitation when the venireperson was not black." Ante, at 245, n. 4. Second, the nonblack veniremen to whom the majority points—Sandra Hearn, Mary Witt, and Fernando Gutierrez—were more favorable to the State than Fields for various reasons.[4] For instance, Sandra Hearn was adamant about the value of the death penalty for callous crimes. App. 430, 451-452. Miller-El, of course, shot in cold blood two men who were lying before him bound and gagged. In addition, Hearn's father was a special agent for the Federal Bureau of Investigation, and her job put her in daily contact with police officers for whom she expressed the utmost admiration. Id., at 445-446, 457-460. This is likely why the State accepted Hearn and Miller-El challenged her for cause. Id., at 447, 467. In fact, on appeal Miller-El's counsel had this to say about Hearn: "If ever—if ever—there was a Venireperson that should have been excluded for cause from the Jury in this case, or any capital Murder Jury, it was Venirewoman HEARN. It is hoped that the Lord will save us from future jurors with her type of thinking and beliefs." Id., at 1015 (emphasis added and alteration omitted); see also id., at 1010. This same juror whom Miller-El's counsel once found so repugnant has been transformed by the majority's revisionist history into a defense-prone juror just as objectionable to the State as Fields. Ante, at 244. *295 Mary Witt did not even have the same views on rehabilitation as Fields: She testified to the commonplace view that some, but not all, people can be rehabilitated. 6 Record 2461. Moreover, Witt expressed strong support for the death penalty. Id., at 2414-2416, 2443-2444. She testified that the death penalty was appropriate for the crime of murder in the course of a robbery, id., at 2428, or for a convict who was released from prison and committed murder (Miller-El previously had twice spent time in prison for armed robberies), id., at 2462-2463. This is likely why the State accepted Witt and Miller-El struck her. Id., at 2464-2465. Finally, Fernando Gutierrez testified that he could impose the death penalty for brutal crimes. 11-(B) Record 4391-4392. In fact, the only issue during voir dire was whether Gutierrez could apply Texas' more lenient penalties, not its more severe ones. Id., at 4398-4399, 4413-4414, 4431. The court questioned Gutierrez at length, and ultimately he was accepted by both parties and seated on the jury. Id., at 4439-4449. Third, Hearn, Witt, and Gutierrez were not similarly situated to Fields even apart from their views on the death penalty. Fields was dismissed not only for his prodefense views on rehabilitation, but also because his brother had several drug convictions and had served time in prison. App. 190, 199. Hearn, Witt, and Gutierrez did not have relatives with significant criminal histories. Thus, there was an additional race-neutral reason to dismiss Fields that simply was not true of the other jurors. Surely the State did not need to expend peremptories on all veniremen who expressed some faith in rehabilitation to avoid violating Batson. The majority dismisses as "makeweight" the State's justification as to Fields' brother, ante, at 246, but it is the majority's arguments that are contrived. The State questioned Fields during voir dire about his brother's drug offenses, where the offenses occurred, whether his brother had been tried, whether his brother had been convicted, and whether *296 his brother's criminal history would affect Fields' ability to serve on the jury. App. 190. The State did not fail to engage in a "`meaningful voir dire examination,'" as the majority contends. Ante, at 246 (quoting Ex parte Travis, 776 So. 2d 874, 881 (Ala. 2000)). The majority also contends that the State's justification as to Fields' brother illustrates pretext, because the State first pointed to Fields' views on rehabilitation as the reason for its strike. Ante, at 245-246. The timing of the State's explanation was unexceptional. In context, the State discussed Fields' brother at essentially the same time it discussed Fields' religious views. The entire exchange between the State and counsel for Miller-El took place in a couple of minutes at most. App. 197-199. Thus, to call the State's second reason an "afterthought," ante, at 246, ignores what is obvious even from a cold record: that the State simply offered both of its reasons in quick succession. B Miller-El's claims of disparate questioning also do not fit the facts. Miller-El argues, and the majority accepts, that the prosecution asked different questions at voir dire of black and nonblack veniremen on two subjects: (1) the manner of execution and (2) the minimum punishment allowed by state law. The last time this case was here, I refuted Miller-El's claim that the prosecutors' disparate questioning evinced racial bias, and explained why it did not even entitle him to a certificate of appealability. Miller-El I, 537 U. S., at 363-370 (dissenting opinion). This time, the majority has shifted gears, claiming that a different set of jurors demonstrates the State's racial bias. The majority's new claim is just as flawed as its last. The State questioned panelists differently when their questionnaire responses indicated ambivalence about the death penalty. Any racial disparity in questioning resulted from the *297 reality that more nonblack veniremen favored the death penalty and were willing to impose it. 1 While most veniremen were given a generic description of the death penalty at the outset of their voir dire examinations, some were questioned with a "graphic script" that detailed Texas' method of execution. Ante, at 255. According to Miller-El and the majority, prosecutors used the graphic script to create cause for removing black veniremen who were ambivalent about or opposed to the death penalty. Ante, at 260. This is incorrect. The jury questionnaires asked two questions directly relevant to the death penalty. Question 56 asked, "Do you believe in the death penalty?" It offered panelists the chance to circle "yes" or "no," and then asked them to "[p]lease explain your answer" in the provided space. E. g., Joint Lodging 6. Question 58 asked, "Do you have any moral, religious, or personal beliefs that would prevent you from returning a verdict which would ultimately result in the execution of another human being?" and offered panelists only the chance to circle "yes" or "no." Ibid. According to the State, those veniremen who took a consistent stand on the death penalty—either for or against it— did not receive the graphic script. These prospective jurors either answered "no" to question 56 and "yes" to question 58 (meaning they did not believe in the death penalty and had qualms about imposing it), or answered "yes" to question 56 and "no" to question 58 (meaning they did believe in the death penalty and had no qualms about imposing it). Only those potential jurors who answered inconsistently, thereby indicating ambivalence about the death penalty, received the graphic script. The questionnaires bear out this distinction. Fifteen blacks were questioned during voir dire. Only eight of them—or 53%—received the graphic script. All eight had *298 given ambivalent questionnaire answers regarding their ability to impose the death penalty. There is no question that veniremen Baker, Bailey, Boggess, Woods, and Butler were ambivalent in their questionnaire answers. See ante, at 260, n. 27; 4 Record 1874-1875.[5] The majority claims that Keaton, Kennedy, and Mackey were not ambivalent, ante, at 258-259, and nn. 17, 19, but their questionnaire answers show otherwise. For instance, Keaton circled "no" for question 56, indicating she did not believe in the death penalty, and wrote, "It's not for me to punished [sic] anyone." Joint Lodging 55. However, she then circled "no" for question 58, indicating that she had no qualms about imposing the death penalty. Ibid. Likewise, Mackey indicated she did not believe in the death penalty and wrote "Thou Shall Not Kill" in the explanation space. Id., at 79. Mackey then said that she had no qualms, religious or otherwise, about imposing the death penalty, even though she had just quoted one of the Ten Commandments. Ibid. Keaton's and Mackey's answers cannot be reconciled, and the majority makes no attempt to do so. Ante, at 258, n. 17. Kennedy wrote on his questionnaire that he would impose the death penalty "[o]nly in extreme cases, such as multiple murders." Joint Lodging 46. This left prosecutors uncertain about whether Kennedy could impose the death penalty on Miller-El, who had murdered only one person (though he had paralyzed another). Of the seven blacks who did not receive the graphic script, six took a stand on the death penalty—either for or against it—in their questionnaires. There was no need to use the graphic script to clarify their positions. Veniremen Bozeman, *299 Fields, Rand, and Warren all answered "yes" to question 56 (indicating that they believed in the death penalty) and "no" to question 58 (indicating that they had no qualms about imposing it).[6]Id., at 6 (Bozeman); id., at 14 (Fields); id., at 30 (Rand); id., at 22 (Warren). Venireman Mosley was the opposite: He said that he was opposed to the death penalty, 7 Record 2656, 2681, and that he definitely could not impose it, id., at 2669-2670. The same appears true of venireman Smith, 2 id., at 927-928, who was so adamantly opposed to the death penalty throughout her voir dire that she was struck for cause, id., at 1006. The only apparent exception is venireman Carter. She said that she believed in the death penalty, but wrote on the questionnaire, "Yes and no. It would depend on what the person had done." 4 id., at 1993 (internal quotation marks omitted). She then answered "`[y]es'" to question 58, indicating that she had some difficulties with imposing the death penalty. Ibid. Despite her ambivalence, Carter did not receive the full graphic script. Prosecutors told her only that Miller-El "[would] be executed by lethal injection at Huntsville." Id., at 1952. Thus far, the State's explanation for its use of the graphic script fares far better than Miller-El's or the majority's. Questionnaire answers explain prosecutors' use of the graphic script with 14 out of the 15 blacks, or 93%. By contrast, race explains use of the script with only 8 out of 15 veniremen, or 53%. The majority's more nuanced explanation is likewise inferior to the State's. It hypothesizes that the script was used to remove only those black veniremen ambivalent about or opposed to the death penalty. Ante, at 260. But that explanation accounts for only 12 out of 15 veniremen, or 80%. The majority cannot explain why prosecutors did not use the script on Mosley and Smith, who were opposed to the death penalty, or Carter, who was ambivalent. *300 Because the majority does not account for veniremen like Carter, and also mischaracterizes veniremen like Keaton, Kennedy, and Mackey, it arrives at different percentages. This is not clear and convincing evidence of racial bias. The State's explanation also accounts for its treatment of the 12 nonblack veniremen (10 whites, 1 Hispanic, and 1 Filipino) on whom the majority relies. Granted, it is more difficult to draw conclusions about these nonblack veniremen. With the blacks, 11 of their 15 questionnaires are available; with the nonblacks, that number plummets to 3 of 12, because those veniremen were not discussed before the state court. See supra, at 279. Nevertheless, the questionnaires and voir dire permit some tentative conclusions. First, of the five nonblacks who received the graphic script—Desinise, Evans, Gutierrez, Sztybel, and Zablan—four were ambivalent. On his questionnaire, Gutierrez answered both that he believed in the death penalty and that he had qualms about imposing it. Joint Lodging 231. Sztybel and Zablan averred that they believed in the death penalty and could impose it, but their written answers to question 56 made it unclear under what circumstances they could vote to impose the death penalty.[7] Desinise is a closer call, but he was genuinely undecided about his ability to impose the death penalty, and the parties struck him by agreement. 3 Record 1505-1506, 1509, 1511, 1514. Of the five nonblacks who received the graphic script, Evans was the only one steadfastly opposed to the death penalty. 6 id., at 2588-2589, 2591, 2595. Of the seven nonblacks who allegedly did not receive the graphic script, four were strongly opposed to the death penalty. See Miller-El I, 537 U. S., at 364-365 (THOMAS, J., dissenting). *301 Berk, Hinson, and Nelson were so opposed that they were struck for cause, and Holtz was struck by the State because he was opposed unless a policeman or fireman was murdered. Ibid. Administering the graphic script to these potential jurors would have been useless. "No trial lawyer would willingly antagonize a potential juror ardently opposed to the death penalty with an extreme portrait of its implementation." Id., at 364. Of the remaining three nonblacks, the majority is correct that Moses was ambivalent in her questionnaire responses, 3 Record 1140-1141, 1177, although it is not certain that Vickery was, 4 id., at 1611. Neither received the graphic script. However, the final nonblack, Girard, confirms the State's explanation. It was not clear from Girard's questionnaire whether she was ambivalent.[8] On the stand, prosecutor Nelson started off with the abstract script. 6 id., at 2520-2521. But it quickly became apparent that Girard was "just not real sure" about her ability to impose the death penalty, and she testified that she had not decided its value as a form of punishment. Id., at 2522-2523. At that point, Nelson gave her the graphic script — for no other reason than to discern her basic reaction. Id., at 2524-2525. Not only did it succeed — Girard testified that she did not want to serve on a capital jury, id., at 2529, 2531 — but Miller-El's attorney also used the graphic script when he questioned Girard, id., at 2553. Miller-El's counsel was using the graphic script just as the State was: to discern a potential juror's true feelings, not to create cause for removing a venireman. After all, Girard's views were favorable to Miller-El. In any event, again the State's explanation fares well. The State's explanation accounts for prosecutors' choice between the abstract and graphic scripts for 9 of 12 nonblack *302 veniremen, or 75%. Moses and Vickery were likely ambivalent but did not receive the graphic script, while Evans was opposed to the death penalty but did receive it. However, the majority's theory accounts for the State's treatment of only 6 of 12 nonblacks, or 50%. The majority can explain why jurors like Moses and Vickery did not receive the graphic script, because it believes the State was using the graphic script primarily with blacks opposed to or ambivalent about the death penalty. Ante, at 260. But the majority cannot explain the State's use of the script with an opposed nonblack like Evans, or ambivalent nonblacks like Desinise, Girard, Gutierrez, Sztybel, and Zablan. Finally, the majority cannot take refuge in any supposed disparity between use of the graphic script with ambivalent black and nonblack veniremen. Ante, at 257-259. The State gave the graphic script to 8 of 9 ambivalent blacks, or 88%, and 5 of 7 ambivalent nonblacks, or 71%. This is hardly much of a difference. However, when the majority lumps in veniremen opposed to the death penalty, ibid., the disparity increases. The State gave the graphic script to 8 of 11 ambivalent or opposed blacks, or 73%, and 6 of 12 ambivalent or opposed nonblacks, or 50%. But the reason for the increased disparity is not race: It is, as the State maintains, that veniremen who were opposed to the death penalty did not receive the graphic script. In sum, the State can explain its treatment of 23 of 27 potential jurors, or 85%, while the majority can only account for the State's treatment of 18 of 27 potential jurors, or 67%. This is a far cry from clear and convincing evidence of racial bias. 2 Miller-El also alleges that the State employed two different scripts on the basis of race when asking questions about imposition of the minimum sentence. This disparate-questioning argument is even more flawed than the last one. The evidence confirms that, as the State argues, prosecutors *303 used different questioning on minimum sentences to create cause to strike veniremen who were ambivalent about or opposed to the death penalty. Brief for Respondent 33, and n. 26. Of the 15 blacks, 7 were given the minimum punishment script (MPS). All had expressed ambivalence about the death penalty, either in their questionnaires (Baker, Boggess, and Kennedy) or during voir dire (Bozeman, Fields, Rand, and Warren).[9] Woods expressed ambivalence in his questionnaire, but his voir dire testimony made clear that he was a superb juror for the State. See supra, at 289-290. Thus, Woods did not receive the MPS. There was no reason to give the MPS to Butler, Carter, Mosley, or Smith, all of whom were dismissed for cause or by agreement of the parties. That leaves Bailey, Keaton, and Mackey, all of whom were so adamantly opposed to the death penalty during voir dire that the State attempted to remove them for cause. 11-(A) Record 4112, 4120, 4142 (Bailey); id., at 4316 (Keaton); 10 id., at 3950, 3953 (Mackey). Because the State believed that it already had grounds to strike these potential jurors, it did not need the MPS to disqualify them. However, even assuming that the State should have used the MPS on these 3 veniremen, the State's explanation still accounts for 7 of the 10 ambivalent blacks, or 70%. The majority does not seriously contest any of this. Ante, at 261-262, and n. 34. Instead, it contends that the State used the MPS less often with nonblacks, which demonstrates that the MPS was a ruse to remove blacks. This is not true: The State used the MPS more often with ambivalent nonblacks who were not otherwise removable for cause or by agreement. *304 Of the nonblacks who reached the point in the voir dire sequence where the MPS was typically administered, the majority points to 11 whom it alleges were ambivalent and should have received the script. Ante, at 262, and n. 34. Three of these veniremen — Gibson, Gutierrez, and Holtz — were given the MPS, just like many of the blacks. Four of the remaining eight veniremen — Moses, Salsini, Vickery, and Witt — were favorable enough to the State that Miller-El peremptorily struck them.[10] The State had no interest in disqualifying these jurors. Two of the remaining four veniremen — Hearn and Mazza — indicated that they could impose the death penalty, both on their questionnaires and during voir dire. The State likewise had no interest in disqualifying these jurors. Assuming that the State should have used the MPS on the two remaining veniremen, Crowson and Whaley, the State's explanation still accounts for 9 of the 11 ambivalent nonblacks, or 81%. Miller-El's evidence is not even minimally persuasive, much less clear and convincing. C Miller-El's argument that prosecutors shuffled the jury to remove blacks is pure speculation. At the Batson hearing, Miller-El did not raise, nor was there any discussion of, the topic of jury shuffling as a racial tactic. The record shows only that the State shuffled the jury during the first three weeks of jury selection, while Miller-El shuffled the jury during each of the five weeks. This evidence no more proves that prosecutors sought to eliminate blacks from the jury, than it proves that Miller-El sought to eliminate whites even more often. Miller-El I, 537 U. S., at 360 (THOMAS, J., dissenting). *305 Miller-El notes that the State twice shuffled the jury (in the second and third weeks) when a number of blacks were seated at the front of the panel. Ante, at 254. According to the majority, this gives rise to an "inference" that prosecutors were discriminating. Ante, at 255. But Miller-El should not be asking this Court to draw "inference[s]"; he should be asking it to examine clear and convincing proof. And the inference is not even a strong one. We do not know if the nonblacks near the front shared characteristics with the blacks near the front, providing race-neutral reasons for the shuffles. We also do not know the racial composition of the panel during the first week when the State shuffled, or during the fourth and fifth weeks when it did not. More importantly, any number of characteristics other than race could have been apparent to prosecutors from a visual inspection of the jury panel. See Ladd v. State, 3 S.W.3d 547, 563-564 (Tex. Crim. App. 1999). Granted, we do not know whether prosecutors relied on racially neutral reasons, ante, at 254-255, but that is because Miller-El never asked at the Batson hearing. It is Miller-El's burden to prove racial discrimination, and the jury-shuffle evidence itself does not provide such proof. D The majority's speculation would not be complete, however, without its discussion (block-quoted from Miller-El I) of the history of discrimination in the D. A.'s Office. This is nothing more than guilt by association that is unsupported by the record. Some of the witnesses at the Swain hearing did testify that individual prosecutors had discriminated. Ante, at 264. However, no one testified that the prosecutors in Miller-El's trial — Norman Kinne, Paul Macaluso, and Jim Nelson — had ever been among those to engage in racially discriminatory jury selection. Supra, at 276. The majority then tars prosecutors with a manual entitled Jury Selection in a Criminal Case (hereinafter Manual or *306 Sparling Manual), authored by John Sparling, a former Dallas County prosecutor. There is no evidence, however, that Kinne, Macaluso, or Nelson had ever read the Manual — which was written in 1968, almost two decades before Miller-El's trial.[11] The reason there is no evidence on the question is that Miller-El never asked. During the entire Batson hearing, there is no mention of the Sparling Manual. Miller-El never questioned Macaluso about it, and he never questioned Kinne or Nelson at all. The majority simply assumes that all Dallas County prosecutors were racist and remained that way through the mid-1980's. Nor does the majority rely on the Manual for anything more than show. The Manual contains a single, admittedly stereotypical line on race: "Minority races almost always empathize with the Defendant." App. 102. Yet the Manual also tells prosecutors not to select "anyone who had a close friend or relative that was prosecuted by the State." Id., at 112. That was true of both Warren and Fields, and yet the majority cavalierly dismisses as "makeweight" the State's justification that Warren and Fields were struck because they were related to individuals convicted of crimes. Ante, at 246, 250, n. 8. If the Manual is to be attributed to Kinne, Macaluso, and Nelson, then it ought to be attributed in its entirety. But if the majority did that, then it could not point to any black venireman who was even arguably dismissed on account of race. Finally, the majority notes that prosecutors "`marked the race of each prospective juror on their juror cards.'" Ante, at 264 (quoting Miller-El I, supra, at 347). This suffers from the same problems as Miller-El's other evidence. Prosecutors did mark the juror cards with the jurors' race, sex, and juror number. We have no idea — and even the majority cannot bring itself to speculate — whether this was *307 done merely for identification purposes or for some more nefarious reason. The reason we have no idea is that the juror cards were never introduced before the state courts, and thus prosecutors were never questioned about their use of them. * * * Thomas Joe Miller-El's charges of racism have swayed the Court, and AEDPA's restrictions will not stand in its way. But Miller-El has not established, much less established by clear and convincing evidence, that prosecutors racially discriminated in the selection of his jury — and he certainly has not done so on the basis of the evidence presented to the Texas courts. On the basis of facts and law, rather than sentiments, Miller-El does not merit the writ. I respectfully dissent.

n the early morning hours of November 16, 1985, petitioner Thomas Joe and an accomplice, Kennard Flowers, robbed a Holiday nn in Dallas, Texas. and Flowers bound and gagged hotel employees Donald Hall and Doug Walker, and then laid them face down on the floor. When Flowers refused to shoot them, shot each twice in the back, killing Walker and rendering Hall a paraplegic. was convicted of capital murder by a jury composed of seven white females, two white males, a black male, a Filipino male, and a Hispanic male. For nearly 20 years now, has contended that prosecutors peremptorily struck potential jurors on the basis of race. n that time, seven state and six federal judges have reviewed the evidence and found no error. This Court concludes otherwise, because it relies on evidence never presented to the Texas state courts. That evidence does not, much less "clear[ly] and convincing[ly]," show that the State racially discriminated against potential jurors. 28 U.S. C. 2254(e)(1). However, we ought not even to consider it: n deciding whether to grant relief, we may look only to "the evidence presented in the State court proceeding." 2254(d)(2). The majority ignores that restriction on our review to grant relief. respectfully dissent. requests federal habeas relief from a state-court judgment, and hence our review is controlled by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Because 's claim of racial discrimination in jury selection was adjudicated on the merits in Texas state court, AEDPA directs that a writ of habeas corpus "shall not be granted" unless the state court's decision "was based on an unreasonable determination of the facts in *275 light of the evidence presented in the State court proceeding." 28 U.S. C. 2254(d)(2) (emphasis added). To obtain habeas relief, then, must show that, based on the evidence before the Texas state courts, the only reasonable conclusion was that prosecutors had racially discriminated against prospective jurors. He has not even come close to such a showing. The state courts held two hearings, but despite ample opportunity, presented little evidence that discrimination occurred during jury n view of the evidence actually presented to the Texas courts, their conclusion that the State did not discriminate was eminently reasonable. As a close look at the state-court proceedings reveals, the majority relies almost entirely on evidence that has never presented to any Texas state court. A Jury selection in 's trial took place over five weeks in February and March 1986. During the process, 19 of the 20 blacks on the 108-person venire panel were not seated on the jury: 3 were dismissed for cause, 6 were dismissed by the parties' agreement, and 10 were peremptorily struck by prosecutors. objected to 8 of these 10 strikes, asserting that the prosecutors were discriminating against black veniremen. Each time, the prosecutors proffered a race-neutral, case-related reason for exercising the challenge, and the trial court permitted the venireman to be removed. The remaining black venireman, Troy Woods, served on the jury that convicted At the completion of voir dire, moved to strike the jury under this Court's decision in which required to prove "systematic exclusion of black persons through the use of peremptories over a period of time." At the pretrial hearing in March 1986, presented three types of documentary evidence: the juror questionnaires of the 10 black veniremen *276 struck by the State; excerpts from a series of newspaper articles on racial bias in jury selection; and a manual on jury selection in criminal cases authored by a former Dallas County prosecutor. The voir dire transcript was part of the official record. however, introduced none of the other 98 juror questionnaires, no juror cards, and no evidence related to jury shuffling. See ante, at 256-257, n. 15. also presented nine witnesses, five of whom had spent time as prosecutors in the Dallas County District Attorney's (D. A.) Office and five of whom were current or former judges in Dallas County. Their testimony made three things clear. First, the D. A.'s Office had never officially sanctioned or promoted racial discrimination in jury selection, as several witnesses testified, including the county's Chief Public Defender as well as one of the first black prosecutors to serve in the D. A.'s Office. App. 842 ; ; ; Second, witnesses testified that, despite the absence of any official policy, individual prosecutors had almost certainly excluded blacks in particular cases. ; ; ; Third and most important, no witness testified that the prosecutors in 's trial—Norman Kinne, Paul Macaluso, and Jim Nelson—had ever engaged in racially discriminatory jury ; ; The trial court concluded that, although racial discrimination "may have been done by individual prosecutors in individual cases," there was no evidence of "any systematic exclusion of blacks as a matter of policy by the District Attorney's office." was then tried, convicted, and sentenced to death. While his appeal was pending, this Court decided announced a new three-step process for evaluating claims that a prosecutor used peremptory challenges to strike prospective jurors because of their race: *277 "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." The Texas Court of Criminal Appeals remanded 's case for a hearing to be held under B At the hearing in May 1988, before the same judge who had presided over his trial, sought to establish that prosecutors at his trial had struck potential jurors on the basis of their race. To make his prima facie case, reintroduced some of what he had presented two years earlier at the hearing: the testimony of the nine witnesses, the 10 juror questionnaires, and the excerpted newspaper articles. App. 893-895. The court instructed the State to explain its strikes. Of the 10 peremptory strikes at issue, prosecutors had already explained 8 at trial in response to 's objections. The State therefore called Paul Macaluso, one of the prosecutors who had conducted the voir dire, to testify regarding his reasons for striking veniremen Paul Bailey and Joe Warren. Macaluso testified that he had struck Bailey because Bailey seemed firmly opposed to the death penalty, even though Bailey tempered his stance during voir dire. This was accurate. Bailey expressed forceful opposition to the death penalty when questioned by Macaluso. See, e. g., -(A) Record of Voir Dire 40 (hereinafter Record) (" don't believe in capital punishment. Like said on [my juror questionnaire], don't believe anyone has the right to take another person's life"); Later, however, when questioned by defense counsel, Bailey said that he could impose the death penalty if the State proved the necessary aggravating circumstances. When the trial court overruled the State's challenge for cause, the State exercised a peremptory challenge. Macaluso next testified that he dismissed venireman Warren because Warren gave inconsistent answers regarding his ability to apply the death penalty and because Warren's brother had been recently convicted. App. 908-910. Macaluso conceded that Warren was not as clearly unfavorable to the State as Bailey. Nevertheless, Macaluso struck Warren because it was early in the jury selection process and the State had plenty of remaining peremptories with which it could remove marginal jurors. Macaluso candidly stated that he might not have removed Warren if fewer peremptories had been available. After the State presented nonracial, case-related reasons for all its strikes, the focus shifted to 's third step: whether had "carried his burden of proving purposeful discrimination." ; At this point, stood on his evidence. App. 921. That evidence bore on whether some Dallas County prosecutors had discriminated generally in past years; none of the evidence indicated that the prosecutors at 's trial—Kinne, Macaluso, and Nelson—had discriminated in the selection of 's jury. Moreover, none of this generalized evidence came close to demonstrating that the State's explanations were pretextual in 's particular trial. did not even attempt to rebut the State's racially neutral reasons at the hearing. He presented no evidence and made no arguments. Nevertheless, the majority concludes that the trial judge was unreasonable in finding as a factual matter that the *279 State did not discriminate against black veniremen. Ante, at 266. That is not so "in light of the evidence presented in the State court proceeding." 28 U.S. C. 2254(d)(2). From the scanty evidence presented to the trial court, "it is at least reasonable to conclude" that purposeful discrimination did not occur, "which means that the state court's determination to that effect must stand." Not even the majority is willing to argue that the evidence before the state court shows that the State discriminated against black veniremen. nstead, it bases its decision on juror questionnaires and juror cards that 's new attorneys unearthed during his federal habeas proceedings and that he never presented to the state courts.[1]Ante, at 256-257, n. 15. Worse still, the majority marshals those documents in support of theories that never argued to the state courts. AEDPA does not permit habeas petitioners to engage in this sort of sandbagging of state courts. A The majority discusses four types of evidence: (1) the alleged similarity between black veniremen who were struck by the prosecution and white veniremen who were not; (2) the apparent disparate questioning of black and white veniremen with respect to their views on the death penalty and their ability to impose the minimum punishment; (3) the use of the "jury shuffle" by the prosecution; and (4) evidence of historical discrimination by the D. A.'s Office in the selection of juries. Only the last was ever put before the Texas courts—and it does not prove that any constitutional violation *280 occurred at 's trial. The majority's discussion of the other types of evidence relies on documents like juror questionnaires and juror cards that were added to the record before the District Court. The majority's willingness to reach outside the state-court record and embrace evidence never presented to the Texas state courts is hard to fathom. AEDPA mandates that the reasonableness of a state court's factual findings be assessed "in light of the evidence presented in the State court proceeding," 28 U.S. C. 2254(d)(2), and also circumscribes the ability of federal habeas litigants to present evidence that they "failed to develop" before the state courts. 2254(e)(2); did not argue disparate treatment or disparate questioning at the hearing, so he had no reason to submit the juror questionnaires or cards to the trial court. However, could have developed and presented all of that evidence at the hearing.[2] Consequently, he must satisfy 2254(e)(2)'s requirements to adduce the evidence in federal court—something he cannot do. For instance, there is no doubt that 's supplemental material could have been "previously discovered through the exercise of due diligence." 2254(e)(2)(A)(ii). Just last Term, we summarily reversed the Court of Appeals for the Sixth Circuit for doing what the Court does *281 here: granting habeas relief on the basis of evidence not presented to the state court. See We reaffirmed "that whether a state court's decision was unreasonable must be assessed in light of the record the court had before it." at ; see also n an about-face, the majority now reverses the Court of Appeals for the Fifth Circuit for failing to grant habeas relief on the basis of evidence not before the state court. By crediting evidence that never placed before the state courts, the majority flouts AEDPA's plain terms and encourages habeas applicants to attack state judgments collaterally with evidence never tested by the original triers of fact. B The majority presents three arguments for ignoring AEDPA's requirement that the state-court decision be unreasonable "in light of the evidence presented in the State court proceeding." 28 U.S. C. 2254(d)(2). None is persuasive. 1 First, without briefing or argument on the question, the majority hints that we may ignore AEDPA's limitation on the record under 2254(d)(2) because the parties have ignored it. Ante, at 256-257, n. 15. The majority then quickly retreats and expressly does not decide the question. bid. But its retreat is as inexplicable as its advance: Unless 2254(d)(2) is waivable and the parties have waived it, the majority cannot consider evidence outside the state-court proceedings, as it concededly does. The majority's venture beyond the state-court record is indefensible. Even if 2254(d) is not jurisdictional, but see (REHNQUST, *282 C. J., dissenting), "it shares the most salient characteristic of jurisdictional statutes: ts commands are addressed to courts rather than to individuals," Section 2254(d) speaks directly to federal courts when it states that a habeas application by a state prisoner "shall not be granted" except under the specified conditions. (Emphasis added); The strictures of 2254(d) are not discretionary or waivable. Through AEDPA, Congress sought to ensure that federal courts would defer to the judgments of state courts, not the wishes of litigants. Nevertheless, there is no need to decide whether 2254(d)(2) may be waived, for the State has not waived it. Contrary to the majority's assertions, ante, at 256-257, n. 15, the State has argued that 2254(d)(2) bars our review of certain evidence not before the state trial court, Brief for Respondent 41-42, just as it did in its last appearance, see Brief for Respondent in O. T. 2002, No. 01-7662, pp. 28-29, 39. The majority is correct that the State has not argued 2254(d)(2) precludes consideration of the juror questionnaires and juror cards in particular, ante, at 256-257, n. 15, but the majority does not assert that the State may selectively invoke 2254(d)(2) to cherry-pick only favorable evidence that lies outside the state-court record. 2 The majority next suggests that the supplemental material, particularly the juror questionnaires, might not expand on what the state trial court knew, since "the same judge presided over the voir dire, the hearing, and the hearing, and the jury questionnaires were subjects of reference at the voir dire." Ante, at 257, n. 15. This is incorrect. At the hearing, introduced into evidence only the questionnaires of the 10 black veniremen peremptorily struck by the State. App. 893-895. The questionnaires of the other 98 veniremen—including many on which the majority relies—were never introduced into evidence *283 or otherwise placed before the trial judge. and the State had copies; the trial judge did not. Yet the majority insinuates that the questionnaires effectively were before the state court because they "were subjects of reference at the voir dire." Ante, at 257, n. 15. That is extremely misleading on the facts of this case. Although counsel for and the State questioned witnesses partially on the basis of their questionnaire responses, the lawyers' references to questionnaires were scattered and sporadic. Even the majority does not attempt to show that the specific questionnaire responses on which it relies were called to the trial court's attention. Clearly they were not called to the trial court's attention at the only time that mattered: the hearing. The majority's insinuation is doubly misleading when coupled with its insistence that "the transcript of voir dire was before the state courts." Ante, at 242, n. 2. 's arguments gave the state court no reason to go leafing through the voir dire transcript. What is more, voir dire at 's trial lasted five weeks, and the transcript occupies volumes numbering 4,662 pages. To think that two years after the fact a trial court should dredge up on its own initiative passing references to unseen questionnaires—references buried in a more than 4,600-page transcript no less—is unrealistic. That is why 2254(d)(2) demands that state courts be taken to task only on the basis of evidence "presented in the State court proceeding." The 98 questionnaires before the parties, unlike the 10 questionnaires that entered into evidence, were not "presented" to the state court. The majority also asserts that by considering the questionnaires, it is only attempting to help the State. After all, the State claims that any disparate questioning and treatment of black and white veniremen resulted from their questionnaires, not their respective races. As the majority sees it, if the questionnaires are not properly before us, then the State cannot substantiate its defense. *284 This is a startling repudiation of both and AEDPA. A strong presumption of validity attaches to a trial court's factual finding at 's third step, ; ; see also n. 21, and that presumption is doubly strong when the finding is under collateral attack in habeas, Thus, it is 's burden to prove racial discrimination under and it is his burden to prove it by clear and convincing evidence under AEDPA. Without the questionnaires never submitted to the trial court, comes nowhere near establishing that race motivated any disparate questioning or treatment, which is precisely why the majority must strain to include the questionnaires within the state-court record. That needs the juror questionnaires could not be clearer in light of how the hearing unfolded. After offering racially neutral reasons for all of its strikes, the State could have remained silent—as did. However, the State pointed out, among other things, that any disparate questioning of black and white veniremen was based on answers given on the juror questionnaires or during the voir dire process. App. 920-921. The State further noted that had never alleged disparate treatment of black and white veniremen. Because did not dispute the State's assertions, there was no need for the State to enter the juror questionnaires into the record. There was nothing to argue about. had presented only generalized evidence of historical discrimination by the D. A.'s Office, which no one believes was sufficient in itself to prove a violation. That is why not the State, marshaled supplemental material during his federal habeas proceedings. Without that evidence, he cannot prove now what he never attempted to prove 17 years ago: that the State's justifications for its strikes were a pretext for discrimination. *285 3 Finally, the majority suggests that the 2-year delay between the voir dire and the post-trial hearing is reason for weakened deference. See ante, at 241, n. 1. This is an argument not for setting aside 2254(d)(2)'s limit on the record, but for relaxing the level of deference due state courts' factual findings under 2254(d)(2) and (e)(1). The presumption of correctness afforded factual findings on habeas review, however, does not depend on the manner in which the trial court reaches its factual findings, for reasons have explained before. The majority leaves those arguments unanswered. The majority's own argument is implausible on its face: "`[T]he usual risks of imprecision and distortion from the passage of time'" are far greater after 17 years than after 2. Ante, at 241, n. 1 (quoting ). The majority has it just backward. The passage of time, as AEDPA requires and as this Court has held, counsels in favor of more deference, not less. At least the trial court, unlike this Court, had the benefit of gauging the witnesses' and prosecutors' credibility at both the and hearings. ; see also at ; Even taken on its own terms, 's cumulative evidence does not come remotely close to clearly and convincingly establishing that the state court's factual finding was unreasonable. discuss in turn 's four types of evidence: (1) the alleged disparate treatment and (2) disparate questioning of black and white veniremen; (3) the prosecution's *286 jury shuffles; and (4) historical discrimination by the D. A.'s Office in the selection of juries. Although each type of evidence "is open to judgment calls," ante, at 265, the majority finds that a succession of unpersuasive arguments amounts to a compelling case. n the end, the majority's opinion is its own best refutation: t strains to demonstrate what should instead be patently obvious. A The majority devotes the bulk of its opinion to a side-by-side comparison of white panelists who were allowed to serve and two black panelists who were struck, Billy Jean Fields and Joe Warren. Ante, at 240-252. The majority argues that the prosecution's reasons for striking Fields and Warren apply equally to whites who were permitted to serve, and thus those reasons must have been pretextual. The voir dire transcript reveals that the majority is mistaken. t is worth noting at the outset, however, that 's and the Court's claims have always been a moving target. Of the 20 black veniremen at 's trial, 9 were struck for cause or by the parties' agreement, and 1 served on the jury. claimed at the hearing that all 10 remaining black veniremen were dismissed on account of race. That number dropped to 7 on appeal, and then again to 6 during his federal habeas proceedings. Of those 6 black veniremen, this Court once found debatable that the entire lot was struck based on race. 537 U. S., However, 4 (Carrol Boggess, Roderick Bozeman, Wayman Kennedy, and Edwin Rand) were dismissed for reasons other than race, as the majority effectively concedes. Ante, at 252-253, n. ; (SCALA, J., concurring). The majority now focuses exclusively on Fields and Warren. But Warren was obviously equivocal about the death penalty. n the end, the majority's case reduces to a single venireman, Fields, and its reading of a 20-year-old voir dire *287 transcript that is ambiguous at best. This is the antithesis of clear and convincing evidence. 1 From the outset of questioning, Warren did not specify when he would vote to impose the death penalty. When asked by prosecutor Paul Macaluso about his ability to impose the death penalty, Warren stated, "[T]here are some cases where would agree, you know, and there are others that don't." 3 Record 1526. Macaluso then explained at length the types of crimes that qualified as capital murder under Texas law, and asked whether Warren would be able to impose the death penalty for those types of heinous crimes. Warren continued to hedge: " would say it depends on the case and the circumstances involved at the time." He offered no sense of the circumstances that would lead him to conclude that the death penalty was an appropriate punishment. Macaluso then changed tack and asked whether Warren believed that the death penalty accomplished any social purpose. Once again, Warren proved impossible to pin down: "Yes and no. Sometimes think it does and sometimes think it don't. Sometimes you have mixed feelings about things like that." Macaluso then focused on what the death penalty accomplished in those cases where Warren believed it useful. bid. Even then, Warren expressed no firm view: " don't know. t's really hard to say because know sometimes you feel that it might help to deter crime and then you feel that the person is not really suffering. You're taking the suffering away from him. So it's like said, sometimes you have mixed feelings about whether or not this is punishment or, you know, you're relieving personal punishment." bid. While Warren's ambivalence was driven by his uncertainty that the death penalty was severe enough, ante, at 250-251, *288 that is beside the point. Throughout the examination, Warren gave no indication whether or when he would prefer the death penalty to other forms of punishment, specifically life imprisonment. 3 Record 1532-1533. To prosecutors seeking the death penalty, the reason for Warren's ambivalence was irrelevant. At voir dire, there was no dispute that the prosecution struck Warren not for his race, but for his ambivalence on the death penalty. 's attorneys did not object to the State's strikes of Warren or Paul Bailey, though they objected to the removal of every other black venireman. Both Bailey and Warren shared the same characteristic: t was not clear, based on their questionnaires and voir dire testimony, that they could impose the death penalty. See n fact, Bailey was so clearly struck for nonracial reasons that has never objected to his removal at any stage in this case. There also was no question at the hearing why the prosecution struck Warren. Macaluso testified: " thought [Warren's statements on voir dire] were inconsistent responses. At one point he says, you know, on a case-by-case basis and at another point he said, well, think— got the impression, at least, that he suggested that the death penalty was an easy way out, that they should be made to suffer more." App. 909. n addition, Macaluso noted that Warren's brother recently had been convicted for a crime involving food stamps. This suggested that Warren might be more sympathetic to defendants than other jurors. Macaluso was quite candid that Warren was not as obviously disfavorable to the State as Bailey, and Macaluso stated that he might not have exercised a peremptory against Warren later in jury -9. But Macaluso used only his 6th of 15 peremptory challenges against Warren. *289 According to the majority, Macaluso testified that he struck Warren for his statement that the death penalty was "`an easy way out,'" ante, at 248 (quoting App. 909), and not for his ambivalence about the death penalty, ante, at 250-251. This grossly mischaracterizes the record. Macaluso specifically testified at the hearing that he was troubled by the "inconsisten[cy]" of Warren's responses. App. 909 (emphasis added). Macaluso was speaking of Warren's ambivalence about the death penalty, a reason wholly unrelated to race. This was Macaluso's "stated reason," and Macaluso ought to "stand or fall on the plausibility" of this reason—not one concocted by the majority. Ante, at 252. The majority points to four other panel members—Kevin Duke, Troy Woods, Sandra Jenkins, and Leta Girard—who supposedly expressed views much like Warren's, but who were not struck by the State. Ante, at 248. According to the majority, this is evidence of pretext. But the majority's premise is faulty. None of these veniremen was as difficult to pin down on the death penalty as Warren. For instance, Duke supported the death penalty. App. 373 ("'ve always believed in having the death penalty. think it serves a purpose"); (" mean, it's a sad thing to see, to have to kill someone, but they shouldn't have done the things that they did. Sometimes they deserve to be killed"); ("f feel that can answer all three of these [special-issue] questions yes and feel that he's done a crime worthy of the death penalty, yes, will give the death penalty"). By contrast, Warren never expressed a firm view one way or the other. Troy Woods, who was black and who served on the jury, was even more supportive of the death penalty than Duke. The majority suggests that prosecutors might have allowed Woods to serve on the jury because they were running low on peremptories or they wanted to obscure a pattern of discrimination. Ante, at 249-250. That such rank conjecture *290 can serve as "clear and convincing evidence" is error in its own right, but it is also belied by the record. Woods said that capital punishment was "too quick" because defendants "don't feel the pain." App. 409. When asked what sort of punishment defendants ought to receive, Woods said that he would "[p]our some honey on them and stake them out over an ant bed." bid. He testified that he would mete out such sentences because if defendants "survive for a length of time, that would be enough punishment and they wouldn't do it again." Woods also testified that he was a lifelong believer in the death penalty, -4; that he could impose death generally as a juror, ; and that he could impose death for murder during the course of a robbery, the specific crime of which stood accused, t is beyond cavil why the State accepted Woods as a juror: He could impose the punishment sought by the State. Nevertheless, even assuming that any of these veniremen expressed views similar to Warren's, Duke, Woods, and Girard were questioned much later in the jury selection process, when the State had fewer peremptories to spare. Only Sandra Jenkins was questioned early in the voir dire process, and thus only Jenkins was even arguably similarly situated to Warren. However, Jenkins and Warren were different in important respects. Jenkins expressed no doubt whatsoever about the death penalty. She testified that she had researched the death penalty in high school, and she said in response to questioning by both parties that she strongly believed in the death penalty's value as a deterrent to crime. 3 Record 1074-1075, 03-04. This alone explains why the State accepted Jenkins as a juror, while struck her. n addition, Jenkins did not have a relative who had been convicted of a crime, but Warren did. At the hearing, Macaluso testified that he struck Warren both for Warren's inconsistent responses regarding the death penalty and for his brother's *291 The majority thinks it can prove pretext by pointing to white veniremen who match only one of the State's proffered reasons for striking Warren. Ante, at 248. This defies logic. "`Similarly situated' does not mean matching any one of several reasons the prosecution gave for striking a potential juror—it means matching all of them." -363 ; cf. Newport News Shipbuilding & Dry Dock )). Given limited peremptories, prosecutors often must focus on the potential jurors most likely to disfavor their case. By ignoring the totality of reasons that a prosecutor strikes any particular venireman, it is the majority that treats potential jurors as "products of a set of cookie cutters," ante, at 247, n. 6—as if potential jurors who share only some among many traits must be treated the same to avoid a violation. Of course jurors must not be "identical in all respects" to gauge pretext, ante, at 247, n. 6, but to isolate race as a variable, the jurors must be comparable in all respects that the prosecutor proffers as important. This does not mean "that a defendant cannot win a claim unless there is an exactly identical white juror." bid. t means that a defendant cannot support a claim by comparing veniremen of different races unless the veniremen are truly similar. 2 The second black venireman on whom the majority relies is Billy Jean Fields. Fields expressed support for the death penalty, App. 174-175, but Fields also expressed views that called into question his ability to impose the death penalty. Fields was a deeply religious man, and prosecutors feared that his religious convictions might make him reluctant to impose the death penalty. Those *292 fears were confirmed by Fields' view that all people could be rehabilitated if introduced to God, a fear that had special force considering the special-issue questions necessary to impose the death penalty in Texas. One of those questions asked whether there was a probability that the defendant would engage in future violence that threatened society. When they reached this question, Macaluso and Fields had the following exchange: "[MACALUSO:] What does that word probability mean to you in that connotation? "[FELDS:] Well, it means is there a possibility that [a defendant] will continue to lead this type of life, will he be rehabilitated or does he intend to make this a life-long ambition. "[MACALUSO:] Let me ask you, Mr. Fields, do you feel as though some people simply cannot be rehabilitated? "[FELDS:] No. "[MACALUSO:] You think everyone can be rehabilitated? "[FELDS:] Yes." Thus, Fields indicated that the possibility of rehabilitation was ever-present and relevant to whether a defendant might commit future acts of violence. n light of that view, it is understandable that prosecutors doubted whether he could vote to impose the death penalty. Fields did testify that he could impose the death penalty, even on a defendant who could be rehabilitated. For the majority, this shows that the State's reason was pretextual. Ante, at 244. But of course Fields said that he could fairly consider the death penalty—if he had answered otherwise, he would have been challengeable for cause. The point is that Fields' earlier answers cast significant doubt on whether he could impose the death penalty. The very purpose of peremptory strikes is to allow parties to *293 remove potential jurors whom they suspect, but cannot prove, may exhibit a particular bias. See ; J. E. 5 U.S. 127, Based on Fields' voir dire testimony, it was perfectly reasonable for prosecutors to suspect that Fields might be swayed by a penitent defendant's testimony.[3] The prosecutors may have been worried for nothing about Fields' religious sentiments, but that does not mean they were instead worried about Fields' race. As with Warren, the majority attempts to point to similarly situated nonblack veniremen who were not struck by the State, but its efforts again miss their mark for several reasons. First, the majority would do better to begin with white veniremen who were struck by the State. For instance, it skips over Penny Crowson, a white panelist who expressed a firm belief in the death penalty, but who also stated that she probably would not impose the death penalty if she believed there was a chance the defendant could be rehabilitated. Ante, at 245, n. 5; 3 Record 12. The State struck Crowson, which demonstrates that it "was concerned *294 about views on rehabilitation when the venireperson was not black." Ante, at 245, n. 4. Second, the nonblack veniremen to whom the majority points—Sandra Hearn, Mary Witt, and Fernando Gutierrez—were more favorable to the State than Fields for various reasons.[4] For instance, Sandra Hearn was adamant about the value of the death penalty for callous crimes. App. 430, 451-452. of course, shot in cold blood two men who were lying before him bound and gagged. n addition, Hearn's father was a special agent for the Federal Bureau of nvestigation, and her job put her in daily contact with police officers for whom she expressed the utmost admiration. This is likely why the State accepted Hearn and challenged her for cause. n fact, on appeal 's counsel had this to say about Hearn: "f ever—if ever—there was a Venireperson that should have been excluded for cause from the Jury in this case, or any capital Murder Jury, it was Venirewoman HEARN. t is hoped that the Lord will save us from future jurors with her type of thinking and beliefs." ; see also This same juror whom 's counsel once found so repugnant has been transformed by the majority's revisionist history into a defense-prone juror just as objectionable to the State as Fields. Ante, at 244. *295 Mary Witt did not even have the same views on rehabilitation as Fields: She testified to the commonplace view that some, but not all, people can be rehabilitated. 6 Record 2461. Moreover, Witt expressed strong support for the death penalty. She testified that the death penalty was appropriate for the crime of murder in the course of a robbery, or for a convict who was released from prison and committed murder ( previously had twice spent time in prison for armed robberies), This is likely why the State accepted Witt and struck her. Finally, Fernando Gutierrez testified that he could impose the death penalty for brutal crimes. -(B) Record 4391-4392. n fact, the only issue during voir dire was whether Gutierrez could apply Texas' more lenient penalties, not its more severe ones. The court questioned Gutierrez at length, and ultimately he was accepted by both parties and seated on the jury. Third, Hearn, Witt, and Gutierrez were not similarly situated to Fields even apart from their views on the death penalty. Fields was dismissed not only for his prodefense views on rehabilitation, but also because his brother had several drug convictions and had served time in prison. App. 190, 199. Hearn, Witt, and Gutierrez did not have relatives with significant criminal histories. Thus, there was an additional race-neutral reason to dismiss Fields that simply was not true of the other jurors. Surely the State did not need to expend peremptories on all veniremen who expressed some faith in rehabilitation to avoid violating The majority dismisses as "makeweight" the State's justification as to Fields' brother, ante, at 246, but it is the majority's arguments that are contrived. The State questioned Fields during voir dire about his brother's drug offenses, where the offenses occurred, whether his brother had been tried, whether his brother had been convicted, and whether *296 his brother's criminal history would affect Fields' ability to serve on the jury. App. 190. The State did not fail to engage in a "`meaningful voir dire examination,'" as the majority contends. Ante, at 246 ). The majority also contends that the State's justification as to Fields' brother illustrates pretext, because the State first pointed to Fields' views on rehabilitation as the reason for its strike. Ante, at 245-246. The timing of the State's explanation was unexceptional. n context, the State discussed Fields' brother at essentially the same time it discussed Fields' religious views. The entire exchange between the State and counsel for took place in a couple of minutes at most. App. 197-199. Thus, to call the State's second reason an "afterthought," ante, at 246, ignores what is obvious even from a cold record: that the State simply offered both of its reasons in quick succession. B 's claims of disparate questioning also do not fit the facts. argues, and the majority accepts, that the prosecution asked different questions at voir dire of black and nonblack veniremen on two subjects: (1) the manner of execution and (2) the minimum punishment allowed by state law. The last time this case was here, refuted 's claim that the prosecutors' disparate questioning evinced racial bias, and explained why it did not even entitle him to a certificate of appealability. -370 This time, the majority has shifted gears, claiming that a different set of jurors demonstrates the State's racial bias. The majority's new claim is just as flawed as its last. The State questioned panelists differently when their questionnaire responses indicated ambivalence about the death penalty. Any racial disparity in questioning resulted from the *297 reality that more nonblack veniremen favored the death penalty and were willing to impose it. 1 While most veniremen were given a generic description of the death penalty at the outset of their voir dire examinations, some were questioned with a "graphic script" that detailed Texas' method of execution. Ante, at 255. According to and the majority, prosecutors used the graphic script to create cause for removing black veniremen who were ambivalent about or opposed to the death penalty. Ante, at 260. This is incorrect. The jury questionnaires asked two questions directly relevant to the death penalty. Question 56 asked, "Do you believe in the death penalty?" t offered panelists the chance to circle "yes" or "no," and then asked them to "[p]lease explain your answer" in the provided space. E. g., Joint Lodging 6. Question 58 asked, "Do you have any moral, religious, or personal beliefs that would prevent you from returning a verdict which would ultimately result in the execution of another human being?" and offered panelists only the chance to circle "yes" or "no." bid. According to the State, those veniremen who took a consistent stand on the death penalty—either for or against it— did not receive the graphic script. These prospective jurors either answered "no" to question 56 and "yes" to question 58 (meaning they did not believe in the death penalty and had qualms about imposing it), or answered "yes" to question 56 and "no" to question 58 (meaning they did believe in the death penalty and had no qualms about imposing it). Only those potential jurors who answered inconsistently, thereby indicating ambivalence about the death penalty, received the graphic script. The questionnaires bear out this distinction. Fifteen blacks were questioned during voir dire. Only eight of them—or 53%—received the graphic script. All eight had *298 given ambivalent questionnaire answers regarding their ability to impose the death penalty. There is no question that veniremen Baker, Bailey, Boggess, Woods, and Butler were ambivalent in their questionnaire answers. See ante, at 260, n. 27; 4 Record 1874-1875.[5] The majority claims that Keaton, Kennedy, and Mackey were not ambivalent, ante, at 258-259, and nn. 17, 19, but their questionnaire answers show otherwise. For instance, Keaton circled "no" for question 56, indicating she did not believe in the death penalty, and wrote, "t's not for me to punished [sic] anyone." Joint Lodging 55. However, she then circled "no" for question 58, indicating that she had no qualms about imposing the death penalty. bid. Likewise, Mackey indicated she did not believe in the death penalty and wrote "Thou Shall Not Kill" in the explanation space. Mackey then said that she had no qualms, religious or otherwise, about imposing the death penalty, even though she had just quoted one of the Ten Commandments. bid. Keaton's and Mackey's answers cannot be reconciled, and the majority makes no attempt to do so. Ante, at 258, n. 17. Kennedy wrote on his questionnaire that he would impose the death penalty "[o]nly in extreme cases, such as multiple murders." Joint Lodging 46. This left prosecutors uncertain about whether Kennedy could impose the death penalty on who had murdered only one person (though he had paralyzed another). Of the seven blacks who did not receive the graphic script, six took a stand on the death penalty—either for or against it—in their questionnaires. There was no need to use the graphic script to clarify their positions. Veniremen Bozeman, *299 Fields, Rand, and Warren all answered "yes" to question 56 (indicating that they believed in the death penalty) and "no" to question 58 (indicating that they had no qualms about imposing it).[6] at 6 (Bozeman); ; ; Venireman Mosley was the opposite: He said that he was opposed to the death penalty, 7 Record 2656, 2681, and that he definitely could not impose it, The same appears true of venireman Smith, 2 who was so adamantly opposed to the death penalty throughout her voir dire that she was struck for cause, The only apparent exception is venireman Carter. She said that she believed in the death penalty, but wrote on the questionnaire, "Yes and no. t would depend on what the person had done." 4 She then answered "`[y]es'" to question 58, indicating that she had some difficulties with imposing the death penalty. bid. Despite her ambivalence, Carter did not receive the full graphic script. Prosecutors told her only that "[would] be executed by lethal injection at Huntsville." Thus far, the State's explanation for its use of the graphic script fares far better than 's or the majority's. Questionnaire answers explain prosecutors' use of the graphic script with 14 out of the 15 blacks, or 93%. By contrast, race explains use of the script with only 8 out of 15 veniremen, or 53%. The majority's more nuanced explanation is likewise inferior to the State's. t hypothesizes that the script was used to remove only those black veniremen ambivalent about or opposed to the death penalty. Ante, at 260. But that explanation accounts for only 12 out of 15 veniremen, or 80%. The majority cannot explain why prosecutors did not use the script on Mosley and Smith, who were opposed to the death penalty, or Carter, who was ambivalent. *300 Because the majority does not account for veniremen like Carter, and also mischaracterizes veniremen like Keaton, Kennedy, and Mackey, it arrives at different percentages. This is not clear and convincing evidence of racial bias. The State's explanation also accounts for its treatment of the 12 nonblack veniremen (10 whites, 1 Hispanic, and 1 Filipino) on whom the majority relies. Granted, it is more difficult to draw conclusions about these nonblack veniremen. With the blacks, of their 15 questionnaires are available; with the nonblacks, that number plummets to 3 of 12, because those veniremen were not discussed before the state court. See Nevertheless, the questionnaires and voir dire permit some tentative conclusions. First, of the five nonblacks who received the graphic script—Desinise, Evans, Gutierrez, Sztybel, and Zablan—four were ambivalent. On his questionnaire, Gutierrez answered both that he believed in the death penalty and that he had qualms about imposing it. Joint Lodging 231. Sztybel and Zablan averred that they believed in the death penalty and could impose it, but their written answers to question 56 made it unclear under what circumstances they could vote to impose the death penalty.[7] Desinise is a closer call, but he was genuinely undecided about his ability to impose the death penalty, and the parties struck him by agreement. 3 Record 1505-1506, 1509, 15, 1514. Of the five nonblacks who received the graphic script, Evans was the only one steadfastly opposed to the death penalty. 6 Of the seven nonblacks who allegedly did not receive the graphic script, four were strongly opposed to the death penalty. See 537 U. S., at -365 *301 Berk, Hinson, and Nelson were so opposed that they were struck for cause, and Holtz was struck by the State because he was opposed unless a policeman or fireman was murdered. bid. Administering the graphic script to these potential jurors would have been useless. "No trial lawyer would willingly antagonize a potential juror ardently opposed to the death penalty with an extreme portrait of its implementation." at Of the remaining three nonblacks, the majority is correct that Moses was ambivalent in her questionnaire responses, 3 Record 40-41, 77, although it is not certain that Vickery was, 4 at 16. Neither received the graphic script. However, the final nonblack, Girard, confirms the State's explanation. t was not clear from Girard's questionnaire whether she was ambivalent.[8] On the stand, prosecutor Nelson started off with the abstract script. 6 But it quickly became apparent that Girard was "just not real sure" about her ability to impose the death penalty, and she testified that she had not decided its value as a form of punishment. At that point, Nelson gave her the graphic script — for no other reason than to discern her basic reaction. Not only did it succeed — Girard testified that she did not want to serve on a capital jury, 2531 — but 's attorney also used the graphic script when he questioned Girard, 's counsel was using the graphic script just as the State was: to discern a potential juror's true feelings, not to create cause for removing a venireman. After all, Girard's views were favorable to n any event, again the State's explanation fares well. The State's explanation accounts for prosecutors' choice between the abstract and graphic scripts for 9 of 12 nonblack *302 veniremen, or 75%. Moses and Vickery were likely ambivalent but did not receive the graphic script, while Evans was opposed to the death penalty but did receive it. However, the majority's theory accounts for the State's treatment of only 6 of 12 nonblacks, or 50%. The majority can explain why jurors like Moses and Vickery did not receive the graphic script, because it believes the State was using the graphic script primarily with blacks opposed to or ambivalent about the death penalty. Ante, at 260. But the majority cannot explain the State's use of the script with an opposed nonblack like Evans, or ambivalent nonblacks like Desinise, Girard, Gutierrez, Sztybel, and Zablan. Finally, the majority cannot take refuge in any supposed disparity between use of the graphic script with ambivalent black and nonblack veniremen. Ante, at 257-259. The State gave the graphic script to 8 of 9 ambivalent blacks, or 88%, and 5 of 7 ambivalent nonblacks, or 71%. This is hardly much of a difference. However, when the majority lumps in veniremen opposed to the death penalty, ib the disparity increases. The State gave the graphic script to 8 of ambivalent or opposed blacks, or 73%, and 6 of 12 ambivalent or opposed nonblacks, or 50%. But the reason for the increased disparity is not race: t is, as the State maintains, that veniremen who were opposed to the death penalty did not receive the graphic script. n sum, the State can explain its treatment of 23 of 27 potential jurors, or 85%, while the majority can only account for the State's treatment of 18 of 27 potential jurors, or 67%. This is a far cry from clear and convincing evidence of racial bias. 2 also alleges that the State employed two different scripts on the basis of race when asking questions about imposition of the minimum sentence. This disparate-questioning argument is even more flawed than the last one. The evidence confirms that, as the State argues, prosecutors *303 used different questioning on minimum sentences to create cause to strike veniremen who were ambivalent about or opposed to the death penalty. Brief for Respondent 33, and n. 26. Of the 15 blacks, 7 were given the minimum punishment script (MPS). All had expressed ambivalence about the death penalty, either in their questionnaires (Baker, Boggess, and Kennedy) or during voir dire (Bozeman, Fields, Rand, and Warren).[9] Woods expressed ambivalence in his questionnaire, but his voir dire testimony made clear that he was a superb juror for the State. See Thus, Woods did not receive the MPS. There was no reason to give the MPS to Butler, Carter, Mosley, or Smith, all of whom were dismissed for cause or by agreement of the parties. That leaves Bailey, Keaton, and Mackey, all of whom were so adamantly opposed to the death penalty during voir dire that the State attempted to remove them for cause. -(A) Record 42, 4120, 4142 (Bailey); ; 10 Because the State believed that it already had grounds to strike these potential jurors, it did not need the MPS to disqualify them. However, even assuming that the State should have used the MPS on these 3 veniremen, the State's explanation still accounts for 7 of the 10 ambivalent blacks, or 70%. The majority does not seriously contest any of this. Ante, at 261-262, and n. 34. nstead, it contends that the State used the MPS less often with nonblacks, which demonstrates that the MPS was a ruse to remove blacks. This is not true: The State used the MPS more often with ambivalent nonblacks who were not otherwise removable for cause or by agreement. *304 Of the nonblacks who reached the point in the voir dire sequence where the MPS was typically administered, the majority points to whom it alleges were ambivalent and should have received the script. Ante, at 262, and n. 34. Three of these veniremen — Gibson, Gutierrez, and Holtz — were given the MPS, just like many of the blacks. Four of the remaining eight veniremen — Moses, Salsini, Vickery, and Witt — were favorable enough to the State that peremptorily struck them.[10] The State had no interest in disqualifying these jurors. Two of the remaining four veniremen — Hearn and Mazza — indicated that they could impose the death penalty, both on their questionnaires and during voir dire. The State likewise had no interest in disqualifying these jurors. Assuming that the State should have used the MPS on the two remaining veniremen, Crowson and Whaley, the State's explanation still accounts for 9 of the ambivalent nonblacks, or 81%. 's evidence is not even minimally persuasive, much less clear and convincing. C 's argument that prosecutors shuffled the jury to remove blacks is pure speculation. At the hearing, did not raise, nor was there any discussion of, the topic of jury shuffling as a racial tactic. The record shows only that the State shuffled the jury during the first three weeks of jury selection, while shuffled the jury during each of the five weeks. This evidence no more proves that prosecutors sought to eliminate blacks from the jury, than it proves that sought to eliminate whites even more often. *305 notes that the State twice shuffled the jury (in the second and third weeks) when a number of blacks were seated at the front of the panel. Ante, at 254. According to the majority, this gives rise to an "inference" that prosecutors were discriminating. Ante, at 255. But should not be asking this Court to draw "inference[s]"; he should be asking it to examine clear and convincing proof. And the inference is not even a strong one. We do not know if the nonblacks near the front shared characteristics with the blacks near the front, providing race-neutral reasons for the shuffles. We also do not know the racial composition of the panel during the first week when the State shuffled, or during the fourth and fifth weeks when it did not. More importantly, any number of characteristics other than race could have been apparent to prosecutors from a visual inspection of the jury panel. See Granted, we do not know whether prosecutors relied on racially neutral reasons, ante, at 254-255, but that is because never asked at the hearing. t is 's burden to prove racial discrimination, and the jury-shuffle evidence itself does not provide such proof. D The majority's speculation would not be complete, however, without its discussion (block-quoted from ) of the history of discrimination in the D. A.'s Office. This is nothing more than guilt by association that is unsupported by the record. Some of the witnesses at the hearing did testify that individual prosecutors had discriminated. Ante, at 264. However, no one testified that the prosecutors in 's trial — Norman Kinne, Paul Macaluso, and Jim Nelson — had ever been among those to engage in racially discriminatory jury The majority then tars prosecutors with a manual entitled Jury Selection in a Criminal Case (hereinafter Manual or *306 Sparling Manual), authored by John Sparling, a former Dallas County prosecutor. There is no evidence, however, that Kinne, Macaluso, or Nelson had ever read the Manual — which was written in 1968, almost two decades before 's trial.[] The reason there is no evidence on the question is that never asked. During the entire hearing, there is no mention of the Sparling Manual. never questioned Macaluso about it, and he never questioned Kinne or Nelson at all. The majority simply assumes that all Dallas County prosecutors were racist and remained that way through the mid-1980's. Nor does the majority rely on the Manual for anything more than show. The Manual contains a single, admittedly stereotypical line on race: "Minority races almost always empathize with the Defendant." App. 102. Yet the Manual also tells prosecutors not to select "anyone who had a close friend or relative that was prosecuted by the State." at 2. That was true of both Warren and Fields, and yet the majority cavalierly dismisses as "makeweight" the State's justification that Warren and Fields were struck because they were related to individuals convicted of crimes. Ante, at 246, 250, n. 8. f the Manual is to be attributed to Kinne, Macaluso, and Nelson, then it ought to be attributed in its entirety. But if the majority did that, then it could not point to any black venireman who was even arguably dismissed on account of race. Finally, the majority notes that prosecutors "`marked the race of each prospective juror on their juror cards.'" Ante, at 264 (quoting ). This suffers from the same problems as 's other evidence. Prosecutors did mark the juror cards with the jurors' race, sex, and juror number. We have no idea — and even the majority cannot bring itself to speculate — whether this was *307 done merely for identification purposes or for some more nefarious reason. The reason we have no idea is that the juror cards were never introduced before the state courts, and thus prosecutors were never questioned about their use of them. * * * Thomas Joe 's charges of racism have swayed the Court, and AEDPA's restrictions will not stand in its way. But has not established, much less established by clear and convincing evidence, that prosecutors racially discriminated in the selection of his jury — and he certainly has not done so on the basis of the evidence presented to the Texas courts. On the basis of facts and law, rather than sentiments, does not merit the writ. respectfully dissent.

Justice Breyer

majority

Trevino v. Thaler

2013-05-28

https://www.courtlistener.com/opinion/872994/trevino-v-thaler/

https://www.courtlistener.com/api/rest/v3/clusters/872994/

2012-049

In Martinez v. Ryan, 566 U.S. 1 (2012), we considered the right of a state prisoner to raise, in a federal habeas corpus proceeding, a claim of ineffective assistance of trial counsel. In that case an Arizona procedural rule required a defendant convicted at trial to raise a claim of ineffective assistance of trial counsel during his first state collateral review proceeding—or lose the claim. The defendant in Martinez did not comply with the state procedural rule. But he argued that the federal habeas court should excuse his state procedural failing, on the ground that he had good “cause” for not raising the claim at the right time, namely that, not only had he lacked effective counsel during trial, but also he lacked effective counsel during his first state collateral review proceeding. We held that lack of counsel on collateral review might excuse defendant’s state law procedural default. We wrote: “[A] procedural default will not bar a federal habeas 2 TREVINO v. THALER Opinion of the Court court from hearing a substantial claim of ineffective assistance at trial if, in the [State’s] initial-review col- lateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id., at ___ (slip op., at 15). At the same time we qualified our holding. We said that the holding applied where state procedural law said that “claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding.” Ibid. (emphasis added). In this case Texas state law does not say “must.” It does not on its face require a defendant initially to raise an ineffective-assistance-of-trial-counsel claim in a state col- lateral review proceeding. Rather, that law appears at first glance to permit (but not require) the defendant initially to raise a claim of ineffective assistance of trial counsel on direct appeal. The structure and design of the Texas system in actual operation, however, make it “vir- tually impossible” for an ineffective assistance claim to be presented on direct review. See Robinson v. State, 16 S.W.3d 808, 810–811 (Tex. Crim. App. 2000). We must now decide whether the Martinez exception applies in this procedural regime. We conclude that it does. I A Texas state court jury convicted petitioner, Carlos Trevino, of capital murder. After a subsequent penalty- phase hearing, the jury found that Trevino “would commit criminal acts of violence in the future which would consti- tute a continuing threat to society,” that he “actually caused the death of Linda Salinas or, if he did not actually cause her death, he intended to kill her or another, or he anticipated a human life would be taken,” and that “there were insufficient mitigating circumstances to warrant a sentence of life imprisonment” rather than death. 449 Fed. Appx. 415, 418 (CA5 2011). The judge consequently Cite as: 569 U. S. ____ (2013) 3 Opinion of the Court imposed a sentence of death. Eight days later the judge appointed new counsel to handle Trevino’s direct appeal. App. 1, 3. Seven months after sentencing, when the trial transcript first became available, that counsel filed an appeal. The Texas Court of Criminal Appeals then considered and rejected Trevino’s appellate claims. Trevino’s appellate counsel did not claim that Trevino’s trial counsel had been constitutionally ineffective during the penalty phase of the trial court pro- ceedings. Id., at 12–24. About six months after sentencing, the trial judge ap- pointed Trevino a different new counsel to seek state collateral relief. As Texas’ procedural rules provide, that third counsel initiated collateral proceedings while Tre- vino’s appeal still was in progress. This new counsel first sought postconviction relief (through collateral review) in the trial court itself. After a hearing, the trial court de- nied relief; and the Texas Court of Criminal Appeals affirmed that denial. Id., at 25–26, 321–349. Trevino’s postconviction claims included a claim that his trial coun- sel was constitutionally ineffective during the penalty phase of Trevino’s trial, but it did not include a claim that trial counsel’s ineffectiveness consisted in part of a failure adequately to investigate and to present mitigating circum- stances during the penalty phase of Trevino’s trial. Id., at 321–349; see Wiggins v. Smith, 539 U.S. 510, 523 (2003) (counsel’s failure to investigate and present mitigating circumstances deprived defendant of effective assistance of counsel). Trevino then filed a petition in federal court seeking a writ of habeas corpus. The Federal District Court ap- pointed another new counsel to represent him. And that counsel claimed for the first time that Trevino had not received constitutionally effective counsel during the penalty phase of his trial in part because of trial counsel’s failure to adequately investigate and present mitigating 4 TREVINO v. THALER Opinion of the Court circumstances during the penalty phase. App. 438, 456– 478. Federal habeas counsel pointed out that Trevino’s trial counsel had presented only one witness at the sen- tencing phase, namely Trevino’s aunt. The aunt had testified that Trevino had had a difficult upbringing, that his mother had an alcohol problem, that his family was on welfare, and that he had dropped out of high school. She had added that Trevino had a child, that he was good with children, and that he was not violent. Id., at 285–291. Federal habeas counsel then told the federal court that Trevino’s trial counsel should have found and presented at the penalty phase other mitigating matters that his own investigation had brought to light. These included, among other things, that Trevino’s mother abused alcohol while she was pregnant with Trevino, that Trevino weighed only four pounds at birth, that throughout his life Trevino suffered the deleterious effects of Fetal Alcohol Syndrome, that as a child Trevino had suffered numerous head inju- ries without receiving adequate medical attention, that Trevino’s mother had abused him physically and emotion- ally, that from an early age Trevino was exposed to, and abused, alcohol and drugs, that Trevino had attended school irregularly and performed poorly, and that Tre- vino’s cognitive abilities were impaired. Id., at 66–67. The federal court stayed proceedings to permit Trevino to raise this claim in state court. The state court held that because Trevino had not raised this claim during his initial postconviction proceedings, he had procedurally defaulted the claim, id., at 27–28; and the Federal District Court then denied Trevino’s ineffective-assistance-of-trial- counsel claim, id., at 78–79. The District Court concluded in relevant part that, despite the fact that “even the most minimal investigation . . . would have revealed a wealth of additional mitigating evidence,” an independent and adequate state ground (namely Trevino’s failure to raise the issue during his state postconviction proceeding) Cite as: 569 U. S. ____ (2013) 5 Opinion of the Court barred the federal habeas court from considering the ineffective-assistance-of-trial-counsel claim. Id., at 131– 132. See Coleman v. Thompson, 501 U.S. 722, 729–730 (1991). Trevino appealed. The Fifth Circuit, without consider- ing the merits of Trevino’s ineffective-assistance-of-trial- counsel claim, agreed with the District Court that an independent, adequate state ground, namely Trevino’s procedural default, barred its consideration. 449 Fed. Appx., at 426. Although the Circuit decided Trevino’s case before this Court decided Martinez, the Fifth Circuit’s reasoning in a later case, Ibarra v. Thaler, 687 F.3d 222 (2012), makes clear that the Fifth Circuit would have found that Martinez would have made no difference. That is because in Ibarra the Circuit recognized that Martinez had said that its good-cause exception applies where state law says that a criminal defendant must initially raise his claim of ineffective assistance of trial counsel in initial state collateral review proceedings. 687 F. 3d, at 225–226. Texas law, the Circuit pointed out, does not say explicitly that the defendant must initially raise the claim in state collateral review proceedings. Rather Texas law on its face appears to permit a criminal defend- ant to raise such a claim on direct appeal. Id., at 227. And the Circuit held that that fact means that Martinez does not apply in Texas. 687 F. 3d, at 227. Since the Circuit’s holding in Ibarra (that Martinez does not apply in Texas) would similarly govern this case, we granted certiorari here to determine whether Martinez applies in Texas. II A We begin with Martinez. We there recognized the his- toric importance of federal habeas corpus proceedings as a method for preventing individuals from being held in 6 TREVINO v. THALER Opinion of the Court custody in violation of federal law. Martinez, 566 U. S., at ___ (slip op., at 6–7). See generally Preiser v. Rodriguez, 411 U.S. 475, 484–485 (1973). In general, if a convicted state criminal defendant can show a federal habeas court that his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of habeas corpus that requires a new trial, a new sentence, or release. We similarly recognized the importance of federal ha- beas corpus principles designed to prevent federal courts from interfering with a State’s application of its own firmly established, consistently followed, constitutionally proper procedural rules. Martinez, supra, at ___ (slip op., at 6–7). Those principles have long made clear that a conviction that rests upon a defendant’s state law “proce- dural default” (for example, the defendant’s failure to raise a claim of error at the time or in the place that state law requires), normally rests upon “an independent and ade- quate state ground.” Coleman, 501 U. S., at 729–730. And where a conviction rests upon such a ground, a fed- eral habeas court normally cannot consider the defendant’s federal constitutional claim. Ibid.; see Martinez, 566 U. S., at ___ (slip op., at 6–7). At the same time, we pointed out that “[t]he doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the de- fault and prejudice from a violation of federal law.” Id., at ___ (slip op., at 6–7). And we turned to the issue directly before the Court: whether Martinez had shown “cause” to excuse his state procedural failing. Id., at ___ (slip op., at 15). Martinez argued that his lawyer should have raised, but did not raise, his claim of ineffective assistance of trial counsel during state collateral review proceedings. Id., at ___ (slip op., at 4). He added that this failure, itself amounting to ineffective assistance, was the “cause” of, Cite as: 569 U. S. ____ (2013) 7 Opinion of the Court and ought to excuse, his procedural default. Id., at ___ (slip op., at 4). But this Court had previously held that “[n]egligence on the part of a prisoner’s postconviction attorney does not qualify as ‘cause,’ ” primarily because a “principal” such as the prisoner, “bears the risk of negli- gent conduct on the part of his agent,” the attorney. Ma- ples v. Thomas, 565 U.S. ___, ___ (2012) (slip op., at 12) (quoting Coleman, supra, at 753–754; emphasis added). Martinez, in effect, argued for an exception to Coleman’s broad statement of the law. We ultimately held that a “narrow exception” should “modify the unqualified statement in Coleman that an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a proce- dural default.” Martinez, 566 U. S., at ___ (slip op., at 6). We did so for three reasons. First, the “right to the effective assistance of counsel at trial is a bedrock principle in our justice system. . . . Indeed, the right to counsel is the foundation for our adversary system.” Id., at ___ (slip op., at 9). Second, ineffective assistance of counsel on direct appel- late review could amount to “cause,” excusing a defend- ant’s failure to raise (and thus procedurally defaulting) a constitutional claim. Id., at ___ (slip op., at 8). But States often have good reasons for initially reviewing claims of ineffective assistance of trial counsel during state collat- eral proceedings rather than on direct appellate review. Id., at ___ (slip op., at 9–10). That is because review of such a claim normally requires a different attorney, be- cause it often “depend[s] on evidence outside the trial record,” and because efforts to expand the record on direct appeal may run afoul of “[a]bbreviated deadlines,” depriv- ing the new attorney of “adequate time . . . to investigate the ineffective-assistance claim.” Id., at ___ (slip op., at 10). Third, where the State consequently channels initial 8 TREVINO v. THALER Opinion of the Court review of this constitutional claim to collateral proceed- ings, a lawyer’s failure to raise an ineffective-assistance- of-trial-counsel claim during initial-review collateral proceedings, could (were Coleman read broadly) deprive a defendant of any review of that claim at all. Martinez, supra, at ___ (slip op., at 7). We consequently read Coleman as containing an excep- tion, allowing a federal habeas court to find “cause,” thereby excusing a defendant’s procedural default, where (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.” Martinez, supra, at ___ (slip op., at 11, 15). B Here state law differs from that in Martinez in respect to the fourth requirement. Unlike Arizona, Texas does not expressly require the defendant to raise a claim of ineffec- tive assistance of trial counsel in an initial collateral review proceeding. Rather Texas law on its face appears to permit (but not require) the defendant to raise the claim on direct appeal. Does this difference matter? 1 Two characteristics of the relevant Texas procedures lead us to conclude that it should not make a difference in respect to the application of Martinez. First, Texas proce- dure makes it “virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim” on direct review. Robinson, 16 S.W. 3d, at Cite as: 569 U. S. ____ (2013) 9 Opinion of the Court 810–811. As the Texas Court of Criminal Appeals itself has pointed out, “the inherent nature of most ineffective assistance” of trial counsel “claims” means that the trial court record will often fail to “contai[n] the information necessary to substantiate” the claim. Ex parte Torres, 943 S.W.2d 469, 475 (1997) (en banc). As the Court of Criminal Appeals has also noted, a convicted defendant may make a motion in the trial court for a new trial in order to develop the record on appeal. See Reyes v. State, 849 S.W.2d 812, 816 (1993). And, in principle, the trial court could, in connection with that motion, allow the defendant some additional time to de- velop a further record. Ibid. But that motion-for-new-trial “vehicle is often inadequate because of time constraints and because the trial record has generally not been tran- scribed at this point.” Torres, supra, at 475. See Tex. Rule App. Proc. 21.4 (2013) (motion for a new trial must be made within 30 days of sentencing); Rules 21.8(a), (c) (trial court must dispose of motion within 75 days of sentenc- ing); Rules 35.2(b), 35.3(c) (transcript must be prepared within 120 days of sentencing where a motion for a new trial is filed and this deadline may be extended). Thus, as the Court of Criminal Appeals has concluded, in Texas “a writ of habeas corpus” issued in state collateral proceed- ings ordinarily “is essential to gathering the facts neces- sary to . . . evaluate . . . [ineffective-assistance-of-trial- counsel] claims.” Torres, supra, at 475. See Robinson, supra, at 810–811 (noting that there is “not generally a realistic opportunity to adequately develop the record for appeal in post-trial motions” and that “[t]he time require- ments for filing and presenting a motion for new trial would have made it virtually impossible for appellate counsel to adequately present an ineffective assistance claim to the trial court”). See also Thompson v. State, 9 S.W.3d 808, 813–814, and n. 6 (Tex. Crim. App. 1999) (“[I]n the vast majority of 10 TREVINO v. THALER Opinion of the Court cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland”; only “[r]arely will a reviewing court be pro- vided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim . . .”); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (similar); An- drews v. State, 159 S.W.3d 98, 102–103 (Tex. Crim. App. 2005) (similar); Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005) (per curiam) (similar); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam) (similar). See also 42 G. Dix & J. Schmolesky, Texas Practice Series §29:76, pp. 844–845 (3d ed. 2011) (hereinafter Texas Practice) (explaining that “[o]ften” the requirement that a claim of ineffective assistance of trial counsel be supported by a record containing direct evi- dence of why counsel acted as he did “will require that the claim . . . be raised in postconviction habeas proceedings where a full record on the matter can be raised”). This opinion considers whether, as a systematic matter, Texas affords meaningful review of a claim of ineffective assistance of trial counsel. The present capital case illus- trates why it does not. The trial court appointed new counsel for Trevino eight days after sentencing. Counsel thus had 22 days to decide whether, and on what grounds, to make a motion for a new trial. She then may have had an additional 45 days to provide support for the motion but without the help of a transcript (which did not become available until much later—seven months after the trial). It would have been difficult, perhaps impossible, within that time frame to investigate Trevino’s background, de- termine whether trial counsel had adequately done so, and then develop evidence about additional mitigating background circumstances. See Reyes, supra, at 816 (“[M]otions for new trial [must] be supported by affidavit . . . specifically showing the truth of the grounds of Cite as: 569 U. S. ____ (2013) 11 Opinion of the Court attack”). Second, were Martinez not to apply, the Texas proce- dural system would create significant unfairness. That is because Texas courts in effect have directed defendants to raise claims of ineffective assistance of trial counsel on collateral, rather than on direct, review. As noted, they have explained why direct review proceedings are likely inadequate. See supra, at 8–10. They have held that failure to raise the claim on direct review does not bar the defendant from raising the claim in collateral proceedings. See, e.g., Robinson, 16 S.W. 3d, at 813; Ex parte Duffy, 607 S.W.2d 507, 512–513 (Tex. Crim. App. 1980) (over- ruled on other grounds by Hernandez v. State, 988 S.W. 2d 770 (Tex. Crim. App. 1999)). They have held that the defendant’s decision to raise the claim on direct review does not bar the defendant from also raising the claim in collateral proceedings. See, e.g., Lopez v. State, 343 S.W. 3d 137, 143 (Tex. Crim. App. 2011); Torres, supra, at 475. They have suggested that appellate counsel’s failure to raise the claim on direct review does not constitute “inef- fective assistance of counsel.” See Sprouse v. State, No. AP–74933, 2007 WL 283152, *7 (Tex. Crim. App., Jan. 31, 2007) (unpublished). And Texas’ highest criminal court has explicitly stated that “[a]s a general rule” the de- fendant “should not raise an issue of ineffective assistance of counsel on direct appeal,” but rather in collateral re- view proceedings. Mata v. State, 226 S.W.3d 425, 430, n. 14 (2007) (internal quotation marks omitted). See Rob- inson, supra, at 810 (“[A] post-conviction writ proceeding, rather than a motion for new trial, is the preferred method for gathering the facts necessary to substantiate” an ineffective-assistance-of-trial-counsel claim). The criminal bar, not surprisingly, has taken this strong judicial advice seriously. See Guidelines and Standards for Texas Capital Counsel, 69 Tex. B. J. 966, 977, Guide- line 12.2(B)(1)(d) (2006) (“[S]tate habeas corpus is the first 12 TREVINO v. THALER Opinion of the Court opportunity for a capital client to raise challenges to the effectiveness of trial or direct appeal counsel”). Texas now can point to only a comparatively small number of cases in which a defendant has used the motion-for-a-new-trial mechanism to expand the record on appeal and then re- ceived a hearing on his ineffective-assistance-of-trial- counsel claim on direct appeal. Brief for Respondent 35–36, and n. 6 (citing, inter alia, State v. Morales, 253 S.W. 3d 686, 689–691 (Tex. Crim. App. 2008); Robertson v. State, 187 S.W.3d 475, 480–481 (Tex. Crim. App. 2006)). And, of those, precisely one case involves trial counsel’s investigative failures of the kind at issue here. See Arm- strong v. State, No. AP–75706, 2010 WL 359020 (Tex. Crim. App., Jan. 27, 2010) (unpublished). How could federal law deny defendants the benefit of Martinez solely because of the existence of a theoretically available pro- cedural alternative, namely direct appellate review, that Texas procedures render so difficult, and in the typical case all but impossible, to use successfully, and which Texas courts so strongly discourage defendants from using? Respondent argues that Texas courts enforce the rele- vant time limits more flexibly than we have suggested. Sometimes, for example, an appellate court can abate an appeal and remand the case for further record develop- ment in the trial court. See Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007). But the procedural possibili- ties to which Texas now points seem special, limited in their application, and, as far as we can tell, rarely used. See 43A Texas Practice §50:15, at 636–639; 43B id., §56:235, at 607–609. Cooks, for example, the case upon which respondent principally relies, involved a remand for further record development, but in circumstances where the lower court wrongly failed to give a defendant new counsel in time to make an ordinary new trial motion. 240 S.W. 3d, at 911. We do not believe that this, or other, Cite as: 569 U. S. ____ (2013) 13 Opinion of the Court special, rarely used procedural possibilities can overcome the Texas courts’ own well-supported determination that collateral review normally constitutes the preferred—and indeed as a practical matter, the only—method for raising an ineffective-assistance-of-trial-counsel claim. Respondent further argues that there is no equitable problem to be solved in Texas because if counsel fails to bring a substantial claim of ineffective assistance of trial counsel on direct appeal, the ineffectiveness of appellate counsel may constitute cause to excuse the procedural default. See Murray v. Carrier, 477 U.S. 478 (1986). But respondent points to no case in which such a failure by appellate counsel has been deemed constitutionally inef- fective. And that lack of authority is not surprising given the fact that the Texas Court of Criminal Appeals has directed defendants to bring such claims on collateral review. 2 For the reasons just stated, we believe that the Texas procedural system—as a matter of its structure, design, and operation—does not offer most defendants a meaning- ful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal. What the Arizona law prohibited by explicit terms, Texas law precludes as a matter of course. And, that being so, we can find no signif- icant difference between this case and Martinez. The very factors that led this Court to create a narrow exception to Coleman in Martinez similarly argue for the application of that exception here. The right involved—adequate assistance of counsel at trial—is similarly and critically important. In both in- stances practical considerations, such as the need for a new lawyer, the need to expand the trial court record, and the need for sufficient time to develop the claim, argue strongly for initial consideration of the claim during col- 14 TREVINO v. THALER Opinion of the Court lateral, rather than on direct, review. See Martinez, 566 U. S., at ___ (slip op., at 10); see also Massaro v. United States, 538 U.S. 500, 505 (2003). In both instances failure to consider a lawyer’s “ineffectiveness” during an initial- review collateral proceeding as a potential “cause” for excusing a procedural default will deprive the defendant of any opportunity at all for review of an ineffective- assistance-of-trial-counsel claim. See Martinez, supra, at ___ (slip op., at 7). Thus, for present purposes, a distinction between (1) a State that denies permission to raise the claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic opera- tion, denies a meaningful opportunity to do so is a distinc- tion without a difference. In saying this, we do not (any more than we did in Martinez) seek to encourage States to tailor direct appeals so that they provide a fuller op- portunity to raise ineffective-assistance-of-trial-counsel claims. That is a matter for the States to decide. And, as we have said, there are often good reasons for hearing the claim initially during collateral proceedings. III For these reasons, we conclude that where, as here, state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, our holding in Martinez applies: “[A] procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U. S., at ___ (slip op., at 15). Cite as: 569 U. S. ____ (2013) 15 Opinion of the Court Given this holding, Texas submits that its courts should be permitted, in the first instance, to decide the merits of Trevino’s ineffective-assistance-of-trial-counsel claim. Brief for Respondent 58–60. We leave that matter to be determined on remand. Likewise, we do not decide here whether Trevino’s claim of ineffective assistance of trial counsel is substantial or whether Trevino’s initial state habeas attorney was ineffective. For these reasons we vacate the Fifth Circuit’s judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 569 U. S. ____ (2013) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 11–10189 _________________ CARLOS TREVINO, PETITIONER v.

In we considered the right of a state prisoner to raise, in a federal habeas corpus proceeding, a claim of ineffective assistance of trial counsel. In that case an Arizona procedural rule required a defendant convicted at trial to raise a claim of ineffective assistance of trial counsel during his first state collateral review proceeding—or lose the claim. The defendant in did not comply with the state procedural rule. But he argued that the federal habeas court should excuse his state procedural failing, on the ground that he had good “cause” for not raising the claim at the right time, namely that, not only had he lacked effective counsel during trial, but also he lacked effective counsel during his first state collateral review proceeding. We held that lack of counsel on collateral review might excuse defendant’s state law procedural default. We wrote: “[A] procedural default will not bar a federal habeas 2 TREVINO v. THALER Opinion of the Court court from hearing a substantial claim of ineffective assistance at trial if, in the [State’s] initial-review col- lateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” at (slip op., at 15). At the same time we qualified our holding. We said that the holding applied where state procedural law said that “claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding.” (emphasis added). In this case Texas state law does not say “must.” It does not on its face require a defendant initially to raise an ineffective-assistance-of-trial-counsel claim in a state col- lateral review proceeding. Rather, that law appears at first glance to permit (but not require) the defendant initially to raise a claim of ineffective assistance of trial counsel on direct appeal. The structure and design of the Texas system in actual operation, however, make it “vir- tually impossible” for an ineffective assistance claim to be presented on direct review. See v. State, 16 S.W.3d 808, 810–811 (Tex. Crim. App. 2000). We must now decide whether the exception applies in this procedural regime. We conclude that it does. I A Texas state court jury convicted petitioner, Carlos Trevino, of capital murder. After a subsequent penalty- phase hearing, the jury found that Trevino “would commit criminal acts of violence in the future which would consti- tute a continuing threat to society,” that he “actually caused the death of Linda Salinas or, if he did not actually cause her death, he intended to kill her or another, or he anticipated a human life would be taken,” and that “there were insufficient mitigating circumstances to warrant a sentence of life imprisonment” rather than death. 449 Fed. Appx. 415, 418 (CA5 2011). The judge consequently Cite as: 569 U. S. (2013) 3 Opinion of the Court imposed a sentence of death. Eight days later the judge appointed new counsel to handle Trevino’s direct appeal. App. 1, 3. Seven months after sentencing, when the trial transcript first became available, that counsel filed an appeal. The Texas Court of Criminal Appeals then considered and rejected Trevino’s appellate claims. Trevino’s appellate counsel did not claim that Trevino’s trial counsel had been constitutionally ineffective during the penalty phase of the trial court pro- ceedings. at 12–24. About six months after sentencing, the trial judge ap- pointed Trevino a different new counsel to seek state collateral relief. As Texas’ procedural rules provide, that third counsel initiated collateral proceedings while Tre- vino’s appeal still was in progress. This new counsel first sought postconviction relief (through collateral review) in the trial court itself. After a hearing, the trial court de- nied relief; and the Texas Court of Criminal Appeals affirmed that denial. at 25–26, 321–349. Trevino’s postconviction claims included a claim that his trial coun- sel was constitutionally ineffective during the penalty phase of Trevino’s trial, but it did not include a claim that trial counsel’s ineffectiveness consisted in part of a failure adequately to investigate and to present mitigating circum- stances during the penalty phase of Trevino’s trial. at 321–349; see (counsel’s failure to investigate and present mitigating circumstances deprived defendant of effective assistance of counsel). Trevino then filed a petition in federal court seeking a writ of habeas corpus. The Federal District Court ap- pointed another new counsel to represent him. And that counsel claimed for the first time that Trevino had not received constitutionally effective counsel during the penalty phase of his trial in part because of trial counsel’s failure to adequately investigate and present mitigating 4 TREVINO v. THALER Opinion of the Court circumstances during the penalty phase. App. 438, 456– 478. Federal habeas counsel pointed out that Trevino’s trial counsel had presented only one witness at the sen- tencing phase, namely Trevino’s aunt. The aunt had testified that Trevino had had a difficult upbringing, that his mother had an alcohol problem, that his family was on welfare, and that he had dropped out of high school. She had added that Trevino had a child, that he was good with children, and that he was not violent. at 285–291. Federal habeas counsel then told the federal court that Trevino’s trial counsel should have found and presented at the penalty phase other mitigating matters that his own investigation had brought to light. These included, among other things, that Trevino’s mother abused alcohol while she was pregnant with Trevino, that Trevino weighed only four pounds at birth, that throughout his life Trevino suffered the deleterious effects of Fetal Alcohol Syndrome, that as a child Trevino had suffered numerous head inju- ries without receiving adequate medical attention, that Trevino’s mother had abused him physically and emotion- ally, that from an early age Trevino was exposed to, and abused, alcohol and drugs, that Trevino had attended school irregularly and performed poorly, and that Tre- vino’s cognitive abilities were impaired. at 66–67. The federal court stayed proceedings to permit Trevino to raise this claim in state court. The state court held that because Trevino had not raised this claim during his initial postconviction proceedings, he had procedurally defaulted the claim, at 27–28; and the Federal District Court then denied Trevino’s ineffective-assistance-of-trial- counsel claim, at 78–79. The District Court concluded in relevant part that, despite the fact that “even the most minimal investigation would have revealed a wealth of additional mitigating evidence,” an independent and adequate state ground (namely Trevino’s failure to raise the issue during his state postconviction proceeding) Cite as: 569 U. S. (2013) 5 Opinion of the Court barred the federal habeas court from considering the ineffective-assistance-of-trial-counsel claim. at 131– 132. See U.S. 722, 729–730 (1991). Trevino appealed. The Fifth Circuit, without consider- ing the merits of Trevino’s ineffective-assistance-of-trial- counsel claim, agreed with the District Court that an independent, adequate state ground, namely Trevino’s procedural default, barred its consideration. 449 Fed. Appx., at 426. Although the Circuit decided Trevino’s case before this Court decided the Fifth Circuit’s reasoning in a later case, makes clear that the Fifth Circuit would have found that would have made no difference. That is because in Ibarra the Circuit recognized that had said that its good-cause exception applies where state law says that a criminal defendant must initially raise his claim of ineffective assistance of trial counsel in initial state collateral review proceedings. 687 F. 3d, at 225–226. Texas law, the Circuit pointed out, does not say explicitly that the defendant must initially raise the claim in state collateral review proceedings. Rather Texas law on its face appears to permit a criminal defend- ant to raise such a claim on direct appeal. And the Circuit held that that fact means that does not apply in 687 F. 3d, Since the Circuit’s holding in Ibarra (that does not apply in Texas) would similarly govern this case, we granted certiorari here to determine whether applies in II A We begin with We there recognized the his- toric importance of federal habeas corpus proceedings as a method for preventing individuals from being held in 6 TREVINO v. THALER Opinion of the Court custody in violation of federal law. 566 U. S., at (slip op., at 6–7). See generally In general, if a convicted state criminal defendant can show a federal habeas court that his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of habeas corpus that requires a new trial, a new sentence, or release. We similarly recognized the importance of federal ha- beas corpus principles designed to prevent federal courts from interfering with a State’s application of its own firmly established, consistently followed, constitutionally proper procedural rules. at (slip op., at 6–7). Those principles have long made clear that a conviction that rests upon a defendant’s state law “proce- dural default” (for example, the defendant’s failure to raise a claim of error at the time or in the place that state law requires), normally rests upon “an independent and ade- quate state ground.” –730. And where a conviction rests upon such a ground, a fed- eral habeas court normally cannot consider the defendant’s federal constitutional claim. ; see 566 U. S., at (slip op., at 6–7). At the same time, we pointed out that “[t]he doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the de- fault and prejudice from a violation of federal law.” at (slip op., at 6–7). And we turned to the issue directly before the Court: whether had shown “cause” to excuse his state procedural failing. at (slip op., at 15). argued that his lawyer should have raised, but did not raise, his claim of ineffective assistance of trial counsel during state collateral review proceedings. at (slip op., at 4). He added that this failure, itself amounting to ineffective assistance, was the “cause” of, Cite as: 569 U. S. (2013) 7 Opinion of the Court and ought to excuse, his procedural default. at (slip op., at 4). But this Court had previously held that “[n]egligence on the part of a prisoner’s postconviction attorney does not qualify as ‘cause,’ ” primarily because a “principal” such as the prisoner, “bears the risk of negli- gent conduct on the part of his agent,” the attorney. Ma- ples v. Thomas, 565 U.S. (slip op., at 12) (quoting at 753–754; emphasis added). in effect, argued for an exception to ’s broad statement of the law. We ultimately held that a “narrow exception” should “modify the unqualified statement in that an attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a proce- dural default.” 566 U. S., at (slip op., at 6). We did so for three reasons. First, the “right to the effective assistance of counsel at trial is a bedrock principle in our justice system. Indeed, the right to counsel is the foundation for our adversary system.” at (slip op., at 9). Second, ineffective assistance of counsel on direct appel- late review could amount to “cause,” excusing a defend- ant’s failure to raise (and thus procedurally defaulting) a constitutional claim. at (slip op., at 8). But States often have good reasons for initially reviewing claims of ineffective assistance of trial counsel during state collat- eral proceedings rather than on direct appellate review. at (slip op., at 9–10). That is because review of such a claim normally requires a different attorney, be- cause it often “depend[s] on evidence outside the trial record,” and because efforts to expand the record on direct appeal may run afoul of “[a]bbreviated deadlines,” depriv- ing the new attorney of “adequate time to investigate the ineffective-assistance claim.” at (slip op., at 10). Third, where the State consequently channels initial 8 TREVINO v. THALER Opinion of the Court review of this constitutional claim to collateral proceed- ings, a lawyer’s failure to raise an ineffective-assistance- of-trial-counsel claim during initial-review collateral proceedings, could (were read broadly) deprive a defendant of any review of that claim at all. at (slip op., at 7). We consequently read as containing an excep- tion, allowing a federal habeas court to find “cause,” thereby excusing a defendant’s procedural default, where (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] be raised in an initial-review collateral proceeding.” at (slip op., at 11, 15). B Here state law differs from that in in respect to the fourth requirement. Unlike Arizona, Texas does not expressly require the defendant to raise a claim of ineffec- tive assistance of trial counsel in an initial collateral review proceeding. Rather Texas law on its face appears to permit (but not require) the defendant to raise the claim on direct appeal. Does this difference matter? 1 Two characteristics of the relevant Texas procedures lead us to conclude that it should not make a difference in respect to the application of First, Texas proce- dure makes it “virtually impossible for appellate counsel to adequately present an ineffective assistance [of trial counsel] claim” on direct review. 16 S.W. 3d, at Cite as: 569 U. S. (2013) 9 Opinion of the Court 810–811. As the Texas Court of Criminal Appeals itself has pointed out, “the inherent nature of most ineffective assistance” of trial counsel “claims” means that the trial court record will often fail to “contai[n] the information necessary to substantiate” the claim. Ex parte 943 S.W.2d 469, 475 (1997) (en banc). As the Court of Criminal Appeals has also noted, a convicted defendant may make a motion in the trial court for a new trial in order to develop the record on appeal. See And, in principle, the trial court could, in connection with that motion, allow the defendant some additional time to de- velop a further record. But that motion-for-new-trial “vehicle is often inadequate because of time constraints and because the trial record has generally not been tran- scribed at this point.” See Tex. Rule App. Proc. 21.4 (2013) (motion for a new trial must be made within 30 days of sentencing); Rules 21.8(a), (c) (trial court must dispose of motion within 75 days of sentenc- ing); Rules 35.2(b), 35.3(c) (transcript must be prepared within 120 days of sentencing where a motion for a new trial is filed and this deadline may be extended). Thus, as the Court of Criminal Appeals has concluded, in Texas “a writ of habeas corpus” issued in state collateral proceed- ings ordinarily “is essential to gathering the facts neces- sary to evaluate [ineffective-assistance-of-trial- counsel] claims.” See –811 (noting that there is “not generally a realistic opportunity to adequately develop the record for appeal in post-trial motions” and that “[t]he time require- ments for filing and presenting a motion for new trial would have made it virtually impossible for appellate counsel to adequately present an ineffective assistance claim to the trial court”). See also 813–814, and n. 6 (Tex. Crim. App. 1999) (“[I]n the vast majority of 10 TREVINO v. THALER Opinion of the Court cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland”; only “[r]arely will a reviewing court be pro- vided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim”); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (similar); An- 102–103 (Tex. Crim. App. 2005) (similar); Ex parte Brown, (Tex. Crim. App. 2005) (per curiam) (similar); Jackson v. State, (per curiam) (similar). See also 42 G. Dix & J. Schmolesky, Texas Practice Series pp. 844–845 (3d ed. 2011) (hereinafter Texas Practice) (explaining that “[o]ften” the requirement that a claim of ineffective assistance of trial counsel be supported by a record containing direct evi- dence of why counsel acted as he did “will require that the claim be raised in postconviction habeas proceedings where a full record on the matter can be raised”). This opinion considers whether, as a systematic matter, Texas affords meaningful review of a claim of ineffective assistance of trial counsel. The present capital case illus- trates why it does not. The trial court appointed new counsel for Trevino eight days after sentencing. Counsel thus had 22 days to decide whether, and on what grounds, to make a motion for a new trial. She then may have had an additional 45 days to provide support for the motion but without the help of a transcript (which did not become available until much later—seven months after the trial). It would have been difficult, perhaps impossible, within that time frame to investigate Trevino’s background, de- termine whether trial counsel had adequately done so, and then develop evidence about additional mitigating background circumstances. See at (“[M]otions for new trial [must] be supported by affidavit specifically showing the truth of the grounds of Cite as: 569 U. S. (2013) 11 Opinion of the Court attack”). Second, were not to apply, the Texas proce- dural system would create significant unfairness. That is because Texas courts in effect have directed defendants to raise claims of ineffective assistance of trial counsel on collateral, rather than on direct, review. As noted, they have explained why direct review proceedings are likely inadequate. See at 8–10. They have held that failure to raise the claim on direct review does not bar the defendant from raising the claim in collateral proceedings. See, e.g., ; Ex parte Duffy, (over- ruled on other grounds by Hernandez v. State, 988 S.W. 2d 770 (Tex. Crim. App. 1999)). They have held that the defendant’s decision to raise the claim on direct review does not bar the defendant from also raising the claim in collateral proceedings. See, e.g., Lopez v. State, 343 S.W. 3d 137, 143 (Tex. Crim. App. 2011); They have suggested that appellate counsel’s failure to raise the claim on direct review does not constitute “inef- fective assistance of counsel.” See (Tex. Crim. App., Jan. 31, 2007) (unpublished). And Texas’ highest criminal court has explicitly stated that “[a]s a general rule” the de- fendant “should not raise an issue of ineffective assistance of counsel on direct appeal,” but rather in collateral re- view proceedings. n. 14 (2007) (internal quotation marks omitted). See Rob- (“[A] post-conviction writ proceeding, rather than a motion for new trial, is the preferred method for gathering the facts necessary to substantiate” an ineffective-assistance-of-trial-counsel claim). The criminal bar, not surprisingly, has taken this strong judicial advice seriously. See Guidelines and Standards for Texas Capital Counsel, 69 Tex. B. J. 966, 977, Guide- line 12.2(B)(1)(d) (“[S]tate habeas corpus is the first 12 TREVINO v. THALER Opinion of the Court opportunity for a capital client to raise challenges to the effectiveness of trial or direct appeal counsel”). Texas now can point to only a comparatively small number of cases in which a defendant has used the motion-for-a-new-trial mechanism to expand the record on appeal and then re- ceived a hearing on his ineffective-assistance-of-trial- counsel claim on direct appeal. Brief for Respondent 35–36, and n. 6 (citing, inter alia, State v. Morales, 253 S.W. 3d 686, 689–691 (Tex. Crim. App. 2008); Robertson v. State, ). And, of those, precisely one case involves trial counsel’s investigative failures of the kind at issue here. See Arm- (Tex. Crim. App., Jan. 27, 2010) (unpublished). How could federal law deny defendants the benefit of solely because of the existence of a theoretically available pro- cedural alternative, namely direct appellate review, that Texas procedures render so difficult, and in the typical case all but impossible, to use successfully, and which Texas courts so strongly discourage defendants from using? Respondent argues that Texas courts enforce the rele- vant time limits more flexibly than we have suggested. Sometimes, for example, an appellate court can abate an appeal and remand the case for further record develop- ment in the trial court. See Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007). But the procedural possibili- ties to which Texas now points seem special, limited in their application, and, as far as we can tell, rarely used. See 43A Texas Practice at 636–639; 43B at 607–609. Cooks, for example, the case upon which respondent principally relies, involved a remand for further record development, but in circumstances where the lower court wrongly failed to give a defendant new counsel in time to make an ordinary new trial motion. 240 S.W. 3d, at 911. We do not believe that this, or other, Cite as: 569 U. S. (2013) 13 Opinion of the Court special, rarely used procedural possibilities can overcome the Texas courts’ own well-supported determination that collateral review normally constitutes the preferred—and indeed as a practical matter, the only—method for raising an ineffective-assistance-of-trial-counsel claim. Respondent further argues that there is no equitable problem to be solved in Texas because if counsel fails to bring a substantial claim of ineffective assistance of trial counsel on direct appeal, the ineffectiveness of appellate counsel may constitute cause to excuse the procedural default. See But respondent points to no case in which such a failure by appellate counsel has been deemed constitutionally inef- fective. And that lack of authority is not surprising given the fact that the Texas Court of Criminal Appeals has directed defendants to bring such claims on collateral review. 2 For the reasons just stated, we believe that the Texas procedural system—as a matter of its structure, design, and operation—does not offer most defendants a meaning- ful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal. What the Arizona law prohibited by explicit terms, Texas law precludes as a matter of course. And, that being so, we can find no signif- icant difference between this case and The very factors that led this Court to create a narrow exception to in similarly argue for the application of that exception here. The right involved—adequate assistance of counsel at trial—is similarly and critically important. In both in- stances practical considerations, such as the need for a new lawyer, the need to expand the trial court record, and the need for sufficient time to develop the claim, argue strongly for initial consideration of the claim during col- 14 TREVINO v. THALER Opinion of the Court lateral, rather than on direct, review. See 566 U. S., at (slip op., at 10); see also In both instances failure to consider a lawyer’s “ineffectiveness” during an initial- review collateral proceeding as a potential “cause” for excusing a procedural default will deprive the defendant of any opportunity at all for review of an ineffective- assistance-of-trial-counsel claim. See at (slip op., at 7). Thus, for present purposes, a distinction between (1) a State that denies permission to raise the claim on direct appeal and (2) a State that in theory grants permission but, as a matter of procedural design and systemic opera- tion, denies a meaningful opportunity to do so is a distinc- tion without a difference. In saying this, we do not (any more than we did in ) seek to encourage States to tailor direct appeals so that they provide a fuller op- portunity to raise ineffective-assistance-of-trial-counsel claims. That is a matter for the States to decide. And, as we have said, there are often good reasons for hearing the claim initially during collateral proceedings. III For these reasons, we conclude that where, as here, state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, our holding in applies: “[A] procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U. S., at (slip op., at 15). Cite as: 569 U. S. (2013) 15 Opinion of the Court Given this holding, Texas submits that its courts should be permitted, in the first instance, to decide the merits of Trevino’s ineffective-assistance-of-trial-counsel claim. Brief for Respondent 58–60. We leave that matter to be determined on remand. Likewise, we do not decide here whether Trevino’s claim of ineffective assistance of trial counsel is substantial or whether Trevino’s initial state habeas attorney was ineffective. For these reasons we vacate the Fifth Circuit’s judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 569 U. S. (2013) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 11–10189 CARLOS TREVINO, PETITIONER v.

Justice Roberts

dissenting

Trevino v. Thaler

2013-05-28

https://www.courtlistener.com/opinion/872994/trevino-v-thaler/

https://www.courtlistener.com/api/rest/v3/clusters/872994/

2012-049

In our federal system, the “state courts are the principal forum for asserting constitutional challenges to state convictions.” Harrington v. Richter, 562 U.S. __, __ (2011) (slip op., at 13). “Federal courts sitting in habeas,” we have said, “are not an alternative forum for trying . . . issues which a prisoner made insufficient effort to pursue in state proceedings.” Williams v. Taylor, 529 U.S. 420, 437 (2000). This basic principle reflects the fact that federal habeas review “ ‘intrudes on state sovereignty to a degree matched by few exercises of federal judicial au- thority.’ ” Richter, supra, at ___ (slip op., at 13) (quoting Harris v. Reed, 489 U.S. 255, 282 (1989) (KENNEDY, J., dissenting)). In order to prevent circumvention of the state courts and the unjustified intrusion on state sovereignty that results, we have held that “a state prisoner [who] fails to exhaust state remedies . . . [or] has failed to meet the State’s procedural requirements for presenting his federal claims” will not be entitled to federal habeas relief unless he can show “cause” to excuse his default. Coleman v. Thompson, 501 U.S. 722, 732, 750 (1991). There is an 2 TREVINO v. THALER ROBERTS, C. J., dissenting exception to that rule where “failure to consider the claims will result in a fundamental miscarriage of justice,” ibid.; that exception is not at issue here. Cause comes in different forms, but the one relevant here is attorney error. We recognized in Coleman that “[w]here a [habeas] petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitu- tional matter, must bear the cost of any resulting default.” Id., at 754. But we simultaneously recognized that “[a] different allocation of costs is appropriate in those circum- stances where the State has no responsibility to ensure that the petitioner was represented by competent counsel.” Ibid. In that situation, we held, “it is the petitioner who must bear the burden of a failure to follow state proce- dural rules.” Ibid. Because the error in Coleman occurred during state postconviction proceedings, a point at which the habeas petitioner had no constitutional right to coun- sel, the petitioner had to bear the cost of his default. Id., at 757. Last Term, in Martinez v. Ryan, we announced a “nar- row exception” to Coleman’s “unqualified statement . . . that an attorney’s ignorance or inadvertence in a postcon- viction proceeding does not qualify as cause to excuse a procedural default.” 566 U.S. 1, ___ (2012) (slip op., at 6). In Martinez, Arizona law did not allow defendants to raise ineffective assistance of counsel claims on direct appeal; they could only raise such claims in state collateral pro- ceedings. Id., at ___ (slip op., at 2). We held that while Arizona was free to structure its state court procedures in this way, its “decision is not without consequences for the State’s ability to assert a procedural default in later pro- ceedings.” Id., at ___ (slip op., at 10). “By deliberately choosing to move trial-ineffectiveness claims outside of the direct-appeal process, where counsel is constitutionally guaranteed, the State significantly diminishes prisoners’ Cite as: 569 U. S. ____ (2013) 3 ROBERTS, C. J., dissenting ability to file such claims.” Ibid. Thus, “within the con- text of this state procedural framework,” attorney error would qualify as cause to excuse procedural default if it occurred in the first proceeding at which the prisoner was “allow[ed]” to raise his trial ineffectiveness claim. Id., at ___, ___ (slip op., at 10, 13). We were unusually explicit about the narrowness of our decision: “The holding in this case does not concern attor- ney errors in other kinds of proceedings,” and “does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial.” Id., at ___–___ (slip op., at 13–14). “Our holding here addresses only the constitu- tional claims presented in this case, where the State barred the defendant from raising the claims on direct appeal.” Id., at ___ (slip op., at 14). In “all but the limited circumstances recognized here,” we said, “[t]he rule of Coleman governs.” Id., at ___ (slip op., at 13). This aggressively limiting language was not simply a customary nod to the truism that “we decide only the case before us.” Upjohn Co. v. United States, 449 U.S. 383, 396 (1981). It was instead an important part of our explana- tion for why “[t]his limited qualification to Coleman does not implicate the usual concerns with upsetting reliance interests protected by stare decisis principles.” Martinez, supra, at ___ (slip op., at 12). The fact that the exception was clearly delineated ensured that the Coleman rule would remain administrable. And because States could readily anticipate how such a sharply defined exception would apply to various procedural frameworks, the excep- tion could be reconciled with our concerns for comity and equitable balancing that led to Coleman’s baseline rule in the first place. See Coleman, supra, at 750–751. The States had a clear choice, which they could make with full knowledge of the consequences: If a State “deliberately cho[se] to move trial-ineffectiveness claims outside of the 4 TREVINO v. THALER ROBERTS, C. J., dissenting direct-appeal process” through a “decision to bar defendants from raising” them there, then—and only then—would “counsel’s ineffectiveness in an initial-review collateral proceeding qualif[y] as cause for a procedural default.” Martinez, 566 U. S., at ___, ___ (slip op., at 10, 14). Today, with hardly a mention of these concerns, the majority throws over the crisp limit we made so explicit just last Term. We announced in Martinez that the excep- tion applies “where the State barred the defendant from raising the claims on direct appeal.” Id., at ___ (slip op., at 14). But today, the Court takes all the starch out of its rule with an assortment of adjectives, adverbs, and modi- fying clauses: Martinez’s “narrow exception” now applies whenever the “state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity” to raise his claim on direct appeal. Ante, at 14. The questions raised by this equitable equation are as endless as will be the state-by-state litigation it takes to work them out. We are not told, for example, how mean- ingful is meaningful enough, how meaningful-ness is to be measured, how unlikely highly unlikely is, how often a procedural framework’s “operation” must be reassessed, or what case qualifies as the “typical” case. Take just this last example: The case before us involved a jury trial (hardly typical), a capital conviction (even less typical), and—as the majority emphasizes—a particular species of ineffectiveness claim that depends on time-consuming investigation of personal background and other mitigating circumstances. Ante, at 10. Yet the majority holds it up, apparently, as a case that is typical in the relevant sense, saying that “[t]he present capital case illustrates” the “systematic” working of Texas’s procedural framework. Ibid. Given that the standard is so opaque and malleable, the Cite as: 569 U. S. ____ (2013) 5 ROBERTS, C. J., dissenting majority cannot describe the exception applied here as narrow, and does not do so. Gone are the repeated words of limitation that characterized the Martinez opinion. Gone too is the clear choice that Martinez gave the States about how to structure their criminal justice systems. Now, the majority offers them a gamble: If a State allows defendants to bring ineffectiveness claims both on direct appeal and in postconviction proceedings, then a prisoner might have to comply with state procedural requirements in order to preserve the availability of federal habeas review, if a federal judge decides that the state system gave the defendant (or enough other “typical” defendants) a sufficiently meaningful opportunity to press his claim. This invitation to litigation will, in precisely the manner that Coleman foreclosed, “ ‘frustrate both the States’ sov- ereign power to punish offenders and their good-faith attempts to honor constitutional rights.’ ” Coleman, 501 U. S., at 748 (quoting Engle v. Isaac, 456 U.S. 107, 128 (1982)). In what I suspect (though cannot know) will be a broad swath of cases, the Court’s approach will excuse procedural defaults that, under Coleman, should preclude federal review. But even in cases where federal courts ultimately decide that the habeas petitioner cannot estab- lish cause under the new standard, the years of procedural wrangling it takes to reach that decision will themselves undermine the finality of sentences necessary to effective criminal justice. Because that approach is inconsistent with Coleman, Martinez itself, and the principles of equi- table discretion and comity at the heart of both, I respect- fully dissent. Cite as: 569 U. S. ____ (2013) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 11–10189 _________________ CARLOS TREVINO, PETITIONER v.

In our federal system, the “state courts are the principal forum for asserting constitutional challenges to state convictions.” Harrington v. 562 U.S. (2011) (slip op., at 13). “Federal courts sitting in habeas,” we have said, “are not an alternative forum for trying issues which a prisoner made insufficient effort to pursue in state proceedings.” 437 (2000). This basic principle reflects the fact that federal habeas review “ ‘intrudes on state sovereignty to a degree matched by few exercises of federal judicial au- thority.’ ” at (slip op., at 13) (KENNEDY, J., dissenting)). In order to prevent circumvention of the state courts and the unjustified intrusion on state sovereignty that results, we have held that “a state prisoner [who] fails to exhaust state remedies [or] has failed to meet the State’s procedural requirements for presenting his federal claims” will not be entitled to federal habeas relief unless he can show “cause” to excuse his default. v. There is an 2 TREVINO v. THALER ROBERTS, C. J., dissenting exception to that rule where “failure to consider the claims will result in a fundamental miscarriage of justice,” ibid.; that exception is not at issue here. Cause comes in different forms, but the one relevant here is attorney error. We recognized in that “[w]here a [habeas] petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitu- tional matter, must bear the cost of any resulting default.” But we simultaneously recognized that “[a] different allocation of costs is appropriate in those circum- stances where the State has no responsibility to ensure that the petitioner was represented by competent counsel.” In that situation, we held, “it is the petitioner who must bear the burden of a failure to follow state proce- dural rules.” Because the error in occurred during state postconviction proceedings, a point at which the habeas petitioner had no constitutional right to coun- sel, the petitioner had to bear the cost of his default. at 757. Last Term, in Martinez v. Ryan, we announced a “nar- row exception” to ’s “unqualified statement that an attorney’s ignorance or inadvertence in a postcon- viction proceeding does not qualify as cause to excuse a procedural default.” In Martinez, Arizona law did not allow defendants to raise ineffective assistance of counsel claims on direct appeal; they could only raise such claims in state collateral pro- ceedings. at (slip op., at 2). We held that while Arizona was free to structure its state court procedures in this way, its “decision is not without consequences for the State’s ability to assert a procedural default in later pro- ceedings.” at (slip op., at 10). “By deliberately choosing to move trial-ineffectiveness claims outside of the direct-appeal process, where counsel is constitutionally guaranteed, the State significantly diminishes prisoners’ Cite as: 569 U. S. (2013) 3 ROBERTS, C. J., dissenting ability to file such claims.” Thus, “within the con- text of this state procedural framework,” attorney error would qualify as cause to excuse procedural default if it occurred in the first proceeding at which the prisoner was “allow[ed]” to raise his trial ineffectiveness claim. at (slip op., at 10, 13). We were unusually explicit about the narrowness of our decision: “The holding in this case does not concern attor- ney errors in other kinds of proceedings,” and “does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial.” at – (slip op., at 13–14). “Our holding here addresses only the constitu- tional claims presented in this case, where the State barred the defendant from raising the claims on direct appeal.” at (slip op., at 14). In “all but the limited circumstances recognized here,” we said, “[t]he rule of governs.” at (slip op., at 13). This aggressively limiting language was not simply a customary nod to the truism that “we decide only the case before us.” Upjohn (1981). It was instead an important part of our explana- tion for why “[t]his limited qualification to does not implicate the usual concerns with upsetting reliance interests protected by stare decisis principles.” Martinez, at (slip op., at 12). The fact that the exception was clearly delineated ensured that the rule would remain administrable. And because States could readily anticipate how such a sharply defined exception would apply to various procedural frameworks, the excep- tion could be reconciled with our concerns for comity and equitable balancing that led to ’s baseline rule in the first place. See at 750–751. The States had a clear choice, which they could make with full knowledge of the consequences: If a State “deliberately cho[se] to move trial-ineffectiveness claims outside of the 4 TREVINO v. THALER ROBERTS, C. J., dissenting direct-appeal process” through a “decision to bar defendants from raising” them there, then—and only then—would “counsel’s ineffectiveness in an initial-review collateral proceeding qualif[y] as cause for a procedural default.” Martinez, 566 U. S., at (slip op., at 10, 14). Today, with hardly a mention of these concerns, the majority throws over the crisp limit we made so explicit just last Term. We announced in Martinez that the excep- tion applies “where the State barred the defendant from raising the claims on direct appeal.” at (slip op., at 14). But today, the Court takes all the starch out of its rule with an assortment of adjectives, adverbs, and modi- fying clauses: Martinez’s “narrow exception” now applies whenever the “state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity” to raise his claim on direct appeal. Ante, at 14. The questions raised by this equitable equation are as endless as will be the state-by-state litigation it takes to work them out. We are not told, for example, how mean- ingful is meaningful enough, how meaningful-ness is to be measured, how unlikely highly unlikely is, how often a procedural framework’s “operation” must be reassessed, or what case qualifies as the “typical” case. Take just this last example: The case before us involved a jury trial (hardly typical), a capital conviction (even less typical), and—as the majority emphasizes—a particular species of ineffectiveness claim that depends on time-consuming investigation of personal background and other mitigating circumstances. Ante, at 10. Yet the majority holds it up, apparently, as a case that is typical in the relevant sense, saying that “[t]he present capital case illustrates” the “systematic” working of Texas’s procedural framework. Given that the standard is so opaque and malleable, the Cite as: 569 U. S. (2013) 5 ROBERTS, C. J., dissenting majority cannot describe the exception applied here as narrow, and does not do so. Gone are the repeated words of limitation that characterized the Martinez opinion. Gone too is the clear choice that Martinez gave the States about how to structure their criminal justice systems. Now, the majority offers them a gamble: If a State allows defendants to bring ineffectiveness claims both on direct appeal and in postconviction proceedings, then a prisoner might have to comply with state procedural requirements in order to preserve the availability of federal habeas review, if a federal judge decides that the state system gave the defendant (or enough other “typical” defendants) a sufficiently meaningful opportunity to press his claim. This invitation to litigation will, in precisely the manner that foreclosed, “ ‘frustrate both the States’ sov- ereign power to punish offenders and their good-faith attempts to honor constitutional rights.’ ” 501 U. S., at 748 (quoting (1982)). In what I suspect (though cannot know) will be a broad swath of cases, the Court’s approach will excuse procedural defaults that, under should preclude federal review. But even in cases where federal courts ultimately decide that the habeas petitioner cannot estab- lish cause under the new standard, the years of procedural wrangling it takes to reach that decision will themselves undermine the finality of sentences necessary to effective criminal justice. Because that approach is inconsistent with Martinez itself, and the principles of equi- table discretion and comity at the heart of both, I respect- fully dissent. Cite as: 569 U. S. (2013) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES No. 11–10189 CARLOS TREVINO, PETITIONER v.

Justice Scalia

second_dissenting

Trevino v. Thaler

2013-05-28

https://www.courtlistener.com/opinion/872994/trevino-v-thaler/

https://www.courtlistener.com/api/rest/v3/clusters/872994/

2012-049

I dissent for the reasons set forth in my dissent in Mar- tinez v. Ryan, 566 U.S. 1 (2012). That opinion sought to minimize the impact of its novel holding as follows: “Our holding here addresses only the constitutional claims presented in this case, where the State barred the defendant from raising the claims on direct ap- peal.’’ Id., at ___ (slip op., at 14). I wrote in my dissent: “That line lacks any principled basis, and will not last.’’ Id., at ___ (slip op., at 2, n. 1). The Court says today: “Texas law on its face appears to permit (but not re- quire) the defendant to raise the claim on direct ap- peal. Does this difference matter?’’ “[W]e can find no significant difference between this case and Mar- tinez.’’ Ante, at 8, 13 (emphasis removed).

I dissent for the reasons set forth in my dissent in Mar- That opinion sought to minimize the impact of its novel holding as follows: “Our holding here addresses only the constitutional claims presented in this case, where the State barred the defendant from raising the claims on direct ap- peal.’’ at (slip op., at 14). I wrote in my dissent: “That line lacks any principled basis, and will not last.’’ at (slip op., at 2, n. 1). The Court says today: “Texas law on its face appears to permit (but not re- quire) the defendant to raise the claim on direct ap- peal. Does this difference matter?’’ “[W]e can find no significant difference between this case and Mar- tinez.’’ Ante, at 8, 13 (emphasis removed).

Justice Sotomayor

majority

Lewis v. Clarke

2017-04-25

https://www.courtlistener.com/opinion/4385683/lewis-v-clarke/

https://www.courtlistener.com/api/rest/v3/clusters/4385683/

2016-034

Indian tribes are generally entitled to immunity from suit. This Court has considered the scope of that immu- nity in a number of circumstances. This case presents an ordinary negligence action brought against a tribal em- ployee in state court under state law. We granted certio- rari to resolve whether an Indian tribe’s sovereign immu- nity bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment and for which the employees are indemnified by the tribe. We hold that, in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immu- nity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity. We hold further that an indemnification provi- sion does not extend a tribe’s sovereign immunity where it otherwise would not reach. Accordingly, we reverse and 2 LEWIS v. CLARKE Opinion of the Court remand. I A The Mohegan Tribe of Indians of Connecticut traces its lineage back centuries. Originally part of the Lenni Le- nape, the Tribe formed the independent Mohegan Tribe under the leadership of Sachem Uncas in the early 1600’s. M. Fawcett, The Lasting of the Mohegans 7, 11–13 (1995). In 1994, in accordance with the petition procedures estab- lished by the Bureau of Indian Affairs, the Tribe attained federal recognition.1 See 59 Fed. Reg. 12140 (1994); Mohegan Const., Preamble and Art. II. As one means of maintaining its economic self- sufficiency, the Tribe entered into a Gaming Compact with the State of Connecticut pursuant to the Indian Gaming Regulatory Act, 102 Stat. 2467, 25 U.S. C. §2701 et seq. The compact authorizes the Tribe to conduct gaming on its land, subject to certain conditions including establishment of the Gaming Disputes Court. See 59 Fed. Reg. 65130 (approving the Tribal-State Compact Between the Mohe- gan Indian Tribe and the State of Connecticut (May 17, 1994)); Mohegan Const., Art. XIII, §2; Mohegan Tribe Code 3–248(a) (Supp. 2016). The Mohegan Tribal Gaming Authority, an arm of the Tribe, exercises the powers of the Mohegan Tribe over tribal gaming activities. Mohegan Const., Art. XIII, §1; Mohegan Tribe Code §2–21. Of particular relevance here, Mohegan law sets out —————— 1 There are currently 567 federally recognized Indian and Alaska Native entities. 81 Fed. Reg. 26826–26832 (2016); see also Native Hawaiian Law: A Treatise 303–324 (M. MacKenzie ed. 2015) (discuss- ing the existing relationships between the U. S. Government and federally recognized tribes and other indigenous groups in the United States); F. Cohen, Handbook of Federal Indian Law §§1.01–1.07 (2012 and Supp. 2015); V. Deloria & R. DeMallie, Documents of American Indian Diplomacy: Treaties, Agreements, and Conventions, 1775–1979 (1999). Cite as: 581 U. S. ____ (2017) 3 Opinion of the Court sovereign immunity and indemnification policies applica- ble to disputes arising from gaming activities. The Gam- ing Authority has waived its sovereign immunity and consented to be sued in the Mohegan Gaming Disputes Court. Mohegan Const., Art. XIII, §1; Mohegan Tribe Code §3–250(b). Neither the Tribe nor the Gaming Au- thority has consented to suit for claims arising under Connecticut state law. See Mohegan Const., Art. IX, §2(t); Mohegan Tribe Code §3–250(g); see also Blatchford v. Native Village of Noatak, 501 U.S. 775, 782 (1991) (ob- serving that Indian tribes have not surrendered their immunity against suits by States). Further, Mohegan Tribe Code §4–52 provides that the Gaming Authority “shall save harmless and indemnify its Officer or Em- ployee from financial loss and expense arising out of any claim, demand, or suit by reason of his or her alleged negligence . . . if the Officer or Employee is found to have been acting in the discharge of his or her duties or within the scope of his or her employment.” The Gaming Author- ity does not indemnify employees who engage in “wanton, reckless or malicious” activity. Mohegan Tribe Code §4–52. B Petitioners Brian and Michelle Lewis were driving down Interstate 95 in Norwalk, Connecticut, when a limousine driven by respondent William Clarke hit their vehicle from behind. Clarke, a Gaming Authority employee, was transporting patrons of the Mohegan Sun Casino to their homes. For purposes of this appeal, it is undisputed that Clarke caused the accident. The Lewises filed suit against Clarke in his individual capacity in Connecticut state court, and Clarke moved to dismiss for lack of subject-matter jurisdiction on the basis of tribal sovereign immunity. See 2014 WL 5354956, *2 (Super. Ct. Conn., Sept. 10, 2014) (Cole-Chu, J.). Clarke 4 LEWIS v. CLARKE Opinion of the Court argued that because the Gaming Authority, an arm of the Tribe, was entitled to sovereign immunity, he, an employee of the Gaming Authority acting within the scope of his employment at the time of the accident, was similarly entitled to sovereign immunity against suit. According to Clarke, denying the motion would abrogate the Tribe’s sovereign immunity. The trial court denied Clarke’s motion to dismiss. Id., at *8. The court agreed with the Lewises that the sovereign immunity analysis should focus on the remedy sought in their complaint. To that end, the court identified Clarke, not the Gaming Authority or the Tribe, as the real party in interest because the damages remedy sought was solely against Clarke and would in no way affect the Tribe’s ability to govern itself independently. The court therefore concluded that tribal sovereign immunity was not impli- cated. Id., at *2–*8. It also rejected Clarke’s alternative argument that because the Gaming Authority was obligated to indemnify him pursuant to Mohegan Tribe Code §4–52 and would end up paying the damages, he should prevail under the remedy analysis. Id., at *7. The trial court reasoned that a “voluntary undertaking cannot be used to extend sovereign immunity where it did not otherwise exist.” Ibid. The Supreme Court of Connecticut reversed, holding that tribal sovereign immunity did bar the suit. 320 Conn. 706, 135 A.3d 677 (2016). The court agreed with Clarke that “because he was acting within the scope of his em- ployment for the Mohegan Tribal Gaming Authority and the Mohegan Tribal Gaming Authority is an arm of the Mohegan Tribe, tribal sovereign immunity bars the plain- tiffs’ claims against him.” Id., at 709, 135 A. 3d, at 680. Of particular significance to the court was ensuring that “plaintiffs cannot circumvent tribal immunity by merely naming the defendant, an employee of the tribe, when the complaint concerns actions taken within the scope of his Cite as: 581 U. S. ____ (2017) 5 Opinion of the Court duties and the complaint does not allege, nor have the plaintiffs offered any other evidence, that he acted outside the scope of his authority.” Id., at 720, 135 A. 3d, at 685. To do otherwise, the court reasoned, would “ ‘eviscerate’ ” the protections of tribal immunity. Id., at 717, 135 A. 3d, at 684 (alterations and internal quotation marks omitted). Because the court determined that Clarke was entitled to sovereign immunity on the sole basis that he was acting within the scope of his employment when the accident occurred, id., at 720, 135 A.3d, at 685–686, it did not consider whether Clarke should be entitled to sovereign immunity on the basis of the indemnification statute. We granted certiorari to consider whether tribal sover- eign immunity bars the Lewises’ suit against Clarke, 579 U. S. ___ (2016), and we now reverse the judgment of the Supreme Court of Connecticut. II Two issues require our resolution: (1) whether the sov- ereign immunity of an Indian tribe bars individual- capacity damages against tribal employees for torts com- mitted within the scope of their employment; and (2) what role, if any, a tribe’s decision to indemnify its employees plays in this analysis. We decide this case under the framework of our precedents regarding tribal immunity. A Our cases establish that, in the context of lawsuits against state and federal employees or entities, courts should look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit. See Hafer v. Melo, 502 U.S. 21, 25 (1991). In making this assessment, courts may not simply rely on the characterization of the parties in the complaint, but rather must determine in the first instance whether the remedy sought is truly against the sovereign. See, e.g., Ex parte 6 LEWIS v. CLARKE Opinion of the Court New York, 256 U.S. 490, 500–502 (1921). If, for example, an action is in essence against a State even if the State is not a named party, then the State is the real party in interest and is entitled to invoke the Eleventh Amend- ment’s protection. For this reason, an arm or instrumen- tality of the State generally enjoys the same immunity as the sovereign itself. E.g., Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429–430 (1997). Similarly, lawsuits brought against employees in their official capacity “repre- sent only another way of pleading an action against an entity of which an officer is an agent,” and they may also be barred by sovereign immunity. Kentucky v. Graham, 473 U.S. 159, 165–166 (1985) (internal quotation marks omitted). The distinction between individual- and official-capacity suits is paramount here. In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); Dugan v. Rank, 372 U.S. 609, 611, 620–622 (1963). This is why, when officials sued in their official capacities leave office, their successors automatically assume their role in the litigation. Hafer, 502 U.S., at 25. The real party in interest is the government entity, not the named official. See Edelman v. Jordan, 415 U.S. 651, 663–665 (1974). “Personal-capacity suits, on the other hand, seek to impose individual liability upon a govern- ment officer for actions taken under color of state law.” Hafer, 502 U.S., at 25 (emphasis added); see also id., at 27–31 (discharged employees entitled to bring personal damages action against state auditor general); cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). “[O]fficers sued in their personal capacity come to court as individuals,” Hafer, 502 U.S., at 27, and the real party in interest is the individual, not the sovereign. The identity of the real party in interest dictates what Cite as: 581 U. S. ____ (2017) 7 Opinion of the Court immunities may be available. Defendants in an official- capacity action may assert sovereign immunity. Graham, 473 U.S., at 167. An officer in an individual-capacity action, on the other hand, may be able to assert personal immunity defenses, such as, for example, absolute prose- cutorial immunity in certain circumstances. Van de Kamp v. Goldstein, 555 U.S. 335, 342–344 (2009). But sovereign immunity “does not erect a barrier against suits to impose individual and personal liability.” Hafer, 502 U.S., at 30– 31 (internal quotation marks omitted); see Alden v. Maine, 527 U.S. 706, 757 (1996). B There is no reason to depart from these general rules in the context of tribal sovereign immunity. It is apparent that these general principles foreclose Clarke’s sovereign immunity defense in this case. This is a negligence action arising from a tort committed by Clarke on an interstate highway within the State of Connecticut. The suit is brought against a tribal employee operating a vehicle within the scope of his employment but on state lands, and the judgment will not operate against the Tribe. This is not a suit against Clarke in his official capacity. It is simply a suit against Clarke to recover for his personal actions, which “will not require action by the sovereign or disturb the sovereign’s property.” Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 687 (1949). We are cognizant of the Supreme Court of Connecticut’s con- cern that plaintiffs not circumvent tribal sovereign im- munity. But here, that immunity is simply not in play. Clarke, not the Gaming Authority, is the real party in interest. In ruling that Clarke was immune from this suit solely because he was acting within the scope of his employment, the court extended sovereign immunity for tribal employ- ees beyond what common-law sovereign immunity princi- 8 LEWIS v. CLARKE Opinion of the Court ples would recognize for either state or federal employees. See, e.g., Graham, 473 U.S., at 167–168. The protection offered by tribal sovereign immunity here is no broader than the protection offered by state or federal sovereign immunity. Accordingly, under established sovereign immunity principles, the Gaming Authority’s immunity does not, in these circumstances, bar suit against Clarke.2 III The conclusion above notwithstanding, Clarke argues that the Gaming Authority is the real party in interest here because it is required by Mohegan Tribe Code §4–52 to indemnify Clarke for any adverse judgment.3 A We have never before had occasion to decide whether an indemnification clause is sufficient to extend a sovereign immunity defense to a suit against an employee in his individual capacity. We hold that an indemnification —————— 2 There are, of course, personal immunity defenses distinct from sov- ereign immunity. E.g., Harlow v. Fitzgerald, 457 U.S. 800, 811–815 (1982). Clarke argues for the first time before this Court that one particular form of personal immunity is available to him here—official immunity. See Westfall v. Erwin, 484 U.S. 292, 295–297 (1988). That defense is not properly before us now, however, given that Clarke’s motion to dismiss was based solely on tribal sovereign immunity. See Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U.S. 443, 455 (2007). 3 As noted above, the Supreme Court of Connecticut did not reach whether Clarke should be entitled to sovereign immunity on the basis of the indemnification statute. We nevertheless consider the issue fairly included within the question presented, as it is a purely legal question that is an integral part of Clarke’s sovereign immunity argu- ment and that was both raised to and passed on by the trial court. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[T]he purely legal question on which [petitioner’s] claim of immunity turns is appropriate for our immediate resolution notwithstanding that it was not addressed by the Court of Appeals” (internal quotation marks omitted)). Cite as: 581 U. S. ____ (2017) 9 Opinion of the Court provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak. Our holding follows naturally from the principles dis- cussed above. Indeed, we have applied these same princi- ples to a different question before—whether a state in- strumentality may invoke the State’s immunity from suit even when the Federal Government has agreed to indem- nify that instrumentality against adverse judgments. In Regents of Univ. of Cal., an individual brought suit against the University of California, a public university of the State of California, for breach of contract related to his employ- ment at a laboratory operated by the university pursuant to a contract with the Federal Government. We held that the indemnification provision did not divest the state instrumentality of Eleventh Amendment immunity. 519 U.S., at 426. Our analysis turned on where the potential legal liability lay, not from whence the money to pay the damages award ultimately came. Because the lawsuit bound the university, we held, the Eleventh Amendment applied to the litigation even though the damages award would ultimately be paid by the federal Department of Energy. Id., at 429–431. Our reasoning remains the same. The critical inquiry is who may be legally bound by the court’s adverse judgment, not who will ultimately pick up the tab.4 Here, the Connecticut courts exercise no jurisdiction over the Tribe or the Gaming Authority, and their judg- ments will not bind the Tribe or its instrumentalities in —————— 4 Our holding in Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30 (1994), is not to the contrary. There the immunity ques- tion turned on whether the Port Authority Trans-Hudson Corporation was a state agency cloaked with Eleventh Amendment immunity such that any judgment “must be paid out of a State’s treasury.” Id., at 48, 51–52 (emphasis added). Here, unlike in Hess, the damages judgment would not come from the sovereign. 10 LEWIS v. CLARKE Opinion of the Court any way. The Tribe’s indemnification provision does not somehow convert the suit against Clarke into a suit against the sovereign; when Clarke is sued in his individ- ual capacity, he is held responsible only for his individual wrongdoing. Moreover, indemnification is not a certainty here. Clarke will not be indemnified by the Gaming Au- thority should it determine that he engaged in “wanton, reckless, or malicious” activity. Mohegan Tribe Code §4– 52. That determination is not necessary to the disposition of the Lewises’ suit against Clarke in the Connecticut state courts, which is a separate legal matter. B Clarke notes that courts have extended sovereign im- munity to private healthcare insurance companies under certain circumstances. See, e.g., Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71–72 (CA2 1998); Pine View Gardens, Inc. v. Mutual of Omaha Ins. Co., 485 F.2d 1073, 1074–1075 (CADC 1973); Brief for Respondent 19, n. 4. But, these cases rest on the proposition that the fiscal intermediaries are essentially state instrumentali- ties, as the governing regulations make clear. See 42 CFR §421.5(b) (2016) (providing that the Medicare Administra- tor “is the real party of interest in any litigation involving the administration of the program”). It is well established in our precedent that a suit against an arm or instrumen- tality of the State is treated as one against the State itself. See Regents of Univ. of Cal., 519 U.S., at 429. We have not before treated a lawsuit against an individual em- ployee as one against a state instrumentality, and Clarke offers no persuasive reason to do so now. Nor have we ever held that a civil rights suit under 42 U.S. C. §1983 against a state officer in his individual capacity implicates the Eleventh Amendment and a Cite as: 581 U. S. ____ (2017) 11 Opinion of the Court State’s sovereign immunity from suit.5 Federal appellate courts that have considered the indemnity question have rejected the argument that an indemnity statute brings the Eleventh Amendment into play in §1983 actions. See, e.g., Stoner v. Wisconsin Dept. of Agriculture, Trade and Consumer Protection, 50 F.3d 481, 482–483 (CA7 1995); Blalock v. Schwinden, 862 F.2d 1352, 1354 (CA9 1988); Duckworth v. Franzen, 780 F.2d 645, 650 (CA7 1985). These cases rely on the concern that originally drove the adoption of the Eleventh Amendment—the protection of the States against involuntary liability. See Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 39, 48 (1994). But States institute indemnification policies vol- untarily. And so, indemnification provisions do not impli- cate one of the underlying rationales for state sovereign immunity—a government’s ability to make its own deci- sions about “the allocation of scarce resources.” Alden, 527 U.S., at 751. Finally, our conclusion that indemnification provisions do not alter the real-party-in-interest analysis for purposes of sovereign immunity is consistent with the practice that applies in the contexts of diversity of citizenship and joinder. In assessing diversity jurisdiction, courts look to the real parties to the controversy. Navarro Savings Assn. v. Lee, 446 U.S. 458, 460 (1980). Applying this principle, courts below have agreed that the fact that a third party indemnifies one of the named parties to the case does not, as a general rule, influence the diversity analysis. See, e.g., Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 865 (CA5 2003); E. R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 936–937 (CA2 1998). They have similarly held that a party does not become a required party for joinder purposes under Federal Rule of Civil —————— 5 A suit against a state officer in his official, rather than individual, capacity might implicate the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 165–166 (1985). 12 LEWIS v. CLARKE Opinion of the Court Procedure 19 simply by virtue of indemnifying one of the named parties. See, e.g., Gardiner v. Virgin Islands Water & Power Auth., 145 F.3d 635, 641 (CA3 1998); Rochester Methodist Hospital v. Travelers Ins. Co., 728 F.2d 1006, 1016–1017 (CA8 1984). In sum, although tribal sovereign immunity is implicated when the suit is brought against individual officers in their official capacities, it is simply not present when the claim is made against those employees in their individual capacities. An indemnification statute such as the one at issue here does not alter the analysis. Clarke may not avail himself of a sovereign immunity defense. IV The judgment of the Supreme Court of Connecticut is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of this case. Cite as: 581 U. S. ____ (2017) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 15–1500 _________________ BRIAN LEWIS, ET AL., PETITIONERS v. WILLIAM CLARKE ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT [April 25, 2017] JUSTICE THOMAS, concurring in the judgment.

Indian tribes are generally entitled to immunity from suit. This Court has considered the scope of that immu- nity in a number of circumstances. This case presents an ordinary negligence action brought against a tribal em- ployee in state court under state law. We granted certio- rari to resolve whether an Indian tribe’s sovereign immu- nity bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment and for which the employees are indemnified by the tribe. We hold that, in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immu- nity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity. We hold further that an indemnification provi- sion does not extend a tribe’s sovereign immunity where it otherwise would not reach. Accordingly, we reverse and 2 LEWIS v. CLARKE Opinion of the Court remand. I A The Mohegan Tribe of Indians of Connecticut traces its lineage back centuries. Originally part of the Lenni Le- nape, the Tribe formed the independent Mohegan Tribe under the leadership of Sachem Uncas in the early 1600’s. M. Fawcett, The Lasting of the Mohegans 7, 11–13 In 1994, in accordance with the petition procedures estab- lished by the Bureau of Indian Affairs, the Tribe attained federal recognition.1 See ; Mohegan Const., Preamble and Art. II. As one means of maintaining its economic self- sufficiency, the Tribe entered into a Gaming Compact with the State of Connecticut pursuant to the Indian Gaming Regulatory Act, U.S. C. et seq. The compact authorizes the Tribe to conduct gaming on its land, subject to certain conditions including establishment of the Gaming Disputes Court. See ); Mohegan Const., Art. XIII, Mohegan Tribe Code 3–248(a) The Mohegan Tribal Gaming Authority, an arm of the Tribe, exercises the powers of the Mohegan Tribe over tribal gaming activities. Mohegan Const., Art. XIII, Mohegan Tribe Code Of particular relevance here, Mohegan law sets out —————— 1 There are currently 567 federally recognized Indian and Alaska Native entities. –26832 ; see also Native Hawaiian Law: A Treatise 303–324 (M. MacKenzie ed. 2015) (discuss- ing the existing relationships between the U. S. Government and federally recognized tribes and other indigenous groups in the United States); F. Cohen, Handbook of Federal Indian Law (2012 and Supp. 2015); V. Deloria & R. DeMallie, Documents of American Indian Diplomacy: Treaties, Agreements, and Conventions, 1775–1979 (1999). Cite as: 581 U. S. (2017) 3 Opinion of the Court sovereign immunity and indemnification policies applica- ble to disputes arising from gaming activities. The Gam- ing Authority has waived its sovereign immunity and consented to be sued in the Mohegan Gaming Disputes Court. Mohegan Const., Art. XIII, Mohegan Tribe Code Neither the Tribe nor the Gaming Au- thority has consented to suit for claims arising under Connecticut state law. See Mohegan Const., Art. IX, Mohegan Tribe Code see also Blatchford v. Native Village of Noatak, (ob- serving that Indian tribes have not surrendered their immunity against suits by States). Further, Mohegan Tribe Code provides that the Gaming Authority “shall save harmless and indemnify its Officer or Em- ployee from financial loss and expense arising out of any claim, demand, or suit by reason of his or her alleged negligence if the Officer or Employee is found to have been acting in the discharge of his or her duties or within the scope of his or her employment.” The Gaming Author- ity does not indemnify employees who engage in “wanton, reckless or malicious” activity. Mohegan Tribe Code B Petitioners Brian and Michelle Lewis were driving down Interstate 95 in Norwalk, Connecticut, when a limousine driven by respondent William Clarke hit their vehicle from behind. Clarke, a Gaming Authority employee, was transporting patrons of the Mohegan Sun Casino to their homes. For purposes of this appeal, it is undisputed that Clarke caused the accident. The Lewises filed suit against Clarke in his individual capacity in Connecticut state court, and Clarke moved to dismiss for lack of subject-matter jurisdiction on the basis of tribal sovereign immunity. See (Super. Ct. Conn., Sept. 10, 2014) (Cole-Chu, J.). Clarke 4 LEWIS v. CLARKE Opinion of the Court argued that because the Gaming Authority, an arm of the Tribe, was entitled to sovereign immunity, he, an employee of the Gaming Authority acting within the scope of his employment at the time of the accident, was similarly entitled to sovereign immunity against suit. According to Clarke, denying the motion would abrogate the Tribe’s sovereign immunity. The trial court denied Clarke’s motion to dismiss. at *8. The court agreed with the Lewises that the sovereign immunity analysis should focus on the remedy sought in their complaint. To that end, the court identified Clarke, not the Gaming Authority or the Tribe, as the real party in interest because the damages remedy sought was solely against Clarke and would in no way affect the Tribe’s ability to govern itself independently. The court therefore concluded that tribal sovereign immunity was not impli- cated. at –*8. It also rejected Clarke’s alternative argument that because the Gaming Authority was obligated to indemnify him pursuant to Mohegan Tribe Code and would end up paying the damages, he should prevail under the remedy analysis. The trial court reasoned that a “voluntary undertaking cannot be used to extend sovereign immunity where it did not otherwise exist.” The Supreme Court of Connecticut reversed, holding that tribal sovereign immunity did bar the suit. 320 Conn. 706, The court agreed with Clarke that “because he was acting within the scope of his em- ployment for the Mohegan Tribal Gaming Authority and the Mohegan Tribal Gaming Authority is an arm of the Mohegan Tribe, tribal sovereign immunity bars the plain- tiffs’ claims against him.” Of particular significance to the court was ensuring that “plaintiffs cannot circumvent tribal immunity by merely naming the defendant, an employee of the tribe, when the complaint concerns actions taken within the scope of his Cite as: 581 U. S. (2017) 5 Opinion of the Court duties and the complaint does not allege, nor have the plaintiffs offered any other evidence, that he acted outside the scope of his authority.” To do otherwise, the court reasoned, would “ ‘eviscerate’ ” the protections of tribal immunity. 135 A. 3d, at 684 (alterations and internal quotation marks omitted). Because the court determined that Clarke was entitled to sovereign immunity on the sole basis that he was acting within the scope of his employment when the accident occurred, –686, it did not consider whether Clarke should be entitled to sovereign immunity on the basis of the indemnification statute. We granted certiorari to consider whether tribal sover- eign immunity bars the Lewises’ suit against Clarke, 579 U. S. and we now reverse the judgment of the Supreme Court of Connecticut. II Two issues require our resolution: (1) whether the sov- ereign immunity of an Indian tribe bars individual- capacity damages against tribal employees for torts com- mitted within the scope of their employment; and (2) what role, if any, a tribe’s decision to indemnify its employees plays in this analysis. We decide this case under the framework of our precedents regarding tribal immunity. A Our cases establish that, in the context of lawsuits against state and federal employees or entities, courts should look to whether the sovereign is the real party in interest to determine whether sovereign immunity bars the suit. See In making this assessment, courts may not simply rely on the characterization of the parties in the complaint, but rather must determine in the first instance whether the remedy sought is truly against the sovereign. See, e.g., Ex parte 6 6 U.S. 490, If, for example, an action is in essence against a State even if the State is not a named party, then the State is the real party in interest and is entitled to invoke the Eleventh Amend- ment’s protection. For this reason, an arm or instrumen- tality of the State generally enjoys the same immunity as the sovereign itself. E.g., Regents of Univ. of 519 U.S. 4, Similarly, lawsuits brought against employees in their official capacity “repre- sent only another way of pleading an action against an entity of which an officer is an agent,” and they may also be barred by sovereign immunity. (internal quotation marks omitted). The distinction between individual- and official-capacity suits is paramount here. In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself. 71 (1989); 620–622 (1963). This is why, when officials sued in their official capacities leave office, their successors automatically assume their role in the litigation. 502 U.S., at The real party in interest is the government entity, not the named official. See 663–665 (1974). “Personal-capacity suits, on the other hand, seek to impose individual liability upon a govern- ment officer for actions taken under color of state law.” 502 U.S., at ; see also at 27–31 (discharged employees entitled to bring personal damages action against state auditor general); cf. Bivens v. Six Unknown Fed. Narcotics Agents, (1971). “[O]fficers sued in their personal capacity come to court as individuals,” and the real party in interest is the individual, not the sovereign. The identity of the real party in interest dictates what Cite as: 581 U. S. (2017) 7 Opinion of the Court immunities may be available. Defendants in an official- capacity action may assert sovereign immunity. An officer in an individual-capacity action, on the other hand, may be able to assert personal immunity defenses, such as, for example, absolute prose- cutorial immunity in certain circumstances. Van de Kamp v. Goldstein, But sovereign immunity “does not erect a barrier against suits to impose individual and personal liability.” – 31 (internal quotation marks omitted); see B There is no reason to depart from these general rules in the context of tribal sovereign immunity. It is apparent that these general principles foreclose Clarke’s sovereign immunity defense in this case. This is a negligence action arising from a tort committed by Clarke on an interstate highway within the State of Connecticut. The suit is brought against a tribal employee operating a vehicle within the scope of his employment but on state lands, and the judgment will not operate against the Tribe. This is not a suit against Clarke in his official capacity. It is simply a suit against Clarke to recover for his personal actions, which “will not require action by the sovereign or disturb the sovereign’s property.” We are cognizant of the Supreme Court of Connecticut’s con- cern that plaintiffs not circumvent tribal sovereign im- munity. But here, that immunity is simply not in play. Clarke, not the Gaming Authority, is the real party in interest. In ruling that Clarke was immune from this suit solely because he was acting within the scope of his employment, the court extended sovereign immunity for tribal employ- ees beyond what common-law sovereign immunity princi- 8 LEWIS v. CLARKE Opinion of the Court ples would recognize for either state or federal employees. See, e.g., –168. The protection offered by tribal sovereign immunity here is no broader than the protection offered by state or federal sovereign immunity. Accordingly, under established sovereign immunity principles, the Gaming Authority’s immunity does not, in these circumstances, bar suit against Clarke.2 III The conclusion above notwithstanding, Clarke argues that the Gaming Authority is the real party in interest here because it is required by Mohegan Tribe Code to indemnify Clarke for any adverse judgment.3 A We have never before had occasion to decide whether an indemnification clause is sufficient to extend a sovereign immunity defense to a suit against an employee in his individual capacity. We hold that an indemnification —————— 2 There are, of course, personal immunity defenses distinct from sov- ereign immunity. E.g., 811–815 (1982). Clarke argues for the first time before this Court that one particular form of personal immunity is available to him here—official immunity. See That defense is not properly before us now, however, given that Clarke’s motion to dismiss was based solely on tribal sovereign immunity. See Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U.S. 443, 455 (2007). 3 As noted above, the Supreme Court of Connecticut did not reach whether Clarke should be entitled to sovereign immunity on the basis of the indemnification statute. We nevertheless consider the issue fairly included within the question presented, as it is a purely legal question that is an integral part of Clarke’s sovereign immunity argu- ment and that was both raised to and passed on by the trial court. See (“[T]he purely legal question on which [petitioner’s] claim of immunity turns is appropriate for our immediate resolution notwithstanding that it was not addressed by the Court of Appeals” (internal quotation marks omitted)). Cite as: 581 U. S. (2017) 9 Opinion of the Court provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak. Our holding follows naturally from the principles dis- cussed above. Indeed, we have applied these same princi- ples to a different question before—whether a state in- strumentality may invoke the State’s immunity from suit even when the Federal Government has agreed to indem- nify that instrumentality against adverse judgments. In Regents of Univ. of an individual brought suit against the University of California, a public university of the State of California, for breach of contract related to his employ- ment at a laboratory operated by the university pursuant to a contract with the Federal Government. We held that the indemnification provision did not divest the state instrumentality of Eleventh Amendment immunity. 519 U.S., at 426. Our analysis turned on where the potential legal liability lay, not from whence the money to pay the damages award ultimately came. Because the lawsuit bound the university, we held, the Eleventh Amendment applied to the litigation even though the damages award would ultimately be paid by the federal Department of Energy. at 429–431. Our reasoning remains the same. The critical inquiry is who may be legally bound by the court’s adverse judgment, not who will ultimately pick up the tab.4 Here, the Connecticut courts exercise no jurisdiction over the Tribe or the Gaming Authority, and their judg- ments will not bind the Tribe or its instrumentalities in —————— 4 Our holding in is not to the contrary. There the immunity ques- tion turned on whether the Port Authority Trans-Hudson Corporation was a state agency cloaked with Eleventh Amendment immunity such that any judgment “must be paid out of a State’s treasury.” 51–52 Here, unlike in Hess, the damages judgment would not come from the sovereign. 10 LEWIS v. CLARKE Opinion of the Court any way. The Tribe’s indemnification provision does not somehow convert the suit against Clarke into a suit against the sovereign; when Clarke is sued in his individ- ual capacity, he is held responsible only for his individual wrongdoing. Moreover, indemnification is not a certainty here. Clarke will not be indemnified by the Gaming Au- thority should it determine that he engaged in “wanton, reckless, or malicious” activity. Mohegan Tribe Code 52. That determination is not necessary to the disposition of the Lewises’ suit against Clarke in the Connecticut state courts, which is a separate legal matter. B Clarke notes that courts have extended sovereign im- munity to private healthcare insurance companies under certain circumstances. See, e.g., ; Pine View Gardens, Inc. v. Mutual of Omaha Ins. Co., 485 F.2d 1073, 1074–1075 (CADC 1973); Brief for Respondent 19, n. 4. But, these cases rest on the proposition that the fiscal intermediaries are essentially state instrumentali- ties, as the governing regulations make clear. See 42 CFR (providing that the Medicare Administra- tor “is the real party of interest in any litigation involving the administration of the program”). It is well established in our precedent that a suit against an arm or instrumen- tality of the State is treated as one against the State itself. See Regents of Univ. of We have not before treated a lawsuit against an individual em- ployee as one against a state instrumentality, and Clarke offers no persuasive reason to do so now. Nor have we ever held that a civil rights suit under 42 U.S. C. against a state officer in his individual capacity implicates the Eleventh Amendment and a Cite as: 581 U. S. (2017) 11 Opinion of the Court State’s sovereign immunity from suit.5 Federal appellate courts that have considered the indemnity question have rejected the argument that an indemnity statute brings the Eleventh Amendment into play in actions. See, e.g., ; ; These cases rely on the concern that originally drove the adoption of the Eleventh Amendment—the protection of the States against involuntary liability. See But States institute indemnification policies vol- untarily. And so, indemnification provisions do not impli- cate one of the underlying rationales for state sovereign immunity—a government’s ability to make its own deci- sions about “the allocation of scarce resources.” Alden, 527 U.S., at 751. Finally, our conclusion that indemnification provisions do not alter the real-party-in-interest analysis for purposes of sovereign immunity is consistent with the practice that applies in the contexts of diversity of citizenship and joinder. In assessing diversity jurisdiction, courts look to the real parties to the controversy. Navarro Savings Assn. v. Lee, Applying this principle, courts below have agreed that the fact that a third party indemnifies one of the named parties to the case does not, as a general rule, influence the diversity analysis. See, e.g., (CA5 2003); E. R. Squibb & Sons, 160 F.3d 9, They have similarly held that a party does not become a required party for joinder purposes under Federal Rule of Civil —————— 5 A suit against a state officer in his official, rather than individual, capacity might implicate the Eleventh Amendment. See Kentucky v. 12 LEWIS v. CLARKE Opinion of the Court Procedure 19 simply by virtue of indemnifying one of the named parties. See, e.g., ; Rochester Methodist 1016–1017 (CA8 1984). In sum, although tribal sovereign immunity is implicated when the suit is brought against individual officers in their official capacities, it is simply not present when the claim is made against those employees in their individual capacities. An indemnification statute such as the one at issue here does not alter the analysis. Clarke may not avail himself of a sovereign immunity defense. IV The judgment of the Supreme Court of Connecticut is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of this case. Cite as: 581 U. S. (2017) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 15–1500 BRIAN LEWIS, ET AL., PETITIONERS v. WILLIAM CLARKE ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT [April 2017] JUSTICE THOMAS, concurring in the judgment.

Justice Thomas

concurring

Lewis v. Clarke

2017-04-25

https://www.courtlistener.com/opinion/4385683/lewis-v-clarke/

https://www.courtlistener.com/api/rest/v3/clusters/4385683/

2016-034

I remain of the view that tribal immunity does not extend “to suits arising out of a tribe’s commercial activi- ties conducted beyond its territory.” Michigan v. Bay Mills Indian Community, 572 U. S. ___ (2014) (dissenting opinion) (slip op., at 2); see also Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 764 (1998) (Stevens, J., dissenting). This suit arose from an off-reservation commercial act. Ante, at 3. Accordingly, I would hold that respondent cannot assert the Tribe’s immunity, regardless of the capacity in which he was sued. Because the Court reaches the same result for different reasons, I concur in its judgment. Cite as: 581 U. S. ____ (2017) 1 GINSBURG, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 15–1500 _________________ BRIAN LEWIS, ET AL., PETITIONERS v. WILLIAM CLARKE ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT [April 25, 2017] JUSTICE GINSBURG, concurring in the judgment. On the scope of tribal immunity from suit, I adhere to the dissenting views expressed in Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 760 (1998) (Stevens, J., dissenting), and Michigan v. Bay Mills Indian Community, 572 U. S. ___, ___ (2014) (THOMAS, J., dissenting) (slip op., at 1). See also id., at ___ (GINSBURG, J., dissenting) (slip op., at 1). These dissenting opinions explain why tribes, interacting with nontribal members outside reservation boundaries, should be subject to non- discriminatory state laws of general application. I agree with the Court, however, that a voluntary indemnity undertaking does not convert a suit against a tribal em- ployee, in the employee’s individual capacity, into a suit against the tribe. I therefore concur in the Court’s judgment

I remain of the view that tribal immunity does not extend “to suits arising out of a tribe’s commercial activi- ties conducted beyond its territory.” Michigan v. Bay Mills Indian Community, 572 U. S. (2014) (dissenting opinion) (slip op., at 2); see also Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., (1998) (Stevens, J., dissenting). This suit arose from an off-reservation commercial act. Ante, at 3. Accordingly, I would hold that respondent cannot assert the Tribe’s immunity, regardless of the capacity in which he was sued. Because the Court reaches the same result for different reasons, I concur in its judgment. Cite as: 581 U. S. (2017) 1 GINSBURG, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 15–1500 BRIAN LEWIS, ET AL., PETITIONERS v. WILLIAM CLARKE ON WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT [April 25, 2017] JUSTICE GINSBURG, concurring in the judgment. On the scope of tribal immunity from suit, I adhere to the dissenting views expressed in Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., (1998) (Stevens, J., dissenting), and Michigan v. Bay Mills Indian Community, 572 U. S. (2014) (THOMAS, J., dissenting) (slip op., at 1). See also at (GINSBURG, J., dissenting) (slip op., at 1). These dissenting opinions explain why tribes, interacting with nontribal members outside reservation boundaries, should be subject to non- discriminatory state laws of general application. I agree with the Court, however, that a voluntary indemnity undertaking does not convert a suit against a tribal em- ployee, in the employee’s individual capacity, into a suit against the tribe. I therefore concur in the Court’s judgment

Justice Stevens

majority

Clinton v. Jones

1997-05-27

https://www.courtlistener.com/opinion/118115/clinton-v-jones/

https://www.courtlistener.com/api/rest/v3/clusters/118115/

1996-059

This case raises a constitutional and a prudential question concerning the Office of the President of the United States. Respondent, a private citizen, seeks to recover damages from the current occupant of that office based on actions allegedly taken before his term began. The President submits that in all but the most exceptional cases the Constitution requires federal courts to defer such litigation until his term ends and that, in any event, respect for the office warrants such a stay. Despite the force of the arguments supporting the President's submissions, we conclude that they must be rejected. I Petitioner, William Jefferson Clinton, was elected to the Presidency in 1992, and reelected in 1996. His term of office expires on January 20, 2001. In 1991 he was the Governor of the State of Arkansas. Respondent, Paula Corbin Jones, is a resident of California. In 1991 she lived in Arkansas, and was an employee of the Arkansas Industrial Development Commission. On May 6, 1994, she commenced this action in the United States District Court for the Eastern District of Arkansas by filing a complaint naming petitioner and Danny Ferguson, a former Arkansas State Police officer, as defendants. The *685 complaint alleges two federal claims, and two state-law claims over which the federal court has jurisdiction because of the diverse citizenship of the parties.[1] As the case comes to us, we are required to assume the truth of the detailed— but as yet untested—factual allegations in the complaint. Those allegations principally describe events that are said to have occurred on the afternoon of May 8, 1991, during an official conference held at the Excelsior Hotel in Little Rock, Arkansas. The Governor delivered a speech at the conference; respondent—working as a state employee—staffed the registration desk. She alleges that Ferguson persuaded her to leave her desk and to visit the Governor in a business suite at the hotel, where he made "abhorrent"[2] sexual advances that she vehemently rejected. She further claims that her superiors at work subsequently dealt with her in a hostile and rude manner, and changed her duties to punish her for rejecting those advances. Finally, she alleges that after petitioner was elected President, Ferguson defamed her by making a statement to a reporter that implied she had accepted petitioner's alleged overtures, and that various persons authorized to speak for the President publicly branded her a liar by denying that the incident had occurred. Respondent seeks actual damages of $75,000 and punitive damages of $100,000. Her complaint contains four counts. The first charges that petitioner, acting under color of state law, deprived her of rights protected by the Constitution, in violation of Rev. Stat. § 1979, 42 U.S. C. § 1983. The second charges that petitioner and Ferguson engaged in a conspiracy to violate her federal rights, also actionable under federal law. See Rev. Stat. § 1980, 42 U.S. C. § 1985. The third is a state common-law claim for intentional infliction of emotional distress, grounded primarily on the incident at the *686 hotel. The fourth count, also based on state law, is for defamation, embracing both the comments allegedly made to the press by Ferguson and the statements of petitioner's agents. Inasmuch as the legal sufficiency of the claims has not yet been challenged, we assume, without deciding, that each of the four counts states a cause of action as a matter of law. With the exception of the last charge, which arguably may involve conduct within the outer perimeter of the President's official responsibilities, it is perfectly clear that the alleged misconduct of petitioner was unrelated to any of his official duties as President of the United States and, indeed, occurred before he was elected to that office.[3] II In response to the complaint, petitioner promptly advised the District Court that he intended to file a motion to dismiss on grounds of Presidential immunity, and requested the court to defer all other pleadings and motions until after the immunity issue was resolved.[4] Relying on our cases holding that immunity questions should be decided at the earliest possible stage of the litigation, 858 F. Supp. 902, 905 (ED Ark. 1994), our recognition of the "`singular importance of the President's duties,' " id., at 904 (quoting Nixon v. Fitzgerald, 457 U.S. 731, 751 (1982)), and the fact that the question did not require any analysis of the allegations of the complaint, 858 F. Supp., at 905, the court granted the request. Petitioner thereupon filed a motion "to dismiss . . . Without prejudice and to toll any statutes of limitation [that may be applicable] until he is no longer President, at which time the plaintiff *687 may refile the instant suit." Record, Doc. No. 17. Extensive submissions were made to the District Court by the parties and the Department of Justice.[5] The District Judge denied the motion to dismiss on immunity grounds and ruled that discovery in the case could go forward, but ordered any trial stayed until the end of petitioner's Presidency. 869 F. Supp. 690 (ED Ark. 1994). Although she recognized that a "thin majority" in Nixon v. Fitzgerald, 457 U.S. 731 (1982), had held that "the President has absolute immunity from civil damage actions arising out of the execution of official duties of office," she was not convinced that "a President has absolute immunity from civil causes of action arising prior to assuming the office."[6] She was, however, persuaded by some of the reasoning in our opinion in Fitzgerald that deferring the trial if one were required would be appropriate.[7] 869 F. Supp., at 699-700. Relying in part on the fact that respondent had failed to bring her complaint until two days before the 3-year period of limitations expired, she concluded that the public interest in avoiding litigation that might hamper the President in conducting the duties of his office outweighed any demonstrated need for an immediate trial. Id., at 698-699. Both parties appealed. A divided panel of the Court of Appeals affirmed the denial of the motion to dismiss, but because it regarded the order postponing the trial until the *688 President leaves office as the "functional equivalent" of a grant of temporary immunity, it reversed that order. 72 F.3d 1354, 1361, n. 9, 1363 (CA8 1996). Writing for the majority, Judge Bowman explained that "the President, like all other government officials, is subject to the same laws that apply to all other members of our society," id., at 1358, that he could find no "case in which any public official ever has been granted any immunity from suit for his unofficial acts," ibid., and that the rationale for official immunity "is inapposite where only personal, private conduct by a President is at issue," id., at 1360. The majority specifically rejected the argument that, unless immunity is available, the threat of judicial interference with the Executive Branch through scheduling orders, potential contempt citations, and sanctions would violate separation-of-powers principles. Judge Bowman suggested that "judicial case management sensitive to the burdens of the presidency and the demands of the President's schedule" would avoid the perceived danger. Id., at 1361. In dissent, Judge Ross submitted that even though the holding in Fitzgerald involved official acts, the logic of the opinion, which "placed primary reliance on the prospect that the President's discharge of his constitutional powers and duties would be impaired if he were subject to suits for damages," applies with equal force to this case. 72 F.3d, at 1367. In his view, "unless exigent circumstances can be shown," all private actions for damages against a sitting President must be stayed until the completion of his term. Ibid. In this case, Judge Ross saw no reason why the stay would prevent respondent from ultimately obtaining an adjudication of her claims. In response to the dissent, Judge Beam wrote a separate concurrence. He suggested that a prolonged delay may well create a significant risk of irreparable harm to respondent because of an unforeseeable loss of evidence or the possible *689 death of a party. Id., at 1363-1364. Moreover, he argued that in civil rights cases brought under § 1983 there is a "public interest in an ordinary citizen's timely vindication of . . . her most fundamental right against alleged abuse of power by government officials." Id., at 1365. In his view, the dissent's concern about judicial interference with the functioning of the Presidency was "greatly overstated." Ibid. Neither the involvement of prior Presidents in litigation, either as parties or as witnesses, nor the character of this "relatively uncomplicated civil litigation," indicated that the threat was serious. Id., at 1365-1366. Finally, he saw "no basis for staying discovery or trial of the claims against Trooper Ferguson." Id., at 1366.[8] III The President, represented by private counsel, filed a petition for certiorari. The Acting Solicitor General, representing the United States, supported the petition, arguing that the decision of the Court of Appeals was "fundamentally mistaken" and created "serious risks for the institution of the Presidency."[9] In her brief in opposition to certiorari, respondent argued that this "one-of-a-kind case is singularly inappropriate" for the exercise of our certiorari jurisdiction because it did not create any conflict among the Courts of Appeals, it "does not pose any conceivable threat to the functioning of the Executive Branch," and there is no precedent supporting the President's position.[10] While our decision to grant the petition, 518 U.S. 1016 (1996), expressed no judgment concerning the merits of the case, it does reflect our appraisal of its importance. The *690 representations made on behalf of the Executive Branch as to the potential impact of the precedent established by the Court of Appeals merit our respectful and deliberate consideration. It is true that we have often stressed the importance of avoiding the premature adjudication of constitutional questions.[11] That doctrine of avoidance, however, is applicable to the entire Federal Judiciary, not just to this Court, cf. Arizonans for Official English v. Arizona, ante, p. 43, and comes into play after the court has acquired jurisdiction of a case. It does not dictate a discretionary denial of every certiorari petition raising a novel constitutional question. It does, however, make it appropriate to identify two important constitutional issues not encompassed within the questions presented by the petition for certiorari that we need not address today.[12] *691 First, because the claim of immunity is asserted in a federal court and relies heavily on the doctrine of separation of powers that restrains each of the three branches of the Federal Government from encroaching on the domain of the other two, see, e. g., Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam), it is not necessary to consider or decide whether a comparable claim might succeed in a state tribunal. If this case were being heard in a state forum, instead of advancing a separation-of-powers argument, petitioner would presumably rely on federalism and comity concerns,[13] as well as the interest in protecting federal officials from possible local prejudice that underlies the authority to remove certain cases brought against federal officers from a state to a federal court, see 28 U.S. C. § 1442(a); Mesa v. California, 489 U.S. 121, 125-126 (1989). Whether those concerns would present a more compelling case for immunity is a question that is not before us. Second, our decision rejecting the immunity claim and allowing the case to proceed does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place. We assume that the testimony of the President, both for discovery and for use at trial, may be taken at the White House at a time that *692 will accommodate his busy schedule, and that, if a trial is held, there would be no necessity for the President to attend in person, though he could elect to do so.[14] IV Petitioner's principal submission—that "in all but the most exceptional cases," Brief for Petitioner i,the Constitution affords the President temporary immunity from civil damages litigation arising out of events that occurred before he took office—cannot be sustained on the basis of precedent. Only three sitting Presidents have been defendants in civil litigation involving their actions prior to taking office. Complaints against Theodore Roosevelt and Harry Truman had been dismissed before they took office; the dismissals were affirmed after their respective inaugurations.[15] Two companion cases arising out of an automobile accident were filed against John F. Kennedy in 1960 during the Presidential campaign.[16] After taking office, he unsuccessfully argued that his status as Commander in Chief gave him a right to a stay under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S. C. App. §§ 501-525. The motion for a stay was denied by the District Court, and the matter was settled out of court.[17] Thus, none of those cases sheds any light on the constitutional issue before us. The principal rationale for affording certain public servants immunity from suits for money damages arising out of *693 their official acts is inapplicable to unofficial conduct. In cases involving prosecutors, legislators, and judges we have repeatedly explained that the immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability.[18] We explained in Ferri v. Ackerman, 444 U.S. 193 (1979): "As public servants, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of different individuals, each of whom may be a potential source of future controversy. The societal interest in providing such public officials with the maximum ability to deal fearlessly and impartially with the public at large has long been recognized as an acceptable justification for official immunity. The point of immunity for such officials is to forestall an atmosphere of intimidation that would conflict with their resolve to perform their designated functions in a principled fashion." Id., at 202-204. That rationale provided the principal basis for our holding that a former President of the United States was "entitled to absolute immunity from damages liability predicated on his official acts," Fitzgerald, 457 U. S., at 749. See id., at 752 (citing Ferri v. Ackerman ). Our central concern was to *694 avoid rendering the President "unduly cautious in the discharge of his official duties." 457 U.S., at 752, n. 32.[19] This reasoning provides no support for an immunity for unofficial conduct. As we explained in Fitzgerald, "the sphere of protected action must be related closely to the immunity's justifying purposes." Id., at 755. Because of the President's broad responsibilities, we recognized in that case an immunity from damages claims arising out of official acts extending to the "outer perimeter of his authority." Id., at 757. But we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity. See id., at 759 (Burger, C. J., concurring) (noting that "a President, like Members of Congress, judges, prosecutors, or congressional aides—all having absolute immunity—are not immune for acts outside official duties"); see also id., at 761, n. 4. Moreover, when defining the scope of an immunity for acts clearly taken within an official capacity, we have applied a functional approach. "Frequently our decisions have held that an official's absolute immunity should extend only to acts in performance of particular functions of his office." Id., at 755. Hence, for example, a judge's absolute immunity does not extend to actions performed in a purely administrative *695 capacity. See Forrester v. White, 484 U.S. 219, 229-230 (1988). As our opinions have made clear, immunities are grounded in "the nature of the function performed, not the identity of the actor who performed it." Id., at 229. Petitioner's effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent. V We are also unpersuaded by the evidence from the historical record to which petitioner has called our attention. He points to a comment by Thomas Jefferson protesting the subpoena duces tecum Chief Justice Marshall directed to him in the Burr trial,[20] a statement in the diaries kept by Senator William Maclay of the first Senate debates, in which thenVice President John Adams and Senator Oliver Ellsworth are recorded as having said that "the President personally [is] not . . . subject to any process whatever," lest it be "put. . . in the power of a common Justice to exercise any Authority over him and Stop the Whole Machine of Government,"[21] and to a quotation from Justice Story's Commentaries on the Constitution.[22] None of these sources sheds much light on the question at hand.[23] *696 Respondent, in turn, has called our attention to conflicting historical evidence. Speaking in favor of the Constitution's adoption at the Pennsylvania Convention, James Wilson— who had participated in the Philadelphia Convention at which the document was drafted—explained that, although the President "is placed [on] high," "not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment." 2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (emphasis deleted). This description is consistent with both the doctrine of Presidential immunity as set forth in Fitzgerald and rejection of the immunity claim in this case. With respect to acts taken in his "public character"—that is, official acts— the President may be disciplined principally by impeachment, not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts. In the end, as applied to the particular question before us, we reach the same conclusion about these historical materials that Justice Jackson described when confronted with an issue concerning the dimensions of the President's power. *697 "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side . . . . They largely cancel each other." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-635 (1952) (concurring opinion). VI Petitioner's strongest argument supporting his immunity claim is based on the text and structure of the Constitution. He does not contend that the occupant of the Office of the President is "above the law," in the sense that his conduct is entirely immune from judicial scrutiny.[24] The President argues merely for a postponement of the judicial proceedings that will determine whether he violated any law. His argument is grounded in the character of the office that was created by Article II of the Constitution, and relies on separation-of-powers principles that have structured our constitutional arrangement since the founding. As a starting premise, petitioner contends that he occupies a unique office with powers and responsibilities so vast and important that the public interest demands that he devote his undivided time and attention to his public duties. He submits that—given the nature of the office—the doctrine of separation of powers places limits on the authority of the *698 Federal Judiciary to interfere with the Executive Branch that would be transgressed by allowing this action to proceed. We have no dispute with the initial premise of the argument. Former Presidents, from George Washington to George Bush, have consistently endorsed petitioner's characterization of the office.[25] After serving his term, Lyndon Johnson observed: "Of all the 1,886 nights I was President, there were not many when I got to sleep before 1 or 2 a.m., and there were few mornings when I didn't wake up by 6 or 6:30."[26] In 1967, the Twenty-fifth Amendment to the Constitution was adopted to ensure continuity in the performance of the powers and duties of the office;[27] one of the sponsors of that Amendment stressed the importance of providing that "at all times" there be a President "who has complete control and will be able to perform" those duties.[28] As Justice Jackson has pointed out, the Presidency concentrates executive authority "in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S., at 653 (concurring opinion). We have, in short, long recognized the "unique position in the constitutional scheme" that this office occupies. Fitzgerald, *699 457 U. S., at 749.[29] Thus, while we suspect that even in our modern era there remains some truth to Chief Justice Marshall's suggestion that the duties of the Presidency are not entirely "unremitting," United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807), we accept the initial premise of the Executive's argument. It does not follow, however, that separation-of-powers principles would be violated by allowing this action to proceed. The doctrine of separation of powers is concerned with the allocation of official power among the three coequal branches of our Government. The Framers "built into the tripartite Federal Government . . . a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Buckley v. Valeo, 424 U. S., at 122.[30] Thus, for example, the Congress may not exercise the judicial power to revise final judgments, Plaut v. Spendthrift *700 Farm, Inc., 514 U.S. 211 (1995),[31] or the executive power to manage an airport, see Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276 (1991) (holding that "[i]f the power is executive, the Constitution does not permit an agent of Congress to exercise it").[32] See J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (Congress may not "invest itself or its members with either executive power or judicial power"). Similarly, the President may not exercise the legislative power to authorize the seizure of private property for public use. Youngstown, 343 U. S., at 588. And, the judicial power to decide cases and controversies does not include the provision of purely advisory opinions to the Executive,[33] or permit the federal courts to resolve nonjusticiable questions.[34] *701 Of course the lines between the powers of the three branches are not always neatly defined. See Mistretta v. United States, 488 U.S. 361, 380-381 (1989).[35] But in this case there is no suggestion that the Federal Judiciary is being asked to perform any function that might in some way be described as "executive." Respondent is merely asking the courts to exercise their core Article III jurisdiction to decide cases and controversies. Whatever the outcome of this case, there is no possibility that the decision will curtail the scope of the official powers of the Executive Branch. The litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be the President poses no perceptible risk of misallocation of either judicial power or executive power. Rather than arguing that the decision of the case will produce either an aggrandizement of judicial power or a narrowing of executive power, petitioner contends that—as a by product of an otherwise traditional exercise of judicial power—burdens will be placed on the President that will hamper the performance of his official duties. We have recognized that "[e]ven when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties." Loving v. United States, 517 U.S. 748, 757 (1996); see also Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977). As a factual matter, petitioner contends that this particular case—as well as the potential *702 additional litigation that an affirmance of the Court of Appeals judgment might spawn—may impose an unacceptable burden on the President's time and energy, and thereby impair the effective performance of his office. Petitioner's predictive judgment finds little support in either history or the relatively narrow compass of the issues raised in this particular case. As we have already noted, in the more than 200-year history of the Republic, only three sitting Presidents have been subjected to suits for their private actions.[36] See supra, at 692. If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency. As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner's time. Of greater significance, petitioner errs by presuming that interactions between the Judicial Branch and the Executive, even quite burdensome interactions, necessarily rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions. "[O]ur . . . system imposes upon the Branches a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which `would preclude the establishment of a Nation capable of governing itself effectively.' " Mistretta, 488 U. S., at 381 (quoting Buck- *703 ley, 424 U. S., at 121). As Madison explained, separation of powers does not mean that the branches "ought to have no partial agency in, or no control over the acts of each other."[37] The fact that a federal court's exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution. Two long-settled propositions, first announced by Chief Justice Marshall, support that conclusion. First, we have long held that when the President takes official action, the Court has the authority to determine whether he has acted within the law. Perhaps the most dramatic example of such a case is our holding that President Truman exceeded his constitutional authority when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills in order to avert a national catastrophe. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Despite the serious impact of that decision on the ability of the Executive Branch to accomplish its assigned mission, and the substantial time that the President must necessarily have devoted to the matter as a result of judicial involvement, we exercised our Article III jurisdiction to decide whether his official conduct conformed to the law. Our holding was an application of the principle established in Marbury v. Madison, 1 Cranch 137 (1803), that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Id., at 177. Second, it is also settled that the President is subject to judicial process in appropriate circumstances. Although Thomas Jefferson apparently thought otherwise, Chief Justice Marshall, when presiding in the treason trial of Aaron Burr, ruled that a subpoena duces tecum could be directed *704 to the President. United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807).[38] We unequivocally and emphatically endorsed Marshall's position when we held that President Nixon was obligated to comply with a subpoena commanding him to produce certain tape recordings of his conversations with his aides. United States v. Nixon, 418 U.S. 683 (1974). As we explained, "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances." Id., at 706.[39] Sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty. President Monroe responded to written interrogatories, see Rotunda, Presidents and Ex-Presidents as Witnesses: A Brief Historical Footnote, 1975 U. Ill. L. Forum 1, 5-6, President Nixon— as noted above—produced tapes in response to a subpoena *705 duces tecum, see United States v. Nixon, President Ford complied with an order to give a deposition in a criminal trial, United States v. Fromme, 405 F. Supp. 578 (ED Cal. 1975), and President Clinton has twice given videotaped testimony in criminal proceedings, see United States v. McDougal, 934 F. Supp. 296 (ED Ark. 1996); United States v. Branscum, No. LRP—CR-96-49 (ED Ark., June 7, 1996). Moreover, sitting Presidents have also voluntarily complied with judicial requests for testimony. President Grant gave a lengthy deposition in a criminal case under such circumstances, 1 R. Rotunda & J. Nowak, Treatise on Constitutional Law § 7.1 (2d ed. 1992), and President Carter similarly gave videotaped testimony for use at a criminal trial, id., § 7.1(b) (Supp. 1997). In sum, "[i]t is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States." Fitzgerald, 457 U. S., at 753-754. If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President's official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct. The burden on the President's time and energy that is a mere by product of such review surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions.[40] We therefore hold that the doctrine of separation of powers does not *706 require federal courts to stay all private actions against the President until he leaves office. The reasons for rejecting such a categorical rule apply as well to a rule that would require a stay "in all but the most exceptional cases." Brief for Petitioner i. Indeed, if the Framers of the Constitution had thought it necessary to protect the President from the burdens of private litigation, we think it far more likely that they would have adopted a categorical rule than a rule that required the President to litigate the question whether a specific case belonged in the "exceptional case" subcategory. In all events, the question whether a specific case should receive exceptional treatment is more appropriately the subject of the exercise of judicial discretion than an interpretation of the Constitution. Accordingly, we turn to the question whether the District Court's decision to stay the trial until after petitioner leaves office was an abuse of discretion. VII The Court of Appeals described the District Court's discretionary decision to stay the trial as the "functional equivalent" of a grant of temporary immunity. 72 F.3d, at 1361, n. 9. Concluding that petitioner was not constitutionally entitled to such an immunity, the court held that it was error to grant the stay. Ibid. Although we ultimately conclude that the stay should not have been granted, we think the issue is more difficult than the opinion of the Court of Appeals suggests. Strictly speaking the stay was not the functional equivalent of the constitutional immunity that petitioner claimed, because the District Court ordered discovery to proceed. Moreover, a stay of either the trial or discovery might be justified by considerations that do not require the recognition of any constitutional immunity. The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket. See, e. g., Landis v. North *707 American Co., 299 U.S. 248, 254 (1936). As we have explained, "[e]specially in cases of extraordinary public moment, [a plaintiff] may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted." Id., at 256. Although we have rejected the argument that the potential burdens on the President violate separation-of-powers principles, those burdens are appropriate matters for the District Court to evaluate in its management of the case. The high respect that is owed to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery.[41] Nevertheless, we are persuaded that it was an abuse of discretion for the District Court to defer the trial until after the President leaves office. Such a lengthy and categorical stay takes no account whatever of the respondent's interest in bringing the case to trial. The complaint was filed within the statutory limitations period—albeit near the end of that period—and delaying trial would increase the danger of *708 prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party. The decision to postpone the trial was, furthermore, premature. The proponent of a stay bears the burden of establishing its need. Id., at 255. In this case, at the stage at which the District Court made its ruling, there was no way to assess whether a stay of trial after the completion of discovery would be warranted. Other than the fact that a trial may consume some of the President's time and attention, there is nothing in the record to enable a judge to assess the potential harm that may ensue from scheduling the trial promptly after discovery is concluded. We think the District Court may have given undue weight to the concern that a trial might generate unrelated civil actions that could conceivably hamper the President in conducting the duties of his office. If and when that should occur, the court's discretion would permit it to manage those actions in such fashion (including deferral of trial) that interference with the President's duties would not occur. But no such impingement upon the President's conduct of his office was shown here. VIII We add a final comment on two matters that are discussed at length in the briefs: the risk that our decision will generate a large volume of politically motivated harassing and frivolous litigation, and the danger that national security concerns might prevent the President from explaining a legitimate need for a continuance. We are not persuaded that either of these risks is serious. Most frivolous and vexatious litigation is terminated at the pleading stage or on summary judgment, with little if any personal involvement by the defendant. See Fed. Rules Civ. Proc. 12, 56. Moreover, the availability of sanctions provides a significant deterrent to litigation directed at the President in his unofficial capacity for purposes of political *709 gain or harassment.[42] History indicates that the likelihood that a significant number of such cases will be filed is remote. Although scheduling problems may arise, there is no reason to assume that the district courts will be either unable to accommodate the President's needs or unfaithful to the tradition—especially in matters involving national security— of giving "the utmost deference to Presidential responsibilities." [43] Several Presidents, including petitioner, have given testimony without jeopardizing the Nation's security. See supra, at 704-705. In short, we have confidence in the ability of our federal judges to deal with both of these concerns. If Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation. As petitioner notes in his brief, Congress has enacted more than one statute providing for the deferral of civil litigation to accommodate important public interests. Brief for Petitioner 34-36. See, e. g., 11 U.S. C. § 362 (litigation against debtor stayed upon filing of bankruptcy petition); Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S. C. App. §§ 501-525 (provisions governing, inter alia, tolling or stay of civil claims by or against military personnel during course of active duty). If the Constitution embodied the rule that *710 the President advocates, Congress, of course, could not repeal it. But our holding today raises no barrier to a statutory response to these concerns. The Federal District Court has jurisdiction to decide this case. Like every other citizen who properly invokes that jurisdiction, respondent has a right to an orderly disposition of her claims. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Justice Breyer, concurring in the judgment.

This case raises a constitutional and a prudential question concerning the Office of the President of the United States. Respondent, a private citizen, seeks to recover damages from the current occupant of that office based on actions allegedly taken before his term began. The President submits that in all but the most exceptional cases the Constitution requires federal courts to defer such litigation until his term ends and that, in any event, respect for the office warrants such a stay. Despite the force of the arguments supporting the President's submissions, we conclude that they must be rejected. I Petitioner, William Jefferson Clinton, was elected to the Presidency in 1992, and reelected in His term of office expires on January 20, 2001. In 1991 he was the Governor of the State of Arkansas. Respondent, Paula Corbin Jones, is a resident of California. In 1991 she lived in Arkansas, and was an employee of the Arkansas Industrial Development Commission. On May 6, she commenced this action in the United States District Court for the Eastern District of Arkansas by filing a naming petitioner and Danny Ferguson, a former Arkansas State Police officer, as defendants. The *685 alleges two federal claims, and two state-law claims over which the federal court has jurisdiction because of the diverse citizenship of the parties.[1] As the case comes to us, we are required to assume the truth of the detailed— but as yet untested—factual allegations in the Those allegations principally describe events that are said to have occurred on the afternoon of May 8, 1991, during an official conference held at the Excelsior Hotel in Little Rock, Arkansas. The Governor delivered a speech at the conference; respondent—working as a state employee—staffed the registration desk. She alleges that Ferguson persuaded her to leave her desk and to visit the Governor in a business suite at the hotel, where he made "abhorrent"[2] sexual advances that she vehemently rejected. She further claims that her superiors at work subsequently dealt with her in a hostile and rude manner, and changed her duties to punish her for rejecting those advances. Finally, she alleges that after petitioner was elected President, Ferguson defamed her by making a statement to a reporter that implied she had accepted petitioner's alleged overtures, and that various persons authorized to speak for the President publicly branded her a liar by denying that the incident had occurred. Respondent seeks actual damages of $75,000 and punitive damages of $100,000. Her contains four counts. The first charges that petitioner, acting under color of state law, deprived her of rights protected by the Constitution, in violation of Rev. Stat. 1979, 42 U.S. C. 1983. The second charges that petitioner and Ferguson engaged in a conspiracy to violate her federal rights, also actionable under federal law. See Rev. Stat. 1980, 42 U.S. C. 1985. The third is a state common-law claim for intentional infliction of emotional distress, grounded primarily on the incident at the *686 hotel. The fourth count, also based on state law, is for defamation, embracing both the comments allegedly made to the press by Ferguson and the statements of petitioner's agents. Inasmuch as the legal sufficiency of the claims has not yet been challenged, we assume, without deciding, that each of the four counts states a cause of action as a matter of law. With the exception of the last charge, which arguably may involve conduct within the outer perimeter of the President's official responsibilities, it is perfectly clear that the alleged misconduct of petitioner was unrelated to any of his official duties as President of the United States and, indeed, occurred before he was elected to that office.[3] II In response to the petitioner promptly advised the District Court that he intended to file a motion to dismiss on grounds of Presidential immunity, and requested the court to defer all other pleadings and motions until after the immunity issue was resolved.[4] Relying on our cases holding that immunity questions should be decided at the earliest possible stage of the litigation, our recognition of the "`singular importance of the President's duties,' " ), and the fact that the question did not require any analysis of the allegations of the 858 F. Supp., at the court granted the request. Petitioner thereupon filed a motion "to dismiss Without prejudice and to toll any statutes of limitation [that may be applicable] until he is no longer President, at which time the plaintiff *687 may refile the instant suit." Record, Doc. No. 17. Extensive submissions were made to the District Court by the parties and the Department of Justice.[5] The District Judge denied the motion to dismiss on immunity grounds and ruled that discovery in the case could go forward, but ordered any trial stayed until the end of petitioner's Presidency. Although she recognized that a "thin majority" in had held that "the President has absolute immunity from civil damage actions arising out of the execution of official duties of office," she was not convinced that "a President has absolute immunity from civil causes of action arising prior to assuming the office."[6] She was, however, persuaded by some of the reasoning in our opinion in that deferring the trial if one were required would be appropriate.[7] -700. Relying in part on the fact that respondent had failed to bring her until two days before the 3-year period of limitations expired, she concluded that the public interest in avoiding litigation that might hamper the President in conducting the duties of his office outweighed any demonstrated need for an immediate trial. Both parties appealed. A divided panel of the Court of Appeals affirmed the denial of the motion to dismiss, but because it regarded the order postponing the trial until the *688 President leaves office as the "functional equivalent" of a grant of temporary immunity, it reversed that order. Writing for the majority, Judge Bowman explained that "the President, like all other government officials, is subject to the same laws that apply to all other members of our society," that he could find no "case in which any public official ever has been granted any immunity from suit for his unofficial acts," ib and that the rationale for official immunity "is inapposite where only personal, private conduct by a President is at issue," The majority specifically rejected the argument that, unless immunity is available, the threat of judicial interference with the Executive Branch through scheduling orders, potential contempt citations, and sanctions would violate separation-of-powers principles. Judge Bowman suggested that "judicial case management sensitive to the burdens of the presidency and the demands of the President's schedule" would avoid the perceived danger. In dissent, Judge Ross submitted that even though the holding in involved official acts, the logic of the opinion, which "placed primary reliance on the prospect that the President's discharge of his constitutional powers and duties would be impaired if he were subject to suits for damages," applies with equal force to this In his view, "unless exigent circumstances can be shown," all private actions for damages against a sitting President must be stayed until the completion of his term. In this case, Judge Ross saw no reason why the stay would prevent respondent from ultimately obtaining an adjudication of her claims. In response to the dissent, Judge Beam wrote a separate concurrence. He suggested that a prolonged delay may well create a significant risk of irreparable harm to respondent because of an unforeseeable loss of evidence or the possible *689 death of a party. Moreover, he argued that in civil rights cases brought under 1983 there is a "public interest in an ordinary citizen's timely vindication of her most fundamental right against alleged abuse of power by government officials." In his view, the dissent's concern about judicial interference with the functioning of the Presidency was "greatly overstated." Neither the involvement of prior Presidents in litigation, either as parties or as witnesses, nor the character of this "relatively uncomplicated civil litigation," indicated that the threat was serious. -1366. Finally, he saw "no basis for staying discovery or trial of the claims against Trooper Ferguson."[8] III The President, represented by private counsel, filed a petition for certiorari. The Acting Solicitor General, representing the United States, supported the petition, arguing that the decision of the Court of Appeals was "fundamentally mistaken" and created "serious risks for the institution of the Presidency."[9] In her brief in opposition to certiorari, respondent argued that this "one-of-a-kind case is singularly inappropriate" for the exercise of our certiorari jurisdiction because it did not create any conflict among the Courts of Appeals, it "does not pose any conceivable threat to the functioning of the Executive Branch," and there is no precedent supporting the President's position.[10] While our decision to grant the petition, expressed no judgment concerning the merits of the case, it does reflect our appraisal of its importance. The *690 representations made on behalf of the Executive Branch as to the potential impact of the precedent established by the Court of Appeals merit our respectful and deliberate consideration. It is true that we have often stressed the importance of avoiding the premature adjudication of constitutional questions.[11] That doctrine of avoidance, however, is applicable to the entire Federal Judiciary, not just to this Court, cf. Arizonans for Official English v. Arizona, ante, p. 43, and comes into play after the court has acquired jurisdiction of a It does not dictate a discretionary denial of every certiorari petition raising a novel constitutional question. It does, however, make it appropriate to identify two important constitutional issues not encompassed within the questions presented by the petition for certiorari that we need not address today.[12] *691 First, because the claim of immunity is asserted in a federal court and relies heavily on the doctrine of separation of powers that restrains each of the three branches of the Federal Government from encroaching on the domain of the other two, see, e. g., it is not necessary to consider or decide whether a comparable claim might succeed in a state tribunal. If this case were being heard in a state forum, instead of advancing a separation-of-powers argument, petitioner would presumably rely on federalism and comity concerns,[13] as well as the interest in protecting federal officials from possible local prejudice that underlies the authority to remove certain cases brought against federal officers from a state to a federal court, see 28 U.S. C. 1442(a); Whether those concerns would present a more compelling case for immunity is a question that is not before us. Second, our decision rejecting the immunity claim and allowing the case to proceed does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place. We assume that the testimony of the President, both for discovery and for use at trial, may be taken at the White House at a time that *692 will accommodate his busy schedule, and that, if a trial is held, there would be no necessity for the President to attend in person, though he could elect to do so.[14] IV Petitioner's principal submission—that "in all but the most exceptional cases," Brief for Petitioner i,the Constitution affords the President temporary immunity from civil damages litigation arising out of events that occurred before he took office—cannot be sustained on the basis of precedent. Only three sitting Presidents have been defendants in civil litigation involving their actions prior to taking office. Complaints against Theodore Roosevelt and Harry Truman had been dismissed before they took office; the dismissals were affirmed after their respective inaugurations.[15] Two companion cases arising out of an automobile accident were filed against John F. Kennedy in 1960 during the Presidential campaign.[16] After taking office, he unsuccessfully argued that his status as Commander in Chief gave him a right to a stay under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S. C. App. 501-525. The motion for a stay was denied by the District Court, and the matter was settled out of court.[17] Thus, none of those cases sheds any light on the constitutional issue before us. The principal rationale for affording certain public servants immunity from suits for money damages arising out of *693 their official acts is inapplicable to unofficial conduct. In cases involving prosecutors, legislators, and judges we have repeatedly explained that the immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability.[18] We explained in : "As public servants, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of different individuals, each of whom may be a potential source of future controversy. The societal interest in providing such public officials with the maximum ability to deal fearlessly and impartially with the public at large has long been recognized as an acceptable justification for official The point of immunity for such officials is to forestall an atmosphere of intimidation that would conflict with their resolve to perform their designated functions in a principled fashion." That rationale provided the principal basis for our holding that a former President of the United States was "entitled to absolute immunity from damages liability predicated on his official acts," See at 752 (citing ). Our central concern was to *694 avoid rendering the President "unduly cautious in the discharge of his official duties." n. 32.[19] This reasoning provides no support for an immunity for unofficial conduct. As we explained in "the sphere of protected action must be related closely to the immunity's justifying purposes." Because of the President's broad responsibilities, we recognized in that case an immunity from damages claims arising out of official acts extending to the "outer perimeter of his authority." But we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity. See (noting that "a President, like Members of Congress, judges, prosecutors, or congressional aides—all having absolute immunity—are not immune for acts outside official duties"); see also Moreover, when defining the scope of an immunity for acts clearly taken within an official capacity, we have applied a functional approach. "Frequently our decisions have held that an official's absolute immunity should extend only to acts in performance of particular functions of his office." Hence, for example, a judge's absolute immunity does not extend to actions performed in a purely administrative *695 capacity. See As our opinions have made clear, immunities are grounded in "the nature of the function performed, not the identity of the actor who performed it." Petitioner's effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent. V We are also unpersuaded by the evidence from the historical record to which petitioner has called our attention. He points to a comment by Thomas Jefferson protesting the subpoena duces tecum Chief Justice Marshall directed to him in the Burr trial,[20] a statement in the diaries kept by Senator William Maclay of the first Senate debates, in which thenVice President John Adams and Senator Oliver Ellsworth are recorded as having said that "the President personally [is] not subject to any process whatever," lest it be "put. in the power of a common Justice to exercise any Authority over him and Stop the Whole Machine of Government,"[21] and to a quotation from Justice Story's Commentaries on the Constitution.[22] None of these sources sheds much light on the question at hand.[23] *696 Respondent, in turn, has called our attention to conflicting historical evidence. Speaking in favor of the Constitution's adoption at the Pennsylvania Convention, James Wilson— who had participated in the Philadelphia Convention at which the document was drafted—explained that, although the President "is placed [on] high," "not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment." 2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (emphasis deleted). This description is consistent with both the doctrine of Presidential immunity as set forth in and rejection of the immunity claim in this With respect to acts taken in his "public character"—that is, official acts— the President may be disciplined principally by impeachment, not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts. In the end, as applied to the particular question before us, we reach the same conclusion about these historical materials that Justice Jackson described when confronted with an issue concerning the dimensions of the President's power. *697 "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side They largely cancel each other." Sheet & Tube VI Petitioner's strongest argument supporting his immunity claim is based on the text and structure of the Constitution. He does not contend that the occupant of the Office of the President is "above the law," in the sense that his conduct is entirely immune from judicial scrutiny.[24] The President argues merely for a postponement of the judicial proceedings that will determine whether he violated any law. His argument is grounded in the character of the office that was created by Article II of the Constitution, and relies on separation-of-powers principles that have structured our constitutional arrangement since the founding. As a starting premise, petitioner contends that he occupies a unique office with powers and responsibilities so vast and important that the public interest demands that he devote his undivided time and attention to his public duties. He submits that—given the nature of the office—the doctrine of separation of powers places limits on the authority of the *698 Federal Judiciary to interfere with the Executive Branch that would be transgressed by allowing this action to proceed. We have no dispute with the initial premise of the argument. Former Presidents, from George Washington to George Bush, have consistently endorsed petitioner's characterization of the office.[25] After serving his term, Lyndon Johnson observed: "Of all the 1,886 nights I was President, there were not many when I got to sleep before 1 or 2 a.m., and there were few mornings when I didn't wake up by 6 or 6:30."[26] In 1967, the Twenty-fifth Amendment to the Constitution was adopted to ensure continuity in the performance of the powers and duties of the office;[27] one of the sponsors of that Amendment stressed the importance of providing that "at all times" there be a President "who has complete control and will be able to perform" those duties.[28] As Justice Jackson has pointed out, the Presidency concentrates executive authority "in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear." Sheet & Tube We have, in short, long recognized the "unique position in the constitutional scheme" that this office occupies. *[29] Thus, while we suspect that even in our modern era there remains some truth to Chief Justice Marshall's suggestion that the duties of the Presidency are not entirely "unremitting," United (No. 14,692d) (CC Va. 1807), we accept the initial premise of the Executive's argument. It does not follow, however, that separation-of-powers principles would be violated by allowing this action to proceed. The doctrine of separation of powers is concerned with the allocation of official power among the three coequal branches of our Government. The Framers "built into the tripartite Federal Government a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." 424 U. S., at[30] Thus, for example, the Congress may not exercise the judicial power to revise final judgments,[31] or the executive power to manage an airport, see Metropolitan Washington Airports[32] See J. W. Hampton, Jr., & U.S. 394, Similarly, the President may not exercise the legislative power to authorize the seizure of private property for public use. 3 U. S., at 588. And, the judicial power to decide cases and controversies does not include the provision of purely advisory opinions to the Executive,[33] or permit the federal courts to resolve nonjusticiable questions.[] *701 Of course the lines between the powers of the three branches are not always neatly defined. See[35] But in this case there is no suggestion that the Federal Judiciary is being asked to perform any function that might in some way be described as "executive." Respondent is merely asking the courts to exercise their core Article III jurisdiction to decide cases and controversies. Whatever the outcome of this case, there is no possibility that the decision will curtail the scope of the official powers of the Executive Branch. The litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be the President poses no perceptible risk of misallocation of either judicial power or executive power. Rather than arguing that the decision of the case will produce either an aggrandizement of judicial power or a narrowing of executive power, petitioner contends that—as a by product of an otherwise traditional exercise of judicial power—burdens will be placed on the President that will hamper the performance of his official duties. We have recognized that "[e]ven when a branch does not arrogate power to itself the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties." ; see also As a factual matter, petitioner contends that this particular case—as well as the potential *702 additional litigation that an affirmance of the Court of Appeals judgment might spawn—may impose an unacceptable burden on the President's time and energy, and thereby impair the effective performance of his office. Petitioner's predictive judgment finds little support in either history or the relatively narrow compass of the issues raised in this particular As we have already noted, in the more than 200-year history of the Republic, only three sitting Presidents have been subjected to suits for their private actions.[36] See If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency. As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner's time. Of greater significance, petitioner errs by presuming that interactions between the Judicial Branch and the Executive, even quite burdensome interactions, necessarily rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions. "[O]ur system imposes upon the Branches a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which `would preclude the establishment of a Nation capable of governing itself effectively.' " (quoting Buck- *703 ). As Madison explained, separation of powers does not mean that the branches "ought to have no partial agency in, or no control over the acts of each other."[37] The fact that a federal court's exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution. Two long-settled propositions, first announced by Chief Justice Marshall, support that conclusion. First, we have long held that when the President takes official action, the Court has the authority to determine whether he has acted within the law. Perhaps the most dramatic example of such a case is our holding that President Truman exceeded his constitutional authority when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills in order to avert a national catastrophe. Sheet & Tube Despite the serious impact of that decision on the ability of the Executive Branch to accomplish its assigned mission, and the substantial time that the President must necessarily have devoted to the matter as a result of judicial involvement, we exercised our Article III jurisdiction to decide whether his official conduct conformed to the law. Our holding was an application of the principle established in that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Second, it is also settled that the President is subject to judicial process in appropriate circumstances. Although Thomas Jefferson apparently thought otherwise, Chief Justice Marshall, when presiding in the treason trial of Aaron Burr, ruled that a subpoena duces tecum could be directed *704 to the President. United (No. 14,692d) (CC Va. 1807).[38] We unequivocally and emphatically endorsed Marshall's position when we held that President Nixon was obligated to comply with a subpoena commanding him to produce certain tape recordings of his conversations with his aides. United As we explained, "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."[39] Sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty. President Monroe responded to written interrogatories, see Rotunda, Presidents and Ex-Presidents as Witnesses: A Brief Historical Footnote, U. Ill. L. Forum 1, 5-6, President Nixon— as noted above—produced tapes in response to a subpoena *705 duces tecum, see United President Ford complied with an order to give a deposition in a criminal trial, United and President Clinton has twice given videotaped testimony in criminal proceedings, see United 9 F. Supp. 296 ; United States v. Branscum, No. LRP—CR-96-49 Moreover, sitting Presidents have also voluntarily complied with judicial requests for testimony. President Grant gave a lengthy deposition in a criminal case under such circumstances, 1 R. Rotunda & J. Nowak, Treatise on Constitutional Law 7.1 (2d ed. 1992), and President Carter similarly gave videotaped testimony for use at a criminal trial, 7.1(b) (Supp. 1997). In sum, "[i]t is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States." -754. If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President's official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct. The burden on the President's time and energy that is a mere by product of such review surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions.[40] We therefore hold that the doctrine of separation of powers does not *706 require federal courts to stay all private actions against the President until he leaves office. The reasons for rejecting such a categorical rule apply as well to a rule that would require a stay "in all but the most exceptional cases." Brief for Petitioner i. Indeed, if the Framers of the Constitution had thought it necessary to protect the President from the burdens of private litigation, we think it far more likely that they would have adopted a categorical rule than a rule that required the President to litigate the question whether a specific case belonged in the "exceptional case" subcategory. In all events, the question whether a specific case should receive exceptional treatment is more appropriately the subject of the exercise of judicial discretion than an interpretation of the Constitution. Accordingly, we turn to the question whether the District Court's decision to stay the trial until after petitioner leaves office was an abuse of discretion. VII The Court of Appeals described the District Court's discretionary decision to stay the trial as the "functional equivalent" of a grant of temporary 72 F.3d, n. 9. Concluding that petitioner was not constitutionally entitled to such an immunity, the court held that it was error to grant the stay. Although we ultimately conclude that the stay should not have been granted, we think the issue is more difficult than the opinion of the Court of Appeals suggests. Strictly speaking the stay was not the functional equivalent of the constitutional immunity that petitioner claimed, because the District Court ordered discovery to proceed. Moreover, a stay of either the trial or discovery might be justified by considerations that do not require the recognition of any constitutional The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket. See, e. g., As we have explained, "[e]specially in cases of extraordinary public moment, [a plaintiff] may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted." Although we have rejected the argument that the potential burdens on the President violate separation-of-powers principles, those burdens are appropriate matters for the District Court to evaluate in its management of the The high respect that is owed to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery.[41] Nevertheless, we are persuaded that it was an abuse of discretion for the District Court to defer the trial until after the President leaves office. Such a lengthy and categorical stay takes no account whatever of the respondent's interest in bringing the case to trial. The was filed within the statutory limitations period—albeit near the end of that period—and delaying trial would increase the danger of *708 prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party. The decision to postpone the trial was, furthermore, premature. The proponent of a stay bears the burden of establishing its need. In this case, at the stage at which the District Court made its ruling, there was no way to assess whether a stay of trial after the completion of discovery would be warranted. Other than the fact that a trial may consume some of the President's time and attention, there is nothing in the record to enable a judge to assess the potential harm that may ensue from scheduling the trial promptly after discovery is concluded. We think the District Court may have given undue weight to the concern that a trial might generate unrelated civil actions that could conceivably hamper the President in conducting the duties of his office. If and when that should occur, the court's discretion would permit it to manage those actions in such fashion (including deferral of trial) that interference with the President's duties would not occur. But no such impingement upon the President's conduct of his office was shown here. VIII We add a final comment on two matters that are discussed at length in the briefs: the risk that our decision will generate a large volume of politically motivated harassing and frivolous litigation, and the danger that national security concerns might prevent the President from explaining a legitimate need for a continuance. We are not persuaded that either of these risks is serious. Most frivolous and vexatious litigation is terminated at the pleading stage or on summary judgment, with little if any personal involvement by the defendant. See Fed. Rules Civ. Proc. 12, 56. Moreover, the availability of sanctions provides a significant deterrent to litigation directed at the President in his unofficial capacity for purposes of political *709 gain or harassment.[42] History indicates that the likelihood that a significant number of such cases will be filed is remote. Although scheduling problems may arise, there is no reason to assume that the district courts will be either unable to accommodate the President's needs or unfaithful to the tradition—especially in matters involving national security— of giving "the utmost deference to Presidential responsibilities." [43] Several Presidents, including petitioner, have given testimony without jeopardizing the Nation's security. See In short, we have confidence in the ability of our federal judges to deal with both of these concerns. If Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation. As petitioner notes in his brief, Congress has enacted more than one statute providing for the deferral of civil litigation to accommodate important public interests. Brief for Petitioner -36. See, e. g., 11 U.S. C. 362 (litigation against debtor stayed upon filing of bankruptcy petition); Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S. C. App. 501-525 (provisions governing, inter alia, tolling or stay of civil claims by or against military personnel during course of active duty). If the Constitution embodied the rule that *710 the President advocates, Congress, of course, could not repeal it. But our holding today raises no barrier to a statutory response to these concerns. The Federal District Court has jurisdiction to decide this Like every other citizen who properly invokes that jurisdiction, respondent has a right to an orderly disposition of her claims. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Justice Breyer, concurring in the judgment.

Justice Breyer

concurring

Clinton v. Jones

1997-05-27

https://www.courtlistener.com/opinion/118115/clinton-v-jones/

https://www.courtlistener.com/api/rest/v3/clusters/118115/

1996-059

I agree with the majority that the Constitution does not automatically grant the President an immunity from civil lawsuits based upon his private conduct. Nor does the "doctrine of separation of powers . . .require federal courts to stay" virtually "all private actions against the President until he leaves office." Ante, at 705-706. Rather, as the Court of Appeals stated, the President cannot simply rest upon the claim that a private civil lawsuit for damages will "interfere with the constitutionally assigned duties of the Executive Branch . . . without detailing any specific responsibilities or explaining how or the degree to which they are affected by the suit." 72 F.3d 1354, 1361 (CA8 1996). To obtain a postponement the President must "bea[r] the burden of establishing its need." Ante, at 708. In my view, however, once the President sets forth and explains a conflict between judicial proceeding and public duties, the matter changes. At that point, the Constitution permits a judge to schedule a trial in an ordinary civil damages action (where postponement normally is possible without overwhelming damage to a plaintiff) only within the constraints of a constitutional principle—a principle that forbids a federal judge in such a case to interfere with the President's discharge of his public duties. I have no doubt that the Constitution contains such a principle applicable to civil suits, based upon Article II's vesting of the entire "executive Power" in a single individual, implemented through the Constitution's *711 structural separation of powers, and revealed both by history and case precedent. I recognize that this case does not require us now to apply the principle specifically, thereby delineating its contours; nor need we now decide whether lower courts are to apply it directly or categorically through the use of presumptions or rules of administration. Yet I fear that to disregard it now may appear to deny it. I also fear that the majority's description of the relevant precedents de-emphasizes the extent to which they support a principle of the President's independent authority to control his own time and energy, see, e. g., ante, at 693, 694 (describing the "central concern" of Nixon v. Fitzgerald, 457 U.S. 731 (1982), as "to avoid rendering the President `unduly cautious' "); ante, at 695, 696, and n. 23 (describing statements by Story, Jefferson, Adams, and Ellsworth as providing "little" or "no substantial support" for the President's position). Further, if the majority is wrong in predicting the future infrequency of private civil litigation against sitting Presidents, ante, at 702, acknowledgment and future delineation of the constitutional principle will prove a practically necessary institutional safeguard. For these reasons, I think it important to explain how the Constitution's text, history, and precedent support this principle of judicial noninterference with Presidential functions in ordinary civil damages actions. I The Constitution states that the "executive Power shall be vested in a President." Art. II, § 1. This constitutional delegation means that a sitting President is unusually busy, that his activities have an unusually important impact upon the lives of others, and that his conduct embodies an authority bestowed by the entire American electorate. He (along with his constitutionally subordinate Vice President) is the only official for whom the entire Nation votes, and is the only elected officer to represent the entire Nation both domestically and abroad. *712 This constitutional delegation means still more. Article II makes a single President responsible for the actions of the Executive Branch in much the same way that the entire Congress is responsible for the actions of the Legislative Branch, or the entire Judiciary for those of the Judicial Branch. It thereby creates a constitutional equivalence between a single President, on the one hand, and many legislators, or judges, on the other. The Founders created this equivalence by consciously deciding to vest Executive authority in one person rather than several. They did so in order to focus, rather than to spread, Executive responsibility thereby facilitating accountability. They also sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many. Compare U. S. Const., Art. II, § 1 (vesting power in "a President"), with U. S. Const., Art. I, § 1 (vesting power in "a Congress" that "consist[s] of a Senate and House of Representatives"), and U. S. Const., Art. III, § 1 (vesting power in a "supreme Court" and "inferior Courts"). The authority explaining the nature and importance of this decision is legion. See, e. g., J. Locke, Second Treatise of Civil Government § 144 (J. Gough ed. 1947) (desirability of a perpetual Executive); 1 W. Blackstone, Commentaries *242— *243 (need for single Executive); The Federalist No. 70, p. 423 (C. Rossiter ed. 1961) (A. Hamilton) (Executive "[e]nergy" needed for security, "steady administration of the laws," "protection of property," "justice," and protection of "liberty"); Ellsworth, The Landholder, VI, in Essays on the Constitution 161, 163 (P. Ford ed. 1892) ("supreme executive should be one person, and unfettered otherwise than by the laws he is to execute"); Morrison v. Olson, 487 U.S. 654, 698-699 (1988) (Scalia, J., dissenting) (describing history); id., at 705 (describing textual basis); id., at 729 (describing *713 policy arguments). See also The Federalist No. 71, at 431 (A. Hamilton); P. Kurland, Watergate and the Constitution 135 (1978) (President is "sole indispensable man in government" and "should not be called" from his duties "at the instance of any other . . . branch of government"); Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23, 37-47 (1995). Cf. T. Roosevelt, An Autobiography 372 (1913). For present purposes, this constitutional structure means that the President is not like Congress, for Congress can function as if it were whole, even when up to half of its members are absent, see U. S. Const., Art. I, § 5, cl. 1. It means that the President is not like the Judiciary, for judges often can designate other judges, e. g., from other judicial circuits, to sit even should an entire court be detained by personal litigation. It means that, unlike Congress, which is regularly out of session, U. S. Const., Art. I, §§ 4, 5, 7, the President never adjourns. More importantly, these constitutional objectives explain why a President, though able to delegate duties to others, cannot delegate ultimate responsibility or the active obligation to supervise that goes with it. And the related constitutional equivalence between President, Congress, and the Judiciary means that judicial scheduling orders in a private civil case must not only take reasonable account of, say, a particularly busy schedule, or a job on which others critically depend, or an underlying electoral mandate. They must also reflect the fact that interference with a President's ability to carry out his public responsibilities is constitutionally equivalent to interference with the ability of the entirety of Congress, or the Judicial Branch, to carry out its public obligations. II The leading case regarding Presidential immunity from suit is Nixon v. Fitzgerald . Before discussing Fitzgerald, it is helpful to understand the historical precedent on which it *714 relies. While later events have called into question some of the more extreme views on Presidential immunity, the essence of the constitutional principle remains true today. The historical sources, while not in themselves fully determinative, in conjunction with this Court's precedent inform my judgment that the Constitution protects the President from judicial orders in private civil cases to the extent that those orders could significantly interfere with his efforts to carry out his ongoing public responsibilities. A Three of the historical sources this Court cited in Fitzgerald, 457 U. S., at 749, 750-752, n. 31—a commentary by Joseph Story, an argument attributed to John Adams and Oliver Ellsworth, and a letter written by Thomas Jefferson— each make clear that this is so. First, Joseph Story wrote in his Commentaries: "There are . . . incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among those, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this pur- pose his person must be deemed, in civil cases at least, to possess an official inviolability." 3 J. Story, Commentaries on the Constitution of the United States § 1563, pp. 418-419 (1833) (emphasis added), quoted in Fitzgerald, supra, at 749. As interpreted by this Court in Nixon v. Fitzgerald, the words "for this purpose" would seem to refer to the President's need for "official inviolability" in order to "perform" the duties of his office without "obstruction or impediment." As so read, Story's commentary does not explicitly define the *715 contours of "official inviolability." But it does suggest that the "inviolability" is time bound ("while . . . in the discharge of the duties of his office"); that it applies in private lawsuits (for it attaches to the President's "person" in "civil cases"); and that it is functional ("necessarily implied from the nature of the [President's] functions"). Since Fitzgerald did not involve a physical constraint, the Court's reliance upon Justice Story's commentary makes clear, in the Court's view, that the commentary does not limit the scope of "inviolability" to an immunity from a physical imprisonment, physical detention, or physical "arrest"—a now abandoned procedure that permitted the arrest of certain civil case defendants (e. g., those threatened by bankruptcy) during a civil proceeding. I would therefore read Story's commentary to mean what it says, namely, that Article II implicitly grants an "official inviolability" to the President "while he is in the discharge of the duties of his office," and that this inviolability must be broad enough to permit him "to perform" his official duties without "obstruction or impediment." As this Court has previously held, the Constitution may grant this kind of protection implicitly; it need not do so explicitly. See Fitzgerald, supra, at 750, n. 31; United States v. Nixon, 418 U.S. 683, 705-706, n. 16 (1974); cf. McCulloch v. Maryland, 4 Wheat. 316, 406 (1819). Second, during the first Congress, then-Vice President John Adams and then-Senator Oliver Ellsworth expressed a view of an applicable immunity far broader than any currently asserted. Speaking of a sitting President, they said that the "`President, personally, was not the subject to any process whatever . . . . For [that] would . . . put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government.' " 457 U.S., at 751, n. 31 (quoting Journal of William Maclay 167 (E. Maclay ed. 1890) (Sept. 26 journal entry reporting exchange between Sen. Maclay, Adams, and Ellsworth)). They *716 included in their claim a kind of immunity from criminal, as well as civil, process. They responded to a counter argument—that the President "was not above the laws," and would have to be arrested if guilty of crimes—by stating that the President would first have to be impeached, and could then be prosecuted. 9 Documentary History of First Federal Congress of United States 168 (K. Bowling & H. Veit eds. 1988) (Diary of William Maclay). This Court's rejection of Adams' and Ellsworth's views in the context of criminal proceedings, see ante, at 703-704, does not deprive those views of authority here. See Fitzgerald, supra, at 751-752, n. 31. Nor does the fact that Senator William Maclay, who reported the views of Adams and Ellsworth, "went on to point out in his diary that he virulently disagreed with them." Ante, at 696, n. 23. Maclay, unlike Adams and Ellsworth, was not an important political figure at the time of the constitutional debates. See Diary of William Maclay xi—xiii. Third, in 1807, a sitting President, Thomas Jefferson, during a dispute about whether the federal courts could subpoena his presence in a criminal case, wrote the following to United States Attorney George Hay: "The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?" 10 Works of Thomas Jefferson 404, n. (P. Ford ed. 1905) (letter of June 20, 1807, from President Thomas Jefferson to United States Attorney George Hay), quoted in Fitzgerald, supra, at 751, n. 31. *717 Three days earlier Jefferson had written to the same correspondent: "To comply with such calls would leave the nation without an executive branch, whose agency, nevertheless, is understood to be so constantly necessary, that it is the sole branch which the constitution requires to be always in function. It could not then mean that it should be withdrawn from its station by any co-ordinate authority." 10 Works of Thomas Jefferson, at 401 (letter of June 17, 1807, from Thomas Jefferson to George Hay). Jefferson, like Adams and Ellsworth, argued strongly for an immunity from both criminal and civil judicial process—an immunity greater in scope than any immunity, or any special scheduling factor, now at issue in the civil case before us. The significance of his views for present purposes lies in his conviction that the Constitution protected a sitting President from litigation that would "withdraw" a President from his current "constitutional duties." That concern may not have applied to Mr. Fitzgerald's 1982 case against a former President, but it is at issue in the current litigation. Precedent that suggests to the contrary—that the Constitution does not offer a sitting President significant protections from potentially distracting civil litigation—consists of the following: (1) In several instances sitting Presidents have given depositions or testified at criminal trials, and (2) this Court has twice authorized the enforcement of subpoenas seeking documents from a sitting President for use in a criminal case. I agree with the majority that these precedents reject any absolute Presidential immunity from all court process. But they do not cast doubt upon Justice Story's basic conclusion that "in civil cases," a sitting President "possess[es] an official inviolability" as necessary to permit him to "perform" the duties of his office without "obstruction or impediment." *718 The first set of precedents tells us little about what the Constitution commands, for they amount to voluntary actions on the part of a sitting President. The second set of precedents amounts to a search for documents, rather than a direct call upon Presidential time. More important, both sets of precedents involve criminal proceedings in which the President participated as a witness. Criminal proceedings, unlike private civil proceedings, are public acts initiated and controlled by the Executive Branch; see United States v. Nixon, 418 U. S., at 693-696; they are not normally subject to postponement, see U. S. Const., Amdt. 6; and ordinarily they put at risk, not a private citizen's hope for monetary compensation, but a private citizen's freedom from enforced confinement, 418 U.S., at 711-712, and n. 19; Fitzgerald, 457 U. S., at 754, n. 37. See also id., at 758, n. 41. Nor is it normally possible in a criminal case, unlike many civil cases, to provide the plaintiff with interest to compensate for scheduling delay. See, e. g., Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (CA8 1991); Foley v. Lowell, 948 F.2d 10, 17-18 (CA1 1991); Wooten v. McClendon, 272 Ark. 61, 62-63, 612 S.W.2d 105, 106 (1981). The remaining precedent to which the majority refers does not seem relevant in this case. That precedent, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952), concerns official action. And any Presidential time spent dealing with, or action taken in response to, that kind of case is part of a President's official duties. Hence court review in such circumstances could not interfere with, or distract from, official duties. Insofar as a court orders a President, in any such a proceeding, to act or to refrain from action, it defines, or determines, or clarifies the legal scope of an official duty. By definition (if the order itself is lawful), it cannot impede, or obstruct, or interfere with the President's basic task— the lawful exercise of his Executive authority. Indeed, if constitutional principles counsel caution when judges consider an order that directly requires the President properly *719 to carry out his official duties, see Franklin v. Massachusetts, 505 U.S. 788, 827 (1992) (Scalia, J., concurring in part and concurring in judgment) (describing the "apparently unbroken historical tradition . . . Implicit in the separation of powers" that a President may not be ordered by the Judiciary to perform particular Executive acts); id., at 802-803 (plurality opinion of O'Connor, J.), so much the more must those principles counsel caution when such an order threatens to interfere with the President's properly carrying out those duties. B Case law, particularly, Nixon v. Fitzgerald, strongly supports the principle that judges hearing a private civil damages action against a sitting President may not issue orders that could significantly distract a President from his official duties. In Fitzgerald, the Court held that former President Nixon was absolutely immune from civil damages lawsuits based upon any conduct within the "outer perimeter" of his official responsibilities. 457 U.S., at 756. The holding rested upon six determinations that are relevant here. First, the Court found that the Constitution assigns the President singularly important duties (thus warranting an "absolute," rather than a "qualified," immunity). Id., at 750-751. Second, the Court held that "recognition of immunity" does not require a "specific textual basis" in the Constitution. Id., at 750, n. 31. Third, although physical constraint of the President was not at issue, the Court nevertheless considered Justice Story's constitutional analysis, discussed supra, at 714-715, "persuasive." 457 U.S., at 749. Fourth, the Court distinguished contrary precedent on the ground that it involved criminal, not civil, proceedings. Id., at 754, and n. 37. Fifth, the Court's concerns encompassed the fact that "the sheer prominence of the President's office" could make him "an easily identifiable target for suits for civil damages." Id., at 752-753. Sixth, and most important, the Court rested its conclusion in important part upon *720 the fact that civil lawsuits "could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve." Id., at 753. The majority argues that this critical, last-mentioned, feature of the case is dicta. Ante, at 694, n. 19. In the majority's view, since the defendant was a former President, the lawsuit could not have distracted him from his official duties; hence the case must rest entirely upon an alternative concern, namely, that a President's fear of civil lawsuits based upon his official duties could distort his official decisionmaking. The majority, however, overlooks the fact that Fitzgerald set forth a single immunity (an absolute immunity) applicable both to sitting and former Presidents. Its reasoning focused upon both. Its key paragraph, explaining why the President enjoys an absolute immunity rather than a qualified immunity, contains seven sentences, four of which focus primarily upon time and energy distraction and three of which focus primarily upon official decision distortion. Indeed, that key paragraph begins by stating: "Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government." 457 U.S., at 751. Moreover, the Court, in numerous other cases, has found the problem of time and energy distraction a critically important consideration militating in favor of a grant of immunity. See, e. g., Harlow v. Fitzgerald, 457 U.S. 800, 817-818 (1982) (qualified immunity for Presidential assistants based in part on "costs of trial" and "burdens of broad-reaching discovery" that are "peculiarly disruptive of effective government"); Imbler v. Pachtman, 424 U.S. 409, 423 (1976) (absolute immunity of prosecutors based in part upon concern about "deflection of the prosecutor's energies from his public duties"); Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (absolute immunity *721 for legislators avoids danger they will "be subjected to the cost and inconvenience and distractions of a trial"). Indeed, cases that provide public officials, not with immunity, but with special protective procedures such as interlocutory appeals, rest entirely upon a "time and energy distraction" rationale. See Behrens v. Pelletier, 516 U.S. 299, 306, 308 (1996) ("[G]overnment official[`s] right . . . to avoid standing trial [and] to avoid the burdens of such pretrial matters as discovery" are sufficient to support an immediate appeal from "denial of a claim of qualified immunity" (citations and internal quotation marks omitted)); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) ("[E]ntitlement not to stand trial or face the other burdens of litigation . . . is effectively lost if a case is erroneously permitted to go to trial" (citing Harlow, supra, at 818)). It is not surprising that the Court's immunity-related case law should rely on both distraction and distortion, for the ultimate rationale underlying those cases embodies both concerns. See Pierson v. Ray, 386 U.S. 547, 554 (1967) (absolute judicial immunity is needed because of "burden" of litigation, which leads to "intimidation"); Bradley v. Fisher, 13 Wall. 335, 349 (1872) (without absolute immunity a judge's "office [would] be degraded and his usefulness destroyed," and he would be forced to shoulder "burden" of keeping full records for use in defending against suits). The cases ultimately turn on an assessment of the threat that a civil damages lawsuit poses to a public official's ability to perform his job properly. And, whether they provide an absolute immunity, a qualified immunity, or merely a special procedure, they ultimately balance consequent potential public harm against private need. Distraction and distortion are equally important ingredients of that potential public harm. Indeed, a lawsuit that significantly distracts an official from his public duties can distort the content of a public decision just as can a threat of potential future liability. If the latter concern can justify an "absolute" immunity in the case of a President *722 no longer in office, where distraction is no longer a consideration, so can the former justify, not immunity, but a postponement, in the case of a sitting President. III The majority points to the fact that private plaintiffs have brought civil damages lawsuits against a sitting President only three times in our Nation's history; and it relies upon the threat of sanctions to discourage, and "the court's discretion" to manage, such actions so that "interference with the President's duties would not occur." Ante, at 708. I am less sanguine. Since 1960, when the last such suit was filed, the number of civil lawsuits filed annually in Federal District Courts has increased from under 60,000 to about 240,000, see Administrative Office of the United States Courts, Statistical Tables for the Federal Judiciary 27 (1995); Annual Report of the Director of the Administrative Office of the United States Courts—1960, p. 224 (1961); the number of federal district judges has increased from 233 to about 650, see Administrative Office of United States Courts, Judicial Business of United States Courts 7 (1994); Annual Report of the Director of the Administrative Office of the United States Courts— 1960, supra, at 205; the time and expense associated with both discovery and trial have increased, see, e. g., Bell, Varner, & Gottschalk, Automatic Disclosure in Discovery— The Rush To Reform, 27 Ga. L. Rev. 1, 9-11 (1992); see also S. Rep. No. 101-416, p. 1 (1990); Judicial Improvements Act of 1990, Pub. L. 101-650, 104 Stat. 5089; an increasingly complex economy has led to increasingly complex sets of statutes, rules, and regulations that often create potential liability, with or without fault. And this Court has now made clear that such lawsuits may proceed against a sitting President. The consequence, as the Court warned in Fitzgerald, is that a sitting President, given "the visibility of his office," could well become "an easily identifiable target for suits for civil damages," 457 U.S., at 753. The threat of sanctions *723 could well discourage much unneeded litigation, ante, at 708— 709, but some lawsuits (including highly intricate and complicated ones) could resist ready evaluation and disposition; and individual district court procedural rulings could pose a significant threat to the President's official functions. I concede the possibility that district courts, supervised by the Courts of Appeals and perhaps this Court, might prove able to manage private civil damages actions against sitting Presidents without significantly interfering with the discharge of Presidential duties—at least if they manage those actions with the constitutional problem in mind. Nonetheless, predicting the future is difficult, and I am skeptical. Should the majority's optimism turn out to be misplaced, then, in my view, courts will have to develop administrative rules applicable to such cases (including postponement rules of the sort at issue in this case) in order to implement the basic constitutional directive. A Constitution that separates powers in order to prevent one branch of Government from significantly threatening the workings of another could not grant a single judge more than a very limited power to second-guess a President's reasonable determination (announced in open court) of his scheduling needs, nor could it permit the issuance of a trial scheduling order that would significantly interfere with the President's discharge of his duties—in a private civil damages action the trial of which might be postponed without the plaintiff suffering enormous harm. As Madison pointed out in The Federalist No. 51: "The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. " Id., at 321-322 (emphasis added). I agree with the majority's determination that a constitutional defense must await a more specific showing of need; I do not agree with what I *724 believe to be an understatement of the "danger." And I believe that ordinary case-management principles are unlikely to prove sufficient to deal with private civil lawsuits for damages unless supplemented with a constitutionally based requirement that district courts schedule proceedings so as to avoid significant interference with the President's ongoing discharge of his official responsibilities. IV This case is a private action for civil damages in which, as the District Court here found, it is possible to preserve evidence and in which later payment of interest can compensate for delay. The District Court in this case determined that the Constitution required the postponement of trial during the sitting President's term. It may well be that the trial of this case cannot take place without significantly interfering with the President's ability to carry out his official duties. Yet, I agree with the majority that there is no automatic temporary immunity and that the President should have to provide the District Court with a reasoned explanation of why the immunity is needed; and I also agree that, in the absence of that explanation, the court's postponement of the trial date was premature. For those reasons, I concur in the result.

I agree with the majority that the Constitution does not automatically grant the President an immunity from civil lawsuits based upon his private conduct. Nor does the "doctrine of separation of powersrequire federal courts to stay" virtually "all private actions against the President until he leaves office." Ante, -706. Rather, as the Court of Appeals stated, the President cannot simply rest upon the claim that a private civil lawsuit for damages will "interfere with the constitutionally assigned duties of the Executive Branch without detailing any specific responsibilities or explaining how or the degree to which they are affected by the suit." To obtain a postponement the President must "bea[r] the burden of establishing its need." Ante, at 708. In my view, however, once the President sets forth and explains a conflict between judicial proceeding and public duties, the matter changes. At that point, the Constitution permits a judge to schedule a trial in an ordinary civil damages action (where postponement normally is possible without overwhelming damage to a plaintiff) only within the constraints of a constitutional principle—a principle that forbids a federal judge in such a case to interfere with the President's discharge of his public duties. I have no doubt that the Constitution contains such a principle applicable to civil suits, based upon Article II's vesting of the entire "executive Power" in a single individual, implemented through the Constitution's *711 structural separation of powers, and revealed both by history and case precedent. I recognize that this case does not require us now to apply the principle specifically, thereby delineating its contours; nor need we now decide whether lower courts are to apply it directly or categorically through the use of presumptions or rules of administration. Yet I fear that to disregard it now may appear to deny it. I also fear that the majority's description of the relevant precedents de-emphasizes the extent to which they support a principle of the President's independent authority to control his own time and energy, see, e. g., ante, at 693, 694 as "to avoid rendering the President `unduly cautious' "); ante, at 695, 696, and n. 23 (describing statements by Story, Jefferson, Adams, and Ellsworth as providing "little" or "no substantial support" for the President's position). Further, if the majority is wrong in predicting the future infrequency of private civil litigation against sitting Presidents, ante, at 702, acknowledgment and future delineation of the constitutional principle will prove a practically necessary institutional safeguard. For these reasons, I think it important to explain how the Constitution's text, history, and precedent support this principle of judicial noninterference with Presidential functions in ordinary civil damages actions. I The Constitution states that the "executive Power shall be vested in a President." Art. II, 1. This constitutional delegation means that a sitting President is unusually busy, that his activities have an unusually important impact upon the lives of others, and that his conduct embodies an authority bestowed by the entire American electorate. He (along with his constitutionally subordinate Vice President) is the only official for whom the entire Nation votes, and is the only elected officer to represent the entire Nation both domestically and abroad. *712 This constitutional delegation means still more. Article II makes a single President responsible for the actions of the Executive Branch in much the same way that the entire Congress is responsible for the actions of the Legislative Branch, or the entire Judiciary for those of the Judicial Branch. It thereby creates a constitutional equivalence between a single President, on the one hand, and many legislators, or judges, on the other. The Founders created this equivalence by consciously deciding to vest Executive authority in one person rather than several. They did so in order to focus, rather than to spread, Executive responsibility thereby facilitating accountability. They also sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many. Compare U. S. Const., Art. II, 1 (vesting power in "a President"), with U. S. Const., Art. I, 1 (vesting power in "a Congress" that "consist[s] of a Senate and House of Representatives"), and U. S. Const., Art. III, 1 (vesting power in a "supreme Court" and "inferior Courts"). The authority explaining the nature and importance of this decision is legion. See, e. g., J. Locke, Second Treatise of Civil Government 144 (J. Gough ed. 1947) (desirability of a perpetual Executive); 1 W. Blackstone, Commentaries *242— *243 (need for single Executive); The Federalist No. 70, p. (C. Rossiter ed. 1961) (A. Hamilton) (Executive "[e]nergy" needed for security, "steady administration of the laws," "protection of property," "justice," and protection of "liberty"); Ellsworth, The Landholder, VI, in Essays on the Constitution 161, 163 (P. Ford ed. 1892) ("supreme executive should be one person, and unfettered otherwise than by the laws he is to execute"); (describing history); ; See also The Federalist No. 71, at 431 (A. Hamilton); P. Kurland, Watergate and the Constitution 135 (1978) (President is "sole indispensable man in government" and "should not be called" from his duties "at the instance of any other branch of government"); Calabresi, Some Normative Arguments for the Unitary Executive, Cf. T. Roosevelt, An Autobiography 372 (1913). For present purposes, this constitutional structure means that the President is not like Congress, for Congress can function as if it were whole, even when up to half of its members are absent, see U. S. Const., Art. I, 5, cl. 1. It means that the President is not like the Judiciary, for judges often can designate other judges, e. g., from other judicial circuits, to sit even should an entire court be detained by personal litigation. It means that, unlike Congress, which is regularly out of session, U. S. Const., Art. I, 4, 5, 7, the President never adjourns. More importantly, these constitutional objectives explain why a President, though able to delegate duties to others, cannot delegate ultimate responsibility or the active obligation to supervise that goes with it. And the related constitutional equivalence between President, Congress, and the Judiciary means that judicial scheduling orders in a private civil case must not only take reasonable account of, say, a particularly busy schedule, or a job on which others critically depend, or an underlying electoral mandate. They must also reflect the fact that interference with a President's ability to carry out his public responsibilities is constitutionally equivalent to interference with the ability of the entirety of Congress, or the Judicial Branch, to carry out its public obligations. II The leading case regarding Presidential immunity from suit is Before discussing it is helpful to understand the historical precedent on which it *714 relies. While later events have called into question some of the more extreme views on Presidential immunity, the essence of the constitutional principle remains true today. The historical sources, while not in themselves fully determinative, in conjunction with this Court's precedent inform my judgment that the Constitution protects the President from judicial orders in private civil cases to the extent that those orders could significantly interfere with his efforts to carry out his ongoing public responsibilities. A Three of the historical sources this Court cited in 750-752, n. 31—a commentary by Joseph Story, an argument attributed to John Adams and Oliver Ellsworth, and a letter written by Thomas Jefferson— each make clear that this is so. First, Joseph Story wrote in his Commentaries: "There are incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among those, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this pur- pose his person must be deemed, in civil cases at least, to possess an official inviolability." 3 J. Story, Commentaries on the Constitution of the United States 1563, pp. 418-419 (1833) quoted in As interpreted by this Court in the words "for this purpose" would seem to refer to the President's need for "official inviolability" in order to "perform" the duties of his office without "obstruction or impediment." As so read, Story's commentary does not explicitly define the *715 contours of "official inviolability." But it does suggest that the "inviolability" is time bound ("while in the discharge of the duties of his office"); that it applies in private lawsuits (for it attaches to the President's "person" in "civil cases"); and that it is functional ("necessarily implied from the nature of the [President's] functions"). Since did not involve a physical constraint, the Court's reliance upon Justice Story's commentary makes clear, in the Court's view, that the commentary does not limit the scope of "inviolability" to an immunity from a physical imprisonment, physical detention, or physical "arrest"—a now abandoned procedure that permitted the arrest of certain civil case defendants (e. g., those threatened by bankruptcy) during a civil proceeding. I would therefore read Story's commentary to mean what it says, namely, that Article II implicitly grants an "official inviolability" to the President "while he is in the discharge of the duties of his office," and that this inviolability must be broad enough to permit him "to perform" his official duties without "obstruction or impediment." As this Court has previously held, the Constitution may grant this kind of protection implicitly; it need not do so explicitly. See ; United ; cf. Second, during the first Congress, then-Vice President John Adams and then-Senator Oliver Ellsworth expressed a view of an applicable immunity far broader than any currently asserted. Speaking of a sitting President, they said that the "`President, personally, was not the subject to any process whatever For [that] would put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government.' " n. 31 They *716 included in their claim a kind of immunity from criminal, as well as civil, process. They responded to a counter argument—that the President "was not above the laws," and would have to be arrested if guilty of crimes—by stating that the President would first have to be impeached, and could then be prosecuted. 9 Documentary History of First Federal Congress of United States 168 (Diary of William Maclay). This Court's rejection of Adams' and Ellsworth's views in the context of criminal proceedings, see ante, at 703-704, does not deprive those views of authority here. See Nor does the fact that Senator William Maclay, who reported the views of Adams and Ellsworth, "went on to point out in his diary that he virulently disagreed with them." Ante, at 696, n. 23. Maclay, unlike Adams and Ellsworth, was not an important political figure at the time of the constitutional debates. See Diary of William Maclay xi—xiii. Third, in 1807, a sitting President, Thomas Jefferson, during a dispute about whether the federal courts could subpoena his presence in a criminal case, wrote the following to United States Attorney George Hay: "The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?" 10 Works of Thomas Jefferson 404, n. (P. Ford ed. 1905) (letter of June 20, 1807, from President Thomas Jefferson to United States Attorney George Hay), quoted in *717 Three days earlier Jefferson had written to the same correspondent: "To comply with such calls would leave the nation without an executive branch, whose agency, nevertheless, is understood to be so constantly necessary, that it is the sole branch which the constitution requires to be always in function. It could not then mean that it should be withdrawn from its station by any co-ordinate authority." 10 Works of Thomas Jefferson, at 401 (letter of June 17, 1807, from Thomas Jefferson to George Hay). Jefferson, like Adams and Ellsworth, argued strongly for an immunity from both criminal and civil judicial process—an immunity greater in scope than any immunity, or any special scheduling factor, now at issue in the civil case before us. The significance of his views for present purposes lies in his conviction that the Constitution protected a sitting President from litigation that would "withdraw" a President from his current "constitutional duties." That concern may not have applied to Mr. 's 1982 case against a former President, but it is at issue in the current litigation. Precedent that suggests to the contrary—that the Constitution does not offer a sitting President significant protections from potentially distracting civil litigation—consists of the following: (1) In several instances sitting Presidents have given depositions or testified at criminal trials, and (2) this Court has twice authorized the enforcement of subpoenas seeking documents from a sitting President for use in a criminal case. I agree with the majority that these precedents reject any absolute Presidential immunity from all court process. But they do not cast doubt upon Justice Story's basic conclusion that "in civil cases," a sitting President "possess[es] an official inviolability" as necessary to permit him to "perform" the duties of his office without "obstruction or impediment." *718 The first set of precedents tells us little about what the Constitution commands, for they amount to voluntary actions on the part of a sitting President. The second set of precedents amounts to a search for documents, rather than a direct call upon Presidential time. More important, both sets of precedents involve criminal proceedings in which the President participated as a witness. Criminal proceedings, unlike private civil proceedings, are public acts initiated and controlled by the Executive Branch; see United -696; they are not normally subject to postponement, see U. S. Const., Amdt. 6; and ordinarily they put at risk, not a private citizen's hope for monetary compensation, but a private citizen's freedom from enforced -712, and n. 19; n. 37. See also Nor is it normally possible in a criminal case, unlike many civil cases, to provide the plaintiff with interest to compensate for scheduling delay. See, e. g., ; ; The remaining precedent to which the majority refers does not seem relevant in this case. That precedent, Youngstown Sheet & Tube concerns official action. And any Presidential time spent dealing with, or action taken in response to, that kind of case is part of a President's official duties. Hence court review in such circumstances could not interfere with, or distract from, official duties. Insofar as a court orders a President, in any such a proceeding, to act or to refrain from action, it defines, or determines, or clarifies the legal scope of an official duty. By definition (if the order itself is lawful), it cannot impede, or obstruct, or interfere with the President's basic task— the lawful exercise of his Executive authority. Indeed, if constitutional principles counsel caution when judges consider an order that directly requires the President properly *719 to carry out his official duties, see (describing the "apparently unbroken historical tradition Implicit in the separation of powers" that a President may not be ordered by the Judiciary to perform particular Executive acts); so much the more must those principles counsel caution when such an order threatens to interfere with the President's properly carrying out those duties. B Case law, particularly, strongly supports the principle that judges hearing a private civil damages action against a sitting President may not issue orders that could significantly distract a President from his official duties. In the Court held that former President was absolutely immune from civil damages lawsuits based upon any conduct within the "outer perimeter" of his official responsibilities. The holding rested upon six determinations that are relevant here. First, the Court found that the Constitution assigns the President singularly important duties (thus warranting an "absolute," rather than a "qualified," immunity). Second, the Court held that "recognition of immunity" does not require a "specific textual basis" in the Constitution. Third, although physical constraint of the President was not at issue, the Court nevertheless considered Justice Story's constitutional analysis, "persuasive." 457 U.S., Fourth, the Court distinguished contrary precedent on the ground that it involved criminal, not civil, proceedings. and n. 37. Fifth, the Court's concerns encompassed the fact that "the sheer prominence of the President's office" could make him "an easily identifiable target for suits for civil damages." Sixth, and most important, the Court rested its conclusion in important part upon *720 the fact that civil lawsuits "could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve." The majority argues that this critical, last-mentioned, feature of the case is dicta. Ante, at 694, n. 19. In the majority's view, since the defendant was a former President, the lawsuit could not have distracted him from his official duties; hence the case must rest entirely upon an alternative concern, namely, that a President's fear of civil lawsuits based upon his official duties could distort his official decisionmaking. The majority, however, overlooks the fact that set forth a single immunity (an absolute immunity) applicable both to sitting and former Presidents. Its reasoning focused upon both. Its key paragraph, explaining why the President enjoys an absolute immunity rather than a qualified immunity, contains seven sentences, four of which focus primarily upon time and energy distraction and three of which focus primarily upon official decision distortion. Indeed, that key paragraph begins by stating: "Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government." Moreover, the Court, in numerous other cases, has found the problem of time and energy distraction a critically important consideration militating in favor of a grant of immunity. See, e. g., v. ; ; Indeed, cases that provide public officials, not with immunity, but with special protective procedures such as interlocutory appeals, rest entirely upon a "time and energy distraction" rationale. See ; ("[E]ntitlement not to stand trial or face the other burdens of litigation is effectively lost if a case is erroneously permitted to go to trial" (citing )). It is not surprising that the Court's immunity-related case law should rely on both distraction and distortion, for the ultimate rationale underlying those cases embodies both concerns. See ; The cases ultimately turn on an assessment of the threat that a civil damages lawsuit poses to a public official's ability to perform his job properly. And, whether they provide an absolute immunity, a qualified immunity, or merely a special procedure, they ultimately balance consequent potential public harm against private need. Distraction and distortion are equally important ingredients of that potential public harm. Indeed, a lawsuit that significantly distracts an official from his public duties can distort the content of a public decision just as can a threat of potential future liability. If the latter concern can justify an "absolute" immunity in the case of a President *722 no longer in office, where distraction is no longer a consideration, so can the former justify, not immunity, but a postponement, in the case of a sitting President. III The majority points to the fact that private plaintiffs have brought civil damages lawsuits against a sitting President only three times in our Nation's history; and it relies upon the threat of sanctions to discourage, and "the court's discretion" to manage, such actions so that "interference with the President's duties would not occur." Ante, at 708. I am less sanguine. Since when the last such suit was filed, the number of civil lawsuits filed annually in Federal District Courts has increased from under 60,000 to about 240,000, see Administrative Office of the United States Courts, Statistical Tables for the Federal Judiciary 27 ; Annual Report of the Director of the Administrative Office of the United States Courts—, p. 224 (1961); the number of federal district judges has increased from 233 to about 650, see Administrative Office of United States Courts, Judicial Business of United States Courts 7 (1994); Annual Report of the Director of the Administrative Office of the United States Courts— ; the time and expense associated with both discovery and trial have increased, see, e. g., Bell, Varner, & Gottschalk, Automatic Disclosure in Discovery— The Rush To Reform, ; see also S. Rep. No. 101-416, p. 1 (1990); Judicial Improvements Act of 1990, Stat. 5089; an increasingly complex economy has led to increasingly complex sets of statutes, rules, and regulations that often create potential liability, with or without fault. And this Court has now made clear that such lawsuits may proceed against a sitting President. The consequence, as the Court warned in is that a sitting President, given "the visibility of his office," could well become "an easily identifiable target for suits for civil damages," 457 U.S., The threat of sanctions *723 could well discourage much unneeded litigation, ante, at 708— 709, but some lawsuits (including highly intricate and complicated ones) could resist ready evaluation and disposition; and individual district court procedural rulings could pose a significant threat to the President's official functions. I concede the possibility that district courts, supervised by the Courts of Appeals and perhaps this Court, might prove able to manage private civil damages actions against sitting Presidents without significantly interfering with the discharge of Presidential duties—at least if they manage those actions with the constitutional problem in mind. Nonetheless, predicting the future is difficult, and I am skeptical. Should the majority's optimism turn out to be misplaced, then, in my view, courts will have to develop administrative rules applicable to such cases (including postponement rules of the sort at issue in this case) in order to implement the basic constitutional directive. A Constitution that separates powers in order to prevent one branch of Government from significantly threatening the workings of another could not grant a single judge more than a very limited power to second-guess a President's reasonable determination (announced in open court) of his scheduling needs, nor could it permit the issuance of a trial scheduling order that would significantly interfere with the President's discharge of his duties—in a private civil damages action the trial of which might be postponed without the plaintiff suffering enormous harm. As Madison pointed out in The Federalist No. 51: "The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. " I agree with the majority's determination that a constitutional defense must await a more specific showing of need; I do not agree with what I *724 believe to be an understatement of the "danger." And I believe that ordinary case-management principles are unlikely to prove sufficient to deal with private civil lawsuits for damages unless supplemented with a constitutionally based requirement that district courts schedule proceedings so as to avoid significant interference with the President's ongoing discharge of his official responsibilities. IV This case is a private action for civil damages in which, as the District Court here found, it is possible to preserve evidence and in which later payment of interest can compensate for delay. The District Court in this case determined that the Constitution required the postponement of trial during the sitting President's term. It may well be that the trial of this case cannot take place without significantly interfering with the President's ability to carry out his official duties. Yet, I agree with the majority that there is no automatic temporary immunity and that the President should have to provide the District Court with a reasoned explanation of why the immunity is needed; and I also agree that, in the absence of that explanation, the court's postponement of the trial date was premature. For those reasons, I concur in the result.

Justice Breyer

majority

Heffernan v. City of Paterson

2016-04-26

https://www.courtlistener.com/opinion/3197852/heffernan-v-city-of-paterson/

https://www.courtlistener.com/api/rest/v3/clusters/3197852/

2015-035

The First Amendment generally prohibits government officials from dismissing or demoting an employee because of the employee’s engagement in constitutionally protected political activity. See Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980); but cf. Civil Service Comm’n v. Letter Carriers, 413 U.S. 548, 564 (1973). In this case a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor. The question is whether the official’s factual mistake makes a critical legal difference. Even though the employee had not in fact engaged in protected political activity, did his demotion “deprive” him of a “right . . . secured by the Constitution”? 42 U.S. C. §1983. We hold that it did. I To decide the legal question presented, we assume the following, somewhat simplified, version of the facts: In 2005, Jeffrey Heffernan, the petitioner, was a police officer in Paterson, New Jersey. He worked in the office of the 2 HEFFERNAN v. CITY OF PATERSON Opinion of the Court Chief of Police, James Wittig. At that time, the mayor of Paterson, Jose Torres, was running for reelection against Lawrence Spagnola. Torres had appointed to their current positions both Chief Wittig and a subordinate who directly supervised Heffernan. Heffernan was a good friend of Spagnola’s. During the campaign, Heffernan’s mother, who was bedridden, asked Heffernan to drive downtown and pick up a large Spagnola sign. She wanted to replace a smaller Spagnola sign, which had been stolen from her front yard. Heffernan went to a Spagnola distribution point and picked up the sign. While there, he spoke for a time to Spagnola’s campaign manager and staff. Other members of the police force saw him, sign in hand, talking to cam- paign workers. Word quickly spread throughout the force. The next day, Heffernan’s supervisors demoted Heffer- nan from detective to patrol officer and assigned him to a “walking post.” In this way they punished Heffernan for what they thought was his “overt involvement” in Spag- nola’s campaign. In fact, Heffernan was not involved in the campaign but had picked up the sign simply to help his mother. Heffernan’s supervisors had made a factual mistake. Heffernan subsequently filed this lawsuit in federal court. He claimed that Chief Wittig and the other re- spondents had demoted him because he had engaged in conduct that (on their mistaken view of the facts) consti- tuted protected speech. They had thereby “depriv[ed]” him of a “right . . . secured by the Constitution.” Rev. Stat. §1979, 42 U.S. C. §1983. The District Court found that Heffernan had not en- gaged in any “First Amendment conduct,” 2 F. Supp. 3d 563, 580 (NJ 2014); and, for that reason, the respondents had not deprived him of any constitutionally protected right. The Court of Appeals for the Third Circuit affirmed. It wrote that “a free-speech retaliation claim is actionable Cite as: 578 U. S. ____ (2016) 3 Opinion of the Court under §1983 only where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights.” 777 F.3d 147, 153 (2015) (citing Ambrose v. Robinson, 303 F.3d 488, 496 (CA3 2002); emphasis added). Heffernan filed a petition for certiorari. We agreed to decide whether the Third Circuit’s legal view was correct. Compare 777 F.3d, at 153 (case below), with Dye v. Office of Racing Comm’n, 702 F.3d 286, 300 (CA6 2012) (similar factual mistake does not affect the validity of the government employee’s claim). II With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. See Elrod v. Burns, supra; Branti v. Finkel, supra. The basic constitutional requirement re- flects the First Amendment’s hostility to government action that “prescribe[s] what shall be orthodox in poli- tics.” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943). The exceptions take account of “practical realities” such as the need for “efficiency” and “effec- tive[ness]” in government service. Waters v. Churchill, 511 U.S. 661, 672, 675 (1994); see also Civil Service Comm’n, supra, at 564 (neutral and appropriately limited policy may prohibit government employees from engaging in partisan activity), and Branti, supra, at 518 (political affiliation requirement permissible where affiliation is “an appropriate requirement for effective performance of the public office involved”). In order to answer the question presented, we assume that the exceptions do not apply here. But see infra, at 8. We assume that the activities that Heffernan’s supervisors thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish, see Rutan v. Republi- 4 HEFFERNAN v. CITY OF PATERSON Opinion of the Court can Party of Ill., 497 U.S. 62, 69 (1990) (“joining, working for or contributing to the political party and candidates of their own choice”), but that the supervisors were mistaken about the facts. Heffernan had not engaged in those protected activities. Does Heffernan’s constitutional case consequently fail? The text of the relevant statute does not answer the question. The statute authorizes a lawsuit by a person “depriv[ed]” of a “right . . . secured by the Constitution.” 42 U.S. C. §1983. But in this context, what precisely is that “right?” Is it a right that primarily focuses upon (the employee’s) actual activity or a right that primarily fo- cuses upon (the supervisor’s) motive, insofar as that motive turns on what the supervisor believes that activity to be? The text does not say. Neither does precedent directly answer the question. In some cases we have used language that suggests the “right” at issue concerns the employee’s actual activity. In Connick v. Myers, 461 U.S. 138 (1983), for example, we said that a court should first determine whether the plain- tiff spoke “ ‘as a citizen’ ” on a “ ‘matter[] of public con- cern,’ ” id., at 143. We added that, if the employee has not engaged in what can “be fairly characterized as constitut- ing speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge.” Id., at 146. We made somewhat similar statements in Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968). These cases, however, did not present the kind of ques- tion at issue here. In Connick, for example, no factual mistake was at issue. The Court assumed that both the employer and the employee were at every stage in agree- ment about the underlying facts: that the employer dis- missed the employee because of her having circulated within the office a document that criticized how the office Cite as: 578 U. S. ____ (2016) 5 Opinion of the Court was being run (that she had in fact circulated). The ques- tion was whether the circulation of that document amounted to constitutionally protected speech. If not, the Court need go no further. Neither was any factual mistake at issue in Pickering. The Court assumed that both the employer (a school board) and the employee understood the cause for dismis- sal, namely, a petition that the employee had indeed circulated criticizing his employer’s practices. The ques- tion concerned whether the petition was protected speech. Garcetti is substantially similar. In each of these cases, the only way to show that the employer’s motive was unconstitutional was to prove that the controver- sial statement or activity—in each case the undisputed reason for the firing—was in fact protected by the First Amendment. Waters v. Churchill, 511 U.S. 661 (1994), is more to the point. In that case the Court did consider the consequences of an employer mistake. The employer wrongly, though reasonably, believed that the employee had spoken only on personal matters not of public concern, and the employer dismissed the employee for having engaged in that unpro- tected speech. The employee, however, had in fact used words that did not amount to personal “gossip” (as the employer believed) but which focused on matters of public concern. The Court asked whether, and how, the employ- er’s factual mistake mattered. The Court held that, as long as the employer (1) had reasonably believed that the employee’s conversation had involved personal matters, not matters of public concern, and (2) had dismissed the employee because of that mis- taken belief, the dismissal did not violate the First Amendment. Id., at 679–680. In a word, it was the em- ployer’s motive, and in particular the facts as the employer reasonably understood them, that mattered. In Waters, the employer reasonably but mistakenly 6 HEFFERNAN v. CITY OF PATERSON Opinion of the Court thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employ- er’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander. We conclude that, as in Waters, the government’s reason for demoting Heffernan is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amend- ment and 42 U.S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior. We note that a rule of law finding liability in these circumstances tracks the language of the First Amend- ment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the free- dom of speech.” The Government acted upon a constitu- tionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s rea- son for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was di- rectly harmed, namely, demoted, through application of that policy. We also consider relevant the constitutional implica- tions of a rule that imposes liability. The constitutional harm at issue in the ordinary case consists in large part of discouraging employees—both the employee discharged (or demoted) and his or her colleagues—from engaging in Cite as: 578 U. S. ____ (2016) 7 Opinion of the Court protected activities. The discharge of one tells the others that they engage in protected activity at their peril. See, e.g., Elrod, 427 U.S., at 359 (retaliatory employment action against one employee “unquestionably inhibits protected belief and association” of all employees). Hence, we do not require plaintiffs in political affiliation cases to “prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance.” Branti, 445 U.S., at 517. The employer’s factual mistake does not diminish the risk of causing precisely that same harm. Neither, for that matter, is that harm diminished where an employer announces a policy of demoting those who, say, help a particular candi- date in the mayoral race, and all employees (including Heffernan), fearful of demotion, refrain from providing any such help. Cf. Gooding v. Wilson, 405 U.S. 518, 521 (1972) (explaining that overbreadth doctrine is necessary “because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions”). The upshot is that a dis- charge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake. Finally, we note that, contrary to respondents’ asser- tions, a rule of law that imposes liability despite the em- ployer’s factual mistake will not normally impose signifi- cant extra costs upon the employer. To win, the employee must prove an improper employer motive. In a case like this one, the employee will, if anything, find it more diffi- cult to prove that motive, for the employee will have to point to more than his own conduct to show an employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities. We concede that, for that very reason, it may be more complicated and costly for the 8 HEFFERNAN v. CITY OF PATERSON Opinion of the Court employee to prove his case. But an employee bringing suit will ordinarily shoulder that more complicated burden voluntarily in order to recover the damages he seeks. III We now relax an assumption underlying our decision. We have assumed that the policy that Heffernan’s em- ployers implemented violated the Constitution. Supra, at 3. There is some evidence in the record, however, suggest- ing that Heffernan’s employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign. See Brief for United States as Amicus Curiae 27–28. Whether that policy existed, whether Heffernan’s supervisors were indeed following it, and whether it com- plies with constitutional standards, see Civil Service Comm’n, 413 U.S., at 564, are all matters for the lower courts to decide in the first instance. Without expressing views on the matter, we reverse the judgment of the Third Circuit and remand the case for such further proceedings consistent with this opinion. It is so ordered. Cite as: 578 U. S. ____ (2016) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 14–1280 _________________ JEFFREY J. HEFFERNAN, PETITIONER v. CITY OF PATERSON, NEW JERSEY, ET AL.

The First Amedmet geerally prohibits govermet officials from dismissig or demotig a employee because of the employee’s egagemet i costitutioally protected political activity. See ; ; but cf. Civil Service I this case a govermet official demoted a employee because the official believed, but icorrectly believed, that the employee had supported a particular cadidate for mayor. The questio is whether the official’s factual mistake makes a critical legal differece. Eve though the employee had ot i fact egaged i protected political activity, did his demotio “deprive” him of a “right secured by the Costitutio”? 42 U.S. C. We hold that it did. I To decide the legal questio preseted, we assume the followig, somewhat simplified, versio of the facts: I 2005, Jeffrey Heffera, the petitioer, was a police officer i Paterso, New Jersey. He worked i the office of the 2 HEFFERNAN v. CITY OF PATERSON Opiio of the Court Chief of Police, James Wittig. At that time, the mayor of Paterso, Jose Torres, was ruig for reelectio agaist Lawrece Spagola. Torres had appoited to their curret positios both Chief Wittig ad a subordiate who directly supervised Heffera. Heffera was a good fried of Spagola’s. Durig the campaig, Heffera’s mother, who was bedridde, asked Heffera to drive dowtow ad pick up a large Spagola sig. She wated to replace a smaller Spagola sig, which had bee stole from her frot yard. Heffera wet to a Spagola distributio poit ad picked up the sig. While there, he spoke for a time to Spagola’s campaig maager ad staff. Other members of the police force saw him, sig i had, talkig to cam- paig workers. Word quickly spread throughout the force. The ext day, Heffera’s supervisors demoted Heffer- a from detective to patrol officer ad assiged him to a “walkig post.” I this way they puished Heffera for what they thought was his “overt ivolvemet” i Spag- ola’s campaig. I fact, Heffera was ot ivolved i the campaig but had picked up the sig simply to help his mother. Heffera’s supervisors had made a factual mistake. Heffera subsequetly filed this lawsuit i federal court. He claimed that Chief Wittig ad the other re- spodets had demoted him because he had egaged i coduct that (o their mistake view of the facts) costi- tuted protected speech. They had thereby “depriv[ed]” him of a “right secured by the Costitutio.” Rev. Stat. 42 U.S. C. The District Court foud that Heffera had ot e- gaged i ay “First Amedmet coduct,” 2 F. Supp. 3d 563, 580 (NJ 2014); ad, for that reaso, the respodets had ot deprived him of ay costitutioally protected right. The Court of Appeals for the Third Circuit affirmed. It wrote that “a free-speech retaliatio claim is actioable Cite as: 578 U. S. (2016) 3 Opiio of the Court uder oly where the adverse actio at issue was prompted by a employee’s actual, rather tha perceived, exercise of costitutioal rights.” (2015) (citig (CA3 2002); emphasis added). Heffera filed a petitio for certiorari. We agreed to decide whether the Third Circuit’s legal view was correct. Compare 777 F.3d, at (case below), with Dye v. Office of Racig Comm’, 702 F.3d 286, 300 (CA6 2012) (similar factual mistake does ot affect the validity of the govermet employee’s claim). II With a few exceptios, the Costitutio prohibits a govermet employer from dischargig or demotig a employee because the employee supports a particular political cadidate. See Brati v. The basic costitutioal requiremet re- flects the First Amedmet’s hostility to govermet actio that “prescribe[s] what shall be orthodox i poli- tics.” West Virgiia Bd. of 642 (1943). The exceptios take accout of “practical realities” such as the eed for “efficiecy” ad “effec- tive[ess]” i govermet service. ; see also Civil Service Comm’, at (eutral ad appropriately limited policy may prohibit govermet employees from egagig i partisa activity), ad Brati, (political affiliatio requiremet permissible where affiliatio is “a appropriate requiremet for effective performace of the public office ivolved”). I order to aswer the questio preseted, we assume that the exceptios do ot apply here. But see ifra, at 8. We assume that the activities that Heffera’s supervisors thought he had egaged i are of a kid that they caot costitutioally prohibit or puish, see Ruta v. Republi- 4 HEFFERNAN v. CITY OF PATERSON Opiio of the Court ca Party of Ill., (“joiig, workig for or cotributig to the political party ad cadidates of their ow choice”), but that the supervisors were mistake about the facts. Heffera had ot egaged i those protected activities. Does Heffera’s costitutioal case cosequetly fail? The text of the relevat statute does ot aswer the questio. The statute authorizes a lawsuit by a perso “depriv[ed]” of a “right secured by the Costitutio.” 42 U.S. C. But i this cotext, what precisely is that “right?” Is it a right that primarily focuses upo (the employee’s) actual activity or a right that primarily fo- cuses upo (the supervisor’s) motive, isofar as that motive turs o what the supervisor believes that activity to be? The text does ot say. Neither does precedet directly aswer the questio. I some cases we have used laguage that suggests the “right” at issue cocers the employee’s actual activity. I Coick v. Myers, for example, we said that a court should first determie whether the plai- tiff spoke “ ‘as a citize’ ” o a “ ‘matter[] of public co- cer,’ ” We added that, if the employee has ot egaged i what ca “be fairly characterized as costitut- ig speech o a matter of public cocer, it is uecessary for us to scrutiize the reasos for her discharge.” at 146. We made somewhat similar statemets i Garcetti v. Ceballos, ad Pickerig v. Board of Ed. of Towship High School Dist. 205, Will Cty., 391 U.S. 563 (1968). These cases, however, did ot preset the kid of ques- tio at issue here. I Coick, for example, o factual mistake was at issue. The Court assumed that both the employer ad the employee were at every stage i agree- met about the uderlyig facts: that the employer dis- missed the employee because of her havig circulated withi the office a documet that criticized how the office Cite as: 578 U. S. (2016) 5 Opiio of the Court was beig ru (that she had i fact circulated). The ques- tio was whether the circulatio of that documet amouted to costitutioally protected speech. If ot, the Court eed go o further. Neither was ay factual mistake at issue i Pickerig. The Court assumed that both the employer (a school board) ad the employee uderstood the cause for dismis- sal, amely, a petitio that the employee had ideed circulated criticizig his employer’s practices. The ques- tio cocered whether the petitio was protected speech. Garcetti is substatially similar. I each of these cases, the oly way to show that the employer’s motive was ucostitutioal was to prove that the cotrover- sial statemet or activity—i each case the udisputed reaso for the firig—was i fact protected by the First Amedmet. is more to the poit. I that case the Court did cosider the cosequeces of a employer mistake. The employer wrogly, though reasoably, believed that the employee had spoke oly o persoal matters ot of public cocer, ad the employer dismissed the employee for havig egaged i that upro- tected speech. The employee, however, had i fact used words that did ot amout to persoal “gossip” (as the employer believed) but which focused o matters of public cocer. The Court asked whether, ad how, the employ- er’s factual mistake mattered. The Court held that, as log as the employer (1) had reasoably believed that the employee’s coversatio had ivolved persoal matters, ot matters of public cocer, ad (2) had dismissed the employee because of that mis- take belief, the dismissal did ot violate the First Amedmet. at 679–680. I a word, it was the em- ployer’s motive, ad i particular the facts as the employer reasoably uderstood them, that mattered. I Waters, the employer reasoably but mistakely 6 HEFFERNAN v. CITY OF PATERSON Opiio of the Court thought that the employee had ot egaged i protected speech. Here the employer mistakely thought that the employee had egaged i protected speech. If the employ- er’s motive (ad i particular the facts as the employer reasoably uderstood them) is what mattered i Waters, why is the same ot true here? After all, i the law, what is sauce for the goose is ormally sauce for the gader. We coclude that, as i Waters, the govermet’s reaso for demotig Heffera is what couts here. Whe a employer demotes a employee out of a desire to prevet the employee from egagig i political activity that the First Amedmet protects, the employee is etitled to challege that ulawful actio uder the First Amed- met ad 42 U.S. C. —eve if, as here, the employer makes a factual mistake about the employee’s behavior. We ote that a rule of law fidig liability i these circumstaces tracks the laguage of the First Amed- met more closely tha would a cotrary rule. Ulike, say, the Fourth Amedmet, which begis by speakig of the “right of the people to be secure i their persos, houses, papers, ad effects” the First Amedmet begis by focusig upo the activity of the Govermet. It says that “Cogress shall make o law abridgig the free- dom of speech.” The Govermet acted upo a costitu- tioally harmful policy whether Heffera did or did ot i fact egage i political activity. That which stads for a “law” of “Cogress,” amely, the police departmet’s rea- so for takig actio, “abridge[s] the freedom of speech” of employees aware of the policy. Ad Heffera was di- rectly harmed, amely, demoted, through applicatio of that policy. We also cosider relevat the costitutioal implica- tios of a rule that imposes liability. The costitutioal harm at issue i the ordiary case cosists i large part of discouragig employees—both the employee discharged (or demoted) ad his or her colleagues—from egagig i Cite as: 578 U. S. (2016) 7 Opiio of the Court protected activities. The discharge of oe tells the others that they egage i protected activity at their peril. See, e.g., (retaliatory employmet actio agaist oe employee “uquestioably ihibits protected belief ad associatio” of all employees). Hece, we do ot require plaitiffs i political affiliatio cases to “prove that they, or other employees, have bee coerced ito chagig, either actually or ostesibly, their political allegiace.” Brati, The employer’s factual mistake does ot dimiish the risk of causig precisely that same harm. Neither, for that matter, is that harm dimiished where a employer aouces a policy of demotig those who, say, help a particular cadi- date i the mayoral race, ad all employees (icludig Heffera), fearful of demotio, refrai from providig ay such help. Cf. Goodig v. Wilso, (1972) (explaiig that overbreadth doctrie is ecessary “because persos whose expressio is costitutioally protected may well refrai from exercisig their rights for fear of crimial sactios”). The upshot is that a dis- charge or demotio based upo a employer’s belief that the employee has egaged i protected activity ca cause the same kid, ad degree, of costitutioal harm whether that belief does or does ot rest upo a factual mistake. Fially, we ote that, cotrary to respodets’ asser- tios, a rule of law that imposes liability despite the em- ployer’s factual mistake will ot ormally impose sigifi- cat extra costs upo the employer. To wi, the employee must prove a improper employer motive. I a case like this oe, the employee will, if aythig, fid it more diffi- cult to prove that motive, for the employee will have to poit to more tha his ow coduct to show a employer’s itet to discharge or to demote him for egagig i what the employer (mistakely) believes to have bee differet (ad protected) activities. We cocede that, for that very reaso, it may be more complicated ad costly for the 8 HEFFERNAN v. CITY OF PATERSON Opiio of the Court employee to prove his case. But a employee brigig suit will ordiarily shoulder that more complicated burde volutarily i order to recover the damages he seeks. III We ow relax a assumptio uderlyig our decisio. We have assumed that the policy that Heffera’s em- ployers implemeted violated the Costitutio. at 3. There is some evidece i the record, however, suggest- ig that Heffera’s employers may have dismissed him pursuat to a differet ad eutral policy prohibitig police officers from overt ivolvemet i ay political campaig. See Brief for Uited States as Amicus Curiae 27–28. Whether that policy existed, whether Heffera’s supervisors were ideed followig it, ad whether it com- plies with costitutioal stadards, see Civil Service Comm’, 413 U.S., at are all matters for the lower courts to decide i the first istace. Without expressig views o the matter, we reverse the judgmet of the Third Circuit ad remad the case for such further proceedigs cosistet with this opiio. It is so ordered. Cite as: 578 U. S. (2016) 1 THOMAS, J., dissetig SUPREME COURT OF THE UNITED STATES No. 14–1280 JEFFREY J. HEFFERNAN, PETITIONER v. CITY OF PATERSON, NEW JERSEY, ET AL.

Justice Thomas

dissenting

Heffernan v. City of Paterson

2016-04-26

https://www.courtlistener.com/opinion/3197852/heffernan-v-city-of-paterson/

https://www.courtlistener.com/api/rest/v3/clusters/3197852/

2015-035

Today the Court holds that a public employee may bring a federal lawsuit for money damages alleging a violation of a constitutional right that he concedes he did not exercise. Ante, at 1. Because federal law does not provide a cause of action to plaintiffs whose constitutional rights have not been violated, I respectfully dissent. I This lawsuit concerns a decision by the city of Paterson, New Jersey (hereinafter City), to demote one of its police officers, Jeffrey Heffernan. At the time of Heffernan’s demotion, Paterson’s mayor, Jose Torres, was running for reelection against one of Heffernan’s friends, Lawrence Spagnola. The police chief demoted Heffernan after an- other officer assigned to Mayor Torres’ security detail witnessed Heffernan pick up a Spagnola campaign sign when Heffernan was off duty. Heffernan claimed that he picked up the sign solely as an errand for his bedridden mother. Heffernan denied supporting or associating with Spagnola’s campaign and disclaimed any intent to com- municate support for Spagnola by retrieving the campaign sign. Despite Heffernan’s assurances that he was not engaged in protected First Amendment activity, he filed 2 HEFFERNAN v. CITY OF PATERSON THOMAS, J., dissenting this lawsuit alleging that his employer violated his First Amendment rights by demoting him based on its mistaken belief that Heffernan had communicated support for the Spagnola campaign. II Title 42 U.S. C. §1983 provides a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Con- stitution.” For Heffernan to prevail on his §1983 claim, then, a state actor must have deprived him of a constitu- tional right. Nothing in the text of §1983 provides a rem- edy against public officials who attempt but fail to violate someone’s constitutional rights. There are two ways to frame Heffernan’s First Amend- ment claim, but neither can sustain his suit. As in most §1983 suits, his claim could be that the City interfered with his freedom to speak and assemble. But because Heffernan has conceded that he was not engaged in pro- tected speech or assembly when he picked up the sign, the majority must resort to a second, more novel framing. It concludes that Heffernan states a §1983 claim because the City unconstitutionally regulated employees’ political speech and Heffernan was injured because that policy resulted in his demotion. See ante, at 6. Under that theory, too, Heffernan’s §1983 claim fails. A city’s policy, even if unconstitutional, cannot be the basis of a §1983 suit when that policy does not result in the infringement of the plaintiff ’s constitutional rights. A To state a claim for retaliation in violation of the First Amendment, public employees like Heffernan must allege that their employer interfered with their right to speak as Cite as: 578 U. S. ____ (2016) 3 THOMAS, J., dissenting a citizen on a matter of public concern. Whether the employee engaged in such speech is the threshold inquiry under the Court’s precedents governing whether a public employer violated the First Amendment rights of its em- ployees. See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If the employee has not spoken on a matter of public concern, “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” Ibid. If the employee did, however, speak as a citizen on a matter of public concern, then the Court looks to “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Ibid. Under this framework, Heffernan’s claim fails at the first step. He has denied that, by picking up the yard sign, he “spoke as a citizen on a matter of public concern.” Ibid. In fact, Heffernan denies speaking in support of or associ- ating with the Spagnola campaign. He has claimed that he picked up the yard sign only as an errand for his bedridden mother. Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional. To be sure, Heffernan could exercise his First Amend- ment rights by choosing not to assemble with the Spagnola campaign. Cf. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559 (1985) (freedom of expres- sion “includes both the right to speak freely and the right to refrain from speaking at all” (internal quotation marks omitted)). But such an allegation could not save his claim here. A retaliation claim requires proving that Heffer- nan’s protected activity was a cause-in-fact of the retalia- tion. See University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___, ___ (2013) (slip op., at 23). And Heffernan’s exercise of his right not to associate with the Spagnola campaign did not cause his demotion. Rather, his perceived association with the Spagnola campaign did. 4 HEFFERNAN v. CITY OF PATERSON THOMAS, J., dissenting At bottom, Heffernan claims that the City tried to inter- fere with his constitutional rights and failed. But it is not enough for the City to have attempted to infringe his First Amendment rights. To prevail on his claim, he must establish that the City actually did so. The City’s attempt never ripened into an actual violation of Heffernan’s con- stitutional rights because, unbeknownst to the City, Hef- fernan did not support Spagnola’s campaign. Though, in criminal law, a factually impossible attempt like the City’s actions here could constitute an attempt,* there is no such doctrine in tort law. A plaintiff may maintain a suit only for a completed tort; “[t]here are no attempted torts.” United States v. Stefonek, 179 F.3d 1030, 1036 (CA7 1999) (internal quotation marks omitted); see also Sebok, Deterrence or Disgorgement? Reading Ciraolo After Campbell, 64 Md. L. Rev. 541, 565 (2005) (same). And “there can be no doubt that claims brought pursuant to §1983 sound in tort.” Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999). Be- cause Heffernan could claim at most that the City at- tempted to interfere with his First Amendment rights, he cannot prevail on a claim under the theory that the City infringed his right to speak freely or assemble. B To get around this problem of factual impossibility, the majority reframes Heffernan’s case as one about the City’s lack of power to act with unconstitutional motives. See —————— * Factual impossibility occurs when “an actor engages in conduct designed to culminate in the commission of an offense that is impossi- ble for him to consummate under the existing circumstances.” 1 P. Robinson, Criminal Law Defenses §85, p. 422 (1984). Canonical exam- ples include an attempt to steal from an empty pocket, State v. Wilson, 30 Conn. 500, 505 (1862), or an attempt to commit false pretenses where the victim had no money, People v. Arberry, 13 Cal. App. 749, 757 (1910). Cite as: 578 U. S. ____ (2016) 5 THOMAS, J., dissenting ante, at 4. Under the majority’s view, the First Amend- ment prohibits the City from taking an adverse employ- ment action intended to impede an employee’s rights to speak and assemble, regardless of whether the City has accurately perceived an employee’s political affiliation. The majority surmises that an attempted violation of an employee’s First Amendment rights can be just as harmful as a successful deprivation of First Amendment rights. Ante, at 7. And the majority concludes that the City’s demotion of Heffernan based on his wrongfully perceived association with a political campaign is no different from the City’s demotion of Heffernan based on his actual association with a political campaign. Ante, at 6. But §1983 does not provide a cause of action for unau- thorized government acts that do not infringe the constitu- tional rights of the §1983 plaintiff. See Blessing v. Free- stone, 520 U.S. 329, 340 (1997) (“In order to seek redress through §1983, . . . a plaintiff must assert the violation of a federal right, not merely a violation of federal law”). Of course the First Amendment “focus[es] upon the activity of the Government.” Ante, at 6. See Amdt. 1 (“Congress shall make no law . . . ”). And here, the “activity of Gov- ernment” has caused Heffernan harm, namely, a demo- tion. But harm alone is not enough; it has to be the right kind of harm. Section 1983 provides a remedy only if the City has violated Heffernan’s constitutional rights, not if it has merely caused him harm. Restated in the language of tort law, Heffernan’s injury must result from activities within the zone of interests that §1983 protects. Cf. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. ___, ___, n. 5 (2014) (slip op., at 11, n. 5) (discussing the zone-of-interests test in the context of negligence per se). The mere fact that the government has acted unconsti- tutionally does not necessarily result in the violation of an individual’s constitutional rights, even when that individ- 6 HEFFERNAN v. CITY OF PATERSON THOMAS, J., dissenting ual has been injured. Consider, for example, a law that authorized police to stop motorists arbitrarily to check their licenses and registration. That law would violate the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 661 (1979). And motorists who were not stopped might suffer an injury from the unconstitutional policy; for example, they might face significant traffic delays. But these motorists would not have a §1983 claim simply because they were injured pursuant to an unconstitutional policy. This is because they have not suffered the right kind of injury. They must allege, instead, that their injury amounted to a violation of their constitutional right against unreasonable seizures—that is, by being unconsti- tutionally detained. Here too, Heffernan must allege more than an injury from an unconstitutional policy. He must establish that this policy infringed his constitutional rights to speak freely and peaceably assemble. Even if the majority is correct that demoting Heffernan for a politically motivated reason was beyond the scope of the City’s power, the City never invaded Heffernan’s right to speak or assemble. Accordingly, he is not entitled to money damages under §1983 for the nonviolation of his First Amendment rights. The majority tries to distinguish the Fourth Amend- ment by emphasizing the textual differences between that Amendment and the First. See ante, at 6 (“Unlike, say the Fourth Amendment . . . , the First Amendment begins by focusing upon the activity of the Government”). But these textual differences are immaterial. All rights enumerated in the Bill of Rights “focu[s] upon the activity of the Gov- ernment” by “tak[ing] certain policy choices off the table.” District of Columbia v. Heller, 554 U.S. 570, 636 (2008); see also Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 Yale L. J. 16, 30, 55– 57 (1913) (recognizing that an immunity implies a corre- sponding lack of power). Fourth Amendment rights could Cite as: 578 U. S. ____ (2016) 7 THOMAS, J., dissenting be restated in terms of governmental power with no change in substantive meaning. Thus, the mere fact that the First Amendment begins “Congress shall make no law” does not broaden a citizen’s ability to sue to vindicate his freedoms of speech and assembly. To reach the opposite conclusion, the majority relies only on Waters v. Churchill, 511 U.S. 661 (1994) (plurality opinion). See ante, at 5–7. But Waters does not support the majority’s expansion of §1983 to cases where the em- ployee did not exercise his First Amendment rights. The issue in Waters was whether a public employer violated the First Amendment where it reasonably believed that the speech it proscribed was unprotected. The Court concluded that the employer did not violate the First Amendment because it reasonably believed the employee’s speech was unprotected: “We have never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information.” 511 U.S., at 679. And the Court reaffirmed that, to state a First Amendment retaliation claim, the public employee must allege that she spoke on a matter of public concern. See id., at 681. Unlike the employee in Waters, Heffernan admits that he was not engaged in constitutionally protected activity. Accordingly, unlike in Waters, he cannot allege that his employer interfered with conduct protected by the First Amendment. “[W]hat is sauce for the goose” is not “sauce for the gander,” ante, at 6, when the goose speaks and the gander does not. * * * If the facts are as Heffernan has alleged, the City’s demotion of him may be misguided or wrong. But, be- cause Heffernan concedes that he did not exercise his First Amendment rights, he has no cause of action under §1983. I respectfully dissent

Today the Court holds that a public employee may bring a federal lawsuit for money damages alleging a violation of a constitutional right that he concedes he did not exercise. Ante, at 1. Because federal law does not provide a cause of action to plaintiffs whose constitutional rights have not been violated, I respectfully dissent. I This lawsuit concerns a decision by the city of Paterson, New Jersey (hereinafter City), to demote one of its police officers, Jeffrey Heffernan. At the time of Heffernan’s demotion, Paterson’s mayor, Jose Torres, was running for reelection against one of Heffernan’s friends, Lawrence Spagnola. The police chief demoted Heffernan after an- other officer assigned to Mayor Torres’ security detail witnessed Heffernan pick up a Spagnola campaign sign when Heffernan was off duty. Heffernan claimed that he picked up the sign solely as an errand for his bedridden mother. Heffernan denied supporting or associating with Spagnola’s campaign and disclaimed any intent to com- municate support for Spagnola by retrieving the campaign sign. Despite Heffernan’s assurances that he was not engaged in protected First Amendment activity, he filed 2 HEFFERNAN v. CITY OF PATERSON THOMAS, J., dissenting this lawsuit alleging that his employer violated his First Amendment rights by demoting him based on its mistaken belief that Heffernan had communicated support for the Spagnola campaign. II Title 42 U.S. C. provides a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State subjects any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Con- stitution.” For Heffernan to prevail on his claim, then, a state actor must have deprived him of a constitu- tional right. Nothing in the text of provides a rem- edy against public officials who attempt but fail to violate someone’s constitutional rights. There are two ways to frame Heffernan’s First Amend- ment claim, but neither can sustain his suit. As in most suits, his claim could be that the City interfered with his freedom to speak and assemble. But because Heffernan has conceded that he was not engaged in pro- tected speech or assembly when he picked up the sign, the majority must resort to a second, more novel framing. It concludes that Heffernan states a claim because the City unconstitutionally regulated employees’ political speech and Heffernan was injured because that policy resulted in his demotion. See ante, at 6. Under that theory, too, Heffernan’s claim fails. A city’s policy, even if unconstitutional, cannot be the basis of a suit when that policy does not result in the infringement of the plaintiff ’s constitutional rights. A To state a claim for retaliation in violation of the First Amendment, public employees like Heffernan must allege that their employer interfered with their right to speak as Cite as: 578 U. S. (2016) 3 THOMAS, J., dissenting a citizen on a matter of public concern. Whether the employee engaged in such speech is the threshold inquiry under the Court’s precedents governing whether a public employer violated the First Amendment rights of its em- ployees. See (2006). If the employee has not spoken on a matter of public concern, “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” If the employee did, however, speak as a citizen on a matter of public concern, then the Court looks to “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Under this framework, Heffernan’s claim fails at the first step. He has denied that, by picking up the yard sign, he “spoke as a citizen on a matter of public concern.” In fact, Heffernan denies speaking in support of or associ- ating with the Spagnola campaign. He has claimed that he picked up the yard sign only as an errand for his bedridden mother. Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional. To be sure, Heffernan could exercise his First Amend- ment rights by choosing not to assemble with the Spagnola campaign. Cf. Harper & Row, Publishers, (freedom of expres- sion “includes both the right to speak freely and the right to refrain from speaking at all” (internal quotation marks omitted)). But such an allegation could not save his claim here. A retaliation claim requires proving that Heffer- nan’s protected activity was a cause-in-fact of the retalia- tion. See University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. (2013) (slip op., at 23). And Heffernan’s exercise of his right not to associate with the Spagnola campaign did not cause his demotion. Rather, his perceived association with the Spagnola campaign did. 4 HEFFERNAN v. CITY OF PATERSON THOMAS, J., dissenting At bottom, Heffernan claims that the City tried to inter- fere with his constitutional rights and failed. But it is not enough for the City to have attempted to infringe his First Amendment rights. To prevail on his claim, he must establish that the City actually did so. The City’s attempt never ripened into an actual violation of Heffernan’s con- stitutional rights because, unbeknownst to the City, Hef- fernan did not support Spagnola’s campaign. Though, in criminal law, a factually impossible attempt like the City’s actions here could constitute an attempt,* there is no such doctrine in tort law. A plaintiff may maintain a suit only for a completed tort; “[t]here are no attempted torts.” United States v. Stefonek, 179 F.3d 1030, 1036 (internal quotation marks omitted); see also Sebok, Deterrence or Disgorgement? Reading Ciraolo After Campbell, (same). And “there can be no doubt that claims brought pursuant to sound in tort.” Be- cause Heffernan could claim at most that the City at- tempted to interfere with his First Amendment rights, he cannot prevail on a claim under the theory that the City infringed his right to speak freely or assemble. B To get around this problem of factual impossibility, the majority reframes Heffernan’s case as one about the City’s lack of power to act with unconstitutional motives. See —————— * Factual impossibility occurs when “an actor engages in conduct designed to culminate in the commission of an offense that is impossi- ble for him to consummate under the existing circumstances.” 1 P. Robinson, Criminal Law Defenses p. 422 (1984). Canonical exam- ples include an attempt to steal from an empty pocket, or an attempt to commit false pretenses where the victim had no money, 757 (1910). Cite as: 578 U. S. (2016) 5 THOMAS, J., dissenting ante, at 4. Under the majority’s view, the First Amend- ment prohibits the City from taking an adverse employ- ment action intended to impede an employee’s rights to speak and assemble, regardless of whether the City has accurately perceived an employee’s political affiliation. The majority surmises that an attempted violation of an employee’s First Amendment rights can be just as harmful as a successful deprivation of First Amendment rights. Ante, at 7. And the majority concludes that the City’s demotion of Heffernan based on his wrongfully perceived association with a political campaign is no different from the City’s demotion of Heffernan based on his actual association with a political campaign. Ante, at 6. But does not provide a cause of action for unau- thorized government acts that do not infringe the constitu- tional rights of the plaintiff. See (“In order to seek redress through a plaintiff must assert the violation of a federal right, not merely a violation of federal law”). Of course the First Amendment “focus[es] upon the activity of the Government.” Ante, at 6. See Amdt. 1 (“Congress shall make no law ”). And here, the “activity of Gov- ernment” has caused Heffernan harm, namely, a demo- tion. But harm alone is not enough; it has to be the right kind of harm. Section 1983 provides a remedy only if the City has violated Heffernan’s constitutional rights, not if it has merely caused him harm. Restated in the language of tort law, Heffernan’s injury must result from activities within the zone of interests that protects. Cf. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. n. 5 (2014) (slip op., at 11, n. 5) (discussing the zone-of-interests test in the context of negligence per se). The mere fact that the government has acted unconsti- tutionally does not necessarily result in the violation of an individual’s constitutional rights, even when that individ- 6 HEFFERNAN v. CITY OF PATERSON THOMAS, J., dissenting ual has been injured. Consider, for example, a law that authorized police to stop motorists arbitrarily to check their licenses and registration. That law would violate the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 661 (1979). And motorists who were not stopped might suffer an injury from the unconstitutional policy; for example, they might face significant traffic delays. But these motorists would not have a claim simply because they were injured pursuant to an unconstitutional policy. This is because they have not suffered the right kind of injury. They must allege, instead, that their injury amounted to a violation of their constitutional right against unreasonable seizures—that is, by being unconsti- tutionally detained. Here too, Heffernan must allege more than an injury from an unconstitutional policy. He must establish that this policy infringed his constitutional rights to speak freely and peaceably assemble. Even if the majority is correct that demoting Heffernan for a politically motivated reason was beyond the scope of the City’s power, the City never invaded Heffernan’s right to speak or assemble. Accordingly, he is not entitled to money damages under for the nonviolation of his First Amendment rights. The majority tries to distinguish the Fourth Amend- ment by emphasizing the textual differences between that Amendment and the First. See ante, at 6 (“Unlike, say the Fourth Amendment the First Amendment begins by focusing upon the activity of the Government”). But these textual differences are immaterial. All rights enumerated in the Bill of Rights “focu[s] upon the activity of the Gov- ernment” by “tak[ing] certain policy choices off the table.” District of ; see also Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 Yale L. J. 16, 30, 55– 57 (1913) (recognizing that an immunity implies a corre- sponding lack of power). Fourth Amendment rights could Cite as: 578 U. S. (2016) 7 THOMAS, J., dissenting be restated in terms of governmental power with no change in substantive meaning. Thus, the mere fact that the First Amendment begins “Congress shall make no law” does not broaden a citizen’s ability to sue to vindicate his freedoms of speech and assembly. To reach the opposite conclusion, the majority relies only on (plurality opinion). See ante, at 5–7. But Waters does not support the majority’s expansion of to cases where the em- ployee did not exercise his First Amendment rights. The issue in Waters was whether a public employer violated the First Amendment where it reasonably believed that the speech it proscribed was unprotected. The Court concluded that the employer did not violate the First Amendment because it reasonably believed the employee’s speech was unprotected: “We have never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information.” And the Court reaffirmed that, to state a First Amendment retaliation claim, the public employee must allege that she spoke on a matter of public concern. See Unlike the employee in Waters, Heffernan admits that he was not engaged in constitutionally protected activity. Accordingly, unlike in Waters, he cannot allege that his employer interfered with conduct protected by the First Amendment. “[W]hat is sauce for the goose” is not “sauce for the gander,” ante, at 6, when the goose speaks and the gander does not. * * * If the facts are as Heffernan has alleged, the City’s demotion of him may be misguided or wrong. But, be- cause Heffernan concedes that he did not exercise his First Amendment rights, he has no cause of action under I respectfully dissent

Justice Souter

majority

United States v. Reorganized CF&I Fabricators of Utah, Inc.

1996-06-20

https://www.courtlistener.com/opinion/118050/united-states-v-reorganized-cfi-fabricators-of-utah-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118050/

1995-077

[†] This case presents two questions affecting the priority of an unsecured claim in bankruptcy to collect an exaction under 26 U.S. C. § 4971(a), requiring a payment to the Internal Revenue Service equal to 10 percent of any accumulated funding deficiency of certain pension plans: first, whether the exaction is an "excise tax" for purposes of 11 U.S. C. § 507(a)(7)(E) (1988 ed.),[1] which at the time relevant here gave seventh priority to a claim for such a tax; and, second, whether principles of equitable subordination support a categorical *216 rule placing § 4971 claims at a lower priority than unsecured claims generally. We hold that § 4971(a) does not create an excise tax within the meaning of § 507(a)(7)(E), but that categorical subordination of the Government's claim to those of other unsecured creditors was error. I The CF&I Steel Corporation and its nine subsidiaries (CF&I) sponsored two pension plans, with the consequence that CF&I was obligated by the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 935, 29 U.S. C. § 1001 et seq., to make certain annual minimum funding contributions to the plans based on the value of the benefits earned by its employees. See § 1082; 26 U.S. C. § 412. The annual payments were due each September 15th for the preceding plan year, see 26 CFR § 11.412(c)—12(b) (1995), and on September 15, 1990, CF&I was required to pay a total of some $12.4 million for the year ending December 31, 1989. The day passed without any such payment, and on November 7, 1990, CF&I petitioned the United States Bankruptcy Court for the District of Utah for relief under Chapter 11 of the Bankruptcy Code, in an attempt at financial reorganization prompted in large part by the company's inability to fund the pension plans. In re CF&I Fabricators of Utah, Inc., 148 B.R. 332, 334 (Bkrtcy. Ct. CD Utah 1992). In 1991, the IRS filed several proofs of claim for tax liabilities, one of which arose under 26 U.S. C. § 4971(a), imposing a 10 percent "tax" (of $1.24 million here) on any "accumulated funding deficiency" of certain pension plans.[2] The *217 Government sought priority for the claim, either as an "excise tax" within the meaning of 11 U.S. C. § 507(a)(7)(E) (1988 ed.), or as a tax penalty in compensation for pecuniary loss under § 507(a)(7)(G). CF&I disputed each alternative, and by separate adversary complaint asked the Bankruptcy Court to subordinate the § 4971 claim to those of general unsecured creditors. The Bankruptcy Court allowed the Government's claim under § 4971(a) but denied it any priority under § 507(a)(7), finding the liability neither an "excise tax" under § 507(a)(7)(E) nor a tax penalty in compensation for actual pecuniary loss under § 507(a)(7)(G). Instead, the court read § 4971 as creating a noncompensatory penalty, 148 B.R., at 340, and by subsequent order subordinated the claim to those of all other general unsecured creditors, on the supposed authority of the Bankruptcy Code's provision for equitable subordination, 11 U.S. C. § 510(c). The Government appealed to the District Court for the District of Utah, pressing its excise tax theory and objecting to equitable subordination as improper in the absence of Government misconduct. While that appeal was pending, CF&I presented the Bankruptcy Court with a reorganization plan that put the § 4971 claim in what the plan called Class 13, a special category giving lowest priority (and no money) to claims for nonpecuniary loss penalties; but it also provided that, if the court found subordination behind general unsecured claims to be inappropriate, the § 4971 claim would be ranked with them in what the reorganization plan *218 called Class 12 (which would receive some funds). Appellees' App. in No. 94-4034 et al. (CA10), pp. 96-101, 137-141, 197-200. The United States objected, but the Bankruptcy Court affirmed the plan. The Government appealed this order as well, and the District Court affirmed both the denial of excise tax treatment and the subsequent subordination to general unsecured claims. App. to Pet. for Cert. A-11. The Tenth Circuit likewise affirmed. 53 F.3d 1155 (1995). We granted certiorari, 516 U.S. 1005 (1995), to resolve a conflict among the Circuits over whether § 4971(a) claims are excise taxes within the meaning of § 507(a)(7)(E), and whether such claims are categorically subject to equitable subordination under § 510(c).[3] We affirm on the first question but on the second vacate the judgment and remand. II The provisions for priorities among a bankrupt debtor's claimants are found in 11 U.S. C. § 507, subsection (a)(7) of which read, in relevant part, that seventh priority would be accorded to "allowed unsecured claims of governmental units, only to the extent that such claims are for— . . . . . "(E) an excise tax on— "(i) a transaction occurring before the date of the filing of the petition for which a return, if required, is last due, under applicable law or under any extension, after three years before the date of the filing of the petition; or "(ii) if a return is not required, a transaction occurring during the three years immediately preceding the date of the filing of the petition." *219 What the Government here claims to be an excise tax obligation arose under 26 U.S. C. § 4971(a), which provides that "[f]or each taxable year of an employer who maintains a [pension] plan . . .there is hereby imposed a tax of 10 percent (5 percent in the case of a multi employer plan) on the amount of the accumulated funding deficiency under the plan, determined as of the end of the plan year ending with or within such taxable year." No one denies that Congress could have included a provision in the Bankruptcy Code calling a § 4971 exaction an excise tax (thereby affording it the priority claimed by the Government); the only question is whether the exaction ought to be treated as a tax (and, if so, an excise) without some such dispositive direction. A Here and there in the Bankruptcy Code Congress has included specific directions that establish the significance for bankruptcy law of a term used elsewhere in the federal statutes. Some bankruptcy provisions deal specifically with subjects as identified by terms defined outside the Bankruptcy Code; 11 U.S. C. § 523(a)(13), for example, addresses "restitution issued under title 18, United States Code," and § 507(a)(1) refers to "any fees and charges assessed against the estate under chapter 123 of title 28." Other bankruptcy provisions directly adopt definitions contained in other statutes; thus §§ 761(5), (7), and (8) adopt the Commodity Exchange Act's definitions of "commodity option," "contract market," "contract of sale," and so on. Not surprisingly, there are places where the Bankruptcy Code makes referential use of the Internal Revenue Code, as 11 U.S. C. § 101(41)(C)(i) does in referring to "an employee pension benefit plan that is a governmental plan, as defined in section 414(d) of the Internal Revenue Code," and as § 346(g)(1)(C) does in providing for recognition of a gain or loss "to the *220 same extent that such transfer results in the recognition of gain or loss under section 371 of the Internal Revenue Code." It is significant, therefore, that Congress included no such reference in § 507(a)(7)(E), even though the Bankruptcy Code itself provides no definition of "excise," "tax," or "excise tax." This absence of any explicit connector between §§ 507(a)(7)(E) and 4971 is all the more revealing in light of the following history of interpretive practice in determining whether a "tax" so called in the statute creating it is also a "tax" (as distinct from a debt or penalty) for the purpose of setting the priority of a claim under the bankruptcy laws. B Although § 507(a)(7), giving seventh priority to several different kinds of taxes, was enacted as part of the Bankruptcy Act of 1978, 92 Stat. 2590 (1978 Act), a priority provision for taxes was nothing new. Section 64(a) of the Bankruptcy Act of 1898 (1898 Act), which governed (as frequently amended) until 1978, gave priority to "taxes legally due and owing by the bankrupt to the United States [or a] State, county, district, or municipality." 30 Stat. 544, 563.[4] On a number of occasions, this Court considered whether a particular exaction, whether or not called a "tax" in the statute creating it, was a tax for purposes of § 64(a), and in every one of those cases the Court looked behind the label placed on the exaction and rested its answer directly on the operation of the provision using the term in question. The earliest such cases involved state taxes and are exemplified by City of New York v. Feiring, 313 U.S. 283 (1941). In considering whether a New York sales tax was a "tax" entitled to priority under § 64(a), the Court placed no weight on the "tax" label in the New York law, and looked to the *221 state statute only "to ascertain whether its incidents are such as to constitute a tax within the meaning of § 64." Id., at 285. See also New Jersey v. Anderson, 203 U.S. 483, 492 (1906); New York v. Jersawit, 263 U.S. 493, 495-496 (1924). The Court later followed the same course when a federal statute created the exaction. In United States v. New York, 315 U.S. 510 (1942), the Court considered whether "`tax[es]' " so called in two federal statutes, id., at 512, n. 2, were entitled to priority as "taxes" under § 64(a). In each instance the decision turned on the actual effects of the exactions, id., at 514-517, with the Court citing Feiring and Anderson as authority for its enquiry. 315 U.S., at 514-516. See also United States v. Childs, 266 U.S. 304, 309-310 (1924); United States v. Sotelo, 436 U.S. 268, 275 (1978) ("We. . . cannot agree with the Court of Appeals that the `penalty' language of Internal Revenue Code § 6672 is dispositive of the status of respondent's debt under Bankruptcy Act § 17(a)(1)(e)").[5] Congress could, of course, have intended a different interpretive method for reading terms used in the Bankruptcy Code it created in 1978. But if it had so intended we would expect some statutory indication, see Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection, 474 U.S. 494, 501 (1986), whereas the most obvious statutory indicator is very much to the contrary: in the specific instances noted before, it would have been redundant for Congress to refer *222 specifically to Internal Revenue Code definitions of given terms if such cross-identity were to be assumed or presumed, as a matter of interpretive course. While the Government does not directly challenge the continuing vitality of the cases in the Feiring line, it seeks to sidestep them by arguing, first, that similarities between the plain texts of §§ 4971 and 507(a)(7)(E) resolve this case. This approach, however, is inconsistent with New York and Sotelo, in each of which the Court refused to rely on the terminology used in the relevant tax and bankruptcy provisions.[6] The argument is also unavailing on its own terms, for even if we were to accept the proposition that comparable use of similar terms is dispositive, the Government's plain text argument still would fail. The word "excise" appears nowhere in § 4971 (whereas, by contrast, 26 U.S. C. § 4401 explicitly states that it imposes "an excise tax"). And although there is one reference to "excise taxes" that applies to § 4971 in the heading of the subtitle covering that section ("Subtitle D—Miscellaneous Excise Taxes"), the Government disclaims any reliance on that caption. Tr. of Oral Arg. 14, 17-20; see also 26 U.S. C. § 7806(b) ("No inference, implication, or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title"). Furthermore, though § 4971(a) does explicitly refer to its exaction as a "tax," the Government disavows any suggestion that this language is dispositive as to whether § 4971(a) is a tax for purposes of § 507(a)(7)(E); while *223 § 4971(b) "impos[es] a tax equal to 100 percent of [the] accumulated funding deficiency to the extent not corrected," the Government says that this explicit language does not answer the question whether § 4971(b) is, in fact, a tax under § 507(a)(7)(E). Reply Brief for United States 13-14; Tr. of Oral Arg. 19-24. The Government's positions, then, undermine its suggestion that the statutes' texts standing together demonstrate that § 4971(a) imposes an excise tax. The Government's second effort to avoid a New York and Sotelo interpretive enquiry relies on a statement from the legislative history of the 1978 Act, that "[a]ll Federal, State or local taxes generally considered or expressly treated as excises are covered by" § 507(a)(7)(E). 124 Cong. Rec. 32416 (1978) (remarks of Rep. Edwards); id., at 34016 (remarks of Sen. DeConcini). But even taking this statement as authoritative, it would provide little support for the Government's position. Although the statement may mean that all exactions called[7] "excise taxes" should be covered by § 507(a) (7)(E),[8] § 4971 does not call its exaction an excise tax. And although the section occurs in a subtitle with a heading of "Miscellaneous Excise Taxes," the Government has disclaimed reliance on the subtitle heading as authority for its position in this case, recognizing the provision of 26 U.S. C. § 7806(b) that no inference of legislative construction should be drawn from the placement of a provision in the Internal Revenue Code. See supra, at 222 and this page; Tr. of Oral Arg. 19. If, on the other hand, the statement in the legislative *224 history is read more literally, its apparent upshot is that, among those exactions that are taxes, the ones that are expressly treated as excises are "excise tax[es]" within the meaning of § 507(a)(7)(E). But that proposition fails, of course, to answer the question whether the exaction is a tax to begin with. In sum, we conclude that the 1978 Act reveals no congressional intent to reject generally the interpretive principle that characterizations in the Internal Revenue Code are not dispositive in the bankruptcy context, and no specific provision that would relieve us from making a functional examination of § 4971(a). We proceed to that examination. C Anderson and New York applied the same test in determining whether an exaction was a tax under § 64(a), or a penalty or debt: "a tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government." Anderson, 203 U. S., at 492; New York, 315 U. S., at 515; accord, Feiring, 313 U. S., at 285 ("§ 64 extends to those pecuniary burdens laid upon individuals or their property . . . for the purpose of defraying the expenses of government or of undertakings authorized by it"). Or, as the Court noted in a somewhat different context, "[a] tax is an enforced contribution to provide for the support of government; a penalty, as the word is here used, is an exaction imposed by statute as punishment for an unlawful act." United States v. La Franca, 282 U.S. 568, 572 (1931). We take La Franca `s statement of the distinction to be sufficient for the decision of this case; if the concept of penalty means anything, it means punishment for an unlawful act or omission, and a punishment for an unlawful omission is what this exaction is. Title 29 U.S. C. § 1082 requires a pension plan sponsor to fund potential plan liability according to a complex statutory formula, see also 26 U.S. C. § 412, and 26 U.S. C. § 4971(a) requires employers who maintain a *225 pension plan to pay the Government 10 percent of any accumulated funding deficiency. If the employer fails to correct the deficiency before the earlier of a notice of deficiency under § 4971(a) or an assessment of the § 4971(a) exaction, the employer is obligated to pay an additional "tax" of 100 percent of the accumulated funding deficiency. § 4971(b).[9] The obviously penal character of these exactions is underscored by other provisions, including one giving the Pension Benefit Guaranty Corporation (PBGC) an entirely independent claim against the employer for "the total amount of the unfunded benefit liabilities," 29 U.S. C. § 1362(b)(1)(A) (a claim which in this case the PBGC has asserted and which is still pending, see Pension Benefit Guaranty Corporation v. Reorganized CF&I Fabricators of Utah, Inc., 179 B.R. 704 (ND Utah 1994)); see also §§ 1306-1307. We are, indeed, unable to find any provision in the statutory scheme that would cast the "tax" at issue here in anything but this punitive light. D The legislative history reflects the statute's punitive character: *226 "The bill also provides new and more effective penalties where employers fail to meet the funding standards. In the past, an attempt has been made to enforce the relatively weak funding standards existing under present law by providing for immediate vesting of the employees' rights, to the extent funded, under plans which do not meet these standards. This procedure, however, has proved to be defective since it does not directly penalize those responsible for the underfunding. For this reason, the bill places the obligation for funding and the penalty for underfunding on the person on whom it belongs—namely, the employer." H. R. Rep. No. 93-807, p. 28 (1974). Accord, S. Rep. No. 93-383, p. 24 (1973). The Committee Reports also stated that, "[s]ince the employer remains liable for the contributions necessary to meet the funding standards even after the payment of the excise taxes, it is anticipated that few, if any, employers will willfully violate these standards." H. R. Rep. No. 93-807, supra, at 28; S. Rep. No. 93-383, supra, at 24-25. Given the patently punitive function of § 4971, we conclude that § 4971 must be treated as imposing a penalty, not authorizing a tax. Accordingly, we hold that the "tax" under § 4971(a) was not entitled to seventh priority as an "excise tax" under § 507(a)(7)(E), but instead is, for bankruptcy purposes, a penalty to be dealt with as an ordinary, unsecured claim. III Hence, the next question: whether the Court of Appeals improperly subordinated the Government's § 4971 claim to those of the other general unsecured creditors. Though we have rejected the argument that the § 4971 claim is for an "excise tax" within the meaning of § 507(a)(7)(E), both parties agree that the § 4971 claim is allowable on a nonpriority *227 unsecured basis.[10] CF&I's reorganization plan did not lump all unsecured claims in one nonpriority class, however, but instead created four classes of unsecured creditors, only the first two of which would receive funds: Class 11 comprised small claims ($1,500 or less) grouped together for administrative convenience, see 11 U.S. C. § 1122(b); Class 12 comprised general unsecured claims (except for those assigned to other classes); Class 13 covered the § 4971 claim and some other (much smaller) subordinated penalty claims; and Class 14, claims between the CF&I Steel Corporation and its subsidiaries (all of which were bankrupt), the net value of which was zero. The plan provided, nonetheless, that if a court determined that a Class 13 claim should not be subordinated, or that the Class 13 claims should not be separately classified, the claim or claims would be placed in Class 12. Appellees' App. in No. 94-4034 et al., at 95-101, 137-141, 196-200. When the Government challenged the proposal to subordinate its claim, the Bankruptcy Court confirmed the reorganization plan, App. to Pet. for Cert. A-31, and ordered that the § 4971 claim be "subordinated to the claims of all other general unsecured creditors of [CF&I] pursuant to 11 U.S. C. § 510(c)." Id., at A-21. The District Court subsequently ruled that the § 4971 claim "should be equitably subordinated to the claims of the general creditors under Section 510(c)." Id., at A-18. In the Tenth Circuit, the Government again contested subordination under § 510(c), which CF&I defended, even as it sought to sustain the Bankruptcy Court's result with two new, alternative arguments: first, that 11 U.S. C. § 1122(a), restricting a given class to substantially similar claims, prohibited placement of the § 4971 claim in Class 12, because of its dissimilarity to other *228 unsecured claims; and second, that, because 11 U.S. C. § 1129(a)(7) authorizes creditors with impaired claims (i. e., those getting less than full payment under the plan, like those in Class 12 here) to reject a plan that would give them less than they would get from a Chapter 7 liquidation, courts must have the power to assign a claim the same priority it would have in a Chapter 7 liquidation (in which a noncompensatory prepetition penalty claim would be subordinated, 11 U.S. C. § 726(a)(4)). The Court of Appeals addressed neither of these arguments, however, relying instead on the broad construction given § 510(c) in In re Virtual Network Servs. Corp., 902 F.2d 1246 (CA7 1990) (subordinating a claim otherwise entitled to priority under § 507(a)(7) to those of general unsecured creditors), and holding specifically that "section 510(c)(1) does not require a finding of claimant misconduct to subordinate nonpecuniary loss tax penalty claims." 53 F.3d, at 1159. The Court of Appeals took note of the Bankruptcy Court's finding that "[d]eclining to subordinate the IRS's penalty claim would harm innocent creditors rather than punish the debtor" and concluded that "the bankruptcy court correctly addressed the equities in this case." Ibid. Nothing in the opinion of the Court of Appeals (or,for that matter, in the rulings of the Bankruptcy Court and the District Court) addresses the arguments that the Bankruptcy Court's result was sustainable without reliance on § 510(c). The court never suggested that either § 1122(a) or the Chapter 7 liquidation provisions were relevant. We thus necessarily review the subordination on the assumption that the Court of Appeals placed no reliance on the possibility that the Bankruptcy Code might permit the subordination on any basis except equitable subordination under § 510(c). So understood, the subordination was error. In United States v. Noland, 517 U.S. 535 (1996), we reversed a judgment said to rely on § 510(c) when the subordination turned *229 on nothing other than the very characteristic that entitled the Government's claim to priority under §§ 507(a)(1) and 503(b)(1)(C). We held that the subordination fell beyond the scope of a court's authority under the doctrine of equitable subordination, because categorical subordination at the same level of generality assumed by Congress in establishing relative priorities among creditors was tantamount to a legislative act and therefore was outside the scope of any leeway under § 510(c) for judicial development of the equitable subordination doctrine. See id., at 543. Of course it is true that Noland passed on the subordination from a higher priority class to the residual category of general unsecured creditors at the end of the line, whereas here the subordination was imposed upon a disfavored subgroup within the residual category. But the principle of Noland has nothing to do with transfer between classes, as distinct from ranking within one of them. The principle is simply that categorical reordering of priorities that takes place at the legislative level of consideration is beyond the scope of judicial authority to order equitable subordination under § 510(c). The order in this case was as much a violation of that principle as Noland `s order was. Without passing on the merits of CF&I's arguments that the § 4971 claim is not similar to the other unsecured claims and that courts dealing with Chapter 11 plans should be guided by Chapter 7 provisions, we vacate the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Thomas, concurring in part and dissenting in part. I agree with the majority that the Bankruptcy Court improperly relied on 11 U.S. C. § 510(c) to subordinate the United States' claims, and I join Part III of the Court's opinion. I cannot agree, however, with the majority's determination *230 that assessments under 26 U.S. C. § 4971(a) are not "excise taxes" within the meaning of 11 U.S. C. § 507(a)(7)(E) (1988 ed.). I would hold that every congressionally enacted tax that is generally considered an excise tax is entitled to bankruptcy priority under § 507(a)(7)(E). Section 507(a)(7)(E) creates a bankruptcy priority for excise taxes. Congress, in enacting § 4971, purported to enact a tax, see 26 U.S. C. § 4971(a) ("[T]here is hereby imposed a tax . . ."), and the tax it enacted is properly considered an excise tax. See Commissioner v. Keystone Consol. Industries, Inc., 508 U.S. 152, 161 (1993) (stating, in dicta, that § 4971 imposes an excise tax). It is true that New Jersey v. Anderson, 203 U.S. 483 (1906), and its progeny held that whether a state assessment is entitled to bankruptcy priority as a tax is a federal question. See id., at 492; City of New York v. Feiring, 313 U.S. 283, 285 (1941). It is not appropriate, however, for federal courts to perform a similar inquiry into valid taxes passed by Congress, and the majority cites no case in which this Court has denied bankruptcy priority to a congressionally enacted tax. I respectfully dissent.

[†] This case presents two questions affecting the priority of an unsecured claim in bankruptcy to collect an exaction under 26 U.S. C. 4971(a), requiring a payment to the Internal Revenue Service equal to 10 percent of any accumulated funding deficiency of certain pension plans: first, whether the exaction is an "excise tax" for purposes of 11 U.S. C. 507(a)(7)(E) (1988 ed.),[1] which at the time relevant here gave seventh priority to a claim for such a tax; and, second, whether principles of equitable subordination support a categorical *216 rule placing 4971 claims at a lower priority than unsecured claims generally. We hold that 4971(a) does not create an excise tax within the meaning of 507(a)(7)(E), but that categorical subordination of the Government's claim to those of other unsecured creditors was error. I The CF&I Steel Corporation and its nine subsidiaries (CF&I) sponsored two pension plans, with the consequence that CF&I was obligated by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. 1001 et seq., to make certain annual minimum funding contributions to the plans based on the value of the benefits earned by its employees. See 1082; 26 U.S. C. 412. The annual payments were due each September 15th for the preceding plan year, see 26 CFR 11.412(c)—12(b) and on September 15, CF&I was required to pay a total of some $12.4 million for the year ending December 31, 1989. The day passed without any such payment, and on November 7, CF&I petitioned the United States Bankruptcy Court for the District of Utah for relief under Chapter 11 of the Bankruptcy Code, in an attempt at financial reorganization prompted in large part by the company's inability to fund the pension plans. In re CF&I Fabricators of Utah, Inc., In 1991, the IRS filed several proofs of claim for tax liabilities, one of which arose under 26 U.S. C. 4971(a), imposing a 10 percent "tax" (of $1.24 million here) on any "accumulated funding deficiency" of certain pension plans.[2] The *217 Government sought priority for the claim, either as an "excise tax" within the meaning of 11 U.S. C. 507(a)(7)(E) (1988 ed.), or as a tax in compensation for pecuniary loss under 507(a)(7)(G). CF&I disputed each alternative, and by separate adversary complaint asked the Bankruptcy Court to subordinate the 4971 claim to those of general unsecured creditors. The Bankruptcy Court allowed the Government's claim under 4971(a) but denied it any priority under 507(a)(7), finding the liability neither an "excise tax" under 507(a)(7)(E) nor a tax in compensation for actual pecuniary loss under 507(a)(7)(G). Instead, the court read 4971 as creating a noncompensatory and by subsequent order subordinated the claim to those of all other general unsecured creditors, on the supposed authority of the Bankruptcy Code's provision for equitable subordination, 11 U.S. C. 510(c). The Government appealed to the District Court for the District of Utah, pressing its excise tax theory and objecting to equitable subordination as improper in the absence of Government misconduct. While that appeal was pending, CF&I presented the Bankruptcy Court with a reorganization plan that put the 4971 claim in what the plan called Class 13, a special category giving lowest priority (and no money) to claims for nonpecuniary loss penalties; but it also provided that, if the court found subordination behind general unsecured claims to be inappropriate, the 4971 claim would be ranked with them in what the reorganization plan *218 called Class 12 (which would receive some funds). Appellees' App. in No. 94-4034 et al. (CA10), pp. 96-101, 137-141, 197-200. The United States objected, but the Bankruptcy Court affirmed the plan. The Government appealed this order as well, and the District Court affirmed both the denial of excise tax treatment and the subsequent subordination to general unsecured claims. App. to Pet. for Cert. A-11. The Tenth Circuit likewise affirmed. We granted certiorari, to resolve a conflict among the Circuits over whether 4971(a) claims are excise taxes within the meaning of 507(a)(7)(E), and whether such claims are categorically subject to equitable subordination under 510(c).[3] We affirm on the first question but on the second vacate the judgment and remand. II The provisions for priorities among a bankrupt debtor's claimants are found in 11 U.S. C. 507, subsection (a)(7) of which read, in relevant part, that seventh priority would be accorded to "allowed unsecured claims of governmental units, only to the extent that such claims are for— "(E) an excise tax on— "(i) a transaction occurring before the date of the filing of the petition for which a return, if required, is last due, under applicable law or under any extension, after three years before the date of the filing of the petition; or "(ii) if a return is not required, a transaction occurring during the three years immediately preceding the date of the filing of the petition." *219 What the Government here claims to be an excise tax obligation arose under 26 U.S. C. 4971(a), which provides that "[f]or each taxable year of an employer who maintains a [pension] planthere is hereby imposed a tax of 10 percent (5 percent in the case of a multi employer plan) on the amount of the accumulated funding deficiency under the plan, determined as of the end of the plan year ending with or within such taxable year." No one denies that Congress could have included a provision in the Bankruptcy Code calling a 4971 exaction an excise tax (thereby affording it the priority claimed by the Government); the only question is whether the exaction ought to be treated as a tax (and, if so, an excise) without some such dispositive direction. A Here and there in the Bankruptcy Code Congress has included specific directions that establish the significance for bankruptcy law of a term used elsewhere in the federal statutes. Some bankruptcy provisions deal specifically with subjects as identified by terms defined outside the Bankruptcy Code; 11 U.S. C. 523(a)(13), for example, addresses "restitution issued under title 18, United States Code," and 507(a)(1) refers to "any fees and charges assessed against the estate under chapter 123 of title 28." Other bankruptcy provisions directly adopt definitions contained in other statutes; thus 761(5), (7), and (8) adopt the Commodity Exchange Act's definitions of "commodity option," "contract market," "contract of sale," and so on. Not surprisingly, there are places where the Bankruptcy Code makes referential use of the Internal Revenue Code, as 11 U.S. C. 101(41)(C)(i) does in referring to "an employee pension benefit plan that is a governmental plan, as defined in section 414(d) of the Internal Revenue Code," and as 346(g)(1)(C) does in providing for recognition of a gain or loss "to the *220 same extent that such transfer results in the recognition of gain or loss under section 371 of the Internal Revenue Code." It is significant, therefore, that Congress included no such reference in 507(a)(7)(E), even though the Bankruptcy Code itself provides no definition of "excise," "tax," or "excise tax." This absence of any explicit connector between 507(a)(7)(E) and 4971 is all the more revealing in light of the following history of interpretive practice in determining whether a "tax" so called in the statute creating it is also a "tax" (as distinct from a debt or ) for the purpose of setting the priority of a claim under the bankruptcy laws. B Although 507(a)(7), giving seventh priority to several different kinds of taxes, was enacted as part of the Bankruptcy Act of 1978, a priority provision for taxes was nothing new. Section 64(a) of the Bankruptcy Act of 1898 (1898 Act), which governed (as frequently amended) until 1978, gave priority to "taxes legally due and owing by the bankrupt to the United States [or a] State, county, district, or municipality." 563.[4] On a number of occasions, this Court considered whether a particular exaction, whether or not called a "tax" in the statute creating it, was a tax for purposes of 64(a), and in every one of those cases the Court looked behind the label placed on the exaction and rested its answer directly on the operation of the provision using the term in question. The earliest such cases involved state taxes and are exemplified by City of New In considering whether a New sales tax was a "tax" entitled to priority under 64(a), the Court placed no weight on the "tax" label in the New law, and looked to the *221 state statute only "to ascertain whether its incidents are such as to constitute a tax within the meaning of 64." See also New ; New The Court later followed the same course when a federal statute created the exaction. In United the Court considered whether "`tax[es]' " so called in two federal statutes, were entitled to priority as "taxes" under 64(a). In each instance the decision turned on the actual effects of the exactions, with the Court citing and as authority for its -516. See also United ; United ("We. cannot agree with the Court of Appeals that the `' language of Internal Revenue Code 6672 is dispositive of the status of respondent's debt under Bankruptcy Act 17(a)(1)(e)").[5] Congress could, of course, have intended a different interpretive method for reading terms used in the Bankruptcy Code it created in 1978. But if it had so intended we would expect some statutory indication, see Midlantic Nat. whereas the most obvious statutory indicator is very much to the contrary: in the specific instances noted before, it would have been redundant for Congress to refer *222 specifically to Internal Revenue Code definitions of given terms if such cross-identity were to be assumed or presumed, as a matter of interpretive course. While the Government does not directly challenge the continuing vitality of the cases in the line, it seeks to sidestep them by arguing, first, that similarities between the plain texts of 4971 and 507(a)(7)(E) resolve this case. This approach, however, is inconsistent with New and Sotelo, in each of which the Court refused to rely on the terminology used in the relevant tax and bankruptcy provisions.[6] The argument is also unavailing on its own terms, for even if we were to accept the proposition that comparable use of similar terms is dispositive, the Government's plain text argument still would fail. The word "excise" appears nowhere in 4971 (whereas, by contrast, 26 U.S. C. 4401 explicitly states that it imposes "an excise tax"). And although there is one reference to "excise taxes" that applies to 4971 in the heading of the subtitle covering that section ("Subtitle D—Miscellaneous Excise Taxes"), the Government disclaims any reliance on that caption. Tr. of Oral Arg. 14, 17-20; see also 26 U.S. C. 7806(b) ("No inference, implication, or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title"). Furthermore, though 4971(a) does explicitly refer to its exaction as a "tax," the Government disavows any suggestion that this language is dispositive as to whether 4971(a) is a tax for purposes of 507(a)(7)(E); while *223 4971(b) "impos[es] a tax equal to 100 percent of [the] accumulated funding deficiency to the extent not corrected," the Government says that this explicit language does not answer the question whether 4971(b) is, in fact, a tax under 507(a)(7)(E). Reply Brief for United States 13-14; Tr. of Oral Arg. 19-24. The Government's positions, then, undermine its suggestion that the statutes' texts standing together demonstrate that 4971(a) imposes an excise tax. The Government's second effort to avoid a New and Sotelo interpretive enquiry relies on a statement from the legislative history of the 1978 Act, that "[a]ll Federal, State or local taxes generally considered or expressly treated as excises are covered by" 507(a)(7)(E). 124 Cong. Rec. 32416 (remarks of Rep. Edwards); But even taking this statement as authoritative, it would provide little support for the Government's position. Although the statement may mean that all exactions called[7] "excise taxes" should be covered by 507(a) (7)(E),[8] 4971 does not call its exaction an excise tax. And although the section occurs in a subtitle with a heading of "Miscellaneous Excise Taxes," the Government has disclaimed reliance on the subtitle heading as authority for its position in this case, recognizing the provision of 26 U.S. C. 7806(b) that no inference of legislative construction should be drawn from the placement of a provision in the Internal Revenue Code. See at 222 and this page; Tr. of Oral Arg. 19. If, on the other hand, the statement in the legislative *224 history is read more literally, its apparent upshot is that, among those exactions that are taxes, the ones that are expressly treated as excises are "excise tax[es]" within the meaning of 507(a)(7)(E). But that proposition fails, of course, to answer the question whether the exaction is a tax to begin with. In sum, we conclude that the 1978 Act reveals no congressional intent to reject generally the interpretive principle that characterizations in the Internal Revenue Code are not dispositive in the bankruptcy context, and no specific provision that would relieve us from making a functional examination of 4971(a). We proceed to that examination. C and New applied the same test in determining whether an exaction was a tax under 64(a), or a or debt: "a tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government." 203 U. S., at ; New ; accord, 313 U. S., (" 64 extends to those pecuniary burdens laid upon individuals or their property for the purpose of defraying the expenses of government or of undertakings authorized by it"). Or, as the Court noted in a somewhat different context, "[a] tax is an enforced contribution to provide for the support of government; a as the word is here used, is an exaction imposed by statute as punishment for an unlawful act." United We take La Franca `s statement of the distinction to be sufficient for the decision of this case; if the concept of means anything, it means punishment for an unlawful act or omission, and a punishment for an unlawful omission is what this exaction is. Title 29 U.S. C. 1082 requires a pension plan sponsor to fund potential plan liability according to a complex statutory formula, see also 26 U.S. C. 412, and 26 U.S. C. 4971(a) requires employers who maintain a *225 pension plan to pay the Government 10 percent of any accumulated funding deficiency. If the employer fails to correct the deficiency before the earlier of a notice of deficiency under 4971(a) or an assessment of the 4971(a) exaction, the employer is obligated to pay an additional "tax" of 100 percent of the accumulated funding deficiency. 4971(b).[9] The obviously penal character of these exactions is underscored by other provisions, including one giving the Pension Benefit Guaranty Corporation (PBGC) an entirely independent claim against the employer for "the total amount of the unfunded benefit liabilities," 29 U.S. C. 1362(b)(1)(A) ); see also 1306-1307. We are, indeed, unable to find any provision in the statutory scheme that would cast the "tax" at issue here in anything but this punitive light. D The legislative history reflects the statute's punitive character: *226 "The bill also provides new and more effective penalties where employers fail to meet the funding standards. In the past, an attempt has been made to enforce the relatively weak funding standards existing under present law by providing for immediate vesting of the employees' rights, to the extent funded, under plans which do not meet these standards. This procedure, however, has proved to be defective since it does not directly penalize those responsible for the underfunding. For this reason, the bill places the obligation for funding and the for underfunding on the person on whom it belongs—namely, the employer." H. R. Rep. No. 93-807, p. 28 (1974). Accord, S. Rep. No. p. 24 (1973). The Committee Reports also stated that, "[s]ince the employer remains liable for the contributions necessary to meet the funding standards even after the payment of the excise taxes, it is anticipated that few, if any, employers will willfully violate these standards." H. R. Rep. No. 93-807, ; S. Rep. No. Given the patently punitive function of 4971, we conclude that 4971 must be treated as imposing a not authorizing a tax. Accordingly, we hold that the "tax" under 4971(a) was not entitled to seventh priority as an "excise tax" under 507(a)(7)(E), but instead is, for bankruptcy purposes, a to be dealt with as an ordinary, unsecured claim. III Hence, the next question: whether the Court of Appeals improperly subordinated the Government's 4971 claim to those of the other general unsecured creditors. Though we have rejected the argument that the 4971 claim is for an "excise tax" within the meaning of 507(a)(7)(E), both parties agree that the 4971 claim is allowable on a nonpriority *227 unsecured basis.[10] CF&I's reorganization plan did not lump all unsecured claims in one nonpriority class, however, but instead created four classes of unsecured creditors, only the first two of which would receive funds: Class 11 comprised small claims ($1,500 or less) grouped together for administrative convenience, see 11 U.S. C. 1122(b); Class 12 comprised general unsecured claims (except for those assigned to other classes); Class 13 covered the 4971 claim and some other (much smaller) subordinated claims; and Class 14, claims between the CF&I Steel Corporation and its subsidiaries (all of which were bankrupt), the net value of which was zero. The plan provided, nonetheless, that if a court determined that a Class 13 claim should not be subordinated, or that the Class 13 claims should not be separately classified, the claim or claims would be placed in Class 12. Appellees' App. in No. 94-4034 et al., at 95-101, 137-141, 196-200. When the Government challenged the proposal to subordinate its claim, the Bankruptcy Court confirmed the reorganization plan, App. to Pet. for Cert. A-31, and ordered that the 4971 claim be "subordinated to the claims of all other general unsecured creditors of [CF&I] pursuant to 11 U.S. C. 510(c)." at A-21. The District Court subsequently ruled that the 4971 claim "should be equitably subordinated to the claims of the general creditors under Section 510(c)." at A-18. In the Tenth Circuit, the Government again contested subordination under 510(c), which CF&I defended, even as it sought to sustain the Bankruptcy Court's result with two new, alternative arguments: first, that 11 U.S. C. 1122(a), restricting a given class to substantially similar claims, prohibited placement of the 4971 claim in Class 12, because of its dissimilarity to other *228 unsecured claims; and second, that, because 11 U.S. C. 1129(a)(7) authorizes creditors with impaired claims (i. e., those getting less than full payment under the plan, like those in Class 12 here) to reject a plan that would give them less than they would get from a Chapter 7 liquidation, courts must have the power to assign a claim the same priority it would have in a Chapter 7 liquidation (in which a noncompensatory prepetition claim would be subordinated, 11 U.S. C. 726(a)(4)). The Court of Appeals addressed neither of these arguments, however, relying instead on the broad construction given 510(c) in In re Virtual Network Servs. Corp., (subordinating a claim otherwise entitled to priority under 507(a)(7) to those of general unsecured creditors), and holding specifically that "section 510(c)(1) does not require a finding of claimant misconduct to subordinate nonpecuniary loss tax claims." The Court of Appeals took note of the Bankruptcy Court's finding that "[d]eclining to subordinate the IRS's claim would harm innocent creditors rather than punish the debtor" and concluded that "the bankruptcy court correctly addressed the equities in this case." Nothing in the opinion of the Court of Appeals (or,for that matter, in the rulings of the Bankruptcy Court and the District Court) addresses the arguments that the Bankruptcy Court's result was sustainable without reliance on 510(c). The court never suggested that either 1122(a) or the Chapter 7 liquidation provisions were relevant. We thus necessarily review the subordination on the assumption that the Court of Appeals placed no reliance on the possibility that the Bankruptcy Code might permit the subordination on any basis except equitable subordination under 510(c). So understood, the subordination was error. In United we reversed a judgment said to rely on 510(c) when the subordination turned *229 on nothing other than the very characteristic that entitled the Government's claim to priority under 507(a)(1) and 503(b)(1)(C). We held that the subordination fell beyond the scope of a court's authority under the doctrine of equitable subordination, because categorical subordination at the same level of generality assumed by Congress in establishing relative priorities among creditors was tantamount to a legislative act and therefore was outside the scope of any leeway under 510(c) for judicial development of the equitable subordination doctrine. See Of course it is true that Noland passed on the subordination from a higher priority class to the residual category of general unsecured creditors at the end of the line, whereas here the subordination was imposed upon a disfavored subgroup within the residual category. But the principle of Noland has nothing to do with transfer between classes, as distinct from ranking within one of them. The principle is simply that categorical reordering of priorities that takes place at the legislative level of consideration is beyond the scope of judicial authority to order equitable subordination under 510(c). The order in this case was as much a violation of that principle as Noland `s order was. Without passing on the merits of CF&I's arguments that the 4971 claim is not similar to the other unsecured claims and that courts dealing with Chapter 11 plans should be guided by Chapter 7 provisions, we vacate the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Thomas, concurring in part and dissenting in part. I agree with the majority that the Bankruptcy Court improperly relied on 11 U.S. C. 510(c) to subordinate the United States' claims, and I join Part III of the Court's opinion. I cannot agree, however, with the majority's determination *230 that assessments under 26 U.S. C. 4971(a) are not "excise taxes" within the meaning of 11 U.S. C. 507(a)(7)(E) (1988 ed.). I would hold that every congressionally enacted tax that is generally considered an excise tax is entitled to bankruptcy priority under 507(a)(7)(E). Section 507(a)(7)(E) creates a bankruptcy priority for excise taxes. Congress, in enacting 4971, purported to enact a tax, see 26 U.S. C. 4971(a) ("[T]here is hereby imposed a tax"), and the tax it enacted is properly considered an excise tax. See (stating, in dicta, that 4971 imposes an excise tax). It is true that New and its progeny held that whether a state assessment is entitled to bankruptcy priority as a tax is a federal question. See at ; City of New It is not appropriate, however, for federal courts to perform a similar inquiry into valid taxes passed by Congress, and the majority cites no case in which this Court has denied bankruptcy priority to a congressionally enacted tax. I respectfully dissent.

per_curiam

per_curiam

Free v. Abbott Laboratories, Inc.

2000-04-03

https://www.courtlistener.com/opinion/2621018/free-v-abbott-laboratories-inc/

https://www.courtlistener.com/api/rest/v3/clusters/2621018/

1999-045

The judgment is affirmed by an equally divided Court. Justice O'Connor took no part in the consideration or decision of this case.

The judgment is affirmed by an equally divided Court. Justice O'Connor took no part in the consideration or decision of this case.

Justice Sotomayor

majority

Microsoft Corp. v. i4i Ltd. Partnership

2011-06-09

https://www.courtlistener.com/opinion/218455/microsoft-corp-v-i4i-ltd-partnership/

https://www.courtlistener.com/api/rest/v3/clusters/218455/

2010-057

Under §282 of the Patent Act of 1952, “[a] patent shall be presumed valid” and “[t]he burden of establishing in validity of a patent or any claim thereof shall rest on the party asserting such invalidity.” 35 U.S. C. §282. We consider whether §282 requires an invalidity defense to be proved by clear and convincing evidence. We hold that it does. I A Pursuant to its authority under the Patent Clause, U. S. Const., Art. I, §8, cl. 8, Congress has charged the United States Patent and Trademark Office (PTO) with the task of examining patent applications, 35 U.S. C. §2(a)(1), and issuing patents if “it appears that the applicant is entitled to a patent under the law,” §131. Congress has set forth the prerequisites for issuance of a patent, which the PTO must evaluate in the examination process. To receive patent protection a claimed invention must, among other things, fall within one of the express categories of pat entable subject matter, §101, and be novel, §102, and 2 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court nonobvious, §103. Most relevant here, the on-sale bar of §102(b) precludes patent protection for any “invention” that was “on sale in this country” more than one year prior to the filing of a patent application. See generally Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 67–68 (1998). In evaluating whether these and other statutory conditions have been met, PTO examiners must make various factual determinations—for instance, the state of the prior art in the field and the nature of the advancement embodied in the invention. See Dickinson v. Zurko, 527 U.S. 150, 153 (1999). Once issued, a patent grants certain exclusive rights to its holder, including the exclusive right to use the inven tion during the patent’s duration. To enforce that right, a patentee can bring a civil action for infringement if an other person “without authority makes, uses, offers to sell, or sells any patented invention, within the United States.” §271(a); see also §281. Among other defenses under §282 of the Patent Act of 1952 (1952 Act), an alleged infringer may assert the inva lidity of the patent—that is, he may attempt to prove that the patent never should have issued in the first place. See §§282(2), (3). A defendant may argue, for instance, that the claimed invention was obvious at the time and thus that one of the conditions of patentability was lacking. See §282(2); see also §103. “While the ultimate question of patent validity is one of law,” Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17 (1966) (citing Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 155 (1950) (Douglas, J., concurring)); see post, at 1 (BREYER, J., concurring), the same factual questions underlying the PTO’s original examination of a patent ap plication will also bear on an invalidity defense in an in fringement action. See, e.g., 383 U.S., at 17 (describing the “basic factual inquiries” that form the “background” for evaluating obviousness); Pfaff, 525 U.S., at 67–69 Cite as: 564 U. S. ____ (2011) 3 Opinion of the Court (same, as to the on-sale bar). In asserting an invalidity defense, an alleged infringer must contend with the first paragraph of §282, which provides that “[a] patent shall be presumed valid” and “[t]he burden of establishing invalidity . . . rest[s] on the party asserting such invalidity.”1 Under the Federal Circuit’s reading of §282, a defendant seeking to overcome this presumption must persuade the factfinder of its in validity defense by clear and convincing evidence. Judge Rich, a principal drafter of the 1952 Act, articulated this view for the court in American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350 (CA Fed. 1984). There, the Federal Circuit held that §282 codified “the existing presumption of validity of patents,” id., at 1359 (internal quotation marks omitted)—what, until that point, had been a common-law presumption based on “the basic proposition that a government agency such as the [PTO] was presumed to do its job,” ibid. Relying on this Court’s pre-1952 precedent as to the “force of the presumption,” ibid. (citing Radio Corp. of America v. Radio Engineering Laboratories, Inc., 293 U.S. 1 (1934) (RCA)), Judge Rich concluded: “[Section] 282 creates a presumption that a patent is valid and imposes the burden of proving invalidity on the attacker. That burden is constant and never changes and is to convince the court of invalidity by clear evidence.” 725 F.2d, at 1360. In the nearly 30 years since American Hoist, the Federal Circuit has never wavered in this interpretation of §282. See, e.g., Greenwood v. Hattori Seiko Co., 900 F.2d 238, —————— 1 As originally enacted in 1952, the first paragraph of §282 read: “A patent shall be presumed valid. The burden of establishing invalidity of a patent shall rest on a party asserting it.” 66 Stat. 812. Congress has since amended §282, inserting two sentences not relevant here and modifying the language of the second sentence to that in the text. 4 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court 240–241 (CA Fed. 1990); Ultra-Tex Surfaces, Inc. v. Hill Bros. Chemical Co., 204 F.3d 1360, 1367 (CA Fed. 2000); ALZA Corp. v. Andrx Pharmaceuticals, LLC, 603 F.3d 935, 940 (CA Fed. 2010). B Respondents i4i Limited Partnership and Infrastruc tures for Information Inc. (collectively, i4i) hold the patent at issue in this suit. The i4i patent claims an improved method for editing computer documents, which stores a document’s content separately from the metacodes asso ciated with the document’s structure. In 2007, i4i sued petitioner Microsoft Corporation for willful infringement, claiming that Microsoft’s manufacture and sale of certain Microsoft Word products infringed i4i’s patent. In addi tion to denying infringement, Microsoft counterclaimed and sought a declaration that i4i’s patent was invalid and unenforceable. Specifically and as relevant here, Microsoft claimed that the on-sale bar of §102(b) rendered the patent invalid, pointing to i4i’s prior sale of a software program known as S4. The parties agreed that, more than one year prior to the filing of the i4i patent application, i4i had sold S4 in the United States. They presented opposing arguments to the jury, however, as to whether that software embod ied the invention claimed in i4i’s patent. Because the software’s source code had been destroyed years before the commencement of this litigation, the factual dispute turned largely on trial testimony by S4’s two inventors— also the named inventors on the i4i patent—both of whom testified that S4 did not practice the key invention dis closed in the patent. Relying on the undisputed fact that the S4 software was never presented to the PTO examiner, Microsoft objected to i4i’s proposed instruction that it was required to prove its invalidity defense by clear and convincing evidence. Cite as: 564 U. S. ____ (2011) 5 Opinion of the Court Instead, “if an instruction on the ‘clear and convincing’ burden were [to be] given,” App. 124a, n. 8, Microsoft re quested the following: “ ‘Microsoft’s burden of proving invalidity and unen forceability is by clear and convincing evidence. How ever, Microsoft’s burden of proof with regard to its defense of invalidity based on prior art that the ex aminer did not review during the prosecution of the patent-in-suit is by preponderance of the evidence.’ ” Ibid. Rejecting the hybrid standard of proof that Microsoft advocated, the District Court instructed the jury that “Microsoft has the burden of proving invalidity by clear and convincing evidence.” App. to Pet. for Cert. 195a. The jury found that Microsoft willfully infringed the i4i patent and that Microsoft failed to prove invalidity due to the on-sale bar or otherwise. Denying Microsoft’s post trial motions, the District Court rejected Microsoft’s con tention that the court improperly instructed the jury on the standard of proof. The Court of Appeals for the Fed eral Circuit affirmed.2 598 F.3d 831, 848 (2010). Relying on its settled interpretation of §282, the court explained that it could “discern [no] error” in the jury instruction requiring Microsoft to prove its invalidity defense by clear and convincing evidence. Ibid. We granted certiorari. 562 U. S. ___ (2010). II According to Microsoft, a defendant in an infringement action need only persuade the jury of an invalidity defense by a preponderance of the evidence. In the alternative, Microsoft insists that a preponderance standard must —————— 2 Although not relevant here, the Court of Appeals modified the effec tive date of the permanent injunction that the District Court entered in favor of i4i. 598 F.3d 831, 863–864 (CA Fed. 2010). 6 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court apply at least when an invalidity defense rests on evidence that was never considered by the PTO in the examination process. We reject both contentions.3 A Where Congress has prescribed the governing standard of proof, its choice controls absent “countervailing consti tutional constraints.” Steadman v. SEC, 450 U.S. 91, 95 (1981). The question, then, is whether Congress has made such a choice here. As stated, the first paragraph of §282 provides that “[a] patent shall be presumed valid” and “[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.” Thus, by its express terms, §282 establishes a presumption of pat ent validity, and it provides that a challenger must over come that presumption to prevail on an invalidity defense. But, while the statute explicitly specifies the burden of proof, it includes no express articulation of the standard of proof.4 —————— 3 i4i contends that Microsoft forfeited the first argument by failing to raise it until its merits brief in this Court. The argument, however, is within the scope of the question presented, and because we reject it on its merits, we need not decide whether it has been preserved. 4 A preliminary word on terminology is in order. As we have said, “[t]he term ‘burden of proof’ is one of the ‘the slipperiest members of the family of legal terms.’ ” Schaffer v. Weast, 546 U.S. 49, 56 (2005) (quoting 2 J. Strong, McCormick on Evidence §342, p. 433 (5th ed. 1999) (alteration omitted)). Historically, the term has encompassed two separate burdens: the “burden of persuasion” (specifying which party loses if the evidence is balanced), as well as the “burden of production” (specifying which party must come forward with evidence at various stages in the litigation). Ibid. Adding more confusion, the term “bur den of proof” has occasionally been used as a synonym for “standard of proof.” E.g., Grogan v. Garner, 498 U.S. 279, 286 (1991). Here we use “burden of proof” interchangeably with “burden of per suasion” to identify the party who must persuade the jury in its favor to prevail. We use the term “standard of proof” to refer to the degree of certainty by which the factfinder must be persuaded of a factual conclu Cite as: 564 U. S. ____ (2011) 7 Opinion of the Court Our statutory inquiry, however, cannot simply end there. We begin, of course, with “the assumption that the ordinary meaning of the language” chosen by Congress “accurately expresses the legislative purpose.” Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246, 252 (2004) (internal quotation marks omit ted). But where Congress uses a common-law term in a statute, we assume the “term . . . comes with a common law meaning, absent anything pointing another way.” Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 58 (2007) (citing Beck v. Prupis, 529 U.S. 494, 500–501 (2000)). Here, by stating that a patent is “presumed valid,” §282, Congress used a term with a settled meaning in the com mon law. Our decision in RCA, 293 U.S. 1, is authoritative. There, tracing nearly a century of case law from this Court and others, Justice Cardozo wrote for a unanimous Court that “there is a presumption of validity, a presumption not to be overthrown except by clear and cogent evidence.” Id., at 2. Although the “force” of the presumption found “varying expression” in this Court and elsewhere, id., at 7, Justice Cardozo explained, one “common core of thought and truth” unified the decisions: “[O]ne otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance. If that is true where —————— sion to find in favor of the party bearing the burden of persuasion. See Addington v. Texas, 441 U.S. 418, 423 (1979). In other words, the term “standard of proof” specifies how difficult it will be for the party bearing the burden of persuasion to convince the jury of the facts in its favor. Various standards of proof are familiar—beyond a reasonable doubt, by clear and convincing evidence, and by a preponderance of the evidence. See generally 21B C. Wright & K. Graham, Federal Practice & Proce dure §5122, pp. 405–411 (2d ed. 2005) (hereinafter Fed. Practice) (describing these and other standards of proof). 8 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court the assailant connects himself in some way with the title of the true inventor, it is so a fortiori where he is a stranger to the invention, without claim of title of his own. If it is true where the assailant launches his attack with evidence different, at least in form, from any theretofore produced in opposition to the patent, it is so a bit more clearly where the evidence is even verbally the same.” Id., at 8 (internal citation omitted).5 The common-law presumption, in other words, reflected the universal understanding that a preponderance stan dard of proof was too “dubious” a basis to deem a patent invalid. Ibid.; see also id., at 7 (“[A] patent . . . is pre sumed to be valid until the presumption has been over come by convincing evidence of error”). Thus, by the time Congress enacted §282 and declared that a patent is “presumed valid,” the presumption of patent validity had long been a fixture of the common law. According to its settled meaning, a defendant raising an invalidity defense bore “a heavy burden of persuasion,” requiring proof of the defense by clear and convincing evidence. Id., at 8. That is, the presumption encompassed not only an allocation of the burden of proof but also an imposition of a heightened standard of proof. Under the —————— 5 Among other cases, Justice Cardozo cited Cantrell v. Wallick, 117 U.S. 689, 695–696 (1886) (“Not only is the burden of proof to make good this defence upon the party setting it up, but . . . every reasonable doubt should be resolved against him” (internal quotation marks omitted)); Coffin v. Ogden, 18 Wall. 120, 124 (1874) (“The burden of proof rests upon [the defendant], and every reasonable doubt should be resolved against him”); The Barbed Wire Patent, 143 U.S. 275, 285 (1892) (“[This] principle has been repeatedly acted upon in the different circuits”); and Washburn v. Gould, 29 F. Cas. 312, 320 (No. 17,214) (CC Mass. 1844) (charging jury that “[i]f it should so happen, that your minds are led to a reasonable doubt on the question, inasmuch as it is incumbent on the defendant to satisfy you beyond that doubt, you will find for the plaintiff”). Cite as: 564 U. S. ____ (2011) 9 Opinion of the Court general rule that a common-law term comes with its common-law meaning, we cannot conclude that Congress intended to “drop” the heightened standard proof from the presumption simply because §282 fails to reiterate it expressly. Neder v. United States, 527 U.S. 1, 23 (1999); see also id., at 21 (“ ‘Where Congress uses terms that have accumulated settled meaning under . . . the common law, [we] must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of those terms.’ ” (quoting Nationwide Mut. Ins. Co. v. Dar den, 503 U.S. 318, 322 (1992))); Standard Oil Co. of N. J. v. United Sates, 221 U.S. 1, 59 (1911) (“[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense . . .”). “On the contrary, we must presume that Congress intended to incorporate” the heightened standard of proof, “unless the statute otherwise dictates.” Neder, 527 U.S., at 23 (inter nal quotation marks omitted). We recognize that it may be unusual to treat a presump tion as alone establishing the governing standard of proof. See, e.g., J. Thayer, Preliminary Treatise on Evidence at the Common Law 336–337 (1898) (hereinafter Thayer) (“When . . . we read that the contrary of any particular presumption must be proved beyond a reasonable doubt, . . . it is to be recognized that we have something superadded to the rule of presumption, namely, another rule as to the amount of evidence which is needed to overcome the presumption”). But given how judges, including Justice Cardozo, repeatedly understood and explained the pre sumption of patent validity, we cannot accept Microsoft’s argument that Congress used the words “presumed valid” to adopt only a procedural device for “shifting the burden of production,” or for “shifting both the burden of produc tion and the burden of persuasion.” Brief for Petitioner 21–22 (emphasis deleted). Whatever the significance of a 10 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court presumption in the abstract, basic principles of statutory construction require us to assume that Congress meant to incorporate “the cluster of ideas” attached to the common law term it adopted. Beck, 529 U.S., at 501 (internal quotation marks omitted). And RCA leaves no doubt that attached to the common-law presumption of patent valid ity was an expression as to its “force,” 293 U.S., at 7—that is, the standard of proof required to overcome it.6 Resisting the conclusion that Congress adopted the heightened standard of proof reflected in our pre-1952 cases, Microsoft contends that those cases applied a clear and-convincing standard of proof only in two limited circumstances, not in every case involving an invalidity defense. First, according to Microsoft, the heightened standard of proof applied in cases “involving oral testi mony of prior invention,” simply to account for the unreli ability of such testimony. Brief for Petitioner 25. Second, Microsoft tells us, the heightened standard of proof ap plied to “invalidity challenges based on priority of inven tion,” where that issue had previously been litigated between the parties in PTO proceedings. Id., at 28. Squint as we may, we fail to see the qualifications that Microsoft purports to identify in our cases. They certainly make no appearance in RCA’s explanation of the presump —————— 6 Microsoft objects that this reading of §282 “conflicts with the usual understanding of presumptions.” Reply Brief for Petitioner 4. In sup port, it relies on the “understanding” reflected in Federal Rule of Evidence 301, which explains the ordinary effect of a presumption in federal civil actions. That Rule, however, postdates the 1952 Act by nearly 30 years, and it is not dispositive of how Congress in 1952 understood presumptions generally, much less the presumption of pat ent validity. In any event, the word “presumption” has often been used when another term might be more accurate. See Thayer 335 (“Often . . . maxims and ground principles get expressed in this form of a presumption perversely and inaccurately”). And, to the extent Congress used the words “presumed valid” in an imprecise way, we cannot fault it for following our lead. Cite as: 564 U. S. ____ (2011) 11 Opinion of the Court tion of patent validity. RCA simply said, without qualifi cation, “that one otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance.” 293 U.S., at 8; see also id., at 7 (“A patent regularly issued, and even more obviously a patent issued after a hearing of all the rival claimants, is presumed to be valid until the presumption has been overcome by convincing evidence of error” (emphasis added)). Nor do they appear in any of our cases as express limitations on the application of the heightened standard of proof. Cf., e.g., Smith v. Hall, 301 U.S. 216, 233 (1937) (citing RCA for the proposition that a “heavy burden of persuasion . . . rests upon one who seeks to negative nov elty in a patent by showing prior use”); Mumm v. Jacob E. Decker & Sons, 301 U.S. 168, 171 (1937) (“Not only is the burden to make good this defense upon the party setting it up, but his burden is a heavy one, as it has been held that every reasonable doubt should be resolved against him” (internal quotation marks omitted)). In fact, Microsoft itself admits that our cases “could be read as announcing a heightened standard applicable to all invalidity asser tions.” Brief for Petitioner 30 (emphasis deleted). Furthermore, we cannot agree that Microsoft’s proposed limitations are inherent—even if unexpressed—in our pre-1952 cases. As early as 1874 we explained that the burden of proving prior inventorship “rests upon [the de fendant], and every reasonable doubt should be resolved against him,” without tying that rule to the vagaries and manipulability of oral testimony. Coffin v. Ogden, 18 Wall. 120, 124 (1874). And, more than 60 years later, we applied that rule where the evidence in support of a prior use defense included documentary proof—not just oral testimony—in a case presenting no priority issues at all. See Smith, 301 U.S., at 221, 233. Thus, even if Congress searched for some unstated limitations on the heightened 12 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court standard of proof in our cases, it would have found none.7 Microsoft also argues that the Federal Circuit’s inter pretation of §282’s statement that “[a] patent shall be pre sumed valid” must fail because it renders superfluous the statute’s additional statement that “[t]he burden of establishing invalidity of a patent . . . shall rest on the party asserting such invalidity.” We agree that if the presumption imposes a heightened standard of proof on the patent challenger, then it alone suffices to establish that the defendant bears the burden of persuasion. Cf. Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 278 (1994) (“A stan dard of proof . . . can apply only to a burden of persua sion”). Indeed, the Federal Circuit essentially recognized as much in American Hoist. See 725 F.3d, at 1359. But the canon against superfluity assists only where a competing interpretation gives effect “ ‘to every clause and word of a statute.’ ” Duncan v. Walker, 533 U.S. 167, 174 —————— 7 In a similar vein, Microsoft insists that there simply was no settled presumption of validity for Congress to codify in 1952. Microsoft points to a handful of district court decisions, which “question[ed] whether any presumption of validity was warranted,” or which “required the pat entee to prove the validity of his patent by a preponderance of the evidence.” Brief for Petitioner 24 (emphasis deleted; brackets and internal quotation marks omitted); see, e.g., Ginsberg v. Railway Express Agency, Inc., 72 F. Supp. 43, 44 (SDNY 1947) (stating, in dicta, that “[i]t may now well be said that no presumption whatever arises from the grant of patent”); see also post, at 1 (THOMAS, J., concurring in judgment). RCA makes clear, however, that the presumption of patent validity had an established meaning traceable to the mid-19th century, 293 U.S. 1, 7–8 (1934); that some lower courts doubted its wisdom or even pretended it did not exist is of no moment. Microsoft may be correct that Congress enacted §282 to correct lower courts that required the patentee to prove the validity of a patent. See American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1359 (CA Fed. 1984). But the language Congress selected reveals its intent not only to specify that the defendant bears the burden of proving invalidity but also that the evidence in support of the defense must be clear and convincing. Cite as: 564 U. S. ____ (2011) 13 Opinion of the Court (2001) (quoting United States v. Menasche, 348 U.S. 528, 538–539 (1955)); see Bruesewitz v. Wyeth LLC, 562 U. S. ___, ___ (2011) (slip op., at 12). Here, no interpretation of §282—including the two alternatives advanced by Micro soft—avoids excess language. That is, if the presumption only “allocates the burden of production,” Brief for Peti tioner 21, or if it instead “shift[s] both the burden of pro duction and the burden of persuasion,” id., at 22 (empha sis deleted), then it would be unnecessary in light of §282’s statement that the challenger bears the “burden of estab lishing invalidity.” See 21B Fed. Practice §5122, at 401 (“[T]he same party who has the burden of persuasion also starts out with the burden of producing evidence”). “There are times when Congress enacts provisions that are super fluous,” Corley v. United States, 556 U. S. ___, ___ (2009) (ALITO, J., dissenting) (slip op., at 3), and the kind of excess language that Microsoft identifies in §282 is hardly unusual in comparison to other statutes that set forth a presumption, a burden of persuasion, and a standard of proof. Cf., e.g., 28 U.S. C. §2254(e)(1).8 —————— 8 For those of us for whom it is relevant, the legislative history of §282 provides additional evidence that Congress meant to codify the judge made presumption of validity, not to set forth a new presumption of its own making. The accompanying House and Senate Reports both explain that §282 “introduces a declaration of the presumption of va lidity of a patent, which is now a statement made by courts in deci sions, but has had no expression in the statute.” H. R. Rep. No. 1923, 82d Cong., 2d Sess., 10 (1952) (hereinafter H. R. Rep.); S. Rep. No. 1979, 82d Cong., 2d Sess., 9 (1952) (hereinafter S. Rep.). To the same effect, the Reviser’s Note indicates that §282’s “first paragraph declares the existing presumption of validity of patents.” Note following 35 U.S. C. §282 (1952 ed.). Prior to 1952, the existing patent laws already incorporated the sum and substance of the presumption as Microsoft would define it—that is, they “assign[ed] the burden of proving invalidity to the accused in fringer,” Brief for Petitioner 14 (emphasis deleted). See 35 U.S. C. §69 (1946 ed.) (providing that a defendant in an infringement action “may plead” and “prove on trial” the invalidity of the patent as a defense); see 14 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court B Reprising the more limited argument that it pressed below, Microsoft argues in the alternative that a prepon derance standard must at least apply where the evidence before the factfinder was not before the PTO during the examination process. In particular, it relies on KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007), where we ob served that, in these circumstances, “the rationale under lying the presumption—that the PTO, in its expertise, has approved the claim—seems much diminished.” Id., at 426. That statement is true enough, although other ration ales may animate the presumption in such circumstances. See The Barbed Wire Patent, 143 U.S. 275, 292 (1892) (explaining that because the patentee “first published this device; put it upon record; made use of it for a practical purpose; and gave it to the public . . . . doubts . . . concern ing the actual inventor . . . should be resolved in favor of the patentee”); cf. Brief for United States as Amicus Curiae 33 (arguing that even when the administrative cor rectness rationale has no relevance, the heightened stan dard of proof “serves to protect the patent holder’s reliance interests” in disclosing an invention to the public in exchange for patent protection). The question remains, however, whether Congress has specified the applicable —————— also Patent Act of 1870, ch. 230, §61, 16 Stat. 208 (same); Patent Act of 1836, ch. 357, §15, 5 Stat. 123 (similar); Patent Act of 1793, ch. II, §6, 1 Stat. 322 (similar); Coffin, 18 Wall., at 124 (explaining that the Patent Act of 1836 “allowed a party sued for infringement to prove, among other defences, that the patentee was not the original and first inventor of the thing patented, or of a substantial and material part thereof claimed to be new” (internal quotation marks omitted)). The House and Senate Reports state, however, that §282 established a principle that previously “had no expression in the statute.” H. R. Rep., at 10; S. Rep., at 9. Thus, because the only thing missing from §282’s predecessor was the heightened standard of proof itself, Congress must have understood the presumption of patent validity to include the heightened standard of proof attached to it. Cite as: 564 U. S. ____ (2011) 15 Opinion of the Court standard of proof. As established, Congress did just that by codifying the common-law presumption of patent valid ity and, implicitly, the heightened standard of proof at tached to it. Our pre-1952 cases never adopted or endorsed the kind of fluctuating standard of proof that Microsoft envisions. And they do not indicate, even in dicta, that anything less than a clear-and-convincing standard would ever apply to an invalidity defense raised in an infringement action. To the contrary, the Court spoke on this issue directly in RCA, stating that because the heightened standard of proof applied where the evidence before the court was “different” from that considered by the PTO, it applied even more clearly where the evidence was identical. 293 U.S., at 8. Likewise, the Court’s statement that a “dubi ous preponderance” will never suffice to sustain an inva lidity defense, ibid., admitted of no apparent exceptions. Finally, this Court often applied the heightened standard of proof without any mention of whether the relevant prior-art evidence had been before the PTO examiner, in circumstances strongly suggesting it had not. See, e.g., Smith, 301 U.S., at 227, 233.9 Nothing in §282’s text suggests that Congress meant to —————— 9 Microsoft cites numerous court of appeals decisions as support for its claim that a preponderance standard must apply in the event that the evidence in the infringement action varies from that considered by the PTO. We see no hint of the hybrid standard of proof that Microsoft advocates in these cases. Indeed, in some of these cases it appears that the court even evaluated the evidence according to a heightened stan dard of proof. See Jacuzzi Bros., Inc. v. Berkeley Pump Co., 191 F.2d 632, 634 (CA9 1951) (“Although it is not expressly stated that th[e] conclusion [of invalidity] is based upon evidence establishing the thesis beyond a reasonable doubt, the Trial Court expressed no doubt. And the record shows that such conclusion was supported by substantial evidence”); Western Auto Supply Co. v. American-National Co., 114 F.2d 711, 713 (CA6 1940) (concluding that the patent was invalid where the court “entertain[ed] no doubt” on the question). 16 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court depart from that understanding to enact a standard of proof that would rise and fall with the facts of each case. Indeed, had Congress intended to drop the heightened standard of proof where the evidence before the jury var ied from that before the PTO—and thus to take the un usual and impractical step of enacting a variable standard of proof that must itself be adjudicated in each case, cf. Santosky v. Kramer, 455 U.S. 745, 757 (1982)10—we as sume it would have said so expressly. To be sure, numerous courts of appeals in the years preceding the 1952 Act observed that the presumption of validity is “weakened” or “dissipated” in the circumstance that the evidence in an infringement action was never considered by the PTO. See Jacuzzi Bros., Inc. v. Berkeley Pump Co., 191 F.2d 632, 634 (CA9 1951) (“largely dissi pated”); H. Schindler & Co. v. C. Saladino & Sons, 81 F.2d 649, 651 (CA1 1936) (“weakened”); Gillette Safety Razor Co. v. Cliff Weil Cigar Co., 107 F.2d 105, 107 (CA4 1939) (“greatly weakened”); Butler Mfg. Co. v. Enterprise Cleaning Co., 81 F.2d 711, 716 (CA8 1936) (“weakened”). But we cannot read these cases to hold or even to suggest that a preponderance standard would apply in such cir —————— 10 Not the least of the impracticalities of such an approach arises from the fact that whether a PTO examiner considered a particular reference will often be a question without a clear answer. In granting a patent, an examiner is under no duty to cite every reference he considers. 1 Dept. of Commerce, PTO, Manual of Patent Examining Procedure §904.03, p. 900–51 (8th rev. ed. 2010) (“The examiner is not called upon to cite all references that may be available, but only the ‘best.’ Multiply ing references, any one of which is as good as, but no better than, the others, adds to the burden and cost of prosecution and should therefore be avoided” (emphasis deleted)); Manual of Patent Examining Proce dure §904.02, p. 129 (1st rev. ed. 1952) (same), http://www.uspto.gov/ web/offices/pac/mpep/old/E1R3_900.pdf (all Internet materials as visited June 6, 2011, and available in Clerk of Court’s case file); see also Brief for Respondents 45–46 (describing additional impracticalities). We see no indication in §282 that Congress meant to require collateral litigation on such an inherently uncertain question. Cite as: 564 U. S. ____ (2011) 17 Opinion of the Court cumstances, and we decline to impute such a reading to Congress. Instead, we understand these cases to reflect the same commonsense principle that the Federal Circuit has recognized throughout its existence—namely, that new evidence supporting an invalidity defense may “carry more weight” in an infringement action than evidence previously considered by the PTO, American Hoist, 725 F.2d, at 1360. As Judge Rich explained: “When new evidence touching validity of the patent not considered by the PTO is relied on, the tribunal considering it is not faced with having to disagree with the PTO or with deferring to its judgment or with taking its expertise into account. The evidence may, therefore, carry more weight and go further to ward sustaining the attacker’s unchanging burden.” Ibid. (emphasis deleted) See also SIBIA Neurosciences, Inc. v. Cadus Pharmaceuti cal Corp., 225 F.3d 1349, 1355–1356 (CA Fed. 2000) (“[T]he alleged infringer’s burden may be more easily car ried because of th[e] additional [evidence]”); Group One, Ltd. v. Hallmark Cards, Inc., 407 F.3d 1297, 1306 (CA Fed. 2005) (similar). Simply put, if the PTO did not have all material facts before it, its considered judgment may lose significant force. Cf. KSR, 550 U.S., at 427. And, concomitantly, the challenger’s burden to persuade the jury of its invalidity defense by clear and convincing evidence may be easier to sustain. In this respect, although we have no occasion to endorse any particular formulation, we note that a jury instruction on the effect of new evidence can, and when requested, most often should be given. When warranted, the jury may be instructed to consider that it has heard evidence that the PTO had no opportunity to evaluate before granting the patent. When it is disputed whether the evidence presented to the jury differs from that evalu 18 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court ated by the PTO, the jury may be instructed to consider that question. In either case, the jury may be instructed to evaluate whether the evidence before it is materially new, and if so, to consider that fact when determining whether an invalidity defense has been proved by clear and convincing evidence. Cf., e.g., Mendenhall v. Cedarap ids, Inc., 5 F.3d 1557, 1563–1564 (CA Fed. 1993); see also Brief for International Business Machines Corp. as Amicus Curiae 31–37. Although Microsoft emphasized in its argument to the jury that S4 was never considered by the PTO, it failed to request an instruction along these lines from the District Court. Now, in its reply brief in this Court, Microsoft insists that an instruction of this kind was warranted. Reply Brief for Petitioner 22–23. That argument, however, comes far too late, and we there fore refuse to consider it. See Rent-A-Center, West, Inc. v. Jackson, 561 U. S. ___ , ___ (2010) (slip op., at 12); cf. Fed. Rule Civ. Proc. 51(d)(1)(B). III The parties and their amici have presented opposing views as to the wisdom of the clear-and-convincing evidence standard that Congress adopted. Microsoft and its amici contend that the heightened standard of proof dampens innovation by unduly insulating “bad” patents from invalidity challenges. They point to the high invali dation rate as evidence that the PTO grants patent protec tion to too many undeserving “inventions.” They claim that inter partes reexamination proceedings before the PTO cannot fix the problem, as some grounds for invalida tion (like the on-sale bar at issue here) cannot be raised in such proceedings. They question the deference that the PTO’s expert determinations warrant, in light of the agency’s resources and procedures, which they deem in adequate. And, they insist that the heightened standard of proof essentially causes juries to abdicate their role in Cite as: 564 U. S. ____ (2011) 19 Opinion of the Court reviewing invalidity claims raised in infringement actions. For their part, i4i and its amici, including the United States, contend that the heightened standard of proof properly limits the circumstances in which a lay jury overturns the considered judgment of an expert agency. They claim that the heightened standard of proof is an essential component of the patent “bargain,” see Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 150–151 (1989), and the incentives for inventors to dis close their innovations to the public in exchange for patent protection. They disagree with the notion that the patent issuance rate is above the optimal level. They explain that limits on the reexamination process reflect a judgment by Congress as to the appropriate degree of interference with patentees’ reliance interests. Finally, they maintain that juries that are properly instructed as to the application of the clear-and-convincing-evidence standard can, and often do, find an invalidity defense established. We find ourselves in no position to judge the compara tive force of these policy arguments. For nearly 30 years, the Federal Circuit has interpreted §282 as we do today. During this period, Congress has often amended §282, see, e.g., Pub. L. 104–141, §2, 109 Stat. 352; Pub. L. 98–417, §203, 98 Stat. 1603; not once, so far as we (and Microsoft) are aware, has it even considered a proposal to lower the standard of proof, see Tr. Oral Arg. 10. Moreover, Con gress has amended the patent laws to account for concerns about “bad” patents, including by expanding the reexami nation process to provide for inter partes proceedings. See Optional Inter Partes Reexamination Procedure Act of 1999, 113 Stat. 1501A–567, codified at 35 U.S. C. §311 et seq. Through it all, the evidentiary standard adopted in §282 has gone untouched. Indeed, Congress has left the Federal Circuit’s interpretation of §282 in place despite ongoing criticism, both from within the Federal Govern 20 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court ment and without.11 Congress specified the applicable standard of proof in 1952 when it codified the common-law presumption of patent validity. Since then, it has allowed the Federal Circuit’s correct interpretation of §282 to stand. Any re calibration of the standard of proof remains in its hands. * * * For the reasons stated, the judgment of the Court of Appeals for the Federal Circuit is Affirmed. THE CHIEF JUSTICE took no part in the consideration or decision of this case. —————— 11 See, e.g., FTC, To Promote Innovation: The Proper Balance of Com petition and Patent Law and Policy 28 (Oct. 2003), http://www.ftc.gov/ os/2003/10/innovationrpt.pdf (recommending that “legislation be enacted specifying that challenges to the validity of a patent be deter mined based on a preponderance of the evidence”); Alsup, Memo to Congress: A District Judge’s Proposal for Patent Reform, 24 Berkeley Tech. L. J. 1647, 1655 (2009) (same); Lichtman & Lemley, Rethinking Patent Law’s Presumption of Validity, 60 Stan. L. Rev. 45, 60 (2007) (proposing “statutory amendment or . . . judicial reinterpretation of the existing statute and its associated case law” to lower the standard of proof to a preponderance of the evidence (footnote omitted)). Cite as: 564 U. S. ____ (2011) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 10–290 _________________ MICROSOFT CORPORATION, PETITIONER v. i4i LIMITED PARTNERSHIP ET AL.

Under of the Patent Act of 12, “[a] patent shall be presumed valid” and “[t]he burden of establishing in validity of a patent or any claim thereof shall rest on the party asserting such invalidity.” 35 U.S. C. We consider whether requires an invalidity defense to be proved by clear and convincing evidence. We hold that it does. I A Pursuant to its authority under the Patent Clause, U. S. Const., Art. I, cl. 8, Congress has charged the United States Patent and Trademark Office (PTO) with the task of examining patent applications, 35 U.S. C. and issuing patents if “it appears that the applicant is entitled to a patent under the law,” Congress has set forth the prerequisites for issuance of a patent, which the PTO must evaluate in the examination process. To receive patent protection a claimed invention must, among other things, fall within one of the express categories of pat entable subject matter, and be novel, and 2 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court nonobvious, Most relevant here, the on-sale bar of precludes patent protection for any “invention” that was “on sale in this country” more than one year prior to the filing of a patent application. See generally v. Wells Electronics, Inc., In evaluating whether these and other statutory conditions have been met, PTO examiners must make various factual determinations—for instance, the state of the prior art in the field and the nature of the advancement embodied in the invention. See Once issued, a patent grants certain exclusive rights to its holder, including the exclusive right to use the inven tion during the patent’s duration. To enforce that right, a patentee can bring a civil action for infringement if an other person “without authority makes, uses, offers to sell, or sells any patented invention, within the United States.” see also Among other defenses under of the Patent Act of 12 (12 Act), an alleged infringer may assert the inva lidity of the patent—that is, he may attempt to prove that the patent never should have issued in the first place. See §(2), (3). A defendant may argue, for instance, that the claimed invention was obvious at the time and thus that one of the conditions of patentability was lacking. See (2); see also “While the ultimate question of patent validity is one of law,” (citing Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 155 (10) (Douglas, J., concurring)); see post, at 1 (BREYER, J., concurring), the same factual questions underlying the PTO’s original examination of a patent ap plication will also bear on an invalidity defense in an in fringement action. See, 383 U.S., at (describing the “basic factual inquiries” that form the “background” for evaluating obviousness); –69 Cite as: 4 U. S. (2011) 3 Opinion of the Court (same, as to the on-sale bar). In asserting an invalidity defense, an alleged infringer must contend with the first paragraph of which provides that “[a] patent shall be presumed valid” and “[t]he burden of establishing invalidity rest[s] on the party asserting such invalidity.”1 Under the Federal Circuit’s reading of a defendant seeking to overcome this presumption must persuade the factfinder of its in validity defense by clear and convincing evidence. Judge Rich, a principal drafter of the 12 Act, articulated this view for the court in American Hoist & Derrick Co. v. Sowa & Sons, Inc., There, the Federal Circuit held that codified “the existing presumption of validity of patents,” (internal quotation marks omitted)—what, until that point, had been a common-law presumption based on “the basic proposition that a government agency such as the [PTO] was presumed to do its job,” Relying on this Court’s pre-12 precedent as to the “force of the presumption,” ), Judge Rich concluded: “[Section] 282 creates a presumption that a patent is valid and imposes the burden of proving invalidity on the attacker. That burden is constant and never changes and is to convince the court of invalidity by clear evidence.” In the nearly 30 years since American Hoist, the Federal Circuit has never wavered in this interpretation of See, —————— 1 As originally enacted in 12, the first paragraph of read: “A patent shall be presumed valid. The burden of establishing invalidity of a patent shall rest on a party asserting it.” Congress has since amended inserting two sentences not relevant here and modifying the language of the second sentence to that in the text. 4 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court 240–241 (CA Fed. 1990); Ultra-Tex Surfaces, ; ALZA Corp. v. Andrx Pharmaceuticals, LLC, 3 F.3d 935, 940 B Respondents i4i Limited Partnership and Infrastruc tures for Information Inc. (collectively, i4i) hold the patent at issue in this suit. The i4i patent claims an improved method for editing computer documents, which stores a document’s content separately from the metacodes asso ciated with the document’s structure. In 2007, i4i sued petitioner Microsoft Corporation for willful infringement, claiming that Microsoft’s manufacture and sale of certain Microsoft Word products infringed i4i’s patent. In addi tion to denying infringement, Microsoft counterclaimed and sought a declaration that i4i’s patent was invalid and unenforceable. Specifically and as relevant here, Microsoft claimed that the on-sale bar of rendered the patent invalid, pointing to i4i’s prior sale of a software program known as S4. The parties agreed that, more than one year prior to the filing of the i4i patent application, i4i had sold S4 in the United States. They presented opposing arguments to the jury, however, as to whether that software embod ied the invention claimed in i4i’s patent. Because the software’s source code had been destroyed years before the commencement of this litigation, the factual dispute turned largely on trial testimony by S4’s two inventors— also the named inventors on the i4i patent—both of whom testified that S4 did not practice the key invention dis closed in the patent. Relying on the undisputed fact that the S4 software was never presented to the PTO examiner, Microsoft objected to i4i’s proposed instruction that it was required to prove its invalidity defense by clear and convincing evidence. Cite as: 4 U. S. (2011) 5 Opinion of the Court Instead, “if an instruction on the ‘clear and convincing’ burden were [to be] given,” App. a, n. 8, Microsoft re quested the following: “ ‘Microsoft’s burden of proving invalidity and unen forceability is by clear and convincing evidence. How ever, Microsoft’s burden of proof with regard to its defense of invalidity based on prior art that the ex aminer did not review during the prosecution of the patent-in-suit is by preponderance of the evidence.’ ” Rejecting the hybrid standard of proof that Microsoft advocated, the District Court instructed the jury that “Microsoft has the burden of proving invalidity by clear and convincing evidence.” App. to Pet. for Cert. 1a. The jury found that Microsoft willfully infringed the i4i patent and that Microsoft failed to prove invalidity due to the on-sale bar or otherwise. Denying Microsoft’s post trial motions, the District Court rejected Microsoft’s con tention that the court improperly instructed the jury on the standard of proof. The Court of Appeals for the Fed eral Circuit affirmed.2 Relying on its settled interpretation of the court explained that it could “discern [no] error” in the jury instruction requiring Microsoft to prove its invalidity defense by clear and convincing evidence. We granted certiorari. 2 U. S. II According to Microsoft, a defendant in an infringement action need only persuade the jury of an invalidity defense by a preponderance of the evidence. In the alternative, Microsoft insists that a preponderance standard must —————— 2 Although not relevant here, the Court of Appeals modified the effec tive date of the permanent injunction that the District Court entered in favor of i4i. 6 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court apply at least when an invalidity defense rests on evidence that was never considered by the PTO in the examination process. We reject both contentions.3 A Where Congress has prescribed the governing standard of proof, its choice controls absent “countervailing consti tutional constraints.” (1981). The question, then, is whether Congress has made such a choice here. As stated, the first paragraph of provides that “[a] patent shall be presumed valid” and “[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.” Thus, by its express terms, establishes a presumption of pat ent validity, and it provides that a challenger must over come that presumption to prevail on an invalidity defense. But, while the statute explicitly specifies the burden of proof, it includes no express articulation of the standard of proof.4 —————— 3 i4i contends that Microsoft forfeited the first argument by failing to raise it until its merits brief in this Court. The argument, however, is within the scope of the question presented, and because we reject it on its merits, we need not decide whether it has been preserved. 4 A preliminary word on terminology is in order. As we have said, “[t]he term ‘burden of proof’ is one of the ‘the slipperiest members of the family of legal terms.’ ” (alteration omitted)). Historically, the term has encompassed two separate burdens: the “burden of persuasion” (specifying which party loses if the evidence is balanced), as well as the “burden of production” (specifying which party must come forward with evidence at various stages in the litigation). Adding more confusion, the term “bur den of proof” has occasionally been used as a synonym for “standard of proof.” E.g., Here we use “burden of proof” interchangeably with “burden of per suasion” to identify the party who must persuade the jury in its favor to prevail. We use the term “standard of proof” to refer to the degree of certainty by which the factfinder must be persuaded of a factual conclu Cite as: 4 U. S. (2011) 7 Opinion of the Court Our statutory inquiry, however, cannot simply end there. We begin, of course, with “the assumption that the ordinary meaning of the language” chosen by Congress “accurately expresses the legislative purpose.” Engine Mfrs. (internal quotation marks omit ted). But where Congress uses a common-law term in a statute, we assume the “term comes with a common law meaning, absent anything pointing another way.” Safeco Ins. Co. of ). Here, by stating that a patent is “presumed valid,” Congress used a term with a settled meaning in the com mon law. Our decision in RCA, is authoritative. There, tracing nearly a century of case law from this Court and others, Justice Cardozo wrote for a unanimous Court that “there is a presumption of validity, a presumption not to be overthrown except by clear and cogent evidence.” Although the “force” of the presumption found “varying expression” in this Court and elsewhere, Justice Cardozo explained, one “common core of thought and truth” unified the decisions: “[O]ne otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance. If that is true where —————— sion to find in favor of the party bearing the burden of persuasion. See In other words, the term “standard of proof” specifies how difficult it will be for the party bearing the burden of persuasion to convince the jury of the facts in its favor. Various standards of proof are familiar—beyond a reasonable doubt, by clear and convincing evidence, and by a preponderance of the evidence. See generally 21B C. Wright & K. Graham, Federal Practice & Proce dure pp. 405–411 (hereinafter Fed. Practice) (describing these and other standards of proof). 8 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court the assailant connects himself in some way with the title of the true inventor, it is so a fortiori where he is a stranger to the invention, without claim of title of his own. If it is true where the assailant launches his attack with evidence different, at least in form, from any theretofore produced in opposition to the patent, it is so a bit more clearly where the evidence is even verbally the same.” (internal citation omitted).5 The common-law presumption, in other words, reflected the universal understanding that a preponderance stan dard of proof was too “dubious” a basis to deem a patent invalid. ; see also (“[A] patent is pre sumed to be valid until the presumption has been over come by convincing evidence of error”). Thus, by the time Congress enacted and declared that a patent is “presumed valid,” the presumption of patent validity had long been a fixture of the common law. According to its settled meaning, a defendant raising an invalidity defense bore “a heavy burden of persuasion,” requiring proof of the defense by clear and convincing evidence. That is, the presumption encompassed not only an allocation of the burden of proof but also an imposition of a heightened standard of proof. Under the —————— 5 Among other cases, Justice Cardozo cited Cantrell v. Wallick, 1 U.S. 689, 6–696 (1886) (“Not only is the burden of proof to make good this defence upon the party setting it up, but every reasonable doubt should be resolved against him” (internal quotation marks omitted)); (“The burden of proof rests upon [the defendant], and every reasonable doubt should be resolved against him”); The Barbed Wire Patent, (“[This] principle has been repeatedly acted upon in the different circuits”); and (No.214) (CC Mass. 18) (charging jury that “[i]f it should so happen, that your minds are led to a reasonable doubt on the question, inasmuch as it is incumbent on the defendant to satisfy you beyond that doubt, you will find for the plaintiff”). Cite as: 4 U. S. (2011) 9 Opinion of the Court general rule that a common-law term comes with its common-law meaning, we cannot conclude that Congress intended to “drop” the heightened standard proof from the presumption simply because fails to reiterate it expressly. ; see also 1 )); Standard Oil Co. of N. J. v. United Sates, (“[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense”). “On the contrary, we must presume that Congress intended to incorporate” the heightened standard of proof, “unless the statute otherwise dictates.” 527 U.S., 3 (inter nal quotation marks omitted). We recognize that it may be unusual to treat a presump tion as alone establishing the governing standard of proof. See, J. Thayer, Preliminary Treatise on Evidence at the Common Law 336–337 (1898) (hereinafter Thayer) (“When we read that the contrary of any particular presumption must be proved beyond a reasonable doubt, it is to be recognized that we have something superadded to the rule of presumption, namely, another rule as to the amount of evidence which is needed to overcome the presumption”). But given how judges, including Justice Cardozo, repeatedly understood and explained the pre sumption of patent validity, we cannot accept Microsoft’s argument that Congress used the words “presumed valid” to adopt only a procedural device for “shifting the burden of production,” or for “shifting both the burden of produc tion and the burden of persuasion.” Brief for Petitioner 21–22 Whatever the significance of a 10 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court presumption in the abstract, basic principles of statutory construction require us to assume that Congress meant to incorporate “the cluster of ideas” attached to the common law term it adopted. (internal quotation marks omitted). And RCA leaves no doubt that attached to the common-law presumption of patent valid ity was an expression as to its “force,” 293 U.S., —that is, the standard of proof required to overcome it.6 Resisting the conclusion that Congress adopted the heightened standard of proof reflected in our pre-12 cases, Microsoft contends that those cases applied a clear and-convincing standard of proof only in two limited circumstances, not in every case involving an invalidity defense. First, according to Microsoft, the heightened standard of proof applied in cases “involving oral testi mony of prior invention,” simply to account for the unreli ability of such testimony. Brief for Petitioner 25. Second, Microsoft tells us, the heightened standard of proof ap plied to “invalidity challenges based on priority of inven tion,” where that issue had previously been litigated between the parties in PTO proceedings. 8. Squint as we may, we fail to see the qualifications that Microsoft purports to identify in our cases. They certainly make no appearance in RCA’s explanation of the presump —————— 6 Microsoft objects that this reading of “conflicts with the usual understanding of presumptions.” Reply Brief for Petitioner 4. In sup port, it relies on the “understanding” reflected in Federal Rule of Evidence 301, which explains the ordinary effect of a presumption in federal civil actions. That Rule, however, postdates the 12 Act by nearly 30 years, and it is not dispositive of how Congress in 12 understood presumptions generally, much less the presumption of pat ent validity. In any event, the word “presumption” has often been used when another term might be more accurate. See Thayer 335 (“Often maxims and ground principles get expressed in this form of a presumption perversely and inaccurately”). And, to the extent Congress used the words “presumed valid” in an imprecise way, we cannot fault it for following our lead. Cite as: 4 U. S. (2011) 11 Opinion of the Court tion of patent validity. RCA simply said, without qualifi cation, “that one otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance.” 293 U.S., ; see also at 7 (“A patent regularly issued, and even more obviously a patent issued after a hearing of all the rival claimants, is presumed to be valid until the presumption has been overcome by convincing evidence of error” (emphasis added)). Nor do they appear in any of our cases as express limitations on the application of the heightened standard of proof. Cf., 3 (citing RCA for the proposition that a “heavy burden of persuasion rests upon one who seeks to negative nov elty in a patent by showing prior use”); 1 (“Not only is the burden to make good this defense upon the party setting it up, but his burden is a heavy one, as it has been held that every reasonable doubt should be resolved against him” (internal quotation marks omitted)). In fact, Microsoft itself admits that our cases “could be read as announcing a heightened standard applicable to all invalidity asser tions.” Brief for Petitioner 30 Furthermore, we cannot agree that Microsoft’s proposed limitations are inherent—even if unexpressed—in our pre-12 cases. As early as 1874 we explained that the burden of proving prior inventorship “rests upon [the de fendant], and every reasonable doubt should be resolved against him,” without tying that rule to the vagaries and manipulability of oral testimony. 18 Wall. 120, And, more than years later, we applied that rule where the evidence in support of a prior use defense included documentary proof—not just oral testimony—in a case presenting no priority issues at all. See 301 U.S., 21, 3. Thus, even if Congress searched for some unstated limitations on the heightened 12 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court standard of proof in our cases, it would have found none.7 Microsoft also argues that the Federal Circuit’s inter pretation of ’s statement that “[a] patent shall be pre sumed valid” must fail because it renders superfluous the statute’s additional statement that “[t]he burden of establishing invalidity of a patent shall rest on the party asserting such invalidity.” We agree that if the presumption imposes a heightened standard of proof on the patent challenger, then it alone suffices to establish that the defendant bears the burden of persuasion. Cf. Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, (“A stan dard of proof can apply only to a burden of persua sion”). Indeed, the Federal Circuit essentially recognized as much in American Hoist. See 725 F.3d, But the canon against superfluity assists only where a competing interpretation gives effect “ ‘to every clause and word of a statute.’ ” 4 —————— 7 In a similar vein, Microsoft insists that there simply was no settled presumption of validity for Congress to codify in 12. Microsoft points to a handful of district court decisions, which “question[ed] whether any presumption of validity was warranted,” or which “required the pat entee to prove the validity of his patent by a preponderance of the evidence.” Brief for Petitioner 24 (emphasis deleted; brackets and internal quotation marks omitted); see, (stating, in dicta, that “[i]t may now well be said that no presumption whatever arises from the grant of patent”); see also post, at 1 (THOMAS, J., concurring in judgment). RCA makes clear, however, that the presumption of patent validity had an established meaning traceable to the mid-19th century, ; that some lower courts doubted its wisdom or even pretended it did not exist is of no moment. Microsoft may be correct that Congress enacted to correct lower courts that required the patentee to prove the validity of a patent. See American Hoist & Derrick 13 But the language Congress selected reveals its intent not only to specify that the defendant bears the burden of proving invalidity but also that the evidence in support of the defense must be clear and convincing. Cite as: 4 U. S. (2011) 13 Opinion of the Court (2001) (quoting United 538–539 (15)); see Bruesewitz v. Wyeth LLC, 2 U. S. (2011) (slip op., at 12). Here, no interpretation of —including the two alternatives advanced by Micro soft—avoids excess language. That is, if the presumption only “allocates the burden of production,” Brief for Peti tioner 21, or if it instead “shift[s] both the burden of pro duction and the burden of persuasion,” 2 (empha sis deleted), then it would be unnecessary in light of ’s statement that the challenger bears the “burden of estab lishing invalidity.” See 21B Fed. Practice at 401 (“[T]he same party who has the burden of persuasion also starts out with the burden of producing evidence”). “There are times when Congress enacts provisions that are super fluous,” Corley v. United States, 5 U. S. (2009) (ALITO, J., dissenting) (slip op., at 3), and the kind of excess language that Microsoft identifies in is hardly unusual in comparison to other statutes that set forth a presumption, a burden of persuasion, and a standard of proof. Cf., 28 U.S. C. —————— 8 For those of us for whom it is relevant, the legislative history of provides additional evidence that Congress meant to codify the judge made presumption of validity, not to set forth a new presumption of its own making. The accompanying House and Senate Reports both explain that “introduces a declaration of the presumption of va lidity of a patent, which is now a statement made by courts in deci sions, but has had no expression in the statute.” H. R. Rep. No. 19, 82d Cong., 2d Sess., 10 (12) (hereinafter H. R. Rep.); S. Rep. No. 1979, 82d Cong., 2d Sess., 9 (12) (hereinafter S. Rep.). To the same effect, the Reviser’s Note indicates that ’s “first paragraph declares the existing presumption of validity of patents.” Note following 35 U.S. C. (12 ed.). Prior to 12, the existing patent laws already incorporated the sum and substance of the presumption as Microsoft would define it—that is, they “assign[ed] the burden of proving invalidity to the accused in fringer,” Brief for Petitioner 14 See 35 U.S. C. (1946 ed.) (providing that a defendant in an infringement action “may plead” and “prove on trial” the invalidity of the patent as a defense); see 14 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court B Reprising the more limited argument that it pressed below, Microsoft argues in the alternative that a prepon derance standard must at least apply where the evidence before the factfinder was not before the PTO during the examination process. In particular, it relies on Int’l where we ob served that, in these circumstances, “the rationale under lying the presumption—that the PTO, in its expertise, has approved the claim—seems much diminished.” That statement is true enough, although other ration ales may animate the presumption in such circumstances. See The Barbed Wire Patent, (explaining that because the patentee “first published this device; put it upon record; made use of it for a practical purpose; and gave it to the public doubts concern ing the actual inventor should be resolved in favor of the patentee”); cf. Brief for United States as Amicus Curiae 33 (arguing that even when the administrative cor rectness rationale has no relevance, the heightened stan dard of proof “serves to protect the patent holder’s reliance interests” in disclosing an invention to the public in exchange for patent protection). The question remains, however, whether Congress has specified the applicable —————— also Patent Act of 1870, ch. 0, ; Patent Act of 1836, ch. 357, 5 Stat. 1 ; Patent Act of 93, ch. II, 1 Stat. ; 18 Wall., at (explaining that the Patent Act of 1836 “allowed a party sued for infringement to prove, among other defences, that the patentee was not the original and first inventor of the thing patented, or of a substantial and material part thereof claimed to be new” (internal quotation marks omitted)). The House and Senate Reports state, however, that established a principle that previously “had no expression in the statute.” H. R. Rep., at 10; S. Rep., at 9. Thus, because the only thing missing from ’s predecessor was the heightened standard of proof itself, Congress must have understood the presumption of patent validity to include the heightened standard of proof attached to it. Cite as: 4 U. S. (2011) 15 Opinion of the Court standard of proof. As established, Congress did just that by codifying the common-law presumption of patent valid ity and, implicitly, the heightened standard of proof at tached to it. Our pre-12 cases never adopted or endorsed the kind of fluctuating standard of proof that Microsoft envisions. And they do not indicate, even in dicta, that anything less than a clear-and-convincing standard would ever apply to an invalidity defense raised in an infringement action. To the contrary, the Court spoke on this issue directly in RCA, stating that because the heightened standard of proof applied where the evidence before the court was “different” from that considered by the PTO, it applied even more clearly where the evidence was identical. 293 U.S., Likewise, the Court’s statement that a “dubi ous preponderance” will never suffice to sustain an inva lidity defense, ib admitted of no apparent exceptions. Finally, this Court often applied the heightened standard of proof without any mention of whether the relevant prior-art evidence had been before the PTO examiner, in circumstances strongly suggesting it had not. See, 301 U.S., 27, 3.9 Nothing in ’s text suggests that Congress meant to —————— 9 Microsoft cites numerous court of appeals decisions as support for its claim that a preponderance standard must apply in the event that the evidence in the infringement action varies from that considered by the PTO. We see no hint of the hybrid standard of proof that Microsoft advocates in these cases. Indeed, in some of these cases it appears that the court even evaluated the evidence according to a heightened stan dard of proof. See Jacuzzi Bros., Inc. v. Berkeley Pump Co., 191 F.2d 632, (CA9 11) (“Although it is not expressly stated that th[e] conclusion [of invalidity] is based upon evidence establishing the thesis beyond a reasonable doubt, the Trial Court expressed no doubt. And the record shows that such conclusion was supported by substantial evidence”); Western Auto Supply Co. v. American-National Co., 114 F.2d 711, 713 (CA6 1940) (concluding that the patent was invalid where the court “entertain[ed] no doubt” on the question). 16 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court depart from that understanding to enact a standard of proof that would rise and fall with the facts of each case. Indeed, had Congress intended to drop the heightened standard of proof where the evidence before the jury var ied from that before the PTO—and thus to take the un usual and impractical step of enacting a variable standard of proof that must itself be adjudicated in each case, cf. 10—we as sume it would have said so expressly. To be sure, numerous courts of appeals in the years preceding the 12 Act observed that the presumption of validity is “weakened” or “dissipated” in the circumstance that the evidence in an infringement action was never considered by the PTO. See Jacuzzi Bros., (CA9 11) (“largely dissi pated”); H. Schindler & Co. v. C. Saladino & Sons, 81 F.2d 649, 651 ; Gillette Safety Razor (CA4 1939) (“greatly weakened”); Butler Mfg. But we cannot read these cases to hold or even to suggest that a preponderance standard would apply in such cir —————— 10 Not the least of the impracticalities of such an approach arises from the fact that whether a PTO examiner considered a particular reference will often be a question without a clear answer. In granting a patent, an examiner is under no duty to cite every reference he considers. 1 Dept. of Commerce, PTO, Manual of Patent Examining Procedure p. 900–51 (“The examiner is not called upon to cite all references that may be available, but only the ‘best.’ Multiply ing references, any one of which is as good as, but no better than, the others, adds to the burden and cost of prosecution and should therefore be avoided” ); Manual of Patent Examining Proce dure p. 129 (1st rev. ed. 12) http://www.uspto.gov/ web/offices/pac/mpep/old/E1R3_900.pdf (all Internet materials as visited June 6, 2011, and available in Clerk of Court’s case file); see also Brief for Respondents 45–46 (describing additional impracticalities). We see no indication in that Congress meant to require collateral litigation on such an inherently uncertain question. Cite as: 4 U. S. (2011) Opinion of the Court cumstances, and we decline to impute such a reading to Congress. Instead, we understand these cases to reflect the same commonsense principle that the Federal Circuit has recognized throughout its existence—namely, that new evidence supporting an invalidity defense may “carry more weight” in an infringement action than evidence previously considered by the PTO, American Hoist, 725 F.2d, at 13. As Judge Rich explained: “When new evidence touching validity of the patent not considered by the PTO is relied on, the tribunal considering it is not faced with having to disagree with the PTO or with deferring to its judgment or with taking its expertise into account. The evidence may, therefore, carry more weight and go further to ward sustaining the attacker’s unchanging burden.” See also SIBIA Neurosciences, 1355–13 (“[T]he alleged infringer’s burden may be more easily car ried because of th[e] additional [evidence]”); Group One, Simply put, if the PTO did not have all material facts before it, its considered judgment may lose significant force. Cf. And, concomitantly, the challenger’s burden to persuade the jury of its invalidity defense by clear and convincing evidence may be easier to sustain. In this respect, although we have no occasion to endorse any particular formulation, we note that a jury instruction on the effect of new evidence can, and when requested, most often should be given. When warranted, the jury may be instructed to consider that it has heard evidence that the PTO had no opportunity to evaluate before granting the patent. When it is disputed whether the evidence presented to the jury differs from that evalu 18 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court ated by the PTO, the jury may be instructed to consider that question. In either case, the jury may be instructed to evaluate whether the evidence before it is materially new, and if so, to consider that fact when determining whether an invalidity defense has been proved by clear and convincing evidence. Cf., 13–14 ; see also Brief for International Business Machines Corp. as Amicus Curiae 31–37. Although Microsoft emphasized in its argument to the jury that S4 was never considered by the PTO, it failed to request an instruction along these lines from the District Court. Now, in its reply brief in this Court, Microsoft insists that an instruction of this kind was warranted. Reply Brief for Petitioner 22–. That argument, however, comes far too late, and we there fore refuse to consider it. See Rent-A-Center, West, Inc. v. Jackson, 1 U. S. (slip op., at 12); cf. Fed. Rule Civ. Proc. 51(d)(1)(B). III The parties and their amici have presented opposing views as to the wisdom of the clear-and-convincing evidence standard that Congress adopted. Microsoft and its amici contend that the heightened standard of proof dampens innovation by unduly insulating “bad” patents from invalidity challenges. They point to the high invali dation rate as evidence that the PTO grants patent protec tion to too many undeserving “inventions.” They claim that inter partes reexamination proceedings before the PTO cannot fix the problem, as some grounds for invalida tion (like the on-sale bar at issue here) cannot be raised in such proceedings. They question the deference that the PTO’s expert determinations warrant, in light of the agency’s resources and procedures, which they deem in adequate. And, they insist that the heightened standard of proof essentially causes juries to abdicate their role in Cite as: 4 U. S. (2011) 19 Opinion of the Court reviewing invalidity claims raised in infringement actions. For their part, i4i and its amici, including the United States, contend that the heightened standard of proof properly limits the circumstances in which a lay jury overturns the considered judgment of an expert agency. They claim that the heightened standard of proof is an essential component of the patent “bargain,” see Bonito Boats, 150–151 (1989), and the incentives for inventors to dis close their innovations to the public in exchange for patent protection. They disagree with the notion that the patent issuance rate is above the optimal level. They explain that limits on the reexamination process reflect a judgment by Congress as to the appropriate degree of interference with patentees’ reliance interests. Finally, they maintain that juries that are properly instructed as to the application of the clear-and-convincing-evidence standard can, and often do, find an invalidity defense established. We find ourselves in no position to judge the compara tive force of these policy arguments. For nearly 30 years, the Federal Circuit has interpreted as we do today. During this period, Congress has often amended see, Pub. L. 104–141, ; Pub. L. 98–4, ; not once, so far as we (and Microsoft) are aware, has it even considered a proposal to lower the standard of proof, see Tr. Oral Arg. 10. Moreover, Con gress has amended the patent laws to account for concerns about “bad” patents, including by expanding the reexami nation process to provide for inter partes proceedings. See Optional Inter Partes Reexamination Procedure Act of 1999, 113 Stat. 1501A–7, codified at 35 U.S. C. et seq. Through it all, the evidentiary standard adopted in has gone untouched. Indeed, Congress has left the Federal Circuit’s interpretation of in place despite ongoing criticism, both from within the Federal Govern 20 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP Opinion of the Court ment and without.11 Congress specified the applicable standard of proof in 12 when it codified the common-law presumption of patent validity. Since then, it has allowed the Federal Circuit’s correct interpretation of to stand. Any re calibration of the standard of proof remains in its hands. * * * For the reasons stated, the judgment of the Court of Appeals for the Federal Circuit is Affirmed. THE CHIEF JUSTICE took no part in the consideration or decision of this case. —————— 11 See, FTC, To Promote Innovation: The Proper Balance of Com petition and Patent Law and Policy 28 (Oct. 2003), http://www.ftc.gov/ os/2003/10/innovationrpt.pdf (recommending that “legislation be enacted specifying that challenges to the validity of a patent be deter mined based on a preponderance of the evidence”); Alsup, Memo to Congress: A District Judge’s Proposal for Patent Reform, 24 Berkeley Tech. L. J. 1647, 1655 (2009) ; Lichtman & Lemley, Rethinking Patent Law’s Presumption of Validity, (proposing “statutory amendment or judicial reinterpretation of the existing statute and its associated case law” to lower the standard of proof to a preponderance of the evidence (footnote omitted)). Cite as: 4 U. S. (2011) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES No. 10–290 MICROSOFT CORPORATION, PETITIONER v. i4i LIMITED PARTNERSHIP ET AL.

Justice Breyer

concurring

Microsoft Corp. v. i4i Ltd. Partnership

2011-06-09

https://www.courtlistener.com/opinion/218455/microsoft-corp-v-i4i-ltd-partnership/

https://www.courtlistener.com/api/rest/v3/clusters/218455/

2010-057

I join the Court’s opinion in full. I write separately be cause, given the technical but important nature of the invalidity question, I believe it worth emphasizing that in this area of law as in others the evidentiary standard of proof applies to questions of fact and not to questions of law. See, e.g., Addington v. Texas, 441 U.S. 418, 423 (1979). Thus a factfinder must use the “clear and convinc ing” standard where there are disputes about, say, when a product was first sold or whether a prior art reference had been published. Many claims of invalidity rest, however, not upon fac tual disputes, but upon how the law applies to facts as given. Do the given facts show that the product was pre viously “in public use”? 35 U.S. C. §102(b). Do they show that the invention was “nove[l]” and that it was “non obvious”? §§102, 103. Do they show that the patent ap plicant described his claims properly? §112. Where the ultimate question of patent validity turns on the correct answer to legal questions—what these subsidiary legal standards mean or how they apply to the facts as given— today’s strict standard of proof has no application. See, e.g., Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17 (1966); Minnesota Mining & Mfg. Co. v. Chemque, Inc., 2 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP BREYER, J., concurring 303 F.3d 1294, 1301 (CA Fed. 2002); Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296, 1305 (CA Fed. 2010); cf. Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996). Courts can help to keep the application of today’s “clear and convincing” standard within its proper legal bounds by separating factual and legal aspects of an invalidity claim, say, by using instructions based on case-specific circumstances that help the jury make the distinction or by using interrogatories and special verdicts to make clear which specific factual findings underlie the jury’s conclu sions. See Fed. Rules Civ. Proc. 49 and 51. By isolating the facts (determined with help of the “clear and convinc ing” standard), courts can thereby assure the proper in terpretation or application of the correct legal standard (without use of the “clear and convincing” standard). By preventing the “clear and convincing” standard from roam ing outside its fact-related reservation, courts can increase the likelihood that discoveries or inventions will not re ceive legal protection where none is due. Cite as: 564 U. S. ____ (2011) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 10–290 _________________ MICROSOFT CORPORATION, PETITIONER v. i4i LIMITED PARTNERSHIP ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 9, 2011] JUSTICE THOMAS, concurring in the judgment. I am not persuaded that Congress codified a standard of proof when it stated in the Patent Act of 1952 that “[a] patent shall be presumed valid.” 35 U.S. C. §282; see ante, at 7. “[W]here Congress borrows terms of art,” this Court presumes that Congress “knows and adopts the cluster of ideas that were attached to each borrowed word . . . and the meaning its use will convey to the judicial mind.” Morissette v. United States, 342 U.S. 246, 263 (1952). But I do not think that the words “[a] patent shall be presumed valid” so clearly conveyed a particular stan dard of proof to the judicial mind in 1952 as to constitute a term of art. See, e.g., ante, at 12, n. 7 (“[S]ome lower courts doubted [the presumption’s] wisdom or even pre tended it did not exist”); Philip A. Hunt Co. v. Mallinck rodt Chemical Works, 72 F. Supp. 865, 869 (EDNY 1947) (“[T]he impact upon the presumption of many late deci sions seems to have rendered it as attenuated . . . as the shadow of a wraith”); Myers v. Beall Pipe & Tank Corp., 90 F. Supp. 265, 268 (D Ore. 1948) (“[T]he presumption of [patent] validity . . . is treated by the appellate courts as evanescent as a cloud”); American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1359 (CA Fed. 1984) (“[I]n 1952, the case law was far from consistent—even contradictory—about the presumption”); cf. Bruesewitz v. 2 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP THOMAS, J., concurring in judgment Wyeth LLC, 562 U. S. ___, ___–___ (2011) (slip op., at 9– 10) (Congress’ use of a word that is similar to a term of art does not codify the term of art). Therefore, I would not conclude that Congress’ use of that phrase codified a stan dard of proof. Nevertheless, I reach the same outcome as the Court. Because §282 is silent as to the standard of proof, it did not alter the common-law rule. See ante, at 6 (“[§282] includes no express articulation of the standard of proof”). For that reason, I agree with the Court that the height ened standard of proof set forth in Radio Corp. of Amer- ica v. Radio Engineering Laboratories, Inc., 293 U.S. 1 (1934)—which has never been overruled by this Court or modified by Congress—applies

I join the Court’s opinion in full. I write separately be cause, given the technical but important nature of the invalidity question, I believe it worth emphasizing that in this area of law as in others the evidentiary standard of proof applies to questions of fact and not to questions of law. See, e.g., (1979). Thus a factfinder must use the “clear and convinc ing” standard where there are disputes about, say, when a product was first sold or whether a prior art reference had been published. Many claims of invalidity rest, however, not upon fac tual disputes, but upon how the law applies to facts as given. Do the given facts show that the product was pre viously “in public use”? 35 U.S. C. Do they show that the invention was “nove[l]” and that it was “non obvious”? 103. Do they show that the patent ap plicant described his claims properly? Where the ultimate question of patent validity turns on the correct answer to legal questions—what these subsidiary legal standards mean or how they apply to the facts as given— today’s strict standard of proof has no application. See, e.g., 17 (1966); Minnesota Mining & Mfg. Co. v. Chemque, Inc., 2 MICROSOFT ; Transocean Offshore Deepwater Drilling, ; cf. Markman v. Westview Instruments, Inc., Courts can help to keep the application of today’s “clear and convincing” standard within its proper legal bounds by separating factual and legal aspects of an invalidity claim, say, by using instructions based on case-specific circumstances that help the jury make the distinction or by using interrogatories and special verdicts to make clear which specific factual findings underlie the jury’s conclu sions. See Fed. Rules Civ. Proc. 49 and 51. By isolating the facts (determined with help of the “clear and convinc ing” standard), courts can thereby assure the proper in terpretation or application of the correct legal standard (without use of the “clear and convincing” standard). By preventing the “clear and convincing” standard from roam ing outside its fact-related reservation, courts can increase the likelihood that discoveries or inventions will not re ceive legal protection where none is due. Cite as: 564 U. S. (2011) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 10–290 MICROSOFT CORPORATION, PETITIONER v. i4i LIMITED PARTNERSHIP ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 9, 2011] JUSTICE THOMAS, concurring in the judgment. I am not persuaded that Congress codified a standard of proof when it stated in the Patent Act of 1952 that “[a] patent shall be presumed valid.” 35 U.S. C. see ante, at 7. “[W]here Congress borrows terms of art,” this Court presumes that Congress “knows and adopts the cluster of ideas that were attached to each borrowed word and the meaning its use will convey to the judicial mind.” (1952). But I do not think that the words “[a] patent shall be presumed valid” so clearly conveyed a particular stan dard of proof to the judicial mind in 1952 as to constitute a term of art. See, e.g., ante, at 12, n. 7 (“[S]ome lower courts doubted [the presumption’s] wisdom or even pre tended it did not exist”); Philip A. Hunt (“[T]he impact upon the presumption of many late deci sions seems to have rendered it as attenuated as the shadow of a wraith”); Myers v. Beall Pipe & Tank Corp., 90 F. Supp. 265, 268 (D Ore. 1948) (“[T]he presumption of [patent] validity is treated by the appellate courts as evanescent as a cloud”); American Hoist & Derrick Co. v. Sowa & Sons, Inc., (“[I]n 1952, the case law was far from consistent—even contradictory—about the presumption”); cf. Bruesewitz v. 2 MICROSOFT CORP. v. i4i LTD. PARTNERSHIP THOMAS, J., concurring in judgment Wyeth LLC, 562 U. S. – (2011) (slip op., at 9– 10) (Congress’ use of a word that is similar to a term of art does not codify the term of art). Therefore, I would not conclude that Congress’ use of that phrase codified a stan dard of proof. Nevertheless, I reach the same outcome as the Court. Because is silent as to the standard of proof, it did not alter the common-law rule. See ante, at 6 (“[] includes no express articulation of the standard of proof”). For that reason, I agree with the Court that the height ened standard of proof set forth in Radio Corp. of Amer- (1934)—which has never been overruled by this Court or modified by Congress—applies

Justice Ginsburg

majority

Lopez v. Davis

2001-01-10

https://www.courtlistener.com/opinion/118400/lopez-v-davis/

https://www.courtlistener.com/api/rest/v3/clusters/118400/

2000-014

Congress has provided, in 18 U.S. C. § 3621(e)(2)(B), that the Bureau of Prisons (Bureau or BOP) may reduce by up to one year the prison term of an inmate convicted of a nonviolent felony, if the prisoner successfully completes a substance abuse program. The Bureau's implementing regulation *233 categorically denies early release to prisoners whose current offense is a felony attended by "the carrying, possession, or use of a firearm." 28 CFR § 550.58(a)(1)(vi)(B) (2000). The validity of the Bureau's regulation is the question presented in this case. We hold, in accord with the Court of Appeals for the Eighth Circuit, that the regulation is a permissible exercise of the Bureau's discretion under 18 U.S. C. § 3621(e)(2)(B). I A Title 18 U.S. C. § 3621 governs the imprisonment of persons convicted of federal crimes. In 1990, Congress amended the statute to provide that "[t]he Bureau shall . . . make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." Pub. L. 101-647, § 2903, 104 Stat. 4913. Four years later, Congress again amended § 3621, this time to provide incentives for prisoner participation in BOP drug treatment programs. The incentive provision at issue reads: "The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve." Pub. L. 103-322, § 32001, 108 Stat. 1897 (codified at 18 U.S. C. § 3621(e)(2)(B)). In 1995, the Bureau published a rule to implement the early release incentive. 60 Fed. Reg. 27692-27695; 28 CFR § 550.58. Because the statute explicitly confined the incentive to prisoners convicted of "nonviolent offense[s]," 18 U.S. C. § 3621(e)(2)(B), the BOP ranked ineligible for early release all inmates currently incarcerated for "crime[s] of violence," 60 Fed. Reg. 27692. As explained in the Bureau's program statement, the BOP defined "crimes of violence" to include a drug trafficking conviction under 21 U.S. C. § 841, *234 if the offender received a two-level sentence enhancement under United States Sentencing Commission, Guidelines Manual (USSG) § 2D1.1(b)(1) (Nov. 2000), for possessing a dangerous weapon during commission of the drug offense. Bureau of Prisons Program Statement No. 5162.02, § 9 (July 24, 1995), reprinted in App. to Brief for Petitioner 17-18.[1] "[E]xercising [its] discretion in reducing a sentence," the Bureau also excluded from early release eligibility inmates who had a prior conviction "for homicide, forcible rape, robbery, or aggravated assault." 60 Fed. Reg. 27692 (codified at 28 CFR § 550.58 (1995)). The Courts of Appeals divided over the validity of the Bureau's definition of crimes of violence to include drug offenses that involved possession of a firearm. A majority of Circuits, including the Eighth, held that § 3621(e)(2)(B) required the Bureau to look only to the offense of conviction (drug trafficking), and not to sentencing factors (firearm possession), in determining whether an offender was convicted of a "nonviolent offense," and was therefore eligible under the statute for the early release incentive. Martin v. Gerlinski, 133 F.3d 1076, 1079 (CA8 1998); see also Fristoe v. Thompson, 144 F.3d 627, 631 (CA10 1998); Byrd v. Hasty, 142 F.3d 1395, 1398 (CA11 1998); Roussos v. Menifee, 122 F.3d 159, 164 (CA3 1997); Downey v. Crabtree, 100 F.3d 662, 668 (CA9 1996). The Fourth and Fifth Circuits, however, upheld the Bureau's classification of drug offenses attended by firearm possession as violent crimes. Pelissero v. Thompson, 170 *235 F. 3d 442, 447 (CA4 1999); Venegas v. Henman, 126 F.3d 760, 763 (CA5 1997). This split among the Circuits prompted the Bureau in 1997 to publish the regulation now before the Court. See 62 Fed. Reg. 53690-53691. Like the 1995 rule, the current regulation excludes from early release eligibility offenders who possessed a firearm in connection with their offenses. In contrast to the earlier rule, however, the 1997 regulation does not order this exclusion by defining the statutory term "prisoner convicted of a nonviolent offense" or the cognate term "crimes of violence." Instead, the current regulation relies upon "the discretion allotted to the Director of the Bureau of Prisons in granting a sentence reduction to exclude [enumerated categories of] inmates." Id., at 53690. The regulation, designed to achieve consistent administration of the incentive, now provides: "(a) Additional early release criteria. (1) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release: . . . . . "(iv) Inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses; . . . . . "(vi) Inmates whose current offense is a felony: . . . . . "(B) That involved the carrying, possession, or use of a firearm or other dangerous weapon . . . ." 28 CFR § 550.58(a) (2000). In sum, the 1995 rule defined the statutory term "prisoner convicted of a nonviolent offense" to exclude categorically an inmate who possessed a firearm in connection with his offense. The current regulation categorically excludes such an inmate, not because § 3621(e)(2)(B) so mandates, but pursuant *236 to the Bureau's asserted discretion to prescribe additional early release criteria. Drug traffickers who possess firearms when they engage in crimes are no longer characterized as "violent" offenders within the meaning of the statute. But they are bracketed, for sentence reduction purposes, with persons currently incarcerated for "nonviolent offense[s]" who in the past committed crimes qualifying as violent. The preconviction conduct of both armed offenders and certain redicivists, in the Bureau's view, "suggest[s] that they pose a particular risk to the public." Brief for Respondents 30. B In 1997, petitioner Christopher A. Lopez was convicted of possession with intent to distribute methamphetamine, in violation of 21 U.S. C. § 841. Upon finding that Lopez possessed a firearm in connection with his offense, the District Court enhanced his sentence by two levels pursuant to USSG § 2D1.1(b)(1). Lopez is currently scheduled to be released from prison in June 2002. While incarcerated, Lopez requested substance abuse treatment. The Bureau found him qualified for its residential drug abuse program,[2] but categorically ineligible, under 28 CFR § 550.58(a)(1)(vi), for early release. App. 3-7. When notified that he would not be a candidate for early release, Lopez challenged the BOP's determination by filing a petition for a writ of habeas corpus, under 28 U.S. C. § 2241, in the United States District Court for the District of South Dakota. The District Court granted the petition. In that court's view, the Bureau's 1997 regulation did not correct the infirmity the Eighth Circuit saw in the 1995 rule. See App. 17-18, and n. 4 (citing Martin, 133 F. 3d, at 1079). "[I]t is true," the District Court recognized, "that the BOP *237 may exercise a great deal of discretion in determining who among the eligible nonviolent offenders may be released." App. 17. But, the District Court held, the BOP may not categorically count out, "based upon sentencing factors or weapon possession," inmates whose underlying conviction was for a nonviolent crime. Id., at 18. Accordingly, the District Court ordered the BOP "to reconsider Lopez's eligibility for early release." Id., at 19. The Eighth Circuit reversed. Bellis v.Davis, 186 F.3d 1092 (1999). Section 3621(e)(2)(B), the Court of Appeals observed, "states only that the prison term of an inmate convicted of a nonviolent offense `may be reduced by the Bureau of Prisons.' " Id., at 1094 (quoting 18 U.S. C. § 3621(e)(2)(B)). This discretionary formulation, the Eighth Circuit reasoned, allows the Bureau to devise a regime based on criteria that can be uniformly applied. The statute grants no entitlement to any inmate or class of inmates, the Court of Appeals noted, and it does not instruct the Bureau to make "individual, rather than categorical, assessments of eligibility for inmates convicted of nonviolent offenses." 186 F.3d, at 1094. The court further reasoned that, to the extent Congress left a gap in § 3621(e)(2)(B) for the Bureau to fill, deference is owed the BOP's interpretation under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-845, 866 (1984), so long as the interpretation is a permissible construction of the statute. 186 F.3d, at 1095. The Bureau had elected to deny early release to certain categories of prisoners, notably recidivists and firearms carriers, whose "conduct indicates that they pose a serious risk to public safety." Ibid. That decision, the Court of Appeals concluded, "represents a manifestly permissible construction of the statute and an appropriate exercise of the BOP's discretion." Ibid. The Eighth Circuit next explained why its earlier decision in Martin did not control this case, which trains on the BOP's 1997 regulation: Martin addressed only the Bureau's 1995 *238 attempt to interpret the statutory term "nonviolent offense"; the court in that case did not address "whether the BOP may, as an exercise of its discretion, . . . look to sentencing factors in deciding which individuals among statutorily eligible inmates are appropriate candidates for early release." 186 F.3d, at 1095. Facing that issue, the Court of Appeals held such an exercise of discretion proper. Ibid. The Courts of Appeals have again divided, now over the permissibility of the Bureau's current (1997) regulation. The Tenth and Eleventh Circuits, in line with their prior decisions invalidating the 1995 rule, have concluded that § 3621(e)(2)(B) permits no categorical exclusions of nonviolent offenders based on sentence enhancements. Ward v. Booker, 202 F.3d 1249, 1256-1257 (CA10 2000); Kilpatrick v. Houston, 197 F.3d 1134, 1135 (CA11 1999). The Ninth Circuit, on the other hand, has agreed with the Eighth Circuit that precedent invalidating the 1995 rule does not control and that, in 1997, the BOP permissibly exercised its discretion under § 3621(e)(2)(B) when it categorically excluded from early release consideration inmates who possessed a firearm in connection with their nonviolent offenses. Bowen v. Hood, 202 F.3d 1211, 1218-1220 (2000). We granted certiorari to resolve this conflict, 529 U.S. 1086 (2000), and now affirm the judgment of the Eighth Circuit. II The statute provides: "The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons . . . ." 18 U.S. C. § 3621(e)(2)(B). The measure thus categorically denies early release eligibility to inmates convicted of violent offenses. The question we address is whether the Bureau has discretion to delineate, as an additional category of ineligible inmates, those whose current offense is a felony involving a firearm. 28 CFR § 550.58(a)(1)(vi)(B) (2000). *239 Lopez urges that the statute is unambiguous. He says that, by identifying a class of inmates ineligible for sentence reductions under § 3621(e)(2)(B), i. e., those convicted of a violent offense, Congress has barred the Bureau from identifying further categories of ineligible inmates. "If Congress wanted the BOP to reduce the categories of inmates eligible for the early release incentive (beyond the one identified by Congress), Congress would have specifically placed this grant of authority in the language of the statute." Brief for Petitioner 23. As to the statutory instruction that the Bureau "may" reduce sentences, Lopez initially suggests it is merely a grant of authority to the BOP to reduce a sentence that, prior to the enactment of § 3621(e)(2)(B), could not be reduced for successful completion of drug treatment: "The power granted was to give reductions not the power to decide who was eligible to receive reductions." Id., at 21. He alternately contends that the Bureau may take into account only "post-conviction conduct," not "pre-conviction conduct." Reply Brief 4-5. Acting on a case-by-case basis, Lopez asserts, the Bureau may "deny early release to those inmates [who] are statutorily eligible, but who do not deserve early release based on their conduct while in prison." Id., at 5. Under this reading, the Bureau may exercise discretion in denying early release, but only on an individual basis, taking account solely of postconviction conduct. In the Bureau's view, § 3621(e)(2)(B) establishes two prerequisites for sentence reduction: conviction of a nonviolent offense and successful completion of drug treatment. Brief for Respondents 18. If those prerequisites are met, the Bureau "may," but also may not, grant early release. The BOP opposes Lopez's argument that Congress barred the Bureau from imposing limitations categorically or on the basis of preconviction conduct. According to the Bureau, Congress simply "did not address how the Bureau should exercise its discretion within the class of inmates who satisfy the statutory prerequisites for early release." Id., at 23. Because *240 Congress left the question unaddressed, the Bureau maintains, the agency may exclude inmates either categorically or on a case-by-case basis, subject of course to its obligation to interpret the statute reasonably, see Chevron, 467 U. S., at 844, in a manner that is not arbitrary or capricious, see 5 U.S. C. § 706(2)(A). In this instance, the Bureau urges, it has acted reasonably: Its denial of early release to all inmates who possessed a firearm in connection with their current offense rationally reflects the view that such inmates displayed a readiness to endanger another's life; accordingly, in the interest of public safety, they should not be released months in advance of completing their sentences.[3] We agree with the Bureau's position. Preliminarily, we note conspicuous anomalies in Lopez's construction. If § 3621(e)(2)(B) functions not as a grant of discretion to determine early release eligibility, but both as an authorization and a command to reduce sentences, then Congress' use of the word "may," rather than "shall," has no significance. And if the BOP does have discretion to deny early release to certain inmates, but only based on individualized assessments of postconviction conduct, then the agency cannot categorically deny early release even to recidivists with prior (perhaps multiple) convictions for "homicide, forcible rape . . . , or child sexual abuse offenses." 28 CFR § 550.58(a)(1)(iv) (2000). For that provision, as much as the exclusion of inmates imprisoned for offenses involving a firearm, see supra, at 235, entails no individualized determination based on postconviction conduct. Furthermore, *241 Lopez's position would confine the BOP's discretion under § 3621(e)(2)(B) to consideration of factors of the kind the Bureau already may consider in granting credit for "satisfactory behavior." See 18 U.S. C. § 3624(b)(1) ("a prisoner [serving a term of more than one year and less than life] may receive credit toward the service of the prisoner's sentence . . . subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with such institutional disciplinary regulations"). We turn now to the Bureau's reading of the statutory text, which instructs that the agency "may" reduce the sentence of a nonviolent offender who has successfully completed a drug treatment program. Congress' use of the permissive "may" in § 3621(e)(2)(B) contrasts with the legislators' use of a mandatory "shall" in the very same section. Elsewhere in § 3621, Congress used "shall" to impose discretionless obligations, including the obligation to provide drug treatment when funds are available. See 18 U.S. C. § 3621(e)(1) ("Bureau of Prisons shall, subject to the availability of appropriations, provide residential substance abuse treatment (and make arrangements for appropriate aftercare)"); see also, e. g., § 3621(b) ("The Bureau shall designate the place of the prisoner's imprisonment. . . . In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status."). Sensibly read, the grant of discretion in § 3621(e)(2)(B) to decide whether to reduce a sentence parallels the grant of discretion in § 3621(e)(2)(A) to retain a prisoner who successfully completes drug treatment "under such [custodial] conditions as the Bureau deems appropriate." § 3621(e)(2)(A). When an eligible prisoner successfully completes drug treatment, the Bureau thus has the authority, but not the duty, both to alter the prisoner's conditions of confinement and to reduce his term of imprisonment. The constraints Lopez urges—requiring the BOP to make individualized determinations based only on postconviction *242 conduct—are nowhere to be found in § 3621(e)(2)(B). Beyond instructing that the Bureau has discretion to reduce the period of imprisonment for a nonviolent offender who successfully completes drug treatment, Congress has not identified any further circumstance in which the Bureau either must grant the reduction, or is forbidden to do so. In this familiar situation, where Congress has enacted a law that does not answer "the precise question at issue," all we must decide is whether the Bureau, the agency empowered to administer the early release program, has filled the statutory gap "in a way that is reasonable in light of the legislature's revealed design." Nations bank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995) (citing Chevron, 467 U. S., at 842); see also Reno v. Koray, 515 U.S. 50, 61 (1995) (deferring to BOP's interpretation of statute). We think the agency's interpretation is reasonable both in taking account of preconviction conduct and in making categorical exclusions. First, as the dissent but not Lopez recognizes, see post, at 248, the Bureau need not blind itself to preconviction conduct that the agency reasonably views as jeopardizing life and limb. By denying eligibility to violent offenders, the statute manifests congressional concern for preconviction behavior—and for the very conduct leading to conviction. The Bureau may reasonably attend to these factors as well. Its regulation in this regard is kin to the Attorney General's order upheld in INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996). That case involved a statute authorizing the Attorney General to waive deportation of aliens deportable for entry fraud. The Attorney General had refused to waive deportation for one alien because of "acts of fraud . . . in connection with his entry." Id., at 27. The alien argued that because the statute made aliens who had committed entry fraud eligible for waiver, the Attorney General was precluded from taking such conduct into account "at all" in deciding whether to grant relief. Id., at 30. We rejected this view, stating *243 that the statute "establishes only the alien's eligibility for the waiver. Such eligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace." Id., at 31. Similarly in this case, the statute's restriction of early release eligibility to nonviolent offenders does not cut short the considerations that may guide the Bureau. Just as the Attorney General permissibly considered aspects of entry fraud, even though entry fraud was a criterion of statutory eligibility, so the Bureau may consider aspects of the conduct of conviction, even though the conviction is a criterion of statutory eligibility.[4] We also reject Lopez's argument, echoed in part by the dissent, post, at 248-249, that the agency must not make categorical exclusions, but may rely only on case-by-case assessments.[5] "[E]ven if a statutory scheme requires individualized *244 determinations," which this scheme does not, "the decision maker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority." American Hospital Assn. v. NLRB, 499 U.S. 606, 612 (1991); accord, Heckler v. Campbell, 461 U.S. 458, 467 (1983). The approach pressed by Lopez—case-by-case decision making in thousands of cases each year, see supra, at 243, n. 4—could invite favoritism, disunity, and inconsistency. The Bureau is not required continually to revisit "issues that may be established fairly and efficiently in a single rulemaking proceeding." Heckler, 461 U. S., at 467.[6] Having decided that the Bureau may categorically exclude prisoners based on their preconviction conduct, we further hold that the regulation excluding Lopez is permissible. The Bureau reasonably concluded that an inmate's prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to lifeendangering violence and therefore appropriately determines the early release decision.[7] *245 For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is Affirmed.

Congress has provided, in 18 U.S. C. 3621(e)(2)(B), that the Bureau of Prisons (Bureau or BOP) may reduce by up to one year the prison term of an inmate convicted of a nonviolent felony, if the prisoner successfully completes a substance abuse program. The Bureau's implementing regulation *233 categorically denies early release to prisoners whose current offense is a felony attended by "the carrying, possession, or use of a firearm." 28 CFR 550.58(a)(1)(vi)(B) The validity of the Bureau's regulation is the question presented in this case. We hold, in accord with the Court of Appeals for the Eighth Circuit, that the regulation is a permissible exercise of the Bureau's discretion under 18 U.S. C. 3621(e)(2)(B). I A Title 18 U.S. C. 3621 governs the imprisonment of persons convicted of federal crimes. In 1990, Congress amended the statute to provide that "[t]he Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse." Pub. L. 101-647, 2903, Four years later, Congress again amended 3621, this time to provide incentives for prisoner participation in BOP drug treatment programs. The incentive provision at issue reads: "The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve." Pub. L. 103-322, 32001, (codified U.S. C. 3621(e)(2)(B)). In 1995, the Bureau published a rule to implement the early release incentive. -27695; 28 CFR 550.58. Because the statute explicitly confined the incentive to prisoners convicted of "nonviolent offense[s]," 18 U.S. C. 3621(e)(2)(B), the BOP ranked ineligible for early release all inmates currently incarcerated for "crime[s] of violence," As explained in the Bureau's program statement, the BOP defined "crimes of violence" to include a drug trafficking conviction under 21 U.S. C. 841, *234 if the offender received a two-level sentence enhancement under United States Sentencing Commission, Guidelines Manual (USSG) 2D1.1(b)(1) for possessing a dangerous weapon during commission of the drug offense. Bureau of Prisons Program Statement No. 5162.02, 9 reprinted in App. to Brief for Petitioner 17-18.[1] "[E]xercising [its] discretion in reducing a sentence," the Bureau also excluded from early release eligibility inmates who had a prior conviction "for homicide, forcible rape, robbery, or aggravated assault." ). The Courts of Appeals divided over the validity of the Bureau's definition of crimes of violence to include drug offenses that involved possession of a firearm. A majority of Circuits, including the Eighth, held that 3621(e)(2)(B) required the Bureau to look only to the offense of conviction (drug trafficking), and not to sentencing factors (firearm possession), in determining whether an offender was convicted of a "nonviolent offense," and was therefore eligible under the statute for the early release incentive. ; see also ; ; ; The Fourth and Fifth Circuits, however, upheld the Bureau's classification of drug offenses attended by firearm possession as violent crimes. ; This split among the Circuits prompted the Bureau in to publish the regulation now before the Court. See -53691. Like the 1995 rule, the current regulation excludes from early release eligibility offenders who possessed a firearm in connection with their offenses. In contrast to the earlier rule, however, the regulation does not order this exclusion by defining the statutory term "prisoner convicted of a nonviolent offense" or the cognate term "crimes of violence." Instead, the current regulation relies upon "the discretion allotted to the Director of the Bureau of Prisons in granting a sentence reduction to exclude [enumerated categories of] inmates." The regulation, designed to achieve consistent administration of the incentive, now provides: "(a) Additional early release criteria. (1) As an exercise of the discretion vested in the Director of the Federal Bureau of Prisons, the following categories of inmates are not eligible for early release: "(iv) Inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses; "(vi) Inmates whose current offense is a felony: "(B) That involved the carrying, possession, or use of a firearm or other dangerous weapon" 28 CFR 550.58(a) In sum, the 1995 rule defined the statutory term "prisoner convicted of a nonviolent offense" to exclude categorically an inmate who possessed a firearm in connection with his offense. The current regulation categorically excludes such an inmate, not because 3621(e)(2)(B) so mandates, but pursuant *236 to the Bureau's asserted discretion to prescribe additional early release criteria. Drug traffickers who possess firearms when they engage in crimes are no longer characterized as "violent" offenders within the meaning of the But they are bracketed, for sentence reduction purposes, with persons currently incarcerated for "nonviolent offense[s]" who in the past committed crimes qualifying as violent. The preconviction conduct of both armed offenders and certain redicivists, in the Bureau's view, "suggest[s] that they pose a particular risk to the public." Brief for Respondents 30. B In petitioner Christopher A. Lopez was convicted of possession with intent to distribute methamphetamine, in violation of 21 U.S. C. 841. Upon finding that Lopez possessed a firearm in connection with his offense, the District Court enhanced his sentence by two levels pursuant to USSG 2D1.1(b)(1). Lopez is currently scheduled to be released from prison in June 2002. While incarcerated, Lopez requested substance abuse treatment. The Bureau found him qualified for its residential drug abuse program,[2] but categorically ineligible, under 28 CFR 550.58(a)(1)(vi), for early release. App. 3-7. When notified that he would not be a candidate for early release, Lopez challenged the BOP's determination by filing a petition for a writ of habeas corpus, under 28 U.S. C. 2241, in the United States District Court for the District of South Dakota. The District Court granted the petition. In that court's view, the Bureau's regulation did not correct the infirmity the Eighth Circuit saw in the 1995 rule. See App. 17-18, and n. 4 (citing 133 F. 3d, at ). "[I]t is true," the District Court recognized, "that the BOP *237 may exercise a great deal of discretion in determining who among the eligible nonviolent offenders may be released." App. 17. But, the District Court held, the BOP may not categorically count out, "based upon sentencing factors or weapon possession," inmates whose underlying conviction was for a nonviolent crime. Accordingly, the District Court ordered the BOP "to reconsider Lopez's eligibility for early release." The Eighth Circuit reversed. Bellis v.Davis, Section 3621(e)(2)(B), the Court of Appeals observed, "states only that the prison term of an inmate convicted of a nonviolent offense `may be reduced by the Bureau of Prisons.' " (quoting 18 U.S. C. 3621(e)(2)(B)). This discretionary formulation, the Eighth Circuit reasoned, allows the Bureau to devise a regime based on criteria that can be uniformly applied. The statute grants no entitlement to any inmate or class of inmates, the Court of Appeals noted, and it does not instruct the Bureau to make "individual, rather than categorical, assessments of eligibility for inmates convicted of nonviolent offenses." 186 F.3d, The court further reasoned that, to the extent Congress left a gap in 3621(e)(2)(B) for the Bureau to fill, deference is owed the BOP's interpretation under U. S. A. so long as the interpretation is a permissible construction of the The Bureau had elected to deny early release to certain categories of prisoners, notably recidivists and firearms carriers, whose "conduct indicates that they pose a serious risk to public safety." That decision, the Court of Appeals concluded, "represents a manifestly permissible construction of the statute and an appropriate exercise of the BOP's discretion." The Eighth Circuit next explained why its earlier decision in did not control this case, which trains on the BOP's regulation: addressed only the Bureau's 1995 *238 attempt to interpret the statutory term "nonviolent offense"; the court in that case did not address "whether the BOP may, as an exercise of its discretion, look to sentencing factors in deciding which individuals among statutorily eligible inmates are appropriate candidates for early release." Facing that issue, the Court of Appeals held such an exercise of discretion proper. The Courts of Appeals have again divided, now over the permissibility of the Bureau's current regulation. The Tenth and Eleventh Circuits, in line with their prior decisions invalidating the 1995 rule, have concluded that 3621(e)(2)(B) permits no categorical exclusions of nonviolent offenders based on sentence enhancements. ; The Ninth Circuit, on the other hand, has agreed with the Eighth Circuit that precedent invalidating the 1995 rule does not control and that, in the BOP permissibly exercised its discretion under 3621(e)(2)(B) when it categorically excluded from early release consideration inmates who possessed a firearm in connection with their nonviolent offenses. We granted certiorari to resolve this conflict, and now affirm the judgment of the Eighth Circuit. II The statute provides: "The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons" 18 U.S. C. 3621(e)(2)(B). The measure thus categorically denies early release eligibility to inmates convicted of violent offenses. The question we address is whether the Bureau has discretion to delineate, as an additional category of ineligible inmates, those whose current offense is a felony involving a firearm. 28 CFR 550.58(a)(1)(vi)(B) *239 Lopez urges that the statute is unambiguous. He says that, by identifying a class of inmates ineligible for sentence reductions under 3621(e)(2)(B), i. e., those convicted of a violent offense, Congress has barred the Bureau from identifying further categories of ineligible inmates. "If Congress wanted the BOP to reduce the categories of inmates eligible for the early release incentive (beyond the one identified by Congress), Congress would have specifically placed this grant of authority in the language of the " Brief for Petitioner 23. As to the statutory instruction that the Bureau "may" reduce sentences, Lopez initially suggests it is merely a grant of authority to the BOP to reduce a sentence that, prior to the enactment of 3621(e)(2)(B), could not be reduced for successful completion of drug treatment: "The power granted was to give reductions not the power to decide who was eligible to receive reductions." He alternately contends that the Bureau may take into account only "post-conviction conduct," not "pre-conviction conduct." Reply Brief 4-5. Acting on a case-by-case basis, Lopez asserts, the Bureau may "deny early release to those inmates [who] are statutorily eligible, but who do not deserve early release based on their conduct while in prison." Under this reading, the Bureau may exercise discretion in denying early release, but only on an individual basis, taking account solely of postconviction conduct. In the Bureau's view, 3621(e)(2)(B) establishes two prerequisites for sentence reduction: conviction of a nonviolent offense and successful completion of drug treatment. Brief for Respondents 18. If those prerequisites are met, the Bureau "may," but also may not, grant early release. The BOP opposes Lopez's argument that Congress barred the Bureau from imposing limitations categorically or on the basis of preconviction conduct. According to the Bureau, Congress simply "did not address how the Bureau should exercise its discretion within the class of inmates who satisfy the statutory prerequisites for early release." Because *240 Congress left the question unaddressed, the Bureau maintains, the agency may exclude inmates either categorically or on a case-by-case basis, subject of course to its obligation to interpret the statute reasonably, see in a manner that is not arbitrary or capricious, see 5 U.S. C. 706(2)(A). In this instance, the Bureau urges, it has acted reasonably: Its denial of early release to all inmates who possessed a firearm in connection with their current offense rationally reflects the view that such inmates displayed a readiness to endanger another's life; accordingly, in the interest of public safety, they should not be released months in advance of completing their sentences.[3] We agree with the Bureau's position. Preliminarily, we note conspicuous anomalies in Lopez's construction. If 3621(e)(2)(B) functions not as a grant of discretion to determine early release eligibility, but both as an authorization and a command to reduce sentences, then Congress' use of the word "may," rather than "shall," has no significance. And if the BOP does have discretion to deny early release to certain inmates, but only based on individualized assessments of postconviction conduct, then the agency cannot categorically deny early release even to recidivists with prior (perhaps multiple) convictions for "homicide, forcible rape or child sexual abuse offenses." 28 CFR 550.58(a)(1)(iv) For that provision, as much as the exclusion of inmates imprisoned for offenses involving a firearm, see 5, entails no individualized determination based on postconviction conduct. Furthermore, *241 Lopez's position would confine the BOP's discretion under 3621(e)(2)(B) to consideration of factors of the kind the Bureau already may consider in granting credit for "satisfactory behavior." See 18 U.S. C. 3624(b)(1) ("a prisoner [serving a term of more than one year and less than life] may receive credit toward the service of the prisoner's sentence subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with such institutional disciplinary regulations"). We turn now to the Bureau's reading of the statutory text, which instructs that the agency "may" reduce the sentence of a nonviolent offender who has successfully completed a drug treatment program. Congress' use of the permissive "may" in 3621(e)(2)(B) contrasts with the legislators' use of a mandatory "shall" in the very same section. Elsewhere in 3621, Congress used "shall" to impose discretionless obligations, including the obligation to provide drug treatment when funds are available. See 18 U.S. C. 3621(e)(1) ("Bureau of Prisons shall, subject to the availability of appropriations, provide residential substance abuse treatment (and make arrangements for appropriate aftercare)"); see also, e. g., 3621(b) ("The Bureau shall designate the place of the prisoner's imprisonment. In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status."). Sensibly read, the grant of discretion in 3621(e)(2)(B) to decide whether to reduce a sentence parallels the grant of discretion in 3621(e)(2)(A) to retain a prisoner who successfully completes drug treatment "under such [custodial] conditions as the Bureau deems appropriate." 3621(e)(2)(A). When an eligible prisoner successfully completes drug treatment, the Bureau thus has the authority, but not the duty, both to alter the prisoner's conditions of confinement and to reduce his term of imprisonment. The constraints Lopez urges—requiring the BOP to make individualized determinations based only on postconviction *242 conduct—are nowhere to be found in 3621(e)(2)(B). Beyond instructing that the Bureau has discretion to reduce the period of imprisonment for a nonviolent offender who successfully completes drug treatment, Congress has not identified any further circumstance in which the Bureau either must grant the reduction, or is forbidden to do so. In this familiar situation, where Congress has enacted a law that does not answer "the precise question at issue," all we must decide is whether the Bureau, the agency empowered to administer the early release program, has filled the statutory gap "in a way that is reasonable in light of the legislature's revealed design." Nations bank of N. C., N. (citing ); see also We think the agency's interpretation is reasonable both in taking account of preconviction conduct and in making categorical exclusions. First, as the dissent but not Lopez recognizes, see post, at 248, the Bureau need not blind itself to preconviction conduct that the agency reasonably views as jeopardizing life and limb. By denying eligibility to violent offenders, the statute manifests congressional concern for preconviction behavior—and for the very conduct leading to conviction. The Bureau may reasonably attend to these factors as well. Its regulation in this regard is kin to the Attorney General's order upheld in That case involved a statute authorizing the Attorney General to waive deportation of aliens deportable for entry fraud. The Attorney General had refused to waive deportation for one alien because of "acts of fraud in connection with his entry." The alien argued that because the statute made aliens who had committed entry fraud eligible for waiver, the Attorney General was precluded from taking such conduct into account "at all" in deciding whether to grant relief. We rejected this view, stating *243 that the statute "establishes only the alien's eligibility for the waiver. Such eligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace." Similarly in this case, the statute's restriction of early release eligibility to nonviolent offenders does not cut short the considerations that may guide the Bureau. Just as the Attorney General permissibly considered aspects of entry fraud, even though entry fraud was a criterion of statutory eligibility, so the Bureau may consider aspects of the conduct of conviction, even though the conviction is a criterion of statutory eligibility.[4] We also reject Lopez's argument, echoed in part by the dissent, post, at 248-249, that the agency must not make categorical exclusions, but may rely only on case-by-case assessments.[5] "[E]ven if a statutory scheme requires individualized *244 determinations," which this scheme does not, "the decision maker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority." American Hospital 2 ; accord, 4 U.S. 458, The approach pressed by Lopez—case-by-case decision making in thousands of cases each year, see n. 4—could invite favoritism, disunity, and inconsistency. The Bureau is not required continually to revisit "issues that may be established fairly and efficiently in a single rulemaking proceeding." 4 U. S., at[6] Having decided that the Bureau may categorically exclude prisoners based on their preconviction conduct, we further hold that the regulation excluding Lopez is permissible. The Bureau reasonably concluded that an inmate's prior involvement with firearms, in connection with the commission of a felony, suggests his readiness to resort to lifeendangering violence and therefore appropriately determines the early release decision.[7] *245 For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is Affirmed.

Justice Stevens

dissenting

Lopez v. Davis

2001-01-10

https://www.courtlistener.com/opinion/118400/lopez-v-davis/

https://www.courtlistener.com/api/rest/v3/clusters/118400/

2000-014

The question at issue in this case is whether all, or merely some, of the federal prisoners who were convicted of nonviolent offenses and who have successfully completed a Bureau of Prisons (BOP or Bureau) drug treatment program are eligible for a sentence reduction pursuant to 18 U.S. C. § 3621(e)(2)(B). For the reasons outlined below, I believe that Congress has answered that precise question. The statute expressly states that the sentence of every prisoner in that category "may be reduced." Ibid. The disposition of this case is therefore governed by the first step in the familiar test announced in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984), for "Congress has directly spoken to the precise question at issue." Id., at 842. I In drafting the statute in question, Congress was faced with a difficult policy choice: whether the commission of particular crimes made certain categories of offenders so dangerous that the costs of offering them early release in return for the successful completion of a drug treatment program outweighed the rewards. The initial drafts of the bill answered that question in the negative and made all federal prisoners eligible for a sentence reduction of up to one year if they successfully completed a drug treatment program. See, e. g., H. R. Rep. No. 103-320, p. 2 (1993). However, the inclusion of those convicted of violent offenses within the category of those eligible for the inducement soon became a fulcrum of criticism for the larger crime bill within *246 which the statute was embedded.[1] Perhaps as a result of these criticisms,[2] the statute ultimately adopted limited the inducement to "prisoner[s] convicted of . . . nonviolent offense[s]." 18 U.S. C. § 3621(e)(2)(B). Both the text of the statute and the aforementioned history demonstrate that Congress directly addressed the "precise question" of what offenses ought to disqualify prisoners from eligibility for a sentence reduction, and that its unambiguous answer was "violent offenses." Under the statute as enacted, those who commit crimes of violence are categorically barred from receiving a sentence reduction while those convicted of nonviolent offenses "may" receive such an inducement. *247 The BOP regulation challenged here operates to redefine the set of prisoners categorically ineligible for a sentence reduction, a set unambiguously defined in the text of the statute. It does so by taking a group of prisoners whose offenses the Bureau acknowledges are "nonviolent" within the meaning of the statute[3] and imposing the same sanction—categorical ineligibility—upon them as the statute imposes upon violent offenders. In so doing, the Bureau ignores Congress' express determination that, when evaluating eligibility for a sentence reduction, the salient distinction is the line between violent and nonviolent offenses. By moving this line, the BOP exceeded its authority and sought to exercise its discretion on an issue with regard to which it has none. See, e. g., Chevron, 467 U. S., at 842-843 ("First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress"); United States v. Haggar Apparel Co., 526 U.S. 380, 392 (1999) ("In the process of considering a regulation in relation to specific factual situations, a court may conclude the regulation is inconsistent with the statutory language or is an unreasonable implementation of it. In those instances, the regulation will not control"). *248 II I fully agree with the majority that federal prisoners do not become entitled to a sentence reduction upon their successful completion of a drug treatment program; the words "may be reduced" do not mean "shall be reduced." Nonetheless, while the statute does not entitle any prisoner to a sentence reduction, it does guarantee nonviolent offenders who successfully complete a drug treatment program consideration for such a reduction. For every nonviolent offender who participates in a drug treatment program, the BOP may be required to make two individualized determinations: (1) whether he or she has successfully completed that program; and (2), if so, whether his or her preconviction conduct, postconviction conduct, and prospects for rehabilitation justify a sentence reduction. In evaluating whether or not a particular individual is entitled to a sentence reduction, the BOP may give great weight to whichever of these factors it determines to be most relevant. That, however, is a far cry from categorically excluding from consideration prisoners who Congress explicitly intended to obtain such consideration.[4] The majority's concern about the risks and burdens associated with case-by-case decision making in a large number of cases is understandable yet ultimately misguided. In order to fulfill the statute's requirements, the BOP must already *249 evaluate every prisoner seeking the sentence reduction on an individual basis to determine whether that prisoner "successfully completed" his or her drug treatment program. Individualized consideration of the second salient question involves consideration of many of the same personalized factors that go into determining whether a prisoner's course of drug treatment has been "successful." To the extent that answering the second question requires consideration of additional factors with a concomitant administrative burden, the costs of such a scheme are, in Congress' judgment, outweighed by the benefits of encouraging drug treatment and of carefully distinguishing between those prisoners who have earned an early return to their communities and those who require further incarceration. The majority's worry that individualized decision making might lead to "favoritism, disunity, and inconsistency" is similarly misplaced. Ante, at 244. To suggest that decision making must be individualized is not to imply that it must also be standardless. If the Court today invalidated the regulation in question, its decision would not preclude the BOP from adopting a uniform set of criteria for consideration in evaluating applications for sentence reductions. Nor would it necessarily preclude the Bureau from giving dispositive weight to certain postconviction criteria or neardispositive weight to preconviction criteria. Cf. Heckler v. Campbell, 461 U.S. 458, 467 (1983). The Bureau would remain free to structure its decision making in any way it saw fit as long as in so doing it did not contravene policy decisions explicitly made by the statute's drafters. As Congress has already addressed pre incarceration conduct in § 3621(e)(2)(B), the Bureau may not categorically exclude a prisoner not convicted of a violent offense from consideration for early release on the basis of such conduct without exceeding the limits of its discretion. Accordingly, I respectfully dissent.

The question at issue in this case is whether all, or merely some, of the federal prisoners who were convicted of nonviolent offenses and who have successfully completed a Bureau of Prisons (BOP or Bureau) drug treatment program are eligible for a sentence reduction pursuant to 18 U.S. C. 3621(e)(2)(B). For the reasons outlined below, I believe that Congress has answered that precise question. The statute expressly states that the sentence of every prisoner in that category "may be reduced." The disposition of this case is therefore governed by the first step in the familiar test announced in U. S. A. for "Congress has directly spoken to the precise question at issue." I In drafting the statute in question, Congress was faced with a difficult policy choice: whether the commission of particular crimes made certain categories of offenders so dangerous that the costs of offering them early release in return for the successful completion of a drug treatment program outweighed the rewards. The initial drafts of the bill answered that question in the negative and made all federal prisoners eligible for a sentence reduction of up to one year if they successfully completed a drug treatment program. See, e. g., H. R. Rep. No. 103-320, p. 2 (1993). However, the inclusion of those convicted of violent offenses within the category of those eligible for the inducement soon became a fulcrum of criticism for the larger crime bill within *246 which the statute was embedded.[1] Perhaps as a result of these criticisms,[2] the statute ultimately adopted limited the inducement to "prisoner[s] convicted of nonviolent offense[s]." 18 U.S. C. 3621(e)(2)(B). Both the text of the statute and the aforementioned history demonstrate that Congress directly addressed the "precise question" of what offenses ought to disqualify prisoners from eligibility for a sentence reduction, and that its unambiguous answer was "violent offenses." Under the statute as enacted, those who commit crimes of violence are categorically barred from receiving a sentence reduction while those convicted of nonviolent offenses "may" receive such an inducement. *247 The BOP regulation challenged here operates to redefine the set of prisoners categorically ineligible for a sentence reduction, a set unambiguously defined in the text of the statute. It does so by taking a group of prisoners whose offenses the Bureau acknowledges are "nonviolent" within the meaning of the statute[3] and imposing the same sanction—categorical ineligibility—upon them as the statute imposes upon violent offenders. In so doing, the Bureau ignores Congress' express determination that, when evaluating eligibility for a sentence reduction, the salient distinction is the line between violent and nonviolent offenses. By moving this line, the BOP exceeded its authority and sought to exercise its discretion on an issue with regard to which it has none. See, e. g., U. S., at ; United *248 II I fully agree with the majority that federal prisoners do not become entitled to a sentence reduction upon their successful completion of a drug treatment program; the words "may be reduced" do not mean "shall be reduced." Nonetheless, while the statute does not entitle any prisoner to a sentence reduction, it does guarantee nonviolent offenders who successfully complete a drug treatment program consideration for such a reduction. For every nonviolent offender who participates in a drug treatment program, the BOP may be required to make two individualized determinations: (1) whether he or she has successfully completed that program; and (2), if so, whether his or her preconviction conduct, postconviction conduct, and prospects for rehabilitation justify a sentence reduction. In evaluating whether or not a particular individual is entitled to a sentence reduction, the BOP may give great weight to whichever of these factors it determines to be most relevant. That, however, is a far cry from categorically excluding from consideration prisoners who Congress explicitly intended to obtain such consideration.[4] The majority's concern about the risks and burdens associated with case-by-case decision making in a large number of cases is understandable yet ultimately misguided. In order to fulfill the statute's requirements, the BOP must already *249 evaluate every prisoner seeking the sentence reduction on an individual basis to determine whether that prisoner "successfully completed" his or her drug treatment program. Individualized consideration of the second salient question involves consideration of many of the same personalized factors that go into determining whether a prisoner's course of drug treatment has been "successful." To the extent that answering the second question requires consideration of additional factors with a concomitant administrative burden, the costs of such a scheme are, in Congress' judgment, outweighed by the benefits of encouraging drug treatment and of carefully distinguishing between those prisoners who have earned an early return to their communities and those who require further incarceration. The majority's worry that individualized decision making might lead to "favoritism, disunity, and inconsistency" is similarly misplaced. Ante, at 244. To suggest that decision making must be individualized is not to imply that it must also be standardless. If the Court today invalidated the regulation in question, its decision would not preclude the BOP from adopting a uniform set of criteria for consideration in evaluating applications for sentence reductions. Nor would it necessarily preclude the Bureau from giving dispositive weight to certain postconviction criteria or neardispositive weight to preconviction criteria. Cf. The Bureau would remain free to structure its decision making in any way it saw fit as long as in so doing it did not contravene policy decisions explicitly made by the statute's drafters. As Congress has already addressed pre incarceration conduct in 3621(e)(2)(B), the Bureau may not categorically exclude a prisoner not convicted of a violent offense from consideration for early release on the basis of such conduct without exceeding the limits of its discretion. Accordingly, I respectfully dissent.

Justice Kennedy

majority

Maryland v. King

2013-06-03

https://www.courtlistener.com/opinion/873669/maryland-v-king/

https://www.courtlistener.com/api/rest/v3/clusters/873669/

2012-050

In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Salisbury, Maryland. He raped her. The police were unable to identify or appre­ hend the assailant based on any detailed description or other evidence they then had, but they did obtain from the victim a sample of the perpetrator’s DNA. In 2009 Alonzo King was arrested in Wicomico County, Maryland, and charged with first- and second-degree assault for menacing a group of people with a shotgun. As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and con­ victed for the rape. Additional DNA samples were taken from him and used in the rape trial, but there seems to be no doubt that it was the DNA from the cheek sample taken at the time he was booked in 2009 that led to his first having been linked to the rape and charged with its commission. The Court of Appeals of Maryland, on review of King’s 2 MARYLAND v. KING Opinion of the Court rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure be­ cause obtaining and using the cheek swab was an unrea­ sonable search of the person. It set the rape conviction aside. This Court granted certiorari and now reverses the judgment of the Maryland court. I When King was arrested on April 10, 2009, for menac­ ing a group of people with a shotgun and charged in state court with both first- and second-degree assault, he was processed for detention in custody at the Wicomico County Central Booking facility. Booking personnel used a cheek swab to take the DNA sample from him pursuant to provi­ sions of the Maryland DNA Collection Act (or Act). On July 13, 2009, King’s DNA record was uploaded to the Maryland DNA database, and three weeks later, on August 4, 2009, his DNA profile was matched to the DNA sample collected in the unsolved 2003 rape case. Once the DNA was matched to King, detectives presented the foren­ sic evidence to a grand jury, which indicted him for the rape. Detectives obtained a search warrant and took a second sample of DNA from King, which again matched the evidence from the rape. He moved to suppress the DNA match on the grounds that Maryland’s DNA collec­ tion law violated the Fourth Amendment. The Circuit Court Judge upheld the statute as constitutional. King pleaded not guilty to the rape charges but was convicted and sentenced to life in prison without the possibility of parole. In a divided opinion, the Maryland Court of Appeals struck down the portions of the Act authorizing collection of DNA from felony arrestees as unconstitutional. The majority concluded that a DNA swab was an unreasonable search in violation of the Fourth Amendment because King’s “expectation of privacy is greater than the State’s Cite as: 569 U. S. ____ (2013) 3 Opinion of the Court purported interest in using King’s DNA to identify him.” 425 Md. 550, 561, 42 A.3d 549, 556 (2012). In reach- ing that conclusion the Maryland Court relied on the deci­ sions of various other courts that have concluded that DNA identification of arrestees is impermissible. See, e.g., People v. Buza, 129 Cal. Rptr. 3d 753 (App. 2011) (offi­ cially depublished); Mario W. v. Kaipio, 228 Ariz. 207, 265 P.3d 389 (App. 2011). Both federal and state courts have reached differing conclusions as to whether the Fourth Amendment prohib­ its the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges. This Court granted certiorari, 568 U. S. ___ (2012), to address the question. King is the respondent here. II The advent of DNA technology is one of the most signifi­ cant scientific advancements of our era. The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed. Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986, see J. Butler, Fundamentals of Forensic DNA Typing 5 (2009) (hereinafter Butler), law enforcement, the defense bar, and the courts have acknowledged DNA testing’s “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.” District Attorney’s Office for Third Judicial Dist. v. Os- borne, 557 U.S. 52, 55 (2009). A The current standard for forensic DNA testing relies on an analysis of the chromosomes located within the nucleus of all human cells. “The DNA material in chromosomes is 4 MARYLAND v. KING Opinion of the Court composed of ‘coding’ and ‘noncoding’ regions. The coding regions are known as genes and contain the information necessary for a cell to make proteins. . . . Non-protein­ coding regions . . . are not related directly to making pro­ teins, [and] have been referred to as ‘junk’ DNA.” Butler 25. The adjective “junk” may mislead the layperson, for in fact this is the DNA region used with near certainty to identify a person. The term apparently is intended to indicate that this particular noncoding region, while use­ ful and even dispositive for purposes like identity, does not show more far-reaching and complex characteristics like genetic traits. Many of the patterns found in DNA are shared among all people, so forensic analysis focuses on “repeated DNA sequences scattered throughout the human genome,” known as “short tandem repeats” (STRs). Id., at 147–148. The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as “alleles,” id., at 25; and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual. Future refinements may improve pres- ent technology, but even now STR analysis makes it “possible to determine whether a biological tissue match­ es a suspect with near certainty.” Osborne, supra, at 62. The Act authorizes Maryland law enforcement author­ ities to collect DNA samples from “an individual who is charged with . . . a crime of violence or an attempt to commit a crime of violence; or . . . burglary or an attempt to commit burglary.” Md. Pub. Saf. Code Ann. §2– 504(a)(3)(i) (Lexis 2011). Maryland law defines a crime of violence to include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Md. Crim. Law Code Ann. §14–101 (Lexis 2012). Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). Md. Pub. Saf. Code Ann. Cite as: 569 U. S. ____ (2013) 5 Opinion of the Court §2–504(d)(1) (Lexis 2011). It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. If “all qualifying criminal charges are determined to be unsupported by probable cause . . . the DNA sample shall be immediately destroyed.” §2–504(d)(2)(i). DNA samples are also de­ stroyed if “a criminal action begun against the individual . . . does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon.” §2–511(a)(1). The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” §2–505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for infor­ mation that does not relate to the identification of indi­ viduals as specified in this subtitle.” §2–512(c). Tests for familial matches are also prohibited. See §2–506(d) (“A person may not perform a search of the statewide DNA data base for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA sample was acquired”). The officers involved in taking and analyzing respondent’s DNA sample complied with the Act in all respects. Respondent’s DNA was collected in this case using a common procedure known as a “buccal swab.” “Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual’s mouth to collect some skin cells.” Butler 86. The procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no “surgical intrusio[n] beneath the skin,” Winston v. Lee, 470 U.S. 753, 760 (1985), and it poses no “threa[t] to the health or 6 MARYLAND v. KING Opinion of the Court safety” of arrestees, id., at 763. B Respondent’s identification as the rapist resulted in part through the operation of a national project to standardize collection and storage of DNA profiles. Authorized by Congress and supervised by the Federal Bureau of Inves­ tigation, the Combined DNA Index System (CODIS) con­ nects DNA laboratories at the local, state, and national level. Since its authorization in 1994, the CODIS system has grown to include all 50 States and a number of federal agencies. CODIS collects DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic evidence found at crime scenes. To participate in CODIS, a local laboratory must sign a memorandum of understanding agreeing to adhere to quality standards and submit to audits to evaluate compliance with the federal standards for scientifically rigorous DNA testing. Butler 270. One of the most significant aspects of CODIS is the standardization of the points of comparison in DNA analy­ sis. The CODIS database is based on 13 loci at which the STR alleles are noted and compared. These loci make possible extreme accuracy in matching individual samples, with a “random match probability of approximately 1 in 100 trillion (assuming unrelated individuals).” Ibid. The CODIS loci are from the non-protein coding junk regions of DNA, and “are not known to have any association with a genetic disease or any other genetic predisposition. Thus, the information in the database is only useful for human identity testing.” Id., at 279. STR information is recorded only as a “string of numbers”; and the DNA identification is accompanied only by information denoting the laboratory and the analyst responsible for the submis­ sion. Id., at 270. In short, CODIS sets uniform national standards for DNA matching and then facilitates connec­ Cite as: 569 U. S. ____ (2013) 7 Opinion of the Court tions between local law enforcement agencies who can share more specific information about matched STR profiles. All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice. See Brief for Respondent 48. Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees. See Brief for State of California et al. as Amici Curiae 4, n. 1 (States Brief) (collecting state statutes). Although those statutes vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. At issue is a stand­ ard, expanding technology already in widespread use throughout the Nation. III A Although the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established. The Fourth Amendment, binding on the States by the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It can be agreed that using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any “intrusio[n] into the human body,” Schmerber v. California, 384 U.S. 757, 770 (1966), will work an invasion of “ ‘cherished personal secu­ rity’ that is subject to constitutional scrutiny,” Cupp v. Murphy, 412 U.S. 291, 295 (1973) (quoting Terry v. Ohio, 392 U.S. 1, 24–25 (1968)). The Court has applied the Fourth Amendment to police efforts to draw blood, see Schmerber, supra; Missouri v. McNeely, 569 U. S. ___ 8 MARYLAND v. KING Opinion of the Court (2013), scraping an arrestee’s fingernails to obtain trace evidence, see Cupp, supra, and even to “a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis,” Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616 (1989). A buccal swab is a far more gentle process than a veni­ puncture to draw blood. It involves but a light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no “surgical intrusions beneath the skin.” Winston, 470 U. S., at 760. The fact than an intrusion is negligible is of cen­ tral relevance to determining reasonableness, although it is still a search as the law defines that term. B To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis. “[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Schmerber, supra, at 768. “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘rea­ sonableness.’ ” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). In giving content to the inquiry whether an intrusion is reasonable, the Court has pre­ ferred “some quantum of individualized suspicion . . . [as] a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible require­ ment of such suspicion.” United States v. Martinez-Fuerte, 428 U.S. 543, 560–561 (1976) (citation and footnote omitted). In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has Cite as: 569 U. S. ____ (2013) 9 Opinion of the Court found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” Illinois v. McArthur, 531 U.S. 326, 330 (2001). Those circumstances diminish the need for a warrant, either because “the public interest is such that neither a warrant nor probable cause is required,” Maryland v. Buie, 494 U.S. 325, 331 (1990), or because an individual is already on notice, for instance because of his employment, see Skinner, supra, or the conditions of his release from gov­ ernment custody, see Samson v. California, 547 U.S. 843 (2006), that some reasonable police intrusion on his pri­ vacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the “interpo[lation of] a neutral magistrate between the citizen and the law enforcement officer.” Treasury Employees v. Von Raab, 489 U.S. 656, 667 (1989). The instant case can be addressed with this background. The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with seri­ ous crimes must furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks. The arrestee is already in valid police custody for a serious offense supported by probable cause. The DNA collection is not subject to the judgment of officers whose perspective might be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.’ ” Terry, supra, at 12 (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)). As noted by this Court in a different but still instructive context involving blood testing, “[b]oth the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined nar- rowly and specifically in the regulations that authorize them . . . . Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtu­ 10 MARYLAND v. KING Opinion of the Court ally no facts for a neutral magistrate to evaluate.” Skin- ner, supra, at 622. Here, the search effected by the buccal swab of respondent falls within the category of cases this Court has analyzed by reference to the proposition that the “touchstone of the Fourth Amendment is reason­ ableness, not individualized suspicion.” Samson, supra, at 855, n. 4. Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behav­ ior. To say that no warrant is required is merely to acknowledge that “rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” McArthur, supra, at 331. This applica­ tion of “traditional standards of reasonableness” requires a court to weigh “the promotion of legitimate governmen­ tal interests” against “the degree to which [the search] intrudes upon an individual’s privacy.” Wyoming v. Hough- ton, 526 U.S. 295, 300 (1999). An assessment of reasona­ bleness to determine the lawfulness of requiring this class of arrestees to provide a DNA sample is central to the instant case. IV A The legitimate government interest served by the Mary­ land DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accu­ rate way to process and identify the persons and posses­ sions they must take into custody. It is beyond dispute that “probable cause provides legal justification for arrest­ ing a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh, 420 U.S. 103, 113–114 (1975). Cite as: 569 U. S. ____ (2013) 11 Opinion of the Court Also uncontested is the “right on the part of the Govern­ ment, always recognized under English and American law, to search the person of the accused when legally arrested.” Weeks v. United States, 232 U.S. 383, 392 (1914), over­ ruled on other grounds, Mapp v. Ohio, 367 U.S. 643 (1961). “The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged.” United States v. Robinson, 414 U.S. 218, 224 (1973). Even in that context, the Court has been clear that indi­ vidual suspicion is not necessary, because “[t]he constitu­ tionality of a search incident to an arrest does not depend on whether there is any indication that the person ar­ rested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.” Michigan v. DeFillippo, 443 U.S. 31, 35 (1979). The “routine administrative procedure[s] at a police sta­ tion house incident to booking and jailing the suspect” derive from different origins and have different constitu­ tional justifications than, say, the search of a place, Illi- nois v. Lafayette, 462 U.S. 640, 643 (1983); for the search of a place not incident to an arrest depends on the “fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates, 462 U.S. 213, 238 (1983). The interests are further different when an individual is formally processed into police custody. Then “the law is in the act of subjecting the body of the accused to its physical dominion.” People v. Chiagles, 237 N.Y. 193, 197, 142 N.E. 583, 584 (1923) (Cardozo, J.). When probable cause exists to remove an individual from the normal channels of society and hold him in legal cus­ tody, DNA identification plays a critical role in serving those interests. First, “[i]n every criminal case, it is known and must be known who has been arrested and who is being tried.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt 12 MARYLAND v. KING Opinion of the Court Cty., 542 U.S. 177, 191 (2004). An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody. “It is a well recognized aspect of criminal conduct that the per­ petrator will take unusual steps to conceal not only his conduct, but also his identity. Disguises used while com­ mitting a crime may be supplemented or replaced by changed names, and even changed physical features.” Jones v. Murray, 962 F.2d 302, 307 (CA4 1992). An “ar­ restee may be carrying a false ID or lie about his identity,” and “criminal history records . . . can be inaccurate or incomplete.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. ___, ___ (2012) (slip op., at 16). A suspect’s criminal history is a critical part of his iden­ tity that officers should know when processing him for detention. It is a common occurrence that “[p]eople de­ tained for minor offenses can turn out to be the most devious and dangerous criminals. Hours after the Okla­ homa City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.” Id., at ___ (slip op., at 14) (citations omitted). Police already seek this crucial identifying information. They use routine and accepted means as varied as comparing the suspect’s booking pho­ tograph to sketch artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of course making a computerized comparison of the arrestee’s fin­ Cite as: 569 U. S. ____ (2013) 13 Opinion of the Court gerprints against electronic databases of known criminals and unsolved crimes. In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides. The task of identification necessarily entails searching public and police records based on the identifying infor­ mation provided by the arrestee to see what is already known about him. The DNA collected from arrestees is an irrefutable identification of the person from whom it was taken. Like a fingerprint, the 13 CODIS loci are not themselves evidence of any particular crime, in the way that a drug test can by itself be evidence of illegal narcot­ ics use. A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidenti­ fied suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene. See Tr. of Oral Arg. 19. DNA is another metric of identifica­ tion used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police. Those records may be linked to the arrestee by a variety of relevant forms of identifica­ tion, including name, alias, date and time of previous convictions and the name then used, photograph, Social Security number, or CODIS profile. These data, found in official records, are checked as a routine matter to produce a more comprehensive record of the suspect’s complete identity. Finding occurrences of the arrestee’s CODIS profile in outstanding cases is consistent with this com­ mon practice. It uses a different form of identification than a name or fingerprint, but its function is the same. Second, law enforcement officers bear a responsibility for ensuring that the custody of an arrestee does not cre­ 14 MARYLAND v. KING Opinion of the Court ate inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” Florence, supra, at ___ (slip op., at 10). DNA identification can provide untainted information to those charged with de­ taining suspects and detaining the property of any felon. For these purposes officers must know the type of person whom they are detaining, and DNA allows them to make critical choices about how to proceed. “Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and al­ low the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Hiibel, supra, at 186. Recognizing that a name alone cannot address this inter­ est in identity, the Court has approved, for example, “a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process,” because “[t]he identification and isolation of gang members before they are admitted protects everyone.” Florence, supra, at ___ (slip op., at 11). Third, looking forward to future stages of criminal prosecution, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” Bell v. Wolfish, 441 U.S. 520, 534 (1979). A per­ son who is arrested for one offense but knows that he has yet to answer for some past crime may be more inclined to flee the instant charges, lest continued contact with the criminal justice system expose one or more other serious Cite as: 569 U. S. ____ (2013) 15 Opinion of the Court offenses. For example, a defendant who had committed a prior sexual assault might be inclined to flee on a burglary charge, knowing that in every State a DNA sample would be taken from him after his conviction on the burglary charge that would tie him to the more serious charge of rape. In addition to subverting the administration of justice with respect to the crime of arrest, this ties back to the interest in safety; for a detainee who absconds from custody presents a risk to law enforcement officers, other detainees, victims of previous crimes, witnesses, and society at large. Fourth, an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and this will inform a court’s determination whether the individual should be released on bail. “The government’s interest in preventing crime by arrestees is both legitimate and com­ pelling.” United States v. Salerno, 481 U.S. 739, 749 (1987). DNA identification of a suspect in a violent crime provides critical information to the police and judicial officials in making a determination of the arrestee’s future dangerousness. This inquiry always has entailed some scrutiny beyond the name on the defendant’s driver’s license. For example, Maryland law requires a judge to take into account not only “the nature and circumstances of the offense charged” but also “the defendant’s family ties, employment status and history, financial resources, reputation, character and mental condition, length of res­ idence in the community.” 1 Md. Rules 4–216(f)(1)(A), (C) (2013). Knowing that the defendant is wanted for a previous violent crime based on DNA identification is especially probative of the court’s consideration of “the danger of the defendant to the alleged victim, another person, or the community.” Rule 4–216(f)(1)(G); see also 18 U.S. C. §3142 (2006 ed. and Supp. V) (similar requirements). This interest is not speculative. In considering laws to 16 MARYLAND v. KING Opinion of the Court require collecting DNA from arrestees, government agen­ cies around the Nation found evidence of numerous cases in which felony arrestees would have been identified as violent through DNA identification matching them to previous crimes but who later committed additional crimes because such identification was not used to detain them. See Denver’s Study on Preventable Crimes (2009) (three examples), online at http://www.denverda.org/DNA_ Documents / Denver%27s%20Preventable%20Crimes%20 Study.pdf (all Internet materials as visited May 31, 2013, and available in Clerk of Court’s case file); Chi­ cago’s Study on Preventable Crimes (2005) (five exam- ples), online at http://www.denverda.org/DNA_Documents/ Arrestee_Database / Chicago%20Preventable%20Crimes- Final.pdf; Maryland Study on Preventable Crimes (2008) (three examples), online at http://www.denverda.org/DNA_ Documents/MarylandDNAarresteestudy.pdf. Present capabilities make it possible to complete a DNA identification that provides information essential to de­ termining whether a detained suspect can be released pending trial. See, e.g., States Brief 18, n. 10 (“DNA iden­ tification database samples have been processed in as few as two days in California, although around 30 days has been average”). Regardless of when the initial bail deci­ sion is made, release is not appropriate until a further determination is made as to the person’s identity in the sense not only of what his birth certificate states but also what other records and data disclose to give that identity more meaning in the whole context of who the person really is. And even when release is permitted, the back­ ground identity of the suspect is necessary for determining what conditions must be met before release is allowed. If release is authorized, it may take time for the conditions to be met, and so the time before actual release can be substantial. For example, in the federal system, defend­ ants released conditionally are detained on average for Cite as: 569 U. S. ____ (2013) 17 Opinion of the Court 112 days; those released on unsecured bond for 37 days; on personal recognizance for 36 days; and on other finan­ cial conditions for 27 days. See Dept. of Justice, Bureau of Justice Statistics, Compendium of Federal Justice Statis­ tics 45 (NCJ–213476, Dec. 2006) online at http://bjs.gov/ content/pub/pdf/cfjs04.pdf. During this entire period, ad­ ditional and supplemental data establishing more about the person’s identity and background can provide critical information relevant to the conditions of release and whether to revisit an initial release determination. The facts of this case are illustrative. Though the record is not clear, if some thought were being given to releasing the respondent on bail on the gun charge, a release that would take weeks or months in any event, when the DNA report linked him to the prior rape, it would be relevant to the conditions of his release. The same would be true with a supplemental fingerprint report. Even if an arrestee is released on bail, development of DNA identification revealing the defendant’s unknown violent past can and should lead to the revocation of his conditional release. See 18 U.S. C. §3145(a) (providing for revocation of release); see also States Brief 11–12 (discuss­ ing examples where bail and diversion determinations were reversed after DNA identified the arrestee’s vio­ lent history). Pretrial release of a person charged with a dangerous crime is a most serious responsibility. It is reason­ able in all respects for the State to use an accepted data­ base to determine if an arrestee is the object of suspicion in other serious crimes, suspicion that may provide a strong incentive for the arrestee to escape and flee. Finally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense. “[P]rompt [DNA] testing . . . would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque 18 MARYLAND v. KING Opinion of the Court detention of . . . innocent people.” J. Dwyer, P. Neufeld, & B. Scheck, Actual Innocence 245 (2000). Because proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the “governmen- tal interests underlying a station-house search of the ar­ restee’s person and possessions may in some circumstances be even greater than those supporting a search imme­ diately following arrest.” Lafayette, 462 U. S., at 645. Thus, the Court has been reluctant to circumscribe the authority of the police to conduct reasonable booking searches. For example, “[t]he standards traditionally governing a search incident to lawful arrest are not . . . commuted to the stricter Terry standards.” Robinson, 414 U. S., at 234. Nor are these interests in identifica- tion served only by a search of the arrestee himself. “[I]nspection of an arrestee’s personal property may assist the police in ascertaining or verifying his identity.” Lafa- yette, supra, at 646. And though the Fifth Amendment’s protection against self-incrimination is not, as a general rule, governed by a reasonableness standard, the Court has held that “questions . . . reasonably related to the police’s administrative concerns . . . fall outside the protec­ tions of Miranda [v. Arizona, 384 U.S. 436 (1966)] and the answers thereto need not be suppressed.” Pennsylvania v. Muniz, 496 U.S. 582, 601–602 (1990). B DNA identification represents an important advance in the techniques used by law enforcement to serve le­ gitimate police concerns for as long as there have been arrests, concerns the courts have acknowledged and ap­ proved for more than a century. Law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of ar­ restees. “Police had been using photography to capture Cite as: 569 U. S. ____ (2013) 19 Opinion of the Court the faces of criminals almost since its invention.” S. Cole, Suspect Identities 20 (2001). Courts did not dispute that practice, concluding that a “sheriff in making an arrest for a felony on a warrant has the right to exercise a discretion . . . , [if] he should deem it necessary to the safe-keeping of a prisoner, and to prevent his escape, or to enable him the more readily to retake the prisoner if he should escape, to take his photograph.” State ex rel. Bruns v. Clausmier, 154 Ind. 599, 601, 603, 57 N.E. 541, 542 (1900). By the time that it had become “the daily practice of the police officers and detectives of crime to use photographic pic­ tures for the discovery and identification of criminals,” the courts likewise had come to the conclusion that “it would be [a] matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.” Shaffer v. United States, 24 Ohio App. D. C. 417, 426 (1904). Beginning in 1887, some police adopted more exacting means to identify arrestees, using the system of precise physical measurements pioneered by the French anthro­ pologist Alphonse Bertillon. Bertillon identification con­ sisted of 10 measurements of the arrestee’s body, along with a “scientific analysis of the features of the face and an exact anatomical localization of the various scars, marks, &c., of the body.” Defense of the Bertillon System, N. Y. Times, Jan. 20, 1896, p. 3. “[W]hen a prisoner was brought in, his photograph was taken according to the Bertillon system, and his body measurements were then made. The measurements were made . . . and noted down on the back of a card or a blotter, and the photograph of the prisoner was expected to be placed on the card. This card, therefore, furnished both the likeness and descrip­ tion of the prisoner, and was placed in the rogues’ gallery, and copies were sent to various cities where similar rec­ ords were kept.” People ex rel. Jones v. Diehl, 53 A.D. 645, 646, 65 N. Y. S. 801, 802 (1900). As in the present case, the point of taking this information about each ar­ 20 MARYLAND v. KING Opinion of the Court restee was not limited to verifying that the proper name was on the indictment. These procedures were used to “facilitate the recapture of escaped prisoners,” to aid “the investigation of their past records and personal history,” and “to preserve the means of identification for . . . fu- ture supervision after discharge.” Hodgeman v. Olsen, 86 Wash. 615, 619, 150 P. 1122, 1124 (1915); see also McGov- ern v. Van Riper, 137 N. J. Eq. 24, 33–34, 43 A.2d 514, 519 (Ch. 1945) (“[C]riminal identification is said to have two main purposes: (1) The identification of the accused as the person who committed the crime for which he is being held; and, (2) the identification of the accused as the same person who has been previously charged with, or convicted of, other offenses against the criminal law”). Perhaps the most direct historical analogue to the DNA technology used to identify respondent is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had no trouble determining that fingerprinting was a natural part of “the administrative steps incident to arrest.” County of Riverside v. McLaugh- lin, 500 U.S. 44, 58 (1991). In the seminal case of United States v. Kelly, 55 F.2d 67 (CA2 1932), Judge Augustus Hand wrote that routine fingerprinting did not violate the Fourth Amendment precisely because it fit within the accepted means of processing an arrestee into custody: “Finger printing seems to be no more than an exten­ sion of methods of identification long used in dealing with persons under arrest for real or supposed vio­ lations of the criminal laws. It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggrega­ tions of people in urban centers have rendered the no­ toriety of the individual in the community no longer a ready means of identification. Cite as: 569 U. S. ____ (2013) 21 Opinion of the Court . . . . . “We find no ground in reason or authority for inter­ fering with a method of identifying persons charged with crime which has now become widely known and frequently practiced.” Id., at 69–70. By the middle of the 20th century, it was considered “ele­ mentary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.” Smith v. United States, 324 F.2d 879, 882 (CADC 1963) (Burger, J.) (citations omitted). DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intru­ sion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, see Part V, infra, and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his finger­ prints cannot escape the revealing power of his DNA. The respondent’s primary objection to this analogy is that DNA identification is not as fast as fingerprinting, and so it should not be considered to be the 21st-century equivalent. See Tr. of Oral Arg. 53. But rapid analysis of fingerprints is itself of recent vintage. The FBI’s vaunted Integrated Automated Fingerprint Identification System (IAFIS) was only “launched on July 28, 1999. Prior to this time, the processing of . . . fingerprint submissions was largely a manual, labor-intensive process, taking weeks or months to process a single submission.” Federal Bureau of Investigation, Integrated Automated Fingerprint Identifi­ cation System, online at http://www.fbi.gov/about-us/cjis/ fingerprints_biometrics/iafis/iafis. It was not the advent of 22 MARYLAND v. KING Opinion of the Court this technology that rendered fingerprint analysis consti­ tutional in a single moment. The question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. Cf. Ontario v. Quon, 560 U.S. ___, ___ (2010) (slip op., at 15). Given the importance of DNA in the identification of police records pertaining to arrestees and the need to refine and confirm that identity for its important bearing on the decision to continue release on bail or to impose of new conditions, DNA serves an essen­ tial purpose despite the existence of delays such as the one that occurred in this case. Even so, the delay in processing DNA from arrestees is being reduced to a sub­ stantial degree by rapid technical advances. See, e.g., At­ torney General DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4, 2013) (DNA processing time reduced from 125 days in 2010 to 20 days in 2012), online at http://ohioattorneygeneral.gov/Media/News-Releases/January- 2013/Attorney- General - DeWine -Announces- Significant- Drop; Gov. Jindal Announces Elimination of DNA Backlog, DNA Unit Now Operating in Real Time (Nov. 17, 2011) (average DNA report time reduced from a year or more in 2009 to 20 days in 2011), online at http:// www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail &articleID=3102. And the FBI has already begun testing devices that will enable police to process the DNA of ar­ restees within 90 minutes. See Brief for National District Attorneys Association as Amicus Curiae 20–21; Tr. of Oral Arg. 17. An assessment and understanding of the reason­ ableness of this minimally invasive search of a person detained for a serious crime should take account of these technical advances. Just as fingerprinting was constitu­ tional for generations prior to the introduction of IAFIS, DNA identification of arrestees is a permissible tool of law enforcement today. New technology will only further Cite as: 569 U. S. ____ (2013) 23 Opinion of the Court improve its speed and therefore its effectiveness. And, as noted above, actual release of a serious offender as a rou­ tine matter takes weeks or months in any event. By iden­ tifying not only who the arrestee is but also what other available records disclose about his past to show who he is, the police can ensure that they have the proper person under arrest and that they have made the necessary arrangements for his custody; and, just as important, they can also prevent suspicion against or prosecution of the innocent. In sum, there can be little reason to question “the legit­ imate interest of the government in knowing for an abso­ lute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” 3 W. LaFave, Search and Seizure §5.3(c), p. 216 (5th ed. 2012). To that end, courts have confirmed that the Fourth Amendment allows police to take certain routine “admin­ istrative steps incident to arrest—i.e., . . . book[ing], pho­ tograph[ing], and fingerprint[ing].” McLaughlin, 500 U. S., at 58. DNA identification of arrestees, of the type approved by the Maryland statute here at issue, is “no more than an extension of methods of identification long used in dealing with persons under arrest.” Kelly, 55 F. 2d, at 69. In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the un­ matched potential of DNA identification to serve that interest. V A By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a 24 MARYLAND v. KING Opinion of the Court minimal one. True, a significant government interest does not alone suffice to justify a search. The government interest must outweigh the degree to which the search in­ vades an individual’s legitimate expectations of privacy. In considering those expectations in this case, however, the necessary predicate of a valid arrest for a serious offense is fundamental. “Although the underlying com­ mand of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” New Jersey v. T. L. O., 469 U.S. 325, 337 (1985). “[T]he legiti­ macy of certain privacy expectations vis-à-vis the State may depend upon the individual’s legal relationship with the State.” Vernonia School Dist. 47J, 515 U. S., at 654. The reasonableness of any search must be considered in the context of the person’s legitimate expectations of privacy. For example, when weighing the invasiveness of urinalysis of high school athletes, the Court noted that “[l]egitimate privacy expectations are even less with re­ gard to student athletes. . . . Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.” Id., at 657. Likewise, the Court has used a context-specific benchmark inapplicable to the public at large when “the expectations of privacy of cov­ ered employees are diminished by reason of their participa­ tion in an industry that is regulated pervasively,” Skinner, 489 U. S., at 627, or when “the ‘operational realities of the workplace’ may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts,” Von Raab, 489 U. S., at 671. The expectations of privacy of an individual taken into police custody “necessarily [are] of a diminished scope.” Bell, 441 U. S., at 557. “[B]oth the person and the property in his immediate possession may be searched at the station house.” United States v. Edwards, 415 U.S. 800, Cite as: 569 U. S. ____ (2013) 25 Opinion of the Court 803 (1974). A search of the detainee’s person when he is booked into custody may “ ‘involve a relatively extensive exploration,’ ” Robinson, 414 U. S., at 227, including “re­ quir[ing] at least some detainees to lift their genitals or cough in a squatting position,” Florence, 566 U. S., at ___ (slip op., at 13). In this critical respect, the search here at issue differs from the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens that the Court has previously labeled as “ ‘special needs’ ” searches. Chandler v. Miller, 520 U.S. 305, 314 (1997). When the police stop a motorist at a checkpoint, see Indianapolis v. Edmond, 531 U.S. 32 (2000), or test a political candidate for illegal narcotics, see Chandler, supra, they intrude upon substantial expecta­ tions of privacy. So the Court has insisted on some pur­ pose other than “to detect evidence of ordinary criminal wrongdoing” to justify these searches in the absence of individualized suspicion. Edmond, supra, at 38. Once an individual has been arrested on probable cause for a dan­ gerous offense that may require detention before trial, however, his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify search­ ing the average citizen. The special needs cases, though in full accord with the result reached here, do not have a direct bearing on the issues presented in this case, be­ cause unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy. The reasonableness inquiry here considers two other circumstances in which the Court has held that particular­ ized suspicion is not categorically required: “diminished expectations of privacy [and] minimal intrusions.” McAr- thur, 531 U. S., at 330. This is not to suggest that any 26 MARYLAND v. KING Opinion of the Court search is acceptable solely because a person is in custody. Some searches, such as invasive surgery, see Winston, 470 U.S. 753, or a search of the arrestee’s home, see Chimel v. California, 395 U.S. 752 (1969), involve either greater intrusions or higher expectations of privacy than are present in this case. In those situations, when the Court must “balance the privacy-related and law enforcement­ related concerns to determine if the intrusion was rea­ sonable,” McArthur, supra, at 331, the privacy-related concerns are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee. Here, by contrast to the approved standard procedures incident to any arrest detailed above, a buccal swab in­ volves an even more brief and still minimal intrusion. A gentle rub along the inside of the cheek does not break the skin, and it “involves virtually no risk, trauma, or pain.” Schmerber, 384 U. S., at 771. “A crucial factor in analyz­ ing the magnitude of the intrusion . . . is the extent to which the procedure may threaten the safety or health of the individual,” Winston, supra, at 761, and nothing sug­ gests that a buccal swab poses any physical danger what­ soever. A brief intrusion of an arrestee’s person is subject to the Fourth Amendment, but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest. B In addition the processing of respondent’s DNA sam­ ple’s 13 CODIS loci did not intrude on respondent’s privacy in a way that would make his DNA identification unconstitutional. First, as already noted, the CODIS loci come from non­ coding parts of the DNA that do not reveal the genetic traits of the arrestee. While science can always progress further, and those progressions may have Fourth Amend­ Cite as: 569 U. S. ____ (2013) 27 Opinion of the Court ment consequences, alleles at the CODIS loci “are not at present revealing information beyond identification.” Katsanis & Wagner, Characterization of the Standard and Recommended CODIS Markers, 58 J. Forensic Sci. S169, S171 (2013). The argument that the testing at issue in this case reveals any private medical information at all is open to dispute. And even if non-coding alleles could provide some in­ formation, they are not in fact tested for that end. It is undisputed that law enforcement officers analyze DNA for the sole purpose of generating a unique identifying num­ ber against which future samples may be matched. This parallels a similar safeguard based on actual practice in the school drug-testing context, where the Court deemed it “significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic.” Vernonia School Dist. 47J, 515 U. S., at 658. If in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here. Finally, the Act provides statutory protections that guard against further invasion of privacy. As noted above, the Act requires that “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” Md. Pub. Saf. Code Ann. §2–505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of individuals as speci­ fied in this subtitle.” §2–512(c). This Court has noted often that “a ‘statutory or regulatory duty to avoid unwar­ ranted disclosures’ generally allays . . . privacy concerns.” NASA v. Nelson, 562 U.S. ___, ___ (2011) (slip op., at 20) (quoting Whalen v. Roe, 429 U.S. 589, 605 (1977)). The Court need not speculate about the risks posed “by a 28 MARYLAND v. KING Opinion of the Court system that did not contain comparable security provi­ sions.” Id., at 606. In light of the scientific and statutory safeguards, once respondent’s DNA was lawfully collected the STR analysis of respondent’s DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification imper­ missible under the Fourth Amendment. * * * In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identi­ fication of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. The judgment of the Court of Appeals of Maryland is reversed. It is so ordered. Cite as: 569 U. S. ____ (2013) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 12–207 _________________ MARYLAND, PETITIONER v. ALONZO JAY KING, JR.

In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Salisbury, Maryland. He raped her. The police were unable to identify or appre­ hend the assailant based on any detailed description or other evidence they then had, but they did obtain from the victim a sample of the perpetrator’s DNA. In 2009 Alonzo King was arrested in Wicomico County, Maryland, and charged with first- and second-degree assault for menacing a group of people with a shotgun. As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and con­ victed for the rape. Additional DNA samples were taken from him and used in the rape trial, but there seems to be no doubt that it was the DNA from the cheek sample taken at the time he was booked in 2009 that led to his first having been linked to the rape and charged with its commission. The Court of Appeals of Maryland, on review of King’s 2 MARYLAND v. KING Opinion of the Court rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure be­ cause obtaining and using the cheek swab was an unrea­ sonable search of the person. It set the rape conviction aside. This Court granted certiorari and now reverses the judgment of the Maryland court. I When King was arrested on April 10, 2009, for menac­ ing a group of people with a shotgun and charged in state court with both first- and second-degree assault, he was processed for detention in custody at the Wicomico County Central Booking facility. Booking personnel used a cheek swab to take the DNA sample from him pursuant to provi­ sions of the Maryland DNA Collection Act (or Act). On July 13, 2009, King’s DNA record was uploaded to the Maryland DNA database, and three weeks later, on August 4, 2009, his DNA profile was matched to the DNA sample collected in the unsolved 2003 rape case. Once the DNA was matched to King, detectives presented the foren­ sic evidence to a grand jury, which indicted him for the rape. Detectives obtained a search warrant and took a second sample of DNA from King, which again matched the evidence from the rape. He moved to suppress the DNA match on the grounds that Maryland’s DNA collec­ tion law violated the Fourth Amendment. The Circuit Court Judge upheld the statute as constitutional. King pleaded not guilty to the rape charges but was convicted and sentenced to life in prison without the possibility of parole. In a divided opinion, the Maryland Court of Appeals struck down the portions of the Act authorizing collection of DNA from felony arrestees as unconstitutional. The majority concluded that a DNA swab was an unreasonable search in violation of the Fourth Amendment because King’s “expectation of privacy is greater than the State’s Cite as: 569 U. S. (2013) 3 Opinion of the Court purported interest in using King’s DNA to identify him.” In reach- ing that conclusion the Maryland Court relied on the deci­ sions of various other courts that have concluded that DNA identification of arrestees is impermissible. See, e.g., (offi­ cially depublished); Mario Both federal and state courts have reached differing conclusions as to whether the Fourth Amendment prohib­ its the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges. This Court granted certiorari, 568 U. S. to address the question. King is the respondent here. II The advent of DNA technology is one of the most signifi­ cant scientific advancements of our era. The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed. Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986, see J. Butler, Fundamentals of Forensic DNA Typing 5 (hereinafter Butler), law enforcement, the defense bar, and the courts have acknowledged DNA testing’s “unparalleled ability both to exoate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.” District Attorney’s Office for Third Judicial A The current standard for forensic DNA testing relies on an analysis of the chromosomes located within the nucleus of all human cells. “The DNA material in chromosomes is 4 MARYLAND v. KING Opinion of the Court composed of ‘coding’ and ‘noncoding’ regions. The coding regions are known as genes and contain the information necessary for a cell to make proteins. Non-protein­ coding regions are not related directly to making pro­ teins, [and] have been referred to as ‘junk’ DNA.” Butler 25. The adjective “junk” may mislead the layperson, for in fact this is the DNA region used with near certainty to identify a person. The term apparently is intended to indicate that this particular noncoding region, while use­ ful and even dispositive for purposes like identity, does not show more far-reaching and complex characteristics like genetic traits. Many of the patterns found in DNA are shared among all people, so forensic analysis focuses on “repeated DNA sequences scattered throughout the human genome,” known as “short tandem repeats” (STRs). at 147–148. The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as “alleles,” ; and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual. Future refinements may improve pres- ent technology, but even now STR analysis makes it “possible to determine whether a biological tissue match­ es a suspect with near certainty.” The Act authorizes Maryland law enforcement author­ ities to collect DNA samples from “an individual who is charged with a crime of violence or an attempt to commit a crime of violence; or burglary or an attempt to commit burglary.” Md. Pub. Saf. Code Ann. 504(a)(3)(i) Maryland law defines a crime of violence to include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Md. Crim. Law Code Ann. Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). Md. Pub. Saf. Code Ann. Cite as: 569 U. S. (2013) 5 Opinion of the Court 504(d)(1) It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. If “all qualifying criminal charges are determined to be unsupported by probable cause the DNA sample shall be immediately destroyed.” 504(d)(2)(i). DNA samples are also de­ stroyed if “a criminal action begun against the individual does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon.” 511(a)(1). The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” 505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for infor­ mation that does not relate to the identification of indi­ viduals as specified in this subtitle.” 512(c). Tests for familial matches are also prohibited. See 506(d) (“A person may not perform a search of the statewide DNA data base for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA sample was acquired”). The officers involved in taking and analyzing respondent’s DNA sample complied with the Act in all respects. Respondent’s DNA was collected in this case using a common procedure known as a “buccal swab.” “Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual’s mouth to collect some skin cells.” Butler 86. The procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no “surgical intrusio[n] beneath the skin,” v. Lee, 470 U.S. 753, 760 and it poses no “threa[t] to the health or 6 MARYLAND v. KING Opinion of the Court safety” of arrestees, B Respondent’s identification as the rapist resulted in part through the operation of a national project to standardize collection and storage of DNA profiles. Authorized by Congress and supervised by the Federal Bureau of Inves­ tigation, the Combined DNA Index System (CODIS) con­ nects DNA laboratories at the local, state, and national level. Since its authorization in 1994, the CODIS system has grown to include all 50 States and a number of federal agencies. CODIS collects DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic evidence found at crime scenes. To participate in CODIS, a local laboratory must sign a memorandum of understanding agreeing to adhere to quality standards and submit to audits to evaluate compliance with the federal standards for scientifically rigorous DNA testing. Butler 270. One of the most significant aspects of CODIS is the standardization of the points of comparison in DNA analy­ sis. The CODIS database is based on 13 loci at which the STR alleles are noted and compared. These loci make possible extreme accuracy in matching individual samples, with a “random match probability of approximately 1 in 100 trillion (assuming unrelated individuals).” The CODIS loci are from the non-protein coding junk regions of DNA, and “are not known to have any association with a genetic disease or any other genetic predisposition. Thus, the information in the database is only useful for human identity testing.” STR information is recorded only as a “string of numbers”; and the DNA identification is accompanied only by information denoting the laboratory and the analyst responsible for the submis­ sion. In short, CODIS sets uniform national standards for DNA matching and then facilitates connec­ Cite as: 569 U. S. (2013) 7 Opinion of the Court tions between local law enforcement agencies who can share more specific information about matched STR profiles. All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice. See Brief for Respondent 48. Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees. See Brief for State of California et al. as Amici Curiae 4, n. 1 (States Brief) (collecting state statutes). Although those statutes vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. At issue is a stand­ ard, expanding technology already in widespread use throughout the Nation. III A Although the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established. The Fourth Amendment, binding on the States by the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It can be agreed that using a buccal swab on the in tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any “intrusio[n] into the human body,” will work an invasion of “ ‘cherished personal secu­ rity’ that is subject to constitutional scrutiny,” v. Murphy, ). The Court has applied the Fourth Amendment to police efforts to draw blood, see Missouri v. McNeely, 569 U. S. 8 MARYLAND v. KING Opinion of the Court (2013), scraping an arrestee’s fingernails to obtain trace evidence, see and even to “a breathalyzer test, which geally requires the production of alveolar or ‘deep lung’ breath for chemical analysis,” v. Railway Labor Executives’ Assn., (1989). A buccal swab is a far more gentle process than a veni­ puncture to draw blood. It involves but a light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no “surgical intrusions beneath the skin.” 470 U. S., at 760. The fact than an intrusion is negligible is of cen­ tral relevance to determining reasonableness, although it is still a search as the law defines that term. B To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis. “[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper man.” “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘rea­ sonableness.’ ” Vernonia School Dist. v. Acton, 515 U.S. 646, 652 (1995). In giving content to the inquiry whether an intrusion is reasonable, the Court has pre­ ferred “some quantum of individualized suspicion [as] a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible require­ ment of such suspicion.” United 560– (citation and footnote omitted). In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has Cite as: 569 U. S. (2013) 9 Opinion of the Court found that certain geal, or individual, circumstances may render a warrantless search or seizure reasonable.” Those circumstances diminish the need for a warrant, either because “the public interest is such that neither a warrant nor probable cause is required,” Maryland v. Buie, 494 U.S. 325, 331 or because an individual is already on notice, for instance because of his employment, see or the conditions of his release from gov­ ernment custody, see (2006), that some reasonable police intrusion on his pri­ vacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the “interpo[lation of] a neutral magistrate between the citizen and the law enforcement officer.” Treasury 667 (1989). The instant case can be addressed with this background. The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with seri­ ous crimes must furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks. The arrestee is already in valid police custody for a serious offense supported by probable cause. The DNA collection is not subject to the judgment of officers whose perspective might be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.’ ” Terry, (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)). As noted by this Court in a different but still instructive context involving blood testing, “[b]oth the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined nar- rowly and specifically in the regulations that authorize them Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtu­ 10 MARYLAND v. KING Opinion of the Court ally no facts for a neutral magistrate to evaluate.” Skin- 2. Here, the search effected by the buccal swab of respondent falls within the category of cases this Court has analyzed by reference to the proposition that the “touchstone of the Fourth Amendment is reason­ ableness, not individualized suspicion.” at 8, n. 4. Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and man of execution. Urgent government interests are not a license for indiscriminate police behav­ ior. To say that no warrant is required is merely to acknowledge that “rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” This applica­ tion of “traditional standards of reasonableness” requires a court to weigh “the promotion of legitimate governmen­ tal interests” against “the degree to which [the search] intrudes upon an individual’s privacy.” 526 U.S. An assessment of reasona­ bleness to determine the lawfulness of requiring this class of arrestees to provide a DNA sample is central to the instant case. IV A The legitimate government interest served by the Mary­ land DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accu­ rate way to process and identify the persons and posses­ sions they must take into custody. It is beyond dispute that “probable cause provides legal justification for arrest­ ing a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Cite as: 569 U. S. (2013) 11 Opinion of the Court Also uncontested is the “right on the part of the Govern­ ment, always recognized under English and American law, to search the person of the accused when legally arrested.” over­ ruled on other grounds, (1961). “The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged.” United Even in that context, the Court has been clear that indi­ vidual suspicion is not necessary, because “[t]he constitu­ tionality of a search incident to an arrest does not depend on whether there is any indication that the person ar­ rested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.” Michigan v. DeFillippo, The “routine administrative procedure[s] at a police sta­ tion house incident to booking and jailing the suspect” derive from different origins and have different constitu­ tional justifications than, say, the search of a place, Illi- ; for the search of a place not incident to an arrest depends on the “fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates, 462 U.S. 213, 238 The interests are further different when an individual is formally processed into police custody. Then “the law is in the act of subjecting the body of the accused to its physical dominion.” When probable cause exists to remove an individual from the normal channels of society and hold him in legal cus­ tody, DNA identification plays a critical role in serving those interests. First, “[i]n every criminal case, it is known and must be known who has been arrested and who is being tried.” v. Sixth Judicial Dist. Court of Nev., Humboldt 12 An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody. “It is a well recognized aspect of criminal conduct that the per­ petrator will take unusual steps to conceal not only his conduct, but also his identity. Disguises used while com­ mitting a crime may be supplemented or replaced by changed names, and even changed physical features.” An “ar­ restee may be carrying a false ID or lie about his identity,” and “criminal history records can be inaccurate or incomplete.” v. Board of Chosen Freeholders of County of Burlington, 566 U.S. (slip op., at 16). A suspect’s criminal history is a critical part of his iden­ tity that officers should know when processing him for detention. It is a common occurrence that “[p]eople de­ tained for minor offenses can turn out to be the most devious and dangerous criminals. Hours after the Okla­ homa City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.” at (slip op., at 14) (citations omitted). Police already seek this crucial identifying information. They use routine and accepted means as varied as comparing the suspect’s booking pho­ tograph to sketch artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of course making a computerized comparison of the arrestee’s fin­ Cite as: 569 U. S. (2013) 13 Opinion of the Court gerprints against electronic databases of known criminals and unsolved crimes. In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides. The task of identification necessarily entails searching public and police records based on the identifying infor­ mation provided by the arrestee to see what is already known about him. The DNA collected from arrestees is an irrefutable identification of the person from whom it was taken. Like a fingerprint, the 13 CODIS loci are not themselves evidence of any particular crime, in the way that a drug test can by itself be evidence of illegal narcot­ ics use. A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidenti­ fied suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene. See Tr. of Oral Arg. 19. DNA is another metric of identifica­ tion used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police. Those records may be linked to the arrestee by a variety of relevant forms of identifica­ tion, including name, alias, date and time of previous convictions and the name then used, photograph, Social Security number, or CODIS profile. These data, found in official records, are checked as a routine matter to produce a more comprehensive record of the suspect’s complete identity. Finding occurrences of the arrestee’s CODIS profile in outstanding cases is consistent with this com­ mon practice. It uses a different form of identification than a name or fingerprint, but its function is the same. Second, law enforcement officers bear a responsibility for ensuring that the custody of an arrestee does not cre­ 14 MARYLAND v. KING Opinion of the Court ate inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” at (slip op., at 10). DNA identification can provide untainted information to those charged with de­ taining suspects and detaining the property of any felon. For these purposes officers must know the type of person whom they are detaining, and DNA allows them to make critical choices about how to proceed. “Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and al­ low the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Recognizing that a name alone cannot address this inter­ est in identity, the Court has approved, for example, “a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process,” because “[t]he identification and isolation of gang members before they are admitted protects everyone.” at (slip op., at 11). Third, looking forward to future stages of criminal prosecution, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” A per­ son who is arrested for one offense but knows that he has yet to answer for some past crime may be more inclined to flee the instant charges, lest continued contact with the criminal justice system expose one or more other serious Cite as: 569 U. S. (2013) 15 Opinion of the Court offenses. For example, a defendant who had committed a prior sexual assault might be inclined to flee on a burglary charge, knowing that in every State a DNA sample would be taken from him after his conviction on the burglary charge that would tie him to the more serious charge of rape. In addition to subverting the administration of justice with respect to the crime of arrest, this ties back to the interest in safety; for a detainee who absconds from custody presents a risk to law enforcement officers, other detainees, victims of previous crimes, witnesses, and society at large. Fourth, an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and this will inform a court’s determination whether the individual should be released on bail. “The government’s interest in preventing crime by arrestees is both legitimate and com­ pelling.” United (1987). DNA identification of a suspect in a violent crime provides critical information to the police and judicial officials in making a determination of the arrestee’s future dangerousness. This inquiry always has entailed some scrutiny beyond the name on the defendant’s driver’s license. For example, Maryland law requires a judge to take into account not only “the nature and circumstances of the offense charged” but also “the defendant’s family ties, employment status and history, financial resources, reputation, character and mental condition, length of res­ idence in the community.” 1 Md. Rules 4–216(f)(1)(A), (C) (2013). Knowing that the defendant is wanted for a previous violent crime based on DNA identification is especially probative of the court’s consideration of “the danger of the defendant to the alleged victim, another person, or the community.” Rule 4–216(f)(1)(G); see also 18 U.S. C. (2006 ed. and Supp. V) (similar requirements). This interest is not speculative. In considering laws to 16 MARYLAND v. KING Opinion of the Court require collecting DNA from arrestees, government agen­ cies around the Nation found evidence of numerous cases in which felony arrestees would have been identified as violent through DNA identification matching them to previous crimes but who later committed additional crimes because such identification was not used to detain them. See Denver’s Study on Preventable Crimes (three examples), online at http://www.denverda.org/DNA_ Documents / Denver%27s%20Preventable%20Crimes%20 Study.pdf (all Internet materials as visited May 31, 2013, and available in Clerk of Court’s case file); Chi­ cago’s Study on Preventable Crimes (2005) (five exam- ples), online at http://www.denverda.org/DNA_Documents/ Arrestee_Database / Chicago%20Preventable%20Crimes- Final.pdf; Maryland Study on Preventable Crimes (2008) (three examples), online at http://www.denverda.org/DNA_ Documents/MarylandDNAarresteestudy.pdf. Present capabilities make it possible to complete a DNA identification that provides information essential to de­ termining whether a detained suspect can be released pending trial. See, e.g., States Brief 18, n. 10 (“DNA iden­ tification database samples have been processed in as few as two days in California, although around 30 days has been average”). Regardless of when the initial bail deci­ sion is made, release is not appropriate until a further determination is made as to the person’s identity in the sense not only of what his birth certificate states but also what other records and data disclose to give that identity more meaning in the whole context of who the person really is. And even when release is permitted, the back­ ground identity of the suspect is necessary for determining what conditions must be met before release is allowed. If release is authorized, it may take time for the conditions to be met, and so the time before actual release can be substantial. For example, in the federal system, defend­ ants released conditionally are detained on average for Cite as: 569 U. S. (2013) 17 Opinion of the Court 112 days; those released on unsecured bond for 37 days; on personal recognizance for 36 days; and on other finan­ cial conditions for 27 days. See Dept. of Justice, Bureau of Justice Statistics, Compendium of Federal Justice Statis­ tics 45 (NCJ–213476, Dec. 2006) online at http://bjs.gov/ content/pub/pdf/cfjs04.pdf. During this entire period, ad­ ditional and supplemental data establishing more about the person’s identity and background can provide critical information relevant to the conditions of release and whether to revisit an initial release determination. The facts of this case are illustrative. Though the record is not clear, if some thought were being given to releasing the respondent on bail on the gun charge, a release that would take weeks or months in any event, when the DNA report linked him to the prior rape, it would be relevant to the conditions of his release. The same would be true with a supplemental fingerprint report. Even if an arrestee is released on bail, development of DNA identification revealing the defendant’s unknown violent past can and should lead to the revocation of his conditional release. See 18 U.S. C. (providing for revocation of release); see also States Brief 11–12 (discuss­ ing examples where bail and diversion determinations were reversed after DNA identified the arrestee’s vio­ lent history). Pretrial release of a person charged with a dangerous crime is a most serious responsibility. It is reason­ able in all respects for the State to use an accepted data­ base to determine if an arrestee is the object of suspicion in other serious crimes, suspicion that may provide a strong incentive for the arrestee to escape and flee. Finally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense. “[P]rompt [DNA] testing would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque 18 MARYLAND v. KING Opinion of the Court detention of innocent people.” J. Dwyer, P. Neufeld, & B. Scheck, Actual Innocence 245 (2000). Because proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the “governmen- tal interests underlying a station-house search of the ar­ restee’s person and possessions may in some circumstances be even greater than those supporting a search imme­ diately following arrest.” Thus, the Court has been reluctant to circumscribe the authority of the police to conduct reasonable booking searches. For example, “[t]he standards traditionally governing a search incident to lawful arrest are not commuted to the stricter Terry standards.” Nor are these interests in identifica- tion served only by a search of the arrestee himself. “[I]nspection of an arrestee’s personal property may assist the police in ascertaining or verifying his identity.” Lafa- And though the Fifth Amendment’s protection against self-incrimination is not, as a geal rule, governed by a reasonableness standard, the Court has held that “questions reasonably related to the police’s administrative concerns fall outside the protec­ tions of Miranda [v. Arizona, ] and the answers thereto need not be suppressed.” Pennsylvania v. Muniz, B DNA identification represents an important advance in the techniques used by law enforcement to serve le­ gitimate police concerns for as long as there have been arrests, concerns the courts have acknowledged and ap­ proved for more than a century. Law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of ar­ restees. “Police had been using photography to capture Cite as: 569 U. S. (2013) 19 Opinion of the Court the faces of criminals almost since its invention.” S. Cole, Suspect Identities 20 Courts did not dispute that practice, concluding that a “sheriff in making an arrest for a felony on a warrant has the right to exercise a discretion [if] he should deem it necessary to the safe-keeping of a priso, and to prevent his escape, or to enable him the more readily to retake the priso if he should escape, to take his photograph.” State ex rel. By the time that it had become “the daily practice of the police officers and detectives of crime to use photographic pic­ tures for the discovery and identification of criminals,” the courts likewise had come to the conclusion that “it would be [a] matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.” Shaffer v. United States, 24 Ohio App. D. C. 417, 426 (1904). Beginning in 1887, some police adopted more exacting means to identify arrestees, using the system of precise physical measurements pioneered by the French anthro­ pologist Alphonse Bertillon. Bertillon identification con­ sisted of 10 measurements of the arrestee’s body, along with a “scientific analysis of the features of the face and an exact anatomical localization of the various scars, marks, &c., of the body.” Defense of the Bertillon System, N. Y. Times, Jan. 20, 1896, p. 3. “[W]hen a priso was brought in, his photograph was taken according to the Bertillon system, and his body measurements were then made. The measurements were made and noted down on the back of a card or a blotter, and the photograph of the priso was expected to be placed on the card. This card, therefore, furnished both the likeness and descrip­ tion of the priso, and was placed in the rogues’ gallery, and copies were sent to various cities where similar rec­ ords were kept.” People ex rel. Jones v. Diehl, 53 A.D. 645, 646, 65 N. Y. S. 801, 802 As in the present case, the point of taking this information about each ar­ 20 MARYLAND v. KING Opinion of the Court restee was not limited to verifying that the proper name was on the indictment. These procedures were used to “facilitate the recapture of escaped prisos,” to aid “the investigation of their past records and personal history,” and “to preserve the means of identification for fu- ture supervision after discharge.” (5); see also McGov- 519 (Ch. 1945) (“[C]riminal identification is said to have two main purposes: (1) The identification of the accused as the person who committed the crime for which he is being held; and, (2) the identification of the accused as the same person who has been previously charged with, or convicted of, other offenses against the criminal law”). Perhaps the most direct historical analogue to the DNA technology used to identify respondent is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had no trouble determining that fingerprinting was a natural part of “the administrative steps incident to arrest.” County of In the seminal case of United F.2d 67 Judge Augustus Hand wrote that routine fingerprinting did not violate the Fourth Amendment precisely because it fit within the accepted means of processing an arrestee into custody: “Finger printing seems to be no more than an exten­ sion of methods of identification long used in dealing with persons under arrest for real or supposed vio­ lations of the criminal laws. It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggrega­ tions of people in urban centers have rendered the no­ toriety of the individual in the community no longer a ready means of identification. Cite as: 569 U. S. (2013) 21 Opinion of the Court “We find no ground in reason or authority for inter­ fering with a method of identifying persons charged with crime which has now become widely known and frequently practiced.” at 69–70. By the middle of the 20th century, it was considered “ele­ mentary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.” (citations omitted). DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intru­ sion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, see Part V, infra, and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his finger­ prints cannot escape the revealing power of his DNA. The respondent’s primary objection to this analogy is that DNA identification is not as fast as fingerprinting, and so it should not be considered to be the 21st-century equivalent. See Tr. of Oral Arg. 53. But rapid analysis of fingerprints is itself of recent vintage. The FBI’s vaunted Integrated Automated Fingerprint Identification System (IAFIS) was only “launched on July 28, 1999. Prior to this time, the processing of fingerprint submissions was largely a manual, labor-intensive process, taking weeks or months to process a single submission.” Federal Bureau of Investigation, Integrated Automated Fingerprint Identifi­ cation System, online at http://www.fbi.gov/about-us/cjis/ fingerprints_biometrics/iafis/iafis. It was not the advent of 22 MARYLAND v. KING Opinion of the Court this technology that rendered fingerprint analysis consti­ tutional in a single moment. The question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. Cf. Ontario v. Quon, 560 U.S. (2010) (slip op., at 15). Given the importance of DNA in the identification of police records pertaining to arrestees and the need to refine and confirm that identity for its important bearing on the decision to continue release on bail or to impose of new conditions, DNA serves an essen­ tial purpose despite the existence of delays such as the one that occurred in this case. Even so, the delay in processing DNA from arrestees is being reduced to a sub­ stantial degree by rapid technical advances. See, e.g., At­ torney Geal DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4, 2013) online at http://ohioattorneygeal.gov/Media/News-Releases/January- 2013/Attorney- Geal - DeWine -Announces- Significant- Drop; Gov. Jindal Announces Elimination of DNA Backlog, DNA Unit Now Operating in Real Time online at http:// www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail &articleID=3102. And the FBI has already begun testing devices that will enable police to process the DNA of ar­ restees within 90 minutes. See Brief for National District Attorneys Association as Amicus Curiae 20–21; Tr. of Oral Arg. 17. An assessment and understanding of the reason­ ableness of this minimally invasive search of a person detained for a serious crime should take account of these technical advances. Just as fingerprinting was constitu­ tional for geations prior to the introduction of IAFIS, DNA identification of arrestees is a permissible tool of law enforcement today. New technology will only further Cite as: 569 U. S. (2013) 23 Opinion of the Court improve its speed and therefore its effectiveness. And, as noted above, actual release of a serious offender as a rou­ tine matter takes weeks or months in any event. By iden­ tifying not only who the arrestee is but also what other available records disclose about his past to show who he is, the police can ensure that they have the proper person under arrest and that they have made the necessary arrangements for his custody; and, just as important, they can also prevent suspicion against or prosecution of the innocent. In sum, there can be little reason to question “the legit­ imate interest of the government in knowing for an abso­ lute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” 3 W. LaFave, Search and Seizure p. 216 To that end, courts have confirmed that the Fourth Amendment allows police to take certain routine “admin­ istrative steps incident to arrest—i.e., book[ing], pho­ tograph[ing], and fingerprint[ing].” McLaughlin, 500 U. S., at DNA identification of arrestees, of the type approved by the Maryland statute here at issue, is “no more than an extension of methods of identification long used in dealing with persons under arrest.” Kelly, F. 2d, at 69. In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the un­ matched potential of DNA identification to serve that interest. V A By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a 24 MARYLAND v. KING Opinion of the Court minimal one. True, a significant government interest does not alone suffice to justify a search. The government interest must outweigh the degree to which the search in­ vades an individual’s legitimate expectations of privacy. In considering those expectations in this case, however, the necessary predicate of a valid arrest for a serious offense is fundamental. “Although the underlying com­ mand of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” New “[T]he legiti­ macy of certain privacy expectations vis-à-vis the State may depend upon the individual’s legal relationship with the State.” Vernonia School Dist. The reasonableness of any search must be considered in the context of the person’s legitimate expectations of privacy. For example, when weighing the invasiveness of urinalysis of high school athletes, the Court noted that “[l]egitimate privacy expectations are even less with re­ gard to student athletes. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.” Likewise, the Court has used a context-specific benchmark inapplicable to the public at large when “the expectations of privacy of cov­ ered employees are diminished by reason of their participa­ tion in an industry that is regulated pervasively,” 489 U. S., 7, or when “the ‘operational realities of the workplace’ may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts,” Von The expectations of privacy of an individual taken into police custody “necessarily [are] of a diminished scope.” 441 U. S., at 7. “[B]oth the person and the property in his immediate possession may be searched at the station house.” United Cite as: 569 U. S. (2013) 25 Opinion of the Court 803 (1974). A search of the detainee’s person when he is booked into custody may “ ‘involve a relatively extensive exploration,’ ” including “re­ quir[ing] at least some detainees to lift their genitals or cough in a squatting position,” 566 U. S., at (slip op., at 13). In this critical respect, the search here at issue differs from the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens that the Court has previously labeled as “ ‘special needs’ ” searches. v. Miller, 520 U.S. 305, 314 (1997). When the police stop a motorist at a checkpoint, see (2000), or test a political candidate for illegal narcotics, see they intrude upon substantial expecta­ tions of privacy. So the Court has insisted on some pur­ pose other than “to detect evidence of ordinary criminal wrongdoing” to justify these searches in the absence of individualized suspicion. Once an individual has been arrested on probable cause for a dan­ gerous offense that may require detention before trial, however, his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify search­ ing the average citizen. The special needs cases, though in full accord with the result reached here, do not have a direct bearing on the issues presented in this case, be­ cause unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy. The reasonableness inquiry here considers two other circumstances in which the Court has held that particular­ ized suspicion is not categorically required: “diminished expectations of privacy [and] minimal intrusions.” McAr- 531 U. S., at This is not to suggest that any 26 MARYLAND v. KING Opinion of the Court search is acceptable solely because a person is in custody. Some searches, such as invasive surgery, see 470 U.S. 753, or a search of the arrestee’s home, see Chimel v. California, involve either greater intrusions or higher expectations of privacy than are present in this case. In those situations, when the Court must “balance the privacy-related and law enforcement­ related concerns to determine if the intrusion was rea­ sonable,” the privacy-related concerns are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee. Here, by contrast to the approved standard procedures incident to any arrest detailed above, a buccal swab in­ volves an even more brief and still minimal intrusion. A gentle rub along the inside of the cheek does not break the skin, and it “involves virtually no risk, trauma, or pain.” “A crucial factor in analyz­ ing the magnitude of the intrusion is the extent to which the procedure may threaten the safety or health of the individual,” and nothing sug­ gests that a buccal swab poses any physical danger what­ soever. A brief intrusion of an arrestee’s person is subject to the Fourth Amendment, but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest. B In addition the processing of respondent’s DNA sam­ ple’s 13 CODIS loci did not intrude on respondent’s privacy in a way that would make his DNA identification unconstitutional. First, as already noted, the CODIS loci come from non­ coding parts of the DNA that do not reveal the genetic traits of the arrestee. While science can always progress further, and those progressions may have Fourth Amend­ Cite as: 569 U. S. (2013) 27 Opinion of the Court ment consequences, alleles at the CODIS loci “are not at present revealing information beyond identification.” Katsanis & Wag, Characterization of the Standard and Recommended CODIS Markers, J. Forensic Sci. S169, S171 (2013). The argument that the testing at issue in this case reveals any private medical information at all is open to dispute. And even if non-coding alleles could provide some in­ formation, they are not in fact tested for that end. It is undisputed that law enforcement officers analyze DNA for the sole purpose of geating a unique identifying num­ ber against which future samples may be matched. This parallels a similar safeguard based on actual practice in the school drug-testing context, where the Court deemed it “significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic.” Vernonia School Dist. 515 U. S., at 6. If in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here. Finally, the Act provides statutory protections that guard against further invasion of privacy. As noted above, the Act requires that “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” Md. Pub. Saf. Code Ann. 505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of individuals as speci­ fied in this subtitle.” 512(c). This Court has noted often that “a ‘statutory or regulatory duty to avoid unwar­ ranted disclosures’ geally allays privacy concerns.” NASA v. Nelson, 562 U.S. (slip op., at 20) ). The Court need not speculate about the risks posed “by a 28 MARYLAND v. KING Opinion of the Court system that did not contain comparable security provi­ sions.” In light of the scientific and statutory safeguards, once respondent’s DNA was lawfully collected the STR analysis of respondent’s DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification imper­ missible under the Fourth Amendment. * * * In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identi­ fication of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. The judgment of the Court of Appeals of Maryland is reversed. It is so ordered. Cite as: 569 U. S. (2013) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES No. 12–207 MARYLAND, PETITIONER v. ALONZO JAY KING, JR.

Justice Scalia

dissenting

Maryland v. King

2013-06-03

https://www.courtlistener.com/opinion/873669/maryland-v-king/

https://www.courtlistener.com/api/rest/v3/clusters/873669/

2012-050

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incrimi- nating evidence. That prohibition is categorical and with- out exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspi- cionless search, it has insisted upon a justifying motive apart from the investigation of crime. It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work. I A At the time of the Founding, Americans despised the British use of so-called “general warrants”—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and 2 MARYLAND v. KING SCALIA, J., dissenting application. The first Virginia Constitution declared that “general warrants, whereby any officer or messenger may be commanded to search suspected places without evi- dence of a fact committed,” or to search a person “whose offence is not particularly described and supported by evidence,” “are grievous and oppressive, and ought not be granted.” Va. Declaration of Rights §10 (1776), in 1 B. Schwartz, The Bill of Rights: A Documentary History 234, 235 (1971). The Maryland Declaration of Rights similarly provided that general warrants were “illegal.” Md. Decla- ration of Rights §XXIII (1776), in id., at 280, 282. In the ratification debates, Antifederalists sarcastically predicted that the general, suspicionless warrant would be among the Constitution’s “blessings.” Blessings of the New Government, Independent Gazetteer, Oct. 6, 1787, in 13 Documentary History of the Ratification of the Constitu- tion 345 (J. Kaminski & G. Saladino eds. 1981). “Brutus” of New York asked why the Federal Constitution con- tained no provision like Maryland’s, Brutus II, N. Y. Jour- nal, Nov. 1, 1787, in id., at 524, and Patrick Henry warned that the new Federal Constitution would expose the citi- zenry to searches and seizures “in the most arbitrary manner, without any evidence or reason.” 3 Debates on the Federal Constitution 588 (J. Elliot 2d ed. 1854). Madison’s draft of what became the Fourth Amendment answered these charges by providing that the “rights of the people to be secured in their persons . . . from all un- reasonable searches and seizures, shall not be violated by warrants issued without probable cause . . . or not particu- larly describing the places to be searched.” 1 Annals of Cong. 434–435 (1789). As ratified, the Fourth Amend- ment’s Warrant Clause forbids a warrant to “issue” except “upon probable cause,” and requires that it be “particula[r]” (which is to say, individualized) to “the place to be searched, and the persons or things to be seized.” And we have held that, even when a warrant is not constitution- Cite as: 569 U. S. ____ (2013) 3 SCALIA, J., dissenting ally necessary, the Fourth Amendment’s general prohibition of “unreasonable” searches imports the same requirement of individualized suspicion. See Chandler v. Miller, 520 U.S. 305, 308 (1997). Although there is a “closely guarded category of consti- tutionally permissible suspicionless searches,” id., at 309, that has never included searches designed to serve “the normal need for law enforcement,” Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 619 (1989) (inter- nal quotation marks omitted). Even the common name for suspicionless searches—“special needs” searches—itself reflects that they must be justified, always, by concerns “other than crime detection.” Chandler, supra, at 313– 314. We have approved random drug tests of railroad employees, yes—but only because the Government’s need to “regulat[e] the conduct of railroad employees to ensure safety” is distinct from “normal law enforcement.” Skin- ner, supra, at 620. So too we have approved suspicionless searches in public schools—but only because there the government acts in furtherance of its “responsibilities . . . as guardian and tutor of children entrusted to its care.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 665 (1995). So while the Court is correct to note (ante, at 8–9) that there are instances in which we have permitted searches without individualized suspicion, “[i]n none of these cases . . . did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Indianapolis v. Edmond, 531 U.S. 32, 38 (2000). That limitation is crucial. It is only when a gov- ernmental purpose aside from crime-solving is at stake that we engage in the free-form “reasonableness” inquiry that the Court indulges at length today. To put it another way, both the legitimacy of the Court’s method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these DNA 4 MARYLAND v. KING SCALIA, J., dissenting searches is something other than simply discovering evi- dence of criminal wrongdoing. As I detail below, that proposition is wrong. B The Court alludes at several points (see ante, at 11, 25) to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. See Arizona v. Gant, 556 U.S. 332, 343–344 (2009); Thornton v. United States, 541 U.S. 615, 632 (2004) (SCALIA, J., concurring in judgment). Neither is the object of the search at issue here. The Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. Ante, at 25. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster. And the Court’s attempt to distinguish those hypothetical searches from this real one is unconvincing. We are told that the “privacy-related concerns” in the search of a home “are weighty enough that the search may require a warrant, notwithstanding the diminished expec- tations of privacy of the arrestee.” Ante, at 26. But why are the “privacy-related concerns” not also “weighty” when an intrusion into the body is at stake? (The Fourth Amendment lists “persons” first among the entities pro- tected against unreasonable searches and seizures.) And could the police engage, without any suspicion of wrongdo- ing, in a “brief and . . . minimal” intrusion into the home of an arrestee—perhaps just peeking around the curtilage a bit? See ante, at 26. Obviously not. At any rate, all this discussion is beside the point. No Cite as: 569 U. S. ____ (2013) 5 SCALIA, J., dissenting matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime- solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest). Sensing (correctly) that it needs more, the Court elabo- rates at length the ways that the search here served the special purpose of “identifying” King.1 But that seems to me quite wrong—unless what one means by “identifying” someone is “searching for evidence that he has committed crimes unrelated to the crime of his arrest.” At points the Court does appear to use “identifying” in that peculiar sense—claiming, for example, that knowing “an arrestee’s past conduct is essential to an assessment of the danger he poses.” Ante, at 15. If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law- enforcement aims that have never been thought to justify a suspicionless search. Searching every lawfully stopped car, for example, might turn up information about un- solved crimes the driver had committed, but no one would say that such a search was aimed at “identifying” him, and —————— 1 The Court’s insistence (ante, at 25) that our special-needs cases “do not have a direct bearing on the issues presented in this case” is per- plexing. Why spill so much ink on the special need of identification if a special need is not required? Why not just come out and say that any suspicionless search of an arrestee is allowed if it will be useful to solve crimes? The Court does not say that because most Members of the Court do not believe it. So whatever the Court’s major premise—the opinion does not really contain what you would call a rule of decision— the minor premise is “this search was used to identify King.” The incorrectness of that minor premise will therefore suffice to demon- strate the error in the Court’s result. 6 MARYLAND v. KING SCALIA, J., dissenting no court would hold such a search lawful. I will therefore assume that the Court means that the DNA search at issue here was useful to “identify” King in the normal sense of that word—in the sense that would identify the author of Introduction to the Principles of Morals and Legislation as Jeremy Bentham. 1 The portion of the Court’s opinion that explains the identification rationale is strangely silent on the actual workings of the DNA search at issue here. To know those facts is to be instantly disabused of the notion that what happened had anything to do with identifying King. King was arrested on April 10, 2009, on charges unre- lated to the case before us. That same day, April 10, the police searched him and seized the DNA evidence at issue here. What happened next? Reading the Court’s opinion, particularly its insistence that the search was necessary to know “who [had] been arrested,” ante, at 11, one might guess that King’s DNA was swiftly processed and his identity thereby confirmed—perhaps against some master database of known DNA profiles, as is done for finger- prints. After all, was not the suspicionless search here crucial to avoid “inordinate risks for facility staff” or to “existing detainee population,” ante, at 14? Surely, then— surely—the State of Maryland got cracking on those grave risks immediately, by rushing to identify King with his DNA as soon as possible. Nothing could be further from the truth. Maryland officials did not even begin the process of testing King’s DNA that day. Or, actually, the next day. Or the day after that. And that was for a simple reason: Maryland law forbids them to do so. A “DNA sample collected from an individual charged with a crime . . . may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date.” Md. Pub. Saf. Code Cite as: 569 U. S. ____ (2013) 7 SCALIA, J., dissenting Ann. §2–504(d)(1) (Lexis 2011) (emphasis added). And King’s first appearance in court was not until three days after his arrest. (I suspect, though, that they did not wait three days to ask his name or take his fingerprints.) This places in a rather different light the Court’s solemn declaration that the search here was necessary so that King could be identified at “every stage of the criminal process.” Ante, at 18. I hope that the Maryland officials who read the Court’s opinion do not take it seriously. Acting on the Court’s misperception of Maryland law could lead to jail time. See Md. Pub. Saf. Code Ann. §2–512(c)–(e) (punishing by up to five years’ imprisonment anyone who obtains or tests DNA information except as provided by statute). Does the Court really believe that Maryland did not know whom it was arraigning? The Court’s re- sponse is to imagine that release on bail could take so long that the DNA results are returned in time, or perhaps that bail could be revoked if the DNA test turned up incrimi- nating information. Ante, at 16–17. That is no answer at all. If the purpose of this Act is to assess “whether [King] should be released on bail,” ante, at 15, why would it possibly forbid the DNA testing process to begin until King was arraigned? Why would Maryland resign itself to simply hoping that the bail decision will drag out long enough that the “identification” can succeed before the arrestee is released? The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity. It gets worse. King’s DNA sample was not received by the Maryland State Police’s Forensic Sciences Division until April 23, 2009—two weeks after his arrest. It sat in that office, ripening in a storage area, until the custodians got around to mailing it to a lab for testing on June 25, 2009—two months after it was received, and nearly three since King’s arrest. After it was mailed, the data from the lab tests were not available for several more weeks, until 8 MARYLAND v. KING SCALIA, J., dissenting July 13, 2009, which is when the test results were entered into Maryland’s DNA database, together with information identifying the person from whom the sample was taken. Meanwhile, bail had been set, King had engaged in dis- covery, and he had requested a speedy trial—presumably not a trial of John Doe. It was not until August 4, 2009— four months after King’s arrest—that the forwarded sam- ple transmitted (without identifying information) from the Maryland DNA database to the Federal Bureau of Investi- gation’s national database was matched with a sample taken from the scene of an unrelated crime years earlier. A more specific description of exactly what happened at this point illustrates why, by definition, King could not have been identified by this match. The FBI’s DNA database (known as CODIS) consists of two distinct collections. FBI, CODIS and NDIS Fact Sheet, http:// www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet (all Internet materials as visited May 31, 2013, and avail- able in Clerk of Court’s case file). One of them, the one to which King’s DNA was submitted, consists of DNA sam- ples taken from known convicts or arrestees. I will refer to this as the “Convict and Arrestee Collection.” The other collection consists of samples taken from crime scenes; I will refer to this as the “Unsolved Crimes Collection.” The Convict and Arrestee Collection stores “no names or other personal identifiers of the offenders, arrestees, or detain- ees.” Ibid. Rather, it contains only the DNA profile itself, the name of the agency that submitted it, the laboratory personnel who analyzed it, and an identification number for the specimen. Ibid. This is because the submitting state laboratories are expected already to know the identi- ties of the convicts and arrestees from whom samples are taken. (And, of course, they do.) Moreover, the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Col- lection match any of the samples in the Convict and Ar- Cite as: 569 U. S. ____ (2013) 9 SCALIA, J., dissenting restee Collection. Ibid. That is sensible, if what one wants to do is solve those cold cases, but note what it requires: that the identity of the people whose DNA has been entered in the Convict and Arrestee Collection al- ready be known.2 If one wanted to identify someone in custody using his DNA, the logical thing to do would be to compare that DNA against the Convict and Arrestee Collection: to search, in other words, the collection that could be used (by checking back with the submitting state agency) to identify people, rather than the collection of evidence from unsolved crimes, whose perpetrators are by definition unknown. But that is not what was done. And that is because this search had nothing to do with identification. In fact, if anything was “identified” at the moment that the DNA database returned a match, it was not King—his identity was already known. (The docket for the original criminal charges lists his full name, his race, his sex, his height, his weight, his date of birth, and his address.) Rather, what the August 4 match “identified” was the previously-taken sample from the earlier crime. That sample was genuinely mysterious to Maryland; the State knew that it had probably been left by the victim’s attack- er, but nothing else. King was not identified by his associ- ation with the sample; rather, the sample was identified by its association with King. The Court effectively de- stroys its own “identification” theory when it acknowledges that the object of this search was “to see what [was] al- ready known about [King].” King was who he was, and —————— 2 By the way, this procedure has nothing to do with exonerating the wrongfully convicted, as the Court soothingly promises. See ante, at 17. The FBI CODIS database includes DNA from unsolved crimes. I know of no indication (and the Court cites none) that it also includes DNA from all—or even any—crimes whose perpetrators have already been convicted. 10 MARYLAND v. KING SCALIA, J., dissenting volumes of his biography could not make him any more or any less King. No minimally competent speaker of Eng- lish would say, upon noticing a known arrestee’s similarity “to a wanted poster of a previously unidentified suspect,” ante, at 13, that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified—just as, here, it was the previously unidentified rapist. 2 That taking DNA samples from arrestees has nothing to do with identifying them is confirmed not just by actual practice (which the Court ignores) but by the enabling statute itself (which the Court also ignores). The Mary- land Act at issue has a section helpfully entitled “Purpose of collecting and testing DNA samples.” Md. Pub. Saf. Code Ann. §2–505. (One would expect such a section to play a somewhat larger role in the Court’s analysis of the Act’s purpose—which is to say, at least some role.) That provision lists five purposes for which DNA samples may be tested. By this point, it will not surprise the reader to learn that the Court’s imagined purpose is not among them. Instead, the law provides that DNA samples are collected and tested, as a matter of Maryland law, “as part of an official investigation into a crime.” §2–505(a)(2). (Or, as our suspicionless-search cases would put it: for ordinary law-enforcement purposes.) That is certainly how every- one has always understood the Maryland Act until today. The Governor of Maryland, in commenting on our deci- sion to hear this case, said that he was glad, because “[a]llowing law enforcement to collect DNA samples . . . is absolutely critical to our efforts to continue driving down crime,” and “bolsters our efforts to resolve open investiga- tions and bring them to a resolution.” Marbella, Supreme Court Will Review Md. DNA Law, Baltimore Sun, Nov. 10, Cite as: 569 U. S. ____ (2013) 11 SCALIA, J., dissenting 2012, pp. 1, 14. The attorney general of Maryland re- marked that he “look[ed] forward to the opportunity to defend this important crime-fighting tool,” and praised the DNA database for helping to “bring to justice violent perpetrators.” Ibid. Even this Court’s order staying the decision below states that the statute “provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population”— with, unsurprisingly, no mention of identity. 567 U.S. ___, ___ (2012) (ROBERTS, C. J., in chambers) (slip op., at 3). More devastating still for the Court’s “identification” theory, the statute does enumerate two instances in which a DNA sample may be tested for the purpose of identifica- tion: “to help identify human remains,” §2–505(a)(3) (em- phasis added), and “to help identify missing individuals,” §2–505(a)(4) (emphasis added). No mention of identifying arrestees. Inclusio unius est exclusio alterius. And note again that Maryland forbids using DNA records “for any purposes other than those specified”—it is actually a crime to do so. §2–505(b)(2). The Maryland regulations implementing the Act con- firm what is now monotonously obvious: These DNA searches have nothing to do with identification. For ex- ample, if someone is arrested and law enforcement deter- mines that “a convicted offender Statewide DNA Data Base sample already exists” for that arrestee, “the agency is not required to obtain a new sample.” Code of Md. Regs., tit. 29, §05.01.04(B)(4) (2011). But how could the State know if an arrestee has already had his DNA sample collected, if the point of the sample is to identify who he is? Of course, if the DNA sample is instead taken in order to investigate crimes, this restriction makes perfect sense: Having previously placed an identified someone’s DNA on file to check against available crime-scene evidence, there is no sense in going to the expense of taking a new sample. 12 MARYLAND v. KING SCALIA, J., dissenting Maryland’s regulations further require that the “individ- ual collecting a sample . . . verify the identity of the indi- vidual from whom a sample is taken by name and, if applicable, State identification (SID) number.” §05.01.04(K). (But how?) And after the sample is taken, it continues to be identified by the individual’s name, finger- prints, etc., see §05.01.07(B)—rather than (as the Court believes) being used to identify individuals. See §05.01.07(B)(2) (“Records and specimen information shall be identified by . . . [the] [n]ame of the donor” (emphasis added)). So, to review: DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them. The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error. II The Court also attempts to bolster its identification theory with a series of inapposite analogies. See ante, at 18–23. Is not taking DNA samples the same, asks the Court, as taking a person’s photograph? No—because that is not a Fourth Amendment search at all. It does not involve a physical intrusion onto the person, see Florida v. Jardines, 569 U.S. 1, ___ (2013) (slip op., at 3), and we have never held that merely taking a person’s photograph invades any recognized “expectation of privacy,” see Katz v. United States, 389 U.S. 347 (1967). Thus, it is unsur- prising that the cases the Court cites as authorizing photo- Cite as: 569 U. S. ____ (2013) 13 SCALIA, J., dissenting taking do not even mention the Fourth Amendment. See State ex rel. Bruns v. Clausmier, 154 Ind. 599, 57 N.E. 541 (1900) (libel), Shaffer v. United States, 24 Ohio App. D. C. 417 (1904) (Fifth Amendment privilege against self- incrimination). But is not the practice of DNA searches, the Court asks, the same as taking “Bertillon” measurements—noting an arrestee’s height, shoe size, and so on, on the back of a photograph? No, because that system was not, in the ordinary case, used to solve unsolved crimes. It is possi- ble, I suppose, to imagine situations in which such meas- urements might be useful to generate leads. (If witnesses described a very tall burglar, all the “tall man” cards could then be pulled.) But the obvious primary purpose of such measurements, as the Court’s description of them makes clear, was to verify that, for example, the person arrested today is the same person that was arrested a year ago. Which is to say, Bertillon measurements were actually used as a system of identification, and drew their primary usefulness from that task.3 It is on the fingerprinting of arrestees, however, that the Court relies most heavily. Ante, at 20–23. The Court does not actually say whether it believes that taking a person’s fingerprints is a Fourth Amendment search, and our cases provide no ready answer to that question. Even assuming so, however, law enforcement’s post-arrest use of finger- prints could not be more different from its post-arrest use of DNA. Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves —————— 3 Puzzlingly, the Court’s discussion of photography and Bertillon measurements repeatedly cites state cases (such as Clausmier) that were decided before the Fourth Amendment was held to be applicable to the States. See Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio, 367 U.S. 643 (1961). Why the Court believes them relevant to the meaning of that Amendment is therefore something of a mystery. 14 MARYLAND v. KING SCALIA, J., dissenting crimes); the DNA of arrestees is taken to solve crimes (and nothing else). Contrast CODIS, the FBI’s nationwide DNA database, with IAFIS, the FBI’s Integrated Automated Fingerprint Identification System. See FBI, Integrated Automated Fingerprint Identification System, http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis (hereinafter IAFIS). Fingerprints DNA Samples The “average response DNA analysis can take time for an electronic months—far too long to be criminal fingerprint useful for identifying someone. submission is about 27 minutes.” IAFIS. IAFIS includes detailed CODIS contains “[n]o names identification information, or other personal identifiers of including “criminal histo- the offenders, arrestees, or ries; mug shots; scars and detainees.” See CODIS and tattoo photos; physical NDIS Fact Sheet. characteristics like height, weight, and hair and eye color.” “Latent prints” recovered The entire point of the DNA from crime scenes are not database is to check crime systematically compared scene evidence against the against the database of profiles of arrestees and known fingerprints, since convicts as they come in. that requires further forensic work.4 —————— 4 See,e.g., FBI, Privacy Impact Assessment: Integrated Automated Fingerprint Identification System (IAFIS)/Next Generation Identifica- tion (NGI) Repository for Individuals of Special Concern (RISC), Cite as: 569 U. S. ____ (2013) 15 SCALIA, J., dissenting The Court asserts that the taking of fingerprints was “constitutional for generations prior to the introduction” of the FBI’s rapid computer-matching system. Ante, at 22. This bold statement is bereft of citation to authority because there is none for it. The “great expansion in finger- printing came before the modern era of Fourth Amend- ment jurisprudence,” and so we were never asked to decide the legitimacy of the practice. United States v. Kincade, 379 F.3d 813, 874 (CA9 2004) (Kozinski, J., dissenting). As fingerprint databases expanded from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license, Americans simply “became accustomed to having our fingerprints on file in some government database.” Ibid. But it is wrong to suggest that this was uncontroversial at the time, or that this Court blessed universal fingerprinting for “generations” before it was possible to use it effectively for identification. The Court also assures us that “the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advances.” Ante, at 22. The idea, presumably, is that the snail’s pace in this case is atypical, so that DNA is now readily usable for identifica- tion. The Court’s proof, however, is nothing but a pair of press releases—each of which turns out to undercut this argument. We learn in them that reductions in backlog have enabled Ohio and Louisiana crime labs to analyze a submitted DNA sample in twenty days.5 But that is still —————— http://www.fbi.gov/foia/privacy-impact-assessments/iafis-ngi-risc (searches of the “Unsolved Latent File” may “take considerably more time”). 5 See Attorney General DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4, 2013), http://ohioattorneygeneral.gov/ Media/News-Releases/January-2013/Attorney-General-DeWine-Announces- Significant-Drop; Gov. Jindal Announces Elimination of DNA Backlog 16 MARYLAND v. KING SCALIA, J., dissenting longer than the eighteen days that Maryland needed to analyze King’s sample, once it worked its way through the State’s labyrinthine bureaucracy. What this illustrates is that these times do not take into account the many other sources of delay. So if the Court means to suggest that Maryland is unusual, that may be right—it may qualify in this context as a paragon of efficiency. (Indeed, the Gov- ernor of Maryland was hailing the elimination of that State’s backlog more than five years ago. See Wheeler, O’Malley Wants to Expand DNA Testing, Baltimore Sun, Jan. 11, 2008, p. 5B.) Meanwhile, the Court’s holding will result in the dumping of a large number of arrestee samples—many from minor offenders—onto an already over- burdened system: Nearly one-third of Americans will be arrested for some offense by age 23. See Brame, Turner, Paternoster, & Bushway, Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 Pediatrics 21 (2011). The Court also accepts uncritically the Government’s representation at oral argument that it is developing devices that will be able to test DNA in mere minutes. At most, this demonstrates that it may one day be possible to design a program that uses DNA for a purpose other than crime-solving—not that Maryland has in fact designed such a program today. And that is the main point, which the Court’s discussion of the brave new world of instant DNA analysis should not obscure. The issue before us is not whether DNA can some day be used for identification; nor even whether it can today be used for identification; but whether it was used for identification here. Today, it can fairly be said that fingerprints really are used to identify people—so well, in fact, that there would —————— (Nov. 17, 2011), http://www.gov.state.la.us/index.cfm?md=newsroom& tmp=detail&articleID=3102. Cite as: 569 U. S. ____ (2013) 17 SCALIA, J., dissenting be no need for the expense of a separate, wholly redundant DNA confirmation of the same information. What DNA adds—what makes it a valuable weapon in the law- enforcement arsenal—is the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known. That is what was going on when King’s DNA was taken, and we should not disguise the fact. Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the pro- tection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. * * * The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].” Ante, at 28; see also ante, at 1, 9, 14, 17, 22, 23, 24 (re- peatedly limiting the analysis to “serious offenses”). I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” Make no mistake about it: As an entirely predictable conse- quence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason. The most regrettable aspect of the suspicionless search 18 MARYLAND v. KING SCALIA, J., dissenting that occurred here is that it proved to be quite unneces- sary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is con- cerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations. Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an air- plane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one,6 will some day be repudiated. —————— 6 Compare, New York v. Belton, 453 U.S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U.S. 332 (2009) (on second thought, no)

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incrimi- nating evidence. That prohibition is categorical and with- out exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspi- cionless search, it has insisted upon a justifying motive apart from the investigation of crime. It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work. I A At the time of the Founding, Americans despised the British use of so-called “geal warrants”—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and 2 MARYLAND v. KING SCALIA, J., dissenting application. The first Virginia Constitution declared that “geal warrants, whereby any officer or messenger may be commanded to search suspected places without evi- dence of a fact committed,” or to search a person “whose offence is not particularly described and supported by evidence,” “are grievous and oppressive, and ought not be granted.” Va. Declaration of Rights (1776), in 1 B. Schwartz, The Bill of Rights: A Documentary History 234, 235 (1971). The Maryland Declaration of Rights similarly provided that geal warrants were “illegal.” Md. Decla- ration of Rights (1776), in In the ratification debates, Antifederalists sarcastically predicted that the geal, suspicionless warrant would be among the Constitution’s “blessings.” Blessings of the New Government, Independent Gazetteer, Oct. 6, 1787, in 13 Documentary History of the Ratification of the Constitu- tion 345 “Brutus” of New York asked why the Federal Constitution con- tained no provision like Maryland’s, Brutus II, N. Y. Jour- nal, Nov. 1, 1787, in and Patrick Henry warned that the new Federal Constitution would expose the citi- zenry to searches and seizures “in the most arbitrary man, without any evidence or reason.” 3 Debates on the Federal Constitution 588 (J. Elliot 2d ed. 1854). Madison’s draft of what became the Fourth Amendment answered these charges by providing that the “rights of the people to be secured in their persons from all un- reasonable searches and seizures, shall not be violated by warrants issued without probable cause or not particu- larly describing the places to be searched.” 1 Annals of Cong. 434–435 (1789). As ratified, the Fourth Amend- ment’s Warrant Clause forbids a warrant to “issue” except “upon probable cause,” and requires that it be “particula[r]” (which is to say, individualized) to “the place to be searched, and the persons or things to be seized.” And we have held that, even when a warrant is not constitution- Cite as: 569 U. S. 3 SCALIA, J., dissenting ally necessary, the Fourth Amendment’s geal prohibition of “unreasonable” searches imports the same requirement of individualized suspicion. See v. Miller, 520 U.S. 305, 308 (1997). Although there is a “closely guarded category of consti- tutionally permissible suspicionless searches,” that has never included searches designed to serve “the normal need for law enforcement,” (inter- nal quotation marks omitted). Even the common name for suspicionless searches—“special needs” searches—itself reflects that they must be justified, always, by concerns “other than crime detection.” at 313– 314. We have approved random drug tests of railroad employees, yes—but only because the Government’s need to “regulat[e] the conduct of railroad employees to ensure safety” is distinct from “normal law enforcement.” Skin- So too we have approved suspicionless searches in public schools—but only because there the government acts in furtherance of its “responsibilities as guardian and tutor of children entrusted to its care.” Vernonia School Dist. (1995). So while the Court is correct to note (ante, at 8–9) that there are instances in which we have permitted searches without individualized suspicion, “[i]n none of these cases did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” (2000). That limitation is crucial. It is only when a gov- ernmental purpose aside from crime-solving is at stake that we engage in the free-form “reasonableness” inquiry that the Court indulges at length today. To put it another way, both the legitimacy of the Court’s method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these DNA 4 MARYLAND v. KING SCALIA, J., dissenting searches is something other than simply discovering evi- dence of criminal wrongdoing. As I detail below, that proposition is wrong. B The Court alludes at several points (see ante, at 11, 25) to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. See Arizona v. Gant, ; (SCALIA, J., concurring in judgment). Neither is the object of the search at issue here. The Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. Ante, at 25. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster. And the Court’s attempt to distinguish those hypothetical searches from this real one is unconvincing. We are told that the “privacy-related concerns” in the search of a home “are weighty enough that the search may require a warrant, notwithstanding the diminished expec- tations of privacy of the arrestee.” Ante, at 26. But why are the “privacy-related concerns” not also “weighty” when an intrusion into the body is at stake? (The Fourth Amendment lists “persons” first among the entities pro- tected against unreasonable searches and seizures.) And could the police engage, without any suspicion of wrongdo- ing, in a “brief and minimal” intrusion into the home of an arrestee—perhaps just peeking around the curtilage a bit? See ante, at 26. Obviously not. At any rate, all this discussion is beside the point. No Cite as: 569 U. S. 5 SCALIA, J., dissenting matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime- solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest). Sensing (correctly) that it needs more, the Court elabo- rates at length the ways that the search here served the special purpose of “identifying” King.1 But that seems to me quite wrong—unless what one means by “identifying” someone is “searching for evidence that he has committed crimes unrelated to the crime of his arrest.” At points the Court does appear to use “identifying” in that peculiar sense—claiming, for example, that knowing “an arrestee’s past conduct is essential to an assessment of the danger he poses.” Ante, at 15. If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law- enforcement aims that have never been thought to justify a suspicionless search. Searching every lawfully stopped car, for example, might turn up information about un- solved crimes the driver had committed, but no one would say that such a search was aimed at “identifying” him, and —————— 1 The Court’s insistence (ante, at 25) that our special-needs cases “do not have a direct bearing on the issues presented in this case” is per- plexing. Why spill so much ink on the special need of identification if a special need is not required? Why not just come out and say that any suspicionless search of an arrestee is allowed if it will be useful to solve crimes? The Court does not say that because most Members of the Court do not believe it. So whatever the Court’s major premise—the opinion does not really contain what you would call a rule of decision— the minor premise is “this search was used to identify King.” The incorrectness of that minor premise will therefore suffice to demon- strate the error in the Court’s result. 6 MARYLAND v. KING SCALIA, J., dissenting no court would hold such a search lawful. I will therefore assume that the Court means that the DNA search at issue here was useful to “identify” King in the normal sense of that word—in the sense that would identify the author of Introduction to the Principles of Morals and Legislation as Jeremy Bentham. 1 The portion of the Court’s opinion that explains the identification rationale is strangely silent on the actual workings of the DNA search at issue here. To know those facts is to be instantly disabused of the notion that what happened had anything to do with identifying King. King was arrested on April 10, 2009, on charges unre- lated to the case before us. That same day, April 10, the police searched him and seized the DNA evidence at issue here. What happened next? Reading the Court’s opinion, particularly its insistence that the search was necessary to know “who [had] been arrested,” ante, at 11, one might guess that King’s DNA was swiftly processed and his identity thereby confirmed—perhaps against some master database of known DNA profiles, as is done for finger- prints. After all, was not the suspicionless search here crucial to avoid “inordinate risks for facility staff” or to “existing detainee population,” ante, at 14? Surely, then— surely—the State of Maryland got cracking on those grave risks immediately, by rushing to identify King with his DNA as soon as possible. Nothing could be further from the truth. Maryland officials did not even begin the process of testing King’s DNA that day. Or, actually, the next day. Or the day after that. And that was for a simple reason: Maryland law forbids them to do so. A “DNA sample collected from an individual charged with a crime may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date.” Md. Pub. Saf. Code Cite as: 569 U. S. 7 SCALIA, J., dissenting Ann. (Lexis 2011) (emphasis added). And King’s first appearance in court was not until three days after his arrest. (I suspect, though, that they did not wait three days to ask his name or take his fingerprints.) This places in a rather different light the Court’s solemn declaration that the search here was necessary so that King could be identified at “every stage of the criminal process.” Ante, at 18. I hope that the Maryland officials who read the Court’s opinion do not take it seriously. Acting on the Court’s misperception of Maryland law could lead to jail time. See Md. Pub. Saf. Code Ann. (punishing by up to five years’ imprisonment anyone who obtains or tests DNA information except as provided by statute). Does the Court really believe that Maryland did not know whom it was arraigning? The Court’s re- sponse is to imagine that release on bail could take so long that the DNA results are returned in time, or perhaps that bail could be revoked if the DNA test turned up incrimi- nating information. Ante, at 16–17. That is no answer at all. If the purpose of this Act is to assess “whether [King] should be released on bail,” ante, at 15, why would it possibly forbid the DNA testing process to begin until King was arraigned? Why would Maryland resign itself to simply hoping that the bail decision will drag out long enough that the “identification” can succeed before the arrestee is released? The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity. It gets worse. King’s DNA sample was not received by the Maryland State Police’s Forensic Sciences Division until April 23, 2009—two weeks after his arrest. It sat in that office, ripening in a storage area, until the custodians got around to mailing it to a lab for testing on June 25, 2009—two months after it was received, and nearly three since King’s arrest. After it was mailed, the data from the lab tests were not available for several more weeks, until 8 MARYLAND v. KING SCALIA, J., dissenting July 13, 2009, which is when the test results were entered into Maryland’s DNA database, together with information identifying the person from whom the sample was taken. Meanwhile, bail had been set, King had engaged in dis- covery, and he had requested a speedy trial—presumably not a trial of John Doe. It was not until August 4, 2009— four months after King’s arrest—that the forwarded sam- ple transmitted (without identifying information) from the Maryland DNA database to the Federal Bureau of Investi- gation’s national database was matched with a sample taken from the scene of an unrelated crime years earlier. A more specific description of exactly what happened at this point illustrates why, by definition, King could not have been identified by this match. The FBI’s DNA database (known as CODIS) consists of two distinct collections. FBI, CODIS and NDIS Fact Sheet, http:// www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet (all Internet materials as visited May 31, 2013, and avail- able in Clerk of Court’s case file). One of them, the one to which King’s DNA was submitted, consists of DNA sam- ples taken from known convicts or arrestees. I will refer to this as the “Convict and Arrestee Collection.” The other collection consists of samples taken from crime scenes; I will refer to this as the “Unsolved Crimes Collection.” The Convict and Arrestee Collection stores “no names or other personal identifiers of the offenders, arrestees, or detain- ees.” Rather, it contains only the DNA profile itself, the name of the agency that submitted it, the laboratory personnel who analyzed it, and an identification number for the specimen. This is because the submitting state laboratories are expected already to know the identi- ties of the convicts and arrestees from whom samples are taken. (And, of course, they do.) Moreover, the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Col- lection match any of the samples in the Convict and Ar- Cite as: 569 U. S. 9 SCALIA, J., dissenting restee Collection. That is sensible, if what one wants to do is solve those cold cases, but note what it requires: that the identity of the people whose DNA has been entered in the Convict and Arrestee Collection al- ready be known.2 If one wanted to identify someone in custody using his DNA, the logical thing to do would be to compare that DNA against the Convict and Arrestee Collection: to search, in other words, the collection that could be used (by checking back with the submitting state agency) to identify people, rather than the collection of evidence from unsolved crimes, whose perpetrators are by definition unknown. But that is not what was done. And that is because this search had nothing to do with identification. In fact, if anything was “identified” at the moment that the DNA database returned a match, it was not King—his identity was already known. (The docket for the original criminal charges lists his full name, his race, his sex, his height, his weight, his date of birth, and his address.) Rather, what the August 4 match “identified” was the previously-taken sample from the earlier crime. That sample was genuinely mysterious to Maryland; the State knew that it had probably been left by the victim’s attack- er, but nothing else. King was not identified by his associ- ation with the sample; rather, the sample was identified by its association with King. The Court effectively de- stroys its own “identification” theory when it acknowledges that the object of this search was “to see what [was] al- ready known about [King].” King was who he was, and —————— 2 By the way, this procedure has nothing to do with exoating the wrongfully convicted, as the Court soothingly promises. See ante, at 17. The FBI CODIS database includes DNA from unsolved crimes. I know of no indication (and the Court cites none) that it also includes DNA from all—or even any—crimes whose perpetrators have already been convicted. 10 MARYLAND v. KING SCALIA, J., dissenting volumes of his biography could not make him any more or any less King. No minimally competent speaker of Eng- lish would say, upon noticing a known arrestee’s similarity “to a wanted poster of a previously unidentified suspect,” ante, at 13, that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified—just as, here, it was the previously unidentified rapist. 2 That taking DNA samples from arrestees has nothing to do with identifying them is confirmed not just by actual practice (which the Court ignores) but by the enabling statute itself (which the Court also ignores). The Mary- land Act at issue has a section helpfully entitled “Purpose of collecting and testing DNA samples.” Md. Pub. Saf. Code Ann. (One would expect such a section to play a somewhat larger role in the Court’s analysis of the Act’s purpose—which is to say, at least some role.) That provision lists five purposes for which DNA samples may be tested. By this point, it will not surprise the reader to learn that the Court’s imagined purpose is not among them. Instead, the law provides that DNA samples are collected and tested, as a matter of Maryland law, “as part of an official investigation into a crime.” (Or, as our suspicionless-search cases would put it: for ordinary law-enforcement purposes.) That is certainly how every- one has always understood the Maryland Act until today. The Governor of Maryland, in commenting on our deci- sion to hear this case, said that he was glad, because “[a]llowing law enforcement to collect DNA samples is absolutely critical to our efforts to continue driving down crime,” and “bolsters our efforts to resolve open investiga- tions and bring them to a resolution.” Marbella, Supreme Court Will Review Md. DNA Law, Baltimore Sun, Nov. 10, Cite as: 569 U. S. 11 SCALIA, J., dissenting 2012, pp. 1, 14. The attorney geal of Maryland re- marked that he “look[ed] forward to the opportunity to defend this important crime-fighting tool,” and praised the DNA database for helping to “bring to justice violent perpetrators.” Even this Court’s order staying the decision below states that the statute “provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the geal population”— with, unsurprisingly, no mention of identity. 567 U.S. (2012) (ROBERTS, C. J., in chambers) (slip op., at 3). More devastating still for the Court’s “identification” theory, the statute does enumerate two instances in which a DNA sample may be tested for the purpose of identifica- tion: “to help identify human remains,” (em- phasis added), and “to help identify missing individuals,” (emphasis added). No mention of identifying arrestees. Inclusio unius est exclusio alterius. And note again that Maryland forbids using DNA records “for any purposes other than those specified”—it is actually a crime to do so. The Maryland regulations implementing the Act con- firm what is now monotonously obvious: These DNA searches have nothing to do with identification. For ex- ample, if someone is arrested and law enforcement deter- mines that “a convicted offender Statewide DNA Data Base sample already exists” for that arrestee, “the agency is not required to obtain a new sample.” Code of Md. Regs., tit. 29, (2011). But how could the State know if an arrestee has already had his DNA sample collected, if the point of the sample is to identify who he is? Of course, if the DNA sample is instead taken in order to investigate crimes, this restriction makes perfect sense: Having previously placed an identified someone’s DNA on file to check against available crime-scene evidence, there is no sense in going to the expense of taking a new sample. 12 MARYLAND v. KING SCALIA, J., dissenting Maryland’s regulations further require that the “individ- ual collecting a sample verify the identity of the indi- vidual from whom a sample is taken by name and, if applicable, State identification (SID) number.” (But how?) And after the sample is taken, it continues to be identified by the individual’s name, finger- prints, etc., see than (as the Court believes) being used to identify individuals. See (“Records and specimen information shall be identified by [the] [n]ame of the donor” (emphasis added)). So, to review: DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them. The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error. II The Court also attempts to bolster its identification theory with a series of inapposite analogies. See ante, at 18–23. Is not taking DNA samples the same, asks the Court, as taking a person’s photograph? No—because that is not a Fourth Amendment search at all. It does not involve a physical intrusion onto the person, see Florida v. Jardines, and we have never held that merely taking a person’s photograph invades any recognized “expectation of privacy,” see Katz v. United States, 9 U.S. 347 Thus, it is unsur- prising that the cases the Court cites as authorizing photo- Cite as: 569 U. S. 13 SCALIA, J., dissenting taking do not even mention the Fourth Amendment. See State ex rel. 57 N.E. 541 (1900) (libel), Shaffer v. United States, 24 Ohio App. D. C. 417 (1904) (Fifth Amendment privilege against self- incrimination). But is not the practice of DNA searches, the Court asks, the same as taking “Bertillon” measurements—noting an arrestee’s height, shoe size, and so on, on the back of a photograph? No, because that system was not, in the ordinary case, used to solve unsolved crimes. It is possi- ble, I suppose, to imagine situations in which such meas- urements might be useful to geate leads. (If witnesses described a very tall burglar, all the “tall man” cards could then be pulled.) But the obvious primary purpose of such measurements, as the Court’s description of them makes clear, was to verify that, for example, the person arrested today is the same person that was arrested a year ago. Which is to say, Bertillon measurements were actually used as a system of identification, and drew their primary usefulness from that task.3 It is on the fingerprinting of arrestees, however, that the Court relies most heavily. Ante, at 20–23. The Court does not actually say whether it believes that taking a person’s fingerprints is a Fourth Amendment search, and our cases provide no ready answer to that question. Even assuming so, however, law enforcement’s post-arrest use of finger- prints could not be more different from its post-arrest use of DNA. Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves —————— 3 Puzzlingly, the Court’s discussion of photography and Bertillon measurements repeatedly cites state cases (such as Clausmier) that were decided before the Fourth Amendment was held to be applicable to the States. See 3 U.S. 25 ; Why the Court believes them relevant to the meaning of that Amendment is therefore something of a mystery. 14 MARYLAND v. KING SCALIA, J., dissenting crimes); the DNA of arrestees is taken to solve crimes (and nothing else). Contrast CODIS, the FBI’s nationwide DNA database, with IAFIS, the FBI’s Integrated Automated Fingerprint Identification System. See FBI, Integrated Automated Fingerprint Identification System, http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis (hereinafter IAFIS). Fingerprints DNA Samples The “average response DNA analysis can take time for an electronic months—far too long to be criminal fingerprint useful for identifying someone. submission is about 27 minutes.” IAFIS. IAFIS includes detailed CODIS contains “[n]o names identification information, or other personal identifiers of including “criminal histo- the offenders, arrestees, or ries; mug shots; scars and detainees.” See CODIS and tattoo photos; physical NDIS Fact Sheet. characteristics like height, weight, and hair and eye color.” “Latent prints” recovered The entire point of the DNA from crime scenes are not database is to check crime systematically compared scene evidence against the against the database of profiles of arrestees and known fingerprints, since convicts as they come in. that requires further forensic work.4 —————— 4 See,e.g., FBI, Privacy Impact Assessment: Integrated Automated Fingerprint Identification System (IAFIS)/Next Geation Identifica- tion (NGI) Repository for Individuals of Special Concern (RISC), Cite as: 569 U. S. 15 SCALIA, J., dissenting The Court asserts that the taking of fingerprints was “constitutional for geations prior to the introduction” of the FBI’s rapid computer-matching system. Ante, at 22. This bold statement is bereft of citation to authority because there is none for it. The “great expansion in finger- printing came before the modern era of Fourth Amend- ment jurisprudence,” and so we were never asked to decide the legitimacy of the practice. United As fingerprint databases expanded from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license, Americans simply “became accustomed to having our fingerprints on file in some government database.” But it is wrong to suggest that this was uncontroversial at the time, or that this Court blessed universal fingerprinting for “geations” before it was possible to use it effectively for identification. The Court also assures us that “the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advances.” Ante, at 22. The idea, presumably, is that the snail’s pace in this case is atypical, so that DNA is now readily usable for identifica- tion. The Court’s proof, however, is nothing but a pair of press releases—each of which turns out to undercut this argument. We learn in them that reductions in backlog have enabled Ohio and Louisiana crime labs to analyze a submitted DNA sample in twenty days.5 But that is still —————— http://www.fbi.gov/foia/privacy-impact-assessments/iafis-ngi-risc (searches of the “Unsolved Latent File” may “take considerably more time”). 5 See Attorney Geal DeWine Announces Significant Drop in DNA Turnaround Time http://ohioattorneygeal.gov/ Media/News-Releases/January-2013/Attorney-Geal-DeWine-Announces- Significant-Drop; Gov. Jindal Announces Elimination of DNA Backlog 16 MARYLAND v. KING SCALIA, J., dissenting longer than the eighteen days that Maryland needed to analyze King’s sample, once it worked its way through the State’s labyrinthine bureaucracy. What this illustrates is that these times do not take into account the many other sources of delay. So if the Court means to suggest that Maryland is unusual, that may be right—it may qualify in this context as a paragon of efficiency. (Indeed, the Gov- ernor of Maryland was hailing the elimination of that State’s backlog more than five years ago. See Wheeler, O’Malley Wants to Expand DNA Testing, Baltimore Sun, Jan. 11, 2008, p. 5B.) Meanwhile, the Court’s holding will result in the dumping of a large number of arrestee samples—many from minor offenders—onto an already over- burdened system: Nearly one-third of Americans will be arrested for some offense by age 23. See Brame, Tur, Paternoster, & Bushway, Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 Pediatrics 21 (2011). The Court also accepts uncritically the Government’s representation at oral argument that it is developing devices that will be able to test DNA in mere minutes. At most, this demonstrates that it may one day be possible to design a program that uses DNA for a purpose other than crime-solving—not that Maryland has in fact designed such a program today. And that is the main point, which the Court’s discussion of the brave new world of instant DNA analysis should not obscure. The issue before us is not whether DNA can some day be used for identification; nor even whether it can today be used for identification; but whether it was used for identification here. Today, it can fairly be said that fingerprints really are used to identify people—so well, in fact, that there would —————— (Nov. 17, 2011), http://www.gov.state.la.us/index.cfm?md=newsroom& tmp=detail&articleID=3102. Cite as: 569 U. S. 17 SCALIA, J., dissenting be no need for the expense of a separate, wholly redundant DNA confirmation of the same information. What DNA adds—what makes it a valuable weapon in the law- enforcement arsenal—is the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known. That is what was going on when King’s DNA was taken, and we should not disguise the fact. Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the pro- tection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. * * * The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].” Ante, at 28; see also ante, at 1, 9, 14, 17, 22, 23, 24 (re- peatedly limiting the analysis to “serious offenses”). I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” Make no mistake about it: As an entirely predictable conse- quence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason. The most regrettable aspect of the suspicionless search 18 MARYLAND v. KING SCALIA, J., dissenting that occurred here is that it proved to be quite unneces- sary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is con- cerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations. Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an air- plane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one,6 will some day be repudiated. —————— 6 Compare, New (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant,

Justice Souter

majority

Crosby v. National Foreign Trade Council

2000-06-19

https://www.courtlistener.com/opinion/118379/crosby-v-national-foreign-trade-council/

https://www.courtlistener.com/api/rest/v3/clusters/118379/

1999-079

The issue is whether the Burma law of the Commonwealth of Massachusetts, restricting the authority of its agencies to purchase goods or services from companies doing business with Burma,[1] is invalid under the Supremacy Clause of the National Constitution owing to its threat of frustrating federal statutory objectives. We hold that it is. I In June 1996, Massachusetts adopted "An Act Regulating State Contracts with Companies Doing Business with or in *367 Burma (Myanmar)," 1996 Mass. Acts 239, ch. 130 (codified at Mass. Gen. Laws §§ 7:22G-7:22M, 40 F[1]20442 (1997). The statute generally bars state entities from buying goods or services from any person (defined to include a business organization) identified on a "restricted purchase list" of those doing business with Burma. §§ 7:22H(a), 7:22J. Although the statute has no general provision for waiver or termination of its ban, it does exempt from boycott any entities present in Burma solely to report the news, § 7:22H(e), or to provide international telecommunication goods or services, ibid., or medical supplies, § 7:22I. "`Doing business with Burma' " is defined broadly to cover any person "(a) having a principal place of business, place of incorporation or its corporate headquarters in Burma (Myanmar) or having any operations, leases, franchises, majority-owned subsidiaries, distribution agreements, or any other similar agreements in Burma (Myanmar), or being the majority-owned subsidiary, licensee or franchise of such a person; "(b) providing financial services to the government of Burma (Myanmar), including providing direct loans, underwriting government securities, providing any consulting advice or assistance, providing brokerage services, acting as a trustee or escrow agent, or otherwise acting as an agent pursuant to a contractual agreement; "(c) promoting the importation or sale of gems, timber, oil, gas or other related products, commerce in which is largely controlled by the government of Burma (Myanmar), from Burma (Myanmar); "(d) providing any goods or services to the government of Burma (Myanmar)." § 7:22G. There are three exceptions to the ban: (1) if the procurement is essential, and without the restricted bid, there would be no bids or insufficient competition, § 7:22H(b); (2) if the *368 procurement is of medical supplies, § 7:22I; and (3) if the procurement efforts elicit no "comparable low bid or offer" by a person not doing business with Burma, § 7:22H(d), meaning an offer that is no more than 10 percent greater than the restricted bid, § 7:22G. To enforce the ban, the Act requires petitioner Secretary of Administration and Finance to maintain a "restricted purchase list" of all firms "doing business with Burma,"[2] § 7:22J. In September 1996, three months after the Massachusetts law was enacted, Congress passed a statute imposing a set of mandatory and conditional sanctions on Burma. See Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, § 570, 110 Stat. 3009-166 to 3009167 (enacted by the Omnibus Consolidated Appropriations Act, 1997, § 101(c), 110 Stat. 3009-121 to 3009-172). The federal Act has five basic parts, three substantive and two procedural. First, it imposes three sanctions directly on Burma. It bans all aid to the Burmese Government except for humanitarian assistance, counter narcotics efforts, and promotion of human rights and democracy. § 570(a)(1). The statute instructs United States representatives to international financial institutions to vote against loans or other assistance to or for Burma, § 570(a)(2), and it provides that no entry visa shall be issued to any Burmese Government official unless required by treaty or to staff the Burmese mission to the United Nations, § 570(a)(3). These restrictions are to remain in effect "[u]ntil such time as the President determines and certifies to Congress that Burma has made measurable and substantial progress in improving human rights practices and implementing democratic government." § 570(a). *369 Second, the federal Act authorizes the President to impose further sanctions subject to certain conditions. He may prohibit "United States persons" from "new investment" in Burma, and shall do so if he determines and certifies to Congress that the Burmese Government has physically harmed, rearrested, or exiled Daw Aung San Suu Kyi (the opposition leader selected to receive the Nobel Peace Prize), or has committed "large-scale repression of or violence against the Democratic opposition." § 570(b). "New investment" is defined as entry into a contract that would favor the "economical development of resources located in Burma," or would provide ownership interests in or benefits from such development, § 570(f)(2), but the term specifically excludes (and thus excludes from any Presidential prohibition) "entry into, performance of, or financing of a contract to sell or purchase goods, services, or technology," ibid. Third, the statute directs the President to work to develop "a comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma." § 570(c). He is instructed to cooperate with members of the Association of Southeast Asian Nations (ASEAN) and with other countries having major trade and investment interests in Burma to devise such an approach, and to pursue the additional objective of fostering dialogue between the ruling State Law and Order Restoration Council (SLORC) and democratic opposition groups. Ibid. As for the procedural provisions of the federal statute, the fourth section requires the President to report periodically to certain congressional committee chairmen on the progress toward democratization and better living conditions in Burma as well as on the development of the required strategy. § 570(d). And the fifth part of the federal Act authorizes the President "to waive, temporarily or permanently, any sanction [under the federal Act] . . . if he determines and certifies to Congress that the application of such sanction *370 would be contrary to the national security interests of the United States." § 570(e). On May 20, 1997, the President issued the Burma Executive Order, Exec. Order No. 13047, 3 CFR 202 (1997 Comp.). He certified for purposes of § 570(b) that the Government of Burma had "committed large-scale repression of the democratic opposition in Burma" and found that the Burmese Government's actions and policies constituted "an unusual and extraordinary threat to the national security and foreign policy of the United States," a threat characterized as a national emergency. The President then prohibited new investment in Burma "by United States persons," Exec. Order No. 13047, § 1, any approval or facilitation by a United States person of such new investment by foreign persons, § 2(a), and any transaction meant to evade or avoid the ban, § 2(b). The order generally incorporated the exceptions and exemptions addressed in the statute. §§ 3, 4. Finally, the President delegated to the Secretary of State the tasks of working with ASEAN and other countries to develop a strategy for democracy, human rights, and the quality of life in Burma, and of making the required congressional reports.[3] § 5. II Respondent National Foreign Trade Council (Council) is a nonprofit corporation representing companies engaged in foreign commerce; 34 of its members were on the Massachusetts restricted purchase list in 1998. National Foreign Trade Council v. Natsios, 181 F.3d 38, 48 (CA1 1999). Three withdrew from Burma after the passage of the state Act, and one member had its bid for a procurement contract increased by 10 percent under the provision of the state law *371 allowing acceptance of a low bid from a listed bidder only if the next-to-lowest bid is more than 10 percent higher. Ibid. In April 1998, the Council filed suit in the United States District Court for the District of Massachusetts, seeking declaratory and injunctive relief against the petitioner state officials charged with administering and enforcing the state Act (whom we will refer to simply as the State).[4] The Council argued that the state law unconstitutionally infringed on the federal foreign affairs power, violated the Foreign Commerce Clause, and was preempted by the federal Act. After detailed stipulations, briefing, and argument, the District Court permanently enjoined enforcement of the state Act, holding that it "unconstitutionally impinge[d] on the federal government's exclusive authority to regulate foreign affairs." National Foreign Trade Council v. Baker, 26 F. Supp. 2d 287, 291 (Mass. 1998). The United States Court of Appeals for the First Circuit affirmed on three independent grounds. 181 F.3d, at 45. It found the state Act unconstitutionally interfered with the foreign affairs power of the National Government under Zschernig v. Miller, 389 U.S. 429 (1968), see 181 F.3d, at 52-55; violated the dormant Foreign Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, see 181 F.3d, at 61-71; and was preempted by the congressional Burma Act, see id., at 71-77. The State's petition for certiorari challenged the decision on all three grounds and asserted interests said to be shared by other state and local governments with similar measures.[5] Though opposing certiorari, the Council acknowledged the *372 significance of the issues and the need to settle the constitutionality of such laws and regulations. Brief in Opposition 18-19. We granted certiorari to resolve these important questions, 528 U.S. 1018 (1999), and now affirm. III A fundamental principle of the Constitution is that Congress has the power to preempt state law. Art. VI, cl. 2; Gibbons v. Ogden, 9 Wheat. 1, 211 (1824); Savage v. Jones, 225 U.S. 501, 533 (1912); California v. ARC America Corp., 490 U.S. 93, 101 (1989). Even without an express provision for preemption, we have found that state law must yield to a congressional Act in at least two circumstances. When Congress intends federal law to "occupy the field," state law in that area is preempted. Id., at 100; cf. United States v. Locke, 529 U.S. 89, 115 (2000) (citing Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U.S. 597, 604 (1915)). And even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal statute.[6]Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941); ARC America Corp., supra, at 100-101; Locke, supra, at 109. We will find preemption where it is impossible for a private party to comply with both state and federal law, see, e. g., Florida Lime & Avocado Growers, Inc. v. *373 Paul, 373 U.S. 132, 142-143 (1963), and where "under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, supra, at 67. What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects: "For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished—if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect—the state law must yield to the regulation of Congress within the sphere of its delegated power." Sav- age, supra, at 533, quoted in Hines, supra, at 67, n. 20. Applying this standard, we see the state Burma law as an obstacle to the accomplishment of Congress's full objectives under the federal Act.[7] We find that the state law undermines the intended purpose and "natural effect" of at least three provisions of the federal Act, that is, its delegation of effective discretion to the President to control economic *374 sanctions against Burma, its limitation of sanctions solely to United States persons and new investment, and its directive to the President to proceed diplomatically in developing a comprehensive, multilateral strategy toward Burma.[8] A First, Congress clearly intended the federal Act to provide the President with flexible and effective authority over economic sanctions against Burma. Although Congress immediately put in place a set of initial sanctions (prohibiting bilateral aid, § 570(a)(1), support for international financial assistance, § 570(a)(2), and entry by Burmese officials into the United States, § 570(a)(3)), it authorized the President to terminate any and all of those measures upon determining and certifying that there had been progress in human rights and democracy in Burma. § 570(a). It invested the President with the further power to ban new investment by United States persons, dependent only on specific Presidential findings of repression in Burma. § 570(b). And, most significantly, Congress empowered the President "to waive, temporarily or permanently, any sanction [under the federal Act] . . . if he determines and certifies to Congress that the application of such sanction would be contrary to the national security interests of the United States." § 570(e). *375 This express investiture of the President with statutory authority to act for the United States in imposing sanctions with respect to the Government of Burma, augmented by the flexibility[9] to respond to change by suspending sanctions in the interest of national security, recalls Justice Jackson's observation in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952): "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." See also id., at 635-636, n. 2 (noting that the President's power in the area of foreign relations is least restricted by Congress and citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)). Within the sphere defined by Congress, then, the statute has placed the President in a position with as much discretion to exercise economic leverage against Burma, with an eye toward national security, as our law will *376 admit. And it is just this plenitude of Executive authority that we think controls the issue of preemption here. The President has been given this authority not merely to make a political statement but to achieve a political result, and the fullness of his authority shows the importance in the congressional mind of reaching that result. It is simply implausible that Congress would have gone to such lengths to empower the President if it had been willing to compromise his effectiveness by deference to every provision of state statute or local ordinance that might, if enforced, blunt the consequences of discretionary Presidential action.[10] And that is just what the Massachusetts Burma law would do in imposing a different, state system of economic pressure against the Burmese political regime. As will be seen, the state statute penalizes some private action that the federal Act (as administered by the President) may allow, and pulls levers of influence that the federal Act does not reach. But the point here is that the state sanctions are immediate,[11] see 1996 Mass. Acts 239, ch. 130, § 3 (restricting all contracts after law's effective date); Mass. Gen. Laws § 7:22K (1997) *377 (authorizing regulations for timely and effective implementation), and perpetual, there being no termination provision, see, e. g., § 7:22J (restricted companies list to be updated at least every three months). This unyielding application undermines the President's intended statutory authority by making it impossible for him to restrain fully the coercive power of the national economy when he may choose to take the discretionary action open to him, whether he believes that the national interest requires sanctions to be lifted, or believes that the promise of lifting sanctions would move the Burmese regime in the democratic direction. Quite simply, if the Massachusetts law is enforceable the President has less to offer and less economic and diplomatic leverage as a consequence. In Dames & Moore v. Regan, 453 U.S. 654 (1981), we used the metaphor of the bargaining chip to describe the President's control of funds valuable to a hostile country, id., at 673; here, the state Act reduces the value of the chips created by the federal statute.[12] It thus "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, 312 U. S., at 67. B Congress manifestly intended to limit economic pressure against the Burmese Government to a specific range. The federal Act confines its reach to United States persons, § 570(b), imposes limited immediate sanctions, § 570(a), places only a conditional ban on a carefully defined area of "new investment," § 570(f)(2), and pointedly exempts contracts to sell or purchase goods, services, or technology, § 570(f)(2). These detailed provisions show that Congress's calibrated *378 Burma policy is a deliberate effort "to steer a middle path," id., at 73.[13] The State has set a different course, and its statute conflicts with federal law at a number of points by penalizing individuals and conduct that Congress has explicitly exempted or excluded from sanctions. While the state Act differs from the federal in relying entirely on indirect economic leverage through third parties with Burmese connections, it otherwise stands in clear contrast to the congressional scheme in the scope of subject matter addressed. It restricts all contracts between the State and companies doing business in Burma, § 7:22H(a), except when purchasing medical supplies and other essentials (or when short of comparable bids), § 7:22I. It is specific in targeting contracts to provide *379 financial services, § 7:22G(b), and general goods and services, § 7:22G(d), to the Government of Burma, and thus prohibits contracts between the State and United States persons for goods, services, or technology, even though those transactions are explicitly exempted from the ambit of new investment prohibition when the President exercises his discretionary authority to impose sanctions under the federal Act. § 570(f)(2). As with the subject of business meant to be affected, so with the class of companies doing it: the state Act's generality stands at odds with the federal discreteness. The Massachusetts law directly and indirectly imposes costs on all companies that do any business in Burma, § 7:22G, save for those reporting news or providing international telecommunications goods or services, or medical supplies, §§ 7:22H(e), 7:22I. It sanctions companies promoting the importation of natural resources controlled by the Government of Burma, or having any operations or affiliates in Burma. § 7:22G. The state Act thus penalizes companies with pre-existing affiliates or investments, all of which lie beyond the reach of the federal Act's restrictions on "new investment" in Burmese economic development. §§ 570(b), 570(f)(2). The state Act, moreover, imposes restrictions on foreign companies as well as domestic, whereas the federal Act limits its reach to United States persons. The conflicts are not rendered irrelevant by the State's argument that there is no real conflict between the statutes because they share the same goals and because some companies may comply with both sets of restrictions. See Brief for Petitioners 21-22. The fact of a common end hardly neutralizes conflicting means,[14] see Gade v. National Solid *380 Wastes Management Assn., 505 U.S. 88, 103 (1992), and the fact that some companies may be able to comply with both sets of sanctions does not mean that the state Act is not at odds with achievement of the federal decision about the right degree of pressure to employ. See Hines, 312 U. S., at 61 ("The basic subject of the state and federal laws is identical"); id., at 67 (finding conflict preemption). "`[C]onflict is imminent' " when "`two separate remedies are brought to bear on the same activity,' " Wisconsin Dept. of Industry v. Gould Inc., 475 U.S. 282, 286 (1986) (quoting Garner v. Teamsters, 346 U.S. 485, 498-499 (1953)). Sanctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions here undermines the congressional calibration of force. C Finally, the state Act is at odds with the President's intended authority to speak for the United States among the world's nations in developing a "comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma." § 570(c). Congress called for Presidential cooperation with members of ASEAN and other countries in developing such a strategy, ibid., directed the President to encourage a dialogue between the Government of Burma and the democratic opposition, ibid.,[15] and required him to report to the Congress on the progress of his diplomatic efforts, § 570(d). As with Congress's *381 explicit delegation to the President of power over economic sanctions, Congress's express command to the President to take the initiative for the United States among the international community invested him with the maximum authority of the National Government, cf. Youngstown Sheet & Tube Co., 343 U. S., at 635, in harmony with the President's own constitutional powers, U. S. Const., Art. II, § 2, cl. 2 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties" and "shall appoint Ambassadors, other public Ministers and Consuls"); § 3 ("[The President] shall receive Ambassadors and other public Ministers"). This clear mandate and invocation of exclusively national power belies any suggestion that Congress intended the President's effective voice to be obscured by state or local action. Again, the state Act undermines the President's capacity, in this instance for effective diplomacy. It is not merely that the differences between the state and federal Acts in scope and type of sanctions threaten to complicate discussions; they compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments. We need not get into any general consideration of limits of state action affecting foreign affairs to realize that the President's maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics.[16] When such *382 exceptions do qualify his capacity to present a coherent position on behalf of the national economy, he is weakened, of course, not only in dealing with the Burmese regime, but in working together with other nations in hopes of reaching common policy and "comprehensive" strategy.[17] Cf. Dames & Moore, 453 U. S., at 673-674. While the threat to the President's power to speak and bargain effectively with other nations seems clear enough, the record is replete with evidence to answer any skeptics. First, in response to the passage of the state Act, a number of this country's allies and trading partners filed formal protests with the National Government, see 181 F.3d, at 47 (noting protests from Japan, the European Union (EU), and ASEAN), including an official Note Verbale from the EU to the Department of State protesting the state Act.[18] EU officials have warned that the state Act "could have a damaging effect on bilateral EU—US relations." Letter of Hugo *383 Paemen, Ambassador, European Union, Delegation of the European Commission, to William F. Weld, Governor, State of Massachusetts, Jan. 23, 1997, App. 75. Second, the EU and Japan have gone a step further in lodging formal complaints against the United States in the World Trade Organization (WTO), claiming that the state Act violates certain provisions of the Agreement on Government Procurement,[19] H. R. Doc. No. 103-316, p. 1719 (1994), and the consequence has been to embroil the National Government for some time now in international dispute proceedings under the auspices of the WTO. In their brief before this Court, EU officials point to the WTO dispute as threatening relations with the United States, Brief for European Communities et al. as Amici Curiae 7, and n. 7, and note that the state Act has become the topic of "intensive discussions" with officials of the United States at the highest levels, those discussions including exchanges at the twice yearly EU—U. S. Summit.[20] Third, the Executive has consistently represented that the state Act has complicated its dealings with foreign sovereigns and proven an impediment to accomplishing objectives assigned it by Congress. Assistant Secretary of State Larson, for example, has directly addressed the mandate of the *384 federal Burma law in saying that the imposition of unilateral state sanctions under the state Act "complicate[s] efforts to build coalitions with our allies" to promote democracy and human rights in Burma. A. Larson, State and Local Sanctions: Remarks to the Council of State Governments 2 (Dec. 8, 1998). "[T]he EU's opposition to the Massachusetts law has meant that US government high level discussions with EU officials often have focused not on what to do about Burma, but on what to do about the Massachusetts Burma law." Id., at 3.[21] This point has been consistently echoed in the State Department: "While the [Massachusetts sanctions on Burma] were adopted in pursuit of a noble goal, the restoration of democracy in Burma, these measures also risk shifting the focus of the debate with our European Allies away from the best way to bring pressure against the State Law and Order Restoration Council (SLORC) to a potential WTO dispute over its consistency with our international obligations. Let me be clear. We are working with Massachusetts in the WTO dispute settlement process. But we must be honest in saying that the threatened WTO case risks diverting United States' and Europe's attention from focusing where it should be—on Burma." Eizenstat testimony, App. 115.[22]*385 This evidence in combination is more than sufficient to show that the state Act stands as an obstacle in addressing the congressional obligation to devise a comprehensive, multilateral strategy. Our discussion in Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 327-329 (1994), of the limited weight of evidence of formal diplomatic protests, risk of foreign retaliation, and statements by the Executive does not undercut the point. In Barclays, we had the question of the preemptive effect of federal tax law on state tax law with discriminatory extraterritorial effects. We found the reactions of foreign powers and the opinions of the Executive irrelevant in fathoming congressional intent because Congress had taken specific actions rejecting the positions both of foreign governments, id., at 324-328, and the Executive, id., at 328-329. Here, however, Congress has done nothing to render such evidence beside the point. In consequence, statements of foreign powers necessarily involved in the President's efforts to comply with the federal Act, indications of concrete disputes with those powers, and opinions of senior National Government officials are competent and direct evidence of the frustration of congressional objectives by the state Act.[23] Although we do not unquestioningly defer to the legal judgments expressed in Executive Branch statements when determining a federal Act's preemptive character, *386 ibid., we have never questioned their competence to show the practical difficulty of pursuing a congressional goal requiring multinational agreement. We have, after all, not only recognized the limits of our own capacity to "determin[e] precisely when foreign nations will be offended by particular acts," Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 194 (1983), but consistently acknowledged that the "nuances" of "the foreign policy of the United States . .. are much more the province of the Executive Branch and Congress than of this Court," id., at 196; Barclays, supra, at 327. In this case, repeated representations by the Executive Branch supported by formal diplomatic protests and concrete disputes are more than sufficient to demonstrate that the state Act stands in the way of Congress's diplomatic objectives.[24] IV The State's remaining argument is unavailing. It contends that the failure of Congress to preempt the state Act *387 demonstrates implicit permission. The State points out that Congress has repeatedly declined to enact express preemption provisions aimed at state and local sanctions, and it calls our attention to the large number of such measures passed against South Africa in the 1980's, which various authorities cited have thought were not preempted.[25] The State stresses that Congress was aware of the state Act in 1996, but did not preempt it explicitly when it adopted its own Burma statute.[26] The State would have us conclude that Congress's continuing failure to enact express preemption implies approval, particularly in light of occasional instances of express preemption of state sanctions in the past.[27] The argument is unconvincing on more than one level. A failure to provide for preemption expressly may reflect nothing *388 more than the settled character of implied preemption doctrine that courts will dependably apply, and in any event, the existence of conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict, Hines, 312 U. S., at 67. The State's inference of congressional intent is unwarranted here, therefore, simply because the silence of Congress is ambiguous. Since we never ruled on whether state and local sanctions against South Africa in the 1980's were preempted or otherwise invalid, arguable parallels between the two sets of federal and state Acts do not tell us much about the validity of the latter. V Because the state Act's provisions conflict with Congress's specific delegation to the President of flexible discretion, with limitation of sanctions to a limited scope of actions and actors, and with direction to develop a comprehensive, multilateral strategy under the federal Act, it is preempted, and its application is unconstitutional, under the Supremacy Clause. The judgment of the Court of Appeals for the First Circuit is affirmed. It is so ordered. Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.

The issue is whether the Burma law of the Commonwealth of Massachusetts, restricting the authority of its agencies to purchase goods or services from companies doing business with Burma,[1] is invalid under the Supremacy Clause of the National Constitution owing to its threat of frustrating federal statutory objectives. We hold that it is. I In June 1996, Massachusetts adopted "An Act Regulating State Contracts with Companies Doing Business with or in *367 Burma (Myanmar)," ch. 130 (codified at Mass. Gen. Laws 7:22G-7:22M, 40 F[1]20442 (1997). The statute generally bars state entities from buying goods or services from any person (defined to include a business organization) identified on a "restricted purchase list" of those doing business with Burma. 7:22H(a), 7:22J. Although the statute has no general provision for waiver or termination of its ban, it does exempt from boycott any entities present in Burma solely to report the news, 7:22H(e), or to provide international telecommunication goods or services, or medical supplies, 7:22I. "`Doing business with Burma' " is defined broadly to cover any person "(a) having a principal place of business, place of incorporation or its corporate headquarters in Burma (Myanmar) or having any operations, leases, franchises, majority-owned subsidiaries, distribution agreements, or any other similar agreements in Burma (Myanmar), or being the majority-owned subsidiary, licensee or franchise of such a person; "(b) providing financial services to the government of Burma (Myanmar), including providing direct loans, underwriting government securities, providing any consulting advice or assistance, providing brokerage services, acting as a trustee or escrow agent, or otherwise acting as an agent pursuant to a contractual agreement; "(c) promoting the importation or sale of gems, timber, oil, gas or other related products, commerce in which is largely controlled by the government of Burma (Myanmar), from Burma (Myanmar); "(d) providing any goods or services to the government of Burma (Myanmar)." 7:22G. There are three exceptions to the ban: (1) if the procurement is essential, and without the restricted bid, there would be no bids or insufficient competition, 7:22H(b); (2) if the *368 procurement is of medical supplies, 7:22I; and (3) if the procurement efforts elicit no "comparable low bid or offer" by a person not doing business with Burma, 7:22H(d), meaning an offer that is no more than 10 percent greater than the restricted bid, 7:22G. To enforce the ban, the Act requires petitioner Secretary of Administration and Finance to maintain a "restricted purchase list" of all firms "doing business with Burma,"[2] 7:22J. In September 1996, three months after the Massachusetts law was enacted, Congress passed a statute imposing a set of mandatory and conditional sanctions on Burma. See Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, 570, -166 to 3009167 (enacted by the Omnibus Consolidated Appropriations Act, 1997, (c), -121 to 3009-172). The federal Act has five basic parts, three substantive and two procedural. First, it imposes three sanctions directly on Burma. It bans all aid to the Burmese Government except for humanitarian assistance, counter narcotics efforts, and promotion of human rights and democracy. 570(a)(1). The statute instructs United States representatives to international financial institutions to vote against loans or other assistance to or for Burma, 570(a)(2), and it provides that no entry visa shall be issued to any Burmese Government official unless required by treaty or to staff the Burmese mission to the United Nations, 570(a)(3). These restrictions are to remain in effect "[u]ntil such time as the President determines and certifies to Congress that Burma has made measurable and substantial progress in improving human rights practices and implementing democratic government." 570(a). *369 Second, the federal Act authorizes the President to impose further sanctions subject to certain conditions. He may prohibit "United States persons" from "new investment" in Burma, and shall do so if he determines and certifies to Congress that the Burmese Government has physically harmed, rearrested, or exiled Daw Aung San Suu Kyi (the opposition leader selected to receive the Nobel Peace Prize), or has committed "large-scale repression of or violence against the Democratic opposition." 570(b). "New investment" is defined as entry into a contract that would favor the "economical development of resources located in Burma," or would provide ownership interests in or benefits from such development, 570(f)(2), but the term specifically excludes (and thus excludes from any Presidential prohibition) "entry into, performance of, or financing of a contract to sell or purchase goods, services, or technology," Third, the statute directs the President to work to develop "a comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma." 570(c). He is instructed to cooperate with members of the Association of Southeast Asian Nations (ASEAN) and with other countries having major trade and investment interests in Burma to devise such an approach, and to pursue the additional objective of fostering dialogue between the ruling State Law and Order Restoration Council (SLORC) and democratic opposition groups. As for the procedural provisions of the federal statute, the fourth section requires the President to report periodically to certain congressional committee chairmen on the progress toward democratization and better living conditions in Burma as well as on the development of the required strategy. 570(d). And the fifth part of the federal Act authorizes the President "to waive, temporarily or permanently, any sanction [under the federal Act] if he determines and certifies to Congress that the application of such sanction *370 would be contrary to the national security interests of the United States." 570(e). On May 20, 1997, the President issued the Burma Executive Order, Exec. Order No. 13047, 3 CFR 202 (1997 Comp.). He certified for purposes of 570(b) that the Government of Burma had "committed large-scale repression of the democratic opposition in Burma" and found that the Burmese Government's actions and policies constituted "an unusual and extraordinary threat to the national security and foreign policy of the United States," a threat characterized as a national emergency. The President then prohibited new investment in Burma "by United States persons," Exec. Order No. 13047, 1, any approval or facilitation by a United States person of such new investment by foreign persons, 2(a), and any transaction meant to evade or avoid the ban, 2(b). The order generally incorporated the exceptions and exemptions addressed in the statute. 3, 4. Finally, the President delegated to the Secretary of State the tasks of working with ASEAN and other countries to develop a strategy for democracy, human rights, and the quality of life in Burma, and of making the required congressional reports.[3] 5. II Respondent National Foreign Trade Council (Council) is a nonprofit corporation representing companies engaged in foreign commerce; 34 of its members were on the Massachusetts restricted purchase list in 1998. National Foreign Trade Three withdrew from Burma after the passage of the state Act, and one member had its bid for a procurement contract increased by 10 percent under the provision of the state law *371 allowing acceptance of a low bid from a listed bidder only if the next-to-lowest bid is more than 10 percent higher. In April 1998, the Council filed suit in the United States District Court for the District of Massachusetts, seeking declaratory and injunctive relief against the petitioner state officials charged with administering and enforcing the state Act (whom we will refer to simply as the State).[4] The Council argued that the state law unconstitutionally infringed on the federal foreign affairs power, violated the Foreign Commerce Clause, and was preempted by the federal Act. After detailed stipulations, briefing, and argument, the District Court permanently enjoined enforcement of the state Act, holding that it "unconstitutionally impinge[d] on the federal government's exclusive authority to regulate foreign affairs." National Foreign Trade The United States Court of Appeals for the First Circuit affirmed on three independent It found the state Act unconstitutionally interfered with the foreign affairs power of the National Government under see -55; violated the dormant Foreign Commerce Clause, U. S. Const., Art. I, 8, cl. 3, see -71; and was preempted by the congressional Burma Act, see The State's petition for certiorari challenged the decision on all three grounds and asserted interests said to be shared by other state and local governments with similar measures.[5] Though opposing certiorari, the Council acknowledged the *372 significance of the issues and the need to settle the constitutionality of such laws and regulations. Brief in Opposition 18-19. We granted certiorari to resolve these important questions, and now affirm. III A fundamental principle of the Constitution is that Congress has the power to preempt state law. Art. VI, cl. 2; ; ; Even without an express provision for preemption, we have found that state law must yield to a congressional Act in at least two circumstances. When Congress intends federal law to "occupy the field," state law in that area is preempted. ; cf. United And even if Congress has not occupied the field, state law is naturally preempted to the extent of any conflict with a federal ; ARC America -; We will find preemption where it is impossible for a private party to comply with both state and federal law, see, e. g., Florida Lime & Avocado Growers, and where "under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects: "For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished—if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect—the state law must yield to the regulation of Congress within the sphere of its delegated power." Sav- age, at quoted in n. 20. Applying this standard, we see the state Burma law as an obstacle to the accomplishment of Congress's full objectives under the federal Act.[7] We find that the state law undermines the intended purpose and "natural effect" of at least three provisions of the federal Act, that is, its delegation of effective discretion to the President to control economic *374 sanctions against Burma, its limitation of sanctions solely to United States persons and new investment, and its directive to the President to proceed diplomatically in developing a comprehensive, multilateral strategy toward Burma.[8] A First, Congress clearly intended the federal Act to provide the President with flexible and effective authority over economic sanctions against Burma. Although Congress immediately put in place a set of initial sanctions (prohibiting bilateral aid, 570(a)(1), support for international financial assistance, 570(a)(2), and entry by Burmese officials into the United States, 570(a)(3)), it authorized the President to terminate any and all of those measures upon determining and certifying that there had been progress in human rights and democracy in Burma. 570(a). It invested the President with the further power to ban new investment by United States persons, dependent only on specific Presidential findings of repression in Burma. 570(b). And, most significantly, Congress empowered the President "to waive, temporarily or permanently, any sanction [under the federal Act] if he determines and certifies to Congress that the application of such sanction would be contrary to the national security interests of the United States." 570(e). *375 This express investiture of the President with statutory authority to act for the United States in imposing sanctions with respect to the Government of Burma, augmented by the flexibility[9] to respond to change by suspending sanctions in the interest of national security, recalls Justice Jackson's observation in Youngstown Sheet & Tube : "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." See also at -636, n. 2 ). Within the sphere defined by Congress, then, the statute has placed the President in a position with as much discretion to exercise economic leverage against Burma, with an eye toward national security, as our law will *376 admit. And it is just this plenitude of Executive authority that we think controls the issue of preemption here. The President has been given this authority not merely to make a political statement but to achieve a political result, and the fullness of his authority shows the importance in the congressional mind of reaching that result. It is simply implausible that Congress would have gone to such lengths to empower the President if it had been willing to compromise his effectiveness by deference to every provision of state statute or local ordinance that might, if enforced, blunt the consequences of discretionary Presidential action.[10] And that is just what the Massachusetts Burma law would do in imposing a different, state system of economic pressure against the Burmese political regime. As will be seen, the state statute penalizes some private action that the federal Act (as administered by the President) may allow, and pulls levers of influence that the federal Act does not reach. But the point here is that the state sanctions are immediate,[11] see ch. 130, 3 (restricting all contracts after law's effective date); Mass. Gen. Laws 7:22K (1997) *377 (authorizing regulations for timely and effective implementation), and perpetual, there being no termination provision, see, e. g., 7:22J (restricted companies list to be updated at least every three months). This unyielding application undermines the President's intended statutory authority by making it impossible for him to restrain fully the coercive power of the national economy when he may choose to take the discretionary action open to him, whether he believes that the national interest requires sanctions to be lifted, or believes that the promise of lifting sanctions would move the Burmese regime in the democratic direction. Quite simply, if the Massachusetts law is enforceable the President has less to offer and less economic and diplomatic leverage as a consequence. In Dames & we used the metaphor of the bargaining chip to describe the President's control of funds valuable to a hostile country, 3; here, the state Act reduces the value of the chips created by the federal statute.[12] It thus "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." 312 U. S., B Congress manifestly intended to limit economic pressure against the Burmese Government to a specific range. The federal Act confines its reach to United States persons, 570(b), imposes limited immediate sanctions, 570(a), places only a conditional ban on a carefully defined area of "new investment," 570(f)(2), and pointedly exempts contracts to sell or purchase goods, services, or technology, 570(f)(2). These detailed provisions show that Congress's calibrated *378 Burma policy is a deliberate effort "to steer a middle path,"[13] The State has set a different course, and its statute conflicts with federal law at a number of points by penalizing individuals and conduct that Congress has explicitly exempted or excluded from sanctions. While the state Act differs from the federal in relying entirely on indirect economic leverage through third parties with Burmese connections, it otherwise stands in clear contrast to the congressional scheme in the scope of subject matter addressed. It restricts all contracts between the State and companies doing business in Burma, 7:22H(a), except when purchasing medical supplies and other essentials (or when short of comparable bids), 7:22I. It is specific in targeting contracts to provide *379 financial services, 7:22G(b), and general goods and services, 7:22G(d), to the Government of Burma, and thus prohibits contracts between the State and United States persons for goods, services, or technology, even though those transactions are explicitly exempted from the ambit of new investment prohibition when the President exercises his discretionary authority to impose sanctions under the federal Act. 570(f)(2). As with the subject of business meant to be affected, so with the class of companies doing it: the state Act's generality stands at odds with the federal discreteness. The Massachusetts law directly and indirectly imposes costs on all companies that do any business in Burma, 7:22G, save for those reporting news or providing international telecommunications goods or services, or medical supplies, 7:22H(e), 7:22I. It sanctions companies promoting the importation of natural resources controlled by the Government of Burma, or having any operations or affiliates in Burma. 7:22G. The state Act thus penalizes companies with pre-existing affiliates or investments, all of which lie beyond the reach of the federal Act's restrictions on "new investment" in Burmese economic development. 570(b), 570(f)(2). The state Act, moreover, imposes restrictions on foreign companies as well as domestic, whereas the federal Act limits its reach to United States persons. The conflicts are not rendered irrelevant by the State's argument that there is no real conflict between the statutes because they share the same goals and because some companies may comply with both sets of restrictions. See Brief for Petitioners 21-22. The fact of a common end hardly neutralizes conflicting means,[14] see and the fact that some companies may be able to comply with both sets of sanctions does not mean that the state Act is not at odds with achievement of the federal decision about the right degree of pressure to employ. See ; "`[C]onflict is imminent' " when "`two separate remedies are brought to bear on the same activity,' " Wisconsin Dept. of ). Sanctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions here undermines the congressional calibration of force. C Finally, the state Act is at odds with the President's intended authority to speak for the United States among the world's nations in developing a "comprehensive, multilateral strategy to bring democracy to and improve human rights practices and the quality of life in Burma." 570(c). Congress called for Presidential cooperation with members of ASEAN and other countries in developing such a strategy, directed the President to encourage a dialogue between the Government of Burma and the democratic opposition,[15] and required him to report to the Congress on the progress of his diplomatic efforts, 570(d). As with Congress's *381 explicit delegation to the President of power over economic sanctions, Congress's express command to the President to take the initiative for the United States among the international community invested him with the maximum authority of the National Government, cf. Youngstown Sheet & Tube 343 U. S., at in harmony with the President's own constitutional powers, U. S. Const., Art. II, 2, cl. 2 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties" and "shall appoint Ambassadors, other public Ministers and Consuls"); 3 ("[The President] shall receive Ambassadors and other public Ministers"). This clear mandate and invocation of exclusively national power belies any suggestion that Congress intended the President's effective voice to be obscured by state or local action. Again, the state Act undermines the President's capacity, in this instance for effective diplomacy. It is not merely that the differences between the state and federal Acts in scope and type of sanctions threaten to complicate discussions; they compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments. We need not get into any general consideration of limits of state action affecting foreign affairs to realize that the President's maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics.[16] When such *382 exceptions do qualify his capacity to present a coherent position on behalf of the national economy, he is weakened, of course, not only in dealing with the Burmese regime, but in working together with other nations in hopes of reaching common policy and "comprehensive" strategy.[17] Cf. Dames & Moore, 453 U. S., 3-674. While the threat to the President's power to speak and bargain effectively with other nations seems clear enough, the record is replete with evidence to answer any skeptics. First, in response to the passage of the state Act, a number of this country's allies and trading partners filed formal protests with the National Government, see including an official Note Verbale from the EU to the Department of State protesting the state Act.[18] EU officials have warned that the state Act "could have a damaging effect on bilateral EU—US relations." Letter of Hugo *383 Paemen, Ambassador, European Union, Delegation of the European Commission, to William F. Weld, Governor, State of Massachusetts, Jan. 23, 1997, App. 75. Second, the EU and Japan have gone a step further in lodging formal complaints against the United States in the World Trade Organization (WTO), claiming that the state Act violates certain provisions of the Agreement on Government Procurement,[19] H. R. Doc. No. -316, p. 1719 and the consequence has been to embroil the National Government for some time now in international dispute proceedings under the auspices of the WTO. In their brief before this Court, EU officials point to the WTO dispute as threatening relations with the United States, Brief for European Communities et al. as Amici Curiae 7, and n. 7, and note that the state Act has become the topic of "intensive discussions" with officials of the United States at the highest levels, those discussions including exchanges at the twice yearly EU—U. S. Summit.[20] Third, the Executive has consistently represented that the state Act has complicated its dealings with foreign sovereigns and proven an impediment to accomplishing objectives assigned it by Congress. Assistant Secretary of State Larson, for example, has directly addressed the mandate of the *384 federal Burma law in saying that the imposition of unilateral state sanctions under the state Act "complicate[s] efforts to build coalitions with our allies" to promote democracy and human rights in Burma. A. Larson, State and Local Sanctions: Remarks to the Council of State Governments 2 "[T]he EU's opposition to the Massachusetts law has meant that US government high level discussions with EU officials often have focused not on what to do about Burma, but on what to do about the Massachusetts Burma law."[21] This point has been consistently echoed in the State Department: "While the [Massachusetts sanctions on Burma] were adopted in pursuit of a noble goal, the restoration of democracy in Burma, these measures also risk shifting the focus of the debate with our European Allies away from the best way to bring pressure against the State Law and Order Restoration Council (SLORC) to a potential WTO dispute over its consistency with our international obligations. Let me be clear. We are working with Massachusetts in the WTO dispute settlement process. But we must be honest in saying that the threatened WTO case risks diverting United States' and Europe's attention from focusing where it should be—on Burma." Eizenstat testimony, App.[22]*385 This evidence in combination is more than sufficient to show that the state Act stands as an obstacle in addressing the congressional obligation to devise a comprehensive, multilateral strategy. Our discussion in Bank of the limited weight of evidence of formal diplomatic protests, risk of foreign retaliation, and statements by the Executive does not undercut the point. In we had the question of the preemptive effect of federal tax law on state tax law with discriminatory extraterritorial effects. We found the reactions of foreign powers and the opinions of the Executive irrelevant in fathoming congressional intent because Congress had taken specific actions rejecting the positions both of foreign governments, 24-328, and the Executive, 28-329. Here, however, Congress has done nothing to render such evidence beside the point. In consequence, statements of foreign powers necessarily involved in the President's efforts to comply with the federal Act, indications of concrete disputes with those powers, and opinions of senior National Government officials are competent and direct evidence of the frustration of congressional objectives by the state Act.[23] Although we do not unquestioningly defer to the legal judgments expressed in Executive Branch statements when determining a federal Act's preemptive character, *386 we have never questioned their competence to show the practical difficulty of pursuing a congressional goal requiring multinational agreement. We have, after all, not only recognized the limits of our own capacity to "determin[e] precisely when foreign nations will be offended by particular acts," Container of but consistently acknowledged that the "nuances" of "the foreign policy of the United States are much more the province of the Executive Branch and Congress than of this Court," ; 27. In this case, repeated representations by the Executive Branch supported by formal diplomatic protests and concrete disputes are more than sufficient to demonstrate that the state Act stands in the way of Congress's diplomatic objectives.[24] IV The State's remaining argument is unavailing. It contends that the failure of Congress to preempt the state Act *387 demonstrates implicit permission. The State points out that Congress has repeatedly declined to enact express preemption provisions aimed at state and local sanctions, and it calls our attention to the large number of such measures passed against South Africa in the 1980's, which various authorities cited have thought were not preempted.[25] The State stresses that Congress was aware of the state Act in 1996, but did not preempt it explicitly when it adopted its own Burma statute.[26] The State would have us conclude that Congress's continuing failure to enact express preemption implies approval, particularly in light of occasional instances of express preemption of state sanctions in the past.[27] The argument is unconvincing on more than one level. A failure to provide for preemption expressly may reflect nothing *388 more than the settled character of implied preemption doctrine that courts will dependably apply, and in any event, the existence of conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict, 312 U. S., The State's inference of congressional intent is unwarranted here, therefore, simply because the silence of Congress is ambiguous. Since we never ruled on whether state and local sanctions against South Africa in the 1980's were preempted or otherwise invalid, arguable parallels between the two sets of federal and state Acts do not tell us much about the validity of the latter. V Because the state Act's provisions conflict with Congress's specific delegation to the President of flexible discretion, with limitation of sanctions to a limited scope of actions and actors, and with direction to develop a comprehensive, multilateral strategy under the federal Act, it is preempted, and its application is unconstitutional, under the Supremacy Clause. The judgment of the Court of Appeals for the First Circuit is affirmed. It is so ordered. Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.

Justice Scalia

concurring

Crosby v. National Foreign Trade Council

2000-06-19

https://www.courtlistener.com/opinion/118379/crosby-v-national-foreign-trade-council/

https://www.courtlistener.com/api/rest/v3/clusters/118379/

1999-079

It is perfectly obvious on the face of this statute that Congress, with the concurrence of the President, intended to "provid[e] the President with flexibility in implementing its Burma sanctions policy." Ante, at 375, n. 9. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "[s]tatements by the sponsors of the federal Act" show that they shared this intent, ibid., and that a statement in a letter from a State Department officer shows that flexibility had "the explicit support of the *389 Executive," ante, at 375, n. 9. This excursus is especially pointless since the immediately succeeding footnote must rely upon the statute itself (devoid of any support in statements by "sponsors" or the "Executive") to refute the quite telling argument that the statements were addressed only to flexibility in administering the sanctions of the federal Act, and said nothing at all about state sanctions. See ante, at 376, n. 10. It is perfectly obvious on the face of the statute that Congress expected the President to use his discretionary authority over sanctions to "move the Burmese regime in the democratic direction," ante, at 377. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "[t]he sponsors of the federal Act" shared this expectation, ante, at 377, n. 12. It is perfectly obvious on the face of the statute that Congress's Burma policy was a "calibrated" one, which "limit[ed] economic pressure against the Burmese Government to a specific range," ante, at 377. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that bills imposing greater sanctions were introduced but not adopted, ante, at 378, n. 13, and to the (even less surprising) proposition that the sponsors of the legislation made clear that its "limits were deliberate," ibid. And I would feel this way even if I shared the Court's naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional "reject[ion]" of what the bill contained, ibid. Curiously, the Court later recognizes, in rejecting the argument that Congress's failure to enact express pre-emption implies approval of the state Act, that "the silence of Congress [may be] ambiguous." Ante, at 388. Would that the Court had come to this conclusion before it relied (several times) upon the implications of Congress's failure to enact legislation, see ante, at 376, n. 11, 378, n. 13, 385, n. 23. *390 It is perfectly obvious on the face of the statute that Congress intended the President to develop a "multilateral strategy" in cooperation with other countries. In fact, the statute says that in so many words, see § 570(c), 110 Stat. 3009-166. I therefore see no point in devoting two footnotes to the interesting (albeit unsurprising) proposition that three Senators also favored a multilateral approach, ante, at 380, n. 15, 382, n. 17. It is perfectly obvious from the record, as the Court discusses, ante, at 382-385, that the inflexibility produced by the Massachusetts statute has in fact caused difficulties with our allies and has in fact impeded a "multilateral strategy." And as the Court later says in another context, "the existence of conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict," ante, at 388. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) fact that the "congressional sponsors" of the Act and "the Executive" actually predicted that inflexibility would have the effect of causing difficulties with our allies and impeding a "multilateral strategy," ante, at 385, n. 23. Of course even if all of the Court's invocations of legislative history were not utterly irrelevant, I would still object to them, since neither the statements of individual Members of Congress (ordinarily addressed to a virtually empty floor),[*] nor Executive statements and letters addressed to congressional committees, nor the nonenactment of other proposed legislation, is a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us. The only reliable indication of that intent—the only thing we know for sure can be attributed *391 to all of them—is the words of the bill that they voted to make law. In a way, using unreliable legislative history to confirm what the statute plainly says anyway (or what the record plainly shows) is less objectionable since, after all, it has absolutely no effect upon the outcome. But in a way, this utter lack of necessity makes it even worse—calling to mind St. Augustine's enormous remorse at stealing pears when he was not even hungry, and just for the devil of it ("not seeking aught through the shame, but the shame itself!"). The Confessions, Book 2, ¶ 9, in 18 Great Books of the Western World 10-11 (1952) (E. Pusey transl. 1952). In any case, the portion of the Court's opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion's size and (since it is in footnote type) even more of the opinion's content. I consider that to be not just wasteful (it was not preordained, after all, that this was to be a 25-page essay) but harmful, since it tells future litigants that, even when a statute is clear on its face, and its effects clear upon the record, statements from the legislative history may help (and presumably harm) the case. If so, they must be researched and discussed by counsel— which makes appellate litigation considerably more time consuming, and hence considerably more expensive, than it need be. This to my mind outweighs the arguable good that may come of such persistent irrelevancy, at least when it is indulged in the margins: that it may encourage readers to ignore our footnotes. For this reason, I join only the judgment of the Court.

It is perfectly obvious on the face of this statute that Congress, with the concurrence of the President, intended to "provid[e] the President with flexibility in implementing its Burma sanctions policy." Ante, at 375, n. 9. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "[s]tatements by the sponsors of the federal Act" show that they shared this intent, and that a statement in a letter from a State Department officer shows that flexibility had "the explicit support of the *389 Executive," ante, at 375, n. 9. This excursus is especially pointless since the immediately succeeding footnote must rely upon the statute itself (devoid of any support in statements by "sponsors" or the "Executive") to refute the quite telling argument that the statements were addressed only to flexibility in administering the sanctions of the federal Act, and said nothing at all about state sanctions. See ante, at 376, n. 10. It is perfectly obvious on the face of the statute that Congress expected the President to use his discretionary authority over sanctions to "move the Burmese regime in the democratic direction," ante, at 377. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "[t]he sponsors of the federal Act" shared this expectation, ante, at 377, n. 12. It is perfectly obvious on the face of the statute that Congress's Burma policy was a "calibrated" one, which "limit[ed] economic pressure against the Burmese Government to a specific range," ante, at 377. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that bills imposing greater sanctions were introduced but not adopted, ante, at 378, n. 13, and to the (even less surprising) proposition that the sponsors of the legislation made clear that its "limits were deliberate," And I would feel this way even if I shared the Court's naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional "reject[ion]" of what the bill contained, Curiously, the Court later recognizes, in rejecting the argument that Congress's failure to enact express pre-emption implies approval of the state Act, that "the silence of Congress [may be] ambiguous." Ante, at 388. Would that the Court had come to this conclusion before it relied (several times) upon the implications of Congress's failure to enact legislation, see ante, at 376, n. 11, 378, n. 13, 385, n. 23. *390 It is perfectly obvious on the face of the statute that Congress intended the President to develop a "multilateral strategy" in cooperation with other countries. In fact, the statute says that in so many words, see 570(c), -166. I therefore see no point in devoting two footnotes to the interesting (albeit unsurprising) proposition that three Senators also favored a multilateral approach, ante, at 380, n. 15, 382, n. 17. It is perfectly obvious from the record, as the Court discusses, ante, at 382-385, that the inflexibility produced by the Massachusetts statute has in fact caused difficulties with our allies and has in fact impeded a "multilateral strategy." And as the Court later says in another context, "the existence of conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict," ante, at 388. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) fact that the "congressional sponsors" of the Act and "the Executive" actually predicted that inflexibility would have the effect of causing difficulties with our allies and impeding a "multilateral strategy," ante, at 385, n. 23. Of course even if all of the Court's invocations of legislative history were not utterly irrelevant, I would still object to them, since neither the statements of individual Members of Congress (ordinarily addressed to a virtually empty floor),[*] nor Executive statements and letters addressed to congressional committees, nor the nonenactment of other proposed legislation, is a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us. The only reliable indication of that intent—the only thing we know for sure can be attributed *391 to all of them—is the words of the bill that they voted to make law. In a way, using unreliable legislative history to confirm what the statute plainly says anyway (or what the record plainly shows) is less objectionable since, after all, it has absolutely no effect upon the outcome. But in a way, this utter lack of necessity makes it even worse—calling to mind St. Augustine's enormous remorse at stealing pears when he was not even hungry, and just for the devil of it ("not seeking aught through the shame, but the shame itself!"). The Confessions, Book 2, ¶ 9, in 18 Great Books of the Western World 10-11 (1952) (E. Pusey transl. 1952). In any case, the portion of the Court's opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion's size and (since it is in footnote type) even more of the opinion's content. I consider that to be not just wasteful (it was not preordained, after all, that this was to be a 25-page essay) but harmful, since it tells future litigants that, even when a statute is clear on its face, and its effects clear upon the record, statements from the legislative history may help (and presumably harm) the case. If so, they must be researched and discussed by counsel— which makes appellate litigation considerably more time consuming, and hence considerably more expensive, than it need be. This to my mind outweighs the arguable good that may come of such persistent irrelevancy, at least when it is indulged in the margins: that it may encourage readers to ignore our footnotes. For this reason, I join only the judgment of the Court.

Justice Souter

majority

Wilkie v. Robbins

2007-06-25

https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/

https://www.courtlistener.com/api/rest/v3/clusters/145705/

2006-070

Officials of the Bureau of Land Management stand accused of harassment and intimidation aimed at extracting an easement across private property. The questions here are whether the landowner has either a private action for damages of the sort recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), or a claim against the officials in their individual capacities under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (2000 ed. and Supp. IV). We hold that neither action is available. I A Plaintiff-respondent Frank Robbins owns and operates the High Island Ranch, a commercial guest resort in Hot Springs County, Wyoming, stretching across some 40 miles of territory. The ranch is a patchwork of mostly contiguous land parcels intermingled with tracts belonging to other private owners, the State of Wyoming, and the National Government. Its natural resources include wildlife and mineral deposits, and its mountainous western portion, called the upper Rock Creek area, is a place of great natural beauty. In response to persistent requests by environmentalists and outdoor enthusiasts, the Bureau tried to induce the ranch's previous owner, George Nelson, to grant an easement for public use over South Fork Owl Creek Road, which runs through the ranch and serves as a main route to the upper Rock Creek area. For a while, Nelson refused from fear that the public would disrupt his guests' activities, but shortly after agreeing to sell the property to Robbins, in March 1994, Nelson signed a nonexclusive deed of easement giving the United States the right to use and maintain the road along a stretch of his property. In return, the Bureau agreed to rent Nelson a right-of-way to maintain a different section of the road as it runs across federal property and connects otherwise isolated parts of Robbins's holdings. In May 1994, Nelson conveyed the ranch to Robbins, who continued to graze cattle and run guest cattle drives in reliance on grazing permits and a Special Recreation Use Permit (SRUP) issued by the Bureau. But Robbins knew nothing about Nelson's grant of the easement across South Fork Owl Creek Road, which the Bureau had failed to record, and upon recording his warranty deed in Hot Springs County, Robbins took title to the ranch free of the easement, by operation of Wyoming law. See Wyo. Stat. Ann. § 34-1-120 (2005). When the Bureau's employee Joseph Vessels[1] discovered, in June 1994, that the Bureau's inaction had cost it the easement, he telephoned Robbins and demanded an easement to replace Nelson's. Robbins refused but indicated he would consider granting one in return for something. In a later meeting, Vessels allegedly told Robbins that "`the Federal Government does not negotiate,'" and talks broke down. Brief for Respondent 5. Robbins says that over the next several years the defendant-petitioners (hereinafter defendants), *2594 who are current and former employees of the Bureau, carried on a campaign of harassment and intimidation aimed at forcing him to regrant the lost easement. B Robbins concedes that any single one of the offensive and sometimes illegal actions by the Bureau's officials might have been brushed aside as a small imposition, but says that in the aggregate the campaign against him amounted to coercion to extract the easement and should be redressed collectively. The substance of Robbins's claim, and the degree to which existing remedies available to him were adequate, can be understood and assessed only by getting down to the details, which add up to a long recitation.[2] In the summer of 1994, after the fruitless telephone conversation in June, Vessels wrote to Robbins for permission to survey his land in the area of the desired easement. Robbins said no, that it would be a waste of time for the Bureau to do a survey without first reaching agreement with him. Vessels went ahead with a survey anyway, trespassed on Robbins's land, and later boasted about it to Robbins. Not surprisingly, given the lack of damage to his property, Robbins did not file a trespass complaint in response. Mutual animosity grew, however, and one Bureau employee, Edward Parodi, was told by his superiors to "look closer" and "investigate harder" for possible trespasses and other permit violations by Robbins. App. 128-129. Parodi also heard colleagues make certain disparaging remarks about Robbins, such as referring to him as "the rich SOB from Alabama [who] got [the Ranch]." Id., at 121. Parodi became convinced that the Bureau had mistreated Robbins and described its conduct as "the volcanic point" in his decision to retire. Id., at 133. Vessels and his supervisor, defendant Charles Wilkie, continued to demand the easement, under threat to cancel the reciprocal maintenance right-of-way that Nelson had negotiated. When Robbins would not budge, the Bureau canceled the right-of-way, citing Robbins's refusal to grant the desired easement and failure even to pay the rental fee. Robbins did not appeal the cancellation to the Interior Board of Land Appeals (IBLA) or seek judicial review under the Administrative Procedure Act (APA), 5 U.S.C. § 702. In August 1995, Robbins brought his cattle to a water source on property belonging to his neighbor, LaVonne Pennoyer. An altercation ensued, and Pennoyer struck Robbins with her truck while he was riding a horse. Plaintiff-Appellee's Supp.App. in No. 04-8016 (CA10), pp. 676-681 (hereinafter CA10 App.); Pl. Exh. 2, Record 164-166; Pl. Exh. 35a, id., at 102-108. Defendant Gene Leone fielded a call from Pennoyer regarding the incident, encouraged her to contact the sheriff, and himself placed calls to the sheriff suggesting that Robbins be charged with trespass. After the incident, Parodi claims that Leone told him: "I think I finally got a way to get [Robbins's] permits and get him out of business." App. 125, 126. In October 1995, the Bureau claimed various permit violations and changed the High Island Ranch's 5-year SRUP to a SRUP subject to annual renewal. According to Robbins, losing the 5-year SRUP disrupted his guest ranching business, owing to the resulting uncertainty about permission to conduct cattle drives. Robbins declined to seek administrative review, *2595 however, in part because Bureau officials told him that the process would be lengthy and that his permit would be suspended until the IBLA reached a decision.[3] Beginning in 1996, defendants brought administrative charges against Robbins for trespass and other land-use violations. Robbins claimed some charges were false, and others unfairly selective enforcement, and he took all of them to be an effort to retaliate for refusing the Bureau's continuing demands for the easement. He contested a number of these charges, but not all of them, administratively. In the spring of 1997, the South Fork Owl Creek Road, the only way to reach the portions of the ranch in the Rock Creek area, became impassable. When the Bureau refused to repair the section of road across federal land, Robbins took matters into his own hands and fixed the public road himself, even though the Bureau had refused permission. The Bureau fined Robbins for trespass, but offered to settle the charge and entertain an application to renew the old maintenance right-of-way. Instead, Robbins appealed to the IBLA, which found that Robbins had admitted the unauthorized repairs when he sent the Bureau a bill for reimbursement. The Board upheld the fine, In re Robbins, 146 I.B.L.A. 213 (1998), and rejected Robbins's claim that the Bureau was trying to "`blackmail'" him into providing the easement; it said that "[t]he record effectively shows ... intransigence was the tactic of Robbins, not [the] BLM." Id., at 219. Robbins did not seek judicial review of the IBLA's decision. In July 1997, defendant Teryl Shryack and a colleague entered Robbins's property, claiming the terms of a fence easement as authority. Robbins accused Shryack of unlawful entry, tore up the written instrument, and ordered her off his property. Later that month, after a meeting about trespass issues with Bureau officials, Michael Miller, a Bureau law enforcement officer, questioned Robbins without advance notice and without counsel about the incident with Shryack. The upshot was a charge with two counts of knowingly and forcibly impeding and interfering with a federal employee, in violation of 18 U.S.C. § 111 (2000 ed. and Supp. IV), a crime with a penalty of up to one year in prison. A jury acquitted Robbins in December, after deliberating less than 30 minutes. United States v. Robbins, 179 F.3d 1268, 1269 (C.A.10 1999). According to a news story, the jurors "were appalled at the actions of the government" and one said that "Robbins could not have been railroaded any worse ... if he worked for the Union Pacific." CA10 App. 852. Robbins then moved for attorney's fees under the Hyde Amendment, § 617, 111 Stat. 2519, note following 18 U.S.C. § 3600A, arguing that the position of the United States was vexatious, frivolous, or in bad faith. The trial judge denied the motion, and Robbins appealed too late. See 179 F.3d, at 1269-1270. In 1998, Robbins brought the lawsuit now before us, though there was further vexation to come. In June 1999, the Bureau denied Robbins's application to renew his annual SRUP, based on an accumulation of land-use penalties levied against him. Robbins appealed, the IBLA affirmed, In re Robbins, 154 I.B.L.A. 93 (2000), and Robbins did not seek judicial review. Then, in August, the Bureau revoked the grazing permit for High Island *2596 Ranch, claiming that Robbins had violated its terms when he kept Bureau officials from passing over his property to reach public lands. Robbins appealed to the IBLA, which stayed the revocation pending resolution of the appeal. Order in Robbins v. Bureau of Land Management, IBLA 2000-12 (Nov. 10, 1999), CA10 App. 1020. The stay held for several years, despite periodic friction. Without a SRUP, Robbins was forced to redirect his guest cattle drives away from federal land and through a mountain pass with unmarked property boundaries. In August 2000, Vessels and defendants Darrell Barnes and Miller tried to catch Robbins trespassing in driving cattle over a corner of land administered by the Bureau. From a nearby hilltop, they videotaped ranch guests during the drive, even while the guests sought privacy to relieve themselves. That afternoon, Robbins alleges, Barnes and Miller broke into his guest lodge, left trash inside, and departed without closing the lodge gates. The next summer, defendant David Wallace spoke with Preston Smith, an employee of the Bureau of Indian Affairs who manages lands along the High Island Ranch's southern border, and pressured him to impound Robbins's cattle. Smith told Robbins, but did nothing more. Finally, in January 2003, tension actually cooled to the point that Robbins and the Bureau entered into a settlement agreement that, among other things, established a procedure for informal resolution of future grazing disputes and stayed 16 pending administrative appeals with a view to their ultimate dismissal, provided that Robbins did not violate certain Bureau regulations for a 2-year period. The settlement came apart, however, in January 2004, when the Bureau began formal trespass proceedings against Robbins and unilaterally voided the settlement agreement. Robbins tried to enforce the agreement in federal court, but a district court denied relief in a decision affirmed by the Court of Appeals in February 2006. Robbins v. Bureau of Land Management, 438 F.3d 1074 (C.A.10). C In this lawsuit (brought, as we said, in 1998), Robbins asks for compensatory and punitive damages as well as declaratory and injunctive relief. Although he originally included the United States as a defendant, he voluntarily dismissed the Government, and pressed forward with a RICO claim charging defendants with repeatedly trying to extort an easement from him, as well as a similarly grounded Bivens claim that defendants violated his Fourth and Fifth Amendment rights. Defendants filed a motion to dismiss on qualified immunity and failure to state a claim, which the District Court granted, holding that Robbins inadequately pleaded damages under RICO and that the APA and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346, were effective alternative remedies that precluded Bivens relief. The Court of Appeals for the Tenth Circuit reversed on both grounds, 300 F.3d 1208, 1211 (2002), although it specified that Bivens relief was available only for those "constitutional violations committed by individual federal employees unrelated to final agency action," 300 F.3d, at 1212. On remand, defendants again moved to dismiss on qualified immunity. As to the RICO claim, the District Court denied the motion; as to Bivens, it dismissed what Robbins called the Fourth Amendment claim for malicious prosecution and those under the Fifth Amendment for due process violations, but it declined to dismiss the Fifth Amendment claim of retaliation for the exercise of Robbins's right to exclude the Government from his property *2597 and to refuse any grant of a property interest without compensation. After limited discovery, defendants again moved for summary judgment on qualified immunity. The District Court adhered to its earlier denial. This time, the Court of Appeals affirmed, after dealing with collateral order jurisdiction to consider an interlocutory appeal of the denial of qualified immunity, 433 F.3d 755, 761 (2006) (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)). It held that Robbins had a clearly established right to be free from retaliation for exercising his Fifth Amendment right to exclude the Government from his private property, 433 F.3d, at 765-767, and it explained that Robbins could go forward with the RICO claim because Government employees who "engag[e] in lawful actions with an intent to extort a right-of-way from [a landowner] rather than with an intent to merely carry out their regulatory duties" commit extortion under Wyoming law and within the meaning of the Hobbs Act, 18 U.S.C. § 1951. 433 F.3d, at 768. The Court of Appeals rejected the defense based on a claim of the Government's legal entitlement to demand the disputed easement: "if an official obtains property that he has lawful authority to obtain, but does so in a wrongful manner, his conduct constitutes extortion under the Hobbs Act." Id., at 769. Finally, the Court of Appeals said again that "Robbins'[s] allegations involving individual action unrelated to final agency action are permitted under Bivens." Id., at 772. The appeals court declined defendants' request "to determine which allegations remain and which are precluded," however, because defendants had not asked the District Court to sort them out. Ibid. We granted certiorari, 549 U.S. ___, 127 S. Ct. 722, 166 L. Ed. 2d 559 (2006), and now reverse. II The first question is whether to devise a new Bivens damages action for retaliating against the exercise of ownership rights, in addition to the discrete administrative and judicial remedies available to a landowner like Robbins in dealing with the Government's employees.[4]Bivens, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619, held that the victim of a Fourth Amendment violation by federal officers had a claim for damages, and in the years following we have recognized two more nonstatutory damages remedies, the first for employment discrimination in violation of the Due Process Clause, Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979), and the second for an Eighth Amendment violation by prison officials, Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980). But we have also held that any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee; it is not an automatic entitlement no matter what other means there may be to vindicate a protected interest, and in most instances we have found a Bivens remedy unjustified. We have accordingly held against applying the Bivens model to claims of First Amendment violations by federal employers, Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983), harm to military personnel *2598 through activity incident to service, United States v. Stanley, 483 U.S. 669, 107 S. Ct. 3054, 97 L. Ed. 2d 550 (1987); Chappell v. Wallace, 462 U.S. 296, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983), and wrongful denials of Social Security disability benefits, Schweiker v. Chilicky, 487 U.S. 412, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988). We have seen no case for extending Bivens to claims against federal agencies, FDIC v. Meyer, 510 U.S. 471, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994), or against private prisons, Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001). Whatever the ultimate conclusion, however, our consideration of a Bivens request follows a familiar sequence, and on the assumption that a constitutionally recognized interest is adversely affected by the actions of federal employees, the decision whether to recognize a Bivens remedy may require two steps. In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. Bush, supra, at 378, 103 S. Ct. 2404. But even in the absence of an alternative, a Bivens remedy is a subject of judgment: "the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation." Bush, supra, at 378, 103 S. Ct. 2404. A In this factually plentiful case, assessing the significance of any alternative remedies at step one has to begin by categorizing the difficulties Robbins experienced in dealing with the Bureau. We think they can be separated into four main groups: torts or tort-like injuries inflicted on him, charges brought against him, unfavorable agency actions, and offensive behavior by Bureau employees falling outside those three categories. Tortious harm inflicted on him includes Vessels's unauthorized survey of the terrain of the desired easement and the illegal entry into the lodge, and in each instance, Robbins had a civil remedy in damages for trespass. Understandably, he brought no such action after learning about the survey, which was doubtless annoying but not physically damaging. For the incident at the lodge, he chose not to pursue a tort remedy, though there is no question that one was available to him if he could prove his allegations. Cf. Correctional Services Corp., supra, at 72-73, 122 S. Ct. 515 (considering availability of state tort remedies in refusing to recognize a Bivens remedy). The charges brought against Robbins include a series of administrative claims for trespass and other land-use violations, a fine for the unauthorized road repair in 1997, and the two criminal charges that same year. Robbins had the opportunity to contest all of the administrative charges; he did fight some (but not all) of the various land-use and trespass citations, and he challenged the road repair fine as far as the IBLA, though he did not take advantage of judicial review when he lost in that tribunal.[5] He exercised his right to *2599 jury trial on the criminal complaints, and although the rapid acquittal tended to support his charge of baseless action by the prosecution (egged on by Bureau employees), the federal judge who presided at the trial did not think the Government's case thin enough to justify awarding attorney's fees, and Robbins's appeal from that decision was late. See Robbins, 179 F.3d, at 1269-1270. The trial judge's denial of fees may reflect facts that dissuaded Robbins from bringing a state-law action for malicious prosecution, though it is also possible that a remedy would have been unavailable against federal officials, see Blake v. Rupe, 651 P.2d 1096, 1107 (Wyo.1982) ("Malicious prosecution is not an action available against a law enforcement official").[6] For each charge, in any event, Robbins had some procedure to defend and make good on his position. He took advantage of some opportunities, and let others pass; although he had mixed success, he had the means to be heard. The more conventional agency action included the 1995 cancellation of the right-of-way in Robbins's favor (originally given in return for the unrecorded easement for the Government's benefit); the 1995 decision to reduce the SRUP from five years to one; the termination of the SRUP in 1999; and the revocation of the grazing permit that same year. Each time, the Bureau claimed that Robbins was at fault, and for each claim, administrative review was available, subject to ultimate judicial review under the APA. Robbins took no appeal from the 1995 decisions, stopped after losing an IBLA appeal of the SRUP denial, and obtained a stay from the IBLA of the Bureau's revocation of the grazing permit. Three events elude classification. The 1995 incident in which Robbins's horse was struck primarily involved Robbins and his neighbor, not the Bureau, and the sheriff never brought criminal charges. The videotaping of ranch guests during the 2000 drive, while no doubt thoroughly irritating and bad for business, may not have been unlawful, depending, among other things, upon the location on public or private land of the people photographed. Cf. Restatement (Second) of Torts § 652B (1976) (defining tort of intrusion upon seclusion).[7] Even if a tort was committed, it is unclear whether Robbins, rather than his guests, would be the proper plaintiff, or whether the tort should be chargeable against the Government (as distinct from employees) under the FTCA, cf. Carlson, 446 U.S., at 19-20, 100 S. Ct. 1468 (holding that FTCA and Bivens remedies were "parallel, complementary causes of action" and that the availability of the former did not preempt the latter). The significance of Wallace's 2001 attempt to pressure Smith into impounding Robbins's cattle is likewise up in the air. The legitimacy of any impoundment that might have occurred would presumably have depended on where particular cattle were on the patchwork of private and public lands, and in any event, Smith never impounded any. *2600 In sum, Robbins has an administrative, and ultimately a judicial, process for vindicating virtually all of his complaints. He suffered no charges of wrongdoing on his own part without an opportunity to defend himself (and, in the case of the criminal charges, to recoup the consequent expense, though a judge found his claim wanting). And final agency action, as in canceling permits, for example, was open to administrative and judicial review, as the Court of Appeals realized, 433 F.3d, at 772. This state of the law gives Robbins no intuitively meritorious case for recognizing a new constitutional cause of action, but neither does it plainly answer no to the question whether he should have it. Like the combination of public and private land ownership around the ranch, the forums of defense and redress open to Robbins are a patchwork, an assemblage of state and federal, administrative and judicial benches applying regulations, statutes and common law rules. It would be hard to infer that Congress expected the Judiciary to stay its Bivens hand, but equally hard to extract any clear lesson that Bivens ought to spawn a new claim. Compare Bush, 462 U.S., at 388, 103 S. Ct. 2404 (refusing to create a Bivens remedy when faced with "an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations"); and Schweiker, 487 U.S., at 426, 108 S. Ct. 2460 ("Congress chose specific forms and levels of protection for the rights of persons affected"), with Bivens, 403 U.S., at 397, 91 S. Ct. 1999 (finding "no explicit congressional declaration that persons injured [in this way] may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress"). B This, then, is a case for Bivens step two, for weighing reasons for and against the creation of a new cause of action, the way common law judges have always done. See Bush, supra, at 378, 103 S. Ct. 2404. Here, the competing arguments boil down to one on a side: from Robbins, the inadequacy of discrete, incident-by-incident remedies; and from the Government and its employees, the difficulty of defining limits to legitimate zeal on the public's behalf in situations where hard bargaining is to be expected in the back-and-forth between public and private interests that the Government's employees engage in every day. 1 As we said, when the incidents are examined one by one, Robbins's situation does not call for creating a constitutional cause of action for want of other means of vindication, so he is unlike the plaintiffs in cases recognizing freestanding claims: Davis had no other remedy, Bivens himself was not thought to have an effective one, and in Carlson the plaintiff had none against Government officials. Davis, 442 U.S., at 245, 99 S. Ct. 2264 ("For Davis, as for Bivens, `it is damages or nothing'" (quoting Bivens, supra, at 410, 91 S. Ct. 1999 (Harlan, J., concurring in judgment))); Carlson, supra, at 23, 100 S. Ct. 1468 ("[W]e cannot hold that Congress relegated respondent exclusively to the FTCA remedy" against the Government). But Robbins's argument for a remedy that looks at the course of dealing as a whole, not simply as so many individual incidents, has the force of the metaphor Robbins invokes, "death by a thousand cuts." Brief for Respondent 40. It is one thing to be threatened with the loss of grazing rights, or to be prosecuted, or to have one's lodge broken into, but something else to be subjected to this in combination over a period of six years, by a *2601 series of public officials bent on making life difficult. Agency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse. The whole here is greater than the sum of its parts. 2 On the other side of the ledger there is a difficulty in defining a workable cause of action. Robbins describes the wrong here as retaliation for standing on his right as a property owner to keep the Government out (by refusing a free replacement for the right-of-way it had lost), and the mention of retaliation brings with it a tailwind of support from our longstanding recognition that the Government may not retaliate for exercising First Amendment speech rights, see Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987), or certain others of constitutional rank, see, e.g., Lefkowitz v. Turley, 414 U.S. 70, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973) (Fifth Amendment privilege against self-incrimination); United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968) (Sixth Amendment right to trial by jury). But on closer look, the claim against the Bureau's employees fails to fit the prior retaliation cases. Those cases turn on an allegation of impermissible purpose and motivation; an employee who spoke out on matters of public concern and then was fired, for example, would need to "prove that the conduct at issue was constitutionally protected, and that it was a substantial or motivating factor in the termination." Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 675, 116 S. Ct. 2342 (1996). In its defense, the Government may respond that the firing had nothing to do with the protected speech, or that "it would have taken the same action even in the absence of the protected conduct." Ibid. In short, the outcome turns on "what for" questions: what was the Government's purpose in firing him and would he have been fired anyway? Questions like these have definite answers, and we have established methods for identifying the presence of an illicit reason (in competition with others), not only in retaliation cases but on claims of discrimination based on race or other characteristics. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). But a Bivens case by Robbins could not be resolved merely by answering a "what for" question or two. All agree that the Bureau's employees intended to convince Robbins to grant an easement.[8] But unlike punishing someone for speaking out against the Government, trying to induce someone to grant an easement for public use is a perfectly legitimate purpose: as a landowner, the Government may have, and in this instance does have, a valid interest in getting access to neighboring lands. The "what for" question thus has a ready answer in terms of lawful conduct. Robbins's challenge, therefore, is not to the object the Government seeks to achieve, and for the most part his argument is not that the means the Government used were necessarily illegitimate; rather, he says that defendants simply demanded too much and went too far. But as soon as Robbins's claim is framed this way, the line-drawing difficulties it creates are immediately apparent. A "too much" kind of liability standard (if standard at all) can never be as reliable a guide to *2602 conduct and to any subsequent liability as a "what for" standard, and that reason counts against recognizing freestanding liability in a case like this. The impossibility of fitting Robbins's claim into the simple "what for" framework is demonstrated, repeatedly, by recalling the various actions he complains about. Most of them, such as strictly enforcing rules against trespass or conditions on grazing permits, are legitimate tactics designed to improve the Government's negotiating position. Just as a private landowner, when frustrated at a neighbor's stubbornness in refusing an easement, may press charges of trespass every time a cow wanders across the property line or call the authorities to report every land-use violation, the Government too may stand firm on its rights and use its power to protect public property interests. Though Robbins protests that the Government was trying to extract the easement for free instead of negotiating, that line is slippery even in this case; the Government was not offering to buy the easement, but it did have valuable things to offer in exchange, like continued permission for Robbins to use Government land on favorable terms (at least to the degree that the terms of a permit were subject to discretion).[9] It is true that the Government is no ordinary landowner, with its immense economic power, its role as trustee for the public, its right to cater to particular segments of the public (like the recreational users who would take advantage of the right-of-way to get to remote tracts), and its wide discretion to bring enforcement actions. But in many ways, the Government deals with its neighbors as one owner among the rest (albeit a powerful one). Each may seek benefits from the others, and each may refuse to deal with the others by insisting on valuable consideration for anything in return. And as a potential contracting party, each neighbor is entitled to drive a hard bargain, as even Robbins acknowledges, see Tr. of Oral Arg. 31-32. That, after all, is what Robbins did by flatly refusing to regrant the easement without further recompense, and that is what the defendant employees did on behalf of the Government. So long as they had authority to withhold or withdraw permission to use Government land and to enforce the trespass and land-use rules (as the IBLA confirmed that they did have at least most of the time), they were within their rights to make it plain that Robbins's willingness to give the easement would determine how complaisant they would be about his trespasses on public land, when they had discretion to enforce the law to the letter.[10] *2603 Robbins does make a few allegations, like the unauthorized survey and the unlawful entry into the lodge, that charge defendants with illegal action plainly going beyond hard bargaining. If those were the only coercive acts charged, Robbins could avoid the "too much" problem by fairly describing the Government behavior alleged as illegality in attempting to obtain a property interest for nothing, but that is not a fair summary of the body of allegations before us, according to which defendants' improper exercise of the Government's "regulatory powers" is essential to the claim. Brief for Respondent 21. (Of course, even in that simpler case, the tort or torts by Government employees would be so clearly actionable under the general law that it would furnish only the weakest argument for recognizing a generally available *2604 constitutional tort.) Rather, the bulk of Robbins's charges go to actions that, on their own, fall within the Government's enforcement power. It would not answer the concerns just expressed to change conceptual gears and consider the more abstract concept of liability for retaliatory or undue pressure on a property owner for standing firm on property rights; looking at the claim that way would not eliminate the problem of degree, and it would raise a further reason to balk at recognizing a Bivens claim. For at this high level of generality, a Bivens action to redress retaliation against those who resist Government impositions on their property rights would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing Occupational Safety and Health Administration regulations. Exercising any governmental authority affecting the value or enjoyment of property interests would fall within the Bivens regime, and across this enormous swath of potential litigation would hover the difficulty of devising a "too much" standard that could guide an employee's conduct and a judicial factfinder's conclusion.[11] The point here is not to deny that Government employees sometimes overreach, for of course they do, and they may have done so here if all the allegations are true. The point is the reasonable fear that a general Bivens cure would be worse than the disease. C In sum, defendants were acting in the name of the Bureau, which had the authority to grant (and had given) Robbins some use of public lands under its control and wanted a right-of-way in return. Defendants bargained hard by capitalizing on their discretionary authority and Robbins's violations of various permit terms, though truculence was apparent on both sides. One of the defendants, at least, clearly crossed the line into impermissible conduct in breaking into Robbins's lodge, although it is not clear from the record that any other action by defendants was more serious than garden-variety trespass, and the Government has successfully defended every decision to eliminate Robbins's permission to use public lands in the ways he had previously enjoyed. Robbins had ready at hand a wide variety of administrative and judicial remedies to redress his injuries. The proposal, nonetheless, to create a new Bivens remedy to redress such injuries collectively on a theory of retaliation for exercising his property right to exclude, or on a general theory of unjustifiably burdening his rights as a property owner, raises a serious difficulty of devising a workable cause of action. A judicial standard to identify illegitimate pressure going beyond legitimately hard bargaining would be endlessly knotty to work out, and a general provision for tortlike liability when Government employees are unduly zealous in pressing a governmental interest affecting property would invite an onslaught of Bivens actions. We think accordingly that any damages remedy for actions by Government employees who push too hard for the *2605 Government's benefit may come better, if at all, through legislation. "Congress is in a far better position than a court to evaluate the impact of a new species of litigation" against those who act on the public's behalf. Bush, 462 U.S., at 389, 103 S. Ct. 2404. And Congress can tailor any remedy to the problem perceived, thus lessening the risk of raising a tide of suits threatening legitimate initiative on the part of the Government's employees. Ibid. ("[Congress] may inform itself through factfinding procedures such as hearings that are not available to the courts"); cf. Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982) (recognizing "the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties" (internal quotation marks and brackets omitted)). III Robbins's other claim is under RICO, which gives civil remedies to "[a]ny person injured in his business or property by reason of a violation of [18 U.S.C. § 1962]." 18 U.S.C. § 1964(c). Section 1962(c) makes it a crime 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." RICO defines "racketeering activity" to include "any act which is indictable under" the Hobbs Act as well as "any act or threat involving ... extortion ..., which is chargeable under State law and punishable by imprisonment for more than one year." §§ 1961(1)(A)-(B) (2000 ed., Supp. IV). The Hobbs Act, finally, criminalizes interference with interstate commerce by extortion, along with attempts or conspiracies, § 1951(a), extortion being defined as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right," § 1951(b)(2). Robbins charges defendants with violating the Hobbs Act by wrongfully trying to get the easement under color of official right, to which defendants reply with a call to dismiss the RICO claim for two independent reasons: the Hobbs Act does not apply when the National Government is the intended beneficiary of the allegedly extortionate acts; and a valid claim of entitlement to the disputed property is a complete defense against extortion. Because we agree with the first contention, we do not reach the second. The Hobbs Act does not speak explicitly to efforts to obtain property for the Government rather than a private party, and that leaves defendants' contention to turn on the common law conception of "extortion," which we presume Congress meant to incorporate when it passed the Hobbs Act in 1946. See Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 402, 123 S. Ct. 1057, 154 L. Ed. 2d 991 (2003) (construing the term "extortion" in the Hobbs Act by reference to its common law meaning); Evans v. United States, 504 U.S. 255, 259, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992) (same); see also Morissette v. United States, 342 U.S. 246, 263, 72 S. Ct. 240, 96 L. Ed. 288 (1952) ("[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken"). "At common law, extortion was a property offense committed by a public official *2606 who took any money or thing of value that was not due to him under the pretense that he was entitled to such property by virtue of his office." Scheidler, supra, at 402, 123 S. Ct. 1057 (quoting 4 W. Blackstone, Commentaries on the Laws of England 141 (1769), and citing 3 R. Anderson, Wharton's Criminal Law and Procedure § 1393, pp. 790-791 (1957); internal quotation marks omitted). In short, "[e]xtortion by the public official was the rough equivalent of what we would now describe as `taking a bribe.'" Evans, supra, at 260, 112 S. Ct. 1881. Thus, while Robbins is certainly correct that public officials were not immune from charges of extortion at common law, see Brief for Respondent 43, the crime of extortion focused on the harm of public corruption, by the sale of public favors for private gain, not on the harm caused by overzealous efforts to obtain property on behalf of the Government.[12] The importance of the line between public and private beneficiaries for common law and Hobbs Act extortion is confirmed by our own case law, which is completely barren of an example of extortion under color of official right undertaken for the sole benefit of the Government. See, e.g., McCormick v. United States, 500 U.S. 257, 273, 111 S. Ct. 1807, 114 L. Ed. 2d 307 (1991) (discussing circumstances in which public official's receipt of campaign contributions constitutes extortion under color of official right); Evans, supra, at 257, 112 S. Ct. 1881 (Hobbs Act prosecution for extortion under color of official right, where public official accepted cash in exchange for favorable votes on a rezoning application); United States v. Gillock, 445 U.S. 360, 362, 100 S. Ct. 1185, 63 L. Ed. 2d 454 (1980) (Hobbs Act prosecution for extortion under color of official right, where state senator accepted money in exchange for blocking a defendant's extradition and agreeing to introduce legislation); cf. United States v. Deaver, 14 F. 595, 597 (W.D.N.C. 1882) (under the "technical meaning [of extortion] in the common law, ... [t]he officer must unlawfully and corruptly receive such money or article of value for his own benefit or advantage"). More tellingly even, Robbins has cited no decision by any court, much less this one, from the entire 60-year period of the Hobbs Act that found extortion in efforts of Government employees to get property for the exclusive benefit of the Government. Of course, there is usually a case somewhere that provides comfort for just about any claim. Robbins musters two for his understanding of extortion under color of official right, neither of which, however, addressed the beneficiary question with any care: People v. Whaley, 6 Cow. 661, 1827 WL 2284 (N.Y.1827), and Willett v. Devoy, 170 A.D. 203, 155 N.Y.S. 920 (1915). Whaley was about a charge of extortion against a justice of the peace who wrongfully ordered a litigant to pay compensation to the other party as well as a small administrative fee to the court. Because the case involved illegally obtaining property for the benefit of a private third party, it does not stand for the proposition that an act for the benefit of the Government alone can be extortion. The *2607 second case, Willett, again from New York, construed a provision of the State's Public Officers Law. That statute addressed the problem of overcharging by public officers, see Birdseye's Consol. Laws of N.Y. Ann. § 67, p. 4640 (1909), and the court's opinion on it said that common law extortion did not draw any distinction "on the ground that the official keeps the fee himself," 170 A.D., at 204, 155 N.Y.S., at 921. But a single, two-page opinion from a state intermediate appellate court issued in 1915 is not much indication that the Hobbs Act was adopted in 1946 subject to the understanding that common law extortion was spacious enough to cover the case Robbins states. There is a reason he is plumbing obscurity. Robbins points to what we said in United States v. Green, 350 U.S. 415, 420, 76 S. Ct. 522, 100 L. Ed. 494 (1956), that "extortion as defined in the [Hobbs Act] in no way depends upon having a direct benefit conferred on the person who obtains the property." He infers that Congress could not have meant to prohibit extortionate acts in the interest of private entities like unions, but ignore them when the intended beneficiary is the Government. See Brief for Respondent 47-48. But Congress could very well have meant just that; drawing a line between private and public beneficiaries prevents suits (not just recoveries) against public officers whose jobs are to obtain property owed to the Government. So, without some other indication from Congress, it is not reasonable to assume that the Hobbs Act (let alone RICO) was intended to expose all federal employees, whether in the Bureau of Land Management, the Internal Revenue Service, the Office of the Comptroller of the Currency (OCC), or any other agency, to extortion charges whenever they stretch in trying to enforce Government property claims. See Sinclair v. Hawke, 314 F.3d 934, 944 (C.A.8 2003) (OCC employees "do not become racketeers by acting like aggressive regulators"). As we just suggested, Robbins does not face up to the real problem when he says that requiring proof of a wrongful intent to extort would shield well-intentioned Government employees from liability. It is not just final judgments, but the fear of criminal charges or civil claims for treble damages that could well take the starch out of regulators who are supposed to bargain and press demands vigorously on behalf of the Government and the public. This is the reason we would want to see some text in the Hobbs Act before we could say that Congress meant to go beyond the common law preoccupation with official corruption, to embrace the expansive notion of extortion Robbins urges on us. He falls back to the argument that defendants violated Wyoming's blackmail statute, see Wyo. Stat. Ann. § 6-2-402 (1977-2005),[13] which he says is a separate predicate offense for purposes of RICO liability. But even assuming that defendants' conduct would be "chargeable under State law and punishable by imprisonment for more than one year," 18 U.S.C. § 1961(1)(A), it cannot qualify as a predicate offense for a RICO suit unless it is *2608 "capable of being generically classified as extortionate," Scheidler, 537 U.S., at 409, 410, 123 S. Ct. 1057; accord, United States v. Nardello, 393 U.S. 286, 296, 89 S. Ct. 534, 21 L. Ed. 2d 487 (1969). For the reasons just given, the conduct alleged does not fit the traditional definition of extortion, so Robbins's RICO claim does not survive on a theory of state-law derivation. * * * Because neither Bivens nor RICO gives Robbins a cause of action, there is no reason to enquire further into the merits of his claim or the asserted defense of qualified immunity. The judgment of the Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Officials of the Bureau of Land Management stand accused of harassment and intimidation aimed at extracting an easement across private The questions here are whether the landowner has either a private action for damages of the sort recognized in or a claim against the officials in their individual capacities under the Racketeer Influenced and Corrupt Organizations Act (RICO), (2000 ed and Supp IV) We hold that neither action is available I A Plaintiff-respondent Frank owns and operates the High Island Ranch, a commercial guest resort in Hot Springs County, Wyoming, stretching across some 40 miles of territory The ranch is a patchwork of mostly contiguous land parcels intermingled with tracts belonging to other private owners, the State of Wyoming, and the National Government Its natural resources include wildlife and mineral deposits, and its mountainous western portion, called the upper Rock Creek area, is a place of great natural beauty In response to persistent requests by environmentalists and outdoor enthusiasts, the Bureau tried to induce the ranch's previous owner, George Nelson, to grant an easement for public use over South Fork Owl Creek Road, which runs through the ranch and serves as a main route to the upper Rock Creek area For a while, Nelson refused from fear that the public would disrupt his guests' activities, but shortly after agreeing to sell the to in March Nelson signed a nonexclusive deed of easement giving the United States the right to use and maintain the road along a stretch of his In return, the Bureau agreed to rent Nelson a right-of-way to maintain a different section of the road as it runs across federal and connects otherwise isolated parts of 's holdings In May Nelson conveyed the ranch to who continued to graze cattle and run guest cattle drives in reliance on grazing permits and a Special Recreation Use Permit (SRUP) issued by the Bureau But knew nothing about Nelson's grant of the easement across South Fork Owl Creek Road, which the Bureau had failed to record, and upon recording his warranty deed in Hot Springs County, took title to the ranch free of the easement, by operation of Wyoming law See (2005) When the Bureau's employee Joseph Vessels[1] discovered, in June that the Bureau's inaction had cost it the easement, he telephoned and demanded an easement to replace Nelson's refused but indicated he would consider granting one in return for something In a later meeting, Vessels allegedly told that "`the Federal Government does not negotiate,'" and talks broke down Brief for Respondent 5 says that over the next several years the defendant-petitioners (hereinafter defendants), *4 who are current and former employees of the Bureau, carried on a campaign of harassment and intimidation aimed at forcing him to regrant the lost easement B concedes that any single one of the offensive and sometimes illegal actions by the Bureau's officials might have been brushed aside as a small imposition, but says that in the aggregate the campaign against him amounted to coercion to extract the easement and should be redressed collectively The substance of 's claim, and the degree to which existing remedies available to him were adequate, can be understood and assessed only by getting down to the details, which add up to a long recitation[2] In the summer of after the fruitless telephone conversation in June, Vessels wrote to for permission to survey his land in the area of the desired easement said no, that it would be a waste of time for the Bureau to do a survey without first reaching agreement with him Vessels went ahead with a survey anyway, trespassed on 's land, and later boasted about it to Not surprisingly, given the lack of damage to his did not file a trespass complaint in response Mutual animosity grew, however, and one Bureau employee, Edward Parodi, was told by his superiors to "look closer" and "investigate harder" for possible trespasses and other permit violations by App 128-129 Parodi also heard colleagues make certain disparaging remarks about such as referring to him as "the rich SOB from Alabama [who] got [the Ranch]" Parodi became convinced that the Bureau had mistreated and described its conduct as "the volcanic point" in his decision to retire Vessels and his supervisor, defendant Charles Wilkie, continued to demand the easement, under threat to cancel the reciprocal maintenance right-of-way that Nelson had negotiated When would not budge, the Bureau canceled the right-of-way, citing 's refusal to grant the desired easement and failure even to pay the rental fee did not appeal the cancellation to the Interior Board of Land Appeals (IBLA) or seek judicial review under the Administrative Procedure Act (APA), In August 1995, brought his cattle to a water source on belonging to his neighbor, LaVonne Pennoyer An altercation ensued, and Pennoyer struck with her truck while he was riding a horse Plaintiff-Appellee's SuppApp in No 04-8016 (CA10), pp 676-681 (hereinafter CA10 App); Pl Exh 2, Record 164-166; Pl Exh 35a, Defendant Gene Leone fielded a call from Pennoyer regarding the incident, encouraged her to contact the sheriff, and himself placed calls to the sheriff suggesting that be charged with trespass After the incident, Parodi claims that Leone told him: "I think I finally got a way to get ['s] permits and get him out of business" App 125, 126 In October 1995, the Bureau claimed various permit violations and changed the High Island Ranch's 5-year SRUP to a SRUP subject to annual renewal According to losing the 5-year SRUP disrupted his guest ranching business, owing to the resulting uncertainty about permission to conduct cattle drives declined to seek administrative review, *5 however, in part because Bureau officials told him that the process would be lengthy and that his permit would be suspended until the IBLA reached a decision[3] Beginning in 1996, defendants brought administrative charges against for trespass and other land-use violations claimed some charges were false, and others unfairly selective enforcement, and he took all of them to be an effort to retaliate for refusing the Bureau's continuing demands for the easement He contested a number of these charges, but not all of them, administratively In the spring of 1997, the South Fork Owl Creek Road, the only way to reach the portions of the ranch in the Rock Creek area, became impassable When the Bureau refused to repair the section of road across federal land, took matters into his own hands and fixed the public road himself, even though the Bureau had refused permission The Bureau fined for trespass, but offered to settle the charge and entertain an application to renew the old maintenance right-of-way Instead, appealed to the IBLA, which found that had admitted the unauthorized repairs when he sent the Bureau a bill for reimbursement The Board upheld the fine, In re 146 IBLA 213 (1998), and rejected 's claim that the Bureau was trying to "`blackmail'" him into providing the easement; it said that "[t]he record effectively shows intransigence was the tactic of not [the] BLM" did not seek judicial review of the IBLA's decision In July 1997, defendant Teryl Shryack and a colleague entered 's claiming the terms of a fence easement as authority accused Shryack of unlawful entry, tore up the written instrument, and ordered her off his Later that month, after a meeting about trespass issues with Bureau officials, Michael Miller, a Bureau law enforcement officer, questioned without advance notice and without counsel about the incident with Shryack The upshot was a charge with two counts of knowingly and forcibly impeding and interfering with a federal employee, in violation of (2000 ed and Supp IV), a crime with a penalty of up to one year in prison A jury acquitted in December, after deliberating less than 30 minutes United According to a news story, the jurors "were appalled at the actions of the government" and one said that " could not have been railroaded any worse if he worked for the Union Pacific" CA10 App 852 then moved for attorney's fees under the Hyde Amendment, 617, note following 18 USC 3600A, arguing that the position of the United States was vexatious, frivolous, or in bad faith The trial judge denied the motion, and appealed too late See 179 F3d, at -1270 In 1998, brought the lawsuit now before us, though there was further vexation to come In June the Bureau denied 's application to renew his annual SRUP, based on an accumulation of land-use penalties levied against him appealed, the IBLA affirmed, In re 154 IBLA 93 (2000), and did not seek judicial review Then, in August, the Bureau revoked the grazing permit for High Island *6 Ranch, claiming that had violated its terms when he kept Bureau officials from passing over his to reach public lands appealed to the IBLA, which stayed the revocation pending resolution of the appeal Order in IBLA 2000-12 CA10 App 1020 The stay held for several years, despite periodic friction Without a SRUP, was forced to redirect his guest cattle drives away from federal land and through a mountain pass with unmarked boundaries In August 2000, Vessels and defendants Darrell Barnes and Miller tried to catch trespassing in driving cattle over a corner of land administered by the Bureau From a nearby hilltop, they videotaped ranch guests during the drive, even while the guests sought privacy to relieve themselves That afternoon, alleges, Barnes and Miller broke into his guest lodge, left trash inside, and departed without closing the lodge gates The next summer, defendant David Wallace spoke with Preston Smith, an employee of the Bureau of Indian Affairs who manages lands along the High Island Ranch's southern border, and pressured him to impound 's cattle Smith told but did nothing more Finally, in January tension actually cooled to the point that and the Bureau entered into a settlement agreement that, among other things, established a procedure for informal resolution of future grazing disputes and stayed 16 pending administrative appeals with a view to their ultimate dismissal, provided that did not violate certain Bureau regulations for a 2-year period The settlement came apart, however, in January 2004, when the Bureau began formal trespass proceedings against and unilaterally voided the settlement agreement tried to enforce the agreement in federal court, but a district court denied relief in a decision affirmed by the Court of Appeals in February (CA10) C In this lawsuit (brought, as we said, in 1998), asks for compensatory and punitive damages as well as declaratory and injunctive relief Although he originally included the United States as a defendant, he voluntarily dismissed the Government, and pressed forward with a RICO claim charging defendants with repeatedly trying to extort an easement from him, as well as a similarly grounded claim that defendants violated his Fourth and Fifth Amendment rights Defendants filed a motion to dismiss on qualified immunity and failure to state a claim, which the District Court granted, holding that inadequately pleaded damages under RICO and that the APA and the Federal Tort Claims Act (FTCA), 28 USC 1346, were effective alternative remedies that precluded relief The Court of Appeals for the Tenth Circuit reversed on both grounds, although it specified that relief was available only for those "constitutional violations committed by individual federal employees unrelated to final agency action," 300 F3d, 2 On remand, defendants again moved to dismiss on qualified immunity As to the RICO claim, the District Court denied the motion; as to it dismissed what called the Fourth Amendment claim for malicious prosecution and those under the Fifth Amendment for due process violations, but it declined to dismiss the Fifth Amendment claim of retaliation for the exercise of 's right to exclude the Government from his *7 and to refuse any grant of a interest without compensation After limited discovery, defendants again moved for summary judgment on qualified immunity The District Court adhered to its earlier denial This time, the Court of Appeals affirmed, after dealing with collateral order jurisdiction to consider an interlocutory appeal of the denial of qualified immunity, It held that had a clearly established right to be free from retaliation for exercising his Fifth Amendment right to exclude the Government from his private -767, and it explained that could go forward with the RICO claim because Government employees who "engag[e] in lawful actions with an intent to extort a right-of-way from [a landowner] rather than with an intent to merely carry out their regulatory duties" commit extortion under Wyoming law and within the meaning of the Hobbs Act, 18 USC 1951 The Court of Appeals rejected the defense based on a claim of the Government's legal entitlement to demand the disputed easement: "if an official obtains that he has lawful authority to obtain, but does so in a wrongful manner, his conduct constitutes extortion under the Hobbs Act" Finally, the Court of Appeals said again that "'[s] allegations involving individual action unrelated to final agency action are permitted under " The appeals court declined defendants' request "to determine which allegations remain and which are precluded," however, because defendants had not asked the District Court to sort them out Ibid We granted certiorari, 549 US 127 S Ct 722, 166 L Ed 2d 559 and now reverse II The first question is whether to devise a new damages action for retaliating against the exercise of ownership rights, in addition to the discrete administrative and judicial remedies available to a landowner like in dealing with the Government's employees[4], held that the victim of a Fourth Amendment violation by federal officers had a claim for damages, and in the years following we have recognized two more nonstatutory damages remedies, the first for employment discrimination in violation of the Due Process Clause, Davis v Passman, 442 US 228, 99 S Ct 2264, 60 L Ed 2d 846 and the second for an Eighth Amendment violation by prison officials, v Green, 446 US 14, 100 S Ct 1468, 64 L Ed 2d 15 But we have also held that any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee; it is not an automatic entitlement no matter what other means there may be to vindicate a protected interest, and in most instances we have found a remedy unjustified We have accordingly held against applying the model to claims of First Amendment violations by federal employers, v Lucas, 462 US 367, 103 S Ct 2404, 76 L Ed 2d 648 harm to military personnel *8 through activity incident to service, United States v Stanley, 483 US 669, 107 S Ct 3054, 97 L Ed 2d 550 ; Chappell v Wallace, 462 US 103 S Ct 2, 76 L Ed 2d 586 and wrongful denials of Social Security disability benefits, v Chilicky, 487 US 412, 108 S Ct 2460, 101 L Ed 2d 370 We have seen no case for extending to claims against federal agencies, FDIC v Meyer, 510 US 471, 114 S Ct 996, 127 L Ed 2d 308 or against private prisons, Correctional Services Corp v Malesko, 534 US 61, 122 S Ct 515, 151 L Ed 2d 456 Whatever the ultimate conclusion, however, our consideration of a request follows a familiar sequence, and on the assumption that a constitutionally recognized interest is adversely affected by the actions of federal employees, the decision whether to recognize a remedy may require two steps In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages 103 S Ct 2404 But even in the absence of an alternative, a remedy is a subject of judgment: "the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation" 103 S Ct 2404 A In this factually plentiful case, assessing the significance of any alternative remedies at step one has to begin by categorizing the difficulties experienced in dealing with the Bureau We think they can be separated into four main groups: torts or tort-like injuries inflicted on him, charges brought against him, unfavorable agency actions, and offensive behavior by Bureau employees falling outside those three categories Tortious harm inflicted on him includes Vessels's unauthorized survey of the terrain of the desired easement and the illegal entry into the lodge, and in each instance, had a civil remedy in damages for trespass Understandably, he brought no such action after learning about the survey, which was doubtless annoying but not physically damaging For the incident at the lodge, he chose not to pursue a tort remedy, though there is no question that one was available to him if he could prove his allegations Cf Correctional Services Corp, 122 S Ct 515 (considering availability of state tort remedies in refusing to recognize a remedy) The charges brought against include a series of administrative claims for trespass and other land-use violations, a fine for the unauthorized road repair in 1997, and the two criminal charges that same year had the opportunity to contest all of the administrative charges; he did fight some (but not all) of the various land-use and trespass citations, and he challenged the road repair fine as far as the IBLA, though he did not take advantage of judicial review when he lost in that tribunal[5] He exercised his right to *9 jury trial on the criminal complaints, and although the rapid acquittal tended to support his charge of baseless action by the prosecution (egged on by Bureau employees), the federal judge who presided at the trial did not think the Government's case thin enough to justify awarding attorney's fees, and 's appeal from that decision was late See 179 F3d, at -1270 The trial judge's denial of fees may reflect facts that dissuaded from bringing a state-law action for malicious prosecution, though it is also possible that a remedy would have been unavailable against federal officials, see Blake v Rupe, 651 P2d 1096, ("Malicious prosecution is not an action available against a law enforcement official")[6] For each charge, in any event, had some procedure to defend and make good on his position He took advantage of some opportunities, and let others pass; although he had mixed success, he had the means to be heard The more conventional agency action included the 1995 cancellation of the right-of-way in 's favor (originally given in return for the unrecorded easement for the Government's benefit); the 1995 decision to reduce the SRUP from five years to one; the termination of the SRUP in ; and the revocation of the grazing permit that same year Each time, the Bureau claimed that was at fault, and for each claim, administrative review was available, subject to ultimate judicial review under the APA took no appeal from the 1995 decisions, stopped after losing an IBLA appeal of the SRUP denial, and obtained a stay from the IBLA of the Bureau's revocation of the grazing permit Three events elude classification The 1995 incident in which 's horse was struck primarily involved and his neighbor, not the Bureau, and the sheriff never brought criminal charges The videotaping of ranch guests during the 2000 drive, while no doubt thoroughly irritating and bad for business, may not have been unlawful, depending, among other things, upon the location on public or private land of the people photographed Cf Restatement (Second) of Torts 652B (1976) (defining tort of intrusion upon seclusion)[7] Even if a tort was committed, it is unclear whether rather than his guests, would be the proper plaintiff, or whether the tort should be chargeable against the Government (as distinct from employees) under the FTCA, cf 446 US, at 19-20, 100 S Ct 1468 (holding that FTCA and remedies were "parallel, complementary causes of action" and that the availability of the former did not preempt the latter) The significance of Wallace's attempt to pressure Smith into impounding 's cattle is likewise up in the air The legitimacy of any impoundment that might have occurred would presumably have depended on where particular cattle were on the patchwork of private and public lands, and in any event, Smith never impounded any *2600 In sum, has an administrative, and ultimately a judicial, process for vindicating virtually all of his complaints He suffered no charges of wrongdoing on his own part without an opportunity to defend himself (and, in the case of the criminal charges, to recoup the consequent expense, though a judge found his claim wanting) And final agency action, as in canceling permits, for example, was open to administrative and judicial review, as the Court of Appeals realized, 433 F3d, This state of the law gives no intuitively meritorious case for recognizing a new constitutional cause of action, but neither does it plainly answer no to the question whether he should have it Like the combination of public and private land ownership around the ranch, the forums of defense and redress open to are a patchwork, an assemblage of state and federal, administrative and judicial benches applying regulations, statutes and common law rules It would be hard to infer that Congress expected the Judiciary to stay its hand, but equally hard to extract any clear lesson that ought to spawn a new claim Compare 462 US, at 388, 103 S Ct 2404 (refusing to create a remedy when faced with "an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations"); and 487 US, at 426, 108 S Ct 2460 ("Congress chose specific forms and levels of protection for the rights of persons affected"), with 403 US, at 397, (finding "no explicit congressional declaration that persons injured [in this way] may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress") B This, then, is a case for step two, for weighing reasons for and against the creation of a new cause of action, the way common law judges have always done See 103 S Ct 2404 Here, the competing arguments boil down to one on a side: from the inadequacy of discrete, incident-by-incident remedies; and from the Government and its employees, the difficulty of defining limits to legitimate zeal on the public's behalf in situations where hard bargaining is to be expected in the back-and-forth between public and private interests that the Government's employees engage in every day 1 As we said, when the incidents are examined one by one, 's situation does not call for creating a constitutional cause of action for want of other means of vindication, so he is unlike the plaintiffs in cases recognizing freestanding claims: Davis had no other remedy, himself was not thought to have an effective one, and in the plaintiff had none against Government officials Davis, 442 US, at 245, 99 S Ct 2264 ("For Davis, as for `it is damages or nothing'" (quoting (Harlan, J, concurring in judgment))); 100 S Ct 1468 ("[W]e cannot hold that Congress relegated respondent exclusively to the FTCA remedy" against the Government) But 's argument for a remedy that looks at the course of dealing as a whole, not simply as so many individual incidents, has the force of the metaphor invokes, "death by a thousand cuts" Brief for Respondent 40 It is one thing to be threatened with the loss of grazing rights, or to be prosecuted, or to have one's lodge broken into, but something else to be subjected to this in combination over a period of six years, by a *2601 series of public officials bent on making life difficult Agency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse The whole here is greater than the sum of its parts 2 On the other side of the ledger there is a difficulty in defining a workable cause of action describes the wrong here as retaliation for standing on his right as a owner to keep the Government out (by refusing a free replacement for the right-of-way it had lost), and the mention of retaliation brings with it a tailwind of support from our longstanding recognition that the Government may not retaliate for exercising First Amendment speech rights, see Rankin v McPherson, 483 US 378, 107 S Ct 2891, 97 L Ed 2d 315 or certain others of constitutional rank, see, eg, Lefkowitz v Turley, 414 US 70, 94 S Ct 316, 38 L Ed 2d 274 ; United States v Jackson, 390 US 570, 88 S Ct 1209, 20 L Ed 2d 138 But on closer look, the claim against the Bureau's employees fails to fit the prior retaliation cases Those cases turn on an allegation of impermissible purpose and motivation; an employee who spoke out on matters of public concern and then was fired, for example, would need to "prove that the conduct at issue was constitutionally protected, and that it was a substantial or motivating factor in the termination" Board of Comm'rs, Wabaunsee Cty v Umbehr, 518 US 668, 116 S Ct 2342 In its defense, the Government may respond that the firing had nothing to do with the protected speech, or that "it would have taken the same action even in the absence of the protected conduct" Ibid In short, the outcome turns on "what for" questions: what was the Government's purpose in firing him and would he have been fired anyway? Questions like these have definite answers, and we have established methods for identifying the presence of an illicit reason (in competition with others), not only in retaliation cases but on claims of discrimination based on race or other characteristics See McDonnell Douglas Corp v Green, 411 US 792, 93 S Ct 1817, 36 L Ed 2d 668 But a case by could not be resolved merely by answering a "what for" question or two All agree that the Bureau's employees intended to convince to grant an easement[8] But unlike punishing someone for speaking out against the Government, trying to induce someone to grant an easement for public use is a perfectly legitimate purpose: as a landowner, the Government may have, and in this instance does have, a valid interest in getting access to neighboring lands The "what for" question thus has a ready answer in terms of lawful conduct 's challenge, therefore, is not to the object the Government seeks to achieve, and for the most part his argument is not that the means the Government used were necessarily illegitimate; rather, he says that defendants simply demanded too much and went too far But as soon as 's claim is framed this way, the line-drawing difficulties it creates are immediately apparent A "too much" kind of liability standard (if standard at all) can never be as reliable a guide to *2602 conduct and to any subsequent liability as a "what for" standard, and that reason counts against recognizing freestanding liability in a case like this The impossibility of fitting 's claim into the simple "what for" framework is demonstrated, repeatedly, by recalling the various actions he complains about Most of them, such as strictly enforcing rules against trespass or conditions on grazing permits, are legitimate tactics designed to improve the Government's negotiating position Just as a private landowner, when frustrated at a neighbor's stubbornness in refusing an easement, may press charges of trespass every time a cow wanders across the line or call the authorities to report every land-use violation, the Government too may stand firm on its rights and use its power to protect public interests Though protests that the Government was trying to extract the easement for free instead of negotiating, that line is slippery even in this case; the Government was not offering to buy the easement, but it did have valuable things to offer in exchange, like continued permission for to use Government land on favorable terms (at least to the degree that the terms of a permit were subject to discretion)[9] It is true that the Government is no ordinary landowner, with its immense economic power, its role as trustee for the public, its right to cater to particular segments of the public (like the recreational users who would take advantage of the right-of-way to get to remote tracts), and its wide discretion to bring enforcement actions But in many ways, the Government deals with its neighbors as one owner among the rest (albeit a powerful one) Each may seek benefits from the others, and each may refuse to deal with the others by insisting on valuable consideration for anything in return And as a potential contracting party, each neighbor is entitled to drive a hard bargain, as even acknowledges, see Tr of Oral Arg 31-32 That, after all, is what did by flatly refusing to regrant the easement without further recompense, and that is what the defendant employees did on behalf of the Government So long as they had authority to withhold or withdraw permission to use Government land and to enforce the trespass and land-use rules (as the IBLA confirmed that they did have at least most of the time), they were within their rights to make it plain that 's willingness to give the easement would determine how complaisant they would be about his trespasses on public land, when they had discretion to enforce the law to the letter[10] *2603 does make a few allegations, like the unauthorized survey and the unlawful entry into the lodge, that charge defendants with illegal action plainly going beyond hard bargaining If those were the only coercive acts charged, could avoid the "too much" problem by fairly describing the Government behavior alleged as illegality in attempting to obtain a interest for nothing, but that is not a fair summary of the body of allegations before us, according to which defendants' improper exercise of the Government's "regulatory powers" is essential to the claim Brief for Respondent 21 (Of course, even in that simpler case, the tort or torts by Government employees would be so clearly actionable under the general law that it would furnish only the weakest argument for recognizing a generally available *2604 constitutional tort) Rather, the bulk of 's charges go to actions that, on their own, fall within the Government's enforcement power It would not answer the concerns just expressed to change conceptual gears and consider the more abstract concept of liability for retaliatory or undue pressure on a owner for standing firm on rights; looking at the claim that way would not eliminate the problem of degree, and it would raise a further reason to balk at recognizing a claim For at this high level of generality, a action to redress retaliation against those who resist Government impositions on their rights would invite claims in every sphere of legitimate governmental action affecting interests, from negotiating tax claim settlements to enforcing Occupational Safety and Health Administration regulations Exercising any governmental authority affecting the value or enjoyment of interests would fall within the regime, and across this enormous swath of potential litigation would hover the difficulty of devising a "too much" standard that could guide an employee's conduct and a judicial factfinder's conclusion[11] The point here is not to deny that Government employees sometimes overreach, for of course they do, and they may have done so here if all the allegations are true The point is the reasonable fear that a general cure would be worse than the disease C In sum, defendants were acting in the name of the Bureau, which had the authority to grant (and had given) some use of public lands under its control and wanted a right-of-way in return Defendants bargained hard by capitalizing on their discretionary authority and 's violations of various permit terms, though truculence was apparent on both sides One of the defendants, at least, clearly crossed the line into impermissible conduct in breaking into 's lodge, although it is not clear from the record that any other action by defendants was more serious than garden-variety trespass, and the Government has successfully defended every decision to eliminate 's permission to use public lands in the ways he had previously enjoyed had ready at hand a wide variety of administrative and judicial remedies to redress his injuries The proposal, nonetheless, to create a new remedy to redress such injuries collectively on a theory of retaliation for exercising his right to exclude, or on a general theory of unjustifiably burdening his rights as a owner, raises a serious difficulty of devising a workable cause of action A judicial standard to identify illegitimate pressure going beyond legitimately hard bargaining would be endlessly knotty to work out, and a general provision for tortlike liability when Government employees are unduly zealous in pressing a governmental interest affecting would invite an onslaught of actions We think accordingly that any damages remedy for actions by Government employees who push too hard for the *2605 Government's benefit may come better, if at all, through legislation "Congress is in a far better position than a court to evaluate the impact of a new species of litigation" against those who act on the public's behalf 462 US, at 389, 103 S Ct 2404 And Congress can tailor any remedy to the problem perceived, thus lessening the risk of raising a tide of suits threatening legitimate initiative on the part of the Government's employees Ibid ; cf Harlow v Fitzgerald, 457 US 800, 102 S Ct 2727, 73 L Ed 2d 396 III 's other claim is under RICO, which gives civil remedies to "[a]ny person injured in his business or by reason of a violation of [18 USC 1962]" 18 USC 1964(c) Section 1962(c) makes it a crime 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" RICO defines "racketeering activity" to include "any act which is indictable under" the Hobbs Act as well as "any act or threat involving extortion which is chargeable under State law and punishable by imprisonment for more than one year" 1961(1)(A)-(B) (2000 ed, Supp IV) The Hobbs Act, finally, criminalizes interference with interstate commerce by extortion, along with attempts or conspiracies, 1951(a), extortion being defined as "the obtaining of from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right," 1951(b)(2) charges defendants with violating the Hobbs Act by wrongfully trying to get the easement under color of official right, to which defendants reply with a call to dismiss the RICO claim for two independent reasons: the Hobbs Act does not apply when the National Government is the intended beneficiary of the allegedly extortionate acts; and a valid claim of entitlement to the disputed is a complete defense against extortion Because we agree with the first contention, we do not reach the second The Hobbs Act does not speak explicitly to efforts to obtain for the Government rather than a private party, and that leaves defendants' contention to turn on the common law conception of "extortion," which we presume Congress meant to incorporate when it passed the Hobbs Act in 1946 See v National Organization for Women, Inc, 537 US 393, 123 S Ct 1057, 154 L Ed 2d 991 ; v United States, 504 US 255, 112 S Ct 1881, 119 L Ed 2d 57 ; see also Morissette v United States, 342 US 246, 72 S Ct 240, 96 L Ed 288 "At common law, extortion was a offense committed by a public official *2606 who took any money or thing of value that was not due to him under the pretense that he was entitled to such by virtue of his office" at 123 S Ct 1057 (quoting 4 W Blackstone, Commentaries on the Laws of England 141 (1769), and citing 3 R Anderson, Wharton's Criminal Law and Procedure 1393, pp 790-791 (1957); internal quotation marks omitted) In short, "[e]xtortion by the public official was the rough equivalent of what we would now describe as `taking a bribe'" 112 S Ct 1881 Thus, while is certainly correct that public officials were not immune from charges of extortion at common law, see Brief for Respondent 43, the crime of extortion focused on the harm of public corruption, by the sale of public favors for private gain, not on the harm caused by overzealous efforts to obtain on behalf of the Government[12] The importance of the line between public and private beneficiaries for common law and Hobbs Act extortion is confirmed by our own case law, which is completely barren of an example of extortion under color of official right undertaken for the sole benefit of the Government See, eg, McCormick v United States, 500 US 257, 111 S Ct 1807, 114 L Ed 2d 307 ; 112 S Ct 1881 (Hobbs Act prosecution for extortion under color of official right, where public official accepted cash in exchange for favorable votes on a rezoning application); United States v Gillock, 445 US 360, 100 S Ct 1185, 63 L Ed 2d 454 ; cf United States v Deaver, 14 F 595, (under the "technical meaning [of extortion] in the common law, [t]he officer must unlawfully and corruptly receive such money or article of value for his own benefit or advantage") More tellingly even, has cited no decision by any court, much less this one, from the entire 60-year period of the Hobbs Act that found extortion in efforts of Government employees to get for the exclusive benefit of the Government Of course, there is usually a case somewhere that provides comfort for just about any claim musters two for his understanding of extortion under color of official right, neither of which, however, addressed the beneficiary question with any care: People v Whaley, 6 Cow 661, (NY1827), and Willett v Devoy, 170 AD 203, 155 NYS 920 Whaley was about a charge of extortion against a justice of the peace who wrongfully ordered a litigant to pay compensation to the other party as well as a small administrative fee to the court Because the case involved illegally obtaining for the benefit of a private third party, it does not stand for the proposition that an act for the benefit of the Government alone can be extortion The *2607 second case, Willett, again from New York, construed a provision of the State's Public Officers Law That statute addressed the problem of overcharging by public officers, see Birdseye's Consol Laws of NY Ann 67, p 4640 (1909), and the court's opinion on it said that common law extortion did not draw any distinction "on the ground that the official keeps the fee himself," 170 AD, at 204, 155 NYS, at 921 But a single, two-page opinion from a state intermediate appellate court issued in is not much indication that the Hobbs Act was adopted in 1946 subject to the understanding that common law extortion was spacious enough to cover the case states There is a reason he is plumbing obscurity points to what we said in United States v Green, 350 US 415, 76 S Ct 522, 100 L Ed 494 that "extortion as defined in the [Hobbs Act] in no way depends upon having a direct benefit conferred on the person who obtains the " He infers that Congress could not have meant to prohibit extortionate acts in the interest of private entities like unions, but ignore them when the intended beneficiary is the Government See Brief for Respondent 47-48 But Congress could very well have meant just that; drawing a line between private and public beneficiaries prevents suits (not just recoveries) against public officers whose jobs are to obtain owed to the Government So, without some other indication from Congress, it is not reasonable to assume that the Hobbs Act (let alone RICO) was intended to expose all federal employees, whether in the Bureau of Land Management, the Internal Revenue Service, the Office of the Comptroller of the Currency (OCC), or any other agency, to extortion charges whenever they stretch in trying to enforce Government claims See Sinclair v Hawke, 314 F3d 934, As we just suggested, does not face up to the real problem when he says that requiring proof of a wrongful intent to extort would shield well-intentioned Government employees from liability It is not just final judgments, but the fear of criminal charges or civil claims for treble damages that could well take the starch out of regulators who are supposed to bargain and press demands vigorously on behalf of the Government and the public This is the reason we would want to see some text in the Hobbs Act before we could say that Congress meant to go beyond the common law preoccupation with official corruption, to embrace the expansive notion of extortion urges on us He falls back to the argument that defendants violated Wyoming's blackmail statute, see Wyo Stat Ann 6-2- (1977-2005),[13] which he says is a separate predicate offense for purposes of RICO liability But even assuming that defendants' conduct would be "chargeable under State law and punishable by imprisonment for more than one year," 18 USC 1961(1)(A), it cannot qualify as a predicate offense for a RICO suit unless it is *2608 "capable of being generically classified as extortionate," 537 US, at 409, 410, 123 S Ct 1057; accord, United States v Nardello, 393 US 286, 89 S Ct 534, 21 L Ed 2d 487 For the reasons just given, the conduct alleged does not fit the traditional definition of extortion, so 's RICO claim does not survive on a theory of state-law derivation * * * Because neither nor RICO gives a cause of action, there is no reason to enquire further into the merits of his claim or the asserted defense of qualified immunity The judgment of the Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion It is so ordered

Justice Thomas

concurring

Wilkie v. Robbins

2007-06-25

https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/

https://www.courtlistener.com/api/rest/v3/clusters/145705/

2006-070

The Court correctly concludes that Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), does not supply a cause of action in this case. I therefore join its opinion. I write separately because I would not extend Bivens even if its reasoning logically applied to this case. "Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action." Correctional Services Corp. v. Malesko, 534 U.S. 61, 75, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001) (SCALIA, J., joined by THOMAS, J., concurring). Accordingly, in my view, Bivens and its progeny should be limited "to the precise circumstances that they involved." Malesko, supra, at 75, 122 S. Ct. 515. Justice GINSBURG, with whom Justice STEVENS joins, concurring in part and dissenting in part. Bureau of Land Management (BLM) officials in Wyoming made a careless error. They failed to record an easement obtained for the United States along a stretch of land on the privately owned High Island Ranch. Plaintiff-respondent Frank Robbins purchased the ranch knowing nothing about the easement granted by the prior owner. Under Wyoming law, Robbins took title to the land free of the easement. BLM officials, realizing their mistake, demanded from Robbins an easement —for which they did not propose to pay—to replace the one they carelessly lost. Their demand, one of them told Robbins, was nonnegotiable. Robbins was directed to provide the easement, or else. When he declined to follow that instruction, the BLM officials mounted a seven-year campaign of relentless harassment and intimidation to force Robbins to give in. They refused to maintain the road providing access to the ranch, trespassed on Robbins' property, brought unfounded criminal charges against him, canceled his special recreational use permit and grazing privileges, interfered with his business operations, and invaded the privacy of his ranch guests on cattle drives. Robbins commenced this lawsuit to end the incessant harassment and intimidation he endured. He asserted that the Fifth Amendment's Takings Clause forbids government action calculated to acquire private property coercively and cost-free. He further urged that federal officials dishonor their constitutional obligation when they act in retaliation for the property owner's resistance to an uncompensated taking. In support of his claim for relief, Robbins relied on Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). The Court *2609 recognizes that the "remedy" to which the Government would confine Robbins—a discrete challenge to each offending action as it occurs—is inadequate. A remedy so limited would expose Robbins' business to "death by a thousand cuts." See ante, at 2600 (quoting Brief for Respondent 40). Nevertheless, the Court rejects his claim, for it fears the consequences. Allowing Robbins to pursue this suit, the Court maintains, would open the floodgates to a host of unworthy suits "in every sphere of legitimate governmental action affecting property interests." Ante, at 2604. But this is no ordinary case of "hard bargaining," ibid., or bureaucratic arrogance. Robbins charged "vindictive action" to extract property from him without paying a fair price. He complains of a course of conduct animated by an illegitimate desire to "get him." That factor is sufficient to minimize the Court's concern. Cf. Village of Willowbrook v. Olech, 528 U.S. 562, 565-566, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000) (BREYER, J., concurring in result) (citations and internal quotation marks omitted). Taking Robbins' allegations as true, as the Court must at this stage of the litigation, the case presents this question: Does the Fifth Amendment provide an effective check on federal officers who abuse their regulatory powers by harassing and punishing property owners who refuse to surrender their property to the United States without fair compensation? The answer should be a resounding "Yes." I The Court acknowledges that, at this stage of proceedings, the facts must be viewed in the light most favorable to Robbins. Ante, at 2594, n. 2. The full force of Robbins' complaint, however, is not quite captured in the Court's restrained account of his allegations. A more complete rendition of the saga that sparked this suit is in order. Upon discovering that BLM had mistakenly allowed its easement across High Island Ranch to expire, BLM area manager Joseph Vessels contacted Robbins at his home in Alabama to demand that Robbins grant a new easement. Vessels was on shaky legal ground. A federal regulation authorized BLM to require a landowner seeking a right-of-way across Government land to grant reciprocal access to his own land. See 43 CFR § 2801.1-2 (2004). But Robbins never applied for a right-of-way across federal land (the prior owner did), and the Government cites no law or regulation commanding Robbins to grant a new easement to make up for BLM's neglect in losing the first one. Robbins was unwilling to capitulate to unilateral demands, but told Vessels he would negotiate with BLM when he moved to Wyoming. Vessels would have none of it: "This is what you're going to do," he told Robbins. Plaintiff-Appellee's Supp.App. in No. 04-8016 (CA10), p. 325 (hereinafter CA10 App.). Edward Parodi, a range technician in the BLM office, testified that from the very beginning, agency employees referred to Robbins as "the rich SOB from Alabama [who] got [the Ranch]." App. 121. Trouble started almost immediately. Shortly after their first conversation, Vessels wrote Robbins to ask permission to survey his land, presumably to establish the contours of the easement. Robbins refused, believing there was no need for a survey until an agreement had been reached. Vessels conducted the survey anyway, and chuckled when he told Robbins of the trespass. CA10 App. 325-327. At their first face-to-face meeting in Wyoming, Robbins bridled at the one-sided deal BLM proposed. But Vessels was adamant: "The Federal Government does not negotiate," he declared. Id., at 326. Over time, Parodi *2610 reported, Vessels' attitude towards Robbins changed from "professional" to "hostile," and "just got worse and worse and worse." App. 124. Other BLM employees shared Vessels' animosity. In one notable instance, Robbins alleged, BLM agent Gene Leone provoked a violent encounter between Robbins and a neighboring landowner, LaVonne Pennoyer. Leone knew Robbins was looking for a water source for his cattle, and he called Pennoyer to warn her to be on the lookout. Robbins, unfamiliar with the territory and possibly misled by BLM, drove cattle onto Pennoyer's land to water at a creek. Pennoyer showed up in her truck, yelling, blowing the horn, and bumping cows. Realizing that he was on Pennoyer's land, Robbins started to push his cows out of her way, when Pennoyer revved her engine and drove her truck straight into the horse Robbins was riding. Id., at 49; CA10 App. 331-332, 676-681; Pl. Exh. 2, Record 164-166; Pl. Exh. 35a, id., at 102-108. According to Parodi, after the dust-up, Leone boasted, "I think I finally got a way to get [Robbins'] permits and get him out of business." App. 125, 126. Leone pressed the local sheriff to charge Robbins for his conduct in the encounter with Pennoyer, but the sheriff declined to do so. CA10 App. 331-332. Leone cited the Pennoyer incident as one ground, among others, to suspend Robbins' special recreation use permit. That permit allowed Robbins to lead ranch guests on cattle drives, which were his primary source of revenue from the property. App. 49. BLM aimed at the cattle drives in other ways too. Undermining the authenticity of the experience Robbins offered his guests, BLM employees followed along in trucks, videotaping participants. The Government suggests that this surveillance was a legitimate way to document instances when Robbins crossed onto federal land without permission. The suggestion, however, hardly explains why, on one occasion, BLM employees videotaped several female guests who were seeking privacy so they could relieve themselves. CA10 App. 506-507. As part of the campaign against Robbins, Parodi was instructed to "look closer" for trespass violations, to "investigate harder" and "if [he] could find anything, to find it." App. 129, 130. Parodi testified, in relation to the instructions he was given, that he did not have problems with Robbins: He never found a trespass violation he regarded as willful, and Robbins promptly addressed every concern Parodi raised. Id., at 124, 127. The Court maintains that the BLM employees "were within their rights to make it plain that Robbins's willingness to give the easement would determine how complaisant they would be" about his infractions, but the record leaves doubt. Ante, at 2602. Parodi testified that he was asked to "do things [he] wasn't authorized [to do]," App. 124, and that Leone's projections about what BLM officers would do to Robbins exceeded "the appropriate mission of the BLM," id., at 128. About Vessels, Parodi said, "[i]t has been my experience that people given authority and not being held in check and not having solid convictions will run amuck and that [is] what I saw happening." Id., at 125. Eventually, Parodi was moved to warn Robbins that, if he continued to defy BLM officials, "there would be war, a long war and [BLM] would outlast him and out-spend him." Id., at 132. Parodi found BLM's treatment of Robbins so disturbing that it became "the volcanic point" in his decision to retire. Id., at 133. "It's one thing to go after somebody that is willfully busting the regulations and going out of their way to get something from the government," *2611 Parodi said, but he saw Robbins only "as a man standing up for his property rights." Pl. Exh. 35C, Record 41. The story thus far told is merely illustrative of Robbins' allegations. The record is replete with accounts of trespasses to Robbins' property, vindictive cancellations of his rights to access federal land, and unjustified or selective enforcement actions. Indeed, BLM was not content with the arrows in its own quiver. Robbins charged that BLM officials sought to enlist other federal agencies in their efforts to harass him. In one troubling incident, a BLM employee, petitioner David Wallace, pressured a Bureau of Indian Affairs (BIA) manager to impound Robbins' cattle, asserting that he was "a bad character" and that "something need[ed] to be done with [him]." CA10 App. 359. The manager rejected the request, observing that the BIA had no problems with Robbins. Ibid. Even more disconcerting, there was sufficient evidence, the District Court recognized, to support Robbins' allegation that BLM employees filed false criminal charges against him, claiming that he forcibly interfered with a federal officer. Federal prosecutors took up the cause, but Robbins was acquitted by a jury in less than 30 minutes.[1] A news account reported that the jurors "were appalled at the actions of the government," one of them commenting that "Robbins could not have been railroaded any worse ... if he worked for Union Pacific." Id., at 852. BLM's seven-year campaign of harassment had a devastating impact on Robbins' business. Robbins testified that in a typical summer, the High Island Ranch would accommodate 120 guests spread across six cattle drives. As a result of BLM's harassment, in 2003, Robbins was able to organize only one cattle drive with 21 guests. Id., at 507-508. In addition, Robbins reports that he spent "hundreds of thousands of dollars in costs and attorney's fees" seeking to fend off BLM. Brief for Respondent 9, n. 6. To put an end to the incessant harassment, Robbins filed this suit, alleging that the Fifth Amendment forbids government action calculated to acquire private property coercively and cost-free, and measures taken in retaliation for the owner's resistance to an uncompensated taking. Even assuming Robbins is correct about the Fifth Amendment, he may not proceed unless he has a right to sue. To ground his claim for relief, Robbins relies on Bivens, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619. II "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 1 Cranch 137, 163, 2 L. Ed. 60 (1803). In Bivens, the Court drew upon that venerable principle in holding that a victim of a Fourth Amendment violation by federal officers has a claim for *2612 relief in the form of money damages. "Historically," the Court observed, "damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." 403 U.S., at 395, 91 S. Ct. 1999. The Court's decisions recognize that the reasoning underlying Bivens is not confined to Fourth Amendment claims. In Davis v. Passman, 442 U.S. 228, 248-249, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979), the Court allowed a suit seeking money damages for employment discrimination in violation of the equal protection component of the Fifth Amendment. "[U]nless [constitutional] rights are to become merely precatory," the Court stated, "litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for ... protection." Id., at 242, 99 S. Ct. 2264. Soon after Passman, the Court applied Bivens again, recognizing a federal right of action to gain damages for an Eighth Amendment violation. Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980). Carlson announced two exceptions to Bivens' rule. "The first [applies] when defendants demonstrate special factors counselling hesitation in the absence of affirmative action by Congress." 446 U.S., at 18, 100 S. Ct. 1468 (quoting Bivens, 403 U.S., at 396, 91 S. Ct. 1999). "The second [applies] when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." Carlson, 446 U.S., at 18-19, 100 S. Ct. 1468 (emphasis in original). Prior decisions have invoked these exceptions to bar Bivens suits against federal officers in only three contexts.[2] In Bush v. Lucas, 462 U.S. 367, 368, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983), a federal employee sought recovery for First Amendment violations alleged to have occurred in his workplace. As a civil servant, the plaintiff had recourse to "an elaborate, comprehensive scheme" administered by the Civil Service Commission, in which constitutional challenges were "fully cognizable." Id., at 385, 386, 103 S. Ct. 2404. The Court declined to recognize a judicial remedy, lest it interfere with Congress' carefully calibrated system. For similar reasons, in Schweiker v. Chilicky, 487 U.S. 412, 414, 424-429, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988), the Court held that the Social Security Act's scheme of administrative and judicial remedies left no void to be filled by a Bivens action. Likewise, on two occasions, the Court concluded that "the unique disciplinary structure of the Military Establishment" precluded a Bivens action for harm to military personnel through activity incident to service. United States v. Stanley, 483 U.S. 669, 679, 107 S. Ct. 3054, 97 L. Ed. 2d 550 (1987) (internal quotation marks omitted); Chappell v. Wallace, 462 U.S. 296, 304, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983). Some Members of this Court consider Bivens a dated precedent. See ante, at 2608 (THOMAS, J., concurring) ("Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action." (quoting Correctional Services Corp. v. Malesko, 534 U.S. 61, 75, *2613 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001) (SCALIA, J., concurring))). But the Court has so far adhered to Bivens' core holding: Absent congressional command or special factors counseling hesitation, "victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." Carlson, 446 U.S., at 18, 100 S. Ct. 1468. III A The Court does not hold that Robbins' Bivens suit is precluded by a carefully calibrated administrative regime like those at issue in Bush, Chilicky, Chappell, or Stanley, nor could it. As the Court recognizes, Robbins has no alternative remedy for the relentless torment he alleges. True, Robbins may have had discrete remedies for particular instances of harassment. But, in these circumstances, piecemeal litigation, the Court acknowledges, cannot forestall "death by a thousand cuts." Ante, at 2600 (quoting Brief for Respondent 40). For plaintiffs in Robbins' shoes, "it is damages or nothing." Bivens, 403 U.S., at 410, 91 S. Ct. 1999 (Harlan, J., concurring in judgment). Despite the Court's awareness that Robbins lacks an effective alternative remedy, it nevertheless bars his suit. The Court finds, on the facts of this case, a special factor counseling hesitation quite unlike any we have recognized before. Allowing Robbins to seek damages for years of harassment, the Court says, "would invite an onslaught of Bivens actions," ante, at 2604, with plaintiffs pressing claims "in every sphere of legitimate governmental action affecting property interests," ante, at 2604. The "floodgates" argument the Court today embraces has been rehearsed and rejected before. In Passman, the Court of Appeals emphasized, as a reason counseling denial of a Bivens remedy, the danger of "deluging federal courts with [Fifth Amendment based employment discrimination] claims." 442 U.S., at 248, 99 S. Ct. 2264 (internal quotation marks and citation omitted). This Court disagreed, turning to Justice Harlan's concurring opinion in Bivens to explain why. The only serious policy argument against recognizing a right of action for Bivens, Justice Harlan observed, was the risk of inundating courts with Fourth Amendment claims. He found the argument unsatisfactory: "[T]he question appears to be how Fourth Amendment interests rank on a scale of social values compared with, for example, the interests of stockholders defrauded by misleading proxies. Judicial resources, I am well aware, are increasingly scarce these days. Nonetheless, when we automatically close the courthouse door solely on this basis, we implicitly express a value judgment on the comparative importance of classes of legally protected interests." 403 U.S., at 410-411, 91 S. Ct. 1999 (citation omitted). In attributing heavy weight to the floodgates concern pressed in this case, the Court today veers away from Justice Harlan's sound counsel. B In the Court's view Robbins' complaint poses an inordinate risk of imposing on vigilant federal officers, and inundating federal courts, for his pleading "fails to fit the [Court's] prior retaliation cases." Ante, at 2601. "Those cases," the Court says, "turn[ed] on an allegation of [an] impermissible purpose and motivation." *2614 Ibid. (citing Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987); Lefkowitz v. Turley, 414 U.S. 70, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973); and United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968)). Robbins' suit, the Court maintains, raises a different sort of claim: that BLM employees went "too far" in their efforts to achieve an objective that "[a]ll agree" was "perfectly legitimate": "trying to induce [Robbins] to grant an easement for public use." Ante, at 2601-2602. Developing a legal test to determine when federal officials have gone "too far," ibid., the Court asserts, would be an "endlessly knotty" task; the attendant uncertainty, the Court fears, would bring on a "tide of suits," inducing an undesirable timidity on the part of federal officials, ante, at 2604-2605. The Court's assertion that the BLM officials acted with a "perfectly legitimate" objective, ante, at 2601, is a dubious characterization of the long campaign to "bury" Robbins. See App. 49. One may accept that, at the outset, the BLM agents were motivated simply by a desire to secure an easement. But after Robbins refused to cover for the officials' blunder, they resolved to drive him out of business.[3] Even if we allowed that the BLM employees had a permissible objective throughout their harassment of Robbins, and also that they pursued their goal through "legitimate tactics," id., at 2601,[4] it would not follow that Robbins failed to state a retaliation claim amenable to judicial resolution. Impermissible retaliation may well involve lawful action in service of legitimate objectives. For example, in Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 116 S. Ct. 2342 (1996), this Court held that a county board of commissioners may cross into unconstitutional territory if it fires a contractor for speaking out against members of the Board on matters of public concern. The Court recognized that terminating a contractor for public criticism of board practices might promote legitimate governmental objectives (e.g., maintaining relationships of trust with those from whom services are purchased). Id., at 674, 116 S. Ct. 2342. The Court, furthermore, instructed that even where the background law allows a government agency to terminate a contractor at will, the agency lacks carte blanche to do so in *2615 retaliation for constitutionally protected conduct. Id., at 677, 116 S. Ct. 2342.[5] The same is true here: BLM officials may have had the authority to cancel Robbins' permits or penalize his trespasses, but they are not at liberty to do so selectively, in retaliation for his exercise of a constitutional right.[6] I therefore cannot join the Court in concluding that Robbins' allegations present questions more "knotty" than the mine-run of constitutional retaliation claims. Because "we have established methods for identifying the presence of an illicit reason ... in retaliation cases," ante, at 2601, Robbins' suit can be resolved in familiar fashion. A court need only ask whether Robbins engaged in constitutionally protected conduct (resisting the surrender of his property sans compensation), and if so, whether that was the reason BLM agents harassed him.[7] C The Court's opinion is driven by the "fear" that a "Bivens cure" for the retaliation Robbins experienced may be "worse than the disease." Ante, at 2604. This concern seems to me exaggerated. Robbins' suit is predicated upon the agents' vindictive motive, and the presence of this element in his claim minimizes the risk of making everyday bureaucratic overreaching fare for constitutional litigation. See Olech, 528 U.S., at 566, 120 S. Ct. 1073 (BREYER, J., concurring in result) ("In my view, the presence of [vindictive action] in this case is sufficient to minimize any concern about transforming run-of-the-mill zoning cases into cases of constitutional right."). Indeed, one could securely forecast that the flood the Court fears would not come to pass. In Passman, the Courts said that it did not "perceive the potential for ... a deluge," because, under 42 U.S.C. § 1983, "a damages remedy [was] already available to redress injuries such as petitioner's when they occur under color of state law." 442 U.S., at 248, 99 S. Ct. 2264. A similar sideglance could be cast here. Because we have no reason to believe that state employees *2616 are any more or less respectful of Fifth Amendment rights than federal agents, § 1983 provides a controlled experiment. If numerous Bivens claims would eventuate were courts to entertain claims like Robbins', then courts should already have encountered endeavors to mount Fifth Amendment Takings suits under § 1983. But the Court of Appeals, the Solicitor General, and Robbins all agree that there are no reported cases on charges of retaliation by state officials against the exercise of Takings Clause rights. 433 F.3d 755, 767 (C.A.10 2006); Brief for Petitioners 48; Brief for Respondent 31. Harassment of the sort Robbins alleges, it seems, is exceedingly rare. Cf. Olech, 528 U.S., at 565-566, 120 S. Ct. 1073 (BREYER, J., concurring in result).[8] One can assume, arguendo, that, as the Court projects, an unqualified judgment for Robbins could prompt "claims in every sphere of legitimate governmental action affecting property interests." Ante, at 2604. Nevertheless, shutting the door to all plaintiffs, even those roughed up as badly as Robbins, is a measure too extreme. Cf. Hein v. Freedom From Religion Foundation, Inc., ___ U.S. ___, ___, n. 1, 127 S. Ct. 2553, ___ L.Ed.2d. ___, 2007 WL 1803960, *33 (2007) (dissenting opinion) ("To the degree ... claims are meritorious, fear that there will be many of them does not provide a compelling reason ... to keep them from being heard."). There are better ways to ensure that run-of-the-mill interactions between citizens and their Government do not turn into cases of constitutional right. Cf. Bivens, 403 U.S., at 410, 91 S. Ct. 1999 (Harlan, J., concurring in judgment) ("I simply cannot agree ... that the possibility of frivolous claims ... warrants closing the Courthouse doors to people in Bivens' situation. There are other ways, short of that, of coping with frivolous lawsuits." (internal quotation marks omitted)). Sexual harassment jurisprudence is a helpful guide. Title VII, the Court has held, does not provide a remedy for every epithet or offensive remark. "For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive work environment." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986) (internal quotation marks, alterations, and citations omitted). See also National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 115, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002) (hostile work environments develop "over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own"). Adopting a similar standard for Fifth Amendment retaliation claims would "lesse[n] the risk of raising a tide of suits threatening legitimate initiative on the part of the Government's employees." Ante, at 2605. Discrete episodes of hard bargaining that might be viewed as oppressive would not entitle a litigant to relief. But where a plaintiff could prove a pattern of severe and pervasive harassment in duration and degree well beyond the ordinary rough-and-tumble one expects in strenuous negotiations, a Bivens suit would provide a remedy. Robbins *2617 would have no trouble meeting that standard.[9] IV Because I conclude that Robbins has a right to sue under Bivens, I must briefly address the BLM employees' argument that they are entitled to qualified immunity. In resolving claims of official immunity on summary judgment, we ask two questions. First, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). And, if so, was that right clearly established, such that a reasonable officer would have known that his conduct was unlawful. Id., at 201-202, 121 S. Ct. 2151.[10] The Takings Clause instructs that no "private property [shall] be taken for public use, without just compensation." U.S. Const., Amdt. 5. Robbins argues that this provision confers on him the right to insist upon compensation as a condition of the taking of his property. He is surely correct. Correlative to the right to be compensated for a taking is the right to refuse to submit to a taking where no compensation is in the offing. Cf. Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) (invalidating a permit condition that would have constituted a taking); Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) (same). Robbins further argues that the BLM agents' persistent harassment impermissibly burdened his right to refuse to grant the Government something for nothing. Once again, he is surely correct. To cover for their mistake in failing to record the prior easement, BLM demanded, with no legal authority, that Robbins cede a new easement. Robbins refused, as was his constitutional right. At that point, BLM might have sought to take Robbins' property by eminent domain (assuming the agency was authorized to do so), or it might have attempted to negotiate with him. Instead, the agents harassed Robbins and tried to drive him out of business. The Court has held that the Government may not unnecessarily penalize the exercise of constitutional rights. This principle has been applied, most notably, to protect the freedoms guaranteed by the First Amendment. See, e.g., Umbehr, 518 U.S., at 674-675, 686, 116 S. Ct. 2342 (freedom of speech); O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 716-720, 116 S. Ct. 2353, 135 L. Ed. 2d 874 (1996) (freedom of association); Sherbert v. Verner, 374 U.S. 398, 403-406, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963) (freedom of religion). But it has also been deployed to protect other constitutional guarantees, including the privilege against self-incrimination, Turley, 414 U.S., at 82-84, 94 S. Ct. 316, the right to trial by a jury, Jackson, 390 U.S., at 581-583, 88 S. Ct. 1209, and the right to travel, Memorial Hospital v. Maricopa County, 415 U.S. 250, 254-262, 94 *2618 S.Ct. 1076, 39 L. Ed. 2d 306 (1974). The principle should apply here too. The constitutional guarantee of just compensation would be worthless if federal agents were permitted to harass and punish landowners who refuse to give up property without it. The Fifth Amendment, therefore, must be read to forbid government action calculated to acquire private property coercively and cost-free, and measures taken in retaliation for the owner's resistance to uncompensated taking. Viewing the facts in the light most favorable to Robbins, BLM agents plainly violated his Fifth Amendment right to be free of such coercion. The closest question in this case is whether the officials are nevertheless entitled to immunity because it is not clearly established that retaliation for the exercise of Fifth Amendment rights runs afoul of the Constitution. The "dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S., at 202, 121 S. Ct. 2151. As noted, all concede that there are no reported cases recognizing a Fifth Amendment right to be free from retaliation. However, it is inconceivable that any reasonable official could have believed to be lawful the pernicious harassment Robbins alleges. In the egregious circumstances of this case, the text of the Takings Clause and our retaliation jurisprudence provided the officers fair warning that their behavior impermissibly burdened a constitutional right. See Hope v. Pelzer, 536 U.S. 730, 739-741, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002). * * * Thirty-six years ago, the Court created the Bivens remedy. In doing so, it assured that federal officials would be subject to the same constraints as state officials in dealing with the fundamental rights of the people who dwell in this land. Today, the Court decides that elaboration of Bivens to cover Robbins' case should be left to Congress. Ante, at 2604-2605. But see supra, at 2599, n. 6. The Bivens analog to § 1983, however, is hardly an obscure part of the Court's jurisprudence. If Congress wishes to codify and further define the Bivens remedy, it may do so at anytime. Unless and until Congress acts, however, the Court should not shy away from the effort to ensure that bedrock constitutional rights do not become "merely precatory." Passman, 442 U.S., at 242, 99 S. Ct. 2264. For the reasons stated, I would affirm the judgment of the Court of Appeals insofar as it addressed Robbins' Fifth Amendment retaliation claim.[11]

The Court correctly concludes that does not supply a cause of action in this case. I therefore join its opinion. I write separately because I would not extend even if its reasoning logically applied to this case. " is a relic of the heady days in which this Court assumed common-law powers to create causes of action." Correctional Services Accordingly, in my view, and its progeny should be limited "to the precise circumstances that they involved." at Justice GINSBURG, with whom Justice STEVENS joins, concurring in part and dissenting in part. Bureau of Land Management (BLM) officials in Wyoming made a careless error. They failed to record an easement obtained for the United States along a stretch of land on the privately owned High Island Ranch. Plaintiff-respondent Frank Robbins purchased the ranch knowing nothing about the easement granted by the prior owner. Under Wyoming law, Robbins took title to the land free of the easement. BLM officials, realizing their mistake, demanded from Robbins an easement —for which they did not propose to pay—to replace the one they carelessly lost. Their demand, one of them told Robbins, was nonnegotiable. Robbins was directed to provide the easement, or else. When he declined to follow that instruction, the BLM officials mounted a seven-year campaign of relentless harassment and intimidation to force Robbins to give in. They refused to maintain the road providing access to the ranch, trespassed on Robbins' property, brought unfounded criminal charges against him, canceled his special recreational use permit and grazing privileges, interfered with his business operations, and invaded the privacy of his ranch guests on cattle drives. Robbins commenced this lawsuit to end the incessant harassment and intimidation he endured. He asserted that the Fifth Amendment's Takings Clause forbids government action calculated to acquire private property coercively and cost-free. He further urged that federal officials dishonor their constitutional obligation when they act in retaliation for the property owner's resistance to an uncompensated taking. In support of his claim for relief, Robbins relied on The Court *2609 recognizes that the "remedy" to which the Government would confine Robbins—a discrete challenge to each offending action as it occurs—is inadequate. A remedy so limited would expose Robbins' business to "death by a thousand cuts." See ante, at 2600 (quoting Brief for Respondent 40). Nevertheless, the Court rejects his claim, for it fears the consequences. Allowing Robbins to pursue this suit, the Court maintains, would open the floodgates to a host of unworthy suits "in every sphere of legitimate governmental action affecting property interests." Ante, at 2604. But this is no ordinary case of "hard bargaining," ib or bureaucratic arrogance. Robbins charged "vindictive action" to extract property from him without paying a fair price. He complains of a course of conduct animated by an illegitimate desire to "get him." That factor is sufficient to minimize the Court's concern. Cf. Village of (citations and internal quotation marks omitted). Taking Robbins' allegations as true, as the Court must at this stage of the litigation, the case presents this question: Does the Fifth Amendment provide an effective check on federal officers who abuse their regulatory powers by harassing and punishing property owners who refuse to surrender their property to the United States without fair compensation? The answer should be a resounding "Yes." I The Court acknowledges that, at this stage of proceedings, the facts must be viewed in the light most favorable to Robbins. Ante, at 2594, n. 2. The full force of Robbins' complaint, however, is not quite captured in the Court's restrained account of his allegations. A more complete rendition of the saga that sparked this suit is in order. Upon discovering that BLM had mistakenly allowed its easement across High Island Ranch to expire, BLM area manager Joseph Vessels contacted Robbins at his home in Alabama to demand that Robbins grant a new easement. Vessels was on shaky legal ground. A federal regulation authorized BLM to require a landowner seeking a right-of-way across Government land to grant reciprocal access to his own land. See (2004). But Robbins never applied for a right-of-way across federal land (the prior owner did), and the Government cites no law or regulation commanding Robbins to grant a new easement to make up for BLM's neglect in losing the first one. Robbins was unwilling to capitulate to unilateral demands, but told Vessels he would negotiate with BLM when he moved to Wyoming. Vessels would have none of it: "This is what you're going to do," he told Robbins. Plaintiff-Appellee's Supp.App. in No. 04-8016 (CA10), p. 325 (hereinafter CA10 App.). Edward Parodi, a range technician in the BLM office, testified that from the very beginning, agency employees referred to Robbins as "the rich SOB from Alabama [who] got [the Ranch]." App. 121. Trouble started almost immediately. Shortly after their first conversation, Vessels wrote Robbins to ask permission to survey his land, presumably to establish the contours of the easement. Robbins refused, believing there was no need for a survey until an agreement had been reached. Vessels conducted the survey anyway, and chuckled when he told Robbins of the trespass. CA10 App. 325-327. At their first face-to-face meeting in Wyoming, Robbins bridled at the one-sided deal BLM proposed. But Vessels was adamant: "The Federal Government does not negotiate," he declared. Over time, Parodi *2610 reported, Vessels' attitude towards Robbins changed from "professional" to "hostile," and "just got worse and worse and worse." App. 124. Other BLM employees shared Vessels' animosity. In one notable instance, Robbins alleged, BLM agent Gene Leone provoked a violent encounter between Robbins and a neighboring landowner, LaVonne Pennoyer. Leone knew Robbins was looking for a water source for his cattle, and he called Pennoyer to warn her to be on the lookout. Robbins, unfamiliar with the territory and possibly misled by BLM, drove cattle onto Pennoyer's land to water at a creek. Pennoyer showed up in her truck, yelling, blowing the horn, and bumping cows. Realizing that he was on Pennoyer's land, Robbins started to push his cows out of her way, when Pennoyer revved her engine and drove her truck straight into the horse Robbins was riding. ; CA10 App. 331-332, 6-681; Pl. Exh. 2, Record 164-166; Pl. Exh. 35a, According to Parodi, after the dust-up, Leone boasted, "I think I finally got a way to get [Robbins'] permits and get him out of business." App. 125, 126. Leone pressed the local sheriff to charge Robbins for his conduct in the encounter with Pennoyer, but the sheriff declined to do so. CA10 App. 331-332. Leone cited the Pennoyer incident as one ground, among others, to suspend Robbins' special recreation use permit. That permit allowed Robbins to lead ranch guests on cattle drives, which were his primary source of revenue from the property. App. 49. BLM aimed at the cattle drives in other ways too. Undermining the authenticity of the experience Robbins offered his guests, BLM employees followed along in trucks, videotaping participants. The Government suggests that this surveillance was a legitimate way to document instances when Robbins crossed onto federal land without permission. The suggestion, however, hardly explains why, on one occasion, BLM employees videotaped several female guests who were seeking privacy so they could relieve themselves. CA10 App. 506-507. As part of the campaign against Robbins, Parodi was instructed to "look closer" for trespass violations, to "investigate harder" and "if [he] could find anything, to find it." App. 129, 130. Parodi testified, in relation to the instructions he was given, that he did not have problems with Robbins: He never found a trespass violation he regarded as willful, and Robbins promptly addressed every concern Parodi raised. The Court maintains that the BLM employees "were within their rights to make it plain that Robbins's willingness to give the easement would determine how complaisant they would be" about his infractions, but the record leaves doubt. Ante, at 2602. Parodi testified that he was asked to "do things [he] wasn't authorized [to do]," App. 124, and that Leone's projections about what BLM officers would do to Robbins exceeded "the appropriate mission of the BLM," About Vessels, Parodi said, "[i]t has been my experience that people given authority and not being held in check and not having solid convictions will run amuck and that [is] what I saw happening." Eventually, Parodi was moved to warn Robbins that, if he continued to defy BLM officials, "there would be war, a long war and [BLM] would outlast him and out-spend him." Parodi found BLM's treatment of Robbins so disturbing that it became "the volcanic point" in his decision to retire. "It's one thing to go after somebody that is willfully busting the regulations and going out of their way to get something from the government," *2611 Parodi said, but he saw Robbins only "as a man standing up for his property rights." Pl. Exh. 35C, Record 41. The story thus far told is merely illustrative of Robbins' allegations. The record is replete with accounts of trespasses to Robbins' property, vindictive cancellations of his rights to access federal land, and unjustified or selective enforcement actions. Indeed, BLM was not content with the arrows in its own quiver. Robbins charged that BLM officials sought to enlist other federal agencies in their efforts to harass him. In one troubling incident, a BLM employee, petitioner David Wallace, pressured a Bureau of Indian Affairs (BIA) manager to impound Robbins' cattle, asserting that he was "a bad character" and that "something need[ed] to be done with [him]." CA10 App. 359. The manager rejected the request, observing that the BIA had no problems with Robbins. Even more disconcerting, there was sufficient evidence, the District Court recognized, to support Robbins' allegation that BLM employees filed false criminal charges against him, claiming that he forcibly interfered with a federal officer. Federal prosecutors took up the cause, but Robbins was acquitted by a jury in less than 30 minutes.[1] A news account reported that the jurors "were appalled at the actions of the government," one of them commenting that "Robbins could not have been railroaded any worse if he worked for Union Pacific." BLM's seven-year campaign of harassment had a devastating impact on Robbins' business. Robbins testified that in a typical summer, the High Island Ranch would accommodate 120 guests spread across six cattle drives. As a result of BLM's harassment, in 2003, Robbins was able to organize only one cattle drive with 21 guests. In addition, Robbins reports that he spent "hundreds of thousands of dollars in costs and attorney's fees" seeking to fend off BLM. Brief for Respondent 9, n. 6. To put an end to the incessant harassment, Robbins filed this suit, alleging that the Fifth Amendment forbids government action calculated to acquire private property coercively and cost-free, and measures taken in retaliation for the owner's resistance to an uncompensated taking. Even assuming Robbins is correct about the Fifth Amendment, he may not proceed unless he has a right to sue. To ground his claim for relief, Robbins relies on II "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." In the Court drew upon that venerable principle in holding that a victim of a Fourth Amendment violation by federal officers has a claim for *2612 relief in the form of money damages. "Historically," the Court observed, "damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." The Court's decisions recognize that the reasoning underlying is not confined to Fourth Amendment claims. In the Court allowed a suit seeking money damages for employment discrimination in violation of the equal protection component of the Fifth Amendment. "[U]nless [constitutional] rights are to become merely precatory," the Court stated, "litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for protection." announced two exceptions to ' rule. "The first [applies] when defendants demonstrate special factors counselling hesitation in the absence of affirmative action by Congress." (quoting ). "The second [applies] when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." -19, (emphasis in original). Prior decisions have invoked these exceptions to bar suits against federal officers in only three contexts.[2] In a federal employee sought recovery for First Amendment violations alleged to have occurred in his workplace. As a civil servant, the plaintiff had recourse to "an elaborate, comprehensive scheme" administered by the Civil Service Commission, in which constitutional challenges were "fully cognizable." the Court held that the Social Security Act's scheme of administrative and judicial remedies left no void to be filled by a action. Likewise, on two occasions, the Court concluded that "the unique disciplinary structure of the Military Establishment" precluded a action for harm to military personnel through activity incident to service. United ; Some Members of this Court consider a dated precedent. See ante, at 2608 (THOMAS, J., concurring) )). But the Court has so far adhered to ' core holding: Absent congressional command or special factors counseling hesitation, "victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." III A The Court does not hold that Robbins' suit is precluded by a carefully calibrated administrative regime like those at issue in Bush, Chilicky, Chappell, or Stanley, nor could it. As the Court recognizes, Robbins has no alternative remedy for the relentless torment he alleges. True, Robbins may have had discrete remedies for particular instances of harassment. But, in these circumstances, piecemeal litigation, the Court acknowledges, cannot forestall "death by a thousand cuts." Ante, at 2600 (quoting Brief for Respondent 40). For plaintiffs in Robbins' shoes, "it is damages or nothing." (Harlan, J., concurring in judgment). Despite the Court's awareness that Robbins lacks an effective alternative remedy, it nevertheless bars his suit. The Court finds, on the facts of this case, a special factor counseling hesitation quite unlike any we have recognized before. Allowing Robbins to seek damages for years of harassment, the Court says, "would invite an onslaught of actions," ante, at 2604, with plaintiffs pressing claims "in every sphere of legitimate governmental action affecting property interests," ante, at 2604. The "floodgates" argument the Court today embraces has been rehearsed and rejected before. In Passman, the Court of Appeals emphasized, as a reason counseling denial of a remedy, the danger of "deluging federal courts with [Fifth Amendment based employment discrimination] claims." (internal quotation marks and citation omitted). This Court disagreed, turning to Justice Harlan's concurring opinion in to explain why. The only serious policy argument against recognizing a right of action for Justice Harlan observed, was the risk of inundating courts with Fourth Amendment claims. He found the argument unsatisfactory: "[T]he question appears to be how Fourth Amendment interests rank on a scale of social values compared with, for example, the interests of stockholders defrauded by misleading proxies. Judicial resources, I am well aware, are increasingly scarce these days. Nonetheless, when we automatically close the courthouse door solely on this basis, we implicitly express a value judgment on the comparative importance of classes of legally protected interests." -411, (citation omitted). In attributing heavy weight to the floodgates concern pressed in this case, the Court today veers away from Justice Harlan's sound counsel. B In the Court's view Robbins' complaint poses an inordinate risk of imposing on vigilant federal officers, and inundating federal courts, for his pleading "fails to fit the [Court's] prior retaliation cases." Ante, "Those cases," the Court says, "turn[ed] on an allegation of [an] impermissible purpose and motivation." *2614 ; ; and United ). Robbins' suit, the Court maintains, raises a different sort of claim: that BLM employees went "too far" in their efforts to achieve an objective that "[a]ll agree" was "perfectly legitimate": "trying to induce [Robbins] to grant an easement for public use." Ante, -2602. Developing a legal test to determine when federal officials have gone "too far," ib the Court asserts, would be an "endlessly knotty" task; the attendant uncertainty, the Court fears, would bring on a "tide of suits," inducing an undesirable timidity on the part of federal officials, ante, at 2604-2605. The Court's assertion that the BLM officials acted with a "perfectly legitimate" objective, ante, is a dubious characterization of the long campaign to "bury" Robbins. See App. 49. One may accept that, at the outset, the BLM agents were motivated simply by a desire to secure an easement. But after Robbins refused to cover for the officials' blunder, they resolved to drive him out of business.[3] Even if we allowed that the BLM employees had a permissible objective throughout their harassment of Robbins, and also that they pursued their goal through "legitimate tactics,"[4] it would not follow that Robbins failed to state a retaliation claim amenable to judicial resolution. Impermissible retaliation may well involve lawful action in service of legitimate objectives. For example, in Board of Comm'rs, Wabaunsee this Court held that a county board of commissioners may cross into unconstitutional territory if it fires a contractor for speaking out against members of the Board on matters of public concern. The Court recognized that terminating a contractor for public criticism of board practices might promote legitimate governmental objectives (e.g., maintaining relationships of trust with those from whom services are purchased). The Court, furthermore, instructed that even where the background law allows a government agency to terminate a contractor at will, the agency lacks carte blanche to do so in *2615 retaliation for constitutionally protected conduct.[5] The same is true here: BLM officials may have had the authority to cancel Robbins' permits or penalize his trespasses, but they are not at liberty to do so selectively, in retaliation for his exercise of a constitutional right.[6] I therefore cannot join the Court in concluding that Robbins' allegations present questions more "knotty" than the mine-run of constitutional retaliation claims. Because "we have established methods for identifying the presence of an illicit reason in retaliation cases," ante, Robbins' suit can be resolved in familiar fashion. A court need only ask whether Robbins engaged in constitutionally protected conduct (resisting the surrender of his property sans compensation), and if so, whether that was the reason BLM agents harassed him.[7] C The Court's opinion is driven by the "fear" that a " cure" for the retaliation Robbins experienced may be "worse than the disease." Ante, at 2604. This concern seems to me exaggerated. Robbins' suit is predicated upon the agents' vindictive motive, and the presence of this element in his claim minimizes the risk of making everyday bureaucratic overreaching fare for constitutional litigation. See ("In my view, the presence of [vindictive action] in this case is sufficient to minimize any concern about transforming run-of-the-mill zoning cases into cases of constitutional right."). Indeed, one could securely forecast that the flood the Court fears would not come to pass. In Passman, the Courts said that it did not "perceive the potential for a deluge," because, under 42 U.S.C. "a damages remedy [was] already available to redress injuries such as petitioner's when they occur under color of state law." A similar sideglance could be cast here. Because we have no reason to believe that state employees *2616 are any more or less respectful of Fifth Amendment rights than federal agents, provides a controlled experiment. If numerous claims would eventuate were courts to entertain claims like Robbins', then courts should already have encountered endeavors to mount Fifth Amendment Takings suits under But the Court of Appeals, the Solicitor General, and Robbins all agree that there are no reported cases on charges of retaliation by state officials against the exercise of Takings Clause rights. 433 F.3d 5, ; Brief for Petitioners 48; Brief for Respondent 31. Harassment of the sort Robbins alleges, it seems, is exceedingly rare. Cf. 528 U.S., at[8] One can assume, arguendo, that, as the Court projects, an unqualified judgment for Robbins could prompt "claims in every sphere of legitimate governmental action affecting property interests." Ante, at 2604. Nevertheless, shutting the door to all plaintiffs, even those roughed up as badly as Robbins, is a measure too extreme. Cf. L.Ed.2d. WL 960, ("To the degree claims are meritorious, fear that there will be many of them does not provide a compelling reason to keep them from being heard."). There are better ways to ensure that run-of-the-mill interactions between citizens and their Government do not turn into cases of constitutional right. Cf. (Harlan, J., concurring in judgment) ("I simply cannot agree that the possibility of frivolous claims warrants closing the Courthouse doors to people in ' situation. There are other ways, short of that, of coping with frivolous lawsuits." ). Sexual harassment jurisprudence is a helpful guide. Title VII, the Court has held, does not provide a remedy for every epithet or offensive remark. "For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive work environment." Meritor Savings Bank, See also National Railroad Passenger Adopting a similar standard for Fifth Amendment retaliation claims would "lesse[n] the risk of raising a tide of suits threatening legitimate initiative on the part of the Government's employees." Ante, at 2605. Discrete episodes of hard bargaining that might be viewed as oppressive would not entitle a litigant to relief. But where a plaintiff could prove a pattern of severe and pervasive harassment in duration and degree well beyond the ordinary rough-and-tumble one expects in strenuous negotiations, a suit would provide a remedy. Robbins *2617 would have no trouble meeting that standard.[9] IV Because I conclude that Robbins has a right to sue under I must briefly address the BLM employees' argument that they are entitled to qualified immunity. In resolving claims of official immunity on summary judgment, we ask two questions. First, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" And, if so, was that right clearly established, such that a reasonable officer would have known that his conduct was unlawful. at -202,[10] The Takings Clause instructs that no "private property [shall] be taken for public use, without just compensation." U.S. Const., Amdt. 5. Robbins argues that this provision confers on him the right to insist upon compensation as a condition of the taking of his property. He is surely correct. Correlative to the right to be compensated for a taking is the right to refuse to submit to a taking where no compensation is in the offing. Cf. 129 L. Ed. 2d ; 97 L. Ed. 2d 7 Robbins further argues that the BLM agents' persistent harassment impermissibly burdened his right to refuse to grant the Government something for nothing. Once again, he is surely correct. To cover for their mistake in failing to record the prior easement, BLM demanded, with no legal authority, that Robbins cede a new easement. Robbins refused, as was his constitutional right. At that point, BLM might have sought to take Robbins' property by eminent domain (assuming the agency was authorized to do so), or it might have attempted to negotiate with him. Instead, the agents harassed Robbins and tried to drive him out of business. The Court has held that the Government may not unnecessarily penalize the exercise of constitutional rights. This principle has been applied, most notably, to protect the freedoms guaranteed by the First Amendment. See, e.g., 518 U.S., -6, 686, (freedom of speech); O'Hare Truck Service, ; But it has also been deployed to protect other constitutional guarantees, including the privilege against self-incrimination, -84, the right to trial by a jury, -583, The principle should apply here too. The constitutional guarantee of just compensation would be worthless if federal agents were permitted to harass and punish landowners who refuse to give up property without it. The Fifth Amendment, therefore, must be read to forbid government action calculated to acquire private property coercively and cost-free, and measures taken in retaliation for the owner's resistance to uncompensated taking. Viewing the facts in the light most favorable to Robbins, BLM agents plainly violated his Fifth Amendment right to be free of such coercion. The closest question in this case is whether the officials are nevertheless entitled to immunity because it is not clearly established that retaliation for the exercise of Fifth Amendment rights runs afoul of the Constitution. The "dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, As noted, all concede that there are no reported cases recognizing a Fifth Amendment right to be free from retaliation. However, it is inconceivable that any reasonable official could have believed to be lawful the pernicious harassment Robbins alleges. In the egregious circumstances of this case, the text of the Takings Clause and our retaliation jurisprudence provided the officers fair warning that their behavior impermissibly burdened a constitutional right. See * * * Thirty-six years ago, the Court created the remedy. In doing so, it assured that federal officials would be subject to the same constraints as state officials in dealing with the fundamental rights of the people who dwell in this land. Today, the Court decides that elaboration of to cover Robbins' case should be left to Congress. Ante, at 2604-2605. But see The analog to however, is hardly an obscure part of the Court's jurisprudence. If Congress wishes to codify and further define the remedy, it may do so at anytime. Unless and until Congress acts, however, the Court should not shy away from the effort to ensure that bedrock constitutional rights do not become "merely precatory." Passman, 442 U.S., For the reasons stated, I would affirm the judgment of the Court of Appeals insofar as it addressed Robbins' Fifth Amendment retaliation claim.[11]

Justice Thomas

majority

Kappos v. Hyatt

2012-04-18

https://www.courtlistener.com/opinion/2959738/kappos-v-hyatt/

https://www.courtlistener.com/api/rest/v3/clusters/2959738/

2011-050

The Patent Act of 1952, 35 U.S. C. §100 et seq., grants a patent applicant whose claims are denied by the Patent and Trademark Office (PTO) the opportunity to challenge the PTO’s decision by filing a civil action against the Director of the PTO in federal district court. In such a proceeding, the applicant may present evidence to the district court that he did not present to the PTO. This case requires us to consider two questions. First, we must decide whether there are any limitations on the appli- cant’s ability to introduce new evidence before the district court. For the reasons set forth below, we conclude that there are no evidentiary restrictions beyond those already imposed by the Federal Rules of Evidence and the Federal Rules of Civil Procedure. Second, we must determine what standard of review the district court should apply when considering new evidence. On this question, we hold that the district court must make a de novo finding when new evidence is presented on a disputed question of fact. 2 KAPPOS v. HYATT Opinion of the Court In deciding what weight to afford that evidence, the dis- trict court may, however, consider whether the applicant had an opportunity to present the evidence to the PTO. I The Patent Act of 1952 establishes the process by which the PTO examines patent applications. A patent exam- iner first determines whether the application satisfies the statutory prerequisites for granting a patent. 35 U.S. C. §131. If the examiner denies the application, the appli- cant may file an administrative appeal with the PTO’s Board of Patent Appeals and Interferences (Board). §134. If the Board also denies the application, the Patent Act gives the disappointed applicant two options for judicial review of the Board’s decision. The applicant may either: (1) appeal the decision directly to the United States Court of Appeals for the Federal Circuit, pursuant to §141; or (2) file a civil action against the Director of the PTO in the United States District Court for the District of Columbia pursuant to §145.1 In a §141 proceeding, the Federal Circuit must review the PTO’s decision on the same administrative record that was before the PTO. §144. Thus, there is no opportunity for the applicant to offer new evidence in such a proceed- ing. In Dickinson v. Zurko, 527 U.S. 150 (1999), we ad- —————— 1 On September 16, 2011, the President signed the Leahy-Smith America Invents Act, 125 Stat. 284, into law. That Act made signifi- cant changes to Title 35 of the United States Code, some of which are related to the subject matter of this case. For example, the Act changed the venue for §145 actions from the United States District Court for the District of Columbia to the United States District Court for the East- ern District of Virginia, id., at 316, changed the name of the Board of Patent Appeals and Interferences to the Patent Trial and Appeal Board, id., at 290, and changed the name of interferences to derivation proceedings, ibid. Neither party contends that the Act has any effect on the questions before us, and all references and citations in this opinion are to the law as it existed prior to the Act. Cite as: 566 U. S. ____ (2012) 3 Opinion of the Court dressed the standard that governs the Federal Circuit’s review of the PTO’s factual findings. We held that the Administrative Procedure Act (APA), 5 U.S. C. §701 et seq., applies to §141 proceedings and that the Federal Circuit therefore should set aside the PTO’s factual find- ings only if they are “ ‘unsupported by substantial evi- dence.’ ” 527 U.S., at 152 (quoting 5 U.S. C. §706). In Zurko, we also noted that, unlike §141, §145 permits the applicant to present new evidence to the district court that was not presented to the PTO. 527 U.S., at 164. This opportunity to present new evidence is significant, not the least because the PTO generally does not accept oral testimony. See Brief for Petitioner 40, n. 11. We have not yet addressed, however, whether there are any limita- tions on the applicant’s ability to introduce new evidence in such a proceeding or the appropriate standard of review that a district court should apply when considering such evidence. II In 1995, respondent Gilbert Hyatt filed a patent appli- cation that, as amended, included 117 claims. The PTO’s patent examiner denied each claim for lack of an adequate written description. See 35 U.S. C. §112 (requiring pat- ent applications to include a “specification” that provides, among other information, a written description of the invention and of the manner and process of making and using it). Hyatt appealed the examiner’s decision to the Board, which eventually approved 38 claims, but denied the rest. Hyatt then filed a §145 action in Federal Dis- trict Court against the Director of the PTO (Director), peti- tioner here. To refute the Board’s conclusion that his patent applica- tion lacked an adequate written description, Hyatt sub- mitted a written declaration to the District Court. In the declaration, Hyatt identified portions of the patent specifi- 4 KAPPOS v. HYATT Opinion of the Court cation that, in his view, supported the claims that the Board held were not patentable. The District Court de- termined that it could not consider Hyatt’s declaration because applicants are “ ‘precluded from presenting new is- sues, at least in the absence of some reason of justice put forward for failure to present the issue to the Patent Of- fice.’ ” Hyatt v. Dudas, Civ. Action No. 03–0901 (D DC, Sept. 30, 2005), p. 9, App. to Pet. for Cert. 182a (quoting DeSeversky v. Brenner, 424 F.2d 857, 858 (CADC 1970)). Because the excluded declaration was the only additional evidence submitted by Hyatt in the §145 proceeding, the evidence remaining before the District Court consisted entirely of the PTO’s administrative record. Therefore, the District Court reviewed all of the PTO’s factual find- ings under the APA’s deferential “substantial evidence” standard. See supra, at 2; see also Mazzari v. Rogan, 323 F.3d 1000, 1004–1005 (CA Fed. 2003). Applying that standard, the District Court granted summary judgment to the Director. Hyatt appealed to the Federal Circuit. A divided panel affirmed, holding that the APA imposed restrictions on the admission of new evidence in a §145 proceeding and that the district court’s review is not “wholly de novo.” Hyatt v. Doll, 576 F.3d 1246, 1269–1270 (2009). The Federal Circuit granted rehearing en banc and vacated the District Court’s grant of summary judgment. The en banc court first held “that Congress intended that applicants would be free to introduce new evidence in §145 proceedings subject only to the rules applicable to all civil actions, the Federal Rules of Evidence and the Federal Rules of Civil Procedure,” even if the applicant had no justification for failing to present the evidence to the PTO. 625 F.3d 1320, 1331 (2010). Reaffirming its precedent, the court also held that when new, conflicting evidence is introduced in a §145 proceeding, the district court must make de novo findings to take such evidence into account. Id., at Cite as: 566 U. S. ____ (2012) 5 Opinion of the Court 1336. We granted certiorari, 564 U. S. ___ (2011), and now affirm. III The Director challenges both aspects of the Federal Circuit’s decision. First, the Director argues that a district court should admit new evidence in a §145 action only if the proponent of the evidence had no reasonable oppor- tunity to present it to the PTO in the first instance. Se- cond, the Director contends that, when new evidence is introduced, the district court should overturn the PTO’s fac- tual findings only if the new evidence clearly establishes that the agency erred. Both of these arguments share the premise that §145 creates a special proceeding that is distinct from a typical civil suit filed in federal district court and that is thus governed by a different set of proce- dural rules. To support this interpretation of §145, the Director relies on background principles of administrative law and pre-existing practice under a patent statute that predated §145. For the reasons discussed below, we find that neither of these factors justifies a new evidentiary rule or a heightened standard of review for factual find- ings in §145 proceedings. A To address the Director’s challenges, we begin with the text of §145. See, e.g., Magwood v. Patterson, 561 U. S. ___, ___ (2010) (slip op., at 10). Section 145 grants a disappointed patent applicant a “remedy by civil action against the Director.” The section further explains that the district court “may adjudge that such applicant is entitled to receive a patent for his invention, as specified in any of his claims involved in the decision of the [PTO], as the facts in the case may appear and such adjudication shall authorize the Director to issue such patent on com- pliance with the requirements of law.” By its terms, §145 6 KAPPOS v. HYATT Opinion of the Court neither imposes unique evidentiary limits in district court proceedings nor establishes a heightened standard of re- view for factual findings by the PTO. B In the absence of express support for his position in the text of §145, the Director argues that the statute should be read in light of traditional principles of administrative law, which Congress codified in the APA. The Director notes that §145 requires a district court to review the reasoned decisionmaking of the PTO, an executive agency with specific authority and expertise. Accordingly, the Director contends that a district court should defer to the PTO’s factual findings. The Director further contends that, given the traditional rule that a party must exhaust his administrative remedies, a district court should con- sider new evidence only if the party did not have an oppor- tunity to present it to the agency. We reject the Director’s contention that background principles of administrative law govern the admissibility of new evidence and require a deferential standard of review in a §145 proceeding. Under the APA, judicial review of an agency decision is typically limited to the administrative record. See 5 U.S. C. §706. But, as the Director concedes, §145 proceedings are not so limited, for the district court may consider new evidence. When the district court does so, it must act as a factfinder. Zurko, 527 U.S., at 164. In that role, it makes little sense for the district court to apply a deferential standard of review to PTO factual findings that are contradicted by the new evidence. The PTO, no matter how great its authority or expertise, cannot account for evidence that it has never seen. Consequently, the district court must make its own findings de novo and does not act as the “reviewing court” envisioned by the APA. See 5 U.S. C. §706. We also conclude that the principles of administrative Cite as: 566 U. S. ____ (2012) 7 Opinion of the Court exhaustion do not apply in a §145 proceeding. The Direc- tor argues that applicants must present all available evidence to the PTO to permit the PTO to develop the necessary facts and to give the PTO the opportunity to properly apply the Patent Act in the first instance. Brief for Petitioner 21–22 (citing McKart v. United States, 395 U.S. 185, 193–194 (1969)). But as this Court held in McKart, a primary purpose of administrative exhaustion “is, of course, the avoidance of premature interruption of the administrative process.” Id., at 193. That rationale does not apply here because, by the time a §145 proceed- ing occurs, the PTO’s process is complete. Section 145, moreover, does not provide for remand to the PTO to consider new evidence, and there is no pressing need for such a procedure because a district court, unlike a court of appeals, has the ability and the competence to receive new evidence and to act as a factfinder. In light of these as- pects of §145 proceedings—at least in those cases in which new evidence is presented to the district court on a dis- puted question of fact—we are not persuaded by the Direc- tor’s suggestion that §145 proceedings are governed by the deferential principles of agency review. C Having concluded that neither the statutory text nor background principles of administrative law support an evidentiary limit or a heightened standard of review for factual findings in §145 proceedings, we turn to the evi- dentiary and procedural rules that were in effect when Congress enacted §145 in 1952. Although §145 is a rela- tively modern statute, the language in that provision originated in the Act of July 8, 1870 (1870 Act), ch. 230, 16 Stat. 198, and the history of §145 proceedings can be traced back to the Act of July 4, 1836 (1836 Act), ch. 357, 5 Stat. 117. Thus, we begin our inquiry with the 1836 Act, which established the Patent Office, the PTO’s predeces- 8 KAPPOS v. HYATT Opinion of the Court sor, and first authorized judicial review of its decisions. 1 The 1836 Act provided that a patent applicant could bring a bill in equity in federal district court if his applica- tion was denied on the ground that it would interfere with another patent. Id., at 123–124; see also B. Ship- man, Handbook of the Law of Equity Pleading §§101–103, pp. 168–171 (1897). Three years later, Congress expanded that provision, making judicial review available whenever a patent was refused on any ground. Act of Mar. 3, 1839 (1839 Act), 5 Stat. 354. Pursuant to these statutes, any disappointed patent applicant could file a bill in equity to have the district court “adjudge” whether the applicant was “entitled, according to the principles and provisions of [the Patent Act], to have and receive a patent for his invention.” 1836 Act, 5 Stat. 124. In 1870, Congress amended the Patent Act again, add- ing intermediate layers of administrative review and in- troducing language describing the proceeding in the district court. 16 Stat. 198. Under the 1870 Act, an appli- cant denied a patent by the primary examiner could ap- peal first to a three-member board of examiners-in-chief, then to the Commissioner for Patents, and finally to an en banc sitting of the Supreme Court of the District of Co- lumbia.2 Id., at 205. Notably, Congress described that court’s review as an “appeal” based “on the evidence pro- duced before the commissioner.” Ibid. The 1870 Act preserved the prior remedy of a bill in equity in district court for the applicant whose appeal was denied either by —————— 2 The Supreme Court of the District of Columbia was a trial court created by Congress in 1863. Act of Mar. 3, 1863, ch. 91, 12 Stat. 762. Although the court was generally one of first instance, it also func- tioned as an appellate court when it sat en banc. Voorhees, The Dis- trict of Columbia Courts: A Judicial Anomaly, 29 Cath. U. L. Rev. 917, 923 (1980). Cite as: 566 U. S. ____ (2012) 9 Opinion of the Court the Commissioner or by the Supreme Court of the District of Columbia. Ibid. The district court, in a proceeding that was distinct from the appeal considered on the adminis- trative record by the Supreme Court of the District of Columbia, would “adjudge” whether the applicant was “entitled, according to law, to receive a patent for his invention . . . as the facts in the case may appear.” Ibid. In 1878, Congress codified this provision of the 1870 Act as Revised Statute §4915 (R. S. 4915). That statute was the immediate predecessor to §145, and its core language remains largely unchanged in §145. Accordingly, both parties agree that R. S. 4915 and the judicial decisions interpreting that statute should inform our understanding of §145. 2 This Court described the nature of R. S. 4915 proceed- ings in two different cases: Butterworth v. United States ex rel. Hoe, 112 U.S. 50 (1884), and Morgan v. Daniels, 153 U.S. 120 (1894). In Butterworth, the Court held that the Secretary of the Interior, the head of the federal depart- ment in which the Patent Office was a bureau, had no authority to review a decision made by the Commissioner of Patents in an interference proceeding. In its discussion, the Court described the remedy provided by R. S. 4915 as “a proceeding in a court of the United States having original equity jurisdiction under the patent laws, ac- cording to the ordinary course of equity practice and procedure. It is not a technical appeal from the Patent-Office, like that authorized [before the Su- preme Court of the District of Columbia], confined to the case as made in the record of that office, but is prepared and heard upon all competent evidence ad- duced and upon the whole merits.” 112 U.S., at 61. The Butterworth Court also cited several lower court 10 KAPPOS v. HYATT Opinion of the Court cases, which similarly described R. S. 4915 proceedings as “altogether independent” from the hearings before the Patent Office and made clear that the parties were “at liberty to introduce additional evidence” under “the rules and practice of a court of equity.” In re Squire, 22 F. Cas. 1015, 1016 (No. 13,269) (CC ED Mo. 1877); see also Whip- ple v. Miner, 15 F. 117, 118 (CC Mass. 1883) (describing the federal court’s jurisdiction in an R. S. 4915 proceeding as “an independent, original jurisdiction”); Butler v. Shaw, 21 F. 321, 327 (CC Mass. 1884) (holding that “the court may receive new evidence, and has the same powers as in other cases in equity”). Ten years later, in Morgan, this Court again confronted a case involving proceedings under R. S. 4915. 153 U.S. 120. There, a party challenged a factual finding by the Patent Office, but neither side presented additional evi- dence in the District Court. Id., at 122–123. This Court described the parties’ dispute as one over a question of fact that had already “been settled by a special tribunal [e]ntrusted with full power in the premises” and charac- terized the resulting District Court proceeding not as an independent civil action, but as “something in the nature of a suit to set aside a judgment.” Id., at 124. Consistent with that view, the Court held that the agency’s findings should not be overturned by “a mere preponderance of evidence.” Ibid. Viewing Butterworth and Morgan together, one might perceive some tension between the two cases. Butterworth appears to describe an R. S. 4915 proceeding as an original civil action, seeking de novo adjudication of the merits of a patent application. Morgan, on the other hand, appears to describe an R. S. 4915 proceeding as a suit for judicial review of agency action, governed by a deferential stand- ard of review. To resolve that apparent tension, the Direc- tor urges us to disregard the language in Butterworth as mere dicta and to follow Morgan. He argues that Butter- Cite as: 566 U. S. ____ (2012) 11 Opinion of the Court worth “shed[s] no light on the extent to which new evi- dence was admissible in R. S. 4915 proceedings or on the standard of review that applied in such suits.” Brief for Petitioner 33. The Director maintains that Morgan, in contrast, firmly established that a district court in such a proceeding performs a deferential form of review, gov- erned by traditional principles of administrative law. We reject the Director’s position.3 We think that the differences between Butterworth and Morgan are best explained by the fact that the two cases addressed different circumstances. Butterworth discussed the character of an R. S. 4915 proceeding in which a dis- appointed patent applicant challenged the Board’s denial of his application. Although that discussion was not strictly necessary to Butterworth’s holding it was also not the kind of ill-considered dicta that we are inclined to ignore. The Butterworth Court carefully examined the various pro- visions providing relief from the final denial of a patent application by the Commissioner of Patents to determine that the Secretary of the Interior had no role to play in that process. 112 U.S., at 59–64. The Court further surveyed the decisions of the lower courts with regard to the nature of an R. S. 4915 proceeding and concluded that its view was “the uniform and correct practice in the Cir- cuit Courts.” Id., at 61. We note that this Court reiter- ated Butterworth’s well-reasoned interpretation of R. S. 4915 in three later cases.4 —————— 3 Both parties cite additional cases from the lower courts that they claim support their view of the statute, but these cases are too diverse to support any firm inferences about Congress’ likely intent in enacting §145. 4 In Gandy v. Marble, 122 U.S. 432 (1887), the Court described an R. S. 4915 proceeding as “a suit according to the ordinary course of equity practice and procedure” rather than a “technical appeal from the Patent Office.” Id., at 439 (citing Butterworth, 112 U.S., at 61). Likewise, in In re Hien, 166 U.S. 432 (1897), the Court distinguished an R. S. 4915 proceeding from the “ ‘technical appeal from the Patent 12 KAPPOS v. HYATT Opinion of the Court Morgan, on the other hand, concerned a different situa- tion from the one presented in this case. First, Morgan addressed an interference proceeding. See 153 U.S., at 125 (emphasizing that “the question decided in the Pat- ent Office is one between contesting parties as to priority of invention”). Although interference proceedings were pre- viously governed by R. S. 4915, they are now governed by a separate section of the Patent Act, 35 U.S. C. §146, and therefore do not implicate §145. In addition, Morgan did not involve a proceeding in which new evidence was presented to the District Court. See 153 U.S., at 122 (stating that the case “was submitted, without any addi- tional testimony, to the Circuit Court”). 3 Because in this case we are concerned only with §145 proceedings in which new evidence has been presented to the District Court, Butterworth rather than Morgan guides our decision. In Butterworth, this Court observed that an R. S. 4915 proceeding should be conducted “accord- ing to the ordinary course of equity practice and proce- dure” and that it should be “prepared and heard upon all competent evidence adduced and upon the whole merits.” 112 U.S., at 61. Likewise, we conclude that a district court conducting a §145 proceeding may consider “all com- petent evidence adduced,” id., at 61, and is not limited to considering only new evidence that could not have been presented to the PTO. Thus, we agree with the Federal Circuit that “Congress intended that applicants would be free to introduce new evidence in §145 proceedings subject only to the rules applicable to all civil actions, the Federal —————— Office’ ” authorized under R. S. 4911, the predecessor to current §141. Id., at 439 (quoting Butterworth, supra, at 61). And, finally, in Hoover Co. v. Coe, 325 U.S. 79 (1945), the Court cited Butterworth to support its description of an R. S. 4915 proceeding as a “formal trial.” 325 U.S., at 83, and n. 4. Cite as: 566 U. S. ____ (2012) 13 Opinion of the Court Rules of Evidence and the Federal Rules of Civil Proce- dure.” 625 F.3d, at 1331. We also agree with the Federal Circuit’s longstanding view that, “where new evidence is presented to the district court on a disputed fact question, a de novo finding will be necessary to take such evidence into account together with the evidence before the board.” Fregeau v. Mossinghoff, 776 F.2d 1034, 1038 (1985). As we noted in Zurko, the district court acts as a factfinder when new evidence is introduced in a §145 proceeding. 527 U.S., at 164. The district court must assess the credibility of new witnesses and other evidence, determine how the new evidence comports with the existing administrative record, and decide what weight the new evidence deserves. As a logical matter, the district court can only make these determinations de novo because it is the first tribunal to hear the evidence in question. Furthermore, a de novo standard adheres to this Court’s instruction in Butter- worth that an R. S. 4915 proceeding be heard “upon the whole merits” and conducted “according to the ordinary course of equity practice and procedure.” 112 U.S., at 61. D Although we reject the Director’s proposal for a stricter evidentiary rule and an elevated standard of review in §145 proceedings, we agree with the Federal Circuit that the district court may, in its discretion, “consider the proceedings before and findings of the Patent Office in deciding what weight to afford an applicant’s newly- admitted evidence.” 625 F.3d, at 1335. Though the PTO has special expertise in evaluating patent applications, the district court cannot meaningfully defer to the PTO’s factual findings if the PTO considered a different set of facts. Supra, at 8; cf. Microsoft Corp. v. i4i Ltd. Partner- ship, 564 U. S. ___, ___ (2011) (slip op., at 19) (noting that “if the PTO did not have all material facts before it, its 14 KAPPOS v. HYATT Opinion of the Court considered judgment may lose significant force”). For this reason, we conclude that the proper means for the district court to accord respect to decisions of the PTO is through the court’s broad discretion over the weight to be given to evidence newly adduced in the §145 proceedings. The Director warns that allowing the district court to consider all admissible evidence and to make de novo findings will encourage patent applicants to withhold evidence from the PTO intentionally with the goal of pre- senting that evidence for the first time to a nonexpert judge. Brief for Petitioner 23. We find that scenario unlikely. An applicant who pursues such a strategy would be intentionally undermining his claims before the PTO on the speculative chance that he will gain some advantage in the §145 proceeding by presenting new evidence to a district court judge. IV For these reasons, we conclude that there are no limita- tions on a patent applicant’s ability to introduce new evidence in a §145 proceeding beyond those already pre- sent in the Federal Rules of Evidence and the Federal Rules of Civil Procedure. Moreover, if new evidence is presented on a disputed question of fact, the district court must make de novo factual findings that take account of both the new evidence and the administrative record before the PTO. In light of these conclusions, the Federal Circuit was correct to vacate the judgment of the District Court, which excluded newly presented evidence under the view that it “need not consider evidence negligently sub- mitted after the end of administrative proceedings.” Civ. Action No. 03–0901, at 15, App. to Pet. for Cert. 189a. The judgment is affirmed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. Cite as: 566 U. S. ____ (2012) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 10–1219 _________________ DAVID J. KAPPOS, UNDER SECRETARY OF COM- MERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OF- FICE, PETITIONER v. GILBERT P.

The Patent Act of 1952, 35 U.S. C. et seq., grants a patent applicant whose claims are denied by the Patent and Trademark Office (PTO) the opportunity to challenge the PTO’s decision by filing a civil action against the Director of the PTO in federal district court. In such a proceeding, the applicant may present evidence to the district court that he did not present to the This case requires us to consider two questions. First, we must decide whether there are any limitations on the appli- cant’s ability to introduce new evidence before the district court. For the reasons set forth below, we conclude that there are no evidentiary restrictions beyond those already imposed by the Federal Rules of Evidence and the Federal Rules of Civil Procedure. Second, we must determine what standard of review the district court should apply when considering new evidence. On this question, we hold that the district court must make a de novo finding when new evidence is presented on a disputed question of fact. 2 KAPPOS v. HYATT Opinion of the Court In deciding what weight to afford that evidence, the dis- trict court may, however, consider whether the applicant had an opportunity to present the evidence to the I The Patent Act of 1952 establishes the process by which the PTO examines patent applications. A patent exam- iner first determines whether the application satisfies the statutory prerequisites for granting a patent. 35 U.S. C. If the examiner denies the application, the appli- cant may file an administrative appeal with the PTO’s Board of Patent Appeals and Interferences (Board). If the Board also denies the application, the Patent Act gives the disappointed applicant two options for judicial review of the Board’s decision. The applicant may either: (1) appeal the decision directly to the United States Court of Appeals for the Federal Circuit, pursuant to or (2) file a civil action against the Director of the PTO in the United States District Court for the District of Columbia pursuant to In a proceeding, the Federal Circuit must review the PTO’s decision on the same administrative record that was before the Thus, there is no opportunity for the applicant to offer new evidence in such a proceed- ing. In we ad- —————— 1 On September 16, 2011, the President signed the Leahy-Smith America Invents Act, into law. That Act made signifi- cant changes to Title 35 of the United States Code, some of which are related to the subject matter of this case. For example, the Act changed the venue for actions from the United States District Court for the District of Columbia to the United States District Court for the East- ern District of Virginia, changed the name of the Board of Patent Appeals and Interferences to the Patent Trial and Appeal Board, and changed the name of interferences to derivation proceedings, Neither party contends that the Act has any effect on the questions before us, and all references and citations in this opinion are to the law as it existed prior to the Act. Cite as: 566 U. S. (2012) 3 Opinion of the Court dressed the standard that governs the Federal Circuit’s review of the PTO’s factual findings. We held that the Administrative Procedure Act (APA), 5 U.S. C. et seq., applies to proceedings and that the Federal Circuit therefore should set aside the PTO’s factual find- ings only if they are “ ‘unsupported by substantial evi- dence.’ ” (quoting 5 U.S. C. In Zurko, we also noted that, unlike permits the applicant to present new evidence to the district court that was not presented to the This opportunity to present new evidence is significant, not the least because the PTO generally does not accept oral testimony. See Brief for Petitioner 40, n. 11. We have not yet addressed, however, whether there are any limita- tions on the applicant’s ability to introduce new evidence in such a proceeding or the appropriate standard of review that a district court should apply when considering such evidence. II In 1995, respondent Gilbert Hyatt filed a patent appli- cation that, as amended, included 117 claims. The PTO’s patent examiner denied each claim for lack of an adequate written description. See 35 U.S. C. (requiring pat- ent applications to include a “specification” that provides, among other information, a written description of the invention and of the manner and process of making and using it). Hyatt appealed the examiner’s decision to the Board, which eventually approved 38 claims, but denied the rest. Hyatt then filed a action in Federal Dis- trict Court against the Director of the PTO (Director), peti- tioner here. To refute the Board’s conclusion that his patent applica- tion lacked an adequate written description, Hyatt sub- mitted a written declaration to the District Court. In the declaration, Hyatt identified portions of the patent specifi- 4 KAPPOS v. HYATT Opinion of the Court cation that, in his view, supported the claims that the Board held were not patentable. The District Court de- termined that it could not consider Hyatt’s declaration because applicants are “ ‘precluded from presenting new is- sues, at least in the absence of some reason of justice put forward for failure to present the issue to the Patent Of- fice.’ ” Hyatt v. Dudas, Civ. Action No. 03–0901 (D DC, Sept. 30, 2005), p. 9, App. to Pet. for Cert. 182a ). Because the excluded declaration was the only additional evidence submitted by Hyatt in the proceeding, the evidence remaining before the District Court consisted entirely of the PTO’s administrative record. Therefore, the District Court reviewed all of the PTO’s factual find- ings under the APA’s deferential “substantial evidence” standard. See ; see also Mazzari v. Rogan, 323 F.3d 1000, 1004–1005 (CA Fed. 2003). Applying that standard, the District Court granted summary judgment to the Director. Hyatt appealed to the Federal Circuit. A divided panel affirmed, holding that the APA imposed restrictions on the admission of new evidence in a proceeding and that the district court’s review is not “wholly de novo.” Hyatt v. Doll, The Federal Circuit granted rehearing en banc and vacated the District Court’s grant of summary judgment. The en banc court first held “that Congress intended that applicants would be free to introduce new evidence in proceedings subject only to the rules applicable to all civil actions, the Federal Rules of Evidence and the Federal Rules of Civil Procedure,” even if the applicant had no justification for failing to present the evidence to the 1331 (2010). Reaffirming its precedent, the court also held that when new, conflicting evidence is introduced in a proceeding, the district court must make de novo findings to take such evidence into account. at Cite as: 566 U. S. (2012) 5 Opinion of the Court 1336. We granted certiorari, 564 U. S. (2011), and now affirm. III The Director challenges both aspects of the Federal Circuit’s decision. First, the Director argues that a district court should admit new evidence in a action only if the proponent of the evidence had no reasonable oppor- tunity to present it to the PTO in the first instance. Se- cond, the Director contends that, when new evidence is introduced, the district court should overturn the PTO’s fac- tual findings only if the new evidence clearly establishes that the agency erred. Both of these arguments share the premise that creates a special proceeding that is distinct from a typical civil suit filed in federal district court and that is thus governed by a different set of proce- dural rules. To support this interpretation of the Director relies on background principles of administrative law and pre-existing practice under a patent statute that predated For the reasons discussed below, we find that neither of these factors justifies a new evidentiary rule or a heightened standard of review for factual find- ings in proceedings. A To address the Director’s challenges, we begin with the text of See, e.g., Magwood v. Patterson, 561 U. S. (2010) (slip op., at 10). Section 145 grants a disappointed patent applicant a “remedy by civil action against the Director.” The section further explains that the district court “may adjudge that such applicant is entitled to receive a patent for his invention, as specified in any of his claims involved in the decision of the [PTO], as the facts in the case may appear and such adjudication shall authorize the Director to issue such patent on com- pliance with the requirements of law.” By its terms, 6 KAPPOS v. HYATT Opinion of the Court neither imposes unique evidentiary limits in district court proceedings nor establishes a heightened standard of re- view for factual findings by the B In the absence of express support for his position in the text of the Director argues that the statute should be read in light of traditional principles of administrative law, which Congress codified in the APA. The Director notes that requires a district court to review the reasoned decisionmaking of the PTO, an executive agency with specific authority and expertise. Accordingly, the Director contends that a district court should defer to the PTO’s factual findings. The Director further contends that, given the traditional rule that a party must exhaust his administrative remedies, a district court should con- sider new evidence only if the party did not have an oppor- tunity to present it to the agency. We reject the Director’s contention that background principles of administrative law govern the admissibility of new evidence and require a deferential standard of review in a Under the APA, judicial review of an agency decision is typically limited to the administrative record. See 5 U.S. C. But, as the Director concedes, proceedings are not so limited, for the district court may consider new evidence. When the district court does so, it must act as a factfinder. Zurko, In that role, it makes little sense for the district court to apply a deferential standard of review to PTO factual findings that are contradicted by the new evidence. The PTO, no matter how great its authority or expertise, cannot account for evidence that it has never seen. Consequently, the district court must make its own findings de novo and does not act as the “reviewing court” envisioned by the APA. See 5 U.S. C. We also conclude that the principles of administrative Cite as: 566 U. S. (2012) 7 Opinion of the Court exhaustion do not apply in a The Direc- tor argues that applicants must present all available evidence to the PTO to permit the PTO to develop the necessary facts and to give the PTO the opportunity to properly apply the Patent Act in the first instance. Brief for Petitioner 21–22 (citing McKart v. United States, 395 U.S. 185, 193–194 (1969)). But as this Court held in McKart, a primary purpose of administrative exhaustion “is, of course, the avoidance of premature interruption of the administrative ” That rationale does not apply here because, by the time a proceed- ing occurs, the PTO’s process is complete. Section 145, moreover, does not provide for remand to the PTO to consider new evidence, and there is no pressing need for such a procedure because a district court, unlike a court of appeals, has the ability and the competence to receive new evidence and to act as a factfinder. In light of these as- pects of proceedings—at least in those cases in which new evidence is presented to the district court on a dis- puted question of fact—we are not persuaded by the Direc- tor’s suggestion that proceedings are governed by the deferential principles of agency review. C Having concluded that neither the statutory text nor background principles of administrative law support an evidentiary limit or a heightened standard of review for factual findings in proceedings, we turn to the evi- dentiary and procedural rules that were in effect when Congress enacted in 1952. Although is a rela- tively modern statute, the language in that provision originated in the Act of July 8, 1870 (1870 Act), ch. 230, 16 Stat. 198, and the history of proceedings can be traced back to the Act of July 4, 1836 (1836 Act), ch. 357, 5 Stat. 117. Thus, we begin our inquiry with the 1836 Act, which established the Patent Office, the PTO’s predeces- 8 KAPPOS v. HYATT Opinion of the Court sor, and first authorized judicial review of its decisions. 1 The 1836 Act provided that a patent applicant could bring a bill in equity in federal district court if his applica- tion was denied on the ground that it would interfere with another patent. at 123–124; see also B. Ship- man, Handbook of the Law of Equity Pleading pp. 168–171 Three years later, Congress expanded that provision, making judicial review available whenever a patent was refused on any ground. Act of Mar. 3, 1839 (1839 Act), Pursuant to these statutes, any disappointed patent applicant could file a bill in equity to have the district court “adjudge” whether the applicant was “entitled, according to the principles and provisions of [the Patent Act], to have and receive a patent for his invention.” 1836 Act, In 1870, Congress amended the Patent Act again, add- ing intermediate layers of administrative review and in- troducing language describing the proceeding in the district court. Under the 1870 Act, an appli- cant denied a patent by the primary examiner could ap- peal first to a three-member board of examiners-in-chief, then to the Commissioner for Patents, and finally to an en banc sitting of the Supreme Court of the District of Co- lumbia.2 05. Notably, Congress described that court’s review as an “appeal” based “on the evidence pro- duced before the commissioner.” The 1870 Act preserved the prior remedy of a bill in equity in district court for the applicant whose appeal was denied either by —————— 2 The Supreme Court of the District of Columbia was a trial court created by Congress in 1863. Act of Mar. 3, 1863, ch. 91, Although the court was generally one of first instance, it also func- tioned as an appellate court when it sat en banc. Voorhees, The Dis- trict of Columbia Courts: A Judicial Anomaly, 923 (1980). Cite as: 566 U. S. (2012) 9 Opinion of the Court the Commissioner or by the Supreme Court of the District of Columbia. The district court, in a proceeding that was distinct from the appeal considered on the adminis- trative record by the Supreme Court of the District of Columbia, would “adjudge” whether the applicant was “entitled, according to law, to receive a patent for his invention as the facts in the case may appear.” In 1878, Congress codified this provision of the 1870 Act as Revised Statute (R. S. 4915). That statute was the immediate predecessor to and its core language remains largely unchanged in Accordingly, both parties agree that R. S. 4915 and the judicial decisions interpreting that statute should inform our understanding of 2 This Court described the nature of R. S. 4915 proceed- ings in two different cases: and Morgan v. Daniels, 153 U.S. 120 (1894). In the Court held that the Secretary of the Interior, the head of the federal depart- ment in which the Patent Office was a bureau, had no authority to review a decision made by the Commissioner of Patents in an interference In its discussion, the Court described the remedy provided by R. S. 4915 as “a proceeding in a court of the United States having original equity jurisdiction under the patent laws, ac- cording to the ordinary course of equity practice and procedure. It is not a technical appeal from the Patent-Office, like that authorized [before the Su- preme Court of the District of Columbia], confined to the case as made in the record of that office, but is prepared and heard upon all competent evidence ad- duced and upon the whole merits.” The Court also cited several lower court 10 KAPPOS v. HYATT Opinion of the Court cases, which similarly described R. S. 4915 proceedings as “altogether independent” from the hearings before the Patent Office and made clear that the parties were “at liberty to introduce additional evidence” under “the rules and practice of a court of equity.” In re Squire, 22 F. Cas. 1015, 1016 (No. 13,269) (CC ED Mo. 1877); see also Whip- (describing the federal court’s jurisdiction in an R. S. 4915 proceeding as “an independent, original jurisdiction”); (holding that “the court may receive new evidence, and has the same powers as in other cases in equity”). Ten years later, in Morgan, this Court again confronted a case involving proceedings under R. S. 4915. 153 U.S. 120. There, a party challenged a factual finding by the Patent Office, but neither side presented additional evi- dence in the District Court. at 122–123. This Court described the parties’ dispute as one over a question of fact that had already “been settled by a special tribunal [e]ntrusted with full power in the premises” and charac- terized the resulting District Court proceeding not as an independent civil action, but as “something in the nature of a suit to set aside a judgment.” Consistent with that view, the Court held that the agency’s findings should not be overturned by “a mere preponderance of evidence.” Viewing and Morgan together, one might perceive some tension between the two cases. appears to describe an R. S. 4915 proceeding as an original civil action, seeking de novo adjudication of the merits of a patent application. Morgan, on the other hand, appears to describe an R. S. 4915 proceeding as a suit for judicial review of agency action, governed by a deferential stand- ard of review. To resolve that apparent tension, the Direc- tor urges us to disregard the language in as mere dicta and to follow Morgan. He argues that Butter- Cite as: 566 U. S. (2012) 11 Opinion of the Court worth “shed[s] no light on the extent to which new evi- dence was admissible in R. S. 4915 proceedings or on the standard of review that applied in such suits.” Brief for Petitioner 33. The Director maintains that Morgan, in contrast, firmly established that a district court in such a proceeding performs a deferential form of review, gov- erned by traditional principles of administrative law. We reject the Director’s position.3 We think that the differences between and Morgan are best explained by the fact that the two cases addressed different circumstances. discussed the character of an R. S. 4915 proceeding in which a dis- appointed patent applicant challenged the Board’s denial of his application. Although that discussion was not strictly necessary to ’s holding it was also not the kind of ill-considered dicta that we are inclined to ignore. The Court carefully examined the various pro- visions providing relief from the final denial of a patent application by the Commissioner of Patents to determine that the Secretary of the Interior had no role to play in that –64. The Court further surveyed the decisions of the lower courts with regard to the nature of an R. S. 4915 proceeding and concluded that its view was “the uniform and correct practice in the Cir- cuit Courts.” We note that this Court reiter- ated ’s well-reasoned interpretation of R. S. 4915 in three later cases.4 —————— 3 Both parties cite additional cases from the lower courts that they claim support their view of the statute, but these cases are too diverse to support any firm inferences about Congress’ likely intent in enacting 4 In the Court described an R. S. 4915 proceeding as “a suit according to the ordinary course of equity practice and procedure” rather than a “technical appeal from the Patent Office.” (citing ). Likewise, in In re Hien, the Court distinguished an R. S. 4915 proceeding from the “ ‘technical appeal from the Patent 12 KAPPOS v. HYATT Opinion of the Court Morgan, on the other hand, concerned a different situa- tion from the one presented in this case. First, Morgan addressed an interference See 153 U.S., at 125 (emphasizing that “the question decided in the Pat- ent Office is one between contesting parties as to priority of invention”). Although interference proceedings were pre- viously governed by R. S. 4915, they are now governed by a separate section of the Patent Act, 35 U.S. C. and therefore do not implicate In addition, Morgan did not involve a proceeding in which new evidence was presented to the District Court. See (stating that the case “was submitted, without any addi- tional testimony, to the Circuit Court”). 3 Because in this case we are concerned only with proceedings in which new evidence has been presented to the District Court, rather than Morgan guides our decision. In this Court observed that an R. S. 4915 proceeding should be conducted “accord- ing to the ordinary course of equity practice and proce- dure” and that it should be “prepared and heard upon all competent evidence adduced and upon the whole merits.” Likewise, we conclude that a district court conducting a proceeding may consider “all com- petent evidence adduced,” and is not limited to considering only new evidence that could not have been presented to the Thus, we agree with the Federal Circuit that “Congress intended that applicants would be free to introduce new evidence in proceedings subject only to the rules applicable to all civil actions, the Federal —————— Office’ ” authorized under R. S. 4911, the predecessor to current (quoting ). And, finally, in Hoover the Court cited to support its description of an R. S. 4915 proceeding as a “formal trial.” 325 U.S., 3, and n. 4. Cite as: 566 U. S. (2012) 13 Opinion of the Court Rules of Evidence and the Federal Rules of Civil Proce- dure.” We also agree with the Federal Circuit’s longstanding view that, “where new evidence is presented to the district court on a disputed fact question, a de novo finding will be necessary to take such evidence into account together with the evidence before the board.” As we noted in Zurko, the district court acts as a factfinder when new evidence is introduced in a The district court must assess the credibility of new witnesses and other evidence, determine how the new evidence comports with the existing administrative record, and decide what weight the new evidence deserves. As a logical matter, the district court can only make these determinations de novo because it is the first tribunal to hear the evidence in question. Furthermore, a de novo standard adheres to this Court’s instruction in Butter- worth that an R. S. 4915 proceeding be heard “upon the whole merits” and conducted “according to the ordinary course of equity practice and procedure.” D Although we reject the Director’s proposal for a stricter evidentiary rule and an elevated standard of review in proceedings, we agree with the Federal Circuit that the district court may, in its discretion, “consider the proceedings before and findings of the Patent Office in deciding what weight to afford an applicant’s newly- admitted evidence.” Though the PTO has special expertise in evaluating patent applications, the district court cannot meaningfully defer to the PTO’s factual findings if the PTO considered a different set of ; cf. Microsoft Corp. v. i4i Ltd. Partner- ship, 564 U. S. (2011) (slip op., at 19) (noting that “if the PTO did not have all material facts before it, its 14 KAPPOS v. HYATT Opinion of the Court considered judgment may lose significant force”). For this reason, we conclude that the proper means for the district court to accord respect to decisions of the PTO is through the court’s broad discretion over the weight to be given to evidence newly adduced in the proceedings. The Director warns that allowing the district court to consider all admissible evidence and to make de novo findings will encourage patent applicants to withhold evidence from the PTO intentionally with the goal of pre- senting that evidence for the first time to a nonexpert judge. Brief for Petitioner 23. We find that scenario unlikely. An applicant who pursues such a strategy would be intentionally undermining his claims before the PTO on the speculative chance that he will gain some advantage in the proceeding by presenting new evidence to a district court judge. IV For these reasons, we conclude that there are no limita- tions on a patent applicant’s ability to introduce new evidence in a proceeding beyond those already pre- sent in the Federal Rules of Evidence and the Federal Rules of Civil Procedure. Moreover, if new evidence is presented on a disputed question of fact, the district court must make de novo factual findings that take account of both the new evidence and the administrative record before the In light of these conclusions, the Federal Circuit was correct to vacate the judgment of the District Court, which excluded newly presented evidence under the view that it “need not consider evidence negligently sub- mitted after the end of administrative proceedings.” Civ. Action No. 03–0901, at 15, App. to Pet. for Cert. 189a. The judgment is affirmed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. Cite as: 566 U. S. (2012) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES No. 10–1219 DAVID J. KAPPOS, UNDER SECRETARY OF COM- MERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, PATENT AND TRADEMARK OF- FICE, PETITIONER v. GILBERT P.

Justice Sotomayor

concurring

Kappos v. Hyatt

2012-04-18

https://www.courtlistener.com/opinion/2959738/kappos-v-hyatt/

https://www.courtlistener.com/api/rest/v3/clusters/2959738/

2011-050

As the Court today recognizes, a litigant in a 35 U.S. C. §145 proceeding is permitted to introduce evidence not presented to the Patent and Trademark Office (PTO) “ ‘according to the ordinary course of equity practice and procedure.’ ” Ante, at 9 (quoting Butterworth v. United States ex rel. Hoe, 112 U.S. 50, 61 (1884)). Dating back to §145’s original predecessor, Congress contemplated that courts would manage such actions “according to the course and principles of courts of equity.” Act of July 4, 1836, ch. 357, §17, 5 Stat. 124. And this Court and other courts have acknowledged and applied that principle on numer- ous occasions. See, e.g., Gandy v. Marble, 122 U.S. 432, 439 (1887) (describing Rev. Stat. 4915 (R. S. 4915) pro- ceeding as “a suit according to the ordinary course of equity practice and procedure”); In re Hien, 166 U.S. 432, 438 (1897) (same); In re Squire, 22 F. Cas. 1015, 1016 (No. 13,269) (CC ED Mo. 1877) (in an R. S. 4915 proceeding, the parties were “at liberty to introduce additional evi- dence” under “the rules and practice of a court of equity”); ante, at 10, 12, n. 4 (citing same cases). Consistent with ordinary equity practice and procedure, 2 KAPPOS v. HYATT SOTOMAYOR, J., concurring there may be situations in which a litigant’s conduct before the PTO calls into question the propriety of admit- ting evidence presented for the first time in a §145 pro- ceeding before a district court. The most well-known example was presented in Barrett Co. v. Koppers Co., 22 F. 2d 395, 396 (CA3 1927), a case in which the Barrett Com- pany, during proceedings before the Patent Office, “ex- pressly refused to disclose and to allow their witnesses to answer questions” essential to establishing the priority of its invention. After the Patent Office ruled against it, the Barrett Company attempted to present in a subsequent R. S. 4915 proceeding “the very subject-matter concerning which . . . witnesses for the [patent] application were asked questions and the Barrett Company forbade them to answer.” Id., at 396. The Third Circuit understandably found the Barrett Company estopped from introducing evidence that it had “purposely” withheld from prior fact- finders, lest the company be allowed “to profit by [its] own . . . wrong doing.” Id., at 397. See also Dowling v. Jones, 67 F.2d 537, 538 (CA2 1933) (L. Hand, J.) (describing Barrett as a case in which “the Third Circuit refused to consider evidence which the inventor had deliberately suppressed”). For the reasons the Court articulates, §145 proceedings are not limited to the administrative record developed be- fore the PTO and applicants are entitled to present new evidence to the district court. Accordingly, as Judge Hand suggested, a court’s equitable authority to exclude evidence in such proceedings is limited, and must be exercised with caution. See Dowling, 67 F.2d, at 538 (describing as “doubtful” the proposition that a court should exclude evidence that was “not suppressed, but merely neglected” before the Patent Office). Thus, when a patent applicant fails to present evidence to the PTO due to ordinary negligence, a lack of foresight, or simple attorney error, the applicant should not be estopped from present- Cite as: 566 U. S. ____ (2012) 3 SOTOMAYOR, J., concurring ing the evidence for the first time in a §145 proceeding. Because there is no suggestion here that the applicant’s failure to present the evidence in question to the PTO was anything other than the product of negligence or a lack of foresight, I agree that the applicant was entitled to present his additional evidence to the District Court. But I do not understand today’s decision to foreclose a district court’s authority, consistent with “ ‘the ordinary course of equity practice and procedure,’ ” ante, at 13 (quoting But- terworth, 112 U.S., at 61), to exclude evidence “deliber- ately suppressed” from the PTO or otherwise withheld in bad faith. For the reasons set out by the Court, see ante, at 13–14, an applicant has little to gain by such tactics; such cases will therefore be rare. In keeping with longstanding historical practice, however, I understand courts to retain their ordinary authority to exclude evidence from a §145 proceeding when its admission would be inconsistent with regular equity practice and procedure. With those observations, I join the Court’s opinion in full

As the Court today recognizes, a litigant in a 35 U.S. C. proceeding is permitted to introduce evidence not presented to the Patent and Trademark Office (PTO) “ ‘according to the ordinary course of equity practice and procedure.’ ” Ante, at 9 ). Dating back to ’s original predecessor, Congress contemplated that courts would manage such actions “according to the course and principles of courts of equity.” Act of July 4, 1836, ch. 357, And this Court and other courts have acknowledged and applied that principle on numer- ous occasions. See, e.g., 439 (1887) (describing Rev. Stat. 4915 (R. S. 4915) pro- ceeding as “a suit according to the ordinary course of equity practice and procedure”); In re Hien, 438 (1897) (same); In re Squire, (No. 13,269) (CC ED Mo. 1877) (in an R. S. 4915 proceeding, the parties were “at liberty to introduce additional evi- dence” under “the rules and practice of a court of equity”); ante, at 10, 12, n. 4 (citing same cases). Consistent with ordinary equity practice and procedure, 2 KAPPOS v. HYATT SOTOMAYOR, J., concurring there may be situations in which a litigant’s conduct before the PTO calls into question the propriety of admit- ting evidence presented for the first time in a pro- ceeding before a district court. The most well-known example was presented in Barrett Co. v. Koppers Co., 22 F. 2d 395, 396 (CA3 1927), a case in which the Barrett Com- pany, during proceedings before the Patent Office, “ex- pressly refused to disclose and to allow their witnesses to answer questions” essential to establishing the priority of its invention. After the Patent Office ruled against it, the Barrett Company attempted to present in a subsequent R. S. 4915 proceeding “the very subject-matter concerning which witnesses for the [patent] application were asked questions and the Barrett Company forbade them to answer.” The Third Circuit understandably found the Barrett Company estopped from introducing evidence that it had “purposely” withheld from prior fact- finders, lest the company be allowed “to profit by [its] own wrong doing.” See also (describing Barrett as a case in which “the Third Circuit refused to consider evidence which the inventor had deliberately suppressed”). For the reasons the Court articulates, proceedings are not limited to the administrative record developed be- fore the PTO and applicants are entitled to present new evidence to the district court. Accordingly, as Judge Hand suggested, a court’s equitable authority to exclude evidence in such proceedings is limited, and must be exercised with caution. See 67 F.2d, at (describing as “doubtful” the proposition that a court should exclude evidence that was “not suppressed, but merely neglected” before the Patent Office). Thus, when a patent applicant fails to present evidence to the PTO due to ordinary negligence, a lack of foresight, or simple attorney error, the applicant should not be estopped from present- Cite as: 566 U. S. (2012) 3 SOTOMAYOR, J., concurring ing the evidence for the first time in a proceeding. Because there is no suggestion here that the applicant’s failure to present the evidence in question to the PTO was anything other than the product of negligence or a lack of foresight, I agree that the applicant was entitled to present his additional evidence to the District Court. But I do not understand today’s decision to foreclose a district court’s authority, consistent with “ ‘the ordinary course of equity practice and procedure,’ ” ante, at 13 (quoting But- 112 U.S., at ), to exclude evidence “deliber- ately suppressed” from the PTO or otherwise withheld in bad faith. For the reasons set out by the Court, see ante, at 13–14, an applicant has little to gain by such tactics; such cases will therefore be rare. In keeping with longstanding historical practice, however, I understand courts to retain their ordinary authority to exclude evidence from a proceeding when its admission would be inconsistent with regular equity practice and procedure. With those observations, I join the Court’s opinion in full

Justice Souter

majority

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.

1995-06-19

https://www.courtlistener.com/opinion/117960/hurley-v-irish-american-gay-lesbian-and-bisexual-group-of-boston-inc/

https://www.courtlistener.com/api/rest/v3/clusters/117960/

1994-083

The issue in this case is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey. We hold that such a mandate violates the First Amendment. *560 I March 17 is set aside for two celebrations in South Boston. As early as 1737, some people in Boston observed the feast of the apostle to Ireland, and since 1776 the day has marked the evacuation of royal troops and Loyalists from the city, prompted by the guns captured at Ticonderoga and set up on Dorchester Heights under General Washington's command. Washington himself reportedly drew on the earlier tradition in choosing "St. Patrick" as the response to "Boston," the password used in the colonial lines on evacuation day. See J. Crimmins, St. Patrick's Day: Its Celebration in New York and other American Places, 1737-1845, pp. 15, 19 (1902); see generally 1 H. Commager & R. Morris, The Spirit of `Seventy Six, pp. 138-183 (1958); The American Book of Days 262-265 (J. Hatch ed., 3d ed. 1978). Although the General Court of Massachusetts did not officially designate March 17 as Evacuation Day until 1938, see Mass. Gen. Laws § 6:12K (1992), the City Council of Boston had previously sponsored public celebrations of Evacuation Day, including notable commemorations on the centennial in 1876, and on the 125th anniversary in 1901, with its parade, salute, concert, and fireworks display. See Celebration of the Centennial Anniversary of the Evacuation of Boston by the British Army (G. Ellis ed. 1876); Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of Boston et al., Civ. Action No. 92-1518A (Super. Ct., Mass., Dec. 15, 1993), reprinted in App. to Pet. for Cert. B1, B8-B9. The tradition of formal sponsorship by the city came to an end in 1947, however, when Mayor James Michael Curley himself granted authority to organize and conduct the St. Patrick's Day-Evacuation Day Parade to the petitioner South Boston Allied War Veterans Council, an unincorporated association of individuals elected from various South Boston veterans groups. Every year since that time, the Council has applied for and received a permit for the parade, which at times has included as many as 20,000 marchers and drawn *561 up to 1 million watchers. No other applicant has ever applied for that permit. Id., at B9. Through 1992, the city allowed the Council to use the city's official seal, and provided printing services as well as direct funding. In 1992, a number of gay, lesbian, and bisexual descendants of the Irish immigrants joined together with other supporters to form the respondent organization, GLIB, to march in the parade as a way to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals, to demonstrate that there are such men and women among those so descended, and to express their solidarity with like individuals who sought to march in New York's St. Patrick's Day Parade. Id., at B3; App. 51. Although the Council denied GLIB's application to take part in the 1992 parade, GLIB obtained a state-court order to include its contingent, which marched "uneventfully" among that year's 10,000 participants and 750,000 spectators. App. to Pet. for Cert. B3, and n. 4. In 1993, after the Council had again refused to admit GLIB to the upcoming parade, the organization and some of its members filed this suit against the Council, the individual petitioner John J. "Wacko" Hurley, and the city of Boston, alleging violations of the State and Federal Constitutions and of the state public accommodations law, which prohibits "any distinction, discrimination or restriction on account of. . . sexual orientation . . . relative to the admission of any person to, or treatment in any place of public accommodation, resort or amusement." Mass. Gen. Laws § 272:98 (1992). After finding that "[f]or at least the past 47 years, the Parade has traveled the same basic route along the public streets of South Boston, providing entertainment, amusement, and recreation to participants and spectators alike," App. to Pet. for Cert. B5—B6, the state trial court ruled that the parade fell within the statutory definition of a public accommodation, which includes "any place . . . which is open to and accepts or solicits the patronage of the general public *562 and, without limiting the generality of this definition, whether or not it be . . . (6) a boardwalk or other public highway [or] . . . (8) a place of public amusement, recreation, sport, exercise or entertainment," Mass. Gen. Laws § 272:92A (1992). The court found that the Council had no written criteria and employed no particular procedures for admission, voted on new applications in batches, had occasionally admitted groups who simply showed up at the parade without having submitted an application, and did "not generally inquire into the specific messages or views of each applicant." App. to Pet. for Cert. B8—B9. The court consequently rejected the Council's contention that the parade was "private" (in the sense of being exclusive), holding instead that "the lack of genuine selectivity in choosing participants and sponsors demonstrates that the Parade is a public event." Id., at B6. It found the parade to be "eclectic," containing a wide variety of "patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes," as well as conflicting messages. Id., at B24. While noting that the Council had indeed excluded the Ku Klux Klan and ROAR (an anti busing group), id., at B7, it attributed little significance to these facts, concluding ultimately that "[t]he only common theme among the participants and sponsors is their public involvement in the Parade," id., at B24. The court rejected the Council's assertion that the exclusion of "groups with sexual themes merely formalized [the fact] that the Parade expresses traditional religious and social values," id., at B3, and found the Council's "final position [to be] that GLIB would be excluded because of its values and its message, i. e., its members' sexual orientation," id., at B4, n. 5, citing Tr. of Closing Arg. 43, 51-52 (Nov. 23, 1993). This position, in the court's view, was not only violative of the public accommodations law but "paradoxical" as well, since "a proper celebration of St. Patrick's and Evacuation Day requires diversity and inclusiveness." App. to Pet. for *563 Cert. B24. The court rejected the notion that GLIB's admission would trample on the Council's First Amendment rights since the court understood that constitutional protection of any interest in expressive association would "requir[e] focus on a specific message, theme, or group" absent from the parade. Ibid. "Given the [Council's] lack of selectivity in choosing participants and failure to circumscribe the marchers' message," the court found it "impossible to discern any specific expressive purpose entitling the Parade to protection under the First Amendment." Id., at B25. It concluded that the parade is "not an exercise of [the Council's] constitutionally protected right of expressive association," but instead "an open recreational event that is subject to the public accommodations law." Id., at B27. The court held that because the statute did not mandate inclusion of GLIB but only prohibited discrimination based on sexual orientation, any infringement on the Council's right to expressive association was only "incidental" and "no greater than necessary to accomplish the statute's legitimate purpose" of eradicating discrimination. Id., at B25, citing Roberts v. United States Jaycees, 468 U.S. 609, 628-629 (1984). Accordingly, it ruled that "GLIB is entitled to participate in the Parade on the same terms and conditions as other participants." App. to Pet. for Cert. B27.[1] The Supreme Judicial Court of Massachusetts affirmed, seeing nothing clearly erroneous in the trial judge's findings *564 that GLIB was excluded from the parade based on the sexual orientation of its members, that it was impossible to detect an expressive purpose in the parade, that there was no state action, and that the parade was a public accommodation within the meaning of § 272:92A. Irish-American Gay, Lesbian and Bisexual Group of Boston v. Boston, 418 Mass. 238, 242-248, 636 N.E.2d 1293, 1295-1298 (1994).[2] Turning to petitioners' First Amendment claim that application of the public accommodations law to the parade violated their freedom of speech (as distinguished from their right to expressive association, raised in the trial court), the court's majority held that it need not decide on the particular First Amendment theory involved "because, as the [trial] judge found, it is `impossible to discern any specific expressive purpose entitling the Parade to protection under the First Amendment.' " Id., at 249, 636 N.E.2d, at 1299 (footnote omitted). The defendants had thus failed at the trial level "to demonstrate that the parade truly was an exercise of . . . First Amendment rights," id., at 250, 636 N.E.2d, at 1299, citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, n. 5 (1984), and on appeal nothing indicated to the majority of the Supreme Judicial Court that the trial judge's assessment of the evidence on this point was clearly erroneous, 418 Mass., at 250, 636 N.E.2d, at 1299. The court rejected petitioners' further challenge to the law as overbroad, holding that it does not, on its face, regulate speech, does not let public officials examine the content of speech, and would not be interpreted as reaching speech. Id., at 251-252, 636 N.E.2d, at 1300. Finally, the court rejected the challenge that the public accommodations law was unconstitutionally vague, holding that this case did not present an issue of speech and that the law gave persons of *565 ordinary intelligence a reasonable opportunity to know what was prohibited. Id., at 252, 636 N.E.2d, at 1300-1301. Justice Nolan dissented. In his view, the Council "does not need a narrow or distinct theme or message in its parade for it to be protected under the First Amendment." Id., at 256, 636 N.E.2d, at 1303. First, he wrote, even if the parade had no message at all, GLIB's particular message could not be forced upon it. Id., at 257, 636 N.E.2d, at 1303, citing Wooley v. Maynard, 430 U.S. 705, 717 (1977) (state requirement to display "Live Free or Die" on license plates violates First Amendment). Second, according to Justice Nolan, the trial judge clearly erred in finding the parade devoid of expressive purpose. 418 Mass., at 257, 636 N.E.2d, at 1303. He would have held that the Council, like any expressive association, cannot be barred from excluding applicants who do not share the views the Council wishes to advance. Id., at 257-259, 636 N.E.2d, at 1303-1304, citing Roberts, supra. Under either a pure speech or associational theory, the State's purpose of eliminating discrimination on the basis of sexual orientation, according to the dissent, could be achieved by more narrowly drawn means, such as ordering admission of individuals regardless of sexual preference, without taking the further step of prohibiting the Council from editing the views expressed in their parade. 418 Mass., at 256, 258, 636 N.E.2d, at 1302, 1304. In Justice Nolan's opinion, because GLIB's message was separable from the status of its members, such a narrower order would accommodate the State's interest without the likelihood of infringing on the Council's First Amendment rights. Finally, he found clear error in the trial judge's equation of exclusion on the basis of GLIB's message with exclusion on the basis of its members' sexual orientation. To the dissent this appeared false in the light of "overwhelming evidence" that the Council objected to GLIB on account of its message and a dearth of testimony or documentation indicating that sexual orientation was the bar to admission. Id., at 260, 636 *566 N. E. 2d, at 1304. The dissent accordingly concluded that the Council had not even violated the State's public accommodations law. We granted certiorari to determine whether the requirement to admit a parade contingent expressing a message not of the private organizers' own choosing violates the First Amendment. 513 U.S. 1071 (1995). We hold that it does and reverse. II Given the scope of the issues as originally joined in this case, it is worth noting some that have fallen aside in the course of the litigation, before reaching us. Although the Council presents us with a First Amendment claim, respondents do not. Neither do they press a claim that the Council's action has denied them equal protection of the laws in violation of the Fourteenth Amendment. While the guarantees of free speech and equal protection guard only against encroachment by the government and "erec[t] no shield against merely private conduct," Shelley v. Kraemer, 334 U.S. 1, 13 (1948); see Hudgens v. NLRB, 424 U.S. 507, 513 (1976), respondents originally argued that the Council's conduct was not purely private, but had the character of state action. The trial court's review of the city's involvement led it to find otherwise, however, and although the Supreme Judicial Court did not squarely address the issue, it appears to have affirmed the trial court's decision on that point as well as the others. In any event, respondents have not brought that question up either in a cross-petition for certiorari or in their briefs filed in this Court. When asked at oral argument whether they challenged the conclusion by the Massachusetts' courts that no state action is involved in the parade, respondents' counsel answered that they "do not press that issue here." Tr. of Oral Arg. 22. In this Court, then, their claim for inclusion in the parade rests solely on the Massachusetts public accommodations law. *567 There is no corresponding concession from the other side, however, and certainly not to the state courts' characterization of the parade as lacking the element of expression for purposes of the First Amendment. Accordingly, our review of petitioners' claim that their activity is indeed in the nature of protected speech carries with it a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984). The "requirement of independent appellate review . . . is a rule of federal constitutional law," id., at 510, which does not limit our deference to a trial court on matters of witness credibility, Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989), but which generally requires us to "review the finding of facts by a State court. . . where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts," Fiske v. Kansas, 274 U.S. 380, 385-386 (1927). See also Niemotko v. Maryland, 340 U.S. 268, 271 (1951); Jacobellis v. Ohio, 378 U.S. 184, 189 (1964) (opinion of Brennan, J.). This obligation rests upon us simply because the reaches of the First Amendment are ultimately defined by the facts it is held to embrace, and we must thus decide for ourselves whether a given course of conduct falls on the near or far side of the line of constitutional protection. See Bose Corp., supra, at 503. Even where a speech case has originally been tried in a federal court, subject to the provision of Federal Rule of Civil Procedure 52(a) that "[f]indings of fact . . . shall not be set aside unless clearly erroneous," we are obliged to make a fresh examination of crucial facts. Hence, in this case, though we are confronted with the state courts' conclusion that the factual characteristics of petitioners' activity place it within the vast realm of nonexpressive conduct, our obligation is to "`make an independent examination *568 of the whole record,' . . . so as to assure ourselves that th[is] judgment does not constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) (footnote omitted), quoting Edwards v. South Carolina, 372 U.S. 229, 235 (1963). III A If there were no reason for a group of people to march from here to there except to reach a destination, they could make the trip without expressing any message beyond the fact of the march itself. Some people might call such a procession a parade, but it would not be much of one. Real "[p]arades are public dramas of social relations, and in them performers define who can be a social actor and what subjects and ideas are available for communication and consideration." S. Davis, Parades and Power: Street Theatre in Nineteenth-Century Philadelphia 6 (1986). Hence, we use the word "parade" to indicate marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Indeed, a parade's dependence on watchers is so extreme that nowadays, as with Bishop Berkeley's celebrated tree, "if a parade or demonstration receives no media coverage, it may as well not have happened." Id., at 171. Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches. In Gregory v. Chicago, 394 U.S. 111, 112 (1969), for example, petitioners had taken part in a procession to express their grievances to the city government, and we held that such a "march, if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment." Similarly, in Edwards v. South Carolina, supra, at 235, where petitioners had joined in a march of protest and pride, carrying placards and singing The Star Spangled Banner, we held that the activities "reflect an exercise of these basic constitutional *569 rights in their most pristine and classic form." Accord, Shuttlesworth v. Birmingham, 394 U.S. 147, 152 (1969). The protected expression that inheres in a parade is not limited to its banners and songs, however, for the Constitution looks beyond written or spoken words as mediums of expression. Noting that "[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632 (1943), our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), id., at 632, 642, wearing an armband to protest a war, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505-506 (1969), displaying a red flag, Stromberg v. California, 283 U.S. 359, 369 (1931), and even "[m]arching, walking or parading" in uniforms displaying the swastika, National Socialist Party of America v. Skokie, 432 U.S. 43 (1977). As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," cf. Spence v. Washington, 418 U.S. 405, 411 (1974) (per curiam), would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll. Not many marches, then, are beyond the realm of expressive parades, and the South Boston celebration is not one of them. Spectators line the streets; people march in costumes and uniforms, carrying flags and banners with all sorts of messages (e. g., "England get out of Ireland," "Say no to drugs"); marching bands and pipers play; floats are pulled along; and the whole show is broadcast over Boston television. See Record, Exh. 84 (video). To be sure, we agree with the state courts that in spite of excluding some applicants, the Council is rather lenient in admitting participants. But a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive *570 subject matter of the speech. Nor, under our precedent, does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication. Cable operators, for example, are engaged in protected speech activities even when they only select programming originally produced by others. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 636 (1994) ("Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment"). For that matter, the presentation of an edited compilation of speech generated by other persons is a staple of most newspapers' opinion pages, which, of course, fall squarely within the core of First Amendment security, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974), as does even the simple selection of a paid noncommercial advertisement for inclusion in a daily paper, see New York Times, 376 U. S., at 265— 266. The selection of contingents to make a parade is entitled to similar protection. Respondents' participation as a unit in the parade was equally expressive. GLIB was formed for the very purpose of marching in it,as the trial court found, in order to celebrate its members' identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York parade. App. to Pet. for Cert. B3. The organization distributed a fact sheet describing the members' intentions, App. A51, and the record otherwise corroborates the expressive nature of GLIB's participation, see Record, Exh. 84 (video); App. A67 (photograph). In 1993, members of GLIB marched behind a shamrock-strewn banner with the simple inscription "Irish American Gay, Lesbian and Bisexual Group of Boston." GLIB understandably seeks to communicate its ideas as part of the existing parade, rather than staging one of its own. *571 B The Massachusetts public accommodations law under which respondents brought suit has a venerable history. At common law, innkeepers, smiths, and others who "made profession of a public employment," were prohibited from refusing, without good reason, to serve a customer. Lane v. Cotton, 12 Mod. 472, 484-485, 88 Eng. Rep. 1458, 1464-1465 (K. B. 1701) (Holt, C. J.); see Bell v. Maryland, 378 U.S. 226, 298, n. 17 (1964) (Goldberg, J., concurring); Lombard v. Louisiana, 373 U.S. 267, 277 (1963) (Douglas, J., concurring). As one of the 19th-century English judges put it, the rule was that "[t]he innkeeper is not to select his guests[;] [h]e has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants." Rex v. Ivens, 7 Car. & P. 213, 219, 173 Eng. Rep. 94, 96 (N. P. 1835); M. Konvitz & T. Leskes, A Century of Civil Rights 160 (1961). After the Civil War, the Commonwealth of Massachusetts was the first State to codify this principle to ensure access to public accommodations regardless of race. See Act Forbidding Unjust Discrimination on Account of Color or Race, 1865 Mass. Acts, ch. 277 (May 16, 1865); Konvitz & Leskes, supra, at 155-156; Lerman & Sanderson, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N. Y. U. Rev. L. & Soc. Change 215, 238 (1978); Fox, Discrimination and Antidiscrimination in Massachusetts Law, 44 B. U. L. Rev. 30, 58 (1964). In prohibiting discrimination "in any licensed inn, in any public place of amusement, public conveyance or public meeting," 1865 Mass. Acts, ch. 277, § 1, the original statute already expanded upon the common law, which had not conferred any right of access to places of public amusement, Lerman & Sanderson, supra, at 248. As with many public accommodations statutes across the Nation, the legislature continued to *572 broaden the scope of legislation, to the point that the law today prohibits discrimination on the basis of "race, color, religious creed, national origin, sex, sexual orientation . . . , deafness, blindness or any physical or mental disability or ancestry" in "the admission of any person to, or treatment in any place of public accommodation, resort or amusement." Mass. Gen. Laws § 272:98 (1992). Provisions like these are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments. See, e. g., New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 11-16 (1988); Roberts v. United States Jaycees, 468 U. S., at 624— 626; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-262 (1964). Nor is this statute unusual in any obvious way, since it does not, on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds. C In the case before us, however, the Massachusetts law has been applied in a peculiar way. Its enforcement does not address any dispute about the participation of openly gay, lesbian, or bisexual individuals in various units admitted to the parade. Petitioners disclaim any intent to exclude homosexuals as such, and no individual member of GLIB claims to have been excluded from parading as a member of any group that the Council has approved to march. Instead, the disagreement goes to the admission of GLIB as its own parade unit carrying its own banner. See App. to Pet. for Cert. B26—B27, and n. 28. Since every participating unit affects the message conveyed by the private organizers, the state courts' application of the statute produced an order essentially requiring petitioners to alter the expressive content *573 of their parade. Although the state courts spoke of the parade as a place of public accommodation, see, e. g., 418 Mass., at 247-248, 636 N.E.2d, at 1297-1298, once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts' application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message. "Since all speech inherently involves choices of what to say and what to leave unsaid," Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U.S. 1, 11 (1986) (plurality opinion) (emphasis in original), one important manifestation of the principle of free speech is that one who chooses to speak may also decide "what not to say," id., at 16. Although the State may at times "prescribe what shall be orthodox in commercial advertising" by requiring the dissemination of "purely factual and uncontroversial information," Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985); see Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 386-387 (1973), outside that context it may not compel affirmance of a belief with which the speaker disagrees, see Barnette, 319 U. S., at 642. Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid, McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-342 (1995); Riley v. National Federation of Blind of N. C., Inc., *574 487 U.S. 781, 797-798 (1988), subject, perhaps, to the permissive law of defamation, New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-349 (1974); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Nor is the rule's benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. Its point is simply the point of all speech protection, which is to shield just those choices of content that in someone's eyes are misguided, or even hurtful. See Brandenburg v. Ohio, 395 U.S. 444 (1969); Terminiello v. Chicago, 337 U.S. 1 (1949). Petitioners' claim to the benefit of this principle of autonomy to control one's own speech is as sound as the South Boston parade is expressive. Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day. Even if this view gives the Council credit for a more considered judgment than it actively made, the Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another. The message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified *575 social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control. Respondents argue that any tension between this rule and the Massachusetts law falls short of unconstitutionality, citing the most recent of our cases on the general subject of compelled access for expressive purposes, Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994). There we reviewed regulations requiring cable operators to set aside channels for designated broadcast signals, and applied only intermediate scrutiny. Id., at 662. Respondents contend on this authority that admission of GLIB to the parade would not threaten the core principle of speaker's autonomy because the Council, like a cable operator, is merely "a conduit" for the speech of participants in the parade "rather than itself a speaker." Brief for Respondents 21. But this metaphor is not apt here, because GLIB's participation would likely be perceived as having resulted from the Council's customary determination about a unit admitted to the parade, that its message was worthy of presentation and quite possibly of support as well. A newspaper, similarly, "is more than a passive receptacle or conduit for news, comment, and advertising," and we have held that "[t]he choice of material. . . and the decisions made as to limitations on the size and content . . . and treatment of public issues . . .—whether fair or unfair—constitute the exercise of editorial control and judgment" upon which the State can not intrude. Tornillo, 418 U. S., at 258. Indeed, in Pacific Gas & Electric, we invalidated coerced access to the envelope of a private utility's bill and newsletter because the utility "may be forced either to appear to agree with [the intruding leaflet] or to respond." 475 U.S., at 15 (plurality opinion) (citation omitted). The plurality made the further point that if "the government *576 [were] freely able to compel . . . speakers to propound political messages with which they disagree, . . . protection [of a speaker's freedom] would be empty, for the government could require speakers to affirm in one breath that which they deny in the next." Id., at 16. Thus, when dissemination of a view contrary to one's own is forced upon a speaker intimately connected with the communication advanced, the speaker's right to autonomy over the message is compromised. In Turner Broadcasting, we found this problem absent in the cable context, because "[g]iven cable's long history of serving as a conduit for broadcast signals, there appears little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator." 512 U.S., at 655. We stressed that the viewer is frequently apprised of the identity of the broadcaster whose signal is being received via cable and that it is "common practice for broadcasters to disclaim any identity of viewpoint between the management and the speakers who use the broadcast facility." Ibid. (citation omitted); see id., at 684 (O'Connor, J., concurring in part and dissenting in part) (noting that Congress "might . . . conceivably obligate cable operators to act as common carriers for some of their channels"). Parades and demonstrations, in contrast, are not understood to be so neutrally presented or selectively viewed. Unlike the programming offered on various channels by a cable network, the parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience. Although each parade unit generally identifies itself, each is understood to contribute something to a common theme, and accordingly there is no customary practice whereby private sponsors disavow "any identity of viewpoint" between themselves and the selected participants. Practice follows practicability here, for such disclaimers would be quite curious in a moving *577 parade. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 87 (1980) (owner of shopping mall "can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand"). Without deciding on the precise significance of the likelihood of misattribution, it nonetheless becomes clear that in the context of an expressive parade, as with a protest march, the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole. An additional distinction between Turner Broadcasting and this case points to the fundamental weakness of any attempt to justify the state-court order's limitation on the Council's autonomy as a speaker. A cable is not only a conduit for speech produced by others and selected by cable operators for transmission, but a franchised channel giving monopolistic opportunity to shut out some speakers. This power gives rise to the Government's interest in limiting monopolistic autonomy in order to allow for the survival of broadcasters who might otherwise be silenced and consequently destroyed. The Government's interest in Turner Broadcasting was not the alteration of speech, but the survival of speakers. In thus identifying an interest going beyond abridgment of speech itself, the defenders of the law at issue in Turner Broadcasting addressed the threshold requirement of any review under the Speech Clause, whatever the ultimate level of scrutiny, that a challenged restriction on speech serve a compelling, or at least important, governmental object, see, e. g., Pacific Gas & Electric , supra, at 19; Turner Broadcasting, supra, at 662; United States v. O'Brien, 391 U.S. 367, 377 (1968). In this case, of course, there is no assertion comparable to the Turner Broadcasting claim that some speakers will be destroyed in the absence of the challenged law. True, the size and success of petitioners' parade makes it an enviable vehicle for the dissemination of GLIB's views, but that fact, *578 without more, would fall far short of supporting a claim that petitioners enjoy an abiding monopoly of access to spectators. See App. to Pet. for Cert. B9; Brief for Respondents 10 (citing trial court's finding that no other applicant has applied for the permit). Considering that GLIB presumably would have had a fair shot (under neutral criteria developed by the city) at obtaining a parade permit of its own, respondents have not shown that petitioners enjoy the capacity to "silence the voice of competing speakers," as cable operators do with respect to program providers who wish to reach subscribers, Turner Broadcasting, supra, at 656. Nor has any other legitimate interest been identified in support of applying the Massachusetts statute in this way to expressive activity like the parade. The statute, Mass. Gen. Laws § 272:98 (1992), is a piece of protective legislation that announces no purpose beyond the object both expressed and apparent in its provisions, which is to prevent any denial of access to (or discriminatory treatment in) public accommodations on proscribed grounds, including sexual orientation. On its face, the object of the law is to ensure by statute for gays and lesbians desiring to make use of public accommodations what the old common law promised to any member of the public wanting a meal at the inn, that accepting the usual terms of service, they will not be turned away merely on the proprietor's exercise of personal preference. When the law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own. But in the absence of some further, legitimate end, this object is merely to allow exactly what the general rule of speaker's autonomy forbids. It might, of course, have been argued that a broader objective is apparent: that the ultimate point of forbidding acts of discrimination toward certain classes is to produce a society free of the corresponding biases. Requiring access to a *579 speaker's message would thus be not an end in itself, but a means to produce speakers free of the biases, whose expressive conduct would be at least neutral toward the particular classes, obviating any future need for correction. But if this indeed is the point of applying the state law to expressive conduct, it is a decidedly fatal objective. Having availed itself of the public thoroughfares "for purposes of assembly [and] communicating thoughts between citizens," the Council is engaged in a use of the streets that has "from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Hague v. Committee for Industrial Organization, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.). Our tradition of free speech commands that a speaker who takes to the street corner to express his views in this way should be free from interference by the State based on the content of what he says. See, e. g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972); cf. H. Kalven, A Worthy Tradition 6-19 (1988); Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405, 1408-1409 (1986). The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis. See, e. g., Barnette, 319 U. S., at 642; Pacific Gas & Electric , 475 U. S., at 20. While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government. Far from supporting GLIB, then, Turner Broadcasting points to the reasons why the present application of the Massachusetts law can not be sustained. So do the two other principal authorities GLIB has cited. In PruneYard Shopping Center v. Robins, supra, to be sure, we *580 sustained a state law requiring the proprietors of shopping malls to allow visitors to solicit signatures on political petitions without a showing that the shopping mall owners would otherwise prevent the beneficiaries of the law from reaching an audience. But we found in that case that the proprietors were running "a business establishment that is open to the public to come and go as they please," that the solicitations would "not likely be identified with those of the owner," and that the proprietors could "expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand." 447 U.S., at 87. Also, in Pacific Gas & Electric, supra, at 12, we noted that PruneYard did not involve "any concern that access to this area might affect the shopping center owner's exercise of his own right to speak: the owner did not even allege that he objected to the content of the pamphlets . . . ." The principle of speaker's autonomy was simply not threatened in that case. New York State Club Assn. is also instructive by the contrast it provides. There, we turned back a facial challenge to a state antidiscrimination statute on the assumption that the expressive associational character of a dining club with over 400 members could be sufficiently attenuated to permit application of the law even to such a private organization, but we also recognized that the State did not prohibit exclusion of those whose views were at odds with positions espoused by the general club memberships. 487 U.S., at 13; see also Roberts, 468 U. S., at 627. In other words, although the association provided public benefits to which a State could ensure equal access, it was also engaged in expressive activity; compelled access to the benefit, which was upheld, did not trespass on the organization's message itself. If we were to analyze this case strictly along those lines, GLIB would lose. Assuming the parade to be large enough and a source of benefits (apart from its expression) that would generally justify a mandated access provision, GLIB could *581 nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members. IV Our holding today rests not on any particular view about the Council's message but on the Nation's commitment to protect freedom of speech. Disapproval of a private speaker's statement does not legitimize use of the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others. Accordingly, the judgment of the Supreme Judicial Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

The issue in this case is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey. We hold that such a mandate violates the First Amendment. *560 I March 17 is set aside for two celebrations in South Boston. As early as 1737, some people in Boston observed the feast of the apostle to Ireland, and since 1776 the day has marked the evacuation of royal troops and Loyalists from the city, prompted by the guns captured at Ticonderoga and set up on Dorchester Heights under General Washington's command. Washington himself reportedly drew on the earlier tradition in choosing "St. Patrick" as the response to "Boston," the password used in the colonial lines on evacuation day. See J. Crimmins, St. Patrick's Day: Its Celebration in New York and other American Places, 1737-1845, pp. 15, 19 (1902); see generally 1 H. Commager & R. Morris, The Spirit of `Seventy Six, pp. 8-183 (18); The American Book of Days 262-265 (J. Hatch ed., 3d ed. 1978). Although the General Court of Massachusetts did not officially designate March 17 as Evacuation Day until 1938, see Mass. Gen. Laws 6:12K (1992), the City Council of Boston had previously sponsored public celebrations of Evacuation Day, including notable commemorations on the centennial in 16, and on the 125th anniversary in 1901, with its parade, salute, concert, and fireworks display. See Celebration of the Centennial Anniversary of the Evacuation of Boston by the British Army (G. Ellis ed. 16); Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of Boston et al., Civ. Action No. 92-1518A (Super. Ct., Mass., Dec. 15, 1993), reprinted in App. to Pet. for Cert. B1, B8-B9. The tradition of formal sponsorship by the city came to an end in 1947, however, when Mayor James Michael Curley himself granted authority to organize and conduct the St. Patrick's Day-Evacuation Day Parade to the petitioner South Boston Allied War Veterans Council, an unincorporated association of individuals elected from various South Boston veterans groups. Every year since that time, the Council has applied for and received a permit for the parade, which at times has included as many as 20,000 marchers and drawn *561 up to 1 million watchers. No other applicant has ever applied for that permit. at B9. Through 1992, the city allowed the Council to use the city's official seal, and provided printing services as well as direct fundin In 1992, a number of gay, lesbian, and bisexual descendants of the Irish immigrants joined together with other supporters to form the respondent organization, GLIB, to march in the parade as a way to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals, to demonstrate that there are such men and women among those so descended, and to express their solidarity with like individuals who sought to march in New York's St. Patrick's Day Parade. at B3; App. 51. Although the Council denied GLIB's application to take part in the 1992 parade, GLIB obtained a state-court order to include its contingent, which marched "uneventfully" among that year's 10,000 participants and 750,000 spectators. App. to Pet. for Cert. B3, and n. 4. In 1993, after the Council had again refused to admit GLIB to the upcoming parade, the organization and some of its members filed this suit against the Council, the individual petitioner John J. "Wacko" Hurley, and the city of Boston, alleging violations of the State and Federal Constitutions and of the state public accommodations law, which prohibits "any distinction, discrimination or restriction on account of. sexual orientation relative to the admission of any person to, or treatment in any place of public accommodation, resort or amusement." Mass. Gen. Laws 272:98 (1992). After finding that "[f]or at least the past 47 years, the Parade has traveled the same basic route along the public streets of South Boston, providing entertainment, amusement, and recreation to participants and spectators alike," App. to Pet. for Cert. B5—B6, the state trial court ruled that the parade fell within the statutory definition of a public accommodation, which includes "any place which is open to and accepts or solicits the patronage of the general public *562 and, without limiting the generality of this definition, whether or not it be (6) a boardwalk or other public highway [or] (8) a place of public amusement, recreation, sport, exercise or entertainment," Mass. Gen. Laws 272:92A (1992). The court found that the Council had no written criteria and employed no particular procedures for admission, voted on new applications in batches, had occasionally admitted groups who simply showed up at the parade without having submitted an application, and did "not generally inquire into the specific messages or views of each applicant." App. to Pet. for Cert. B8—B9. The court consequently rejected the Council's contention that the parade was "private" (in the sense of being exclusive), holding instead that "the lack of genuine selectivity in choosing participants and sponsors demonstrates that the Parade is a public event." at B6. It found the parade to be "eclectic," containing a wide variety of "patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes," as well as conflicting messages. at B24. While noting that the Council had indeed excluded the Ku Klux Klan and ROAR (an anti busing group), at B7, it attributed little significance to these facts, concluding ultimately that "[t]he only common theme among the participants and sponsors is their public involvement in the Parade," at B24. The court rejected the Council's assertion that the exclusion of "groups with sexual themes merely formalized [the fact] that the Parade expresses traditional religious and social values," at B3, and found the Council's "final position [to be] that GLIB would be excluded because of its values and its message, i. e., its members' sexual orientation," at B4, n. 5, citing Tr. of Closing Ar 43, 51-52 (Nov. 23, 1993). This position, in the court's view, was not only violative of the public accommodations law but "paradoxical" as well, since "a proper celebration of St. Patrick's and Evacuation Day requires diversity and inclusiveness." App. to Pet. for *563 Cert. B24. The court rejected the notion that GLIB's admission would trample on the Council's First Amendment rights since the court understood that constitutional protection of any interest in expressive association would "requir[e] focus on a specific message, theme, or group" absent from the parade. "Given the [Council's] lack of selectivity in choosing participants and failure to circumscribe the marchers' message," the court found it "impossible to discern any specific expressive purpose entitling the Parade to protection under the First Amendment." at B25. It concluded that the parade is "not an exercise of [the Council's] constitutionally protected right of expressive association," but instead "an open recreational event that is subject to the public accommodations law." at B27. The court held that because the statute did not mandate inclusion of GLIB but only prohibited discrimination based on sexual orientation, any infringement on the Council's right to expressive association was only "incidental" and "no greater than necessary to accomplish the statute's legitimate purpose" of eradicating discrimination. at B25, citing Accordingly, it ruled that "GLIB is entitled to participate in the Parade on the same terms and conditions as other participants." App. to Pet. for Cert. B27.[1] The Supreme Judicial Court of Massachusetts affirmed, seeing nothing clearly in the trial judge's findings *564 that GLIB was excluded from the parade based on the sexual orientation of its members, that it was impossible to detect an expressive purpose in the parade, that there was no state action, and that the parade was a public accommodation within the meaning of 272:92A. Irish-American Gay, Lesbian and Bisexual Group of[2] Turning to petitioners' First Amendment claim that application of the public accommodations law to the parade violated their freedom of speech (as distinguished from their right to expressive association, raised in the trial court), the court's majority held that it need not decide on the particular First Amendment theory involved "because, as the [trial] judge found, it is `impossible to discern any specific expressive purpose entitling the Parade to protection under the First Amendment.' " The defendants had thus failed at the trial level "to demonstrate that the parade truly was an exercise of First Amendment rights," citing and on appeal nothing indicated to the majority of the Supreme Judicial Court that the trial judge's assessment of the evidence on this point was clearly 418 Mass., The court rejected petitioners' further challenge to the law as overbroad, holding that it does not, on its face, regulate speech, does not let public officials examine the content of speech, and would not be interpreted as reaching speech. Finally, the court rejected the challenge that the public accommodations law was unconstitutionally vague, holding that this case did not present an issue of speech and that the law gave persons of *565 ordinary intelligence a reasonable opportunity to know what was prohibited. -01. Justice Nolan dissented. In his view, the Council "does not need a narrow or distinct theme or message in its parade for it to be protected under the First Amendment." First, he wrote, even if the parade had no message at all, GLIB's particular message could not be forced upon it. citing Second, according to Justice Nolan, the trial judge clearly erred in finding the parade devoid of expressive 418 Mass., He would have held that the Council, like any expressive association, cannot be barred from excluding applicants who do not share the views the Council wishes to advance. -259, -04, citing Under either a pure speech or associational theory, the State's purpose of eliminating discrimination on the basis of sexual orientation, according to the dissent, could be achieved by more narrowly drawn means, such as ordering admission of individuals regardless of sexual preference, without taking the further step of prohibiting the Council from editing the views expressed in their parade. 418 Mass., 04. In Justice Nolan's opinion, because GLIB's message was separable from the status of its members, such a narrower order would accommodate the State's interest without the likelihood of infringing on the Council's First Amendment rights. Finally, he found clear error in the trial judge's equation of exclusion on the basis of GLIB's message with exclusion on the basis of its members' sexual orientation. To the dissent this appeared false in the light of "overwhelming evidence" that the Council objected to GLIB on account of its message and a dearth of testimony or documentation indicating that sexual orientation was the bar to admission. *. The dissent accordingly concluded that the Council had not even violated the State's public accommodations law. We granted certiorari to determine whether the requirement to admit a parade contingent expressing a message not of the private organizers' own choosing violates the First Amendment. We hold that it does and reverse. II Given the scope of the issues as originally joined in this case, it is worth noting some that have fallen aside in the course of the litigation, before reaching us. Although the Council presents us with a First Amendment claim, respondents do not. Neither do they press a claim that the Council's action has denied them equal protection of the laws in violation of the Fourteenth Amendment. While the guarantees of free speech and equal protection guard only against encroachment by the government and "erec[t] no shield against merely private conduct," ; see 5 respondents originally argued that the Council's conduct was not purely private, but had the character of state action. The trial court's review of the city's involvement led it to find otherwise, however, and although the Supreme Judicial Court did not squarely address the issue, it appears to have affirmed the trial court's decision on that point as well as the others. In any event, respondents have not brought that question up either in a cross-petition for certiorari or in their briefs filed in this Court. When asked at oral argument whether they challenged the conclusion by the Massachusetts' courts that no state action is involved in the parade, respondents' counsel answered that they "do not press that issue here." Tr. of Oral Ar 22. In this Court, then, their claim for inclusion in the parade rests solely on the Massachusetts public accommodations law. *567 There is no corresponding concession from the other side, however, and certainly not to the state courts' characterization of the parade as lacking the element of expression for purposes of the First Amendment. Accordingly, our review of petitioners' claim that their activity is indeed in the nature of protected speech carries with it a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court. See Bose The "requirement of independent appellate review is a rule of federal constitutional law," which does not limit our deference to a trial court on matters of witness credibility, Harte-Hanks Communications, but which generally requires us to "review the finding of facts by a State court. where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts," See also ; This obligation rests upon us simply because the reaches of the First Amendment are ultimately defined by the facts it is held to embrace, and we must thus decide for ourselves whether a given course of conduct falls on the near or far side of the line of constitutional protection. See Bose Even where a speech case has originally been tried in a federal court, subject to the provision of Federal Rule of Civil Procedure 52(a) that "[f]indings of fact shall not be set aside unless clearly" we are obliged to make a fresh examination of crucial facts. Hence, in this case, though we are confronted with the state courts' conclusion that the factual characteristics of petitioners' activity place it within the vast realm of nonexpressive conduct, our obligation is to "`make an independent examination *568 of the whole record,' so as to assure ourselves that th[is] judgment does not constitute a forbidden intrusion on the field of free expression." New York quoting III A If there were no reason for a group of people to march from here to there except to reach a destination, they could make the trip without expressing any message beyond the fact of the march itself. Some people might call such a procession a parade, but it would not be much of one. Real "[p]arades are public dramas of social relations, and in them performers define who can be a social actor and what subjects and ideas are available for communication and consideration." S. Davis, Parades and Power: Street Theatre in Nineteenth-Century Philadelphia 6 Hence, we use the word "parade" to indicate marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Indeed, a parade's dependence on watchers is so extreme that nowadays, as with Bishop Berkeley's celebrated tree, "if a parade or demonstration receives no media coverage, it may as well not have happened." Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches. In for example, petitioners had taken part in a procession to express their grievances to the city government, and we held that such a "march, if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment." Similarly, in at where petitioners had joined in a march of protest and pride, carrying placards and singing The Star Spangled Banner, we held that the activities "reflect an exercise of these basic constitutional *569 rights in their most pristine and classic form." Accord, The protected expression that inheres in a parade is not limited to its banners and songs, however, for the Constitution looks beyond written or spoken words as mediums of expression. Noting that "[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. of our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), at 642, wearing an armband to protest a war, displaying a red flag, and even "[m]arching, walking or parading" in uniforms displaying the swastika, National Socialist Party of As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," cf. would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll. Not many marches, then, are beyond the realm of expressive parades, and the South Boston celebration is not one of them. Spectators line the streets; people march in costumes and uniforms, carrying flags and banners with all sorts of messages (e. "England get out of Ireland," "Say no to drugs"); marching bands and pipers play; floats are pulled along; and the whole show is broadcast over Boston television. See Record, Exh. 84 (video). To be sure, we agree with the state courts that in spite of excluding some applicants, the Council is rather lenient in admitting participants. But a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive *570 subject matter of the speech. Nor, under our precedent, does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication. Cable operators, for example, are engaged in protected speech activities even when they only select programming originally produced by others. Turner System, For that matter, the presentation of an edited compilation of speech generated by other persons is a staple of most newspapers' opinion pages, which, of course, fall squarely within the core of First Amendment security, Miami Herald Publishing as does even the simple selection of a paid noncommercial advertisement for inclusion in a daily paper, see New York — 266. The selection of contingents to make a parade is entitled to similar protection. Respondents' participation as a unit in the parade was equally expressive. GLIB was formed for the very purpose of marching in it,as the trial court found, in order to celebrate its members' identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York parade. App. to Pet. for Cert. B3. The organization distributed a fact sheet describing the members' intentions, App. A51, and the record otherwise corroborates the expressive nature of GLIB's participation, see Record, Exh. 84 (video); App. A67 (photograph). In 1993, members of GLIB marched behind a shamrock-strewn banner with the simple inscription "Irish American Gay, Lesbian and Bisexual Group of Boston." GLIB understandably seeks to communicate its ideas as part of the existing parade, rather than staging one of its own. *571 B The Massachusetts public accommodations law under which respondents brought suit has a venerable history. At common law, innkeepers, smiths, and others who "made profession of a public employment," were prohibited from refusing, without good reason, to serve a customer. Lane v. Cotton, 12 Mod. 472, 484-485, 88 En Rep. 1458, 1464-1465 (K. B. 1701) (Holt, C. J.); see ; As one of the 19th-century English judges put it, the rule was that "[t]he innkeeper is not to select his guests[;] [h]e has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants." Rex v. Ivens, 7 Car. & P. 2, 219, 173 En Rep. 94, 96 (N. P. 1835); M. Konvitz & T. A Century of Civil Rights 160 (1961). After the Civil War, the Commonwealth of Massachusetts was the first State to codify this principle to ensure access to public accommodations regardless of race. See Act Forbidding Unjust Discrimination on Account of Color or Race, 1865 Mass. Acts, ch. (May 16, 1865); Konvitz & ; Lerman & Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N. Y. U. Rev. L. & Soc. Change 215, 238 (1978); Fox, Discrimination and Antidiscrimination in Massachusetts Law, 44 B. U. L. Rev. 30, 58 In prohibiting discrimination "in any licensed inn, in any public place of amusement, public conveyance or public meeting," 1865 Mass. Acts, ch. 1, the original statute already expanded upon the common law, which had not conferred any right of access to places of public amusement, Lerman & As with many public accommodations statutes across the Nation, the legislature continued to *572 broaden the scope of legislation, to the point that the law today prohibits discrimination on the basis of "race, color, religious creed, national origin, sex, sexual orientation deafness, blindness or any physical or mental disability or ancestry" in "the admission of any person to, or treatment in any place of public accommodation, resort or amusement." Mass. Gen. Laws 272:98 (1992). Provisions like these are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments. See, e. New York State Club Assn., ; — 626; Heart of Atlanta Motel, -262 Nor is this statute unusual in any obvious way, since it does not, on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds. C In the case before us, however, the Massachusetts law has been applied in a peculiar way. Its enforcement does not address any dispute about the participation of openly gay, lesbian, or bisexual individuals in various units admitted to the parade. Petitioners disclaim any intent to exclude homosexuals as such, and no individual member of GLIB claims to have been excluded from parading as a member of any group that the Council has approved to march. Instead, the disagreement goes to the admission of GLIB as its own parade unit carrying its own banner. See App. to Pet. for Cert. B26—B27, and n. 28. Since every participating unit affects the message conveyed by the private organizers, the state courts' application of the statute produced an order essentially requiring petitioners to alter the expressive content *573 of their parade. Although the state courts spoke of the parade as a place of public accommodation, see, e. N.E.2d, 97-1298, once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts' application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message. "Since all speech inherently involves choices of what to say and what to leave unsaid," Pacific Gas & (emphasis in original), one important manifestation of the principle of free speech is that one who chooses to speak may also decide "what not to say," Although the State may at times "prescribe what shall be orthodox in commercial advertising" by requiring the dissemination of "purely factual and uncontroversial information," ; see Pittsburgh Press 4 U.S. 376, outside that context it may not compel affirmance of a belief with which the speaker disagrees, see Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid, ; subject, perhaps, to the permissive law of defamation, New York ; ; Hustler Magazine, Nor is the rule's benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. Its point is simply the point of all speech protection, which is to shield just those choices of content that in someone's eyes are misguided, or even hurtful. See ; Petitioners' claim to the benefit of this principle of autonomy to control one's own speech is as sound as the South Boston parade is expressive. Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day. Even if this view gives the Council credit for a more considered judgment than it actively made, the Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another. The message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified *575 social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control. Respondents argue that any tension between this rule and the Massachusetts law falls short of unconstitutionality, citing the most recent of our cases on the general subject of compelled access for expressive purposes, Turner System, There we reviewed regulations requiring cable operators to set aside channels for designated broadcast signals, and applied only intermediate scrutiny. Respondents contend on this authority that admission of GLIB to the parade would not threaten the core principle of speaker's autonomy because the Council, like a cable operator, is merely "a conduit" for the speech of participants in the parade "rather than itself a speaker." Brief for Respondents 21. But this metaphor is not apt here, because GLIB's participation would likely be perceived as having resulted from the Council's customary determination about a unit admitted to the parade, that its message was worthy of presentation and quite possibly of support as well. A newspaper, similarly, "is more than a passive receptacle or conduit for news, comment, and advertising," and we have held that "[t]he choice of material. and the decisions made as to limitations on the size and content and treatment of public issues—whether fair or unfair—constitute the exercise of editorial control and judgment" upon which the State can not intrude. Tornillo, 418 U. S., at Indeed, in Pacific Gas & we invalidated coerced access to the envelope of a private utility's bill and newsletter because the utility "may be forced either to appear to agree with [the intruding leaflet] or to respond." The plurality made the further point that if "the government *576 [were] freely able to compel speakers to propound political messages with which they disagree, protection [of a speaker's freedom] would be empty, for the government could require speakers to affirm in one breath that which they deny in the next." Thus, when dissemination of a view contrary to one's own is forced upon a speaker intimately connected with the communication advanced, the speaker's right to autonomy over the message is compromised. In Turner we found this problem absent in the cable context, because "[g]iven cable's long history of serving as a conduit for broadcast signals, there appears little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator." We stressed that the viewer is frequently apprised of the identity of the broadcaster whose signal is being received via cable and that it is "common practice for broadcasters to disclaim any identity of viewpoint between the management and the speakers who use the broadcast facility." ; see (noting that Congress "might conceivably obligate cable operators to act as common carriers for some of their channels"). Parades and demonstrations, in contrast, are not understood to be so neutrally presented or selectively viewed. Unlike the programming offered on various channels by a cable network, the parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience. Although each parade unit generally identifies itself, each is understood to contribute something to a common theme, and accordingly there is no customary practice whereby private sponsors disavow "any identity of viewpoint" between themselves and the selected participants. Practice follows practicability here, for such disclaimers would be quite curious in a moving *577 parade. Cf. PruneYard Shopping Without deciding on the precise significance of the likelihood of misattribution, it nonetheless becomes clear that in the context of an expressive parade, as with a protest march, the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole. An additional distinction between Turner and this case points to the fundamental weakness of any attempt to justify the state-court order's limitation on the Council's autonomy as a speaker. A cable is not only a conduit for speech produced by others and selected by cable operators for transmission, but a franchised channel giving monopolistic opportunity to shut out some speakers. This power gives rise to the Government's interest in limiting monopolistic autonomy in order to allow for the survival of broadcasters who might otherwise be silenced and consequently destroyed. The Government's interest in Turner was not the alteration of speech, but the survival of speakers. In thus identifying an interest going beyond abridgment of speech itself, the defenders of the law at issue in Turner addressed the threshold requirement of any review under the Speech Clause, whatever the ultimate level of scrutiny, that a challenged restriction on speech serve a compelling, or at least important, governmental object, see, e. Pacific Gas & ; Turner ; United In this case, of course, there is no assertion comparable to the Turner claim that some speakers will be destroyed in the absence of the challenged law. True, the size and success of petitioners' parade makes it an enviable vehicle for the dissemination of GLIB's views, but that fact, *578 without more, would fall far short of supporting a claim that petitioners enjoy an abiding monopoly of access to spectators. See App. to Pet. for Cert. B9; Brief for Respondents 10 (citing trial court's finding that no other applicant has applied for the permit). Considering that GLIB presumably would have had a fair shot (under neutral criteria developed by the city) at obtaining a parade permit of its own, respondents have not shown that petitioners enjoy the capacity to "silence the voice of competing speakers," as cable operators do with respect to program providers who wish to reach subscribers, Turner Nor has any other legitimate interest been identified in support of applying the Massachusetts statute in this way to expressive activity like the parade. The statute, Mass. Gen. Laws 272:98 (1992), is a piece of protective legislation that announces no purpose beyond the object both expressed and apparent in its provisions, which is to prevent any denial of access to (or discriminatory treatment in) public accommodations on proscribed grounds, including sexual orientation. On its face, the object of the law is to ensure by statute for gays and lesbians desiring to make use of public accommodations what the old common law promised to any member of the public wanting a meal at the inn, that accepting the usual terms of service, they will not be turned away merely on the proprietor's exercise of personal preference. When the law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own. But in the absence of some further, legitimate end, this object is merely to allow exactly what the general rule of speaker's autonomy forbids. It might, of course, have been argued that a broader objective is apparent: that the ultimate point of forbidding acts of discrimination toward certain classes is to produce a society free of the corresponding biases. Requiring access to a *579 speaker's message would thus be not an end in itself, but a means to produce speakers free of the biases, whose expressive conduct would be at least neutral toward the particular classes, obviating any future need for correction. But if this indeed is the point of applying the state law to expressive conduct, it is a decidedly fatal objective. Having availed itself of the public thoroughfares "for purposes of assembly [and] communicating thoughts between citizens," the Council is engaged in a use of the streets that has "from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." (opinion of J.). Our tradition of free speech commands that a speaker who takes to the street corner to express his views in this way should be free from interference by the State based on the content of what he says. See, e. Police Dept. of ; cf. H. Kalven, A Worthy Tradition 6-19 ; Fiss, Free Speech and Social Structure, The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis. See, e. ; Pacific Gas & While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government. Far from supporting GLIB, then, Turner points to the reasons why the present application of the Massachusetts law can not be sustained. So do the two other principal authorities GLIB has cited. In PruneYard Shopping to be sure, we *580 sustained a state law requiring the proprietors of shopping malls to allow visitors to solicit signatures on political petitions without a showing that the shopping mall owners would otherwise prevent the beneficiaries of the law from reaching an audience. But we found in that case that the proprietors were running "a business establishment that is open to the public to come and go as they please," that the solicitations would "not likely be identified with those of the owner," and that the proprietors could "expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand." 447 U.S., at Also, in Pacific Gas & we noted that PruneYard did not involve "any concern that access to this area might affect the shopping center owner's exercise of his own right to speak: the owner did not even allege that he objected to the content of the pamphlets" The principle of speaker's autonomy was simply not threatened in that case. New York State Club Assn. is also instructive by the contrast it provides. There, we turned back a facial challenge to a state antidiscrimination statute on the assumption that the expressive associational character of a dining club with over 400 members could be sufficiently attenuated to permit application of the law even to such a private organization, but we also recognized that the State did not prohibit exclusion of those whose views were at odds with positions espoused by the general club memberships. 4 U.S., at ; see also In other words, although the association provided public benefits to which a State could ensure equal access, it was also engaged in expressive activity; compelled access to the benefit, which was upheld, did not trespass on the organization's message itself. If we were to analyze this case strictly along those lines, GLIB would lose. Assuming the parade to be large enough and a source of benefits (apart from its expression) that would generally justify a mandated access provision, GLIB could *581 nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members. IV Our holding today rests not on any particular view about the Council's message but on the Nation's commitment to protect freedom of speech. Disapproval of a private speaker's statement does not legitimize use of the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others. Accordingly, the judgment of the Supreme Judicial Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

Justice Thomas

majority

Samson v. California

2006-06-19

https://www.courtlistener.com/opinion/145640/samson-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/145640/

2005-071

California law provides that every prisoner eligible for release on state parole "shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." Cal. Penal Code Ann. § 3067(a) (West 2000). We granted certiorari to decide whether a suspicionless search, conducted under the authority of this statute, violates the Constitution. We hold that it does not. I In September 2002, petitioner Donald Curtis Samson was on state parole in California, following a conviction for being a felon in possession of a firearm. On September 6, 2002, Officer Alex Rohleder of the San Bruno Police Department observed petitioner walking down a street with a woman and a child. Based on a prior contact with petitioner, Officer Rohleder was aware that petitioner was on parole and believed that he was facing an at-large warrant. Accordingly, Officer Rohleder stopped petitioner and asked him whether he had an outstanding parole warrant. Petitioner responded that there was no outstanding warrant and that he "was in good standing with his parole agent." Brief for Petitioner 4. Officer Rohleder confirmed, by radio dispatch, that petitioner was on parole and that he did not have an outstanding warrant. Nevertheless, pursuant to Cal. Penal Code Ann. § 3067(a) (West 2000) and based solely on petitioner's *847 status as a parolee, Officer Rohleder searched petitioner. During the search, Officer Rohleder found a cigarette box in petitioner's left breast pocket. Inside the box he found a plastic baggie containing methamphetamine. The State charged petitioner with possession of methamphetamine pursuant to Cal. Health & Safety Code Ann. § 11377(a) (West 1991). The trial court denied petitioner's motion to suppress the methamphetamine evidence, finding that Cal. Penal Code Ann. § 3067(a) (West 2000) authorized the search and that the search was not "arbitrary or capricious." App. 62-63 (Proceedings on Motion to Supress). A jury convicted petitioner of the possession charge, and the trial court sentenced him to seven years' imprisonment. The California Court of Appeal affirmed. Relying on People v. Reyes, 19 Cal. 4th 743, 968 P.2d 445 (1998), the court held that suspicionless searches of parolees are lawful under California law; that "`[s]uch a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing'"; and that the search in this case was not arbitrary, capricious, or harassing. No. A102394 (Ct. App. Cal., 1st App. Dist., Oct. 14, 2004), App. 12-14. We granted certiorari, 545 U.S. 1165 (2005), to answer a variation of the question this Court left open in United States v. Knights, 534 U.S. 112, 120, n. 6 (2001)—whether a condition of release can so diminish or eliminate a released prisoner's reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the Fourth Amendment.[1] Answering that question in the affirmative today, we affirm the judgment of the California Court of Appeal. *848 II "[U]nder our general Fourth Amendment approach" we "examin[e] the totality of the circumstances" to determine whether a search is reasonable within the meaning of the Fourth Amendment. Id., at 118 (internal quotation marks omitted). Whether a search is reasonable "is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Id., at 118-119 (internal quotation marks omitted). We recently applied this approach in United States v. Knights. In that case, California law required Knights, as a probationer, to "`[s]ubmit his . . . person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.'" Id., at 114 (brackets in original). Several days after Knights had been placed on probation, police suspected that he had been involved in several incidents of arson and vandalism. Based upon that suspicion and pursuant to the search condition of his probation, a police officer conducted a warrantless search of Knights' apartment and found arson and drug paraphernalia. Id., at 115-116. We concluded that the search of Knights' apartment was reasonable. In evaluating the degree of intrusion into Knights' privacy, we found Knights' probationary status "salient," id., at 118, observing that "[p]robation is `one point . . . on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service,'" id., at 119 (quoting Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)). Cf. Hudson v. Palmer, 468 U.S. 517, 530 (1984) (holding that prisoners have no reasonable expectation of privacy). We further observed that, by virtue of their status alone, probationers "`do not enjoy "the absolute liberty to which every *849 citizen is entitled,"'" Knights, supra, at 119 (quoting Griffin, supra, at 874, in turn quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)), justifying the "impos[ition] [of] reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens," Knights, supra, at 119. We also considered the facts that Knights' probation order clearly set out the probation search condition, and that Knights was clearly informed of the condition. See 534 U.S., at 119. We concluded that under these circumstances, Knights' expectation of privacy was significantly diminished. See id., at 119-120. We also concluded that probation searches, such as the search of Knights' apartment, are necessary to the promotion of legitimate governmental interests. Noting the State's dual interest in integrating probationers back into the community and combating recidivism, see id., at 120-121, we credited the "`assumption'" that, by virtue of his status, a probationer "`is more likely than the ordinary citizen to violate the law,'" id., at 120 (quoting Griffin, supra, at 880). We further found that "probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply." Knights, 534 U. S., at 120. We explained that the State did not have to ignore the reality of recidivism or suppress its interests in "protecting potential victims of criminal enterprise" for fear of running afoul of the Fourth Amendment. Id., at 121. Balancing these interests, we held that "[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy *850 interests is reasonable." Ibid. Because the search at issue in Knights was predicated on both the probation search condition and reasonable suspicion, we did not reach the question whether the search would have been reasonable under the Fourth Amendment had it been solely predicated upon the condition of probation. Id., at 120, n. 6. Our attention is directed to that question today, albeit in the context of a parolee search. III As we noted in Knights, parolees are on the "continuum" of state-imposed punishments. Id., at 119 (internal quotation marks omitted). On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment. As this Court has pointed out, "parole is an established variation on imprisonment of convicted criminals. . . . The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence." Morrissey, supra, at 477. "In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements." Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365 (1998). See also United States v. Reyes, 283 F.3d 446, 461 (CA2 2002) ("[F]ederal supervised release, . . . in contrast to probation, is meted out in addition to, not in lieu of, incarceration" (internal quotation marks omitted)); United States v. Cardona, 903 F.2d 60, 63 (CA1 1990) ("[O]n the Court's continuum of possible punishments, parole is the stronger medicine; ergo, parolees enjoy even less of the average citizen's absolute liberty than do probationers" (citations and internal quotation marks omitted)).[2] *851 California's system of parole is consistent with these observations: A California inmate may serve his parole period either in physical custody, or elect to complete his sentence out of physical custody and subject to certain conditions. Cal. Penal Code Ann. § 3060.5 (West 2000). Under the latter option, an inmate-turned-parolee remains in the legal custody of the California Department of Corrections through the remainder of his term, § 3056, and must comply with all of the terms and conditions of parole, including mandatory drug tests, restrictions on association with felons or gang members, and mandatory meetings with parole officers, Cal. Code Regs., tit. 15, § 2512 (2005); Cal. Penal Code Ann. § 3067 (West 2000). See also Morrissey, supra, at 478 (discussing other permissible terms and conditions of parole). General conditions of parole also require a parolee to report to his assigned parole officer immediately upon release, inform the parole officer within 72 hours of any change in employment status, request permission to travel a distance of more than 50 miles from the parolee's home, and refrain from criminal conduct and possession of firearms, specified weapons, or knives unrelated to employment. Cal. Code Regs., tit. 15, *852 § 2512. Parolees may also be subject to special conditions, including psychiatric treatment programs, mandatory abstinence from alcohol, residence approval, and "[a]ny other condition deemed necessary by the Board [of Parole Hearings] or the Department [of Corrections and Rehabilitation] due to unusual circumstances." § 2513. The extent and reach of these conditions clearly demonstrate that parolees like petitioner have severely diminished expectations of privacy by virtue of their status alone. Additionally, as we found "salient" in Knights with respect to the probation search condition, the parole search condition under California law—requiring inmates who opt for parole to submit to suspicionless searches by a parole officer or other peace officer "at any time," Cal. Penal Code Ann. § 3067(a) (West 2000)—was "clearly expressed" to petitioner. Knights, 534 U. S., at 119. He signed an order submitting to the condition and thus was "unambiguously" aware of it. Ibid. In Knights, we found that acceptance of a clear and unambiguous search condition "significantly diminished Knights' reasonable expectation of privacy." Id., at 120. Examining the totality of the circumstances pertaining to petitioner's status as a parolee, "an established variation on imprisonment," Morrissey, 408 U. S., at 477, including the plain terms of the parole search condition, we conclude that petitioner did not have an expectation of privacy that society would recognize as legitimate.[3] *853 The State's interests, by contrast, are substantial. This Court has repeatedly acknowledged that a State has an "`overwhelming interest'" in supervising parolees because "parolees. . . are more likely to commit future criminal offenses." Pennsylvania Bd. of Probation and Parole, 524 U. S., at 365 (explaining that the interest in combating recidivism "is the very premise behind the system of close parole supervision"). Similarly, this Court has repeatedly acknowledged that a State's interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. See Griffin, 483 U. S., at 879; Knights, supra, at 121. The empirical evidence presented in this case clearly demonstrates the significance of these interests to the State of California. As of November 30, 2005, California had over 130,000 released parolees. California's parolee population has a 68- to 70-percent recidivism rate. See California Attorney General, Crime in California 37 (Apr. 2001) (explaining that 68 percent of adult parolees are returned to prison, 55 percent for a parole violation, 13 percent for the commission of a new felony offense); J. Petersilia, Challenges of Prisoner Reentry and Parole in California, 12 California Policy Research Center Brief, p. 2 (June 2000), available at http://www.ucop.edu/cprc/parole.pdf *854 (as visited June 15, 2006, and available in Clerk of Court's case file) ("70% of the state's paroled felons reoffend within 18 months—the highest recidivism rate in the nation"). This Court has acknowledged the grave safety concerns that attend recidivism. See Ewing v. California, 538 U.S. 11, 26 (2003) (plurality opinion) ("Recidivism is a serious public safety concern in California and throughout the Nation"). As we made clear in Knights, the Fourth Amendment does not render the States powerless to address these concerns effectively. See 534 U.S., at 121. Contrary to petitioner's contention, California's ability to conduct suspicionless searches of parolees serves its interest in reducing recidivism, in a manner that aids, rather than hinders, the reintegration of parolees into productive society. In California, an eligible inmate serving a determinate sentence may elect parole when the actual days he has served plus statutory time credits equal the term imposed by the trial court, Cal. Penal Code Ann. §§ 2931, 2933, 3000(b)(1) (West 2000), irrespective of whether the inmate is capable of integrating himself back into productive society. As the recidivism rate demonstrates, most parolees are ill prepared to handle the pressures of reintegration. Thus, most parolees require intense supervision. The California Legislature has concluded that, given the number of inmates the State paroles and its high recidivism rate, a requirement that searches be based on individualized suspicion would undermine the State's ability to effectively supervise parolees and protect the public from criminal acts by reoffenders. This conclusion makes eminent sense. Imposing a reasonable suspicion requirement, as urged by petitioner, would give parolees greater opportunity to anticipate searches and conceal criminality. See Knights, supra, at 120; Griffin, 483 U. S., at 879. This Court concluded that the incentive-to-conceal concern justified an "intensive" system for supervising probationers in Griffin, id., at 875. That concern applies *855 with even greater force to a system of supervising parolees. See United States v. Reyes, 283 F. 3d, at 461 (observing that the Griffin rationale "appl[ies] a fortiori" to "federal supervised release, which, in contrast to probation, is `meted out in addition to, not in lieu of, incarceration'"); United States v. Crawford, 372 F.3d 1048, 1077 (CA9 2004) (Kleinfeld, J., concurring) (explaining that parolees, in contrast to probationers, "have been sentenced to prison for felonies and released before the end of their prison terms" and are "deemed to have acted more harmfully than anyone except those felons not released on parole"); Hudson, 468 U. S., at 529 (observing that it would be "naive" to institute a system of "`planned random searches'" as that would allow prisoners to "anticipate" searches, thus defeating the purpose of random searches). Petitioner observes that the majority of States and the Federal Government have been able to further similar interests in reducing recidivism and promoting reintegration, despite having systems that permit parolee searches based upon some level of suspicion. Thus, petitioner contends, California's system is constitutionally defective by comparison. Petitioner's reliance on the practices of jurisdictions other than California, however, is misplaced. That some States and the Federal Government require a level of individualized suspicion is of little relevance to our determination whether California's supervisory system is drawn to meet its needs and is reasonable, taking into account a parolee's substantially diminished expectation of privacy.[4] *856 Nor is there merit to the argument that California's parole search law permits "a blanket grant of discretion untethered by any procedural safeguards," post, at 857 (Stevens, J., dissenting). The concern that California's suspicionless search system gives officers unbridled discretion to conduct searches, thereby inflicting dignitary harms that arouse strong resentment in parolees and undermine their ability to reintegrate into productive society, is belied by California's prohibition on "arbitrary, capricious or harassing" searches. See Reyes, 19 Cal. 4th, at 752, 753-754, 968 P.2d, at 450, 451; People v. Bravo, 43 Cal. 3d 600, 610, 738 P.2d 336, 342 (1987) (probation); see also Cal. Penal Code Ann. § 3067(d) (West 2000) ("It is not the intent of the Legislature to authorize law enforcement officers to conduct searches for the sole purpose of harassment").[5] The dissent's claim that parolees under California law are subject to capricious searches conducted at the unchecked "whim" of law enforcement officers, post, at 858-859, 860, ignores this prohibition. Likewise, petitioner's concern that California's suspicionless search law frustrates reintegration efforts by permitting intrusions into *857 the privacy interests of third parties is also unavailing because that concern would arise under a suspicion-based regime as well. IV Thus, we conclude that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Accordingly, we affirm the judgment of the California Court of Appeal. It is so ordered.

California law provides that every prisoner eligible for release on state parole "shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." Cal. Penal Code Ann. 3067(a) (West 2000). We granted certiorari to decide whether a suspicionless search, conducted under the authority of this statute, violates the Constitution. We hold that it does not. I In September petitioner Donald Curtis Samson was on state parole in California, following a conviction for being a felon in possession of a firearm. On September 6, Officer Alex Rohleder of the San Bruno Police Department observed petitioner walking down a street with a woman and a child. Based on a prior contact with petitioner, Officer Rohleder was aware that petitioner was on parole and believed that he was facing an at-large warrant. Accordingly, Officer Rohleder stopped petitioner and asked him whether he had an outstanding parole warrant. Petitioner responded that there was no outstanding warrant and that he "was in good standing with his parole agent." Brief for Petitioner 4. Officer Rohleder confirmed, by radio dispatch, that petitioner was on parole and that he did not have an outstanding warrant. Nevertheless, pursuant to Cal. Penal Code Ann. 3067(a) (West 2000) and based solely on petitioner's *847 status as a parolee, Officer Rohleder searched petitioner. During the search, Officer Rohleder found a cigarette box in petitioner's left breast pocket. Inside the box he found a plastic baggie containing methamphetamine. The State charged petitioner with possession of methamphetamine pursuant to Cal. Health & Safety Code Ann. 11377(a) (West 1991). The trial court denied petitioner's motion to suppress the methamphetamine evidence, finding that Cal. Penal Code Ann. 3067(a) (West 2000) authorized the search and that the search was not "arbitrary or capricious." App. 62- (Proceedings on Motion to Supress). A jury convicted petitioner of the possession charge, and the trial court sentenced him to seven years' imprisonment. The California Court of Appeal affirmed. Relying on the court held that suspicionless searches of parolees are lawful under California law; that "`[s]uch a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing'"; and that the search in this case was not arbitrary, capricious, or harassing. No. A102394 App. 12-14. We granted certiorari, to answer a variation of the question this Court left open in United —whether a condition of release can so diminish or eliminate a released prisoner's reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the Fourth Amendment.[1] Answering that question in the affirmative today, we affirm the judgment of the California Court of Appeal. *848 II "[U]nder our general Fourth Amendment approach" we "examin[e] the totality of the circumstances" to determine whether a search is reasonable within the meaning of the Fourth Amendment. Whether a search is reasonable "is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." -119 We recently applied this approach in United In that case, California law required as a probationer, to "`[s]ubmit his person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.'" Several days after had been placed on probation, police suspected that he had been involved in several incidents of arson and vandalism. Based upon that suspicion and pursuant to the search condition of his probation, a police officer conducted a warrantless search of ' apartment and found arson and drug paraphernalia. We concluded that the search of ' apartment was reasonable. In evaluating the degree of intrusion into ' privacy, we found ' probationary status "salient," observing that "[p]robation is `one point on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service,'" ). Cf. We further observed that, by virtue of their status alone, probationers "`do not enjoy "the absolute liberty to which every *849 citizen is entitled,"'" ), justifying the "impos[ition] [of] reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens," We also considered the facts that ' probation order clearly set out the probation search condition, and that was clearly informed of the condition. See 534 U.S., We concluded that under these circumstances, ' expectation of privacy was significantly diminished. See -120. We also concluded that probation searches, such as the search of ' apartment, are necessary to the promotion of legitimate governmental interests. Noting the State's dual interest in integrating probationers back into the community and combating recidivism, see we credited the "`assumption'" that, by virtue of his status, a probationer "`is more likely than the ordinary citizen to violate the law,'" (quoting ). We further found that "probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply." 534 U. S., We explained that the State did not have to ignore the reality of recidivism or suppress its interests in "protecting potential victims of criminal enterprise" for fear of running afoul of the Fourth Amendment. Balancing these interests, we held that "[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy *850 interests is reasonable." Because the search at issue in was predicated on both the probation search condition and reasonable suspicion, we did not reach the question whether the search would have been reasonable under the Fourth Amendment had it been solely predicated upon the condition of probation. at Our attention is directed to that question today, albeit in the context of a parolee search. III As we noted in parolees are on the "continuum" of state-imposed punishments. On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment. As this Court has pointed out, "parole is an established variation on imprisonment of convicted criminals. The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence." "In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements." Pennsylvania Bd. of Probation and See also United ("[F]ederal supervised release, in contrast to probation, is meted out in addition to, not in lieu of, incarceration" ); United[2] *851 California's system of parole is consistent with these observations: A California inmate may serve his parole period either in physical custody, or elect to complete his sentence out of physical custody and subject to certain conditions. Cal. Penal Code Ann. 3060.5 (West 2000). Under the latter option, an inmate-turned-parolee remains in the legal custody of the California Department of Corrections through the remainder of his term, 3056, and must comply with all of the terms and conditions of parole, including mandatory drug tests, restrictions on association with felons or gang members, and mandatory meetings with parole officers, Cal. Code Regs., tit. 15, 2512 ; Cal. Penal Code Ann. 3067 (West 2000). See also General conditions of parole also require a parolee to report to his assigned parole officer immediately upon release, inform the parole officer within 72 hours of any change in employment status, request permission to travel a distance of more than 50 miles from the parolee's home, and refrain from criminal conduct and possession of firearms, specified weapons, or knives unrelated to employment. Cal. Code Regs., tit. 15, *852 2512. es may also be subject to special conditions, including psychiatric treatment programs, mandatory abstinence from alcohol, residence approval, and "[a]ny other condition deemed necessary by the Board [of Hearings] or the Department [of Corrections and Rehabilitation] due to unusual circumstances." 2513. The extent and reach of these conditions clearly demonstrate that parolees like petitioner have severely diminished expectations of privacy by virtue of their status alone. Additionally, as we found "salient" in with respect to the probation search condition, the parole search condition under California law—requiring inmates who opt for parole to submit to suspicionless searches by a parole officer or other peace officer "at any time," Cal. Penal Code Ann. 3067(a) (West 2000)—was "clearly expressed" to petitioner. 534 U. S., He signed an order submitting to the condition and thus was "unambiguously" aware of it. In we found that acceptance of a clear and unambiguous search condition "significantly diminished ' reasonable expectation of privacy." Examining the totality of the circumstances pertaining to petitioner's status as a parolee, "an established variation on imprisonment," 408 U. S., including the plain terms of the parole search condition, we conclude that petitioner did not have an expectation of privacy that society would recognize as legitimate.[3] *853 The State's interests, by contrast, are substantial. This Court has repeatedly acknowledged that a State has an "`overwhelming interest'" in supervising parolees because "parolees. are more likely to commit future criminal offenses." Pennsylvania Bd. of Probation and 524 U. S., at Similarly, this Court has repeatedly acknowledged that a State's interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. See ; The empirical evidence presented in this case clearly demonstrates the significance of these interests to the State of California. As of November 30, 2005, California had over 130,000 released parolees. California's parolee population has a 68- to 70-percent recidivism rate. See California Attorney General, Crime in California 37 (explaining that 68 percent of adult parolees are returned to prison, 55 percent for a parole violation, 13 percent for the commission of a new felony offense); J. Petersilia, Challenges of Prisoner Reentry and in California, 12 California Policy Research Center Brief, p. 2 (June 2000), available at http://www.ucop.edu/cprc/parole.pdf *854 (as visited June 15, 2006, and available in Clerk of Court's case file) ("70% of the state's paroled felons reoffend within 18 months—the highest recidivism rate in the nation"). This Court has acknowledged the grave safety concerns that attend recidivism. See ("Recidivism is a serious public safety concern in California and throughout the Nation"). As we made clear in the Fourth Amendment does not render the States powerless to address these concerns effectively. See 534 U.S., Contrary to petitioner's contention, California's ability to conduct suspicionless searches of parolees serves its interest in reducing recidivism, in a manner that aids, rather than hinders, the reintegration of parolees into productive society. In California, an eligible inmate serving a determinate sentence may elect parole when the actual days he has served plus statutory time credits equal the term imposed by the trial court, Cal. Penal Code Ann. 2931, 2933, 3000(b)(1) (West 2000), irrespective of whether the inmate is capable of integrating himself back into productive society. As the recidivism rate demonstrates, most parolees are ill prepared to handle the pressures of reintegration. Thus, most parolees require intense supervision. The California Legislature has concluded that, given the number of inmates the State paroles and its high recidivism rate, a requirement that searches be based on individualized suspicion would undermine the State's ability to effectively supervise parolees and protect the public from criminal acts by reoffenders. This conclusion makes eminent sense. Imposing a reasonable suspicion requirement, as urged by petitioner, would give parolees greater opportunity to anticipate searches and conceal criminality. See ; This Court concluded that the incentive-to-conceal concern justified an "intensive" system for supervising probationers in That concern applies *855 with even greater force to a system of supervising parolees. See United 283 F. 3d, at (observing that the rationale "appl[ies] a fortiori" to "federal supervised release, which, in contrast to probation, is `meted out in addition to, not in lieu of, incarceration'"); United (explaining that parolees, in contrast to probationers, "have been sentenced to prison for felonies and released before the end of their prison terms" and are "deemed to have acted more harmfully than anyone except those felons not released on parole"); Hudson, Petitioner observes that the majority of States and the Federal Government have been able to further similar interests in reducing recidivism and promoting reintegration, despite having systems that permit parolee searches based upon some level of suspicion. Thus, petitioner contends, California's system is constitutionally defective by comparison. Petitioner's reliance on the practices of jurisdictions other than California, however, is misplaced. That some States and the Federal Government require a level of individualized suspicion is of little relevance to our determination whether California's supervisory system is drawn to meet its needs and is reasonable, taking into account a parolee's substantially diminished expectation of privacy.[4] *856 Nor is there merit to the argument that California's parole search law permits "a blanket grant of discretion untethered by any procedural safeguards," post, at 857 (Stevens, J., dissenting). The concern that California's suspicionless search system gives officers unbridled discretion to conduct searches, thereby inflicting dignitary harms that arouse strong resentment in parolees and undermine their ability to reintegrate into productive society, is belied by California's prohibition on "arbitrary, capricious or harassing" searches. See 451; ; see also Cal. Penal Code Ann. 3067(d) (West 2000) ("It is not the intent of the Legislature to authorize law enforcement officers to conduct searches for the sole purpose of harassment").[5] The dissent's claim that parolees under California law are subject to capricious searches conducted at the unchecked "whim" of law enforcement officers, post, at 858-859, 860, ignores this prohibition. Likewise, petitioner's concern that California's suspicionless search law frustrates reintegration efforts by permitting intrusions into *857 the privacy interests of third parties is also unavailing because that concern would arise under a suspicion-based regime as well. IV Thus, we conclude that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Accordingly, we affirm the judgment of the California Court of Appeal. It is so ordered.

Justice Stevens

dissenting

Samson v. California

2006-06-19

https://www.courtlistener.com/opinion/145640/samson-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/145640/

2005-071

Our prior cases have consistently assumed that the Fourth Amendment provides some degree of protection for probationers and parolees. The protection is not as robust as that afforded to ordinary citizens; we have held that probationers' lowered expectation of privacy may justify their warrantless search upon reasonable suspicion of wrongdoing, see United States v. Knights, 534 U.S. 112 (2001). We have also recognized that the supervisory responsibilities of probation officers, who are required to provide "`individualized counseling'" and to monitor their charges' progress, Griffin v. Wisconsin, 483 U.S. 868, 876-877 (1987), and who are in a unique position to judge "how close a supervision the probationer requires," id., at 876, may give rise to special needs justifying departures from Fourth Amendment strictures. See ibid. ("Although a probation officer is not an impartial magistrate, neither is he the police officer who normally conducts searches against the ordinary citizen"). But neither Knights nor Griffin supports a regime of suspicionless searches, conducted pursuant to a blanket grant of discretion untethered by any procedural safeguards, by law enforcement personnel who have no special interest in the welfare of the parolee or probationer. What the Court sanctions today is an unprecedented curtailment of liberty. Combining faulty syllogism with circular *858 reasoning, the Court concludes that parolees have no more legitimate an expectation of privacy in their persons than do prisoners. However superficially appealing that parity in treatment may seem, it runs roughshod over our precedent. It also rests on an intuition that fares poorly under scrutiny. And once one acknowledges that parolees do have legitimate expectations of privacy beyond those of prisoners, our Fourth Amendment jurisprudence does not permit the conclusion, reached by the Court here for the first time, that a search supported by neither individualized suspicion nor "special needs" is nonetheless "reasonable." The suspicionless search is the very evil the Fourth Amendment was intended to stamp out. See Boyd v. United States, 116 U.S. 616, 625-630 (1886); see also, e. g., Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). The pre-Revolutionary "writs of assistance," which permitted roving searches for contraband, were reviled precisely because they "placed `the liberty of every man in the hands of every petty officer.'" Boyd, 116 U. S., at 625. While individualized suspicion "is not an `irreducible' component of reasonableness" under the Fourth Amendment, Edmond, 531 U. S., at 37 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976)), the requirement has been dispensed with only when programmatic searches were required to meet a "`special need' . . . divorced from the State's general interest in law enforcement," Ferguson v. Charleston, 532 U.S. 67, 79 (2001); see Edmond, 531 U. S., at 37; see also Griffin, 483 U. S., at 873 ("Although we usually require that a search be undertaken only pursuant to a warrant (and thus supported by probable cause, as the Constitution says warrants must be), . . . we have permitted exceptions when `special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable'"). Not surprisingly, the majority does not seek to justify the search of petitioner on "special needs" grounds. Although the Court has in the past relied on special needs to uphold *859 warrantless searches of probationers, id., at 873, 880, it has never gone so far as to hold that a probationer or parolee may be subjected to full search at the whim of any law enforcement officer he happens to encounter, whether or not the officer has reason to suspect him of wrongdoing. Griffin, after all, involved a search by a probation officer that was supported by reasonable suspicion. The special role of probation officers was critical to the analysis; "we deal with a situation," the Court explained, "in which there is an ongoing supervisory relationship—and one that is not, or at least not entirely, adversarial—between the object of the search and the decisionmaker." Id., at 879. The State's interest or "special need," as articulated in Griffin, was an interest in supervising the wayward probationer's reintegration into society—not, or at least not principally, the general law enforcement goal of detecting crime, see ante, at 853.[1] It is no accident, then, that when we later upheld the search of a probationer by a law enforcement officer (again, *860 based on reasonable suspicion), we forwent any reliance on the special needs doctrine. See Knights, 534 U.S. 112. Even if the supervisory relationship between a probation officer and her charge may properly be characterized as one giving rise to needs "divorced from the State's general interest in law enforcement," Ferguson, 532 U. S., at 79; but see id., at 79, n. 15, the relationship between an ordinary law enforcement officer and a probationer unknown to him may not. "None of our special needs precedents has sanctioned the routine inclusion of law enforcement, both in the design of the policy and in using arrests, either threatened or real, to implement the system designed for the special needs objectives." Id., at 88 (Kennedy, J., concurring in judgment). Ignoring just how "closely guarded" is that "category of constitutionally permissible suspicionless searches," Chandler v. Miller, 520 U.S. 305, 309 (1997), the Court for the first time upholds an entirely suspicionless search unsupported by any special need. And it goes further: In special needs cases we have at least insisted upon programmatic safeguards designed to ensure evenhandedness in application; if individualized suspicion is to be jettisoned, it must be replaced with measures to protect against the state actor's unfettered discretion. See, e. g., Delaware v. Prouse, 440 U.S. 648, 654-655 (1979) (where a special need "precludes insistence upon `some quantum of individualized suspicion,' other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not `subject to the discretion of the official in the field'" (quoting Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 532 (1967); footnote omitted)); United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975) ("[T]he reasonableness requirement of the Fourth Amendment demands something more than the broad and unlimited discretion sought by the Government"). Here, by contrast, there are no policies in place—no "standards, guidelines, or procedures," Prouse, 440 U. S., at 650—to rein in officers and furnish a *861 bulwark against the arbitrary exercise of discretion that is the height of unreasonableness. The Court is able to make this unprecedented move only by making another. Coupling the dubious holding of Hudson v. Palmer, 468 U.S. 517 (1984), with the bald statement that "parolees have fewer expectations of privacy than probationers," ante, at 850, the Court two-steps its way through a faulty syllogism and, thus, avoids the application of Fourth Amendment principles altogether. The logic, apparently, is this: Prisoners have no legitimate expectation of privacy; parolees are like prisoners; therefore, parolees have no legitimate expectation of privacy. The conclusion is remarkable not least because we have long embraced its opposite.[2] It also rests on false premises. First, it is simply not true that a parolee's status, vis-à-vis either the State or the Constitution, is tantamount to that of a prisoner or even materially distinct from that of a probationer. See Morrissey v. Brewer, 408 U.S. 471, 482 (1972) ("Though the State properly subjects [a parolee] to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison"). A parolee, like a probationer, is set free in the world subject to restrictions intended to facilitate supervision and guard against antisocial behavior. As with probation, "the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements." Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365 (1998). Certainly, parole differs from probation insofar as parole is "`meted out in addition *862 to, not in lieu of, incarceration.'" Ante, at 850 (quoting United States v. Reyes, 283 F.3d 446, 461 (CA2 2002)). And, certainly, parolees typically will have committed more serious crimes—ones warranting a prior term of imprisonment—than probationers. The latter distinction, perhaps, would support the conclusion that a State has a stronger interest in supervising parolees than it does in supervising probationers. But see United States v. Williams, 417 F.3d 373, 376, n. 1 (CA3 2005) ("`[T]here is no constitutional difference between probation and parole for purposes of the [F]ourth [A]mendment'"). But why either distinction should result in refusal to acknowledge as legitimate, when harbored by parolees, the same expectation of privacy that probationers reasonably may harbor is beyond fathom. In any event, the notion that a parolee legitimately expects only so much privacy as a prisoner is utterly without foundation. Hudson v. Palmer does stand for the proposition that "[a] right of privacy in traditional Fourth Amendment terms" is denied individuals who are incarcerated. 468 U.S., at 527. But this is because it "is necessary, as a practical matter, to accommodate a myriad of `institutional needs and objectives' of prison facilities, . . . chief among which is internal security." Id., at 524; see id., at 538 (O'Connor, J., concurring) ("I agree that the government's compelling interest in prison safety, together with the necessarily ad hoc judgments required of prison officials, make prison cell searches and seizures appropriate for categorical treatment" [3]); see also Treasury Employees v. Von Raab, 489 U.S. 656, 680 (1989) (Scalia, J., dissenting). These "institutional needs"—safety of inmates and guards, "internal order," and sanitation, Hudson, 468 U. S., at 527-528—manifestly *863 do not apply to parolees. As discussed above and in Griffin, other state interests may warrant certain intrusions into a parolee's privacy, but Hudson's rationale cannot be mapped blindly onto the situation with which we are presented in this case. Nor is it enough, in deciding whether someone's expectation of privacy is "legitimate," to rely on the existence of the offending condition or the individual's notice thereof. Cf. ante, at 852. The Court's reasoning in this respect is entirely circular. The mere fact that a particular State refuses to acknowledge a parolee's privacy interest cannot mean that a parolee in that State has no expectation of privacy that society is willing to recognize as legitimate—especially when the measure that invades privacy is both the subject of the Fourth Amendment challenge and a clear outlier. With only one or two arguable exceptions, neither the Federal Government nor any other State subjects parolees to searches of the kind to which petitioner was subjected. And the fact of notice hardly cures the circularity; the loss of a subjective expectation of privacy would play "no meaningful role" in analyzing the legitimacy of expectations, for example, "if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry." Smith v. Maryland, 442 U.S. 735, 740-741, n. 5 (1979).[4] *864 Threaded through the Court's reasoning is the suggestion that deprivation of Fourth Amendment rights is part and parcel of any convict's punishment. See ante, at 848-850.[5] If a person may be subject to random and suspicionless searches in prison, the Court seems to assume, then he cannot complain when he is subject to the same invasion outside of prison, so long as the State still can imprison him. Punishment, though, is not the basis on which Hudson was decided. (Indeed, it is settled that a prison inmate "`retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'" Turner v. Safley, 482 U.S. 78, 95 (1987).) Nor, to my knowledge, have we ever sanctioned the use of any search as a punitive measure. Instead, the question in every case must be whether the balance of legitimate expectations of privacy, on the one hand, and the State's interests in conducting the relevant search, on the other, justifies dispensing with the warrant and probable-cause requirements that are otherwise dictated by the Fourth Amendment. That balance is not the same in prison as it is out. We held in Knights—without recourse to Hudson—that the balance favored allowing the State to conduct searches based on reasonable suspicion. Never before have we plunged below that floor absent a demonstration of "special needs." Had the State imposed as a condition of parole a requirement that petitioner submit to random searches by his parole officer, who is "supposed to have in mind the welfare of the *865 [parolee]" and guide the parolee's transition back into society, Griffin, 483 U. S., at 876-877, the condition might have been justified either under the special needs doctrine or because at least part of the requisite "reasonable suspicion" is supplied in this context by the individual-specific knowledge gained through the supervisory relationship. See id., at 879 (emphasizing probation office's ability to "assess probabilities in the light of its knowledge of [the probationer's] life, character, and circumstances"). Likewise, this might have been a different case had a court or parole board imposed the condition at issue based on specific knowledge of the individual's criminal history and projected likelihood of reoffending, or if the State had had in place programmatic safeguards to ensure evenhandedness. See supra, at 860. Under either of those scenarios, the State would at least have gone some way toward averting the greatest mischief wrought by officials' unfettered discretion. But the search condition here is imposed on all parolees—whatever the nature of their crimes, whatever their likelihood of recidivism, and whatever their supervisory needs—without any programmatic procedural protections.[6] The Court seems to acknowledge that unreasonable searches "inflic[t] dignitary harms that arouse strong resentment in parolees and undermine their ability to reintegrate into productive society." Ante, at 856; see Terry v. Ohio, 392 U.S. 1, 19, 29 (1968). It is satisfied, however, that the *866 California courts' prohibition against "`arbitrary, capricious or harassing'" searches suffices to avert those harms—which are of course counterproductive to the State's purported aim of rehabilitating former prisoners and reintegrating them into society. See ante, at 856 (citing People v. Reyes, 19 Cal. 4th 743, 968 P.2d 445 (1998)). I am unpersuaded. The requirement of individualized suspicion, in all its iterations, is the shield the Framers selected to guard against the evils of arbitrary action, caprice, and harassment. To say that those evils may be averted without that shield is, I fear, to pay lipservice to the end while withdrawing the means.[7] Respectfully, I dissent.

Our prior cases have consistently assumed that the Fourth Amendment provides some degree of protection for probationers and parolees. The protection is not as robust as that afforded to ordinary citizens; we have held that probationers' lowered expectation of privacy may justify their warrantless search upon reasonable suspicion of wrongdoing, see United We have also recognized that the supervisory responsibilities of probation officers, who are required to provide "`individualized counseling'" and to monitor their charges' progress, and who are in a unique position to judge "how close a supervision the probationer requires," may give rise to special needs justifying departures from Fourth Amendment strictures. See But neither Knights nor supports a regime of suspicionless searches, conducted pursuant to a blanket grant of discretion untethered by any procedural safeguards, by law enforcement personnel who have no special interest in the welfare of the parolee or probationer. What the Court sanctions today is an unprecedented curtailment of liberty. Combining faulty syllogism with circular *858 reasoning, the Court concludes that parolees have no more legitimate an expectation of privacy in their persons than do prisoners. However superficially appealing that parity in treatment may seem, it runs roughshod over our precedent. It also rests on an intuition that fares poorly under scrutiny. And once one acknowledges that parolees do have legitimate expectations of privacy beyond those of prisoners, our Fourth Amendment jurisprudence does not permit the conclusion, reached by the Court here for the first time, that a search supported by neither individualized suspicion nor "special needs" is nonetheless "reasonable." The suspicionless search is the very evil the Fourth Amendment was intended to stamp out. See ; see also, e. g., The pre-Revolutionary "writs of assistance," which permitted roving searches for contraband, were reviled precisely because they "placed `the liberty of every man in the hands of every petty officer.'" While individualized suspicion "is not an `irreducible' component of reasonableness" under the Fourth Amendment, 531 U. S., at ), the requirement has been dispensed with only when programmatic searches were required to meet a "`special need' divorced from the State's general interest in law enforcement," ; see 531 U. S., at ; see also we have permitted exceptions when `special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable'"). Not surprisingly, the majority does not seek to justify the search of petitioner on "special needs" grounds. Although the Court has in the past relied on special needs to uphold *859 warrantless searches of probationers, it has never gone so far as to hold that a probationer or parolee may be subjected to full search at the whim of any law enforcement officer he happens to encounter, whether or not the officer has reason to suspect him of wrongdoing. after all, involved a search by a probation officer that was supported by reasonable suspicion. The special role of probation officers was critical to the analysis; "we deal with a situation," the Court explained, "in which there is an ongoing supervisory relationship—and one that is not, or at least not entirely, adversarial—between the object of the search and the decisionmaker." at 8. The State's interest or "special need," as articulated in was an interest in supervising the wayward probationer's reintegration into society—not, or at least not principally, the general law enforcement goal of detecting crime, see ante, at 853.[1] It is no accident, then, that when we later upheld the search of a probationer by a law enforcement officer (again, *860 based on reasonable suspicion), we forwent any reliance on the special needs doctrine. See Knights, Even if the supervisory relationship between a probation officer and her charge may properly be characterized as one giving rise to needs "divorced from the State's general interest in law enforcement," U. S., at ; but see at n. 15, the relationship between an ordinary law enforcement officer and a probationer unknown to him may not. "None of our special needs precedents has sanctioned the routine inclusion of law enforcement, both in the design of the policy and in using arrests, either threatened or real, to implement the system designed for the special needs objectives." Ignoring just how "closely guarded" is that "category of constitutionally permissible suspicionless searches," the Court for the first time upholds an entirely suspicionless search unsupported by any special need. And it goes further: In special needs cases we have at least insisted upon programmatic safeguards designed to ensure evenhandedness in application; if individualized suspicion is to be jettisoned, it must be replaced with measures to protect against the state actor's unfettered discretion. See, e. g., (19) ; footnote omitted)); United Here, by contrast, there are no policies in place—no "standards, guidelines, or procedures," —to rein in officers and furnish a *861 bulwark against the arbitrary exercise of discretion that is the height of unreasonableness. The Court is able to make this unprecedented move only by making another. Coupling the dubious holding of with the bald statement that "parolees have fewer expectations of privacy than probationers," ante, at 850, the Court two-steps its way through a faulty syllogism and, thus, avoids the application of Fourth Amendment principles altogether. The logic, apparently, is this: Prisoners have no legitimate expectation of privacy; parolees are like prisoners; therefore, parolees have no legitimate expectation of privacy. The conclusion is remarkable not least because we have long embraced its opposite.[2] It also rests on false premises. First, it is simply not true that a parolee's status, vis-à-vis either the State or the Constitution, is tantamount to that of a prisoner or even materially distinct from that of a probationer. See A parolee, like a probationer, is set free in the world subject to restrictions intended to facilitate supervision and guard against antisocial behavior. As with probation, "the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements." Pennsylvania Bd. of Probation and Certainly, parole differs from probation insofar as parole is "`meted out in addition *862 to, not in lieu of, incarceration.'" Ante, at 850 ). And, certainly, parolees typically will have committed more serious crimes—ones warranting a prior term of imprisonment—than probationers. The latter distinction, perhaps, would support the conclusion that a State has a stronger interest in supervising parolees than it does in supervising probationers. But see United 417 F.3d 3, 6, n. 1 But why either distinction should result in refusal to acknowledge as legitimate, when harbored by parolees, the same expectation of privacy that probationers reasonably may harbor is beyond fathom. In any event, the notion that a parolee legitimately expects only so much privacy as a prisoner is utterly without foundation. does stand for the proposition that "[a] right of privacy in traditional Fourth Amendment terms" is denied individuals who are But this is because it "is necessary, as a practical matter, to accommodate a myriad of `institutional needs and objectives' of prison facilities, chief among which is internal security." ; see ("I agree that the government's compelling interest in prison safety, together with the necessarily ad hoc judgments required of prison officials, make prison cell searches and seizures appropriate for categorical treatment" [3]); see also Treasury These "institutional needs"—safety of inmates and guards, "internal order," and sanitation, -528—manifestly *863 do not apply to parolees. As discussed above and in other state interests may warrant certain intrusions into a parolee's privacy, but 's rationale cannot be mapped blindly onto the situation with which we are presented in this case. Nor is it enough, in deciding whether someone's expectation of privacy is "legitimate," to rely on the existence of the offending condition or the individual's notice thereof. Cf. ante, at 852. The Court's reasoning in this respect is entirely circular. The mere fact that a particular State refuses to acknowledge a parolee's privacy interest cannot mean that a parolee in that State has no expectation of privacy that society is willing to recognize as legitimate—especially when the measure that invades privacy is both the subject of the Fourth Amendment challenge and a clear outlier. With only one or two arguable exceptions, neither the Federal Government nor any other State subjects parolees to searches of the kind to which petitioner was subjected. And the fact of notice hardly cures the circularity; the loss of a subjective expectation of privacy would play "no meaningful role" in analyzing the legitimacy of expectations, for example, "if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry." (19).[4] *864 Threaded through the Court's reasoning is the suggestion that deprivation of Fourth Amendment rights is part and parcel of any convict's punishment. See ante, at 848-850.[5] If a person may be subject to random and suspicionless searches in prison, the Court seems to assume, then he cannot complain when he is subject to the same invasion outside of prison, so long as the State still can imprison him. Punishment, though, is not the basis on which was decided.) Nor, to my knowledge, have we ever sanctioned the use of any search as a punitive measure. Instead, the question in every case must be whether the balance of legitimate expectations of privacy, on the one hand, and the State's interests in conducting the relevant search, on the other, justifies dispensing with the warrant and probable-cause requirements that are otherwise dictated by the Fourth Amendment. That balance is not the same in prison as it is out. We held in Knights—without recourse to —that the balance favored allowing the State to conduct searches based on reasonable suspicion. Never before have we plunged below that floor absent a demonstration of "special needs." Had the State imposed as a condition of parole a requirement that petitioner submit to random searches by his parole officer, who is "supposed to have in mind the welfare of the *865 [parolee]" and guide the parolee's transition back into society, 483 U. S., at the condition might have been justified either under the special needs doctrine or because at least part of the requisite "reasonable suspicion" is supplied in this context by the individual-specific knowledge gained through the supervisory relationship. See at 8 Likewise, this might have been a different case had a court or parole board imposed the condition at issue based on specific knowledge of the individual's criminal history and projected likelihood of reoffending, or if the State had had in place programmatic safeguards to ensure evenhandedness. See Under either of those scenarios, the State would at least have gone some way toward averting the greatest mischief wrought by officials' unfettered discretion. But the search condition here is imposed on all parolees—whatever the nature of their crimes, whatever their likelihood of recidivism, and whatever their supervisory needs—without any programmatic procedural protections.[6] The Court seems to acknowledge that unreasonable searches "inflic[t] dignitary harms that arouse strong resentment in parolees and undermine their ability to reintegrate into productive society." Ante, at 856; see It is satisfied, however, that the *866 California courts' prohibition against "`arbitrary, capricious or harassing'" searches suffices to avert those harms—which are of course counterproductive to the State's purported aim of rehabilitating former prisoners and reintegrating them into society. See ante, at 856 ). I am unpersuaded. The requirement of individualized suspicion, in all its iterations, is the shield the Framers selected to guard against the evils of arbitrary action, caprice, and harassment. To say that those evils may be averted without that shield is, I fear, to pay lipservice to the end while withdrawing the means.[7] Respectfully, I dissent.

Justice Stevens

majority

Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton

2002-06-17

https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/

https://www.courtlistener.com/api/rest/v3/clusters/121151/

2001-063

Petitioners contend that a village ordinance making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violates the First Amendment. Through this facial challenge, we consider the door-to-door canvassing regulation not only as it applies to religious proselytizing, but also to anonymous political speech and the distribution of handbills. I Petitioner Watchtower Bible and Tract Society of New York, Inc., coordinates the preaching activities of Jehovah's Witnesses throughout the United States and publishes Bibles and religious periodicals that are widely distributed. Petitioner Wellsville, Ohio, Congregation of Jehovah's Witnesses, Inc., supervises the activities of approximately 59 members in a part of Ohio that includes the Village of Stratton (Village). Petitioners offer religious literature without cost to anyone interested in reading it. They allege that they do not solicit contributions or orders for the sale of merchandise or services, but they do accept donations. Petitioners brought this action against the Village and its mayor in the United States District Court for the Southern *154 District of Ohio, seeking an injunction against the enforcement of several sections of Ordinance No. 1998-5 regulating uninvited peddling and solicitation on private property in the Village. Petitioners' complaint alleged that the ordinance violated several constitutional rights, including the free exercise of religion, free speech, and the freedom of the press. App. 10a—44a. The District Court conducted a bench trial at which evidence of the administration of the ordinance and its effect on petitioners was introduced. Section 116.01 prohibits "canvassers" and others from "going in and upon" private residential property for the purpose of promoting any "cause" without first having obtained a permit pursuant to § 116.03.[1] That section provides that any canvasser who intends to go on private property to promote a cause must obtain a "Solicitation Permit" from the office of the mayor; there is no charge for the permit, and apparently one is issued routinely after an applicant *155 fills out a fairly detailed "Solicitor's Registration Form."[2] The canvasser is then authorized to go upon premises that he listed on the registration form, but he must carry the permit upon his person and exhibit it whenever requested to do so by a police officer or by a resident.[3] The ordinance *156 sets forth grounds for the denial or revocation of a permit,[4] but the record before us does not show that any application has been denied or that any permit has been revoked. Petitioners did not apply for a permit. A section of the ordinance that petitioners do not challenge establishes a procedure by which a resident may prohibit solicitation even by holders of permits. If the resident files a "No Solicitation Registration Form" with the mayor, and also posts a "No Solicitation" sign on his property, no uninvited canvassers may enter his property, unless they are specifically authorized to do so in the "No Solicitation Registration Form" itself.[5] Only 32 of the Village's 278 residents *157 filed such forms. Each of the forms in the record contains a list of 19 suggested exceptions;[6] on one form, a resident checked 17 exceptions, thereby excluding only "Jehovah's Witnesses" and "Political Candidates" from the list of invited canvassers. Although Jehovah's Witnesses do not consider themselves to be "solicitors" because they make no charge for their literature or their teaching, leaders of the church testified at trial that they would honor "no solicitation" signs in the Village. They also explained at trial that they did not apply for a permit because they derive their authority to *158 preach from Scripture.[7] "For us to seek a permit from a municipality to preach we feel would almost be an insult to God." App. 321a. Petitioners introduced some evidence that the ordinance was the product of the mayor's hostility to their ministry, but the District Court credited the mayor's testimony that it had been designed to protect the privacy rights of the Village residents, specifically to protect them "from `flim flam' con artists who prey on small town populations." 61 F. Supp. 2d 734, 736 (SD Ohio 1999). Nevertheless, the court concluded that the terms of the ordinance applied to the activities of petitioners as well as to "business or political canvassers," id., at 737, 738. The District Court upheld most provisions of the ordinance as valid, content-neutral regulations that did not infringe on petitioners' First Amendment rights. The court did, however, require the Village to accept narrowing constructions of three provisions. First, the court viewed the requirement in § 116.03(b)(5) that the applicant must list the specific address of each residence to be visited as potentially invalid, but cured by the Village's agreement to attach to the form a list of willing residents. Id., at 737. Second, it held that petitioners could comply with § 116.03(b)(6) by merely stating their purpose as "the Jehovah's Witness ministry." Id., at 738. And third, it held that § 116.05, which limited canvassing to the hours before 5 p.m., was invalid on its face and should be replaced with a provision referring to "reasonable hours of the day." Id., at 739. As so modified, the court held the ordinance constitutionally valid as applied to petitioners and dismissed the case. *159 The Court of Appeals for the Sixth Circuit affirmed. 240 F.3d 553 (2001). It held that the ordinance was "content neutral and of general applicability and therefore subject to intermediate scrutiny." Id., at 560. It rejected petitioners' reliance on the discussion of laws affecting both the free exercise of religion and free speech in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990),[8] because that "language was dicta and therefore not binding." 240 F.3d, at 561. It also rejected petitioners' argument that the ordinance is overbroad because it impairs the right to distribute pamphlets anonymously that we recognized in McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995), reasoning that "the very act of going door-to-door requires the canvassers to reveal a portion of their identities." 240 F.3d, at 563. The Court of Appeals concluded that the interests promoted by the Village—"protecting its residents from fraud and undue annoyance"—as well as the harm that it seeks to prevent—"criminals posing as canvassers in order to defraud its residents"—though "by no means overwhelming," were sufficient to justify the regulation. Id., at 565— 566. The court distinguished earlier cases protecting the Jehovah's Witnesses ministry because those cases either involved *160 a flat prohibition on the dissemination of ideas, e. g., Martin v. City of Struthers, 319 U.S. 141 (1943), or an ordinance that left the issuance of a permit to the discretion of a municipal officer, see, e. g., Cantwell v. Connecticut, 310 U.S. 296, 302 (1940). In dissent, Judge Gilman expressed the opinion that by subjecting noncommercial solicitation to the permit requirements, the ordinance significantly restricted a substantial quantity of speech unrelated to the Village's interest in eliminating fraud and unwanted annoyance. In his view, the Village "failed to demonstrate either the reality of the harm or the efficacy of the restriction." 240 F.3d, at 572. We granted certiorari to decide the following question: "Does a municipal ordinance that requires one to obtain a permit prior to engaging in the door-to-door advocacy of a political cause and to display upon demand the permit, which contains one's name, violate the First Amendment protection accorded to anonymous pamphleteering or discourse?" 534 U.S. 971 (2001); Pet. for Cert. i.[9] II For over 50 years, the Court has invalidated restrictions on door-to-door canvassing and pamphleteering.[10] It is more than historical accident that most of these cases involved First Amendment challenges brought by Jehovah's Witnesses, because door-to-door canvassing is mandated by their religion. As we noted in Murdock v. Pennsylvania, *161 319 U.S. 105, 108 (1943), the Jehovah's Witnesses "claim to follow the example of Paul, teaching `publickly, and from house to house.' Acts 20:20. They take literally the mandate of the Scriptures, `Go ye into all the world, and preach the gospel to every creature.' Mark 16:15. In doing so they believe that they are obeying a commandment of God." Moreover, because they lack significant financial resources, the ability of the Witnesses to proselytize is seriously diminished by regulations that burden their efforts to canvass door-to-door. Although our past cases involving Jehovah's Witnesses, most of which were decided shortly before and during World War II, do not directly control the question we confront today, they provide both a historical and analytical backdrop for consideration of petitioners' First Amendment claim that the breadth of the Village's ordinance offends the First Amendment.[11] Those cases involved petty offenses that raised constitutional questions of the most serious magnitude—questions that implicated the free exercise of religion, the freedom of speech, and the freedom of the press. From these decisions, several themes emerge that guide our consideration of the ordinance at issue here. First, the cases emphasize the value of the speech involved. For example, in Murdock v. Pennsylvania, the Court noted that "hand distribution of religious tracts is an age-old form of missionary evangelism—as old as the history of printing presses. It has been a potent force in various religious movements down through the years. . . . This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion. *162 It also has the same claim as the others to the guarantees of freedom of speech and freedom of the press." Id., at 108-109. In addition, the cases discuss extensively the historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas. In Schneider v. State (Town of Irvington), 308 U.S. 147 (1939), the petitioner was a Jehovah's Witness who had been convicted of canvassing without a permit based on evidence that she had gone from house to house offering to leave books or booklets. Writing for the Court, Justice Roberts stated that "pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees." Id., at 164 (emphasis added). Despite the emphasis on the important role that door-todoor canvassing and pamphleteering has played in our constitutional tradition of free and open discussion, these early cases also recognized the interests a town may have in some form of regulation, particularly when the solicitation of money is involved. In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court held that an ordinance requiring Jehovah's Witnesses to obtain a license before soliciting door to door was invalid because the issuance of the license depended on the exercise of discretion by a city official. Our opinion recognized that "a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds *163 for any purpose, to establish his identity and his authority to act for the cause which he purports to represent." Id., at 306. Similarly, in Martin v. City of Struthers, the Court recognized crime prevention as a legitimate interest served by these ordinances and noted that "burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later." 319 U.S., at 144. Despite recognition of these interests as legitimate, our precedent is clear that there must be a balance between these interests and the effect of the regulations on First Amendment rights. We "must `be astute to examine the effect of the challenged legislation' and must `weigh the circumstances and . . . appraise the substantiality of the reasons advanced in support of the regulation.' " Ibid. (quoting Schneider, 308 U. S., at 161). Finally, the cases demonstrate that efforts of the Jehovah's Witnesses to resist speech regulation have not been a struggle for their rights alone. In Martin, after cataloging the many groups that rely extensively upon this method of communication, the Court summarized that "[d]oor to door distribution of circulars is essential to the poorly financed causes of little people." 319 U.S., at 144-146. That the Jehovah's Witnesses are not the only "little people" who face the risk of silencing by regulations like the Village's is exemplified by our cases involving nonreligious speech. See, e. g., Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980); Hynes v. Mayor and Council of Oradell, 425 U.S. 610 (1976); Thomas v. Collins, 323 U.S. 516 (1945). In Thomas, the issue was whether a labor leader could be required to obtain a permit before delivering a speech to prospective union members. After reviewing the Jehovah's Witnesses cases discussed above, the Court observed: *164 "As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly. . . . . . . . . "If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment." Id., at 539-540. Although these World War II-era cases provide guidance for our consideration of the question presented, they do not answer one preliminary issue that the parties adamantly dispute. That is, what standard of review ought we use in assessing the constitutionality of this ordinance. We find it unnecessary, however, to resolve that dispute because the breadth of speech affected by the ordinance and the nature of the regulation make it clear that the Court of Appeals erred in upholding it. III The Village argues that three interests are served by its ordinance: the prevention of fraud, the prevention of crime, *165 and the protection of residents' privacy. We have no difficulty concluding, in light of our precedent, that these are important interests that the Village may seek to safeguard through some form of regulation of solicitation activity. We must also look, however, to the amount of speech covered by the ordinance and whether there is an appropriate balance between the affected speech and the governmental interests that the ordinance purports to serve. The text of the Village's ordinance prohibits "canvassers" from going on private property for the purpose of explaining or promoting any "cause," unless they receive a permit and the residents visited have not opted for a "no solicitation" sign. Had this provision been construed to apply only to commercial activities and the solicitation of funds, arguably the ordinance would have been tailored to the Village's interest in protecting the privacy of its residents and preventing fraud. Yet, even though the Village has explained that the ordinance was adopted to serve those interests, it has never contended that it should be so narrowly interpreted. To the contrary, the Village's administration of its ordinance unquestionably demonstrates that the provisions apply to a significant number of noncommercial "canvassers" promoting a wide variety of "causes." Indeed, on the "No Solicitation Forms" provided to the residents, the canvassers include "Camp Fire Girls," "Jehovah's Witnesses," "Political Candidates," "Trick or Treaters during Halloween Season," and "Persons Affiliated with Stratton Church." The ordinance unquestionably applies, not only to religious causes, but to political activity as well. It would seem to extend to "residents casually soliciting the votes of neighbors,"[12] or ringing doorbells to enlist support for employing a more efficient garbage collector. The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive—not only to *166 the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor's office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition. Three obvious examples illustrate the pernicious effect of such a permit requirement. First, as our cases involving distribution of unsigned handbills demonstrate,[13] there are a significant number of persons who support causes anonymously.[14] "The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible." McIntyre v. Ohio Elections Comm'n, 514 U. S., at 341-342. The requirement that a canvasser must be identified in a permit application filed in the mayor's office and available for public inspection necessarily results in a surrender of that anonymity. Although it is true, as the Court of Appeals suggested, see 240 F.3d, at 563, that persons who are known to the resident reveal their allegiance to a group or cause when they present themselves at the front door to advocate an issue or to deliver a handbill, the Court of Appeals erred in concluding that the ordinance does not implicate anonymity interests. The Sixth Circuit's reasoning is undermined by *167 our decision in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999). The badge requirement that we invalidated in Buckley applied to petition circulators seeking signatures in face-to-face interactions. The fact that circulators revealed their physical identities did not foreclose our consideration of the circulators' interest in maintaining their anonymity. In the Village, strangers to the resident certainly maintain their anonymity, and the ordinance may preclude such persons from canvassing for unpopular causes. Such preclusion may well be justified in some situations—for example, by the special state interest in protecting the integrity of a ballot-initiative process, see ibid., or by the interest in preventing fraudulent commercial transactions. The Village ordinance, however, sweeps more broadly, covering unpopular causes unrelated to commercial transactions or to any special interest in protecting the electoral process. Second, requiring a permit as a prior condition on the exercise of the right to speak imposes an objective burden on some speech of citizens holding religious or patriotic views. As our World War II-era cases dramatically demonstrate, there are a significant number of persons whose religious scruples will prevent them from applying for such a license. There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official. Third, there is a significant amount of spontaneous speech that is effectively banned by the ordinance. A person who made a decision on a holiday or a weekend to take an active part in a political campaign could not begin to pass out handbills until after he or she obtained the required permit. Even a spontaneous decision to go across the street and urge a neighbor to vote against the mayor could not lawfully be implemented without first obtaining the mayor's permission. *168 In this respect, the regulation is analogous to the circulation licensing tax the Court invalidated in Grosjean v. American Press Co., 297 U.S. 233 (1936). In Grosjean, while discussing the history of the Free Press Clause of the First Amendment, the Court stated that "`[t]he evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.' " Id., at 249-250 (quoting 2 T. Cooley, Constitutional Limitations 886 (8th ed. 1927)); see also Lovell v. City of Griffin, 303 U.S. 444 (1938). The breadth and unprecedented nature of this regulation does not alone render the ordinance invalid. Also central to our conclusion that the ordinance does not pass First Amendment scrutiny is that it is not tailored to the Village's stated interests. Even if the interest in preventing fraud could adequately support the ordinance insofar as it applies to commercial transactions and the solicitation of funds, that interest provides no support for its application to petitioners, to political campaigns, or to enlisting support for unpopular causes. The Village, however, argues that the ordinance is nonetheless valid because it serves the two additional interests of protecting the privacy of the resident and the prevention of crime. With respect to the former, it seems clear that § 107 of the ordinance, which provides for the posting of "No Solicitation" signs and which is not challenged in this case, coupled with the resident's unquestioned right to refuse to engage in conversation with unwelcome visitors, provides ample protection for the unwilling listener. Schaumburg, 444 U. S., at 639 ("[T]he provision permitting homeowners to bar solicitors from their property by posting [no solicitation] signs . . . suggest[s] the availability of less intrusive and more effective measures to protect privacy"). The annoyance caused by an *169 uninvited knock on the front door is the same whether or not the visitor is armed with a permit. With respect to the latter, it seems unlikely that the absence of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance. They might, for example, ask for directions or permission to use the telephone, or pose as surveyers or census takers. See n. 1, supra. Or they might register under a false name with impunity because the ordinance contains no provision for verifying an applicant's identity or organizational credentials. Moreover, the Village did not assert an interest in crime prevention below, and there is an absence of any evidence of a special crime problem related to doorto-door solicitation in the record before us. The rhetoric used in the World War II-era opinions that repeatedly saved petitioners' coreligionists from petty prosecutions reflected the Court's evaluation of the First Amendment freedoms that are implicated in this case. The value judgment that then motivated a united democratic people fighting to defend those very freedoms from totalitarian attack is unchanged. It motivates our decision today. 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.

Petitioers coted that a village ordiace makig it a misdemeaor to egage i door-to-door advocacy without first registerig with the mayor ad receivig a permit violates the First Amedmet. Through this facial challege, we cosider the door-to-door cavassig regulatio ot oly as it applies to religious proselytizig, but also to aoymous political speech ad the distributio of hadbills. I Petitioer Watchtower Bible ad Tract Society of New York, Ic., coordiates the preachig activities of Jehovah's Witesses throughout the Uited States ad publishes Bibles ad religious periodicals that are widely distributed. Petitioer Wellsville, Ohio, Cogregatio of Jehovah's Witesses, Ic., supervises the activities of approximately 59 members i a part of Ohio that icludes the Village of Stratto (Village). Petitioers offer religious literature without cost to ayoe iterested i readig it. They allege that they do ot solicit cotributios or orders for the sale of merchadise or services, but they do accept doatios. Petitioers brought this actio agaist the Village ad its mayor i the Uited States District Court for the Souther *54 District of Ohio, seekig a ijuctio agaist the eforcemet of several sectios of Ordiace No. 998-5 regulatig uivited peddlig ad solicitatio o private property i the Village. Petitioers' complait alleged that the ordiace violated several costitutioal rights, icludig the free exercise of religio, free speech, ad the freedom of the press. App. 0a—44a. The District Court coducted a bech trial at which evidece of the admiistratio of the ordiace ad its effect o petitioers was itroduced. Sectio 6.0 prohibits "cavassers" ad others from "goig i ad upo" private residetial property for the purpose of promotig ay "cause" without first havig obtaied a permit pursuat to 6.03.[] That sectio provides that ay cavasser who iteds to go o private property to promote a cause must obtai a "Solicitatio Permit" from the office of the mayor; there is o charge for the permit, ad apparetly oe is issued routiely after a applicat *55 fills out a fairly detailed "Solicitor's Registratio Form."[2] The cavasser is the authorized to go upo premises that he listed o the registratio form, but he must carry the permit upo his perso ad exhibit it wheever requested to do so by a police officer or by a residet.[3] The ordiace *56 sets forth grouds for the deial or revocatio of a permit,[4] but the record before us does ot show that ay applicatio has bee deied or that ay permit has bee revoked. Petitioers did ot apply for a permit. A sectio of the ordiace that petitioers do ot challege establishes a procedure by which a residet may prohibit solicitatio eve by holders of permits. If the residet files a "No Solicitatio Registratio Form" with the mayor, ad also posts a "No Solicitatio" sig o his property, o uivited cavassers may eter his property, uless they are specifically authorized to do so i the "No Solicitatio Registratio Form" itself.[5] Oly 32 of the Village's 278 residets *57 filed such forms. Each of the forms i the record cotais a list of 9 suggested exceptios;[6] o oe form, a residet checked 7 exceptios, thereby excludig oly "Jehovah's Witesses" ad "Political Cadidates" from the list of ivited cavassers. Although Jehovah's Witesses do ot cosider themselves to be "solicitors" because they make o charge for their literature or their teachig, leaders of the church testified at trial that they would hoor "o solicitatio" sigs i the Village. They also explaied at trial that they did ot apply for a permit because they derive their authority to *58 preach from Scripture.[7] "For us to seek a permit from a muicipality to preach we feel would almost be a isult to God." App. 32a. Petitioers itroduced some evidece that the ordiace was the product of the mayor's hostility to their miistry, but the District Court credited the mayor's testimoy that it had bee desiged to protect the privacy rights of the Village residets, specifically to protect them "from `flim flam' co artists who prey o small tow populatios." Nevertheless, the court cocluded that the terms of the ordiace applied to the activities of petitioers as well as to "busiess or political cavassers," The District Court upheld most provisios of the ordiace as valid, cotet-eutral regulatios that did ot ifrige o petitioers' First Amedmet rights. The court did, however, require the Village to accept arrowig costructios of three provisios. First, the court viewed the requiremet i 6.03(b)(5) that the applicat must list the specific address of each residece to be visited as potetially ivalid, but cured by the Village's agreemet to attach to the form a list of willig residets. Secod, it held that petitioers could comply with 6.03(b)(6) by merely statig their purpose as "the Jehovah's Witess miistry." Ad third, it held that 6.05, which limited cavassig to the hours before 5 p.m., was ivalid o its face ad should be replaced with a provisio referrig to "reasoable hours of the day." As so modified, the court held the ordiace costitutioally valid as applied to petitioers ad dismissed the case. *59 The Court of Appeals for the Sixth Circuit affirmed. It held that the ordiace was "cotet eutral ad of geeral applicability ad therefore subject to itermediate scrutiy." It rejected petitioers' reliace o the discussio of laws affectig both the free exercise of religio ad free speech i Employmet Div., Dept. of Huma Resources of[8] because that "laguage was dicta ad therefore ot bidig." It also rejected petitioers' argumet that the ordiace is overbroad because it impairs the right to distribute pamphlets aoymously that we recogized i reasoig that "the very act of goig door-to-door requires the cavassers to reveal a portio of their idetities." The Court of Appeals cocluded that the iterests promoted by the Village—"protectig its residets from fraud ad udue aoyace"—as well as the harm that it seeks to prevet—"crimials posig as cavassers i order to defraud its residets"—though "by o meas overwhelmig," were sufficiet to justify the regulatio. at 565— 566. The court distiguished earlier cases protectig the Jehovah's Witesses miistry because those cases either ivolved *60 a flat prohibitio o the dissemiatio of ideas, e. g., or a ordiace that left the issuace of a permit to the discretio of a muicipal officer, see, e. g., I disset, Judge Gilma expressed the opiio that by subjectig ocommercial solicitatio to the permit requiremets, the ordiace sigificatly restricted a substatial quatity of speech urelated to the Village's iterest i elimiatig fraud ad uwated aoyace. I his view, the Village "failed to demostrate either the reality of the harm or the efficacy of the restrictio." We grated certiorari to decide the followig questio: "Does a muicipal ordiace that requires oe to obtai a permit prior to egagig i the door-to-door advocacy of a political cause ad to display upo demad the permit, which cotais oe's ame, violate the First Amedmet protectio accorded to aoymous pamphleteerig or discourse?" ; Pet. for Cert. i.[9] II For over 50 years, the Court has ivalidated restrictios o door-to-door cavassig ad pamphleteerig.[0] It is more tha historical accidet that most of these cases ivolved First Amedmet challeges brought by Jehovah's Witesses, because door-to-door cavassig is madated by their religio. As we oted i the Jehovah's Witesses "claim to follow the example of Paul, teachig `publickly, ad from house to house.' Acts 20:20. They take literally the madate of the Scriptures, `Go ye ito all the world, ad preach the gospel to every creature.' Mark 6:5. I doig so they believe that they are obeyig a commadmet of God." Moreover, because they lack sigificat fiacial resources, the ability of the Witesses to proselytize is seriously dimiished by regulatios that burde their efforts to cavass door-to-door. Although our past cases ivolvig Jehovah's Witesses, most of which were decided shortly before ad durig World War II, do ot directly cotrol the questio we cofrot today, they provide both a historical ad aalytical backdrop for cosideratio of petitioers' First Amedmet claim that the breadth of the Village's ordiace offeds the First Amedmet.[] Those cases ivolved petty offeses that raised costitutioal questios of the most serious magitude—questios that implicated the free exercise of religio, the freedom of speech, ad the freedom of the press. From these decisios, several themes emerge that guide our cosideratio of the ordiace at issue here. First, the cases emphasize the value of the speech ivolved. For example, i Murdock v. Pesylvaia, the Court oted that "had distributio of religious tracts is a age-old form of missioary evagelism—as old as the history of pritig presses. It has bee a potet force i various religious movemets dow through the years. This form of religious activity occupies the same high estate uder the First Amedmet as do worship i the churches ad preachig from the pulpits. It has the same claim to protectio as the more orthodox ad covetioal exercises of religio. *62 It also has the same claim as the others to the guaratees of freedom of speech ad freedom of the press." at -09. I additio, the cases discuss extesively the historical importace of door-to-door cavassig ad pamphleteerig as vehicles for the dissemiatio of ideas. I the petitioer was a Jehovah's Witess who had bee covicted of cavassig without a permit based o evidece that she had goe from house to house offerig to leave books or booklets. Writig for the Court, Justice Roberts stated that "pamphlets have proved most effective istrumets i the dissemiatio of opiio. Ad perhaps the most effective way of brigig them to the otice of idividuals is their distributio at the homes of the people. O this method of commuicatio the ordiace imposes cesorship, abuse of which egedered the struggle i Eglad which evetuated i the establishmet of the doctrie of the freedom of the press embodied i our Costitutio. To require a cesorship through licese which makes impossible the free ad uhampered distributio of pamphlets strikes at the very heart of the costitutioal guaratees." Despite the emphasis o the importat role that door-todoor cavassig ad pamphleteerig has played i our costitutioal traditio of free ad ope discussio, these early cases also recogized the iterests a tow may have i some form of regulatio, particularly whe the solicitatio of moey is ivolved. I the Court held that a ordiace requirig Jehovah's Witesses to obtai a licese before solicitig door to door was ivalid because the issuace of the licese depeded o the exercise of discretio by a city official. Our opiio recogized that "a State may protect its citizes from fraudulet solicitatio by requirig a strager i the commuity, before permittig him publicly to solicit fuds *63 for ay purpose, to establish his idetity ad his authority to act for the cause which he purports to represet." Similarly, i the Court recogized crime prevetio as a legitimate iterest served by these ordiaces ad oted that "burglars frequetly pose as cavassers, either i order that they may have a pretese to discover whether a house is empty ad hece ripe for burglary, or for the purpose of spyig out the premises i order that they may retur later." Despite recogitio of these iterests as legitimate, our precedet is clear that there must be a balace betwee these iterests ad the effect of the regulatios o First Amedmet rights. We "must `be astute to examie the effect of the challeged legislatio' ad must `weigh the circumstaces ad appraise the substatiality of the reasos advaced i support of the regulatio.' " (quotig ). Fially, the cases demostrate that efforts of the Jehovah's Witesses to resist speech regulatio have ot bee a struggle for their rights aloe. I Marti, after catalogig the may groups that rely extesively upo this method of commuicatio, the Court summarized that "[d]oor to door distributio of circulars is essetial to the poorly fiaced causes of little people." -46. That the Jehovah's Witesses are ot the oly "little people" who face the risk of silecig by regulatios like the Village's is exemplified by our cases ivolvig oreligious speech. See, e. g., ; ; I Thomas, the issue was whether a labor leader could be required to obtai a permit before deliverig a speech to prospective uio members. After reviewig the Jehovah's Witesses cases discussed above, the Court observed: *64 "As a matter of priciple a requiremet of registratio i order to make a public speech would seem geerally icompatible with a exercise of the rights of free speech ad free assembly. "If the exercise of the rights of free speech ad free assembly caot be made a crime, we do ot thik this ca be accomplished by the device of requirig previous registratio as a coditio for exercisig them ad makig such a coditio the foudatio for restraiig i advace their exercise ad for imposig a pealty for violatig such a restraiig order. So log as o more is ivolved tha exercise of the rights of free speech ad free assembly, it is immue to such a restrictio. If oe who solicits support for the cause of labor may be required to register as a coditio to the exercise of his right to make a public speech, so may he who seeks to rally support for ay social, busiess, religious or political cause. We thik a requiremet that oe must register before he udertakes to make a public speech to elist support for a lawful movemet is quite icompatible with the requiremets of the First Amedmet." Although these World War II-era cases provide guidace for our cosideratio of the questio preseted, they do ot aswer oe prelimiary issue that the parties adamatly dispute. That is, what stadard of review ought we use i assessig the costitutioality of this ordiace. We fid it uecessary, however, to resolve that dispute because the breadth of speech affected by the ordiace ad the ature of the regulatio make it clear that the Court of Appeals erred i upholdig it. III The Village argues that three iterests are served by its ordiace: the prevetio of fraud, the prevetio of crime, *65 ad the protectio of residets' privacy. We have o difficulty cocludig, i light of our precedet, that these are importat iterests that the Village may seek to safeguard through some form of regulatio of solicitatio activity. We must also look, however, to the amout of speech covered by the ordiace ad whether there is a appropriate balace betwee the affected speech ad the govermetal iterests that the ordiace purports to serve. The text of the Village's ordiace prohibits "cavassers" from goig o private property for the purpose of explaiig or promotig ay "cause," uless they receive a permit ad the residets visited have ot opted for a "o solicitatio" sig. Had this provisio bee costrued to apply oly to commercial activities ad the solicitatio of fuds, arguably the ordiace would have bee tailored to the Village's iterest i protectig the privacy of its residets ad prevetig fraud. Yet, eve though the Village has explaied that the ordiace was adopted to serve those iterests, it has ever coteded that it should be so arrowly iterpreted. To the cotrary, the Village's admiistratio of its ordiace uquestioably demostrates that the provisios apply to a sigificat umber of ocommercial "cavassers" promotig a wide variety of "causes." Ideed, o the "No Solicitatio Forms" provided to the residets, the cavassers iclude "Camp Fire Girls," "Jehovah's Witesses," "Political Cadidates," "Trick or Treaters durig Hallowee Seaso," ad "Persos Affiliated with Stratto Church." The ordiace uquestioably applies, ot oly to religious causes, but to political activity as well. It would seem to exted to "residets casually solicitig the votes of eighbors,"[2] or rigig doorbells to elist support for employig a more efficiet garbage collector. The mere fact that the ordiace covers so much speech raises costitutioal cocers. It is offesive—ot oly to *66 the values protected by the First Amedmet, but to the very otio of a free society—that i the cotext of everyday public discourse a citize must first iform the govermet of her desire to speak to her eighbors ad the obtai a permit to do so. Eve if the issuace of permits by the mayor's office is a miisterial task that is performed promptly ad at o cost to the applicat, a law requirig a permit to egage i such speech costitutes a dramatic departure from our atioal heritage ad costitutioal traditio. Three obvious examples illustrate the pericious effect of such a permit requiremet. First, as our cases ivolvig distributio of usiged hadbills demostrate,[3] there are a sigificat umber of persos who support causes aoymously.[4] "The decisio i favor of aoymity may be motivated by fear of ecoomic or official retaliatio, by cocer about social ostracism, or merely by a desire to preserve as much of oe's privacy as possible." -342. The requiremet that a cavasser must be idetified i a permit applicatio filed i the mayor's office ad available for public ispectio ecessarily results i a surreder of that aoymity. Although it is true, as the Court of Appeals suggested, see that persos who are kow to the residet reveal their allegiace to a group or cause whe they preset themselves at the frot door to advocate a issue or to deliver a hadbill, the Court of Appeals erred i cocludig that the ordiace does ot implicate aoymity iterests. The Sixth Circuit's reasoig is udermied by *67 our decisio i Buckley v. America Costitutioal Law Foudatio, Ic., The badge requiremet that we ivalidated i Buckley applied to petitio circulators seekig sigatures i face-to-face iteractios. The fact that circulators revealed their physical idetities did ot foreclose our cosideratio of the circulators' iterest i maitaiig their aoymity. I the Village, stragers to the residet certaily maitai their aoymity, ad the ordiace may preclude such persos from cavassig for upopular causes. Such preclusio may well be justified i some situatios—for example, by the special state iterest i protectig the itegrity of a ballot-iitiative process, see ib or by the iterest i prevetig fraudulet commercial trasactios. The Village ordiace, however, sweeps more broadly, coverig upopular causes urelated to commercial trasactios or to ay special iterest i protectig the electoral process. Secod, requirig a permit as a prior coditio o the exercise of the right to speak imposes a objective burde o some speech of citizes holdig religious or patriotic views. As our World War II-era cases dramatically demostrate, there are a sigificat umber of persos whose religious scruples will prevet them from applyig for such a licese. There are o doubt other patriotic citizes, who have such firm covictios about their costitutioal right to egage i uihibited debate i the cotext of door-to-door advocacy, that they would prefer silece to speech licesed by a petty official. Third, there is a sigificat amout of spotaeous speech that is effectively baed by the ordiace. A perso who made a decisio o a holiday or a weeked to take a active part i a political campaig could ot begi to pass out hadbills util after he or she obtaied the required permit. Eve a spotaeous decisio to go across the street ad urge a eighbor to vote agaist the mayor could ot lawfully be implemeted without first obtaiig the mayor's permissio. *68 I this respect, the regulatio is aalogous to the circulatio licesig tax the Court ivalidated i Grosjea v. America Press Co., I Grosjea, while discussig the history of the Free Press Clause of the First Amedmet, the Court stated that "`[t]he evils to be preveted were ot the cesorship of the press merely, but ay actio of the govermet by meas of which it might prevet such free ad geeral discussio of public matters as seems absolutely essetial to prepare the people for a itelliget exercise of their rights as citizes.' " (quotig 2 T. Cooley, Costitutioal Limitatios 886 (8th ed. 927)); see also Lovell v. City of Griffi, The breadth ad uprecedeted ature of this regulatio does ot aloe reder the ordiace ivalid. Also cetral to our coclusio that the ordiace does ot pass First Amedmet scrutiy is that it is ot tailored to the Village's stated iterests. Eve if the iterest i prevetig fraud could adequately support the ordiace isofar as it applies to commercial trasactios ad the solicitatio of fuds, that iterest provides o support for its applicatio to petitioers, to political campaigs, or to elistig support for upopular causes. The Village, however, argues that the ordiace is oetheless valid because it serves the two additioal iterests of protectig the privacy of the residet ad the prevetio of crime. With respect to the former, it seems clear that 07 of the ordiace, which provides for the postig of "No Solicitatio" sigs ad which is ot challeged i this case, coupled with the residet's uquestioed right to refuse to egage i coversatio with uwelcome visitors, provides ample protectio for the uwillig listeer. ("[T]he provisio permittig homeowers to bar solicitors from their property by postig [o solicitatio] sigs suggest[s] the availability of less itrusive ad more effective measures to protect privacy"). The aoyace caused by a *69 uivited kock o the frot door is the same whether or ot the visitor is armed with a permit. With respect to the latter, it seems ulikely that the absece of a permit would preclude crimials from kockig o doors ad egagig i coversatios ot covered by the ordiace. They might, for example, ask for directios or permissio to use the telephoe, or pose as surveyers or cesus takers. See Or they might register uder a false ame with impuity because the ordiace cotais o provisio for verifyig a applicat's idetity or orgaizatioal credetials. Moreover, the Village did ot assert a iterest i crime prevetio below, ad there is a absece of ay evidece of a special crime problem related to doorto-door solicitatio i the record before us. The rhetoric used i the World War II-era opiios that repeatedly saved petitioers' coreligioists from petty prosecutios reflected the Court's evaluatio of the First Amedmet freedoms that are implicated i this case. The value judgmet that the motivated a uited democratic people fightig to defed those very freedoms from totalitaria attack is uchaged. It motivates our decisio today. The judgmet of the Court of Appeals is reversed, ad the case is remaded for further proceedigs cosistet with this opiio. It is so ordered.

Justice Breyer

concurring

Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton

2002-06-17

https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/

https://www.courtlistener.com/api/rest/v3/clusters/121151/

2001-063

While joining the Court's opinion, I write separately to note that the dissent's "crime prevention" justification for this ordinance is not a strong one. Cf. post, at 176-180 (opinion of Rehnquist, C. J.). For one thing, there is no indication that the legislative body that passed the ordinance considered this justification. Stratton did not rely on the rationale in the courts below, see 61 F. Supp. 2d 734, 736 (SD Ohio 1999) (opinion of the District Court describing the *170 ordinance as "constructed to protect the Village residents from `flim flam' con artists"); 240 F.3d 553, 565 (CA6 2001) (opinion of the Court of Appeals describing interests as "protecting [the Village's] residents from fraud and undue annoyance"), and its general references to "deter[ing] crime" in its brief to this Court cannot fairly be construed to include anything other than the fraud it discusses specifically. Brief for Respondents 14-18. In the intermediate scrutiny context, the Court ordinarily does not supply reasons the legislative body has not given. Cf. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816 (2000) ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions" (emphasis added)). That does not mean, as The Chief Justice suggests, that only a government with a "battery of constitutional lawyers," post, at 172, could satisfy this burden. It does mean that we expect a government to give its real reasons for passing an ordinance. Legislators, in even the smallest town, are perfectly able to do so—sometimes better on their own than with too many lawyers, e. g., a "battery," trying to offer their advice. I can only conclude that if the village of Stratton thought preventing burglaries and violent crimes was an important justification for this ordinance, it would have said so. But it is not just that. It is also intuitively implausible to think that Stratton's ordinance serves any governmental interest in preventing such crimes. As the Court notes, several categories of potential criminals will remain entirely untouched by the ordinance. Ante, at 168-169, 154, n. 1. And as to those who might be affected by it, "[w]e have never accepted mere conjecture as adequate to carry a First Amendment burden," Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000). Even less readily should we accept such implausible conjecture offered not by the party itself but only by an amicus, see Brief for Ohio et al. as Amici Curiae 5-6. *171 Because Stratton did not rely on the crime prevention justification, because Stratton has not now "present[ed] more than anecdote and supposition," Playboy Entertainment Group, supra, at 822, and because the relationship between the interest and the ordinance is doubtful, I am unwilling to assume that these conjectured benefits outweigh the cost of abridging the speech covered by the ordinance. Justice Scalia, with whom Justice Thomas joins, concurring in the judgment. I concur in the judgment, for many but not all of the reasons set forth in the opinion for the Court. I do not agree, for example, that one of the causes of the invalidity of Stratton's ordinance is that some people have a religious objection to applying for a permit, and others (posited by the Court) "have such firm convictions about their constitutional right to engage in uninhibited debate in the context of doorto-door advocacy, that they would prefer silence to speech licensed by a petty official." Ante, at 167. If a licensing requirement is otherwise lawful, it is in my view not invalidated by the fact that some people will choose, for religious reasons, to forgo speech rather than observe it. That would convert an invalid free-exercise claim, see Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), into a valid free-speech claim—and a more destructive one at that. Whereas the free-exercise claim, if acknowledged, would merely exempt Jehovah's Witnesses from the licensing requirement, the free-speech claim exempts everybody, thanks to Jehovah's Witnesses. As for the Court's fairytale category of "patriotic citizens," ante, at 167, who would rather be silenced than licensed in a manner that the Constitution (but for their "patriotic" objection) would permit: If our free-speech jurisprudence is to be determined by the predicted behavior of such crackpots, we are in a sorry state indeed.

While joining the Court's opinion, I write separately to note that the dissent's "crime prevention" justification for this ordinance is not a strong one. Cf. post, at 176-180 (opinion of Rehnquist, C. J.). For one thing, there is no indication that the legislative body that passed the ordinance considered this justification. Stratton did not rely on the rationale in the courts below, see ; and its general references to "deter[ing] crime" in its brief to this Court cannot fairly be construed to include anything other than the fraud it discusses specifically. Brief for Respondents 14-18. In the intermediate scrutiny context, the Court ordinarily does not supply reasons the legislative body has not given. Cf. United That does not mean, as The Chief Justice suggests, that only a government with a "battery of constitutional lawyers," post, at 172, could satisfy this burden. It does mean that we expect a government to give its real reasons for passing an ordinance. Legislators, in even the smallest town, are perfectly able to do so—sometimes better on their own than with too many lawyers, e. g., a "battery," trying to offer their advice. I can only conclude that if the village of Stratton thought preventing burglaries and violent crimes was an important justification for this ordinance, it would have said so. But it is not just that. It is also intuitively implausible to think that Stratton's ordinance serves any governmental interest in preventing such crimes. As the Court notes, several categories of potential criminals will remain entirely untouched by the ordinance. Ante, at 168-169, 154, n. 1. And as to those who might be affected by it, "[w]e have never accepted mere conjecture as adequate to carry a First Amendment burden," Even less readily should we accept such implausible conjecture offered not by the party itself but only by an amicus, see Brief for Ohio et al. as Amici Curiae 5-6. *171 Because Stratton did not rely on the crime prevention justification, because Stratton has not now "present[ed] more than anecdote and supposition," Playboy Entertainment and because the relationship between the interest and the ordinance is doubtful, I am unwilling to assume that these conjectured benefits outweigh the cost of abridging the speech covered by the ordinance. Justice Scalia, with whom Justice Thomas joins, concurring in the judgment. I concur in the judgment, for many but not all of the reasons set forth in the opinion for the Court. I do not agree, for example, that one of the causes of the invalidity of Stratton's ordinance is that some people have a religious objection to applying for a permit, and others (posited by the Court) "have such firm convictions about their constitutional right to engage in uninhibited debate in the context of doorto-door advocacy, that they would prefer silence to speech licensed by a petty official." Ante, at 167. If a licensing requirement is otherwise lawful, it is in my view not invalidated by the fact that some people will choose, for religious reasons, to forgo speech rather than observe it. That would convert an invalid free-exercise claim, see Employment Div., Dept. of Human Resources of into a valid free-speech claim—and a more destructive one at that. Whereas the free-exercise claim, if acknowledged, would merely exempt Jehovah's Witnesses from the licensing requirement, the free-speech claim exempts everybody, thanks to Jehovah's Witnesses. As for the Court's fairytale category of "patriotic citizens," ante, at 167, who would rather be silenced than licensed in a manner that the Constitution (but for their "patriotic" objection) would permit: If our free-speech jurisprudence is to be determined by the predicted behavior of such crackpots, we are in a sorry state indeed.

Justice Rehnquist

dissenting

Watchtower Bible & Tract Soc. of NY, Inc. v. Village of Stratton

2002-06-17

https://www.courtlistener.com/opinion/121151/watchtower-bible-tract-soc-of-ny-inc-v-village-of-stratton/

https://www.courtlistener.com/api/rest/v3/clusters/121151/

2001-063

Stratton is a village of 278 people located along the Ohio River where the borders of Ohio, West Virginia, and Pennsylvania converge. It is strung out along a multilane highway connecting it with the cities of East Liverpool to the north and Steubenville and Weirton, West Virginia, to the south. One may doubt how much legal help a village of this size has available in drafting an ordinance such as the present one, but even if it had availed itself of a battery of constitutional lawyers, they would have been of little use in the town's effort. For the Court today ignores the cases on which those lawyers would have relied, and comes up with newly fashioned doctrine. This doctrine contravenes wellestablished precedent, renders local governments largely impotent to address the very real safety threat that canvassers pose, and may actually result in less of the door-to-door communication that it seeks to protect. More than half a century ago we recognized that canvassers, "whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home," and that "burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later." Martin v. City of Struthers, 319 U.S. 141, 144 (1943). These problems continue to be associated with door-to-door canvassing, as are even graver ones. A recent double murder in Hanover, New Hampshire, a town of approximately 7,500 that would appear tranquil to most Americans but would probably seem like a bustling town of Dartmouth College students to Stratton residents, illustrates these dangers. Two teenagers murdered a married couple of Dartmouth College professors, Half and Susanne Zantop, in the Zantops' home. Investigators have concluded, based on the confession of one of the teenagers, that the teenagers went door-to-door intent on stealing *173 access numbers to bank debit cards and then killing their owners. See Dartmouth Professors Called Random Targets, Washington Post, Feb. 20, 2002, p. A2. Their modus operandi was to tell residents that they were conducting an environmental survey for school. They canvassed a few homes where no one answered. At another, the resident did not allow them in to conduct the "survey." They were allowed into the Zantop home. After conducting the phony environmental survey, they stabbed the Zantops to death. See ibid. In order to reduce these very grave risks associated with canvassing, the 278 "`little people,' " ante, at 163, of Stratton, who, unlike petitioners, do not have a team of attorneys at their ready disposal, see Jehovah's Witnesses May Make High Court History Again, Legal Times, Feb. 25, 2002, p. 1 (noting that petitioners have a team of 12 lawyers in their New York headquarters), enacted the ordinance at issue here. The residents did not prohibit door-to-door communication; they simply required that canvassers obtain a permit before going door-to-door. And the village does not have the discretion to reject an applicant who completes the application. The town had little reason to suspect that the negligible burden of having to obtain a permit runs afoul of the First Amendment. For over 60 years, we have categorically stated that a permit requirement for door-to-door canvassers, which gives no discretion to the issuing authority, is constitutional. The District Court and Court of Appeals, relying on our cases, upheld the ordinance. The Court today, however, abruptly changes course and invalidates the ordinance. The Court speaks of the "historical and analytical backdrop for consideration of petitioners' First Amendment claim," ante, at 161. But this "backdrop" is one of longstanding and unwavering approval of a permit requirement like Stratton's. Our early decisions in this area expressly *174 sanction a law that merely requires a canvasser to register. In Cantwell v. Connecticut, 310 U.S. 296, 306 (1940), we stated that "[w]ithout doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent." In Murdock v. Pennsylvania, 319 U.S. 105, 116 (1943), we contrasted the license tax struck down in that case with "merely a registration ordinance calling for an identification of the solicitors so as to give the authorities some basis for investigating strangers coming into the community." And Martin, supra, at 148, states that a "city can punish those who call at a home in defiance of the previously expressed will of the occupant and, in addition, can by identification devices control the abuse of the privilege by criminals posing as canvassers." It is telling that Justices Douglas and Black, perhaps the two Justices in this Court's history most identified with an expansive view of the First Amendment, authored, respectively, Murdock and Martin. Their belief in the constitutionality of the permit requirement that the Court strikes down today demonstrates just how far the Court's present jurisprudence has strayed from the core concerns of the First Amendment. We reaffirmed our view that a discretionless permit requirement is constitutional in Hynes v. Mayor and Council of Oradell, 425 U.S. 610 (1976). Hynes, though striking down a registration ordinance on vagueness grounds, noted that "the Court has consistently recognized a municipality's power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment." Id., at 616-617. *175 The Stratton ordinance suffers from none of the defects deemed fatal in these earlier decisions. The ordinance does not prohibit door-to-door canvassing; it merely requires that canvassers fill out a form and receive a permit. Cf. Martin, supra. The mayor does not exercise any discretion in deciding who receives a permit; approval of the permit is automatic upon proper completion of the form. Cf. Cantwell, supra. And petitioners do not contend in this Court that the ordinance is vague. Cf. Hynes, supra. Just as troubling as the Court's ignoring over 60 years of precedent is the difficulty of discerning from the Court's opinion what exactly it is about the Stratton ordinance that renders it unconstitutional. It is not clear what test the Court is applying, or under which part of that indeterminate test the ordinance fails. See ante, at 164 (finding it "unnecessary . . . to resolve" what standard of review applies to the ordinance). We are instead told that the "breadth of speech affected" and "the nature of the regulation" render the permit requirement unconstitutional. Ibid. Under a straightforward application of the applicable First Amendment framework, however, the ordinance easily passes muster. There is no support in our case law for applying anything more stringent than intermediate scrutiny to the ordinance. The ordinance is content neutral and does not bar anyone from going door-to-door in Stratton. It merely regulates the manner in which one must canvass: A canvasser must first obtain a permit. It is, or perhaps I should say was, settled that the "government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions `are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.' " Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). Earlier *176 this Term, the Court reaffirmed that this test applies to content-neutral time, place, or manner restrictions on speech in public forums. See Thomas v. Chicago Park Dist., 534 U.S. 316 (2002). The Court suggests that Stratton's regulation of speech warrants greater scrutiny. Ante, at 164. But it would be puzzling if regulations of speech taking place on another citizen's private property warranted greater scrutiny than regulations of speech taking place in public forums. Common sense and our precedent say just the opposite. In Hynes, the Court explained: "`Of all the methods of spreading unpopular ideas, [house-to-house canvassing] seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires.' " 425 U.S., at 619 (quoting Z. Chafee, Free Speech in the United States 406 (1954)). In Ward, the Court held that intermediate scrutiny was appropriate "even in a public forum," 491 U.S., at 791 (emphasis added), appropriately recognizing that speech enjoys greater protection in a public forum that has been opened to all citizens, see ibid. Indeed, we have held that the mere proximity of private residential property to a public forum permits more extensive regulation of speech taking place at the public forum than would otherwise be allowed. See Frisby v. Schultz, 487 U.S. 474, 483-484 (1988). Surely then, intermediate scrutiny applies to a content-neutral regulation of speech that occurs not just near, but at, another citizen's private residence. The Stratton regulation is aimed at three significant governmental interests: the prevention of fraud, the prevention of crime, and the protection of privacy.[1] The Court concedes *177 that "in light of our precedent, . . . these are important interests that [Stratton] may seek to safeguard through some form of regulation of solicitation activity." Ante, at 165. Although initially recognizing the important interest in preventing crime, the Court later indicates that the "absence of any evidence of a special crime problem related to door-todoor solicitation in the record before us" lessens this interest. Ante, at 169. But the village is entitled to rely on our assertion in Martin that door-to-door canvassing poses a risk of crime, see Erie v. Pap's A. M., 529 U.S. 277, 297 (2000) (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)), and the experience of other jurisdictions with crime stemming from door-to-door canvassing, see 529 U.S., at 297; Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 393, n. 6 (2000). The double murder in Hanover described above is but one tragic example of the crime threat posed by door-to-door canvassing. Other recent examples include a man soliciting gardening jobs door-to-door who tied up and robbed elderly residents, see Van Derbken, 98-Year-Old Latest Victim in Series of Home Invasions, San Francisco Chronicle, Sept. 13, 2000, p. A18, a door-to-door vacuum cleaner salesman who raped a woman, see Employers Liable for Rape by Salesman, Texas Lawyer, Jan. 11, 1999, p. 2, and a man going door-todoor purportedly on behalf of a church group who committed multiple sexual assaults, see Ingersoll, Sex Crime Suspect Traveled with Church Group, Wis. State Journal, Feb. 19, 2000, p. 1B. The Constitution does not require that Stratton first endure its own crime wave before it takes measures to prevent crime. What is more, the Court soon forgets both the privacy and crime interests. It finds the ordinance too broad because it applies to a "significant number of noncommercial `canvassers.' " Ante, at 165. But noncommercial canvassers, for example, those purporting to conduct environmental surveys for school, see supra, at 172-173, can violate no trespassing *178 signs and engage in burglaries and violent crimes just as easily as commercial canvassers can. See Martin, 319 U. S., at 144 (canvassers, "whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home" and "sp[y] out" homes for burglaries (emphasis added)). Stratton's ordinance is thus narrowly tailored. It applies to everyone who poses the risks associated with door-to-door canvassing, i. e., it applies to everyone who canvasses doorto-door. The Court takes what should be a virtue of the ordinance—that it is content neutral, cf. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) ("[O]ur commercial speech cases have recognized the dangers that attend governmental attempts to single out certain messages for suppression")—and turns it into a vice. The next question is whether the ordinance serves the important interests of protecting privacy and preventing fraud and crime. With respect to the interest in protecting privacy, the Court concludes that "[t]he annoyance caused by an uninvited knock on the front door is the same whether or not the visitor is armed with a permit." Ante, at 168-169. True, but that misses the key point: The permit requirement results in fewer uninvited knocks. Those who have complied with the permit requirement are less likely to visit residences with no trespassing signs, as it is much easier for the authorities to track them down. The Court also fails to grasp how the permit requirement serves Stratton's interest in preventing crime.[2] We have approved of permit requirements for those engaging in protected First Amendment activity because of a commonsense recognition that their existence both deters and helps detect wrongdoing. See, e. g., Thomas v. Chicago Park Dist., 534 *179 U. S. 316 (2002) (upholding a permit requirement aimed, in part, at preventing unlawful uses of a park and assuring financial accountability for damage caused by the event). And while some people, intent on committing burglaries or violent crimes, are not likely to be deterred by the prospect of a misdemeanor for violating the permit ordinance, the ordinance's effectiveness does not depend on criminals registering. The ordinance prevents and detects serious crime by making it a crime not to register. Take the Hanover double murder discussed earlier. The murderers did not achieve their objective until they visited their fifth home over a period of seven months. If Hanover had a permit requirement, the teens may have been stopped before they achieved their objective. One of the residents they visited may have informed the police that there were two canvassers who lacked a permit. Such neighborly vigilance, though perhaps foreign to those residing in modern day cities, is not uncommon in small towns. Or the police on their own may have discovered that two canvassers were violating the ordinance. Apprehension for violating the permit requirement may well have frustrated the teenagers' objectives; it certainly would have assisted in solving the murders had the teenagers gone ahead with their plan.[3] Of course, the Stratton ordinance does not guarantee that no canvasser will ever commit a burglary or violent crime. The Court seems to think this dooms the ordinance, erecting an insurmountable hurdle that a law must provide a foolproof method of preventing crime. In order to survive intermediate scrutiny, however, a law need not solve the crime *180 problem, it need only further the interest in preventing crime. Some deterrence of serious criminal activity is more than enough to survive intermediate scrutiny. The final requirement of intermediate scrutiny is that a regulation leave open ample alternatives for expression. Undoubtedly, ample alternatives exist here. Most obviously, canvassers are free to go door-to-door after filling out the permit application. And those without permits may communicate on public sidewalks, on street corners, through the mail, or through the telephone. Intermediate scrutiny analysis thus confirms what our cases have long said: A discretionless permit requirement for canvassers does not violate the First Amendment. Today, the Court elevates its concern with what is, at most, a negligible burden on door-to-door communication above this established proposition. Ironically, however, today's decision may result in less of the door-to-door communication that the Court extols. As the Court recognizes, any homeowner may place a "No Solicitation" sign on his or her property, and it is a crime to violate that sign. Ante, at 168. In light of today's decision depriving Stratton residents of the degree of accountability and safety that the permit requirement provides, more and more residents may decide to place these signs in their yards and cut off door-to-door communication altogether.

Stratton is a village of 278 people located along the Ohio River where the borders of Ohio, West Virginia, and Pennsylvania converge. It is strung out along a multilane highway connecting it with the cities of East Liverpool to the north and Steubenville and Weirton, West Virginia, to the south. One may doubt how much legal help a village of this size has available in drafting an ordinance such as the present one, but even if it had availed itself of a battery of constitutional lawyers, they would have been of little use in the town's effort. For the Court today ignores the cases on which those lawyers would have relied, and comes up with newly fashioned doctrine. This doctrine contravenes wellestablished precedent, renders local governments largely impotent to address the very real safety threat that canvassers pose, and may actually result in less of the door-to-door communication that it seeks to protect. More than half a century ago we recognized that canvassers, "whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home," and that "burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later." These problems continue to be associated with door-to-door canvassing, as are even graver ones. A recent double murder in Hanover, New Hampshire, a town of approximately 7,500 that would appear tranquil to most Americans but would probably seem like a bustling town of Dartmouth College students to Stratton residents, illustrates these dangers. Two teenagers murdered a married couple of Dartmouth College professors, Half and Susanne Zantop, in the Zantops' home. Investigators have concluded, based on the confession of one of the teenagers, that the teenagers went door-to-door intent on stealing *173 access numbers to bank debit cards and then killing their owners. See Dartmouth Professors Called Random Targets, Washington Post, Feb. 20, 2002, p. A2. Their modus operandi was to tell residents that they were conducting an environmental survey for school. They canvassed a few homes where no one answered. At another, the resident did not allow them in to conduct the "survey." They were allowed into the Zantop home. After conducting the phony environmental survey, they stabbed the Zantops to death. See In order to reduce these very grave risks associated with canvassing, the 278 "`little people,' " ante, at 163, of Stratton, who, unlike petitioners, do not have a team of attorneys at their ready disposal, see Jehovah's Witnesses May Make High Court History Again, Legal Times, Feb. 25, 2002, p. 1 (noting that petitioners have a team of 12 lawyers in their New York headquarters), enacted the ordinance at issue here. The residents did not prohibit door-to-door communication; they simply required that canvassers obtain a permit before going door-to-door. And the village does not have the discretion to reject an applicant who completes the application. The town had little reason to suspect that the negligible burden of having to obtain a permit runs afoul of the First Amendment. For over 60 years, we have categorically stated that a permit requirement for door-to-door canvassers, which gives no discretion to the issuing authority, is constitutional. The District Court and Court of Appeals, relying on our cases, upheld the ordinance. The Court today, however, abruptly changes course and invalidates the ordinance. The Court speaks of the "historical and analytical backdrop for consideration of petitioners' First Amendment claim," ante, at 161. But this "backdrop" is one of longstanding and unwavering approval of a permit requirement like Stratton's. Our early decisions in this area expressly *174 sanction a law that merely requires a canvasser to register. In we stated that "[w]ithout doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent." In we contrasted the license tax struck down in that case with "merely a registration ordinance calling for an identification of the solicitors so as to give the authorities some basis for investigating strangers coming into the community." And states that a "city can punish those who call at a home in defiance of the previously expressed will of the occupant and, in addition, can by identification devices control the abuse of the privilege by criminals posing as canvassers." It is telling that Justices Douglas and Black, perhaps the two Justices in this Court's history most identified with an expansive view of the First Amendment, authored, respectively, Murdock and Their belief in the constitutionality of the permit requirement that the Court strikes down today demonstrates just how far the Court's present jurisprudence has strayed from the core concerns of the First Amendment. We reaffirmed our view that a discretionless permit requirement is constitutional in though striking down a registration ordinance on vagueness grounds, noted that "the Court has consistently recognized a municipality's power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment." *175 The Stratton ordinance suffers from none of the defects deemed fatal in these earlier decisions. The ordinance does not prohibit door-to-door canvassing; it merely requires that canvassers fill out a form and receive a permit. Cf. The mayor does not exercise any discretion in deciding who receives a permit; approval of the permit is automatic upon proper completion of the form. Cf. And petitioners do not contend in this Court that the ordinance is vague. Cf. Just as troubling as the Court's ignoring over 60 years of precedent is the difficulty of discerning from the Court's opinion what exactly it is about the Stratton ordinance that renders it unconstitutional. It is not clear what test the Court is applying, or under which part of that indeterminate test the ordinance fails. See ante, at 164 (finding it "unnecessary to resolve" what standard of review applies to the ordinance). We are instead told that the "breadth of speech affected" and "the nature of the regulation" render the permit requirement unconstitutional. Under a straightforward application of the applicable First Amendment framework, however, the ordinance easily passes muster. There is no support in our case law for applying anything more stringent than intermediate scrutiny to the ordinance. The ordinance is content neutral and does not bar anyone from going door-to-door in Stratton. It merely regulates the manner in which one must canvass: A canvasser must first obtain a permit. It is, or perhaps I should say was, settled that the "government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions `are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.' " Earlier *176 this Term, the Court reaffirmed that this test applies to content-neutral time, place, or manner restrictions on speech in public forums. See The Court suggests that Stratton's regulation of speech warrants greater scrutiny. Ante, at 164. But it would be puzzling if regulations of speech taking place on another citizen's private property warranted greater scrutiny than regulations of speech taking place in public forums. Common sense and our precedent say just the opposite. In the Court explained: "`Of all the methods of spreading unpopular ideas, [house-to-house canvassing] seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires.' " In Ward, the Court held that intermediate scrutiny was appropriate "even in a public forum," 491 U.S., at appropriately recognizing that speech enjoys greater protection in a public forum that has been opened to all citizens, see Indeed, we have held that the mere proximity of private residential property to a public forum permits more extensive regulation of speech taking place at the public forum than would otherwise be allowed. See Surely then, intermediate scrutiny applies to a content-neutral regulation of speech that occurs not just near, but at, another citizen's private residence. The Stratton regulation is aimed at three significant governmental interests: the prevention of fraud, the prevention of crime, and the protection of privacy.[1] The Court concedes *177 that "in light of our precedent, these are important interests that [Stratton] may seek to safeguard through some form of regulation of solicitation activity." Ante, at 165. Although initially recognizing the important interest in preventing crime, the Court later indicates that the "absence of any evidence of a special crime problem related to door-todoor solicitation in the record before us" lessens this interest. Ante, at 169. But the village is entitled to rely on our assertion in that door-to-door canvassing poses a risk of crime, see and the experience of other jurisdictions with crime stemming from door-to-door canvassing, see 529 U.S., at ; The double murder in Hanover described above is but one tragic example of the crime threat posed by door-to-door canvassing. Other recent examples include a man soliciting gardening jobs door-to-door who tied up and robbed elderly residents, see Van Derbken, 98-Year-Old Latest Victim in Series of Home Invasions, San Francisco Chronicle, Sept. 13, 2000, p. A18, a door-to-door vacuum cleaner salesman who raped a woman, see Employers Liable for Rape by Salesman, Texas Lawyer, Jan. 11, 1999, p. 2, and a man going door-todoor purportedly on behalf of a church group who committed multiple sexual assaults, see Ingersoll, Sex Crime Suspect Traveled with Church Group, Wis. State Journal, Feb. 19, 2000, p. 1B. The Constitution does not require that Stratton first endure its own crime wave before it takes measures to prevent crime. What is more, the Court soon forgets both the privacy and crime interests. It finds the ordinance too broad because it applies to a "significant number of noncommercial `canvassers.' " Ante, at 165. But noncommercial canvassers, for example, those purporting to conduct environmental surveys for school, see can violate no trespassing *178 signs and engage in burglaries and violent crimes just as easily as commercial canvassers can. See 319 U. S., at (canvassers, "whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home" and "sp[y] out" homes for burglaries ). Stratton's ordinance is thus narrowly tailored. It applies to everyone who poses the risks associated with door-to-door canvassing, i. e., it applies to everyone who canvasses doorto-door. The Court takes what should be a virtue of the ordinance—that it is content neutral, cf. 44 Liquormart, —and turns it into a vice. The next question is whether the ordinance serves the important interests of protecting privacy and preventing fraud and crime. With respect to the interest in protecting privacy, the Court concludes that "[t]he annoyance caused by an uninvited knock on the front door is the same whether or not the visitor is armed with a permit." Ante, at 168-169. True, but that misses the key point: The permit requirement results in fewer uninvited knocks. Those who have complied with the permit requirement are less likely to visit residences with no trespassing signs, as it is much easier for the authorities to track them down. The Court also fails to grasp how the permit requirement serves Stratton's interest in preventing crime.[2] We have approved of permit requirements for those engaging in protected First Amendment activity because of a commonsense recognition that their existence both deters and helps detect wrongdoing. See, e. g., 534 * And while some people, intent on committing burglaries or violent crimes, are not likely to be deterred by the prospect of a misdemeanor for violating the permit ordinance, the ordinance's effectiveness does not depend on criminals registering. The ordinance prevents and detects serious crime by making it a crime not to register. Take the Hanover double murder discussed earlier. The murderers did not achieve their objective until they visited their fifth home over a period of seven months. If Hanover had a permit requirement, the teens may have been stopped before they achieved their objective. One of the residents they visited may have informed the police that there were two canvassers who lacked a permit. Such neighborly vigilance, though perhaps foreign to those residing in modern day cities, is not uncommon in small towns. Or the police on their own may have discovered that two canvassers were violating the ordinance. Apprehension for violating the permit requirement may well have frustrated the teenagers' objectives; it certainly would have assisted in solving the murders had the teenagers gone ahead with their plan.[3] Of course, the Stratton ordinance does not guarantee that no canvasser will ever commit a burglary or violent crime. The Court seems to think this dooms the ordinance, erecting an insurmountable hurdle that a law must provide a foolproof method of preventing crime. In order to survive intermediate scrutiny, however, a law need not solve the crime *180 problem, it need only further the interest in preventing crime. Some deterrence of serious criminal activity is more than enough to survive intermediate scrutiny. The final requirement of intermediate scrutiny is that a regulation leave open ample alternatives for expression. Undoubtedly, ample alternatives exist here. Most obviously, canvassers are free to go door-to-door after filling out the permit application. And those without permits may communicate on public sidewalks, on street corners, through the mail, or through the telephone. Intermediate scrutiny analysis thus confirms what our cases have long said: A discretionless permit requirement for canvassers does not violate the First Amendment. Today, the Court elevates its concern with what is, at most, a negligible burden on door-to-door communication above this established proposition. Ironically, however, today's decision may result in less of the door-to-door communication that the Court extols. As the Court recognizes, any homeowner may place a "No Solicitation" sign on his or her property, and it is a crime to violate that sign. Ante, at 168. In light of today's decision depriving Stratton residents of the degree of accountability and safety that the permit requirement provides, more and more residents may decide to place these signs in their yards and cut off door-to-door communication altogether.

Justice Sotomayor

dissenting

Manhattan Community Access Corp. v. Halleck

2019-06-17

https://www.courtlistener.com/opinion/4630087/manhattan-community-access-corp-v-halleck/

https://www.courtlistener.com/api/rest/v3/clusters/4630087/

2018-047

The Court tells a very reasonable story about a case that is not before us. I write to address the one that is. This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public- access television channels when it granted a cable fran- chise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City con- tracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relation- ship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other. I A A cable-television franchise is, essentially, a license to create a system for distributing cable TV in a certain area. It is a valuable right, usually conferred on a private com- 2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting pany by a local government. See 47 U.S. C. §§522(9)–(10), 541(a)(2), (b)(1); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 628 (1994). A private company cannot enter a local cable market without one. §541(b)(1). Cable companies transmit content through wires that stretch “between a transmission facility and the television sets of individual subscribers.” Id., at 627–628. Creating this network of wires is a disruptive undertaking that “entails the use of public rights-of-way and easements.” Id., at 628. New York State authorizes municipalities to grant cable franchises to cable companies of a certain size only if those companies agree to set aside at least one public access channel. 16 N. Y. Codes, Rules & Regs. §§895.1(f ), 895.4(b)(1) (2016). New York then requires that those public-access channels be open to all comers on “a first- come, first-served, nondiscriminatory basis.” §895.4(c)(4). Likewise, the State prohibits both cable franchisees and local governments from “exercis[ing] any editorial control” over the channels, aside from regulating obscenity and other unprotected content. §§895.4(c)(8)–(9). B Years ago, New York City (no longer a party to this suit) and Time Warner Entertainment Company (never a party to this suit) entered into a cable-franchise agreement. App. 22. Time Warner received a cable franchise; the City received public-access channels. The agreement also provided that the public-access channels would be operated by an independent, nonprofit corporation chosen by the Manhattan borough president. But the City, as the prac- tice of other New York municipalities confirms, could have instead chosen to run the channels itself. See §895.4(c)(1); Brief for Respondents 35 (citing examples). MNN is the independent nonprofit that the borough president appointed to run the channels; indeed, MNN Cite as: 587 U. S. ____ (2019) 3 SOTOMAYOR, J., dissenting appears to have been incorporated in 1991 for that precise purpose, with seven initial board members selected by the borough president (though only two thus selected today). See App. 23; Brief for Respondents 7, n. 1. The City ar- ranged for MNN to receive startup capital from Time Warner and to be funded through franchise fees from Time Warner and other Manhattan cable franchisees. App. 23; Brief for New York County Lawyers Association (NYCLA) as Amicus Curiae 27; see also App. to Brief for Respondents 19a. As the borough president announced upon MNN’s formation in 1991, MNN’s “central charge is to administer and manage all the public access channels of the cable television systems in Manhattan.” App. to Brief for NYCLA as Amicus Curiae 1. As relevant here, respondents DeeDee Halleck and Jesus Papoleto Melendez sued MNN in U. S. District Court for the Southern District of New York under 42 U.S. C. §1983. They alleged that the public-access chan- nels, “[r]equired by state regulation and [the] local fran- chise agreements,” are “a designated public forum of unlimited character”; that the City had “delegated control of that public forum to MNN”; and that MNN had, in turn, engaged in viewpoint discrimination in violation of re- spondents’ First Amendment rights. App. 39. The District Court dismissed respondents’ First Amendment claim against MNN. The U. S. Court of Appeals for the Second Circuit reversed that dismissal, concluding that the public-access channels “are public forums and that [MNN’s] employees were sufficiently alleged to be state actors taking action barred by the First Amendment.” 882 F.3d 300, 301–302 (2018). Because the case before us arises from a motion to dismiss, re- spondents’ factual allegations must be accepted as true. Hernandez v. Mesa, 582 U. S. ___, ___ (2017) ( per curiam) (slip op., at 1). 4 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting II I would affirm the judgment below. The channels are clearly a public forum: The City has a property interest in them, and New York regulations require that access to those channels be kept open to all. And because the City (1) had a duty to provide that public forum once it granted a cable franchise and (2) had a duty to abide by the First Amendment once it provided that forum, those obligations did not evaporate when the City delegated the administra- tion of that forum to a private entity. Just as the City would have been subject to the First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation. A When a person alleges a violation of the right to free speech, courts generally must consider not only what was said but also in what context it was said. On the one hand, there are “public forums,” or settings that the government has opened in some way for speech by the public (or some subset of it). The Court’s prece- dents subdivide this broader category into various subcat- egories, with the level of leeway for government regulation of speech varying accordingly. See Minnesota Voters Alliance v. Mansky, 585 U. S. ___, ___ (2018) (slip op., at 7). Compare Frisby v. Schultz, 487 U.S. 474, 480 (1988) (streets and public parks, traditional public forums), with Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975) (city-leased theater, designated public forum), with Christian Legal Soc. Chapter of Univ. of Cal., Has- tings College of Law v. Martinez, 561 U.S. 661, 669, 679, and n. 12 (2010) (program for registered student organiza- tions, limited public forum). But while many cases turn on which type of “forum” is implicated, the important point here is that viewpoint discrimination is impermissi- ble in them all. See Good News Club v. Milford Central Cite as: 587 U. S. ____ (2019) 5 SOTOMAYOR, J., dissenting School, 533 U.S. 98, 106 (2001). On the other hand, there are contexts that do not fall under the “forum” rubric. For one, there are contexts in which the government is simply engaging in its own speech and thus has freedom to select the views it prefers. See, e.g., Walker v. Texas Div., Sons of Confederate Veter- ans, Inc., 576 U. S. ___, ___–___ (2015) (slip op., at 6–7) (specialty license plates); Pleasant Grove City v. Summum, 555 U.S. 460, 467–469, 481 (2009) (privately donated permanent monuments in a public park). 1 In addition, there are purely private spaces, where the First Amend- ment is (as relevant here) inapplicable. The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views. See, e.g., Lloyd Corp. v. Tanner, 407 U.S. 551, 569–570 (1972). In these settings, there is no First Amendment right against viewpoint discrimination. Here, respondents alleged viewpoint discrimination. App. 39. So a key question in this case concerns what the Manhattan public-access channels are: a public forum of some kind, in which a claim alleging viewpoint discrimina- tion would be cognizable, or something else, such as gov- ernment speech or purely private property, where picking favored viewpoints is appropriately commonplace. 2 Nei- ther MNN nor the majority suggests that this is an in- —————— 1 That does not mean that no restrictions apply at all to the govern- ment’s expression in such spaces, but it does mean that the government can pick and choose among different views. See Walker, 576 U. S., at ___, ___–___ (slip op., at 6, 17–18); Summum, 555 U.S., at 468. 2 The channels are not, of course, a physical place. Under the Court’s precedents, that makes no difference: Regardless of whether something “is a forum more in a metaphysical than in a spatial or geographic sense, . . . the same principles are applicable.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 830 (1995) (treating “Stu- dent Activities Fund” as the forum at issue and citing cases in which a school’s mail system and a charity drive were the relevant forums). 6 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting stance of government speech. This case thus turns first and foremost on whether the public-access channels are or are not purely private property. 3 1 This Court has not defined precisely what kind of gov- ernmental property interest (if any) is necessary for a public forum to exist. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 801 (1985) (“a speaker must seek access to public property or to private property dedicated to public use”). But see ante, at 11, n. 3 (appearing to reject the phrase “private property dedicated to public use” as “passing dicta”). I assume for the sake of argument in this case that public-forum analysis is inap- propriate where the government lacks a “significant prop- erty interest consistent with the communicative purpose of the forum.” Denver Area Ed. Telecommunications Consor- tium, Inc. v. FCC, 518 U.S. 727, 829 (1996) (THOMAS, J., concurring in judgment in part and dissenting in part). Such an interest is present here. As described above, New York State required the City to obtain public-access channels from Time Warner in exchange for awarding a cable franchise. See supra, at 2. The exclusive right to use these channels (and, as necessary, Time Warner’s infrastructure) qualifies as a property interest, akin at the very least to an easement. The last time this Court considered a case centering on public-access channels, five Justices described an interest like the one here as similar to an easement. Although JUSTICE BREYER did not conclude that a public-access channel was indeed a public forum, he likened the cable —————— 3 As discussed below, it is possible that some (or even many) public- access channels are government speech. The channels that MNN administers, however, are clearly better thought of as a public forum given the New York regulations mandating open and equal access. See infra, at 9–10, and n. 7. Cite as: 587 U. S. ____ (2019) 7 SOTOMAYOR, J., dissenting company’s agreement to reserve such channels “to the reservation of a public easement, or a dedication of land for streets and parks, as part of a municipality’s approval of a subdivision of land.” Denver Area, 518 U.S., at 760– 761 (joined by Stevens and Souter, JJ.). And Justice Kennedy observed not only that an easement would be an appropriate analogy, id., at 793–794 (opinion concurring in part, concurring in judgment in part, and dissenting in part, joined by GINSBURG, J.), but also that “[p]ublic access channels meet the definition of a public forum,” id., at 791, “even though they operate over property to which the cable operator holds title,” id., at 792; see also id., at 792– 793 (noting that the entire cable system’s existence stems from the municipality’s decision to grant the franchise). What those five Justices suggested in 1996 remains true today. “A common idiom describes property as a ‘bun- dle of sticks’—a collection of individual rights which, in certain combinations, constitute property.” United States v. Craft, 535 U.S. 274, 278 (2002). Rights to exclude and to use are two of the most crucial sticks in the bundle. See id., at 283. “State law determines . . . which sticks are in a person’s bundle,” id., at 278, and therefore defining prop- erty itself is a state-law exercise. 4 As for whether there is a sufficient property interest to trigger First Amendment forum analysis, related precedents show that there is. As noted above, there is no disputing that Time Warner owns the wires themselves. See Turner, 512 U.S., at 628. If the wires were a road, it would be easy to define the public’s right to walk on it as an easement. See, e.g., In re India Street, 29 N.Y. 2d 97, 100–103, 272 N. E 2d 518, —————— 4 The parties have not pointed this Court to any New York law defini- tively establishing the status of the channels. But even if there were uncertainty about the status of the channels under New York law, that would not be a reason to resolve the case against respondents (plaintiffs below) at the motion to dismiss stage. See infra, at 12, n. 9, 14. 8 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting 518–520 (1971). Similarly, if the wires were a theater, there would be no question that a government’s long-term lease to use it would be sufficient for public-forum pur- poses. Southeastern Promotions, 420 U.S., at 547, 555. But some may find this case more complicated because the wires are not a road or a theater that one can physically occupy; they are a conduit for transmitting signals that appear as television channels. In other words, the ques- tion is how to understand the right to place content on those channels using those wires. The right to convey expressive content using someone else’s physical infrastructure is not new. To give another low-tech example, imagine that one company owns a billboard and another rents space on that billboard. The renter can have a property interest in placing content on the billboard for the lease term even though it does not own the billboard itself. See, e.g., Naegele Outdoor Adver- tising Co. of Minneapolis v. Lakeville, 532 N.W.2d 249, 253 (Minn. 1995); see also Matter of XAR Corp. v. Di Do- nato, 76 A.D. 2d 972, 973, 429 N. Y. S. 2d 59, 60 (1980) (“Although invariably labeled ‘leases,’ agreements to erect advertising signs or to place signs on walls or fences are easements in gross”). The same principle should operate in this higher tech realm. Just as if the channels were a billboard, the City obtained rights for exclusive use of the channels by the public for the foreseeable future; no one is free to take the channels away, short of a contract renegotiation. Cf. Craft, 535 U.S., at 283. The City also obtained the right to administer, or delegate the administration of, the chan- nels. The channels are more intangible than a billboard, but no one believes that a right must be tangible to qualify as a property interest. See, e.g., Armstrong v. United States, 364 U.S. 40, 48–49 (1960) (treating destruction of valid liens as a taking); Adams Express Co. v. Ohio State Auditor, 166 U.S. 185, 219 (1897) (treating “privileges, Cite as: 587 U. S. ____ (2019) 9 SOTOMAYOR, J., dissenting corporate franchises, contracts or obligations” as taxable property). And it is hardly unprecedented for a govern- ment to receive a right to transmit something over a pri- vate entity’s infrastructure in exchange for conferring something of value on that private entity; examples go back at least as far as the 1800s. 5 I do not suggest that the government always obtains a property interest in public-access channels created by franchise agreements. But the arrangement here is con- sistent with what the Court would treat as a governmen- tal property interest in other contexts. New York City gave Time Warner the right to lay wires and sell cable TV. In exchange, the City received an exclusive right to send its own signal over Time Warner’s infrastructure—no different than receiving a right to place ads on another’s billboards. Those rights amount to a governmental prop- erty interest in the channels, and that property interest is clearly “consistent with the communicative purpose of the forum,” Denver Area, 518 U.S., at 829 (opinion of THOMAS, J.). Indeed, it is the right to transmit the very content to which New York law grants the public open and equal access. 2 With the question of a governmental property interest resolved, it should become clear that the public-access channels are a public forum. 6 Outside of classic examples —————— 5 For example, during the railroad boom, governments obtained not only physical easements in favor of the public over tracks used, owned, and managed by private railroads, including rights to use the rails and all relevant “fixtures and appurtenances,” see, e.g., Lake Superior & Mississippi R. Co. v. United States, 93 U.S. 442, 444, 453–454 (1877), but also, in some situations, rights to transmit personnel and freight for free or at reduced rates, Ellis, Railroad Land Grant Rates, 1850–1945, 21 J. Land & P. U. Econ. 207, 209, 211–212 (1945). 6 Though the majority disagrees on the property question, I do not take it seriously to dispute that this point would follow. See ante, at 10 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting like sidewalks and parks, a public forum exists only where the government has deliberately opened up the setting for speech by at least a subset of the public. Cornelius, 473 U.S., at 802. “Accordingly, the Court has looked to the policy and practice of the government,” as well as the nature of the property itself, “to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.” See ibid. For example, a state college might make its facilities open to student groups, or a municipality might open up an audi- torium for certain public meetings. See id., at 802–803. The requisite governmental intent is manifest here. As noted above, New York State regulations require that the channels be made available to the public “on a first-come, first-served, nondiscriminatory basis.” 16 N. Y. Codes, Rules & Regs. §895.4(c)(4); see also §§895.4(c)(8)–(9). The State, in other words, mandates that the doors be wide open for public expression. MNN’s contract with Time Warner follows suit. App. 23. And that is essentially how MNN itself describes things. See Tr. of Oral Arg. 9 (“We do not prescreen videos. We—they come into the door. We put them on the air”). 7 These regulations “evidenc[e] a clear intent to create a public forum.” Cornelius, 473 U.S., at 802. B If New York’s public-access channels are a public forum, it follows that New York cannot evade the First Amend- ment by contracting out administration of that forum to a —————— 14–15. 7 New York may be uncommon (as it often is); public-access channels in other States may well have different policies and practices that make them more like government speech than constitutional forums. See Brief for Respondents 30–31; Brief for American Civil Liberties Union et al. as Amici Curiae 13–15. New York’s scheme, however, is the only one before us. Cite as: 587 U. S. ____ (2019) 11 SOTOMAYOR, J., dissenting private agent. When MNN took on the responsibility of administering the forum, it stood in the City’s shoes and became a state actor for purposes of 42 U.S. C. §1983. This conclusion follows from the Court’s decision in West v. Atkins, 487 U.S. 42 (1988). The Court in West unani- mously held that a doctor hired to provide medical care to state prisoners was a state actor for purposes of §1983. Id., at 54; see also id., at 58 (Scalia, J., concurring in part and concurring in judgment). Each State must provide medical care to prisoners, the Court explained, id., at 54, and when a State hires a private doctor to do that job, the doctor becomes a state actor, “ ‘clothed with the authority of state law,’ ” id., at 55. If a doctor hired by the State abuses his role, the harm is “caused, in the sense relevant for state-action inquiry,” by the State’s having incarcer- ated the prisoner and put his medical care in that doctor’s hands. Ibid. The fact that the doctor was a private contractor, the Court emphasized, made no difference. Ibid. It was “the physician’s function within the state system,” not his private-contractor status, that determined whether his conduct could “fairly be attributed to the State.” Id., at 55–56. Once the State imprisoned the plaintiff, it owed him duties under the Eighth Amendment; once the State delegated those duties to a private doctor, the doctor became a state actor. See ibid.; see also id., at 56–57. If the rule were any different, a State would “ ‘be free to contract out all services which it is constitutionally obli- gated to provide and leave its citizens with no means for vindication of those rights, whose protection has been delegated to ‘private’ actors, when they have been denied.’ ” Id., at 56, n. 14. West resolves this case. Although the settings are dif- ferent, the legal features are the same: When a govern- ment (1) makes a choice that triggers constitutional obli- gations, and then (2) contracts out those constitutional 12 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting responsibilities to a private entity, that entity—in agree- ing to take on the job—becomes a state actor for purposes of §1983. 8 Not all acts of governmental delegation necessarily trigger constitutional obligations, but this one did. New York State regulations required the City to secure public- access channels if it awarded a cable franchise. 16 N. Y. Codes, Rules & Regs. §895.4(b)(1). The City did award a cable franchise. The State’s regulations then required the City to make the channels it obtained available on a “first- come, first-served, nondiscriminatory basis.” 9 §895.4(c)(4). —————— 8 Governments are, of course, not constitutionally required to open prisons or public forums, but once they do either of these things, constitutional obligations attach. The rule that a government may not evade the Constitution by substituting a private administrator, mean- while, is not a prison-specific rule. More than 50 years ago, for exam- ple, this Court made clear in Evans v. Newton, 382 U.S. 296 (1966), that the city of Macon, Georgia, could not evade the Fourteenth Amendment’s Equal Protection Clause by handing off control of a park to a group “of ‘private’ trustees.” Id., at 301. Rather, “the public character of [the] park require[d] that it be treated as a public institu- tion subject to the command of the Fourteenth Amendment, regardless of who ha[d] title under state law.” Id., at 302. 9 Accordingly, this is not a case in which a private entity has been asked to exercise standardless discretion. See, e.g., American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999). Had New York law left MNN free to choose its favorite submissions, for example, a differ- ent result might well follow. MNN has suggested to this Court that its contract with Time Warner allows it “to curate content, to decide to put shows together on one of our channels or a different channel.” Tr. of Oral Arg. 6; see Reply Brief 9. But MNN’s contract cannot defeat New York law’s “first-come, first- served, nondiscriminatory” scheduling requirement, 16 N. Y. Codes, Rules & Regs. §895.4(c)(4), and the discretion MNN asserts seems to be at most some limited authority to coordinate the exact placement and timing of the content it is obliged to accept indiscriminately, see Tr. of Oral Arg. 25–26. That seems akin to the authority to make reasonable time, place, and manner provisions, which is consistent with adminis- tering any public forum. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). As for any factual assertions about how the channels Cite as: 587 U. S. ____ (2019) 13 SOTOMAYOR, J., dissenting That made the channels a public forum. See supra, at 9– 10. Opening a public forum, in turn, entailed First Amendment obligations. The City could have done the job itself, but it instead delegated that job to a private entity, MNN. MNN could have said no, but it said yes. (Indeed, it appears to exist entirely to do this job.) By accepting the job, MNN accepted the City’s responsibilities. See West, 487 U.S., at 55. The First Amendment does not fall silent simply because a government hands off the administration of its constitu- tional duties to a private actor. III The majority acknowledges that the First Amendment could apply when a local government either (1) has a property interest in public-access channels or (2) is more directly involved in administration of those channels than the City is here. Ante, at 15. And it emphasizes that it “decide[s] only the case before us in light of the record before us.” Ibid. These case-specific qualifiers sharply limit the immediate effect of the majority’s decision, but that decision is still meaningfully wrong in two ways. First, the majority erroneously decides the property ques- tion against the plaintiffs as a matter of law. Second, and more fundamentally, the majority mistakes a case about the government choosing to hand off responsibility to an agent for a case about a private entity that simply enters a marketplace. A The majority’s explanation for why there is no govern- —————— are operated in practice, this case arises from MNN’s motion to dismiss, so the facts asserted against it must be accepted as true. Hernandez v. Mesa, 582 U. S. ___, ___ (2017) (per curiam) (slip op., at 1). And any uncertainty about the facts or New York law, in any event, would be a reason to vacate and remand, not reverse. 14 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting mental property interest here, ante, at 14–15, does not hold up. The majority focuses on the fact that “[b]oth Time Warner and MNN are private entities”; that Time Warner “owns its cable network, which contains the public access channels”; and that “MNN operates those public access channels with its own facilities and equipment.” Ante, at 14; see also ante, at 15. Those considerations cannot resolve this case. The issue is not who owns the cable network or that MNN uses its own property to oper- ate the channels. The key question, rather, is whether the channels themselves are purely private property. An advertiser may not own a billboard, but that does not mean that its long-term lease is not a property interest. See supra, at 8. The majority also says that “[n]othing in the record here suggests that a government . . . owns or leases either the cable system or the public access channels at issue here.” Ante, at 14. But the cable system itself is irrelevant, and, as explained above, the details of the exchange that yielded Time Warner’s cable franchise suggest a governmental property interest in the channels. See supra, at 6–9. The majority observes that “the franchise agreements expressly place the public access channels ‘under the jurisdiction’ of MNN,” ante, at 14, but that language sim- ply describes the City’s appointment of MNN to administer the channels. The majority also chides respondents for failing to “alleg[e] in their complaint that the City has a property interest in the channels,” ibid., but, fairly read, respondents’ complaint includes such an assertion. 10 In —————— 10 Respondents alleged that the City “created an electronic public forum” and “delegat[ed] control of that forum to” MNN. App. 17. They further alleged that “[a]lmost all cable franchise agreements require cable operators—as a condition for easements to use the public rights- of-way—to dedicate some channels for programming by the public,” id., at 20, invoked the state regulations requiring the designation of a channel here, id., at 21, and then alleged that the City’s franchise Cite as: 587 U. S. ____ (2019) 15 SOTOMAYOR, J., dissenting any event, any ambiguity or imprecision does not justify resolving the case against respondents at the motion-to- dismiss stage. To the extent the majority has doubts about respondents’ complaint—or factual or state-law issues that may bear upon the existence of a property interest—the more prudent course would be to vacate and remand for the lower courts to consider those matters more fully. In any event, as I have explained, the best course of all would be to affirm. B More fundamentally, the majority’s opinion erroneously fixates on a type of case that is not before us: one in which a private entity simply enters the marketplace and is then subject to government regulation. The majority swings hard at the wrong pitch. The majority focuses on Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), which is a paradigmatic example of a line of cases that reject §1983 liability for private actors that simply operate against a regulatory backdrop. Jackson emphasized that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” Id., at 350; accord, ante, at 12. Thus, the fact that a utility company entered the marketplace did not make it a state actor, even if it was highly regulated. See Jackson, 419 U.S., at 358; accord, —————— agreement “requires Time Warner to set aside” the channels, id., at 22. While the complaint does not use the words “property interest,” those allegations can be read to include the idea that whatever was “set aside” or “dedicate[d],” id., at 20, 22, qualified as a sufficient City property interest to support respondents’ assertion of a public forum. Cf. People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394, 400–401, 7 N.E.2d 833, 835 (1937) (discussing dedications of property to public use); cf. also Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 794 (1996) (Kennedy, J., concurring in part, con- curring in judgment in part, and dissenting in part) (noting this theory). 16 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting ante, at 12–13. The same rule holds, of course, for private comedy clubs and grocery stores. See ante, at 9. 11 The Jackson line of cases is inapposite here. MNN is not a private entity that simply ventured into the market- place. It occupies its role because it was asked to do so by the City, which secured the public-access channels in exchange for giving up public rights of way, opened those channels up (as required by the State) as a public forum, and then deputized MNN to administer them. That dis- tinguishes MNN from a private entity that simply sets up shop against a regulatory backdrop. To say that MNN is nothing more than a private organization regulated by the government is like saying that a waiter at a restaurant is —————— 11 There was a time when this Court’s precedents may have portended the kind of First Amendment liability for purely private property owners that the majority spends so much time rejecting. See Marsh v. Alabama, 326 U.S. 501, 505–509 (1946) (treating a company-owned town as subject to the First Amendment); Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308, 315–320, and n. 9, 325 (1968) (extend- ing Marsh to cover a private shopping center to the extent that it sought to restrict speech about its businesses). But the Court soon stanched that trend. See Lloyd Corp. v. Tanner, 407 U.S. 551, 561–567 (1972) (cabining Marsh and refusing to extend Logan Valley); Hudgens v. NLRB, 424 U.S. 507, 518 (1976) (making clear that “the rationale of Logan Valley did not survive” Lloyd). Ever since, this Court has been reluctant to find a “public function” when it comes to “private commer- cial transactions” (even if they occur against a legal or regulatory backdrop), see, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 161–163 (1978), instead requiring a closer connection between the private entity and a government or its agents, see, e.g., Brentwood Academy v. Ten- nessee Secondary School Athletic Assn., 531 U.S. 288, 298 (2001) (nonprofit interscholastic athletic association “pervasive[ly] entwine[d]” with governmental institutions and officials); Lugar v. Edmondson Oil Co., 457 U.S. 922, 942 (1982) (state-created system “whereby state officials [would] attach property on the ex parte application of one party to a private dispute”); see also Burton v. Wilmington Parking Authority, 365 U.S. 715, 723–725 (1961) (restaurant in municipal parking garage partly maintained by municipal agency); accord, ante, at 6–7. Jackson exemplifies the line of cases that supplanted cases like Logan Valley— not cases like this one. Cite as: 587 U. S. ____ (2019) 17 SOTOMAYOR, J., dissenting an independent food seller who just happens to be highly regulated by the restaurant’s owners. The majority also relies on the Court’s statements that its “public function” test requires that a function have been “traditionally and exclusively performed” by the government. Ante, at 6 (emphasis deleted); see Jackson, 419 U.S., at 352. Properly understood, that rule cabins liability in cases, such as Jackson, in which a private actor ventures of its own accord into territory shared (or regu- lated) by the government (e.g., by opening a power com- pany or a shopping center). The Court made clear in West that the rule did not reach further, explaining that “the fact that a state employee’s role parallels one in the pri- vate sector” does not preclude a finding of state action. 487 U.S., at 56, n. 15. When the government hires an agent, in other words, the question is not whether it hired the agent to do some- thing that can be done in the private marketplace too. If that were the key question, the doctor in West would not have been a state actor. Nobody thinks that orthopedics is a function “traditionally exclusively reserved to the State,” Jackson, 419 U.S., at 352. The majority consigns West to a footnote, asserting that its “scenario is not present here because the government has no [constitutional] obligation to operate public access channels.” Ante, at 7, n. 1. The majority suggests that West is different because “the State was constitutionally obligated to provide medical care to prison inmates.” Ante, at 7, n. 1. But what the majority ignores is that the State in West had no constitutional obligation to open the prison or incarcerate the prisoner in the first place; the obligation to provide medical care arose when it made those prior choices. The City had a comparable constitutional obligation here—one brought about by its own choices, made against a state-law backdrop. The City, of course, had no constitu- 18 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting tional obligation to award a cable franchise or to operate public-access channels. But once the City did award a cable franchise, New York law required the City to obtain public-access channels, see supra, at 2, and to open them up as a public forum, see supra, at 9–10. That is when the City’s obligation to act in accordance with the First Amendment with respect to the channels arose. That is why, when the City handed the administration of that forum off to an agent, the Constitution followed. See supra, at 10–13. 12 The majority is surely correct that “when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment.” Ante, at 9. That is because the majority is not talking about constitutional forums—it is talking about spaces where private entities have simply invited others to come speak. A comedy club can decide to open its doors as wide as it wants, but it cannot appoint itself as a government agent. The difference is between providing a service of one’s own accord and being asked by the government to administer a constitutional responsibility (indeed, here, existing to do so) on the government’s behalf. 13 —————— 12 Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), by con- trast, exemplifies a type of case in which a private actor provides a service that there is no governmental obligation to provide at all. See id., at 353 (no state requirement for government to provide utility service); see also, e.g., Hudgens, 424 U.S. 507 (shopping center). In West v. Atkins, 487 U.S. 42 (1988), by contrast, the prison was obli- gated to provide health care in accordance with the Eighth Amendment to its prisoners once it incarcerated them, and here, the City was required to provide a public forum to its residents in accordance with the First Amendment once it granted the cable franchise. See supra, at 11–13. 13 Accordingly, the majority need not fear that “all private property owners and private lessees who open their property for speech [c]ould be subject to First Amendment constraints.” Ante, at 10. Those kinds of entities are not the government’s agents; MNN is. Whether such entities face “extensive regulation” or require “government licenses, government contracts, or government-granted monopolies,” ante, at 12, Cite as: 587 U. S. ____ (2019) 19 SOTOMAYOR, J., dissenting To see more clearly the difference between the cases on which the majority fixates and the present case, leave aside the majority’s private comedy club. Imagine instead that a state college runs a comedy showcase each year, renting out a local theater and, pursuant to state regula- tions mandating open access to certain kinds of student activities, allowing students to sign up to perform on a first-come, first-served basis. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995). After a few years, the college decides that it is tired of running the show, so it hires a performing-arts nonprofit to do the job. The nonprofit prefers humor that makes fun of a certain political party, so it allows only student acts that share its views to participate. Does the majority believe that the nonprofit is indistinguishable, for purposes of state action, from a private comedy club opened by local entrepreneurs? I hope not. But two dangers lurk here regardless. On the one hand, if the City’s decision to outsource the chan- nels to a private entity did render the First Amendment irrelevant, there would be substantial cause to worry about the potential abuses that could follow. Can a state university evade the First Amendment by hiring a non- profit to apportion funding to student groups? Can a city do the same by appointing a corporation to run a munici- pal theater? What about its parks? On the other hand, the majority hastens to qualify its decision, see ante, at 7, n. 1, 15, and to cabin it to the specific facts of this case, ante, at 15. Those are prudent limitations. Even so, the majority’s focus on Jackson still risks sowing confusion among the lower courts about how and when government outsourcing will render any abuses that follow beyond the reach of the Constitution. In any event, there should be no confusion here. MNN —————— is immaterial, so long as they have not accepted the government’s request to fulfill the government’s duties on its behalf. 20 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting is not a private entity that ventured into the marketplace and found itself subject to government regulation. It was asked to do a job by the government and compensated accordingly. If it does not want to do that job anymore, it can stop (subject, like any other entity, to its contractual obligations). But as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the First Amend- ment like any other government actor. IV This is not a case about bigger governments and smaller individuals, ante, at 16; it is a case about principals and agents. New York City opened up a public forum on public- access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amend- ment, just as if the City had decided to run the public forum itself. While the majority emphasizes that its decision is nar- row and factbound, ante, at 15, that does not make it any less misguided. It is crucial that the Court does not con- tinue to ignore the reality, fully recognized by our prece- dents, that private actors who have been delegated consti- tutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent

The Court tells a very reasonable story about a case that is not before us. I write to address the one that is. This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public- access television channels when it granted a cable fran- chise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City con- tracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relation- ship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other. I A A cable-television franchise is, essentially, a license to create a system for distributing cable TV in a certain area. It is a valuable right, usually conferred on a private com- 2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting pany by a local government. See 47 U.S. C. 541(a)(2), (b)(1); Broadcasting System, A private company cannot enter a local cable market without one. Cable companies transmit content through wires that stretch “between a transmission facility and the television sets of individual subscribers.” at 627–. Creating this network of wires is a disruptive undertaking that “entails the use of public rights-of-way and easements.” at New York State authorizes municipalities to grant cable franchises to cable companies of a certain size only if those companies agree to set aside at least one public access channel. 16 N. Y. Codes, Rules & Regs. ), 895.4(b)(1) (2016). New York then requires that those public-access channels be open to all comers on “a first- come, first-served, nondiscriminatory basis.” Likewise, the State prohibits both cable franchisees and local governments from “exercis[ing] any editorial control” over the channels, aside from regulating obscenity and other unprotected content. B Years ago, New York City (no longer a party to this suit) and Time Warner Entertainment Company (never a party to this suit) entered into a cable-franchise agreement. App. 22. Time Warner received a cable franchise; the City received public-access channels. The agreement also provided that the public-access channels would be operated by an independent, nonprofit corporation chosen by the Manhattan borough president. But the City, as the prac- tice of other New York municipalities confirms, could have instead chosen to run the channels itself. See Brief for Respondents 35 (citing examples). MNN is the independent nonprofit that the borough president appointed to run the channels; indeed, MNN Cite as: 587 U. S. (2019) 3 SOTOMAYOR, J., dissenting appears to have been incorporated in 1991 for that precise purpose, with seven initial board members selected by the borough president (though only two thus selected today). See App. 23; Brief for Respondents 7, n. 1. The City ar- ranged for MNN to receive startup capital from Time Warner and to be funded through franchise fees from Time Warner and other Manhattan cable franchisees. App. 23; Brief for New York County Lawyers Association (NYCLA) as Amicus Curiae 27; see also App. to Brief for Respondents 19a. As the borough president announced upon MNN’s formation in 1991, MNN’s “central charge is to administer and manage all the public access channels of the cable television systems in Manhattan.” App. to Brief for NYCLA as Amicus Curiae 1. As relevant here, respondents DeeDee Halleck and Jesus Papoleto Melendez sued MNN in U. S. District Court for the Southern District of New York under 42 U.S. C. They alleged that the public-access chan- nels, “[r]equired by state regulation and [the] local fran- chise agreements,” are “a designated public forum of unlimited character”; that the City had “delegated control of that public forum to MNN”; and that MNN had, in turn, engaged in viewpoint discrimination in violation of re- spondents’ First Amendment rights. App. 39. The District Court dismissed respondents’ First Amendment claim against MNN. The U. S. Court of Appeals for the Second Circuit reversed that dismissal, concluding that the public-access channels “are public forums and that [MNN’s] employees were sufficiently alleged to be state actors taking action barred by the First Amendment.” Because the case before us arises from a motion to dismiss, re- spondents’ factual allegations must be accepted as true. Hernandez v. Mesa, 582 U. S. (2017) ( per curiam) (slip op., at 1). 4 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting II I would affirm the judgment below. The channels are clearly a public forum: The City has a property interest in them, and New York regulations require that access to those channels be kept open to all. And because the City (1) had a duty to provide that public forum once it granted a cable franchise and (2) had a duty to abide by the First Amendment once it provided that forum, those obligations did not evaporate when the City delegated the administra- tion of that forum to a private entity. Just as the City would have been subject to the First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation. A When a person alleges a violation of the right to free speech, courts generally must consider not only what was said but also in what context it was said. On the one hand, there are “public forums,” or settings that the government has opened in some way for speech by the public (or some subset of it). The Court’s prece- dents subdivide this broader category into various subcat- egories, with the level of leeway for government regulation of speech varying accordingly. See Minnesota Voters Alliance v. Mansky, 585 U. S. (slip op., at 7). Compare (streets and public parks, traditional public forums), with Southeastern 555 (1975) (city-leased theater, designated public forum), with Christian Legal Soc. Chapter of Univ. of Cal., Has- tings College of and n. 12 (2010) (program for registered student organiza- tions, limited public forum). But while many cases turn on which type of “forum” is implicated, the important point here is that viewpoint discrimination is impermissi- ble in them all. See Good News Club v. Milford Central Cite as: 587 U. S. (2019) 5 SOTOMAYOR, J., dissenting School, On the other hand, there are contexts that do not fall under the “forum” rubric. For one, there are contexts in which the government is simply engaging in its own speech and thus has freedom to select the views it prefers. See, e.g., Walker v. Texas Div., Sons of Confederate Veter- ans, Inc., 576 U. S. – (2015) (slip op., at 6–7) (specialty license plates); Pleasant Grove (privately donated permanent monuments in a public park). 1 In addition, there are purely private spaces, where the First Amend- ment is (as relevant here) inapplicable. The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views. See, e.g., Lloyd Corp. v. Tanner, In these settings, there is no First Amendment right against viewpoint discrimination. Here, respondents alleged viewpoint discrimination. App. 39. So a key question in this case concerns what the Manhattan public-access channels are: a public forum of some kind, in which a claim alleging viewpoint discrimina- tion would be cognizable, or something else, such as gov- ernment speech or purely private property, where picking favored viewpoints is appropriately commonplace. 2 Nei- ther MNN nor the majority suggests that this is an in- —————— 1 That does not mean that no restrictions apply at all to the govern- ment’s expression in such spaces, but it does mean that the government can pick and choose among different views. See Walker, 576 U. S., at – (slip op., at 6, 17–18); 2 The channels are not, of course, a physical place. Under the Court’s precedents, that makes no difference: Regardless of whether something “is a forum more in a metaphysical than in a spatial or geographic sense, the same principles are applicable.” (treating “Stu- dent Activities Fund” as the forum at issue and citing cases in which a school’s mail system and a charity drive were the relevant forums). 6 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting stance of government speech. This case thus turns first and foremost on whether the public-access channels are or are not purely private property. 3 1 This Court has not defined precisely what kind of gov- ernmental property interest (if any) is necessary for a public forum to exist. See (“a speaker must seek access to public property or to private property dedicated to public use”). But see ante, at 11, n. 3 (appearing to reject the phrase “private property dedicated to public use” as “passing dicta”). I assume for the sake of argument in this case that public-forum analysis is inap- propriate where the government lacks a “significant prop- erty interest consistent with the communicative purpose of the forum.” Denver Ed. Telecommunications Consor- tium, (THOMAS, J., concurring in judgment in part and dissenting in part). Such an interest is present here. As described above, New York State required the City to obtain public-access channels from Time Warner in exchange for awarding a cable franchise. See The exclusive right to use these channels (and, as necessary, Time Warner’s infrastructure) qualifies as a property interest, akin at the very least to an easement. The last time this Court considered a case centering on public-access channels, five Justices described an interest like the one here as similar to an easement. Although JUSTICE BREYER did not conclude that a public-access channel was indeed a public forum, he likened the cable —————— 3 As discussed below, it is possible that some (or even many) public- access channels are government speech. The channels that MNN administers, however, are clearly better thought of as a public forum given the New York regulations mandating open and equal access. See infra, at 9–10, and n. 7. Cite as: 587 U. S. (2019) 7 SOTOMAYOR, J., dissenting company’s agreement to reserve such channels “to the reservation of a public easement, or a dedication of land for streets and parks, as part of a municipality’s approval of a subdivision of land.” Denver – 761 (joined by Stevens and Souter, JJ.). And Justice Kennedy observed not only that an easement would be an appropriate analogy, at 793– (opinion concurring in part, concurring in judgment in part, and dissenting in part, joined by GINSBURG, J.), but also that “[p]ublic access channels meet the definition of a public forum,” “even though they operate over property to which the cable operator holds title,” ; see also – 793 (noting that the entire cable system’s existence stems from the municipality’s decision to grant the franchise). What those five Justices suggested in 1996 remains true today. “A common idiom describes property as a ‘bun- dle of sticks’—a collection of individual rights which, in certain combinations, constitute property.” United States v. Rights to exclude and to use are two of the most crucial sticks in the bundle. See 83. “State law determines which sticks are in a person’s bundle,” 78, and therefore defining prop- erty itself is a state-law exercise. 4 As for whether there is a sufficient property interest to trigger First Amendment forum analysis, related precedents show that there is. As noted above, there is no disputing that Time Warner owns the wires themselves. See 512 U.S., at If the wires were a road, it would be easy to define the public’s right to walk on it as an easement. See, e.g., In re India Street, 100–103, 272 N. E 2d —————— 4 The parties have not pointed this Court to any New York law defini- tively establishing the status of the channels. But even if there were uncertainty about the status of the channels under New York law, that would not be a reason to resolve the case against respondents (plaintiffs below) at the motion to dismiss stage. See infra, at 12, n. 9, 14. 8 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting –0 (1971). Similarly, if the wires were a theater, there would be no question that a government’s long-term lease to use it would be sufficient for public-forum pur- poses. Southeastern 555. But some may find this case more complicated because the wires are not a road or a theater that one can physically occupy; they are a conduit for transmitting signals that appear as television channels. In other words, the ques- tion is how to understand the right to place content on those channels using those wires. The right to convey expressive content using someone else’s physical infrastructure is not new. To give another low-tech example, imagine that one company owns a billboard and another rents space on that billboard. The renter can have a property interest in placing content on the billboard for the lease term even though it does not own the billboard itself. See, e.g., Naegele Outdoor Adver- tising Co. of 253 ; see also Matter of XAR 429 N. Y. S. 2d 59, 60 (1980) (“Although invariably labeled ‘leases,’ agreements to erect advertising signs or to place signs on walls or fences are easements in gross”). The same principle should operate in this higher tech realm. Just as if the channels were a billboard, the City obtained rights for exclusive use of the channels by the public for the foreseeable future; no one is free to take the channels away, short of a contract renegotiation. Cf. 535 U.S., 83. The City also obtained the right to administer, or delegate the administration of, the chan- nels. The channels are more intangible than a billboard, but no one believes that a right must be tangible to qualify as a property interest. See, e.g., (treating destruction of valid liens as a taking); Adams Express (treating “privileges, Cite as: 587 U. S. (2019) 9 SOTOMAYOR, J., dissenting corporate franchises, contracts or obligations” as taxable property). And it is hardly unprecedented for a govern- ment to receive a right to transmit something over a pri- vate entity’s infrastructure in exchange for conferring something of value on that private entity; examples go back at least as far as the 1800s. 5 I do not suggest that the government always obtains a property interest in public-access channels created by franchise agreements. But the arrangement here is con- sistent with what the Court would treat as a governmen- tal property interest in other contexts. New York City gave Time Warner the right to lay wires and sell cable TV. In exchange, the City received an exclusive right to send its own signal over Time Warner’s infrastructure—no different than receiving a right to place ads on another’s billboards. Those rights amount to a governmental prop- erty interest in the channels, and that property interest is clearly “consistent with the communicative purpose of the forum,” Denver U.S., at (opinion of THOMAS, J.). Indeed, it is the right to transmit the very content to which New York law grants the public open and equal access. 2 With the question of a governmental property interest resolved, it should become clear that the public-access channels are a public forum. 6 Outside of classic examples —————— 5 For example, during the railroad boom, governments obtained not only physical easements in favor of the public over tracks used, owned, and managed by private railroads, including rights to use the rails and all relevant “fixtures and appurtenances,” see, e.g., Lake Superior & Mississippi R. but also, in some situations, rights to transmit personnel and freight for free or at reduced rates, Ellis, Railroad Land Grant Rates, 1850–1945, 21 J. Land & P. U. Econ. 207, 209, 211–212 (1945). 6 Though the majority disagrees on the property question, I do not take it seriously to dispute that this point would follow. See ante, at 10 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting like sidewalks and parks, a public forum exists only where the government has deliberately opened up the setting for speech by at least a subset of the public. Cornelius, 473 U.S., 02. “Accordingly, the Court has looked to the policy and practice of the government,” as well as the nature of the property itself, “to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.” See For example, a state college might make its facilities open to student groups, or a municipality might open up an audi- torium for certain public meetings. See 02–803. The requisite governmental intent is manifest here. As noted above, New York State regulations require that the channels be made available to the public “on a first-come, first-served, nondiscriminatory basis.” 16 N. Y. Codes, Rules & Regs. see also The State, in other words, mandates that the doors be wide open for public expression. MNN’s contract with Time Warner follows suit. App. 23. And that is essentially how MNN itself describes things. See Tr. of Oral Arg. 9 (“We do not prescreen videos. We—they come into the door. We put them on the air”). 7 These regulations “evidenc[e] a clear intent to create a public forum.” Cornelius, 473 U.S., 02. B If New York’s public-access channels are a public forum, it follows that New York cannot evade the First Amend- ment by contracting out administration of that forum to a —————— 14–15. 7 New York may be uncommon (as it often is); public-access channels in other States may well have different policies and practices that make them more like government speech than constitutional forums. See Brief for Respondents 30–31; Brief for American Civil Liberties Union et al. as Amici Curiae 13–15. New York’s scheme, however, is the only one before us. Cite as: 587 U. S. (2019) 11 SOTOMAYOR, J., dissenting private agent. When MNN took on the responsibility of administering the forum, it stood in the City’s shoes and became a state actor for purposes of 42 U.S. C. This conclusion follows from the Court’s decision in v. Atkins, The Court in unani- mously held that a doctor hired to provide medical care to state prisoners was a state actor for purposes of ; see also (Scalia, J., concurring in part and concurring in judgment). Each State must provide medical care to prisoners, the Court explained, and when a State hires a private doctor to do that job, the doctor becomes a state actor, “ ‘clothed with the authority of state law,’ ” If a doctor hired by the State abuses his role, the harm is “caused, in the sense relevant for state-action inquiry,” by the State’s having incarcer- ated the prisoner and put his medical care in that doctor’s hands. The fact that the doctor was a private contractor, the Court emphasized, made no difference. It was “the physician’s function within the state system,” not his private-contractor status, that determined whether his conduct could “fairly be attributed to the State.” at 55–56. Once the State imprisoned the plaintiff, it owed him duties under the Eighth Amendment; once the State delegated those duties to a private doctor, the doctor became a state actor. See ; see also at 56–57. If the rule were any different, a State would “ ‘be free to contract out all services which it is constitutionally obli- gated to provide and leave its citizens with no means for vindication of those rights, whose protection has been delegated to ‘private’ actors, when they have been denied.’ ” resolves this case. Although the settings are dif- ferent, the legal features are the same: When a govern- ment (1) makes a choice that triggers constitutional obli- gations, and then (2) contracts out those constitutional 12 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting responsibilities to a private entity, that entity—in agree- ing to take on the job—becomes a state actor for purposes of 8 Not all acts of governmental delegation necessarily trigger constitutional obligations, but this one did. New York State regulations required the City to secure public- access channels if it awarded a cable franchise. 16 N. Y. Codes, Rules & Regs. The City did award a cable franchise. The State’s regulations then required the City to make the channels it obtained available on a “first- come, first-served, nondiscriminatory basis.” 9 —————— 8 Governments are, of course, not constitutionally required to open prisons or public forums, but once they do either of these things, constitutional obligations attach. The rule that a government may not evade the Constitution by substituting a private administrator, mean- while, is not a prison-specific rule. More than 50 years ago, for exam- ple, this Court made clear in that the city of Macon, Georgia, could not evade the Fourteenth Amendment’s Equal Protection Clause by handing off control of a park to a group “of ‘private’ trustees.” Rather, “the public character of [the] park require[d] that it be treated as a public institu- tion subject to the command of the Fourteenth Amendment, regardless of who ha[d] title under state law.” 9 Accordingly, this is not a case in which a private entity has been asked to exercise standardless discretion. See, e.g., American Mfrs. Mut. Ins. Had New York law left MNN free to choose its favorite submissions, for example, a differ- ent result might well follow. MNN has suggested to this Court that its contract with Time Warner allows it “to curate content, to decide to put shows together on one of our channels or a different channel.” Tr. of Oral Arg. 6; see Reply Brief 9. But MNN’s contract cannot defeat New York law’s “first-come, first- served, nondiscriminatory” scheduling requirement, 16 N. Y. Codes, Rules & Regs. and the discretion MNN asserts seems to be at most some limited authority to coordinate the exact placement and timing of the content it is obliged to accept indiscriminately, see Tr. of Oral Arg. 25–26. That seems akin to the authority to make reasonable time, place, and manner provisions, which is consistent with adminis- tering any public forum. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). As for any factual assertions about how the channels Cite as: 587 U. S. (2019) 13 SOTOMAYOR, J., dissenting That made the channels a public forum. See at 9– 10. Opening a public forum, in turn, entailed First Amendment obligations. The City could have done the job itself, but it instead delegated that job to a private entity, MNN. MNN could have said no, but it said yes. (Indeed, it appears to exist entirely to do this job.) By accepting the job, MNN accepted the City’s responsibilities. See 487 U.S., The First Amendment does not fall silent simply because a government hands off the administration of its constitu- tional duties to a private actor. III The majority acknowledges that the First Amendment could apply when a local government either (1) has a property interest in public-access channels or (2) is more directly involved in administration of those channels than the City is here. Ante, at 15. And it emphasizes that it “decide[s] only the case before us in light of the record before us.” These case-specific qualifiers sharply limit the immediate effect of the majority’s decision, but that decision is still meaningfully wrong in two ways. First, the majority erroneously decides the property ques- tion against the plaintiffs as a matter of law. Second, and more fundamentally, the majority mistakes a case about the government choosing to hand off responsibility to an agent for a case about a private entity that simply enters a marketplace. A The majority’s explanation for why there is no govern- —————— are operated in practice, this case arises from MNN’s motion to dismiss, so the facts asserted against it must be accepted as true. Hernandez v. Mesa, 582 U. S. (2017) (per curiam) (slip op., at 1). And any uncertainty about the facts or New York law, in any event, would be a reason to vacate and remand, not reverse. 14 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting mental property interest here, ante, at 14–15, does not hold up. The majority focuses on the fact that “[b]oth Time Warner and MNN are private entities”; that Time Warner “owns its cable network, which contains the public access channels”; and that “MNN operates those public access channels with its own facilities and equipment.” Ante, at 14; see also ante, at 15. Those considerations cannot resolve this case. The issue is not who owns the cable network or that MNN uses its own property to oper- ate the channels. The key question, rather, is whether the channels themselves are purely private property. An advertiser may not own a billboard, but that does not mean that its long-term lease is not a property interest. See The majority also says that “[n]othing in the record here suggests that a government owns or leases either the cable system or the public access channels at issue here.” Ante, at 14. But the cable system itself is irrelevant, and, as explained above, the details of the exchange that yielded Time Warner’s cable franchise suggest a governmental property interest in the channels. See at 6–9. The majority observes that “the franchise agreements expressly place the public access channels ‘under the jurisdiction’ of MNN,” ante, at 14, but that language sim- ply describes the City’s appointment of MNN to administer the channels. The majority also chides respondents for failing to “alleg[e] in their complaint that the City has a property interest in the channels,” ib but, fairly read, respondents’ complaint includes such an assertion. 10 In —————— 10 Respondents alleged that the City “created an electronic public forum” and “delegat[ed] control of that forum to” MNN. App. 17. They further alleged that “[a]lmost all cable franchise agreements require cable operators—as a condition for easements to use the public rights- of-way—to dedicate some channels for programming by the public,” 0, invoked the state regulations requiring the designation of a channel here, 1, and then alleged that the City’s franchise Cite as: 587 U. S. (2019) 15 SOTOMAYOR, J., dissenting any event, any ambiguity or imprecision does not justify resolving the case against respondents at the motion-to- dismiss stage. To the extent the majority has doubts about respondents’ complaint—or factual or state-law issues that may bear upon the existence of a property interest—the more prudent course would be to vacate and remand for the lower courts to consider those matters more fully. In any event, as I have explained, the best course of all would be to affirm. B More fundamentally, the majority’s opinion erroneously fixates on a type of case that is not before us: one in which a private entity simply enters the marketplace and is then subject to government regulation. The majority swings hard at the wrong pitch. The majority focuses on which is a paradigmatic example of a line of cases that reject liability for private actors that simply operate against a regulatory backdrop. emphasized that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” ; accord, ante, at 12. Thus, the fact that a utility company entered the marketplace did not make it a state actor, even if it was highly regulated. See ; accord, —————— agreement “requires Time Warner to set aside” the channels, 2. While the complaint does not use the words “property interest,” those allegations can be read to include the idea that whatever was “set aside” or “dedicate[d],” 0, 22, qualified as a sufficient City property interest to support respondents’ assertion of a public forum. Cf. 400–401, (discussing dedications of property to public use); cf. also Denver Ed. Telecommunications Consortium, Inc. v. FCC, (Kennedy, J., concurring in part, con- curring in judgment in part, and dissenting in part) (noting this theory). 16 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting ante, at 12–13. The same rule holds, of course, for private comedy clubs and grocery stores. See ante, at 9. 11 The line of cases is inapposite here. MNN is not a private entity that simply ventured into the market- place. It occupies its role because it was asked to do so by the City, which secured the public-access channels in exchange for giving up public rights of way, opened those channels up (as required by the State) as a public forum, and then deputized MNN to administer them. That dis- tinguishes MNN from a private entity that simply sets up shop against a regulatory backdrop. To say that MNN is nothing more than a private organization regulated by the government is like saying that a waiter at a restaurant is —————— 11 There was a time when this Court’s precedents may have portended the kind of First Amendment liability for purely private property owners that the majority spends so much time rejecting. See Marsh v. Alabama, (treating a company-owned town as subject to the First Amendment); Food (extend- ing Marsh to cover a private shopping center to the extent that it sought to restrict speech about its businesses). But the Court soon stanched that trend. See Lloyd 561–567 (cabining Marsh and refusing to extend Logan Valley); Hudgens v. NLRB, (making clear that “the rationale of Logan Valley did not survive” Lloyd). Ever since, this Court has been reluctant to find a “public function” when it comes to “private commer- cial transactions” (even if they occur against a legal or regulatory backdrop), see, e.g., Flagg Bros., 161–163 (1978), instead requiring a closer connection between the private entity and a government or its agents, see, e.g., Brentwood (nonprofit interscholastic athletic association “pervasive[ly] entwine[d]” with governmental institutions and officials); (state-created system “whereby state officials [would] attach property on the ex parte application of one party to a private dispute”); see also (restaurant in municipal parking garage partly maintained by municipal agency); accord, ante, at 6–7. exemplifies the line of cases that supplanted cases like Logan Valley— not cases like this one. Cite as: 587 U. S. (2019) 17 SOTOMAYOR, J., dissenting an independent food seller who just happens to be highly regulated by the restaurant’s owners. The majority also relies on the Court’s statements that its “public function” test requires that a function have been “traditionally and exclusively performed” by the government. Ante, at 6 (emphasis deleted); see 419 U.S., at 3. Properly understood, that rule cabins liability in cases, such as in which a private actor ventures of its own accord into territory shared (or regu- lated) by the government (e.g., by opening a power com- pany or a shopping center). The Court made clear in that the rule did not reach further, explaining that “the fact that a state employee’s role parallels one in the pri- vate sector” does not preclude a finding of state action. n. 15. When the government hires an agent, in other words, the question is not whether it hired the agent to do some- thing that can be done in the private marketplace too. If that were the key question, the doctor in would not have been a state actor. Nobody thinks that orthopedics is a function “traditionally exclusively reserved to the State,” 419 U.S., at 3. The majority consigns to a footnote, asserting that its “scenario is not present here because the government has no [constitutional] obligation to operate public access channels.” Ante, at 7, n. 1. The majority suggests that is different because “the State was constitutionally obligated to provide medical care to prison inmates.” Ante, at 7, n. 1. But what the majority ignores is that the State in had no constitutional obligation to open the prison or incarcerate the prisoner in the first place; the obligation to provide medical care arose when it made those prior choices. The City had a comparable constitutional obligation here—one brought about by its own choices, made against a state-law backdrop. The City, of course, had no constitu- 18 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting tional obligation to award a cable franchise or to operate public-access channels. But once the City did award a cable franchise, New York law required the City to obtain public-access channels, see and to open them up as a public forum, see at 9–10. That is when the City’s obligation to act in accordance with the First Amendment with respect to the channels arose. That is why, when the City handed the administration of that forum off to an agent, the Constitution followed. See at 10–13. 12 The majority is surely correct that “when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment.” Ante, at 9. That is because the majority is not talking about constitutional forums—it is talking about spaces where private entities have simply invited others to come speak. A comedy club can decide to open its doors as wide as it wants, but it cannot appoint itself as a government agent. The difference is between providing a service of one’s own accord and being asked by the government to administer a constitutional responsibility (indeed, here, existing to do so) on the government’s behalf. 13 —————— 12 v. Metropolitan Edison Co., by con- trast, exemplifies a type of case in which a private actor provides a service that there is no governmental obligation to provide at all. See (no state requirement for government to provide utility service); see also, e.g., Hudgens, (shopping center). In by contrast, the prison was obli- gated to provide health care in accordance with the Eighth Amendment to its prisoners once it incarcerated them, and here, the City was required to provide a public forum to its residents in accordance with the First Amendment once it granted the cable franchise. See at 11–13. 13 Accordingly, the majority need not fear that “all private property owners and private lessees who open their property for speech [c]ould be subject to First Amendment constraints.” Ante, at 10. Those kinds of entities are not the government’s agents; MNN is. Whether such entities face “extensive regulation” or require “government licenses, government contracts, or government-granted monopolies,” ante, at 12, Cite as: 587 U. S. (2019) 19 SOTOMAYOR, J., dissenting To see more clearly the difference between the cases on which the majority fixates and the present case, leave aside the majority’s private comedy club. Imagine instead that a state college runs a comedy showcase each year, renting out a local theater and, pursuant to state regula- tions mandating open access to certain kinds of student activities, allowing students to sign up to perform on a first-come, first-served basis. Cf. After a few years, the college decides that it is tired of running the show, so it hires a performing-arts nonprofit to do the job. The nonprofit prefers humor that makes fun of a certain political party, so it allows only student acts that share its views to participate. Does the majority believe that the nonprofit is indistinguishable, for purposes of state action, from a private comedy club opened by local entrepreneurs? I hope not. But two dangers lurk here regardless. On the one hand, if the City’s decision to outsource the chan- nels to a private entity did render the First Amendment irrelevant, there would be substantial cause to worry about the potential abuses that could follow. Can a state university evade the First Amendment by hiring a non- profit to apportion funding to student groups? Can a city do the same by appointing a corporation to run a munici- pal theater? What about its parks? On the other hand, the majority hastens to qualify its decision, see ante, at 7, n. 1, 15, and to cabin it to the specific facts of this case, ante, at 15. Those are prudent limitations. Even so, the majority’s focus on still risks sowing confusion among the lower courts about how and when government outsourcing will render any abuses that follow beyond the reach of the Constitution. In any event, there should be no confusion here. MNN —————— is immaterial, so long as they have not accepted the government’s request to fulfill the government’s duties on its behalf. 20 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK SOTOMAYOR, J., dissenting is not a private entity that ventured into the marketplace and found itself subject to government regulation. It was asked to do a job by the government and compensated accordingly. If it does not want to do that job anymore, it can stop (subject, like any other entity, to its contractual obligations). But as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the First Amend- ment like any other government actor. IV This is not a case about bigger governments and smaller individuals, ante, at 16; it is a case about principals and agents. New York City opened up a public forum on public- access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amend- ment, just as if the City had decided to run the public forum itself. While the majority emphasizes that its decision is nar- row and factbound, ante, at 15, that does not make it any less misguided. It is crucial that the Court does not con- tinue to ignore the reality, fully recognized by our prece- dents, that private actors who have been delegated consti- tutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent

Justice Rehnquist

majority

Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers

2001-01-09

https://www.courtlistener.com/opinion/118396/solid-waste-agency-of-northern-cook-cty-v-army-corps-of-engineers/

https://www.courtlistener.com/api/rest/v3/clusters/118396/

2000-010

Section 404(a) of the Clean Water Act (CWA or Act), 86 Stat. 884, as amended, 33 U.S. C. § 1344(a), regulates the discharge of dredged or fill material into "navigable waters." The United States Army Corps of Engineers (Corps) has interpreted § 404(a) to confer federal authority over an abandoned sand and gravel pit in northern Illinois which provides habitat for migratory birds. We are asked to decide whether the provisions of § 404(a) may be fairly extended to these waters, and, if so, whether Congress could exercise such authority consistent with the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. We answer the first question in the negative and therefore do not reach the second. Petitioner, the Solid Waste Agency of Northern Cook County (SWANCC), is a consortium of 23 suburban Chicago *163 cities and villages that united in an effort to locate and develop a disposal site for baled nonhazardous solid waste. The Chicago Gravel Company informed the municipalities of the availability of a 533-acre parcel, bestriding the Illinois counties Cook and Kane, which had been the site of a sand and gravel pit mining operation for three decades up until about 1960. Long since abandoned, the old mining site eventually gave way to a successional stage forest, with its remnant excavation trenches evolving into a scattering of permanent and seasonal ponds of varying size (from under one-tenth of an acre to several acres) and depth (from several inches to several feet). The municipalities decided to purchase the site for disposal of their baled nonhazardous solid waste. By law, SWANCC was required to file for various permits from Cook County and the State of Illinois before it could begin operation of its bale fill project. In addition, because the operation called for the filling of some of the permanent and seasonal ponds, SWANCC contacted federal respondents (hereinafter respondents), including the Corps, to determine if a federal landfill permit was required under § 404(a) of the CWA, 33 U.S. C. § 1344(a). Section 404(a) grants the Corps authority to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." Ibid. The term "navigable waters" is defined under the Act as "the waters of the United States, including the territorial seas." § 1362(7). The Corps has issued regulations defining the term "waters of the United States" to include "waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce . . . ." 33 CFR § 328.3(a)(3) (1999). *164 In 1986, in an attempt to "clarify" the reach of its jurisdiction, the Corps stated that § 404(a) extends to in strastate waters: "a. Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or "b. Which are or would be used as habitat by other migratory birds which cross state lines; or "c. Which are or would be used as habitat for endangered species; or "d. Used to irrigate crops sold in interstate commerce." 51 Fed. Reg. 41217. This last promulgation has been dubbed the "Migratory Bird Rule."[1] The Corps initially concluded that it had no jurisdiction over the site because it contained no "wetlands," or areas which support "vegetation typically adapted for life in saturated soil conditions," 33 CFR § 328.3(b) (1999). However, after the Illinois Nature Preserves Commission informed the Corps that a number of migratory bird species had been observed at the site, the Corps reconsidered and ultimately asserted jurisdiction over the balefill site pursuant to subpart (b) of the "Migratory Bird Rule." The Corps found that approximately 121 bird species had been observed at the site, including several known to depend upon aquatic environments for a significant portion of their life requirements. Thus, on November 16, 1987, the Corps formally "determined that the seasonally ponded, abandoned gravel mining depressions located on the project site, while not wetlands, did qualify as `waters of the United States' . . . based upon the following criteria: (1) the proposed site had been abandoned as a gravel mining operation; (2) the water areas and spoil piles had developed a natural character; and (3) the water areas *165 are used as habitat by migratory bird [sic] which cross state lines." U. S. Army Corps of Engineers, Chicago District, Dept. of Army Permit Evaluation and Decision Document, Lodging of Petitioner, Tab No. 1, p. 6. During the application process, SWANCC made several proposals to mitigate the likely displacement of the migratory birds and to preserve a great blue heron rookery located on the site. Its balefill project ultimately received the necessary local and state approval. By 1993, SWANCC had received a special use planned development permit from the Cook County Board of Appeals, a landfill development permit from the Illinois Environmental Protection Agency, and approval from the Illinois Department of Conservation. Despite SWANCC's securing the required water quality certification from the Illinois Environmental Protection Agency, the Corps refused to issue a § 404(a) permit. The Corps found that SWANCC had not established that its proposal was the "least environmentally damaging, most practicable alternative" for disposal of nonhazardous solid waste; that SWANCC's failure to set aside sufficient funds to remediate leaks posed an "unacceptable risk to the public's drinking water supply"; and that the impact of the project upon area-sensitive species was "unmitigatable since a landfill surface cannot be redeveloped into a forested habitat." Id., at 87. Petitioner filed suit under the Administrative Procedure Act, 5 U.S. C. § 701 et seq., in the Northern District of Illinois challenging both the Corps' jurisdiction over the site and the merits of its denial of the § 404(a) permit. The District Court granted summary judgment to respondents on the jurisdictional issue, and petitioner abandoned its challenge to the Corps' permit decision. On appeal to the Court of Appeals for the Seventh Circuit, petitioner renewed its attack on respondents' use of the "Migratory Bird Rule" to assert jurisdiction over the site. Petitioner argued that respondents had exceeded their statutory authority in interpreting *166 the CWA to cover nonnavigable, isolated, intrastate waters based upon the presence of migratory birds and, in the alternative, that Congress lacked the power under the Commerce Clause to grant such regulatory jurisdiction. The Court of Appeals began its analysis with the constitutional question, holding that Congress has the authority to regulate such waters based upon "the cumulative impact doctrine, under which a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce." 191 F.3d 845, 850 (CA7 1999). The aggregate effect of the "destruction of the natural habitat of migratory birds" on interstate commerce, the court held, was substantial because each year millions of Americans cross state lines and spend over a billion dollars to hunt and observe migratory birds.[2]Ibid. The Court of Appeals then turned to the regulatory question. The court held that the CWA reaches as many waters as the Commerce Clause allows and, given its earlier Commerce Clause ruling, it therefore followed that respondents' "Migratory Bird Rule" was a reasonable interpretation of the Act. See id., at 851-852. We granted certiorari, 529 U.S. 1129 (2000), and now reverse. Congress passed the CWA for the stated purpose of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." 33 U.S. C. § 1251(a). In so doing, Congress chose to "recognize, preserve, and protect the primary responsibilities and rights of *167 States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter." § 1251(b). Relevant here, § 404(a) authorizes respondents to regulate the discharge of fill material into "navigable waters," 33 U.S. C. § 1344(a), which the statute defines as "the waters of the United States, including the territorial seas," § 1362(7). Respondents have interpreted these words to cover the abandoned gravel pit at issue here because it is used as habitat for migratory birds. We conclude that the "Migratory Bird Rule" is not fairly supported by the CWA. This is not the first time we have been called upon to evaluate the meaning of § 404(a). In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), we held that the Corps had § 404(a) jurisdiction over wetlands that actually abutted on a navigable waterway. In so doing, we noted that the term "navigable" is of "limited import" and that Congress evidenced its intent to "regulate at least some waters that would not be deemed `navigable' under the classical understanding of that term." Id., at 133. But our holding was based in large measure upon Congress' unequivocal acquiescence to, and approval of, the Corps' regulations interpreting the CWA to cover wetlands adjacent to navigable waters. See id., at 135-139. We found that Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands "inseparably bound up with the `waters' of the United States." Id., at 134. It was the significant nexus between the wetlands and "navigable waters" that informed our reading of the CWA in Riverside Bayview Homes. Indeed, we did not "express any opinion" on the "question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water . . . ." Id., at 131-132, *168 n. 8. In order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this. Indeed, the Corps' original interpretation of the CWA, promulgated two years after its enactment, is inconsistent with that which it espouses here. Its 1974 regulations defined § 404(a)'s "navigable waters" to mean "those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce." 33 CFR § 209.120(d)(1). The Corps emphasized that "[i]t is the water body's capability of use by the public for purposes of transportation or commerce which is the determinative factor." § 209.260(e)(1). Respondents put forward no persuasive evidence that the Corps mistook Congress' intent in 1974.[3] Respondents next contend that whatever its original aim in 1972, Congress charted a new course five years later when it approved the more expansive definition of "navigable waters" found in the Corps' 1977 regulations. In July 1977, the Corps formally adopted 33 CFR § 323.2(a)(5) (1978), which defined "waters of the United States" to include "isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect *169 interstate commerce." Respondents argue that Congress was aware of this more expansive interpretation during its 1977 amendments to the CWA. Specifically, respondents point to a failed House bill, H. R. 3199, that would have defined "navigable waters" as "all waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce." 123 Cong. Rec. 10420, 10434 (1977).[4] They also point to the passage in § 404(g)(1) that authorizes a State to apply to the Environmental Protection Agency for permission "to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce . . . , including wetlands adjacent thereto) within its jurisdiction . . . ." 33 U.S. C. § 1344(g)(1). The failure to pass legislation that would have overturned the Corps' 1977 regulations and the extension of jurisdiction in § 404(g) to waters "other than" traditional "navigable waters," respondents submit, indicate that Congress recognized and accepted a broad definition of "navigable waters" that includes nonnavigable, isolated, intrastate waters. Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care.[5] "[F]ailed legislative *170 proposals are `a particularly dangerous ground on which to rest an interpretation of a prior statute.' " Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 187 (1994) (quoting Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 650 (1990)). A bill can be proposed for any number of reasons, and it can be rejected for just as many others. The relationship between the actions and inactions of the 95th Congress and the intent of the 92d Congress in passing § 404(a) is also considerably attenuated. Because "subsequent history is less illuminating than the contemporaneous evidence," Hagen v. Utah, 510 U.S. 399, 420 (1994), respondents face a difficult task in overcoming the plain text and import of § 404(a). We conclude that respondents have failed to make the necessary showing that the failure of the 1977 House bill demonstrates Congress' acquiescence to the Corps' regulations or the "Migratory Bird Rule," which, of course, did not first appear until 1986. Although respondents cite some legislative history showing Congress' recognition of the Corps' assertion of jurisdiction over "isolated waters,"[6] as we explained in Riverside Bayview Homes, "[i]n both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation." 474 U.S., at 136. Beyond Congress' desire to regulate *171 wetlands adjacent to "navigable waters," respondents point us to no persuasive evidence that the House bill was proposed in response to the Corps' claim of jurisdiction over nonnavigable, isolated, intrastate waters or that its failure indicated congressional acquiescence to such jurisdiction. Section 404(g) is equally unenlightening. In Riverside Bayview Homes we recognized that Congress intended the phrase "navigable waters" to include "at least some waters that would not be deemed `navigable' under the classical understanding of that term." Id., at 133. But § 404(g) gives no intimation of what those waters might be; it simply refers to them as "other . . . waters." Respondents conjecture that "other . . . waters" must incorporate the Corps' 1977 regulations, but it is also plausible, as petitioner contends, that Congress simply wanted to include all waters adjacent to "navigable waters," such as nonnavigable tributaries and streams. The exact meaning of § 404(g) is not before us and we express no opinion on it, but for present purposes it is sufficient to say, as we did in Riverside Bayview Homes, that "§ 404(g)(1) does not conclusively determine the construction to be placed on the use of the term `waters' elsewhere in the Act (particularly in § 502(7), which contains the relevant definition of `navigable waters') . . . ." Id., at 138, n. 11.[7] We thus decline respondents' invitation to take what they see as the next ineluctable step after Riverside Bayview Homes: holding that isolated ponds, some only seasonal, wholly located within two Illinois counties, fall under § 404(a)'s definition of "navigable waters" because they serve *172 as habitat for migratory birds. As counsel for respondents conceded at oral argument, such a ruling would assume that "the use of the word navigable in the statute . . . does not have any independent significance." Tr. of Oral Arg. 28. We cannot agree that Congress' separate definitional use of the phrase "waters of the United States" constitutes a basis for reading the term "navigable waters" out of the statute. We said in Riverside Bayview Homes that the word "navigable" in the statute was of "limited import," 474 U.S., at 133, and went on to hold that § 404(a) extended to nonnavigable wetlands adjacent to open waters. But it is one thing to give a word limited effect and quite another to give it no effect whatever. The term "navigable" has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made. See, e. g., United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407-408 (1940). Respondents—relying upon all of the arguments addressed above—contend that, at the very least, it must be said that Congress did not address the precise question of § 404(a)'s scope with regard to nonnavigable, isolated, intrastate waters, and that, therefore, we should give deference to the "Migratory Bird Rule." See, e. g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). We find § 404(a) to be clear, but even were we to agree with respondents, we would not extend Chevron deference here. Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988). This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a *173 statute to push the limit of congressional authority. See ibid. This concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power. See United States v. Bass, 404 U.S. 336, 349 (1971) ("[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance"). Thus, "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." DeBartolo, supra, at 575. Twice in the past six years we have reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited. See United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995). Respondents argue that the "Migratory Bird Rule" falls within Congress' power to regulate intrastate activities that "substantially affect" interstate commerce. They note that the protection of migratory birds is a "national interest of very nearly the first magnitude," Missouri v. Holland, 252 U.S. 416, 435 (1920), and that, as the Court of Appeals found, millions of people spend over a billion dollars annually on recreational pursuits relating to migratory birds. These arguments raise significant constitutional questions. For example, we would have to evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce. This is not clear, for although the Corps has claimed jurisdiction over petitioner's land because it contains water areas used as habitat by migratory birds, respondents now, post litem motam, focus upon the fact that the regulated activity is petitioner's municipal landfill, which is "plainly of a commercial nature." Brief for Federal Respondents 43. But this is a far cry, indeed, from the "navigable waters" and "waters of the United States" to which the statute by its terms extends. *174 These are significant constitutional questions raised by respondents' application of their regulations, and yet we find nothing approaching a clear statement from Congress that it intended § 404(a) to reach an abandoned sand and gravel pit such as we have here. Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the "Migratory Bird Rule" would result in a significant impingement of the States' traditional and primary power over land and water use. See, e. g., Hess v. Port Authority TransHudson Corporation, 513 U.S. 30, 44 (1994) ("[R]egulation of land use [is] a function traditionally performed by local governments"). Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose to "recognize, preserve, and protect the primary responsibilities and rights of States . . . to plan the development and use . . . of land and water resources . . . ." 33 U.S. C. § 1251(b). We thus read the statute as written to avoid the significant constitutional and federalism questions raised by respondents' interpretation, and therefore reject the request for administrative deference.[8] We hold that 33 CFR § 328.3(a)(3) (1999), as clarified and applied to petitioner's balefill site pursuant to the "Migratory Bird Rule," 51 Fed. Reg. 41217 (1986), exceeds the authority granted to respondents under § 404(a) of the CWA. The judgment of the Court of Appeals for the Seventh Circuit is therefore Reversed.

Section 404(a) of the Clean Water Act (CWA or Act), as amended, 33 U.S. C. 13(a), regulates the discharge of dredged or fill material into "navigable waters." The United States Army Corps of Engineers (Corps) has interpreted 404(a) to confer federal authority over an abandoned sand and gravel pit in northern Illinois which provides habitat for migratory birds. We are asked to decide whether the provisions of 404(a) may be fairly extended to these waters, and, if so, whether Congress could exercise such authority consistent with the Commerce Clause, U. S. Const., Art. I, 8, cl. 3. We answer the first question in the negative and therefore do not reach the second. Petitioner, the Solid Waste Agency of Northern Cook County (SWANCC), is a consortium of 23 suburban Chicago *163 cities and villages that united in an effort to locate and develop a disposal site for baled nonhazardous solid waste. The Chicago Gravel Company informed the municipalities of the availability of a 533-acre parcel, bestriding the Illinois counties Cook and Kane, which had been the site of a sand and gravel pit mining operation for three decades up until about 1960. Long since abandoned, the old mining site eventually gave way to a successional stage forest, with its remnant excavation trenches evolving into a scattering of permanent and seasonal ponds of varying size (from under one-tenth of an acre to several acres) and depth (from several inches to several feet). The municipalities decided to purchase the site for disposal of their baled nonhazardous solid waste. By law, SWANCC was required to file for various permits from Cook County and the State of Illinois before it could begin operation of its bale fill project. In addition, because the operation called for the filling of some of the permanent and seasonal ponds, SWANCC contacted federal respondents (hereinafter respondents), including the Corps, to determine if a federal landfill permit was required under 404(a) of the CWA, 33 U.S. C. 13(a). Section 404(a) grants the Corps authority to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." The term "navigable waters" is defined under the Act as "the waters of the United States, including the territorial seas." 1362(7). The Corps has issued regulations defining the term "waters of the United States" to include "waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce" 33 CFR 328.3(a)(3) *164 In 1986, in an attempt to "clarify" the reach of its jurisdiction, the Corps stated that 404(a) extends to in strastate waters: "a. Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or "b. Which are or would be used as habitat by other migratory birds which cross state lines; or "c. Which are or would be used as habitat for endangered species; or "d. Used to irrigate crops sold in interstate commerce." This last promulgation has been dubbed the "Migratory Bird Rule."[1] The Corps initially concluded that it had no jurisdiction over the site because it contained no "wetlands," or areas which support "vegetation typically adapted for life in saturated soil conditions," 33 CFR 328.3(b) However, after the Illinois Nature Preserves Commission informed the Corps that a number of migratory bird species had been observed at the site, the Corps reconsidered and ultimately asserted jurisdiction over the balefill site pursuant to subpart (b) of the "Migratory Bird Rule." The Corps found that approximately 121 bird species had been observed at the site, including several known to depend upon aquatic environments for a significant portion of their life requirements. Thus, on November 16, 1987, the Corps formally "determined that the seasonally ponded, abandoned gravel mining depressions located on the project site, while not wetlands, did qualify as `waters of the United States' based upon the following criteria: (1) the proposed site had been abandoned as a gravel mining operation; (2) the water areas and spoil piles had developed a natural character; and (3) the water areas *165 are used as habitat by migratory bird [sic] which cross state lines." U. S. Army Corps of Engineers, Chicago District, Dept. of Army Permit Evaluation and Decision Document, Lodging of Petitioner, Tab No. 1, p. 6. During the application process, SWANCC made several proposals to mitigate the likely displacement of the migratory birds and to preserve a great blue heron rookery located on the site. Its balefill project ultimately received the necessary local and state approval. By 1993, SWANCC had received a special use planned development permit from the Cook County Board of Appeals, a landfill development permit from the Illinois Environmental Protection Agency, and approval from the Illinois Department of Conservation. Despite SWANCC's securing the required water quality certification from the Illinois Environmental Protection Agency, the Corps refused to issue a 404(a) permit. The Corps found that SWANCC had not established that its proposal was the "least environmentally damaging, most practicable alternative" for disposal of nonhazardous solid waste; that SWANCC's failure to set aside sufficient funds to remediate leaks posed an "unacceptable risk to the public's drinking water supply"; and that the impact of the project upon area-sensitive species was "unmitigatable since a landfill surface cannot be redeveloped into a forested habitat." Petitioner filed suit under the Administrative Procedure Act, 5 U.S. C. 701 et seq., in the Northern District of Illinois challenging both the Corps' jurisdiction over the site and the merits of its denial of the 404(a) permit. The District Court granted summary judgment to respondents on the jurisdictional issue, and petitioner abandoned its challenge to the Corps' permit decision. On appeal to the Court of Appeals for the Seventh Circuit, petitioner renewed its attack on respondents' use of the "Migratory Bird Rule" to assert jurisdiction over the site. Petitioner argued that respondents had exceeded their statutory authority in interpreting *166 the CWA to cover nonnavigable, isolated, intrastate waters based upon the presence of migratory birds and, in the alternative, that Congress lacked the power under the Commerce Clause to grant such regulatory jurisdiction. The Court of Appeals began its analysis with the constitutional question, holding that Congress has the authority to regulate such waters based upon "the cumulative impact doctrine, under which a single activity that itself has no discernible effect on interstate commerce may still be regulated if the aggregate effect of that class of activity has a substantial impact on interstate commerce." The aggregate effect of the "destruction of the natural habitat of migratory birds" on interstate commerce, the court held, was substantial because each year millions of Americans cross state lines and spend over a billion dollars to hunt and observe migratory birds.[2] The Court of Appeals then turned to the regulatory question. The court held that the CWA reaches as many waters as the Commerce Clause allows and, given its earlier Commerce Clause ruling, it therefore followed that respondents' "Migratory Bird Rule" was a reasonable interpretation of the Act. See We granted certiorari, and now reverse. Congress passed the CWA for the stated purpose of "restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters." 33 U.S. C. 1251(a). In so doing, Congress chose to "recognize, preserve, and protect the primary responsibilities and rights of *167 States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter." 1251(b). Relevant here, 404(a) authorizes respondents to regulate the discharge of fill material into "navigable waters," 33 U.S. C. 13(a), which the statute defines as "the waters of the United States, including the territorial seas," 1362(7). Respondents have interpreted these words to cover the abandoned gravel pit at issue here because it is used as habitat for migratory birds. We conclude that the "Migratory Bird Rule" is not fairly supported by the CWA. This is not the first time we have been called upon to evaluate the meaning of 404(a). In United we held that the Corps had 404(a) jurisdiction over wetlands that actually abutted on a navigable waterway. In so doing, we noted that the term "navigable" is of "limited import" and that Congress evidenced its intent to "regulate at least some waters that would not be deemed `navigable' under the classical understanding of that term." But our holding was based in large measure upon Congress' unequivocal acquiescence to, and approval of, the Corps' regulations interpreting the CWA to cover wetlands adjacent to navigable waters. See We found that Congress' concern for the protection of water quality and aquatic ecosystems indicated its intent to regulate wetlands "inseparably bound up with the `waters' of the United States." It was the significant nexus between the wetlands and "navigable waters" that informed our reading of the CWA in Riverside Bayview Homes. Indeed, we did not "express any opinion" on the "question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water" *168 n. 8. In order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow this. Indeed, the Corps' original interpretation of the CWA, promulgated two years after its enactment, is inconsistent with that which it espouses here. Its 1974 regulations defined 404(a)'s "navigable waters" to mean "those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce." 33 CFR 209.120(d)(1). The Corps emphasized that "[i]t is the water body's capability of use by the public for purposes of transportation or commerce which is the determinative factor." 209.260(e)(1). Respondents put forward no persuasive evidence that the Corps mistook Congress' intent in 1974.[3] Respondents next contend that whatever its original aim in 1972, Congress charted a new course five years later when it approved the more expansive definition of "navigable waters" found in the Corps' 1977 regulations. In July 1977, the Corps formally adopted 33 CFR 323.2(a)(5) (1978), which defined "waters of the United States" to include "isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect *169 interstate commerce." Respondents argue that Congress was aware of this more expansive interpretation during its 1977 amendments to the CWA. Specifically, respondents point to a failed House bill, H. R. 3199, that would have defined "navigable waters" as "all waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce." 123 Cong. Rec. 10, 10434 (1977).[4] They also point to the passage in 404(g)(1) that authorizes a State to apply to the Environmental Protection Agency for permission "to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce including wetlands adjacent thereto) within its jurisdiction" 33 U.S. C. 13(g)(1). The failure to pass legislation that would have overturned the Corps' 1977 regulations and the extension of jurisdiction in 404(g) to waters "other than" traditional "navigable waters," respondents submit, indicate that Congress recognized and accepted a broad definition of "navigable waters" that includes nonnavigable, isolated, intrastate waters. Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care.[5] "[F]ailed legislative *170 proposals are `a particularly dangerous ground on which to rest an interpretation of a prior statute.' " Central Bank of Denver, N. A bill can be proposed for any number of reasons, and it can be rejected for just as many others. The relationship between the actions and inactions of the 95th Congress and the intent of the 92d Congress in passing 404(a) is also considerably attenuated. Because "subsequent history is less illuminating than the contemporaneous evidence," respondents face a difficult task in overcoming the plain text and import of 404(a). We conclude that respondents have failed to make the necessary showing that the failure of the 1977 House bill demonstrates Congress' acquiescence to the Corps' regulations or the "Migratory Bird Rule," which, of course, did not first appear until 1986. Although respondents cite some legislative history showing Congress' recognition of the Corps' assertion of jurisdiction over "isolated waters,"[6] as we explained in Riverside Bayview Homes, "[i]n both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation." Beyond Congress' desire to regulate *171 wetlands adjacent to "navigable waters," respondents point us to no persuasive evidence that the House bill was proposed in response to the Corps' claim of jurisdiction over nonnavigable, isolated, intrastate waters or that its failure indicated congressional acquiescence to such jurisdiction. Section 404(g) is equally unenlightening. In Riverside Bayview Homes we recognized that Congress intended the phrase "navigable waters" to include "at least some waters that would not be deemed `navigable' under the classical understanding of that term." But 404(g) gives no intimation of what those waters might be; it simply refers to them as "other waters." Respondents conjecture that "other waters" must incorporate the Corps' 1977 regulations, but it is also plausible, as petitioner contends, that Congress simply wanted to include all waters adjacent to "navigable waters," such as nonnavigable tributaries and streams. The exact meaning of 404(g) is not before us and we express no opinion on it, but for present purposes it is sufficient to say, as we did in Riverside Bayview Homes, that " 404(g)(1) does not conclusively determine the construction to be placed on the use of the term `waters' elsewhere in the Act (particularly in 502(7), which contains the relevant definition of `navigable waters')"[7] We thus decline respondents' invitation to take what they see as the next ineluctable step after Riverside Bayview Homes: holding that isolated ponds, some only seasonal, wholly located within two Illinois counties, fall under 404(a)'s definition of "navigable waters" because they serve *172 as habitat for migratory birds. As counsel for respondents conceded at oral argument, such a ruling would assume that "the use of the word navigable in the statute does not have any independent significance." Tr. of Oral Arg. 28. We cannot agree that Congress' separate definitional use of the phrase "waters of the United States" constitutes a basis for reading the term "navigable waters" out of the statute. We said in Riverside Bayview Homes that the word "navigable" in the statute was of "limited import," 474 U.S., and went on to hold that 404(a) extended to nonnavigable wetlands adjacent to open waters. But it is one thing to give a word limited effect and quite another to give it no effect whatever. The term "navigable" has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made. See, e. g., United Respondents—relying upon all of the arguments addressed above—contend that, at the very least, it must be said that Congress did not address the precise question of 404(a)'s scope with regard to nonnavigable, isolated, intrastate waters, and that, therefore, we should give deference to the "Migratory Bird Rule." See, e. g., Chevron U. S. A. We find 404(a) to be clear, but even were we to agree with respondents, we would not extend Chevron deference here. Where an administrative interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result. See Edward J. DeBartolo This requirement stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a *173 statute to push the limit of congressional authority. See This concern is heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power. See United Thus, "where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." DeBartolo, at Twice in the past six years we have reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited. See United ; United Respondents argue that the "Migratory Bird Rule" falls within Congress' power to regulate intrastate activities that "substantially affect" interstate commerce. They note that the protection of migratory birds is a "national interest of very nearly the first magnitude," and that, as the Court of Appeals found, millions of people spend over a billion dollars annually on recreational pursuits relating to migratory birds. These arguments raise significant constitutional questions. For example, we would have to evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce. This is not clear, for although the Corps has claimed jurisdiction over petitioner's land because it contains water areas used as habitat by migratory birds, respondents now, post litem motam, focus upon the fact that the regulated activity is petitioner's municipal landfill, which is "plainly of a commercial nature." Brief for Federal Respondents 43. But this is a far cry, indeed, from the "navigable waters" and "waters of the United States" to which the statute by its terms extends. *174 These are significant constitutional questions raised by respondents' application of their regulations, and yet we find nothing approaching a clear statement from Congress that it intended 404(a) to reach an abandoned sand and gravel pit such as we have here. Permitting respondents to claim federal jurisdiction over ponds and mudflats falling within the "Migratory Bird Rule" would result in a significant impingement of the States' traditional and primary power over land and water use. See, e. g., Rather than expressing a desire to readjust the federal-state balance in this manner, Congress chose to "recognize, preserve, and protect the primary responsibilities and rights of States to plan the development and use of land and water resources" 33 U.S. C. 1251(b). We thus read the statute as written to avoid the significant constitutional and federalism questions raised by respondents' interpretation, and therefore reject the request for administrative deference.[8] We hold that 33 CFR 328.3(a)(3) as clarified and applied to petitioner's balefill site pursuant to the "Migratory Bird Rule," (1986), exceeds the authority granted to respondents under 404(a) of the CWA. The judgment of the Court of Appeals for the Seventh Circuit is therefore Reversed.

Justice Stevens

dissenting

Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers

2001-01-09

https://www.courtlistener.com/opinion/118396/solid-waste-agency-of-northern-cook-cty-v-army-corps-of-engineers/

https://www.courtlistener.com/api/rest/v3/clusters/118396/

2000-010

In 1969, the Cuyahoga River in Cleveland, Ohio, coated with a slick of industrial waste, caught fire. Congress responded *175 to that dramatic event, and to others like it, by enacting the Federal Water Pollution Control Act (FWPCA) Amendments of 1972, 86 Stat. 817, as amended, 33 U.S. C. § 1251 et seq., commonly known as the Clean Water Act (Clean Water Act, CWA, or Act).[1] The Act proclaimed the ambitious goal of ending water pollution by 1985. § 1251(a). The Court's past interpretations of the CWA have been fully consistent with that goal. Although Congress' vision of zero pollution remains unfulfilled, its pursuit has unquestionably retarded the destruction of the aquatic environment. Our Nation's waters no longer burn. Today, however, the Court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water. It is fair to characterize the Clean Water Act as "watershed" legislation. The statute endorsed fundamental changes in both the purpose and the scope of federal regulation of the Nation's waters. In § 13 of the Rivers and Harbors Appropriation Act of 1899 (RHA), 30 Stat. 1152, as amended, 33 U.S. C. § 407, Congress had assigned to the Army Corps of Engineers (Corps) the mission of regulating discharges into certain waters in order to protect their use as highways for the transportation of interstate and foreign commerce; the scope of the Corps' jurisdiction under the RHA accordingly extended only to waters that were "navigable." In the CWA, however, Congress broadened the Corps' mission to include the purpose of protecting the quality of our Nation's waters for esthetic, health, recreational, and environmental uses. The scope of its jurisdiction was therefore redefined to encompass all of "the waters of the United States, including the territorial seas." § 1362(7). That definition requires neither actual nor potential navigability. The Court has previously held that the Corps' broadened jurisdiction under the CWA properly included an 80-acre *176 parcel of low-lying marshy land that was not itself navigable, directly adjacent to navigable water, or even hydrologically connected to navigable water, but which was part of a larger area, characterized by poor drainage, that ultimately abutted a navigable creek. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).[2] Our broad finding in Riverside Bayview that the 1977 Congress had acquiesced in the Corps' understanding of its jurisdiction applies equally to the 410-acre parcel at issue here. Moreover, once Congress crossed the legal watershed that separates navigable streams of commerce from marshes and inland lakes, there is no principled reason for limiting the statute's protection to those waters or wetlands that happen to lie near a navigable stream. In its decision today, the Court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation as well as the Corps' assertion of jurisdiction over all waters *177 except for actually navigable waters, their tributaries, and wetlands adjacent to each. Its holding rests on two equally untenable premises: (1) that when Congress passed the 1972 CWA, it did not intend "to exert anything more than its commerce power over navigation," ante, at 168, n. 3; and (2) that in 1972 Congress drew the boundary defining the Corps' jurisdiction at the odd line on which the Court today settles. As I shall explain, the text of the 1972 amendments affords no support for the Court's holding, and amendments Congress adopted in 1977 do support the Corps' present interpretation of its mission as extending to so-called "isolated" waters. Indeed, simple common sense cuts against the particular definition of the Corps' jurisdiction favored by the majority. I The significance of the FWPCA Amendments of 1972 is illuminated by a reference to the history of federal water regulation, a history that the majority largely ignores. Federal regulation of the Nation's waters began in the 19th century with efforts targeted exclusively at "promot[ing] water transportation and commerce." Kalen, Commerce to Conservation: The Call for a National Water Policy and the Evolution of Federal Jurisdiction Over Wetlands, 69 N. D. L. Rev. 873, 877 (1993). This goal was pursued through the various Rivers and Harbors Acts, the most comprehensive of which was the RHA of 1899.[3] Section 13 of the 1899 RHA, commonly known as the Refuse Act, prohibited the discharge of "refuse" into any "navigable water" or its tributaries, as well as the deposit of "refuse" on the bank of a navigable water "whereby navigation shall or may be impeded or obstructed" without first obtaining a permit from the Secretary of the Army. 30 Stat. 1152. *178 During the middle of the 20th century, the goals of federal water regulation began to shift away from an exclusive focus on protecting navigability and toward a concern for preventing environmental degradation. Kalen, 69 N. D. L. Rev., at 877-879, and n. 30. This awakening of interest in the use of federal power to protect the aquatic environment was helped along by efforts to reinterpret § 13 of the RHA in order to apply its permit requirement to industrial discharges into navigable waters, even when such discharges did nothing to impede navigability. See, e. g., United States v. Republic Steel Corp., 362 U.S. 482, 490-491 (1960) (noting that the term "refuse" in § 13 was broad enough to include industrial waste).[4] Seeds of this nascent concern with pollution control can also be found in the FWPCA, which was first enacted in 1948 and then incrementally expanded in the following years.[5] *179 The shift in the focus of federal water regulation from protecting navigability toward environmental protection reached a dramatic climax in 1972, with the passage of the CWA. The Act, which was passed as an amendment to the existing FWPCA, was universally described by its supporters as the first truly comprehensive federal water pollution legislation. The "major purpose" of the CWA was "to establish a comprehensive long-range policy for the elimination of water pollution." S. Rep. No. 92-414, p. 95 (1971), 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 1511 (1971) (hereinafter Leg. Hist.) (emphasis added). And "[n]o Congressman's remarks on the legislation were complete without reference to [its] `comprehensive' nature . . . ." Milwaukee v. Illinois, 451 U.S. 304, 318 (1981) (Rehnquist, J.). A House sponsor described the bill as "the most comprehensive and far-reaching water pollution bill we have ever drafted," 1 Leg. Hist. 369 (Rep. Mizell), and Senator Randolph, Chairman of the Committee on Public Works, stated: "It is perhaps the most comprehensive legislation that the Congress of the United States has ever developed in this particular field of the environment." 2 id., at 1269. This Court was therefore undoubtedly correct when it described the 1972 amendments as establishing "a comprehensive program for controlling and abating water pollution." Train v. City of New York, 420 U.S. 35, 37 (1975). Section 404 of the CWA resembles § 13 of the RHA, but, unlike the earlier statute, the primary purpose of which is the maintenance of navigability, § 404 was principally intended as a pollution control measure. A comparison of the contents of the RHA and the 1972 Act vividly illustrates the fundamental difference between the purposes of the two provisions. The earlier statute contains pages of detailed appropriations for improvements in specific navigation facilities, 30 Stat. 1121-1149, for studies concerning the feasibility *180 of a canal across the Isthmus of Panama, id., at 1150, and for surveys of the advisability of harbor improvements at numerous other locations, id., at 1155-1161. Tellingly, § 13, which broadly prohibits the discharge of refuse into navigable waters, contains an exception for refuse "flowing from streets and sewers . . . in a liquid state." Id., at 1152. The 1972 Act, in contrast, appropriated large sums of money for research and related programs for water pollution control, 86 Stat. 816-833, and for the construction of water treatment works, id., at 833-844. Strikingly absent from its declaration of "goals and policy" is any reference to avoiding or removing obstructions to navigation. Instead, the principal objective of the Act, as stated by Congress in § 101, was "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S. C. § 1251. Congress therefore directed federal agencies in § 102 to "develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters." 33 U.S. C. § 1252. The CWA commands federal agencies to give "due regard," not to the interest of unobstructed navigation, but rather to "improvements which are necessary to conserve such waters for the protection and propagation of fish and aquatic life and wildlife [and] recreational purposes." Ibid. Because of the statute's ambitious and comprehensive goals, it was, of course, necessary to expand its jurisdictional scope. Thus, although Congress opted to carry over the traditional jurisdictional term "navigable waters" from the RHA and prior versions of the FWPCA, it broadened the definition of that term to encompass all "waters of the United States." § 1362(7).[6] Indeed, the 1972 conferees arrived at the final formulation by specifically deleting the *181 word "navigable" from the definition that had originally appeared in the House version of the Act.[7] The majority today undoes that deletion. The Conference Report explained that the definition in § 502(7) was intended to "be given the broadest possible constitutional interpretation." S. Conf. Rep. No. 92-1236, p. 144 (1972), reprinted in 1 Leg. Hist. 327. The Court dismisses this clear assertion of legislative intent with the back of its hand. Ante, at 168, n. 3. The statement, it claims, "signifies that Congress intended to exert [nothing] more than its commerce power over navigation." Ibid. The majority's reading drains all meaning from the conference amendment. By 1972, Congress' Commerce Clause power over "navigation" had long since been established. The Daniel Ball, 10 Wall. 557 (1871); Gilman v. Philadelphia, 3 Wall. 713 (1866); Gibbons v. Ogden, 9 Wheat. 1 (1824). Why should Congress intend that its assertion of federal jurisdiction be given the "broadest possible constitutional interpretation" if it did not intend to reach beyond the very heartland of its commerce power? The activities regulated by the CWA have nothing to do with Congress' "commerce power over navigation." Indeed, the goals of the 1972 statute have nothing to do with navigation at all. As we recognized in Riverside Bayview, the interests served by the statute embrace the protection of "`significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites' " for various species of aquatic wildlife. 474 U.S., at 134-135. For wetlands and "isolated" inland lakes, that interest *182 is equally powerful, regardless of the proximity of the swamp or the water to a navigable stream. Nothing in the text, the stated purposes, or the legislative history of the CWA supports the conclusion that in 1972 Congress contemplated—much less commanded—the odd jurisdictional line that the Court has drawn today. The majority accuses respondents of reading the term "navigable" out of the statute. Ante, at 172. But that was accomplished by Congress when it deleted the word from the § 502(7) definition. After all, it is the definition that is the appropriate focus of our attention. Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 697-698, n. 10 (1995) (refusing to be guided by the common-law definition of the term "take" when construing that term within the Endangered Species Act of 1973 and looking instead to the meaning of the terms contained in the definition of "take" supplied by the statute). Moreover, a proper understanding of the history of federal water pollution regulation makes clear that—even on respondents' broad reading—the presence of the word "navigable" in the statute is not inexplicable. The term was initially used in the various Rivers and Harbors Acts because (1) at the time those statutes were first enacted, Congress' power over the Nation's waters was viewed as extending only to "water bodies that were deemed `navigable' and therefore suitable for moving goods to or from markets," Power 513; and (2) those statutes had the primary purpose of protecting navigation. Congress' choice to employ the term "navigable waters" in the 1972 Clean Water Act simply continued nearly a century of usage. Viewed in light of the history of federal water regulation, the broad § 502(7) definition, and Congress' unambiguous instructions in the Conference Report, it is clear that the term "navigable waters" operates in the statute as a shorthand for "waters over which federal authority may properly be asserted." *183 II As the majority correctly notes, ante, at 168, when the Corps first promulgated regulations pursuant to § 404 of the 1972 Act, it construed its authority as being essentially the same as it had been under the 1899 RHA.[8] The reaction to those regulations in the federal courts,[9] in the Environmental Protection Agency (EPA),[10] and in Congress[11] convinced *184 the Corps that the statute required it "to protect water quality to the full extent of the [C]ommerce [C]lause" and to extend federal regulation over discharges "to many areas that have never before been subject to Federal permits or to this form of water quality protection." 40 Fed. Reg. 31320 (1975). In 1975, the Corps therefore adopted the interim regulations that we upheld in Riverside Bayview. As we noted in that case, the new regulations understood "the waters of the United States" to include, not only navigable waters and their tributaries, but also "nonnavigable intrastate waters whose use or misuse could affect interstate commerce." 474 U.S., at 123. The 1975 regulations provided that the new program would become effective in three phases: phase 1, which became effective immediately, encompassed the navigable waters covered by the 1974 regulation and the RHA; phase 2, effective after July 1, 1976, extended Corps jurisdiction to nonnavigable tributaries, freshwater wetlands adjacent to primary navigable waters, and lakes; and phase 3, effective after July 1, 1977, extended Corps jurisdiction to all other waters covered under the statute, including any waters not covered by phases 1 and 2 (such as "intermittent rivers, streams, tributaries, and perched wetlands that are not contiguous or adjacent to navigable waters") that "the District Engineer determines necessitate regulation for the protection of water quality." 40 Fed. Reg. 31325-31326 (1975). The final version of these regulations, adopted in 1977, made clear that the covered waters included "isolated lakes and wetlands, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce."[12] *185 The Corps' broadened reading of its jurisdiction provoked opposition among some Members of Congress. As a result, in 1977, Congress considered a proposal that would have limited the Corps' jurisdiction under § 404 to waters that are used, or by reasonable improvement could be used, as a means to transport interstate or foreign commerce and their adjacent wetlands. H. R. 3199, 95th Cong., 1st Sess., § 16(f) (1977). A bill embodying that proposal passed the House but was defeated in the Senate. The debates demonstrate that Congress was fully aware of the Corps' understanding of the scope of its jurisdiction under the 1972 Act. We summarized these debates in our opinion in Riverside Bayview: "In both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation. See [123 Cong. Rec.], at 10426-10432 (House debate); id., at 26710-26729 (Senate debate). Proponents of a more limited § 404 jurisdiction contended that the Corps' assertion of jurisdiction over wetlands and other nonnavigable `waters' had far exceeded what Congress had intended in enacting § 404. Opponents of the proposed changes argued that a narrower definition of `navigable waters' for purposes of § 404 would exclude vast stretches of crucial wetlands from the Corps' jurisdiction, with detrimental effects on wetlands ecosystems, water quality, and the aquatic environment generally. The debate, particularly in the Senate, was lengthy. In the House, the debate ended with the adoption of a narrowed definition of *186 `waters'; but in the Senate the limiting amendment was defeated and the old definition retained. The Conference Committee adopted the Senate's approach: efforts to narrow the definition of `waters' were abandoned; the legislation as ultimately passed, in the words of Senator Baker, `retain[ed] the comprehensive jurisdiction over the Nation's waters exercised in the 1972 Federal Water Pollution Control Act.' " 474 U.S., at 136-137. The net result of that extensive debate was a congressional endorsement of the position that the Corps maintains today. We explained in Riverside Bayview: "[T]he scope of the Corps' asserted jurisdiction over wetlands was specifically brought to Congress' attention, and Congress rejected measures designed to curb the Corps' jurisdiction in large part because of its concern that protection of wetlands would be unduly hampered by a narrowed definition of `navigable waters.' Although we are chary of attributing significance to Congress' failure to act, a refusal by Congress to overrule an agency's construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress' attention through legislation specifically designed to supplant it." Id., at 137. Even if the majority were correct that Congress did not extend the Corps' jurisdiction in the 1972 CWA to reach beyond navigable waters and their nonnavigable tributaries, Congress' rejection of the House's efforts in 1977 to cut back on the Corps' 1975 assertion of jurisdiction clearly indicates congressional acquiescence in that assertion. Indeed, our broad determination in Riverside Bayview that the 1977 Congress acquiesced in the very regulations at issue in this case should foreclose petitioner's present urgings to the contrary. The majority's refusal in today's decision to acknowledge the scope of our prior decision is troubling. Compare *187 id., at 136 ("Congress acquiesced in the [1975] administrative construction [of the Corps' jurisdiction]"), with ante, at 170 ("We conclude that respondents have failed to make the necessary showing that the failure of the 1977 House bill demonstrates Congress' acquiescence to the Corps' regulations. . .").[13] Having already concluded that Congress acquiesced in the Corps' regulatory definition of its jurisdiction, the Court is wrong to reverse course today. See Dickerson v. United States, 530 U.S. 428, 443 (2000) (Rehnquist, C. J.) ("`[T]he doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some "special justification"` "). More important than the 1977 bill that did not become law are the provisions that actually were included in the 1977 revisions. Instead of agreeing with those who sought to withdraw the Corps' jurisdiction over "isolated" waters, *188 Congress opted to exempt several classes of such waters from federal control. § 67, 91 Stat. 1601, 33 U.S. C. § 1344(f). For example, the 1977 amendments expressly exclude from the Corps' regulatory power the discharge of fill material "for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches," and "for the purpose of construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters." Ibid. The specific exemption of these waters from the Corps' jurisdiction indicates that the 1977 Congress recognized that similarly "isolated" waters not covered by the exceptions would fall within the statute's outer limits. In addition to the enumerated exceptions, the 1977 amendments included a new section, § 404(g), which authorized the States to administer their own permit programs over certain nonnavigable waters. Section 404(g)(1) provides, in relevant part: "The Governor of any State desiring to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce . . . , including wetlands adjacent thereto) within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact." 33 U.S. C. § 1344(g)(1). Section 404(g)(1)'s reference to navigable waters "other than those waters which are presently used, or are susceptible to use," for transporting commerce and their adjacent wetlands appears to suggest that Congress viewed (and accepted) the Act's regulations as covering more than navigable *189 waters in the traditional sense. The majority correctly points out that § 404(g)(1) is itself ambiguous because it does not indicate precisely how far Congress considered federal jurisdiction to extend. Ante, at 171. But the Court ignores the provision's legislative history, which makes clear that Congress understood § 404(g)(1)—and therefore federal jurisdiction—to extend, not only to navigable waters and nonnavigable tributaries, but also to "isolated" waters, such as those at issue in this case. The Conference Report discussing the 1977 amendments, for example, states that § 404(g) "establish[es] a process to allow the Governor of any State to administer an individual and general permit program for the discharge of dredged or fill material into phase 2 and 3 waters after the approval of a program by the Administrator." H. R. Conf. Rep. No. 95— 830, p. 101 (1977), reprinted in 3 Legislative History of the Clean Water Act of 1977 (Committee Print compiled for the Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 285 (emphasis added) (hereinafter Leg. Hist. of CWA). Similarly, a Senate Report discussing the 1977 amendments explains that, under § 404(g), "the [C]orps will continue to administer the section 404 permit program in all navigable waters for a discharge of dredge or fill material until the approval of a State program for phase 2 and 3 waters. " S. Rep. No. 95-370, p. 75 (1977), reprinted in 4 Leg. Hist. of CWA 708 (emphases added). Of course, as I have already discussed, "phase 1" waters are navigable waters and their contiguous wetlands, "phase 2" waters are the "primary tributaries" of navigable waters and their adjacent wetlands, and "phase 3" waters are all other waters covered by the statute, and can include such "isolated" waters as "intermittent rivers, streams, tributaries, and perched wetlands that are not contiguous or adjacent to navigable waters." The legislative history of the 1977 amendments therefore plainly establishes that, *190 when it enacted § 404(g), Congress believed—and desired— the Corps' jurisdiction to extend beyond just navigable waters, their tributaries, and the wetlands adjacent to each. In dismissing the significance of § 404(g)(1), the majority quotes out of context language in the very same 1977 Senate Report that I have quoted above. Ante, at 170, n. 6. It is true that the Report states that "[t]he committee amendment does not redefine navigable waters." S. Rep. No. 95— 370, at 75, reprinted in 4 Leg. Hist. of CWA 708 (emphasis added). But the majority fails to point out that the quoted language appears in the course of an explanation of the Senate's refusal to go along with House efforts to narrow the scope of the Corps' CWA jurisdiction to traditionally navigable waters. Thus, the immediately preceding sentence warns that "[t]o limit the jurisdiction of the [FWPCA] with reference to discharges of the pollutants of dredged or fill material would cripple efforts to achieve the act's objectives." [14]Ibid. The Court would do well to heed that warning. The majority also places great weight, ante, at 171, on our statement in Riverside Bayview that § 404(g) "does not con- *191 clusively determine the construction to be placed on the use of the term `waters' elsewhere in the Act," 474 U.S., at 138, n. 11 (emphasis added). This is simply more selective reading. In that case, we also went on to say with respect to the significance of § 404(g) that "the various provisions of the Act should be read in pari materia. " Ibid. Moreover, our ultimate conclusion in Riverside Bayview was that § 404(g) "suggest[s] strongly that the term `waters' as used in the Act" supports the Corps' reading. Ibid. III Although it might have appeared problematic on a "linguistic" level for the Corps to classify "lands" as "waters" in Riverside Bayview, 474 U. S., at 131-132, we squarely held that the agency's construction of the statute that it was charged with enforcing was entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Today, however, the majority refuses to extend such deference to the same agency's construction of the same statute, see ante, at 172-174. This refusal is unfaithful to both Riverside Bayview and Chevron. For it is the majority's reading, not the agency's, that does violence to the scheme Congress chose to put into place. Contrary to the Court's suggestion, the Corps' interpretation of the statute does not "encroac[h]" upon "traditional state power" over land use. Ante, at 173. "Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits." California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 587 (1987). The CWA is not a land-use code; it is a paradigm of environmental regulation. Such regulation is an accepted exercise of federal power. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 282 (1981). *192 It is particularly ironic for the Court to raise the specter of federalism while construing a statute that makes explicit efforts to foster local control over water regulation. Faced with calls to cut back on federal jurisdiction over water pollution, Congress rejected attempts to narrow the scope of that jurisdiction and, by incorporating § 404(g), opted instead for a scheme that encouraged States to supplant federal control with their own regulatory programs. S. Rep. No. 95-370, at 75, reprinted in 4 Leg. Hist. of CWA 708 ("The committee amendment does not redefine navigable waters. Instead, the committee amendment intends to assure continued protection of all the Nation's waters, but allows States to assume the primary responsibility for protecting those lakes, rivers, streams, swamps, marshes, and other portions of the navigable waters outside the [C]orps program in the so-called phase I waters" (emphasis added)). Because Illinois could have taken advantage of the opportunities offered to it through § 404(g), the federalism concerns to which the majority adverts are misplaced. The Corps' interpretation of the statute as extending beyond navigable waters, tributaries of navigable waters, and wetlands adjacent to each is manifestly reasonable and therefore entitled to deference. IV Because I am convinced that the Court's miserly construction of the statute is incorrect, I shall comment briefly on petitioner's argument that Congress is without power to prohibit it from filling any part of the 31 acres of ponds on its property in Cook County, Illinois. The Corps' exercise of its § 404 permitting power over "isolated" waters that serve as habitat for migratory birds falls well within the boundaries set by this Court's Commerce Clause jurisprudence. In United States v. Lopez, 514 U.S. 549, 558-559 (1995), this Court identified "three broad categories of activity that Congress may regulate under its commerce power": (1) channels of interstate commerce; (2) instrumentalities of interstate *193 commerce, or persons and things in interstate commerce; and (3) activities that "substantially affect" interstate commerce. Ibid. The migratory bird rule at issue here is properly analyzed under the third category. In order to constitute a proper exercise of Congress' power over intrastate activities that "substantially affect" interstate commerce, it is not necessary that each individual instance of the activity substantially affect commerce; it is enough that, taken in the aggregate, the class of activities in question has such an effect. Perez v. United States, 402 U.S. 146 (1971) (noting that it is the "class" of regulated activities, not the individual instance, that is to be considered in the "affects" commerce analysis); see also Hodel, 452 U. S., at 277; Wickard v. Filburn, 317 U.S. 111, 127-128 (1942). The activity being regulated in this case (and by the Corps' § 404 regulations in general) is the discharge of fill material into water. The Corps did not assert jurisdiction over petitioner's land simply because the waters were "used as habitat by migratory birds." It asserted jurisdiction because petitioner planned to discharge fill into waters "used as habitat by migratory birds." Had petitioner intended to engage in some other activity besides discharging fill (i. e., had there been no activity to regulate), or, conversely, had the waters not been habitat for migratory birds (i. e., had there been no basis for federal jurisdiction), the Corps would never have become involved in petitioner's use of its land. There can be no doubt that, unlike the class of activities Congress was attempting to regulate in United States v. Morrison, 529 U.S. 598, 613 (2000) ("[g]endermotivated crimes"), and Lopez, 514 U. S., at 561 (possession of guns near school property), the discharge of fill material into the Nation's waters is almost always undertaken for economic reasons. See V. Albrecht & B. Goode, Wetland Regulation in the Real World, Exh. 3 (Feb. 1994) (demonstrating that the overwhelming majority of acreage for which § 404 *194 permits are sought is intended for commercial, industrial, or other economic use).[15] Moreover, no one disputes that the discharge of fill into "isolated" waters that serve as migratory bird habitat will, in the aggregate, adversely affect migratory bird populations. See, e. g., 1 Secretary of the Interior, Report to Congress, The Impact of Federal Programs on Wetlands: The Lower Mississippi Alluvial Plain and the Prairie Pothole Region 79-80 (Oct. 1988) (noting that "isolated," phase 3 waters "are among the most important and also [the] most threatened ecosystems in the United States" because "[t]hey are prime nesting grounds for many species of North American waterfowl . . ." and provide "[u]p to 50 percent of the [U. S.] production of migratory waterfowl"). Nor does petitioner dispute that the particular waters it seeks to fill are home to many important species of migratory birds, including the second-largest breeding colony of Great Blue Herons in northeastern Illinois, App. to Pet. for Cert. 3a, and several species of waterfowl protected by international treaty and Illinois endangered species laws, Brief for Federal Respondents 7.[16] In addition to the intrinsic value of migratory birds, see Missouri v. Holland, 252 U.S. 416, 435 (1920) (noting the importance of migratory birds as "protectors of our forests and our crops" and as "a food supply"), it is undisputed that *195 literally millions of people regularly participate in birdwatching and hunting and that those activities generate a host of commercial activities of great value.[17] The causal connection between the filling of wetlands and the decline of commercial activities associated with migratory birds is not "attenuated," Morrison, 529 U. S., at 612; it is direct and concrete. Cf. Gibbs v. Babbitt, 214 F.3d 483, 492-493 (CA4 2000) ("The relationship between red wolf takings and interstate commerce is quite direct—with no red wolves, there will be no red wolf related tourism . . ."). Finally, the migratory bird rule does not blur the "distinction between what is truly national and what is truly local." Morrison, 529 U. S., at 617-618. Justice Holmes cogently observed in Missouri v. Holland that the protection of migratory birds is a textbook example of a national problem. 252 U.S., at 435 ("It is not sufficient to rely upon the States [to protect migratory birds]. The reliance is vain . . ."). The destruction of aquatic migratory bird habitat, like so many other environmental problems, is an action in which the benefits (e. g., a new landfill) are disproportionately local, while many of the costs (e. g., fewer migratory birds) are widely dispersed and often borne by citizens living in other States. In such situations, described by economists as involving "externalities," federal regulation is both appropriate and necessary. Revesz, Rehabilitating Interstate *196 Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N. Y. U. L. Rev. 1210, 1222 (1992) ("The presence of interstate externalities is a powerful reason for intervention at the federal level"); cf. Hodel, 452 U. S., at 281-282 (deferring to Congress' finding that nationwide standards were "essential" in order to avoid "destructive interstate competition" that might undermine environmental standards). Identifying the Corps' jurisdiction by reference to waters that serve as habitat for birds that migrate over state lines also satisfies this Court's expressed desire for some "jurisdictional element" that limits federal activity to its proper scope. Morrison, 529 U. S., at 612. The power to regulate commerce among the several States necessarily and properly includes the power to preserve the natural resources that generate such commerce. Cf. Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 953 (1982) (holding water to be an "article of commerce"). Migratory birds, and the waters on which they rely, are such resources. Moreover, the protection of migratory birds is a wellestablished federal responsibility. As Justice Holmes noted in Missouri v. Holland, the federal interest in protecting these birds is of "the first magnitude." 252 U.S., at 435. Because of their transitory nature, they "can be protected only by national action." Ibid. Whether it is necessary or appropriate to refuse to allow petitioner to fill those ponds is a question on which we have no voice. Whether the Federal Government has the power to require such permission, however, is a question that is easily answered. If, as it does, the Commerce Clause empowers Congress to regulate particular "activities causing air or water pollution, or other environmental hazards that may have effects in more than one State," Hodel, 452 U. S., at 282, it also empowers Congress to control individual actions that, in the aggregate, would have the same effect. *197 Perez, 402 U. S., at 154; Wickard, 317 U. S., at 127-128.[18] There is no merit in petitioner's constitutional argument. Because I would affirm the judgment of the Court of Appeals, I respectfully dissent.

In 1969, the Cuyahoga River in Cleveland, Ohio, coated with a slick of industrial waste, caught fire. Congress responded *175 to that dramatic event, and to others like it, by enacting the Federal Water Pollution Control Act (FWPCA) Amendments of 1972, as amended, 33 U.S. C. 1251 et seq., commonly known as the Clean Water Act (Clean Water Act, CWA, or Act).[1] The Act proclaimed the ambitious goal of ending water pollution by 1985. 1251(a). The Court's past interpretations of the CWA have been fully consistent with that goal. Although Congress' vision of zero pollution remains unfulfilled, its pursuit has unquestionably retarded the destruction of the aquatic environment. Our Nation's waters no longer burn. Today, however, the Court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water. It is fair to characterize the Clean Water Act as "watershed" legislation. The statute endorsed fundamental changes in both the purpose and the scope of federal regulation of the Nation's waters. In 13 of the Rivers and Harbors Appropriation Act of 1899 (RHA), as amended, 33 U.S. C. 407, Congress had assigned to the Army Corps of Engineers (Corps) the mission of regulating discharges into certain waters in order to protect their use as highways for the transportation of interstate and foreign commerce; the scope of the Corps' jurisdiction under the RHA accordingly extended only to waters that were "navigable." In the CWA, however, Congress broadened the Corps' mission to include the purpose of protecting the quality of our Nation's waters for esthetic, health, recreational, and environmental uses. The scope of its jurisdiction was therefore redefined to encompass all of "the waters of the United States, including the territorial seas." 1362(7). That definition requires neither actual nor potential navigability. The Court has previously held that the Corps' broadened jurisdiction under the CWA properly included an 80-acre *176 parcel of low-lying marshy land that was not itself navigable, directly adjacent to navigable water, or even hydrologically connected to navigable water, but which was part of a larger area, characterized by poor drainage, that ultimately abutted a navigable creek. United[2] Our broad finding in Riverside that the 1977 Congress had acquiesced in the Corps' understanding of its jurisdiction applies equally to the 410-acre parcel at issue here. Moreover, once Congress crossed the legal watershed that separates navigable streams of commerce from marshes and inland lakes, there is no principled reason for limiting the statute's protection to those waters or wetlands that happen to lie near a navigable stream. In its decision today, the Court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation as well as the Corps' assertion of jurisdiction over all waters *177 except for actually navigable waters, their tributaries, and wetlands adjacent to each. Its holding rests on two equally untenable premises: (1) that when Congress passed the 1972 CWA, it did not intend "to exert anything more than its commerce power over navigation," ante, at 168, n. 3; and (2) that in 1972 Congress drew the boundary defining the Corps' jurisdiction at the odd line on which the Court today settles. As I shall explain, the text of the 1972 amendments affords no support for the Court's holding, and amendments Congress adopted in 1977 do support the Corps' present interpretation of its mission as extending to so-called "isolated" waters. Indeed, simple common sense cuts against the particular definition of the Corps' jurisdiction favored by the majority. I The significance of the FWPCA Amendments of 1972 is illuminated by a reference to the history of federal water regulation, a history that the majority largely ignores. Federal regulation of the Nation's waters began in the 19th century with efforts targeted exclusively at "promot[ing] water transportation and commerce." Kalen, Commerce to Conservation: The Call for a National Water Policy and the Evolution of Federal Jurisdiction Over Wetlands, 69 N. D. L. Rev. 873, 877 (1993). This goal was pursued through the various Rivers and Harbors Acts, the most comprehensive of which was the RHA of 1899.[3] Section 13 of the 1899 RHA, commonly known as the Refuse Act, prohibited the discharge of "refuse" into any "navigable water" or its tributaries, as well as the deposit of "refuse" on the bank of a navigable water "whereby navigation shall or may be impeded or obstructed" without first obtaining a permit from the Secretary of the Army. *178 During the middle of the 20th century, the goals of federal water regulation began to shift away from an exclusive focus on protecting navigability and toward a concern for preventing environmental degradation. Kalen, 69 N. D. L. Rev., at 877-879, and n. 30. This awakening of interest in the use of federal power to protect the aquatic environment was helped along by efforts to reinterpret 13 of the RHA in order to apply its permit requirement to industrial discharges into navigable waters, even when such discharges did nothing to impede navigability. See, e. g., United (noting that the term "refuse" in 13 was broad enough to include industrial waste).[4] Seeds of this nascent concern with pollution control can also be found in the FWPCA, which was first enacted in 1948 and then incrementally expanded in the following years.[5] *179 The shift in the focus of federal water regulation from protecting navigability toward environmental protection reached a dramatic climax in 1972, with the passage of the CWA. The Act, which was passed as an amendment to the existing FWPCA, was universally described by its supporters as the first truly comprehensive federal water pollution legislation. The "major purpose" of the CWA was "to establish a comprehensive long-range policy for the elimination of water pollution." S. Rep. No. 92-414, p. 95 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 1511 (hereinafter Leg. Hist.) And "[n]o Congressman's remarks on the legislation were complete without reference to [its] `comprehensive' nature" A House sponsor described the bill as "the most comprehensive and far-reaching water pollution bill we have ever drafted," 1 Leg. Hist. 369 (Rep. Mizell), and Senator Randolph, Chairman of the Committee on Public Works, stated: "It is perhaps the most comprehensive legislation that the Congress of the United States has ever developed in this particular field of the environment." 2 This Court was therefore undoubtedly correct when it described the 1972 amendments as establishing "a comprehensive program for controlling and abating water pollution." Section 404 of the CWA resembles 13 of the RHA, but, unlike the earlier statute, the primary purpose of which is the maintenance of navigability, 404 was principally intended as a pollution control measure. A comparison of the contents of the RHA and the 1972 Act vividly illustrates the fundamental difference between the purposes of the two provisions. The earlier statute contains pages of detailed appropriations for improvements in specific navigation facilities, -1149, for studies concerning the feasibility *180 of a canal across the Isthmus of Panama, and for surveys of the advisability of harbor improvements at numerous other locations, Tellingly, 13, which broadly prohibits the discharge of refuse into navigable waters, contains an exception for refuse "flowing from streets and sewers in a liquid state." The 1972 Act, in contrast, appropriated large sums of money for research and related programs for water pollution control, -833, and for the construction of water treatment works, Strikingly absent from its declaration of "goals and policy" is any reference to avoiding or removing obstructions to navigation. Instead, the principal objective of the Act, as stated by Congress in 101, was "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S. C. 1251. Congress therefore directed federal agencies in 102 to "develop comprehensive programs for preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters." 33 U.S. C. 1252. The CWA commands federal agencies to give "due regard," not to the interest of unobstructed navigation, but rather to "improvements which are necessary to conserve such waters for the protection and propagation of fish and aquatic life and wildlife [and] recreational purposes." Because of the statute's ambitious and comprehensive goals, it was, of course, necessary to expand its jurisdictional scope. Thus, although Congress opted to carry over the traditional jurisdictional term "navigable waters" from the RHA and prior versions of the FWPCA, it broadened the definition of that term to encompass all "waters of the United States." 1362(7).[6] Indeed, the 1972 conferees arrived at the final formulation by specifically deleting the *181 word "navigable" from the definition that had originally appeared in the House version of the Act.[7] The majority today undoes that deletion. The Conference Report explained that the definition in 502(7) was intended to "be given the broadest possible constitutional interpretation." S. Conf. Rep. No. 92-1236, p. 144 (1972), reprinted in 1 Leg. Hist. 327. The Court dismisses this clear assertion of legislative intent with the back of its hand. Ante, at 168, n. 3. The statement, it claims, "signifies that Congress intended to exert [nothing] more than its commerce power over navigation." The majority's reading drains all meaning from the conference amendment. By 1972, Congress' Commerce Clause power over "navigation" had long since been established. The Daniel Ball, ; ; Why should Congress intend that its assertion of federal jurisdiction be given the "broadest possible constitutional interpretation" if it did not intend to reach beyond the very heartland of its commerce power? The activities regulated by the CWA have nothing to do with Congress' "commerce power over navigation." Indeed, the goals of the 1972 statute have nothing to do with navigation at all. As we recognized in Riverside the interests served by the statute embrace the protection of "`significant natural biological functions, including food chain production, general habitat, and nesting, spawning, rearing and resting sites' " for various species of aquatic -135. For wetlands and "isolated" inland lakes, that interest *182 is equally powerful, regardless of the proximity of the swamp or the water to a navigable stream. Nothing in the text, the stated purposes, or the legislative history of the CWA supports the conclusion that in 1972 Congress contemplated—much less commanded—the odd jurisdictional line that the Court has drawn today. The majority accuses respondents of reading the term "navigable" out of the statute. Ante, at 172. But that was accomplished by Congress when it deleted the word from the 502(7) definition. After all, it is the definition that is the appropriate focus of our attention. Moreover, a proper understanding of the history of federal water pollution regulation makes clear that—even on respondents' broad reading—the presence of the word "navigable" in the statute is not inexplicable. The term was initially used in the various Rivers and Harbors Acts because (1) at the time those statutes were first enacted, Congress' power over the Nation's waters was viewed as extending only to "water bodies that were deemed `navigable' and therefore suitable for moving goods to or from markets," Power 513; and (2) those statutes had the primary purpose of protecting navigation. Congress' choice to employ the term "navigable waters" in the 1972 Clean Water Act simply continued nearly a century of usage. Viewed in light of the history of federal water regulation, the broad 502(7) definition, and Congress' unambiguous instructions in the Conference Report, it is clear that the term "navigable waters" operates in the statute as a shorthand for "waters over which federal authority may properly be asserted." *183 II As the majority correctly notes, ante, at 168, when the Corps first promulgated regulations pursuant to 404 of the 1972 Act, it construed its authority as being essentially the same as it had been under the 1899 RHA.[8] The reaction to those regulations in the federal courts,[9] in the Environmental Protection Agency (EPA),[10] and in Congress[11] convinced *184 the Corps that the statute required it "to protect water quality to the full extent of the [C]ommerce [C]lause" and to extend federal regulation over discharges "to many areas that have never before been subject to Federal permits or to this form of water quality protection." In 1975, the Corps therefore adopted the interim regulations that we upheld in Riverside As we noted in that case, the new regulations understood "the waters of the United States" to include, not only navigable waters and their tributaries, but also "nonnavigable intrastate waters whose use or misuse could affect interstate commerce." The 1975 regulations provided that the new program would become effective in three phases: phase 1, which became effective immediately, encompassed the navigable waters covered by the 1974 regulation and the RHA; phase 2, effective after July 1, 1976, extended Corps jurisdiction to nonnavigable tributaries, freshwater wetlands adjacent to primary navigable waters, and lakes; and phase 3, effective after July 1, 1977, extended Corps jurisdiction to all other waters covered under the statute, including any waters not covered by phases 1 and 2 (such as "intermittent rivers, streams, tributaries, and perched wetlands that are not contiguous or adjacent to navigable waters") that "the District Engineer determines necessitate regulation for the protection of water quality." -31326 The final version of these regulations, adopted in 1977, made clear that the covered waters included "isolated lakes and wetlands, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce."[12] *185 The Corps' broadened reading of its jurisdiction provoked opposition among some Members of Congress. As a result, in 1977, Congress considered a proposal that would have limited the Corps' jurisdiction under 404 to waters that are used, or by reasonable improvement could be used, as a means to transport interstate or foreign commerce and their adjacent wetlands. H. R. 3199, 95th Cong., 1st Sess., 16(f) (1977). A bill embodying that proposal passed the House but was defeated in the Senate. The debates demonstrate that Congress was fully aware of the Corps' understanding of the scope of its jurisdiction under the 1972 Act. We summarized these debates in our opinion in Riverside : "In both Chambers, debate on the proposals to narrow the definition of navigable waters centered largely on the issue of wetlands preservation. See [123 Cong. Rec.], at 10426-10432 (House debate); Proponents of a more limited 404 jurisdiction contended that the Corps' assertion of jurisdiction over wetlands and other nonnavigable `waters' had far exceeded what Congress had intended in enacting 404. Opponents of the proposed changes argued that a narrower definition of `navigable waters' for purposes of 404 would exclude vast stretches of crucial wetlands from the Corps' jurisdiction, with detrimental effects on wetlands ecosystems, water quality, and the aquatic environment generally. The debate, particularly in the Senate, was lengthy. In the House, the debate ended with the adoption of a narrowed definition of *186 `waters'; but in the Senate the limiting amendment was defeated and the old definition retained. The Conference Committee adopted the Senate's approach: efforts to narrow the definition of `waters' were abandoned; the legislation as ultimately passed, in the words of Senator Baker, `retain[ed] the comprehensive jurisdiction over the Nation's waters exercised in the 1972 Federal Water Pollution Control Act.' " -1. The net result of that extensive debate was a congressional endorsement of the position that the Corps maintains today. We explained in Riverside : "[T]he scope of the Corps' asserted jurisdiction over wetlands was specifically brought to Congress' attention, and Congress rejected measures designed to curb the Corps' jurisdiction in large part because of its concern that protection of wetlands would be unduly hampered by a narrowed definition of `navigable waters.' Although we are chary of attributing significance to Congress' failure to act, a refusal by Congress to overrule an agency's construction of legislation is at least some evidence of the reasonableness of that construction, particularly where the administrative construction has been brought to Congress' attention through legislation specifically designed to supplant it." at 1. Even if the majority were correct that Congress did not extend the Corps' jurisdiction in the 1972 CWA to reach beyond navigable waters and their nonnavigable tributaries, Congress' rejection of the House's efforts in 1977 to cut back on the Corps' 1975 assertion of jurisdiction clearly indicates congressional acquiescence in that assertion. Indeed, our broad determination in Riverside that the 1977 Congress acquiesced in the very regulations at issue in this case should foreclose petitioner's present urgings to the contrary. The majority's refusal in today's decision to acknowledge the scope of our prior decision is troubling. Compare *187 with ante, at 170 ("We conclude that respondents have failed to make the necessary showing that the failure of the 1977 House bill demonstrates Congress' acquiescence to the Corps' regulations.").[13] Having already concluded that Congress acquiesced in the Corps' regulatory definition of its jurisdiction, the Court is wrong to reverse course today. See ("`[T]he doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some "special justification"` "). More important than the 1977 bill that did not become law are the provisions that actually were included in the 1977 revisions. Instead of agreeing with those who sought to withdraw the Corps' jurisdiction over "isolated" waters, *188 Congress opted to exempt several classes of such waters from federal control. 67, 33 U.S. C. 1344(f). For example, the 1977 amendments expressly exclude from the Corps' regulatory power the discharge of fill material "for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches," and "for the purpose of construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters." The specific exemption of these waters from the Corps' jurisdiction indicates that the 1977 Congress recognized that similarly "isolated" waters not covered by the exceptions would fall within the statute's outer limits. In addition to the enumerated exceptions, the 1977 amendments included a new section, 404(g), which authorized the States to administer their own permit programs over certain nonnavigable waters. Section 404(g)(1) provides, in relevant part: "The Governor of any State desiring to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce including wetlands adjacent thereto) within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact." 33 U.S. C. 1344(g)(1). Section 404(g)(1)'s reference to navigable waters "other than those waters which are presently used, or are susceptible to use," for transporting commerce and their adjacent wetlands appears to suggest that Congress viewed (and accepted) the Act's regulations as covering more than navigable *189 waters in the traditional sense. The majority correctly points out that 404(g)(1) is itself ambiguous because it does not indicate precisely how far Congress considered federal jurisdiction to extend. Ante, at 171. But the Court ignores the provision's legislative history, which makes clear that Congress understood 404(g)(1)—and therefore federal jurisdiction—to extend, not only to navigable waters and nonnavigable tributaries, but also to "isolated" waters, such as those at issue in this case. The Conference Report discussing the 1977 amendments, for example, states that 404(g) "establish[es] a process to allow the Governor of any State to administer an individual and general permit program for the discharge of dredged or fill material into phase 2 and 3 waters after the approval of a program by the Administrator." H. R. Conf. Rep. No. 95— 830, p. 101 (1977), reprinted in 3 Legislative History of the Clean Water Act of 1977 (Committee Print compiled for the Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 285 (hereinafter Leg. Hist. of CWA). Similarly, a Senate Report discussing the 1977 amendments explains that, under 404(g), "the [C]orps will continue to administer the section 404 permit program in all navigable waters for a discharge of dredge or fill material until the approval of a State program for phase 2 and 3 waters. " S. Rep. No. 95-0, p. 75 (1977), reprinted in 4 Leg. Hist. of CWA 708 (emphases added). Of course, as I have already discussed, "phase 1" waters are navigable waters and their contiguous wetlands, "phase 2" waters are the "primary tributaries" of navigable waters and their adjacent wetlands, and "phase 3" waters are all other waters covered by the statute, and can include such "isolated" waters as "intermittent rivers, streams, tributaries, and perched wetlands that are not contiguous or adjacent to navigable waters." The legislative history of the 1977 amendments therefore plainly establishes that, *190 when it enacted 404(g), Congress believed—and desired— the Corps' jurisdiction to extend beyond just navigable waters, their tributaries, and the wetlands adjacent to each. In dismissing the significance of 404(g)(1), the majority quotes out of context language in the very same 1977 Senate Report that I have quoted above. Ante, at 170, n. 6. It is true that the Report states that "[t]he committee amendment does not redefine navigable waters." S. Rep. No. 95— 0, at 75, reprinted in 4 Leg. Hist. of CWA 708 But the majority fails to point out that the quoted language appears in the course of an explanation of the Senate's refusal to go along with House efforts to narrow the scope of the Corps' CWA jurisdiction to traditionally navigable waters. Thus, the immediately preceding sentence warns that "[t]o limit the jurisdiction of the [FWPCA] with reference to discharges of the pollutants of dredged or fill material would cripple efforts to achieve the act's objectives." [14] The Court would do well to heed that warning. The majority also places great weight, ante, at 171, on our statement in Riverside that 404(g) "does not con- *191 clusively determine the construction to be placed on the use of the term `waters' elsewhere in the Act," n. 11 This is simply more selective reading. In that case, we also went on to say with respect to the significance of 404(g) that "the various provisions of the Act should be read in pari materia. " Moreover, our ultimate conclusion in Riverside was that 404(g) "suggest[s] strongly that the term `waters' as used in the Act" supports the Corps' reading. III Although it might have appeared problematic on a "linguistic" level for the Corps to classify "lands" as "waters" in Riverside -132, we squarely held that the agency's construction of the statute that it was charged with enforcing was entitled to deference under Chevron U. S. A. 467 U.S. 8 Today, however, the majority refuses to extend such deference to the same agency's construction of the same statute, see ante, at 172-174. This refusal is unfaithful to both Riverside and Chevron. For it is the majority's reading, not the agency's, that does violence to the scheme Congress chose to put into place. Contrary to the Court's suggestion, the Corps' interpretation of the statute does not "encroac[h]" upon "traditional state power" over land use. Ante, at 173. "Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits." California Coastal The CWA is not a land-use code; it is a paradigm of environmental regulation. Such regulation is an accepted exercise of federal power. *192 It is particularly ironic for the Court to raise the specter of federalism while construing a statute that makes explicit efforts to foster local control over water regulation. Faced with calls to cut back on federal jurisdiction over water pollution, Congress rejected attempts to narrow the scope of that jurisdiction and, by incorporating 404(g), opted instead for a scheme that encouraged States to supplant federal control with their own regulatory programs. S. Rep. No. 95-0, at 75, reprinted in 4 Leg. Hist. of CWA 708 ("The committee amendment does not redefine navigable waters. Instead, the committee amendment intends to assure continued protection of all the Nation's waters, but allows States to assume the primary responsibility for protecting those lakes, rivers, streams, swamps, marshes, and other portions of the navigable waters outside the [C]orps program in the so-called phase I waters" ). Because Illinois could have taken advantage of the opportunities offered to it through 404(g), the federalism concerns to which the majority adverts are misplaced. The Corps' interpretation of the statute as extending beyond navigable waters, tributaries of navigable waters, and wetlands adjacent to each is manifestly reasonable and therefore entitled to deference. IV Because I am convinced that the Court's miserly construction of the statute is incorrect, I shall comment briefly on petitioner's argument that Congress is without power to prohibit it from filling any part of the 31 acres of ponds on its property in Cook County, Illinois. The Corps' exercise of its 404 permitting power over "isolated" waters that serve as habitat for migratory birds falls well within the boundaries set by this Court's Commerce Clause jurisprudence. In United this Court identified "three broad categories of activity that Congress may regulate under its commerce power": (1) channels of interstate commerce; (2) instrumentalities of interstate *193 commerce, or persons and things in interstate commerce; and (3) activities that "substantially affect" interstate commerce. The migratory bird rule at issue here is properly analyzed under the third category. In order to constitute a proper exercise of Congress' power over intrastate activities that "substantially affect" interstate commerce, it is not necessary that each individual instance of the activity substantially affect commerce; it is enough that, taken in the aggregate, the class of activities in question has such an effect. ; see also ; The activity being regulated in this case (and by the Corps' 404 regulations in general) is the discharge of fill material into water. The Corps did not assert jurisdiction over petitioner's land simply because the waters were "used as habitat by migratory birds." It asserted jurisdiction because petitioner planned to discharge fill into waters "used as habitat by migratory birds." Had petitioner intended to engage in some other activity besides discharging fill (i. e., had there been no activity to regulate), or, conversely, had the waters not been habitat for migratory birds (i. e., had there been no basis for federal jurisdiction), the Corps would never have become involved in petitioner's use of its land. There can be no doubt that, unlike the class of activities Congress was attempting to regulate in United and the discharge of fill material into the Nation's waters is almost always undertaken for economic reasons. See V. Albrecht & B. Goode, Wetland Regulation in the Real World, Exh. 3 (Feb. 1994) (demonstrating that the overwhelming majority of acreage for which 404 *194 permits are sought is intended for commercial, industrial, or other economic use).[15] Moreover, no one disputes that the discharge of fill into "isolated" waters that serve as migratory bird habitat will, in the aggregate, adversely affect migratory bird populations. See, e. g., 1 Secretary of the Interior, Report to Congress, The Impact of Federal Programs on Wetlands: The Lower Mississippi Alluvial Plain and the Prairie Pothole Region 79-80 (Oct. 1988) (noting that "isolated," phase 3 waters "are among the most important and also [the] most threatened ecosystems in the United States" because "[t]hey are prime nesting grounds for many species of North American waterfowl" and provide "[u]p to 50 percent of the [U. S.] production of migratory waterfowl"). Nor does petitioner dispute that the particular waters it seeks to fill are home to many important species of migratory birds, including the second-largest breeding colony of Great Blue Herons in northeastern Illinois, App. to Pet. for Cert. 3a, and several species of waterfowl protected by international treaty and Illinois endangered species laws, Brief for Federal Respondents 7.[16] In addition to the intrinsic value of migratory birds, see it is undisputed that *195 literally millions of people regularly participate in birdwatching and hunting and that those activities generate a host of commercial activities of great value.[17] The causal connection between the filling of wetlands and the decline of commercial activities associated with migratory birds is not "attenuated," ; it is direct and concrete. Cf. Finally, the migratory bird rule does not blur the "distinction between what is truly national and what is truly local." -618. Justice Holmes cogently observed in that the protection of migratory birds is a textbook example of a national 252 U.S., at The destruction of aquatic migratory bird habitat, like so many other environmental problems, is an action in which the benefits (e. g., a new landfill) are disproportionately local, while many of the costs (e. g., fewer migratory birds) are widely dispersed and often borne by citizens living in other States. In such situations, described by economists as involving "externalities," federal regulation is both appropriate and necessary. Revesz, Rehabilitating Interstate *196 Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N. Y. U. L. Rev. 1210, 1222 (1992) ("The presence of interstate externalities is a powerful reason for intervention at the federal level"); cf. - Identifying the Corps' jurisdiction by reference to waters that serve as habitat for birds that migrate over state lines also satisfies this Court's expressed desire for some "jurisdictional element" that limits federal activity to its proper scope. The power to regulate commerce among the several States necessarily and properly includes the power to preserve the natural resources that generate such commerce. Cf. Migratory birds, and the waters on which they rely, are such resources. Moreover, the protection of migratory birds is a wellestablished federal responsibility. As Justice Holmes noted in the federal interest in protecting these birds is of "the first magnitude." 252 U.S., at Because of their transitory nature, they "can be protected only by national action." Whether it is necessary or appropriate to refuse to allow petitioner to fill those ponds is a question on which we have no voice. Whether the Federal Government has the power to require such permission, however, is a question that is easily answered. If, as it does, the Commerce Clause empowers Congress to regulate particular "activities causing air or water pollution, or other environmental hazards that may have effects in more than one State," 452 U. S., at it also empowers Congress to control individual actions that, in the aggregate, would have the same effect. *197 ; 317 U. S., at[18] There is no merit in petitioner's constitutional argument. Because I would affirm the judgment of the Court of Appeals, I respectfully dissent.

Justice Breyer

majority

Castro v. United States

2003-12-15

https://www.courtlistener.com/opinion/131151/castro-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/131151/

2003-020

Under a longstanding practice, a court sometimes treats as a request for habeas relief under 28 U.S.C. § 2255 a motion that a pro se federal prisoner has labeled differently. Such recharacterization can have serious consequences for the prisoner, for it subjects any subsequent motion under § 2255 to the restrictive conditions that federal law imposes upon a "second or successive" (but not upon a first) federal habeas motion. § 2255, ¶ 8. In light of these consequences, we hold that the court cannot so recharacterize a pro se litigant's motion as the litigant's first § 2255 motion unless the court informs the litigant of its intent to recharacterize, warns the litigant that the recharacterization will subject subsequent § 2255 motions to the law's "second or successive" restrictions, and provides the litigant with an opportunity to withdraw, or to amend, the filing. Where these things are not done, a recharacterized motion will not count as a § 2255 motion for purposes of applying § 2255's "second or successive" provision. I This case focuses upon two motions that Hernan O'Ryan Castro, a federal prisoner acting pro se, filed in federal court. He filed the first motion in 1994, the second in 1997. A The relevant facts surrounding the 1994 motion are the following: *378 (1) On July 5, 1994, Castro filed a pro se motion attacking his federal drug conviction, a motion that he called a Rule 33 motion for a new trial. See Fed. Rule Crim. Proc. 33. (2) The Government, in its response, said that Castro's claims were "more properly cognizable" as federal habeas corpus claims, i.e., claims made under the authority of 28 U.S.C. § 2255. But, the Government added, it did not object to the court's considering Castro's motion as having invoked both Rule 33 and § 2255. (3) The District Court denied Castro's motion on the merits. In its accompanying opinion, the court generally referred to Castro's motion as a Rule 33 motion; but the court twice referred to it as a § 2255 motion as well. App. 137-144. (4) Castro, still acting pro se, appealed, but he did not challenge the District Court's recharacterization of his motion. (5) The Court of Appeals summarily affirmed. It said in its one-paragraph order that it was ruling on a motion based upon both Rule 33 and § 2255. Judgt. order reported at 82 F.3d 429 (CA11 1996); App. 147. B The relevant facts surrounding the 1997 motion are the following: (1) On April 18, 1997, Castro, acting pro se, filed what he called a § 2255 motion. The motion included claims not raised in the 1994 motion, including a claim of ineffective assistance of counsel. (2) The District Court denied the motion; Castro appealed; and the Court of Appeals remanded for further consideration of the ineffective-assistance-of-counsel claim. It also asked the District Court to consider whether, in light of the 1994 motion, Castro's motion was his second § 2255 motion, rather than his first. (3) On remand, the District Court appointed counsel for Castro. It then decided that the 1997 motion was indeed *379 Castro's second § 2255 motion (the 1994 motion being his first). And it dismissed the motion for failure to comply with one of § 2255's restrictive "second or successive" conditions (namely, Castro's failure to obtain the Court of Appeals' permission to file a "second or successive" motion). § 2255, ¶ 8. The District Court granted Castro a certificate to appeal its "second or successive" determination. § 2253(c)(1). (4) The Eleventh Circuit affirmed by a split (2-to-1) vote. 290 F.3d 1270 (2002). The majority "suggested" and "urged" district courts in the future to "warn prisoners of the consequences of recharacterization and provide them with the opportunity to amend or dismiss their filings." Id., at 1273, 1274. But it held that the 1994 court's failure to do so did not legally undermine its recharacterization. Hence, Castro's current § 2255 motion was indeed his second habeas motion. Id., at 1274. Other Circuits have taken a different approach. E. g., United States v. Palmer, 296 F.3d 1135, 1145-1147 (CADC 2002) (announcing a rule requiring courts to notify pro se litigants prior to recharacterization and refusing to find the § 2255 motion before it "second or successive" since such notice was lacking). We consequently granted Castro's petition for certiorari. II We begin with a jurisdictional matter. We asked the parties to consider the relevance of a provision in the federal habeas corpus statutes that says that the "grant or denial of an authorization by a court of appeals to file a second or successive application . . . shall not be the subject of a petition for . . . a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E). After receiving the parties' responses, we conclude that this provision does not bar our review here. Castro's appeal to the Eleventh Circuit did not concern an "authorization . . . to file a second or successive application." *380 The District Court certified for appeal the question whether Castro's § 2255 motion was his first such motion or his second. Castro then argued to the Eleventh Circuit that his § 2255 motion was his first; and he asked the court to reverse the District Court's dismissal of that motion. He nowhere asked the Court of Appeals to grant, and it nowhere denied, any "authorization . . . to file a second or successive application." The Government argues that the Eleventh Circuit's opinion had the effect of denying "authorization . . . to file a second. . . application" because the court said in its opinion that Castro's motion could not meet the requirements for second or successive motions. 290 F.3d, at 1273. For that reason, the Government concludes, the court's decision falls within the scope of the jurisdictional provision. Brief for United States 16. In our view, however, this argument stretches the words of the statute too far. Given the context, we cannot take these words in the opinion as a statutorily relevant "denial" of a request that was not made. Even if, for argument's sake, we were to accept the Government's characterization, the argument nonetheless would founder on the statute's requirement that the "denial" must be the "subject" of the certiorari petition. The "subject" of Castro's petition is not the Court of Appeals'"denial of an authorization." It is the lower courts' refusal to recognize that this § 2255 motion is his first, not his second. That is a very different question. Cf. Adamo Wrecking Co. v. United States, 434 U.S. 275, 282-283 (1978) (statute barring court review of lawfulness of agency "emission standard" in criminal case does not bar court review of whether regulation is an "emission standard"). Moreover, reading the statute as the Government suggests would produce troublesome results. It would create procedural anomalies, allowing review where the lower court decision disfavors, but denying review where it favors, the Government. *381 Cf. Stewart v. Martinez-Villareal, 523 U.S. 637, 641-642 (1998) (allowing the Government to obtain review of a decision that a habeas corpus application is not "second or successive"). It would close our doors to a class of habeas petitioners seeking review without any clear indication that such was Congress' intent. Cf. Felker v. Turpin, 518 U.S. 651, 660-661 (1996). And any such conclusion would prove difficult to reconcile with the basic principle that we "read limitations on our jurisdiction to review narrowly." Utah v. Evans, 536 U.S. 452, 463 (2002). We conclude that we have the power to review Castro's claim, and we turn to the merits of that claim. III Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category. See, e. g., Raineri v. United States, 233 F.3d 96, 100 (CA1 2000); United States v. Detrich, 940 F.2d 37, 38 (CA2 1991); United States v. Miller, 197 F.3d 644, 648 (CA3 1999); Raines v. United States, 423 F.2d 526, 528, n. 1 (CA4 1970); United States v. Santora, 711 F.2d 41, 42 (CA5 1983); United States v. McDowell, 305 F.2d 12, 14 (CA6 1962); Henderson v. United States, 264 F.3d 709, 711 (CA7 2001); McIntyre v. United States, 508 F.2d 403, n. 1 (CA8 1975) (per curiam); United States v. Eatinger, 902 F.2d 1383, 1385 (CA9 1990) (per curiam); United States v. Kelly, 235 F.3d 1238, 1242 (CA10 2000); United States v. Jordan, 915 F.2d 622, 625 (CA11 1990); United States v. Tindle, 522 F.2d 689, 693 (CADC 1975) (per curiam). They may do so in order to avoid an unnecessary dismissal, e. g., id., at 692-693, to avoid inappropriately stringent application of formal labeling requirements, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), or to create a better correspondence between the substance of a pro se motion's claim and its underlying *382 legal basis, see Hughes v. Rowe, 449 U.S. 5, 10 (1980) (per curiam); Andrews v. United States, 373 U.S. 334 (1963). We here address one aspect of this practice, namely, certain legal limits that nine Circuits have placed on recharacterization. Those Circuits recognize that, by recharacterizing as a first § 2255 motion a pro se litigant's filing that did not previously bear that label, the court may make it significantly more difficult for that litigant to file another such motion. They have consequently concluded that a district court may not recharacterize a pro se litigant's motion as a request for relief under § 2255 — unless the court first warns the pro se litigant about the consequences of the recharacterization, thereby giving the litigant an opportunity to contest the recharacterization, or to withdraw or amend the motion. See Adams v. United States, 155 F.3d 582, 583 (CA2 1998) (per curiam); United States v. Miller, supra, at 646-647 (CA3); United States v. Emmanuel, 288 F.3d 644, 646-647 (CA4 2002); In re Shelton, 295 F.3d 620, 622 (CA6 2002) (per curiam); Henderson v. United States, supra, at 710-711 (CA7); Morales v. United States, 304 F.3d 764, 767 (CA8 2002); United States v. Seesing, 234 F.3d 456, 463 (CA9 2000); United States v. Kelly, supra, at 1240-1241 (CA10); United States v. Palmer, 296 F. 3d, at 1146 (CADC); see also 290 F.3d, at 1273, 1274 (case below) (suggesting that courts provide such warnings). No one here contests the lawfulness of this judicially created requirement. The Government suggests that Federal Rule of Appellate Procedure 47 provides adequate underlying legal authority for the procedural practice. Brief for United States 42. It suggests that this Court has the authority to regulate the practice through "the exercise" of our "supervisory powers" over the Federal Judiciary. E. g., McNabb v. United States, 318 U.S. 332, 340-341 (1943). And it notes that limiting the courts' authority to recharacterize, approximately as the Courts of Appeals have done, *383 "is likely to reduce and simplify litigation over questions of characterization, which are often quite difficult." Brief for United States 42. We agree with these suggestions. We consequently hold, as almost every Court of Appeals has already held, that the lower courts' recharacterization powers are limited in the following way: The limitation applies when a court recharacterizes a pro se litigant's motion as a first § 2255 motion. In such circumstances the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has. If the court fails to do so, the motion cannot be considered to have become a § 2255 motion for purposes of applying to later motions the law's "second or successive" restrictions. § 2255, ¶ 8. IV The District Court that considered Castro's 1994 motion failed to give Castro warnings of the kind we have described. Moreover, this Court's "supervisory power" determinations normally apply, like other judicial decisions, retroactively, at least to the case in which the determination was made. McNabb, supra, at 347 (applying new supervisory rule to case before the Court). Hence, given our holding in Part III, supra, Castro's 1994 motion cannot be considered a first § 2255 motion, and his 1997 motion cannot be considered a "second or successive" motion — unless there is something special about Castro's case. The Government argues that there is something special: Castro failed to appeal the 1994 recharacterization. According to the Government, that fact makes the 1994 recharacterization *384 valid as a matter of "law of the case." And, since the 1994 recharacterization is valid, the 1997 § 2255 motion is Castro's second, not his first. We do not agree. No Circuit that has considered whether to treat a § 2255 motion as successive (based on a prior unwarned recharacterization) has found that the litigant's failure to challenge that recharacterization makes a difference. See Palmer, supra, at 1147; see also Henderson, 264 F. 3d, at 711-712; Raineri, 233 F. 3d, at 100; In re Shelton, supra, at 622. That is not surprising, for the very point of the warning is to help the pro se litigant understand not only (1) whether he should withdraw or amend his motion, but also (2) whether he should contest the recharacterization, say, on appeal. The "lack of warning" prevents his making an informed judgment in respect to the latter just as it does in respect to the former. Indeed, an unwarned pro se litigant's failure to appeal a recharacterization simply underscores the practical importance of providing the warning. Hence, an unwarned recharacterization cannot count as a § 2255 motion for purposes of the "second or successive" provision, whether the unwarned pro se litigant does, or does not, take an appeal. The law of the case doctrine cannot pose an insurmountable obstacle to our reaching this conclusion. Assuming for argument's sake that the doctrine applies here, it simply "expresses" common judicial "practice"; it does not "limit" the courts' power. See Messenger v. Anderson, 225 U.S. 436, 444 (1912) (Holmes, J.). It cannot prohibit a court from disregarding an earlier holding in an appropriate case which, for the reasons set forth, we find this case to be. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. So ordered. *385 JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and concurring in the judgment.

Under a longstanding practice, a court sometimes treats as a request for habeas relief under a motion that a pro se federal prisoner has labeled differently. Such recharacterization can have serious consequences for the prisoner, for it subjects any subsequent motion under 2255 to the restrictive conditions that federal law imposes upon a "second or successive" (but not upon a first) federal habeas motion. 2255, ¶ 8. In light of these consequences, we hold that the court cannot so recharacterize a pro se litigant's motion as the litigant's first 2255 motion unless the court informs the litigant of its intent to recharacterize, warns the litigant that the recharacterization will subject subsequent 2255 motions to the law's "second or successive" restrictions, and provides the litigant with an opportunity to withdraw, or to amend, the filing. Where these things are not done, a recharacterized motion will not count as a 2255 motion for purposes of applying 2255's "second or successive" provision. I This case focuses upon two motions that Hernan O'Ryan Castro, a federal prisoner acting pro se, filed in federal court. He filed the first motion in 1994, the second in 1997. A The relevant facts surrounding the 1994 motion are the following: *378 (1) On July 5, 1994, Castro filed a pro se motion attacking his federal drug conviction, a motion that he called a Rule 33 motion for a new trial. See Fed. Rule Crim. Proc. 33. (2) The Government, in its response, said that Castro's claims were "more properly cognizable" as federal habeas corpus claims, i.e., claims made under the authority of But, the Government added, it did not object to the court's considering Castro's motion as having invoked both Rule 33 and 2255. (3) The District Court denied Castro's motion on the merits. In its accompanying opinion, the court generally referred to Castro's motion as a Rule 33 motion; but the court twice referred to it as a 2255 motion as well. App. 137-4. (4) Castro, still acting pro se, appealed, but he did not challenge the District Court's recharacterization of his motion. (5) The Court of Appeals summarily affirmed. It said in its one-paragraph order that it was ruling on a motion based upon both Rule 33 and 2255. Judgt. order reported at ; App. 7. B The relevant facts surrounding the 1997 motion are the following: (1) On April 18, 1997, Castro, acting pro se, filed what he called a 2255 motion. The motion included claims not raised in the 1994 motion, including a claim of ineffective assistance of counsel. (2) The District Court denied the motion; Castro appealed; and the Court of Appeals remanded for further consideration of the ineffective-assistance-of-counsel claim. It asked the District Court to consider whether, in light of the 1994 motion, Castro's motion was his second 2255 motion, rather than his first. (3) On remand, the District Court appointed counsel for Castro. It then decided that the 1997 motion was indeed *379 Castro's second 2255 motion (the 1994 motion being his first). And it dismissed the motion for failure to comply with one of 2255's restrictive "second or successive" conditions (namely, Castro's failure to obtain the Court of Appeals' permission to file a "second or successive" motion). 2255, ¶ 8. The District Court granted Castro a certificate to appeal its "second or successive" determination. 2253(c)(1). (4) The Eleventh Circuit affirmed by a split (2-to-1) vote. The majority "suggested" and "urged" district courts in the future to "warn prisoners of the consequences of recharacterization and provide them with the opportunity to amend or dismiss their filings." But it held that the 1994 court's failure to do so did not legally undermine its recharacterization. Hence, Castro's current 2255 motion was indeed his second habeas motion. Other Circuits have taken a different approach. E. g., United (announcing a rule requiring courts to notify pro se litigants prior to recharacterization and refusing to find the 2255 motion before it "second or successive" since such notice was lacking). We consequently granted Castro's petition for certiorari. II We begin with a jurisdictional matter. We asked the parties to consider the relevance of a provision in the federal habeas corpus statutes that says that the "grant or denial of an authorization by a court of appeals to file a second or successive application shall not be the subject of a petition for a writ of certiorari." 28 U.S.C. 2244(b)(3)(E). After receiving the parties' responses, we conclude that this provision does not bar our review here. Castro's appeal to the Eleventh Circuit did not concern an "authorization to file a second or successive application." *0 The District Court certified for appeal the question whether Castro's 2255 motion was his first such motion or his second. Castro then argued to the Eleventh Circuit that his 2255 motion was his first; and he asked the court to reverse the District Court's dismissal of that motion. He nowhere asked the Court of Appeals to grant, and it nowhere denied, any "authorization to file a second or successive application." The Government argues that the Eleventh Circuit's opinion had the effect of denying "authorization to file a second. application" because the court said in its opinion that Castro's motion could not meet the requirements for second or successive For that reason, the Government concludes, the court's decision falls within the scope of the jurisdictional provision. Brief for United 16. In our view, however, this argument stretches the words of the statute too far. Given the context, we cannot take these words in the opinion as a statutorily relevant "denial" of a request that was not made. Even if, for argument's sake, we were to accept the Government's characterization, the argument nonetheless would founder on the statute's requirement that the "denial" must be the "subject" of the certiorari petition. The "subject" of Castro's petition is not the Court of Appeals'"denial of an authorization." It is the lower courts' refusal to recognize that this 2255 motion is his first, not his second. That is a very different question. Cf. Adamo Wrecking Moreover, reading the statute as the Government suggests would produce troublesome results. It would create procedural anomalies, allowing review where the lower court decision disfavors, but denying review where it favors, the Government. *1 Cf. It would close our doors to a class of habeas petitioners seeking review without any clear indication that such was Congress' intent. Cf. And any such conclusion would prove difficult to reconcile with the basic principle that we "read limitations on our jurisdiction to review narrowly." We conclude that we have the power to review Castro's claim, and we turn to the merits of that claim. Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category. See, e. g., ; United ; United ; ; United ; United ; ; ; United 902 F.2d 13, 15 ; United 235 F.3d 12, 12 ; United ; United They may do so in order to avoid an unnecessary dismissal, e. g., at 692-, to avoid inappropriately stringent application of formal labeling requirements, see or to create a better correspondence between the substance of a pro se motion's claim and its underlying *2 legal basis, see ; We here address one aspect of this practice, namely, certain legal limits that nine Circuits have placed on recharacterization. Those Circuits recognize that, by recharacterizing as a first 2255 motion a pro se litigant's filing that did not previously bear that label, the court may make it significantly more difficult for that litigant to file another such motion. They have consequently concluded that a district court may not recharacterize a pro se litigant's motion as a request for relief under 2255 — unless the court first warns the pro se litigant about the consequences of the recharacterization, thereby giving the litigant an opportunity to contest the recharacterization, or to withdraw or amend the motion. See ; United ; United ; In re ; at 7- ; Morales v. United ; United v. Seesing, ; United (CA); United 296 F. 3d, at 16 ; see 290 F.3d, (suggesting that courts provide such warnings). No one here contests the lawfulness of this judicially created requirement. The Government suggests that Federal Rule of Appellate Procedure 47 provides adequate underlying legal authority for the procedural practice. Brief for United It suggests that this Court has the authority to regulate the practice through "the exercise" of our "supervisory powers" over the Federal Judiciary. E. g., v. United And it notes that limiting the courts' authority to recharacterize, approximately as the Courts of Appeals have done, *3 "is likely to reduce and simplify litigation over questions of characterization, which are often quite difficult." Brief for United We agree with these suggestions. We consequently hold, as almost every Court of Appeals has already held, that the lower courts' recharacterization powers are limited in the following way: The limitation applies when a court recharacterizes a pro se litigant's motion as a first 2255 motion. In such circumstances the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent 2255 motion will be subject to the restrictions on "second or successive" motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the 2255 claims he believes he has. If the court fails to do so, the motion cannot be considered to have become a 2255 motion for purposes of applying to later motions the law's "second or successive" restrictions. 2255, ¶ 8. IV The District Court that considered Castro's 1994 motion failed to give Castro warnings of the kind we have described. Moreover, this Court's "supervisory power" determinations normally apply, like other judicial decisions, retroactively, at least to the case in which the determination was made. Hence, given our holding in Part Castro's 1994 motion cannot be considered a first 2255 motion, and his 1997 motion cannot be considered a "second or successive" motion — unless there is something special about Castro's case. The Government argues that there is something special: Castro failed to appeal the 1994 recharacterization. According to the Government, that fact makes the 1994 recharacterization *4 valid as a matter of "law of the case." And, since the 1994 recharacterization is valid, the 1997 2255 motion is Castro's second, not his first. We do not agree. No Circuit that has considered whether to treat a 2255 motion as successive (based on a prior unwarned recharacterization) has found that the litigant's failure to challenge that recharacterization makes a difference. See at 17; see 264 F. 3d, at -712; 233 F. 3d, at ; In re at That is not surprising, for the very point of the warning is to help the pro se litigant understand not only (1) whether he should withdraw or amend his motion, but (2) whether he should contest the recharacterization, say, on appeal. The "lack of warning" prevents his making an informed judgment in respect to the latter just as it does in respect to the former. Indeed, an unwarned pro se litigant's failure to appeal a recharacterization simply underscores the practical importance of providing the warning. Hence, an unwarned recharacterization cannot count as a 2255 motion for purposes of the "second or successive" provision, whether the unwarned pro se litigant does, or does not, take an appeal. The law of the case doctrine cannot pose an insurmountable obstacle to our reaching this conclusion. Assuming for argument's sake that the doctrine applies here, it simply "expresses" common judicial "practice"; it does not "limit" the courts' power. See It cannot prohibit a court from disregarding an earlier holding in an appropriate case which, for the reasons set forth, we find this case to be. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. So ordered. *5 JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and concurring in the judgment.

Justice Scalia

concurring

Castro v. United States

2003-12-15

https://www.courtlistener.com/opinion/131151/castro-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/131151/

2003-020

I concur in Parts I and II of the Court's opinion and in the judgment of the Court. I also agree that this Court's consideration of Castro's challenge to the status of his recharacterized motion is neither barred by nor necessarily resolved by the doctrine of law of the case. I write separately because I disagree with the Court's laissez-faire attitude toward recharacterization. The Court promulgates a new procedure to be followed if the district court desires the recharacterized motion to count against the pro se litigant as a first 28 U.S.C. § 2255 motion in later litigation. (This procedure, by the way, can be ignored with impunity by a court bent upon aiding pro se litigants at all costs; the only consequence will be that the litigants' later § 2255 submissions cannot be deemed "second or successive.") The Court does not, however, place any limits on when recharacterization may occur, but to the contrary treats it as a routine practice which may be employed "to avoid an unnecessary dismissal," "to avoid inappropriately stringent application of formal labeling requirements," or "to create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis." Ante, at 381-382. The Court does not address whether Castro's motion filed under Federal Rule of Criminal Procedure 33 should have been recharacterized, and its discussion scrupulously avoids placing any limits on the circumstances in which district courts are permitted to recharacterize. That is particularly regrettable since the Court's new recharacterization procedure does not include an option for the pro se litigant to insist that the district court rule on his motion as filed; and gives scant indication of what might be a meritorious ground for contesting the recharacterization on appeal. In my view, this approach gives too little regard to the exceptional nature of recharacterization within an adversarial *386 system, and neglects the harm that may be caused pro se litigants even when courts do comply with the Court's newly minted procedure. The practice of judicial recharacterization of pro se litigants' motions is a mutation of the principle that the allegations of a pro se litigant's complaint are to be held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). "Liberal construction" of pro se pleadings is merely an embellishment of the notice-pleading standard set forth in the Federal Rules of Civil Procedure, and thus is consistent with the general principle of American jurisprudence that "the party who brings a suit is master to decide what law he will rely upon." The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913). Our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief. Recharacterization is unlike "liberal construction," in that it requires a court deliberately to override the pro se litigant's choice of procedural vehicle for his claim. It is thus a paternalistic judicial exception to the principle of party self-determination, born of the belief that the "parties know better" assumption does not hold true for pro se prisoner litigants. I am frankly not enamored of any departure from our traditional adversarial principles. It is not the job of a federal court to create a "better correspondence" between the substance of a claim and its underlying procedural basis. But if departure from traditional adversarial principles is to be allowed, it should certainly not occur in any situation where there is a risk that the patronized litigant will be harmed rather than assisted by the court's intervention. It is not just a matter of whether the litigant is more likely, or even much more likely, to be helped rather than harmed. For the overriding rule of judicial intervention must be "First, do no harm." The injustice caused by letting the litigant's *387 own mistake lie is regrettable, but incomparably less than the injustice of producing prejudice through the court's intervention. The risk of harming the litigant always exists when the court recharacterizes into a first § 2255 motion a claim that is procedurally or substantively deficient in the manner filed. The court essentially substitutes the litigant's ability to bring his merits claim now, for the litigant's later ability to bring the same claim (or any other claim), perhaps with stronger evidence. For the later § 2255 motion will then be burdened by the limitations on second or successive petitions imposed by the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214. A pro se litigant whose non-§ 2255 motion is dismissed on procedural grounds and one whose recharacterized § 2255 claim is denied on the merits both end up as losers in their particular actions, but the loser on procedure is better off because he is not stuck with the consequences of a § 2255 motion that he never filed. It would be an inadequate response to this concern to state that district courts should recharacterize into first § 2255 motions only when doing so is (1) procedurally necessary (2) to grant relief on the merits of the underlying claim. Ensuring that these conditions are met would often enmesh district courts in fact- and labor-intensive inquiries. It is an inefficient use of judicial resources to analyze the merits of every claim brought by means of a questionable procedural vehicle simply in order to determine whether to recharacterize — particularly in the common situation in which entitlement to relief turns on resolution of disputed facts. Moreover, even after that expenditure of effort the district court cannot be certain it is not prejudicing the litigant: the court of appeals may not agree with it on the merits of the claim. In other words, even fully informed district courts that try their best not to harm pro se litigants by recharacterizing may nonetheless end up doing so because they cannot predict and protect against every possible adverse effect that may *388 flow from recharacterization. But if district courts are unable to provide this sort of protection, they should not recharacterize into first § 2255 motions at all. This option is available under the Court's opinion, even though the opinion does not prescribe it. The Court today relieves Castro of the consequences of the recharacterization (to wit, causing his current § 2255 motion to be dismissed as "second or successive") because he was not given the warning that its opinion prescribes. I reach the same result for a different reason. Even if one does not agree with me that, because of the risk involved, pleadings should never be recharacterized into first § 2255 motions, surely one must agree that running the risk is unjustified when there is nothing whatever to be gained by the recharacterization. That is the situation here. Castro's Rule 33 motion was valid as a procedural matter, and the claim it raised was no weaker on the merits when presented under Rule 33 than when presented under § 2255. The recharacterization was therefore unquestionably improper, and Castro should be relieved of its consequences. Accordingly, I concur in the judgment of the Court.

I concur in Parts I and II of the Court's opinion and in the judgment of the Court. I also agree that this Court's consideration of Castro's challenge to the status of his recharacterized motion is neither barred by nor necessarily resolved by the doctrine of law of the case. I write separately because I disagree with the Court's laissez-faire attitude toward recharacterization. The Court promulgates a new procedure to be followed if the district court desires the recharacterized motion to count against the pro se litigant as a first motion in later litigation. (This procedure, by the way, can be ignored with impunity by a court bent upon aiding pro se litigants at all costs; the only consequence will be that the litigants' later 25 submissions cannot be deemed "second or successive.") The Court does not, however, place any limits on when recharacterization may occur, but to the contrary treats it as a routine practice which may be employed "to avoid an unnecessary dismissal," "to avoid inappropriately stringent application of formal labeling requirements," or "to create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis." Ante, at 381-382. The Court does not address whether Castro's motion filed under Federal Rule of Criminal Procedure 33 should have been recharacterized, and its discussion scrupulously avoids placing any limits on the circumstances in which district courts are permitted to recharacterize. That is particularly regrettable since the Court's new recharacterization procedure does not include an option for the pro se litigant to insist that the district court rule on his motion as filed; and gives scant indication of what might be a meritorious ground for contesting the recharacterization on appeal. In my view, this approach gives too little regard to the exceptional nature of recharacterization within an adversarial *386 system, and neglects the harm that may be caused pro se litigants even when courts do comply with the Court's newly minted procedure. The practice of judicial recharacterization of pro se litigants' motions is a mutation of the principle that the allegations of a pro se litigant's complaint are to be held "to less stringent standards than formal pleadings drafted by lawyers." "Liberal construction" of pro se pleadings is merely an embellishment of the notice-pleading standard set forth in the Federal Rules of Civil Procedure, and thus is consistent with the general principle of American jurisprudence that "the party who brings a suit is master to decide what law he will rely upon." The Our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief. Recharacterization is unlike "liberal construction," in that it requires a court deliberately to override the pro se litigant's choice of procedural vehicle for his claim. It is thus a paternalistic judicial exception to the principle of party self-determination, born of the belief that the "parties know better" assumption does not hold true for pro se prisoner litigants. I am frankly not enamored of any departure from our traditional adversarial principles. It is not the job of a federal court to create a "better correspondence" between the substance of a claim and its underlying procedural basis. But if departure from traditional adversarial principles is to be allowed, it should certainly not occur in any situation where there is a risk that the patronized litigant will be harmed rather than assisted by the court's intervention. It is not just a matter of whether the litigant is more likely, or even much more likely, to be helped rather than harmed. For the overriding rule of judicial intervention must be "First, do no harm." The injustice caused by letting the litigant's *387 own mistake lie is regrettable, but incomparably less than the injustice of producing prejudice through the court's intervention. The risk of harming the litigant always exists when the court recharacterizes into a first 25 motion a claim that is procedurally or substantively deficient in the manner filed. The court essentially substitutes the litigant's ability to bring his merits claim now, for the litigant's later ability to bring the same claim (or any other claim), perhaps with stronger evidence. For the later 25 motion will then be burdened by the limitations on second or successive petitions imposed by the Antiterrorism and Effective Death Penalty Act of 1996, A pro se litigant whose non- 25 motion is dismissed on procedural grounds and one whose recharacterized 25 claim is denied on the merits both end up as losers in their particular actions, but the loser on procedure is better off because he is not stuck with the consequences of a 25 motion that he never filed. It would be an inadequate response to this concern to state that district courts should recharacterize into first 25 motions only when doing so is (1) procedurally necessary (2) to grant relief on the merits of the underlying claim. Ensuring that these conditions are met would often enmesh district courts in fact- and labor-intensive inquiries. It is an inefficient use of judicial resources to analyze the merits of every claim brought by means of a questionable procedural vehicle simply in order to determine whether to recharacterize — particularly in the common situation in which entitlement to relief turns on resolution of disputed facts. Moreover, even after that expenditure of effort the district court cannot be certain it is not prejudicing the litigant: the court of appeals may not agree with it on the merits of the claim. In other words, even fully informed district courts that try their best not to harm pro se litigants by recharacterizing may nonetheless end up doing so because they cannot predict and protect against every possible adverse effect that may *388 flow from recharacterization. But if district courts are unable to provide this sort of protection, they should not recharacterize into first 25 motions at all. This option is available under the Court's opinion, even though the opinion does not prescribe it. The Court today relieves Castro of the consequences of the recharacterization (to wit, causing his current 25 motion to be dismissed as "second or successive") because he was not given the warning that its opinion prescribes. I reach the same result for a different reason. Even if one does not agree with me that, because of the risk involved, pleadings should never be recharacterized into first 25 motions, surely one must agree that running the risk is unjustified when there is nothing whatever to be gained by the recharacterization. That is the situation here. Castro's Rule 33 motion was valid as a procedural matter, and the claim it raised was no weaker on the merits when presented under Rule 33 than when presented under 25. The recharacterization was therefore unquestionably improper, and Castro should be relieved of its consequences. Accordingly, I concur in the judgment of the Court.

Justice Souter

majority

Johnson v. United States

2005-04-04

https://www.courtlistener.com/opinion/142886/johnson-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/142886/

2004-038

The question here is when the 1-year statute of limitations in 28 U.S. C. § 2255, ¶ 6(4), begins to run in a case of a prisoner's collateral attack on his federal sentence on the ground that a state conviction used to enhance that sentence has since been vacated. We hold that the period begins when a petitioner receives notice of the order vacating the prior conviction, provided that he has sought it with due diligence in state court, after entry of judgment in the federal case with the enhanced sentence. I In 1994, petitioner Robert Johnson, Jr., was indicted for distributing cocaine base and related conspiracy. Following his guilty plea to a single count of distribution in violation of 21 U.S. C. § 841(a)(1) and 18 U.S. C. § 2, the presentence investigation report recommended that Johnson receive an enhanced sentence as a career offender under § 4B1.1 of the federal Sentencing Guidelines, owing to his two 1989 convictions by the State of Georgia for distributing cocaine. Without elaboration, Johnson filed an objection to the recommendation, which he withdrew at the sentencing hearing. The District Court imposed the enhancement and entered judgment on November 29, 1994. On appeal, Johnson argued for the first time that he should not have been sentenced as a career offender because one of *299 his Georgia convictions was invalid.[1] The Court of Appeals for the Eleventh Circuit affirmed the sentence, finding that in the trial court Johnson had raised no objection to the validity of his prior convictions and that the judge's career offender findings were not clearly erroneous. United States v. Johnson, No. 94-9402 (Dec. 22, 1995) (per curiam), App. 7. In a footnote, the Court of Appeals "note[d] in passing that, should appellant obtain at some future date the vacation of the state court conviction in question because [it was] obtained in violation of his constitutional rights, he could petition the district court under 28 U.S. C. § 2255 for the relief he now asks us to provide." Id., at 8, n. 1. We denied certiorari. Johnson v. United States, 517 U.S. 1162 (1996). Two days later, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) went into effect, imposing, among other things, a 1-year period of limitations on motions by prisoners seeking to modify their federal sentences: "The limitation period shall run from the latest of — "(1) the date on which the judgment of conviction becomes final; "(2) the date on which the impediment to making a motion created by governmental action in violation of *300 the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; "(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or "(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S. C. § 2255, ¶ 6. A fifth option supplied uniformly by the Courts of Appeals gave prisoners whose convictions became final before AEDPA a 1-year grace period running from the new statute's effective date. Duncan v. Walker, 533 U.S. 167, 183, n. 1 (2001) (STEVENS, J., concurring in part and concurring in the judgment) (collecting cases). On April 25, 1997, one year and three days after his pre-AEDPA federal conviction became final and just after the 1-year grace period expired, Johnson pro se filed a motion in the District Court for a 60-day extension of time to attack his federal sentence under § 2255.[2] Finding the AEDPA period expired, the District Court denied the motion, though it added that denial was without prejudice to Johnson's right to file a § 2255 motion claiming any alternative limitation period under the statute. On February 6, 1998, Johnson petitioned for writ of habeas corpus in the Superior Court of Wayne County, Georgia, claiming the invalidity of his guilty pleas in seven cases between 1983 and 1993 because he had not knowingly, intelligently, and voluntarily waived his right to counsel. One of the seven pleas Johnson challenged was the basis for one of *301 the 1989 convictions on which the District Court had rested the career offender enhancement of Johnson's federal sentence.[3] The State of Georgia denied Johnson's allegations, but filed no hearing transcripts. The Superior Court found that the records did "not show an affirmative waiver of [Johnson's] right to an attorney" in any of the cases, App. 10, and entered an order of vacatur, that all seven convictions be reversed, ibid. Just over three months later, Johnson was back in the Federal District Court pro se with a motion under § 2255 to vacate the enhanced federal sentence following the vacatur of one of its predicate state convictions. He claimed his motion was timely because the order vacating the state judgment was "new evidence" not previously discoverable, and so the trigger of a renewed limitation period. The Magistrate Judge took Johnson to be relying on the discovery of "facts supporting the claim" addressed in § 2255, ¶ 6(4), but still recommended denial of the motion for failure on Johnson's part to exercise the "due diligence" required by that provision. Id., at 15-17. Although Johnson objected that lack of education excused him from acting more promptly, and that he had filed the state petition as soon as he could get help from an inmate law clerk, the District Court denied the § 2255 motion as untimely. In the court's view, the applicable limitation was the 1-year grace period that was over in April 1997, which Johnson had done nothing to toll in the 21 months he waited after his conviction became final before filing his state habeas petition. Id., at 19. A divided panel of the Court of Appeals affirmed. 340 F.3d 1219 (CA11 2003). The majority reasoned that the state-court order vacating the prior state conviction was not *302 a "`fact'" under the fourth paragraph of the § 2255 limitations rule. Id., at 1223. In the majority's view, the state-court order was properly classified as a "legal proposition" or a "court action obtained at the behest of a federal prisoner, not `discovered' by him." Ibid. Because the fourth paragraph of the limitations rule was therefore of no avail to Johnson, the Court of Appeals majority agreed with the District Court that the time for filing expired in 1997, at the end of the 1-year grace period. Id., at 1226. The majority also agreed that Johnson had no equitable claim to toll the running of the 1-year period because he had waited too long before going back to the state court. Id., at 1226-1228. Judge Roney dissented, arguing that the state court's order was a "fact" supporting Johnson's § 2255 motion, a fact not discoverable prior to the order's issuance. Id., at 1228-1229. Over one dissent, rehearing en banc was denied. 353 F.3d 1328 (2003). We granted certiorari, 542 U.S. 965 (2004), to resolve a disagreement among the Courts of Appeals as to whether vacatur of a prior state conviction used to enhance a federal sentence can start the 1-year limitation period under the fourth alternative of the § 2255 rule. Compare 340 F.3d 1219 (case below) (vacatur not a trigger); Brackett v. United States, 270 F.3d 60 (CA1 2001) (same), with United States v. Gadsen, 332 F.3d 224 (CA4 2003) (vacatur a fact not previously discoverable giving rise to a new 1-year period). We agree with Johnson that the state-court vacatur is a matter of fact for purposes of the limitation rule in the fourth paragraph. But we also hold that the statute allows the fact of the state-court order to set the 1-year period running only if the petitioner has shown due diligence in seeking the order. Applying that qualification, we affirm. II The Government shares Johnson's preliminary assumption that if he filed his § 2255 motion in time, he is entitled to *303 federal resentencing now that the State has vacated one of the judgments supporting his enhanced sentence. Neither the enhancement provision of the Sentencing Guidelines applied here, nor the mandatory enhancement under the Armed Career Criminal Act (ACCA), 18 U.S. C. § 924(e), has been read to mean that the validity of a prior conviction supporting an enhanced federal sentence is beyond challenge. Cf. Lewis v. United States, 445 U.S. 55 (1980) (validity of prior conviction irrelevant under federal statute prohibiting possession of a firearm by a felon). Our cases applying these provisions assume the contrary, that a defendant given a sentence enhanced for a prior conviction is entitled to a reduction if the earlier conviction is vacated. Custis v. United States, 511 U.S. 485 (1994); Daniels v. United States, 532 U.S. 374 (2001). Such was the premise in Custis v. United States, supra, even though we held that the ACCA generally created no opportunity to attack a prior state conviction collaterally at a federal sentencing proceeding, 511 U.S., at 490, and that the Constitution demands no more, id., at 496-497. We thought that Congress had not meant to make it so easy to challenge final judgments that every occasion to enhance a sentence for recidivism would turn a federal sentencing court into a forum for difficult and time-consuming reexaminations of stale state proceedings. Ibid. We recognized only one exception to this rule that collateral attacks were off-limits, and that was for challenges to state convictions allegedly obtained in violation of the right to appointed counsel, an exception we thought necessary to avoid undermining Gideon v. Wainwright, 372 U.S. 335 (1963). Custis v. United States, 511 U. S., at 494-496. As to challenges falling outside of that exception, we pointed out that a defendant who successfully attacked his state conviction in state court or on federal habeas review could then "apply for reopening of any federal sentence enhanced by the state sentences." Id., at 497. *304 Daniels v. United States, supra, extended Custis to hold, subject to the same exception for Gideon claims, that a federal prisoner may not attack a predicate state conviction through a § 2255 motion challenging an enhanced federal sentence, 532 U.S., at 376, and again we stressed considerations of administration and finality, id., at 378-380. Again, too, we acknowledged that a prisoner could proceed under § 2255 after successful review of the prior state conviction on federal habeas under § 2254 or favorable resort to any postconviction process available under state law, id., at 381. We simply added that if the prior conviction was no longer open to direct or collateral attack in its own right, the federal prisoner could do nothing more about his sentence enhancement. Id., at 382.[4] This case presents the distinct issue, of how soon a prisoner, successful in his state proceeding, must challenge the federal sentence under § 2255. The resolution turns on understanding what "facts" affecting an enhanced sentence could most sensibly fall within that term as used in the fourth paragraph of the § 2255 limitation provision, under which the one year runs from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Johnson says that the order vacating his prior conviction is the factual matter supporting his § 2255 claim, discovery of which triggers the refreshed 1-year period. The Court of Appeals majority said no because it understood a legally operative order of vacatur to be a mandate of law or a consequence of applying law, and therefore distinct from a matter of "`fact'" *305 as Congress used the term in § 2255. 340 F.3d, at 1223. The United States does not endorse that law-fact distinction, but argues that the facts supporting Johnson's § 2255 claim, for purposes of the fourth paragraph, are the facts on which he based his challenge to the validity of his state convictions. We think none of these positions is sound, at least in its entirety. As for the Government's proposed reading, certainly it is true that the circumstances rendering the underlying predicate conviction invalid are ultimate subjects of fact supporting the § 2255 claim, in the sense that proof of those facts (or the government's failure to negate them) is necessary to vacate the prior state conviction and eliminate the ground for the federal enhancement. But this is not enough to fit the Government's position comfortably into paragraph four. The text of § 2255, ¶ 6(4), clearly links the running of the limitation period to the discovery of the "facts supporting the claim or claims presented," but on the Government's view, the statute of limitations may begin to run (and may even expire) before the § 2255 claim and its necessary predicate even exist. Prior to the federal conviction, a petitioner has no § 2255 claim because he has no enhanced federal sentence to challenge; and prior to the state vacatur, which Daniels makes a necessary condition for relief in most cases, a petitioner cannot obtain relief under § 2255. Cf. Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 195 (1997) (statutes of limitations ordinarily do not begin to run until a plaintiff's complete cause of action has accrued). Hence, it is highly doubtful that in § 2255 challenges to enhanced sentences Congress would have meant to start the period running under paragraph four on the discoverability date of facts that may have no significance under federal law for years to come and that cannot by themselves be the basis of a § 2255 claim, Daniels v. United States, 532 U. S., at 376. There are further reasons against applying the fourth paragraph as the Government would. Congress does not *306 appear to have adopted a policy of enhancing federal sentences regardless of the validity of state convictions relied on for the enhancement. Custis and Daniels were decided on just the contrary, and unchallenged, understanding; it would certainly push the limits of coherence for the Court now to apply the fourth paragraph in a way that would practically close the door to relief that each of those cases specifically left open.[5] Nor is there any reason to think Congress meant the limitation period to run earlier for the sake of preserving finality of state convictions; States are capable of providing their own limitations periods (and most of them would have barred Johnson's challenge).[6] Johnson's argument improves on the Government's proposal by pegging the limitation period to notice of the state order eliminating the predicate required for enhancement, which is almost always necessary and always sufficient for relief. We do not find his proposal vulnerable to the point made by the majority of the Court of Appeals, that an order vacating a conviction is legally expressive or operative language that may not be treated as a matter of fact within the meaning of the statute. We commonly speak of the "fact of *307 a prior conviction," e. g., Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and an order vacating a predicate conviction is spoken of as a fact just as sensibly as the order entering it. In either case, a claim of such a fact is subject to proof or disproof like any other factual issue. But Johnson's take on the statute carries anomalies of its own, one minor, one more serious. It is strange to say that an order vacating a conviction has been "discovered," the term used by paragraph four, and stranger still to speak about the date on which it could have been discovered with due diligence, when the fact happens to be the outcome of a proceeding in which the § 2255 petitioner was the moving party. By bringing that proceeding, the petitioner causes the factual event to occur, after all, and unless his mail goes astray his prompt discovery of the crucial fact is virtually guaranteed through official notice. A more serious problem is Johnson's position that his § 2255 petition is timely under paragraph four as long as he brings it within a year of learning he succeeded in attacking the prior conviction, no matter how long he may have slumbered before starting the successful proceeding. If Johnson were right about this, a petitioner might wait a long time before raising any question about a predicate conviction, as this very case demonstrates. Of course it may well be that Johnson took his time because his basic sentence had years to run before the period of enhancement began. But letting a petitioner wait for as long as the enhancement makes no difference to his actual imprisonment, while the predicate conviction grows increasingly stale and the federal outcome is subject to question, is certainly at odds with the provision in paragraph four that the one year starts running when the operative fact "could have been discovered through the exercise of due diligence." And by maximizing the time that judgments are open to question, a rule allowing that kind of delay would thwart one of AEDPA's principal purposes, *308 Duncan v. Walker, 533 U. S., at 179; Woodford v. Garceau, 538 U.S. 202, 206 (2003), a purpose that was also central to our decisions in Custis and Daniels, see supra, at 303-304. We think neither anomaly is serious enough, however, to justify rejecting Johnson's basic argument that notice of the order vacating the predicate conviction is the event that starts the one year running. Our job here is to find a sensible way to apply paragraph four when the truth is that with Daniels not yet on the books AEDPA's drafters probably never thought about the situation we face here. Of course it is peculiar to speak of "discovering" the fact of the very eventuality the petitioner himself has brought about, but when that fact is necessary to the § 2255 claim, and treating notice of it as the trigger produces a more reasonable scheme than the alternatives, the scheme should be reconciled with the statutory language if it can be. And here the fit is painless, if short on style. While it sounds odd to speak of discovering a fact one has generated, a petitioner does not generate the fact of vacatur all by himself. He does, after all, have to learn of the court's response in the state proceeding, and receiving notice of success can surely qualify as a kind of discovery falling within the statutory language. That leaves us with the question of how to implement the statutory mandate that a petitioner act with due diligence in discovering the crucial fact of the vacatur order that he himself seeks. The answer is that diligence can be shown by prompt action on the part of the petitioner as soon as he is in a position to realize that he has an interest in challenging the prior conviction with its potential to enhance the later sentence. The important thing is to identify a particular time when the course of the later federal prosecution clearly shows that diligence is in order. That might be the date the federal indictment is disclosed, the date of judgment, or the date of finality after direct appeal. Picking the first date would require the quickest response and serve finality best, *309 but it would produce some collateral litigation that federal acquittals would prove to have been needless, and it shares the same disconnection from the existence of a § 2255 claim as the Government's view of the relevant "facts," see supra, at 305-306. If we picked the third date, collateral litigation would be minimized, but finality would come late. This shapes up as a case for choosing the bowl of porridge between the one too hot and the one too cold, and settling on the date of judgment as the moment to activate due diligence seems best to reflect the statutory text and its underlying concerns. After the entry of judgment, the subject of the § 2255 claim has come into being, the significance of inaction is clear, and very little litigation would be wasted, since most challenged federal convictions are in fact sustained. The dissent, like Johnson, would dispense with any due diligence requirement in seeking the state vacatur order itself, on the ground that the States can impose their own limitations periods on state collateral attacks, as most States do, post, at 316 (opinion of KENNEDY, J.). But the United States has an interest in the finality of sentences imposed by its own courts; § 2255 is, after all, concerned directly with federal cases. As to those federal cases, due diligence is not a "requirement of [our] own design," post, at 312, but an explicit demand in the text of § 2255, ¶ 6(4), one that reflects AEDPA's core purposes, supra, at 307-308. The requirement of due diligence must therefore demand something more than the dissent's willingness to accept no diligence at all, if the predicate conviction occurred in a State that itself imposes no limit of time for collaterally attacking its convictions.[7] *310 The dissent suggests that due diligence is satisfied by prompt discovery of the existence of the order vacating the state conviction. Post, at 314. Where one "discovers" a fact that one has helped to generate, however, supra, at 308-309, whether it be the result of a court proceeding or of some other process begun at the petitioner's behest, it does not strain logic to treat required diligence in the "discovery" of that fact as entailing diligence in the steps necessary for the existence of that fact. To see why this is so, one need only consider a more commonplace use of the paragraph four limitation rule. When a petitioner bases his § 2255 claim on the result of a DNA test, it is the result of the test that is the "fac[t] supporting the claim" in the § 2255 motion, and the 1-year limitations period therefore begins to run from the date the test result is "discovered." Yet unless it is to be read out of the statute, the due diligence requirement would say that the test result only triggers a new 1-year period if the petitioner began the testing process with reasonable promptness once the DNA sample and testing technology were available. Under the dissent's view, however, the petitioner could wait untold years (perhaps until the death of a key prosecution witness) before calling for the DNA test, yet once he "discovered" the result of that test, he would get the benefit of a rejuvenated 1-year period regardless of his lengthy delay. Such a result simply cannot be squared with the statute's plain text and purpose. We accordingly apply the fourth paragraph in the situation before us by holding that from November 29, 1994, the date the District Court entered judgment in his federal case, Johnson was obliged to act diligently to obtain the state-court order vacating his predicate conviction. Had he done so, the 1-year limitations period would have run from the date he received notice of that vacatur.[8] *311 III Although Johnson knew that his conviction subjected him to the career offender enhancement, he failed to attack the predicate for enhancement by filing his state habeas petition until February 1998, more than three years after entry of judgment in the federal case. Indeed, even if we moved the burden of diligence ahead to the date of finality of the federal conviction or to AEDPA's effective date two days later, Johnson would still have delayed unreasonably, having waited over 21 months. Johnson has offered no explanation for this delay, beyond observing that he was acting pro se and lacked the sophistication to understand the procedures. But we have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness, and on this record we think Johnson fell far short of reasonable diligence in challenging the state conviction. Since there is every reason to believe that prompt action would have produced a state vacatur order well over a year before he filed his § 2255 petition, the fourth paragraph of § 2255 is unavailable, and Johnson does not suggest that his motion was timely under any other provision. We accordingly affirm the judgment of the Court of Appeals. It is so ordered.

The question here is when the 1-year statute of limitations in 28 U.S. C. 2255, ¶ 6(4), begins to run in a case of a prisoner's collateral attack on his federal on the ground that a state conviction used to enhance that has since been vacated. We hold that the period begins when a petitioner receives notice of the order vacating the prior conviction, provided that he has sought it with due diligence in state court, after entry of judgment in the federal case with the enhanced I In 1994, petitioner Robert Johnson, Jr., was indicted for distributing cocaine base and related conspiracy. Following his guilty plea to a single count of distribution in violation of 21 U.S. C. 841(a)(1) and 18 U.S. C. 2, the pre investigation report recommended that Johnson receive an enhanced as a career offender under 4B1.1 of the federal Sentencing Guidelines, owing to his two 1989 convictions by the State of Georgia for distributing cocaine. Without elaboration, Johnson filed an objection to the recommendation, which he withdrew at the sentencing hearing. The District Court imposed the enhancement and entered judgment on November 29, 1994. On appeal, Johnson argued for the first time that he should not have been d as a career offender because one of *299 his Georgia convictions was invalid.[1] The Court of Appeals for the Eleventh Circuit affirmed the finding that in the trial court Johnson had raised no objection to the validity of his prior convictions and that the judge's career offender findings were not clearly erroneous. United v. Johnson, No. 94-9402 (Dec. 22, 1995) (per curiam), App. 7. In a footnote, the Court of Appeals "note[d] in passing that, should appellant obtain at some future date the vacation of the state court conviction in question because [it was] obtained in violation of his constitutional rights, he could petition the district court under 28 U.S. C. 2255 for the relief he now asks us to provide." We denied certiorari. Two days later, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) went into effect, imposing, among other things, a 1-year period of limitations on motions by prisoners seeking to modify their federal s: "The limitation period shall run from the latest of — "(1) the date on which the judgment of conviction becomes final; "(2) the date on which the impediment to making a motion created by governmental action in violation of *300 the Constitution or laws of the United is removed, if the movant was prevented from making a motion by such governmental action; "(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or "(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S. C. 2255, ¶ 6. A fifth option supplied uniformly by the Courts of Appeals gave prisoners whose convictions became final before AEDPA a 1-year grace period running from the new statute's effective date. (collecting cases). On April 25, 1997, one year and three days after his pre-AEDPA federal conviction became final and just after the 1-year grace period expired, Johnson pro se filed a motion in the District Court for a 60-day extension of time to attack his federal under [2] Finding the AEDPA period expired, the District Court denied the motion, though it added that denial was without prejudice to Johnson's right to file a 2255 motion claiming any alternative limitation period under the statute. On February 6, 1998, Johnson petitioned for writ of habeas corpus in the Superior Court of Wayne County, Georgia, claiming the invalidity of his guilty pleas in seven cases between 1983 and 1993 because he had not knowingly, intelligently, and voluntarily waived his right to counsel. One of the seven pleas Johnson challenged was the basis for one of *301 the 1989 convictions on which the District Court had rested the career offender enhancement of Johnson's federal[3] The State of Georgia denied Johnson's allegations, but filed no hearing transcripts. The Superior Court found that the records did "not show an affirmative waiver of [Johnson's] right to an attorney" in any of the cases, App. 10, and entered an order of vacatur, that all seven convictions be reversed, Just over three months later, Johnson was back in the Federal District Court pro se with a motion under 2255 to vacate the enhanced federal following the vacatur of one of its predicate state convictions. He claimed his motion was timely because the order vacating the state judgment was "new evidence" not previously discoverable, and so the trigger of a renewed limitation period. The Magistrate Judge took Johnson to be relying on the discovery of "facts supporting the claim" addressed in 2255, ¶ 6(4), but still recommended denial of the motion for failure on Johnson's part to exercise the "due diligence" required by that provision. Although Johnson objected that lack of education excused him from acting more promptly, and that he had filed the state petition as soon as he could get help from an inmate law clerk, the District Court denied the 2255 motion as untimely. In the court's view, the applicable limitation was the 1-year grace period that was over in April 1997, which Johnson had done nothing to toll in the 21 months he waited after his conviction became final before filing his state habeas petition. A divided panel of the Court of Appeals affirmed. The majority reasoned that the state-court order vacating the prior state conviction was not *302 a "`fact'" under the fourth paragraph of the 2255 limitations rule. In the majority's view, the state-court order was properly classified as a "legal proposition" or a "court action obtained at the behest of a federal prisoner, not `discovered' by him." Because the fourth paragraph of the limitations rule was therefore of no avail to Johnson, the Court of Appeals majority agreed with the District Court that the time for filing expired in 1997, at the end of the 1-year grace period. The majority also agreed that Johnson had no equitable claim to toll the running of the 1-year period because he had waited too long before going back to the state court. -1228. Judge Roney dissented, arguing that the state court's order was a "fact" supporting Johnson's 2255 motion, a fact not discoverable prior to the order's issuance. Over one dissent, rehearing en banc was denied. We granted certiorari, to resolve a disagreement among the Courts of Appeals as to whether vacatur of a prior state conviction used to enhance a federal can start the 1-year limitation period under the fourth alternative of the 2255 rule. Compare (case below) (vacatur not a trigger); with United We agree with Johnson that the state-court vacatur is a matter of fact for of the limitation rule in the fourth paragraph. But we also hold that the statute allows the fact of the state-court order to set the 1-year period running only if the petitioner has shown due diligence in seeking the order. Applying that qualification, we affirm. II The Government shares Johnson's preliminary assumption that if he filed his 2255 motion in time, he is entitled to *303 federal resentencing now that the State has vacated one of the judgments supporting his enhanced Neither the enhancement provision of the Sentencing Guidelines applied here, nor the mandatory enhancement under the Armed Career Criminal Act (ACCA), 18 U.S. C. 924(e), has been read to mean that the validity of a prior conviction supporting an enhanced federal is beyond challenge. Cf. Our cases applying these provisions assume the contrary, that a defendant given a enhanced for a prior conviction is entitled to a reduction if the earlier conviction is vacated. ; Such was the premise in even though we held that the ACCA generally created no opportunity to attack a prior state conviction collaterally at a federal sentencing and that the Constitution demands no more, We thought that Congress had not meant to make it so easy to challenge final judgments that every occasion to enhance a for recidivism would turn a federal sentencing court into a forum for difficult and time-consuming reexaminations of stale state s. We recognized only one exception to this rule that collateral attacks were off-limits, and that was for challenges to state convictions allegedly obtained in violation of the right to appointed counsel, an exception we thought necessary to avoid undermining -496. As to challenges falling outside of that exception, we pointed out that a defendant who successfully attacked his state conviction in state court or on federal habeas review could then "apply for reopening of any federal enhanced by the state s." *304 extended Custis to hold, subject to the same exception for Gideon claims, that a federal prisoner may not attack a predicate state conviction through a 2255 motion challenging an enhanced federal and again we stressed considerations of administration and finality, Again, too, we acknowledged that a prisoner could proceed under 2255 after successful review of the prior state conviction on federal habeas under 2254 or favorable resort to any postconviction process available under state law, We simply added that if the prior conviction was no longer open to direct or collateral attack in its own right, the federal prisoner could do nothing more about his enhancement.[4] This case presents the distinct issue, of how soon a prisoner, successful in his state must challenge the federal under The resolution turns on understanding what "facts" affecting an enhanced could most sensibly fall within that term as used in the fourth paragraph of the 2255 limitation provision, under which the one year runs from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Johnson says that the order vacating his prior conviction is the factual matter supporting his 2255 claim, discovery of which triggers the refreshed 1-year period. The Court of Appeals majority said no because it understood a legally operative order of vacatur to be a mandate of law or a consequence of applying law, and therefore distinct from a matter of "`fact'" *305 as Congress used the term in 340 F.3d, The United does not endorse that law-fact distinction, but argues that the facts supporting Johnson's 2255 claim, for of the fourth paragraph, are the facts on which he based his challenge to the validity of his state convictions. We think none of these positions is sound, at least in its entirety. As for the Government's proposed reading, certainly it is true that the circumstances rendering the underlying predicate conviction invalid are ultimate subjects of fact supporting the 2255 claim, in the sense that proof of those facts (or the government's failure to negate them) is necessary to vacate the prior state conviction and eliminate the ground for the federal enhancement. But this is not enough to fit the Government's position comfortably into paragraph four. The text of 2255, ¶ 6(4), clearly links the running of the limitation period to the discovery of the "facts supporting the claim or claims presented," but on the Government's view, the statute of limitations may begin to run (and may even expire) before the 2255 claim and its necessary predicate even exist. Prior to the federal conviction, a petitioner has no 2255 claim because he has no enhanced federal to challenge; and prior to the state vacatur, which Daniels makes a necessary condition for relief in most cases, a petitioner cannot obtain relief under Cf. Bay Area Laundry and Dry Cleaning Pension Trust Hence, it is highly doubtful that in 2255 challenges to enhanced s Congress would have meant to start the period running under paragraph four on the discoverability date of facts that may have no significance under federal law for years to come and that cannot by themselves be the basis of a 2255 claim, There are further reasons against applying the fourth paragraph as the Government would. Congress does not *306 appear to have adopted a policy of enhancing federal s regardless of the validity of state convictions relied on for the enhancement. Custis and Daniels were decided on just the contrary, and unchallenged, understanding; it would certainly push the limits of coherence for the Court now to apply the fourth paragraph in a way that would practically close the door to relief that each of those cases specifically left open.[5] Nor is there any reason to think Congress meant the limitation period to run earlier for the sake of preserving finality of state convictions; are capable of providing their own limitations periods (and most of them would have barred Johnson's challenge).[6] Johnson's argument improves on the Government's proposal by pegging the limitation period to notice of the state order eliminating the predicate required for enhancement, which is almost always necessary and always sufficient for relief. We do not find his proposal vulnerable to the point made by the majority of the Court of Appeals, that an order vacating a conviction is legally expressive or operative language that may not be treated as a matter of fact within the meaning of the statute. We commonly speak of the "fact of *307 a prior conviction," e. g., and an order vacating a predicate conviction is spoken of as a fact just as sensibly as the order entering it. In either case, a claim of such a fact is subject to proof or disproof like any other factual issue. But Johnson's take on the statute carries anomalies of its own, one minor, one more serious. It is strange to say that an order vacating a conviction has been "discovered," the term used by paragraph four, and stranger still to speak about the date on which it could have been discovered with due diligence, when the fact happens to be the outcome of a in which the 2255 petitioner was the moving party. By bringing that the petitioner causes the factual event to occur, after all, and unless his mail goes astray his prompt discovery of the crucial fact is virtually guaranteed through official notice. A more serious problem is Johnson's position that his 2255 petition is timely under paragraph four as long as he brings it within a year of learning he succeeded in attacking the prior conviction, no matter how long he may have slumbered before starting the successful If Johnson were right about this, a petitioner might wait a long time before raising any question about a predicate conviction, as this very case demonstrates. Of course it may well be that Johnson took his time because his basic had years to run before the period of enhancement began. But letting a petitioner wait for as long as the enhancement makes no difference to his actual imprisonment, while the predicate conviction grows increasingly stale and the federal outcome is subject to question, is certainly at odds with the provision in paragraph four that the one year starts running when the operative fact "could have been discovered through the exercise of due diligence." And by maximizing the time that judgments are open to question, a rule allowing that kind of delay would thwart one of AEDPA's principal *308 ; a purpose that was also central to our decisions in Custis and Daniels, see We think neither anomaly is serious enough, to justify rejecting Johnson's basic argument that notice of the order vacating the predicate conviction is the event that starts the one year running. Our job here is to find a sensible way to apply paragraph four when the truth is that with Daniels not yet on the books AEDPA's drafters probably never thought about the situation we face here. Of course it is peculiar to speak of "discovering" the fact of the very eventuality the petitioner himself has brought about, but when that fact is necessary to the 2255 claim, and treating notice of it as the trigger produces a more reasonable scheme than the alternatives, the scheme should be reconciled with the statutory language if it can be. And here the fit is painless, if short on style. While it sounds odd to speak of discovering a fact one has generated, a petitioner does not generate the fact of vacatur all by himself. He does, after all, have to learn of the court's response in the state and receiving notice of success can surely qualify as a kind of discovery falling within the statutory language. That leaves us with the question of how to implement the statutory mandate that a petitioner act with due diligence in discovering the crucial fact of the vacatur order that he himself seeks. The answer is that diligence can be shown by prompt action on the part of the petitioner as soon as he is in a position to realize that he has an interest in challenging the prior conviction with its potential to enhance the later The important thing is to identify a particular time when the course of the later federal prosecution clearly shows that diligence is in order. That might be the date the federal indictment is disclosed, the date of judgment, or the date of finality after direct appeal. Picking the first date would require the quickest response and serve finality best, *309 but it would produce some collateral litigation that federal acquittals would prove to have been needless, and it shares the same disconnection from the existence of a 2255 claim as the Government's view of the relevant "facts," see If we picked the third date, collateral litigation would be minimized, but finality would come late. This shapes up as a case for choosing the bowl of porridge between the one too hot and the one too cold, and settling on the date of judgment as the moment to activate due diligence seems best to reflect the statutory text and its underlying concerns. After the entry of judgment, the subject of the 2255 claim has come into being, the significance of inaction is clear, and very little litigation would be wasted, since most challenged federal convictions are in fact sustained. The dissent, like Johnson, would dispense with any due diligence requirement in seeking the state vacatur order itself, on the ground that the can impose their own limitations periods on state collateral attacks, as most do, post, at 316 (opinion of KENNEDY, J.). But the United has an interest in the finality of s imposed by its own courts; 2255 is, after all, concerned directly with federal cases. As to those federal cases, due diligence is not a "requirement of [our] own design," post, at 312, but an explicit demand in the text of 2255, ¶ 6(4), one that reflects AEDPA's core The requirement of due diligence must therefore demand something more than the dissent's willingness to accept no diligence at all, if the predicate conviction occurred in a State that itself imposes no limit of time for collaterally attacking its convictions.[7] *310 The dissent suggests that due diligence is satisfied by prompt discovery of the existence of the order vacating the state conviction. Post, at 314. Where one "discovers" a fact that one has helped to generate, whether it be the result of a court or of some other process begun at the petitioner's behest, it does not strain logic to treat required diligence in the "discovery" of that fact as entailing diligence in the steps necessary for the existence of that fact. To see why this is so, one need only consider a more commonplace use of the paragraph four limitation rule. When a petitioner bases his 2255 claim on the result of a DNA test, it is the result of the test that is the "fac[t] supporting the claim" in the 2255 motion, and the 1-year limitations period therefore begins to run from the date the test result is "discovered." Yet unless it is to be read out of the statute, the due diligence requirement would say that the test result only triggers a new 1-year period if the petitioner began the testing process with reasonable promptness once the DNA sample and testing technology were available. Under the dissent's view, the petitioner could wait untold years (perhaps until the death of a key prosecution witness) before calling for the DNA test, yet once he "discovered" the result of that test, he would get the benefit of a rejuvenated 1-year period regardless of his lengthy delay. Such a result simply cannot be squared with the statute's plain text and purpose. We accordingly apply the fourth paragraph in the situation before us by holding that from November 29, 1994, the date the District Court entered judgment in his federal case, Johnson was obliged to act diligently to obtain the state-court order vacating his predicate conviction. Had he done so, the 1-year limitations period would have run from the date he received notice of that vacatur.[8] *311 III Although Johnson knew that his conviction subjected him to the career offender enhancement, he failed to attack the predicate for enhancement by filing his state habeas petition until February 1998, more than three years after entry of judgment in the federal case. Indeed, even if we moved the burden of diligence ahead to the date of finality of the federal conviction or to AEDPA's effective date two days later, Johnson would still have delayed unreasonably, having waited over 21 months. Johnson has offered no explanation for this delay, beyond observing that he was acting pro se and lacked the sophistication to understand the procedures. But we have never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness, and on this record we think Johnson fell far short of reasonable diligence in challenging the state conviction. Since there is every reason to believe that prompt action would have produced a state vacatur order well over a year before he filed his 2255 petition, the fourth paragraph of 2255 is unavailable, and Johnson does not suggest that his motion was timely under any other provision. We accordingly affirm the judgment of the Court of Appeals. It is so ordered.

Justice Kennedy

dissenting

Johnson v. United States

2005-04-04

https://www.courtlistener.com/opinion/142886/johnson-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/142886/

2004-038

The Court took this case to determine whether a vacatur is a "fact," as that term is used in 28 U.S. C. § 2255, ¶ 6(4), thus commencing the statute's 1-year limitations period. The question divides the Courts of Appeals. Today the Court holds that the order of vacatur is the fact that begins the limitations period. On that point, I agree. Surprisingly, however, the Court proceeds to announce a second requirement of its own design: In order to obtain relief under § 2255, ¶ 6(4), petitioner must show he used due diligence in seeking the vacatur itself. On this point, I disagree. In my view the Court's new rule of prevacatur diligence is inconsistent with the statutory language; is unnecessary since States are quite capable of protecting themselves against undue delay in commencing state proceedings to vacate prior judgments; introduces an imprecise and incongruous deadline into the federal criminal process; is of sufficient uncertainty that it will require further litigation before its operation is understood; and, last but not least, drains scarce defense resources away from the prisoner's federal criminal case in some of its most critical stages. For these reasons, I submit my respectful dissent. I The question on which we granted certiorari is this: "When a federal court bases an enhanced sentence on a vacated state conviction, is the vacatur of the state conviction a `fact' supporting a prisoner's 28 U.S. C. § 2255 claim requiring reduction of the prisoner's sentence?" Pet. for Cert. i. In a change from the position it took in the Court of Appeals, the Government in its brief to this Court and again at oral argument all but conceded that the vacatur is a fact supporting a claim. See Brief for United States 33; Tr. of Oral Arg. 13. Seeking a new rationale to imprison petitioner for an *313 additional eight years on the basis of a prior Georgia conviction all of us know to be void, the Government defends the Court of Appeals' judgment on an alternative ground: Federal law requires diligence on the part of the defendant not only in bringing the vacatur to the attention of the federal court but also in commencing state proceedings to obtain the vacatur in the first place. According to the Government, petitioner's diligence should be measured from the time a petitioner could have obtained a vacatur, i. e., as soon as the legal basis for vacatur existed. See Brief for United States 32-34. Although the Court adopts the Government's argument in part, it comes up with a date of its own choosing from which to measure a petitioner's diligence. The Court is quite correct, in my view, to hold that the state-court order of vacatur itself is the critical fact which begins the Antiterrorism and Effective Death Penalty Act of 1996's 1-year limitations period. § 101, 110 Stat. 1217. Ante, at 309. It is an accepted use of the law's vocabulary to say that the entry or the setting aside of a judgment is a fact. Ante, at 307. An order vacating a judgment is a definite and rsignificant fact of litigation history. So the Court is on firm ground to say a state judgment of vacatur begins the 1-year limitations period. Even aside from the textual support for petitioner's position, our opinions in Custis v. United States, 511 U.S. 485 (1994), and Daniels v. United States, 532 U.S. 374 (2001), were decided on the understanding that Congress did not expect federal sentences to be enhanced irrespective of the validity of the state conviction relied upon for the enhancement. Ante, at 305-306. Those cases suggest that the proper procedure for reducing a federal sentence enhanced on the basis of an invalid state conviction is to seek a vacatur of a state conviction, and then proceed through federal habeas. The Court is correct, too, to say that the whole problem of vacating state-court judgments fits rather awkwardly into the language of § 2255, ¶ 6(4). Ante, at 308. That is because *314 ¶ 6(4) is designed to address myriad claims, including post-trial factual discoveries such as violations of Brady v. Maryland, 373 U.S. 83 (1963), witness recantations, new exculpatory evidence, and the like. Having gone this far, the Court in my view should simply accept that § 2255, ¶ 6(4), is not a particularly good fit with the vacatur problem. The Court, however, does not accept the consequence of its own correct determination. Instead it finds a need to make the words "discovery" and "due diligence" more applicable to the instance of vacatur. Hence it adopts the second requirement: "[W]e also hold that the statute allows the fact of the state-court order to set the 1-year period running only if the petitioner has shown due diligence in seeking the order." Ante, at 302. This added condition cannot be found in the statute's design or in its text. It creates, furthermore, its own set of problems. Section 2255, ¶ 6(4), neither requires nor accommodates the Court's federal rule of diligence respecting state-court proceedings. II The 1-year period begins from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S. C. § 2255, ¶ 6(4). As the Court agrees that vacatur is the fact which begins the 1-year period, it would seem to follow that the diligence requirement pertains to presenting the fact of vacatur to the federal court. A petitioner cannot discover the vacatur until it issues. If the State has allowed the vacatur subject to its own rules respecting timely motions or applications and if petitioner has acted diligently in discovering entry of that vacatur, the proper conclusion is that he may bring a § 2255 petition within one year of obtaining the vacatur, or one year of reasonably discovering it. The only way the majority's construction can fit the statute is if the controlling fact is the circumstance giving rise to the vacatur, not the vacatur itself. Yet the majority resists *315 that proposition, for it measures the 1-year period from the date the vacatur is ordered. Ante, at 309. The majority rejects petitioner's proposed construction of the "discovered through the exercise of due diligence" language, which I would adopt, for two reasons. First, the Court observes it is "strange to say that an order vacating a conviction has been `discovered,' . . . and stranger still to speak about the date on which it could have been discovered with due diligence, when the fact happens to be the outcome of a proceeding in which the § 2255 petitioner was the moving party." Ante, at 307. By bringing vacatur proceedings, petitioner himself causes the factual event to occur, and his discovery of it is "virtually guaranteed." Ante, at 307. The Court is concerned that the due diligence language does barely any work under petitioner's interpretation because the language is too easily satisfied. Though I agree it is a bit awkward, in my view it is well within the realm of reasonable statutory construction to apply the term "discover" to an order vacating a conviction. The ordinary meaning of the term "discovery," after all, is "the act, process, or an instance of gaining knowledge of or ascertaining the existence of something previously unknown or unrecognized." Webster's Third New International Dictionary 647 (1993). See also Black's Law Dictionary 465 (6th ed. 1990) ("[t]o get first sight or knowledge of"). There may be instances when there is a mistake in recording or entering the vacatur, or when it is not clear that the order in fact includes that relief, or when a prisoner's transfer or extradition reasonably causes the prisoner to learn of the order in some uncommon way. In these instances, admittedly infrequent, the word "discover" makes perfect sense. True, the due diligence language does not do much work when a petitioner receives prompt notice in the ordinary course. As explained, however, § 2255, ¶ 6(4), is designed to cover various circumstances, and many other types of claims. Ante, at 310. *316 To bolster its prevacatur diligence requirement, the Court elects to resolve a case not before it, i. e., a hypothetical involving DNA testing. Ante, at 310. Quite apart from the impropriety of deciding an important question not remotely presented in the case, the Court's resolution of its hypothetical is, in my view, far from self-evident. It has little to do, moreover, with the question of vacatur of a state-court judgment. We have a special obligation to the federal system to respect state-court judgments. Rather than imposing a federal rule of diligence on top of existing state-court rules for determining when a vacatur motion should be made, I would treat the critical fact as the date on which the state court orders vacatur. That, after all, is the time when the grounds for the claim to be made in federal court (the claim that an enhancement was improper) have become established under conventional principles commanding respect for state judgments, or allowing them to be set aside. The second reason the majority rejects Johnson's position is because it is troubled by the prospect that a petitioner "might wait a long time before raising any question about a predicate conviction. . . ." Ante, at 307. Even if this concern were a sufficient basis for adding the majority's prevacatur diligence requirement to the statute and creating a two-tier diligence structure, the concern is overstated. In most instances, States can, and do, impose diligence by limiting the time for requesting a vacatur of a prior state conviction. It was represented at oral argument that all but about six States impose a limitation by statute or laches. Tr. of Oral Arg. 10. Even in those six States, furthermore, it is not clear that equitable defenses would not apply. Id., at 17-18. Any States that do not impose time limitations are free to do so if deemed necessary to protect the integrity of their own judgments, so a federal time limit is not required. This is illustrated by the instant case. When Johnson sought state relief, Georgia imposed no limitation on a petitioner's *317 ability to obtain a vacatur. Ante, at 306, n. 5. Since then, however, Georgia has enacted a 4-year limitations period for proceeding to obtain a vacatur. The majority's apparent concern that, absent its interpretation of § 2255, ¶ 6(4), petitioners have some incentive to delay proceedings to vacate a conviction seems quite unfounded. The majority's construction, furthermore, can allow for the same delay it seeks to avoid. After all, the Court holds that the due diligence requirement is triggered only by a federal judgment. Consider a simple hypothetical. Suppose that a petitioner suffers a state conviction in 1980, and, despite learning in 1985 that his conviction is constitutionally infirm, does nothing. Suppose further he is sentenced for a federal crime in 2000. Under the majority's view, the petitioner's obligation to question his state conviction is not triggered until 2000, a full 15 years after he knew the basis for vacatur. Despite the adaptation it makes to § 2255, ¶ 6(4), the majority has failed to create an incentive for petitioner to act promptly in instituting state proceedings. The incentive exists under state law, and the Court does not need to supplement it. The error of the majority's position is further revealed by its selection of what I consider to be an incorrect date for triggering the prevacatur diligence requirement. It holds that the triggering event is set at the date of petitioner's federal judgment. Ante, at 310 (setting November 29, 1994, the date of judgment, as the date triggering the diligence requirement). This rule of the Court's own contrivance is adopted, in my respectful submission, without full appreciation for the dynamic of the criminal process and its demands on counsel. Assuming for the moment that some event in the federal court should start the time period for pursuing state relief, surely the entry of judgment is ill chosen. This means the judgment is a mandatory beginning point for collateral proceedings to correct a judgment and sentence not yet final. *318 If the Court wants to invent its own rule and use an event in the federal criminal proceeding to commence a limitations period (and I disagree with both propositions), the date the judgment becomes final, not the date of judgment in the trial court, is the proper point of beginning. The law, and the decisions of this Court, put extraordinary demands on defense counsel. Immediately after a judgment, defense counsel must concentrate on ensuring that evidence of trial misconduct does not disappear and that grounds for appeal are preserved and presented. Today the Court says defense counsel must divert scarce resources from these heavy responsibilities to commence collateral proceedings to attack state convictions. In this case seven different convictions in Georgia may have been relevant. In other cases convictions that might enhance have been entered in different States. See, e. g., Custis, 511 U. S., at 487. It is most troubling for a Court that insists on high standards of performance for defense counsel now to instruct that collateral proceedings must be commenced in one or more States during the critical time immediately after judgment and before appeal. If the Court is to insist upon its own second tier of diligence, the dynamics of the criminal system and ordinary rules for determining when collateral proceedings become necessary should instruct us that, for federal purposes, this tier begins when the federal conviction becomes final. This also ensures that the federal court does not make demands on counsel and on state courts that are pointless if the federal conviction is overturned. Perhaps the Court rejects the date of final judgment as triggering its requirement because it adds little to the state requirements of diligence. If this surmise is correct, of course, it demonstrates that the Court should not adopt its interpretation in the first place. Aside from diverting resources from a petitioner's federal case, the majority's approach creates new uncertainty, giving rise to future litigation. It leaves unsaid what standard will *319 be used for measuring whether a petitioner acted promptly, forcing litigants and lawyers to scramble to state court in the hopes they satisfy the Court's vague prevacatur diligence requirement. The Court tells us nothing about what to make of existing state standards regarding diligence. Assume a State has a 4-year limitations period for bringing a vacatur action and a petitioner acts within two years of his state conviction. Do we look to state law as a benchmark for what should be presumed to be diligent? The murkiness of the Court's new rule will set in motion satellite litigation on this and related points. In lieu of adopting an interpretation that creates more problems than it avoids, I would hold that the order vacating a prior state conviction is the fact supporting a § 2255 claim, and the statute is satisfied if the § 2255 proceeding is commenced within one year of its entry, unless the petitioner shows it was not reasonably discovered until later in which case that date will control when the statute begins to run. For these reasons, I would reverse the judgment of the Court of Appeals.

The Court took this case to determine whether a vacatur is a "fact," as that term is used in 28 U.S. C. 2255, ¶ 6(4), thus commencing the statute's 1-year limitations period. The question divides the Courts of Appeals. Today the Court holds that the order of vacatur is the fact that begins the limitations period. On that point, I agree. Surprisingly, however, the Court proceeds to announce a second requirement of its own design: In order to obtain relief under 2255, ¶ 6(4), petitioner must show he used due diligence in seeking the vacatur itself. On this point, I disagree. In my view the Court's new rule of prevacatur diligence is inconsistent with the statutory language; is unnecessary since States are quite capable of protecting themselves against undue delay in commencing state proceedings to vacate prior judgments; introduces an imprecise and incongruous deadline into the federal criminal process; is of sufficient uncertainty that it will require further litigation before its operation is understood; and, last but not least, drains scarce defense resources away from the prisoner's federal criminal case in some of its most critical stages. For these reasons, I submit my respectful dissent. I The question on which we granted certiorari is this: "When a federal court bases an enhanced sentence on a vacated state conviction, is the vacatur of the state conviction a `fact' supporting a prisoner's 28 U.S. C. 2255 claim requiring reduction of the prisoner's sentence?" Pet. for Cert. i. In a change from the position it took in the Court of Appeals, the Government in its brief to this Court and again at oral argument all but conceded that the vacatur is a fact supporting a claim. See Brief for United States 33; Tr. of Oral Arg. 13. Seeking a new rationale to imprison petitioner for an *313 additional eight years on the basis of a prior Georgia conviction all of us know to be void, the Government defends the Court of Appeals' judgment on an alternative ground: Federal law requires diligence on the part of the defendant not only in bringing the vacatur to the attention of the federal court but also in commencing state proceedings to obtain the vacatur in the first place. According to the Government, petitioner's diligence should be measured from the time a petitioner could have obtained a vacatur, i. e., as soon as the legal basis for vacatur existed. See Brief for United States 32-34. Although the Court adopts the Government's argument in part, it comes up with a date of its own choosing from which to measure a petitioner's diligence. The Court is quite correct, in my view, to hold that the state-court order of vacatur itself is the critical fact which begins the Antiterrorism and Effective Death Penalty Act of 1996's 1-year limitations period. 101, Ante, at 309. It is an accepted use of the law's vocabulary to say that the entry or the setting aside of a judgment is a fact. Ante, at 307. An order vacating a judgment is a definite and rsignificant fact of litigation history. So the Court is on firm ground to say a state judgment of vacatur begins the 1-year limitations period. Even aside from the textual support for petitioner's position, our opinions in and were decided on the understanding that Congress did not expect federal sentences to be enhanced irrespective of the validity of the state conviction relied upon for the enhancement. Ante, at 305-306. Those cases suggest that the proper procedure for reducing a federal sentence enhanced on the basis of an invalid state conviction is to seek a vacatur of a state conviction, and then proceed through federal habeas. The Court is correct, too, to say that the whole problem of vacating state-court judgments fits rather awkwardly into the language of 2255, ¶ 6(4). Ante, at 308. That is because *314 ¶ 6(4) is designed to address myriad claims, including post-trial factual discoveries such as violations of witness recantations, new exculpatory evidence, and the like. Having gone this far, the Court in my view should simply accept that 2255, ¶ 6(4), is not a particularly good fit with the vacatur problem. The Court, however, does not accept the consequence of its own correct determination. Instead it finds a need to make the words "discovery" and "due diligence" more applicable to the instance of vacatur. Hence it adopts the second requirement: "[W]e also hold that the statute allows the fact of the state-court order to set the 1-year period running only if the petitioner has shown due diligence in seeking the order." Ante, at 302. This added condition cannot be found in the statute's design or in its text. It creates, furthermore, its own set of problems. Section 2255, ¶ 6(4), neither requires nor accommodates the Court's federal rule of diligence respecting state-court proceedings. II The 1-year period begins from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S. C. 2255, ¶ 6(4). As the Court agrees that vacatur is the fact which begins the 1-year period, it would seem to follow that the diligence requirement pertains to presenting the fact of vacatur to the federal court. A petitioner cannot discover the vacatur until it issues. If the State has allowed the vacatur subject to its own rules respecting timely motions or applications and if petitioner has acted diligently in discovering entry of that vacatur, the proper conclusion is that he may bring a 2255 petition within one year of obtaining the vacatur, or one year of reasonably discovering it. The only way the majority's construction can fit the statute is if the controlling fact is the circumstance giving rise to the vacatur, not the vacatur itself. Yet the majority resists *315 that proposition, for it measures the 1-year period from the date the vacatur is ordered. Ante, at 309. The majority rejects petitioner's proposed construction of the "discovered through the exercise of due diligence" language, which I would adopt, for two reasons. First, the Court observes it is "strange to say that an order vacating a conviction has been `discovered,' and stranger still to speak about the date on which it could have been discovered with due diligence, when the fact happens to be the outcome of a proceeding in which the 2255 petitioner was the moving party." Ante, at 307. By bringing vacatur proceedings, petitioner himself causes the factual event to occur, and his discovery of it is "virtually guaranteed." Ante, at 307. The Court is concerned that the due diligence language does barely any work under petitioner's interpretation because the language is too easily satisfied. Though I agree it is a bit awkward, in my view it is well within the realm of reasonable statutory construction to apply the term "discover" to an order vacating a conviction. The ordinary meaning of the term "discovery," after all, is "the act, process, or an instance of gaining knowledge of or ascertaining the existence of something previously unknown or unrecognized." Webster's Third New International Dictionary 647 (1993). See also Black's Law Dictionary 465 (6th ed. 1990) ("[t]o get first sight or knowledge of"). There may be instances when there is a mistake in recording or entering the vacatur, or when it is not clear that the order in fact includes that relief, or when a prisoner's transfer or extradition reasonably causes the prisoner to learn of the order in some uncommon way. In these instances, admittedly infrequent, the word "discover" makes perfect sense. True, the due diligence language does not do much work when a petitioner receives prompt notice in the ordinary course. As explained, however, 2255, ¶ 6(4), is designed to cover various circumstances, and many other types of claims. Ante, at 310. *316 To bolster its prevacatur diligence requirement, the Court elects to resolve a case not before it, i. e., a hypothetical involving DNA testing. Ante, at 310. Quite apart from the impropriety of deciding an important question not remotely presented in the case, the Court's resolution of its hypothetical is, in my view, far from self-evident. It has little to do, moreover, with the question of vacatur of a state-court judgment. We have a special obligation to the federal system to respect state-court judgments. Rather than imposing a federal rule of diligence on top of existing state-court rules for determining when a vacatur motion should be made, I would treat the critical fact as the date on which the state court orders vacatur. That, after all, is the time when the grounds for the claim to be made in federal court (the claim that an enhancement was improper) have become established under conventional principles commanding respect for state judgments, or allowing them to be set aside. The second reason the majority rejects Johnson's position is because it is troubled by the prospect that a petitioner "might wait a long time before raising any question about a predicate conviction." Ante, at 307. Even if this concern were a sufficient basis for adding the majority's prevacatur diligence requirement to the statute and creating a two-tier diligence structure, the concern is overstated. In most instances, States can, and do, impose diligence by limiting the time for requesting a vacatur of a prior state conviction. It was represented at oral argument that all but about six States impose a limitation by statute or laches. Tr. of Oral Arg. 10. Even in those six States, furthermore, it is not clear that equitable defenses would not apply. Any States that do not impose time limitations are free to do so if deemed necessary to protect the integrity of their own judgments, so a federal time limit is not required. This is illustrated by the instant case. When Johnson sought state relief, Georgia imposed no limitation on a petitioner's *317 ability to obtain a vacatur. Ante, at 306, n. 5. Since then, however, Georgia has enacted a 4-year limitations period for proceeding to obtain a vacatur. The majority's apparent concern that, absent its interpretation of 2255, ¶ 6(4), petitioners have some incentive to delay proceedings to vacate a conviction seems quite unfounded. The majority's construction, furthermore, can allow for the same delay it seeks to avoid. After all, the Court holds that the due diligence requirement is triggered only by a federal judgment. Consider a simple hypothetical. Suppose that a petitioner suffers a state conviction in 1980, and, despite learning in 1985 that his conviction is constitutionally infirm, does nothing. Suppose further he is sentenced for a federal crime in 2000. Under the majority's view, the petitioner's obligation to question his state conviction is not triggered until 2000, a full 15 years after he knew the basis for vacatur. Despite the adaptation it makes to 2255, ¶ 6(4), the majority has failed to create an incentive for petitioner to act promptly in instituting state proceedings. The incentive exists under state law, and the Court does not need to supplement it. The error of the majority's position is further revealed by its selection of what I consider to be an incorrect date for triggering the prevacatur diligence requirement. It holds that the triggering event is set at the date of petitioner's federal judgment. Ante, at 310 (setting November 29, 1994, the date of judgment, as the date triggering the diligence requirement). This rule of the Court's own contrivance is adopted, in my respectful submission, without full appreciation for the dynamic of the criminal process and its demands on counsel. Assuming for the moment that some event in the federal court should start the time period for pursuing state relief, surely the entry of judgment is ill chosen. This means the judgment is a mandatory beginning point for collateral proceedings to correct a judgment and sentence not yet final. *318 If the Court wants to invent its own rule and use an event in the federal criminal proceeding to commence a limitations period (and I disagree with both propositions), the date the judgment becomes final, not the date of judgment in the trial court, is the proper point of beginning. The law, and the decisions of this Court, put extraordinary demands on defense counsel. Immediately after a judgment, defense counsel must concentrate on ensuring that evidence of trial misconduct does not disappear and that grounds for appeal are preserved and presented. Today the Court says defense counsel must divert scarce resources from these heavy responsibilities to commence collateral proceedings to attack state convictions. In this case seven different convictions in Georgia may have been relevant. In other cases convictions that might enhance have been entered in different States. See, e. g., It is most troubling for a Court that insists on high standards of performance for defense counsel now to instruct that collateral proceedings must be commenced in one or more States during the critical time immediately after judgment and before appeal. If the Court is to insist upon its own second tier of diligence, the dynamics of the criminal system and ordinary rules for determining when collateral proceedings become necessary should instruct us that, for federal purposes, this tier begins when the federal conviction becomes final. This also ensures that the federal court does not make demands on counsel and on state courts that are pointless if the federal conviction is overturned. Perhaps the Court rejects the date of final judgment as triggering its requirement because it adds little to the state requirements of diligence. If this surmise is correct, of course, it demonstrates that the Court should not adopt its interpretation in the first place. Aside from diverting resources from a petitioner's federal case, the majority's approach creates new uncertainty, giving rise to future litigation. It leaves unsaid what standard will *319 be used for measuring whether a petitioner acted promptly, forcing litigants and lawyers to scramble to state court in the hopes they satisfy the Court's vague prevacatur diligence requirement. The Court tells us nothing about what to make of existing state standards regarding diligence. Assume a State has a 4-year limitations period for bringing a vacatur action and a petitioner acts within two years of his state conviction. Do we look to state law as a benchmark for what should be presumed to be diligent? The murkiness of the Court's new rule will set in motion satellite litigation on this and related points. In lieu of adopting an interpretation that creates more problems than it avoids, I would hold that the order vacating a prior state conviction is the fact supporting a 2255 claim, and the statute is satisfied if the 2255 proceeding is commenced within one year of its entry, unless the petitioner shows it was not reasonably discovered until later in which case that date will control when the statute begins to run. For these reasons, I would reverse the judgment of the Court of Appeals.

Justice Kagan

majority

Madison v. Alabama

2019-02-27

https://www.courtlistener.com/opinion/4594417/madison-v-alabama/

https://www.courtlistener.com/api/rest/v3/clusters/4594417/

The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. Panetti v. Quarterman, 551 U.S. 930, 959 (2007). In this case, Vernon Madison ar- gued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief. We now address two questions relating to the Eighth Amendment’s bar, disputed below but not in this Court. First, does the Eighth Amendment forbid execution when- ever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understand- ing of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions? We (and, now, the parties) think so, because either condi- tion may—or, then again, may not—impede the requisite comprehension of his punishment. The only issue left, on which the parties still disagree, is what those rulings 2 MADISON v. ALABAMA Opinion of the Court mean for Madison’s own execution. We direct that issue to the state court for further consideration in light of this opinion. I A This Court decided in Ford v. Wainwright, 477 U.S. 399 (1986), that the Eighth Amendment’s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. Id., at 406. While on death row, Alvin Ford was beset by “pervasive delu- sion[s]” associated with “[p]aranoid [s]chizophrenia.” Id., at 402–403. Surveying both the common law and state statutes, the Court found a uniform practice against tak- ing the life of such a prisoner. See id., at 406–409. Among the reasons for that time-honored bar, the Court ex- plained, was a moral “intuition” that “killing one who has no capacity” to understand his crime or punishment “simply offends humanity.” Id., at 407, 409; see id., at 409 (citing the “natural abhorrence civilized societies feel” at perform- ing such an act). Another rationale rested on the lack of “retributive value” in executing a person who has no com- prehension of the meaning of the community’s judgment. Ibid.; see id., at 421 (Powell, J., concurring in part and concurring in judgment) (stating that the death penalty’s “retributive force[ ] depends on the defendant’s awareness of the penalty’s existence and purpose”). The resulting rule, now stated as a matter of constitutional law, held “a category of defendants defined by their mental state” incompetent to be executed. Id., at 419. The Court clarified the scope of that category in Panetti v. Quarterman by focusing on whether a prisoner can “reach a rational understanding of the reason for [his] execution.” 551 U.S., at 958. Like Alvin Ford, Scott Panetti suffered from “gross delusions” stemming from “extreme psychosis.” Id., at 936, 960. In reversing a Cite as: 586 U. S. ____ (2019) 3 Opinion of the Court ruling that he could still be executed, the Panetti Court set out the appropriate “standard for competency.” Id., at 957. Ford, the Court now noted, had not provided “specific criteria.” 551 U.S., at 957. But Ford had explored what lay behind the Eighth Amendment’s prohibition, high- lighting that the execution of a prisoner who cannot com- prehend the reasons for his punishment offends moral values and “serves no retributive purpose.” 551 U.S., at 958. Those principles, the Panetti Court explained, indi- cate how to identify prisoners whom the State may not execute. The critical question is whether a “prisoner’s mental state is so distorted by a mental illness” that he lacks a “rational understanding” of “the State’s rationale for [his] execution.” Id., at 958–959. Or similarly put, the issue is whether a “prisoner’s concept of reality” is “so impair[ed]” that he cannot grasp the execution’s “meaning and purpose” or the “link between [his] crime and its punishment.” Id., at 958, 960. B Vernon Madison killed a police officer in 1985 during a domestic dispute. An Alabama jury found him guilty of capital murder, and the trial court sentenced him to death. He has spent most of the ensuing decades on the State’s death row. In recent years, Madison’s mental condition has sharply deteriorated. Madison suffered a series of strokes, includ- ing major ones in 2015 and 2016. See Tr. 19, 46–47 (Apr. 14, 2016). He was diagnosed as having vascular dementia, with attendant disorientation and confusion, cognitive impairment, and memory loss. See id., at 19–20, 52–54. In particular, Madison claims that he can no longer recol- lect committing the crime for which he has been sentenced to die. See Tr., Pet. Exh. 2, p. 8. After his 2016 stroke, Madison petitioned the trial court for a stay of execution on the ground that he had become 4 MADISON v. ALABAMA Opinion of the Court mentally incompetent. Citing Ford and Panetti, he argued that “he no longer understands” the “status of his case” or the “nature of his conviction and sentence.” Pet. for Sus- pension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), pp. 11, 14. And in a later filing, Madison emphasized that he could not “independently recall the facts of the offense he is convicted of.” Brief Pursuant to Order (Apr. 21, 2016), p. 8. Alabama countered that Mad- ison had “a rational understanding of [the reasons for] his impending execution,” as required by Ford and Panetti, even assuming he had no memory of committing his crime. Brief on Madison’s Competency (April 21, 2016), pp. 4–5, 8. And more broadly, the State claimed that Madison could not possibly qualify as incompetent under those two decisions because both “concerned themselves with ‘[g]ross delusions’ ”—which all agree Madison does not have. Id., at 2; see ibid. (Madison “failed to implicate” Ford and Panetti because he “does not suffer from psychosis or delusions”). Expert reports from two psychologists largely aligned with the parties’ contending positions. Dr. John Goff, Madison’s expert, found that although Madison “un- derst[ood] the nature of execution” in the abstract, he did not comprehend the “reasoning behind” Alabama’s effort to execute him. Tr., Pet. Exh. 2 (Apr. 14, 2016), p. 8; see id., at 9. Goff stated that Madison had “Major Vascular Neurological Disorder”—also called vascular dementia— which had caused “significant cognitive decline.” Ibid. And Goff underscored that Madison “demonstrate[d] retrograde amnesia” about his crime, meaning that he had no “independent recollection[ ]” of the murder. Id., at 8; see id., at 9. For his part, Dr. Karl Kirkland, the court- appointed expert, reported that Madison “was able to discuss his case” accurately and “appear[ed] to understand his legal situation.” Tr., Ct. Exh. 1, pp. 10–11. Although Kirkland acknowledged that Madison’s strokes had led to Cite as: 586 U. S. ____ (2019) 5 Opinion of the Court cognitive decline, see id., at 10, the psychologist made no men- tion of Madison’s diagnosed vascular dementia. Rather, Kirkland highlighted that “[t]here was no evidence of psychosis, paranoia, or delusion.” Id., at 9; see ibid. (Mad- ison “did not seem delusional at all”). At a competency hearing, Alabama similarly stressed Madison’s absence of psychotic episodes or delusions. The State asked both experts to affirm that Madison was “neither delusional [n]or psychotic.” Tr. 56; see id., at 22. And its closing argument focused on their agreement that he was not. As the State summarized: “He’s not psychotic. He’s not delusional.” Id., at 81. On the State’s view, that fact answered the competency question because “[t]he Supreme Court is looking at whether someone’s delusions or someone’s paranoia or someone’s psychosis is standing in the way of ” rationally understanding his punishment. Id., at 82. Madison’s counsel disputed that point. “[T]he State would like to say, well, he’s not delusional, he’s not psychotic,” the attorney recapped. Id., at 83. But, she continued, “[t]hat’s not really the criteria” under Panetti. Tr. 83. Rather, the Court there barred executing a person with any mental illness—“dementia” and “brain injuries” no less than psychosis and delusions—that prevents him from comprehending “why he is being executed.” Ibid. The trial court found Madison competent to be executed. Its order first recounted the evidence given by each expert witness. The summary of Kirkland’s report and testimony began by stating that the psychologist had “found no evidence of paranoia[,] delusion [or] psychosis.” Order (Apr. 29, 2016), p. 5 (2016 Order). The court then noted Kirkland’s view that Madison could “give details of the history of his case” and “appear[ed] to understand his legal situation.” Ibid. Turning to the Goff report, the court noted the expert’s finding that Madison was “amne- sic” and could not recollect his crime. Id., at 6; see id., at 7. In a single, final paragraph, the court provided both its 6 MADISON v. ALABAMA Opinion of the Court ruling and its reasoning. Madison had failed to show, the court wrote, that he did not “rationally understand the punishment he is about to suffer and why he is about to suffer it.” Id., at 10. The court “accept[ed] the testimony of Dr. Kirkland as to the understanding Madison has concerning the situation.” Ibid. “Further,” the court concluded, “the evidence does not support that Mr. Madi- son is delusional.” Ibid. Madison next sought habeas relief in federal court, where he faced the heavy burden of showing that the state-court ruling “involved an unreasonable application of[ ] clearly established federal law” or rested on an “un- reasonable determination of the facts.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S. C. §2254(d). The District Court rejected his petition, but the Court of Appeals for the Eleventh Circuit ruled that Madi- son had demonstrated both kinds of indisputable error. See Madison v. Commissioner, 851 F.3d 1173 (2017). This Court then summarily reversed the appeals court’s decision. See Dunn v. Madison, 583 U. S. ___ (2017) (per curiam). We explained, contrary to the Eleventh Circuit’s principal holding, that “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed” because of a simple failure to remember his crime. Id., at ___ (slip op., at 4). And we found that the state court did not act unreasonably—otherwise put, did not err “beyond any possibility for fairminded disagreement”—when it found that Madison had the necessary understanding to be executed. Ibid. (internal quotation marks omitted). But we made clear that our decision was premised on AEDPA’s “demanding” and “deferential standard.” Id., at ___, ___ (slip op., at 3, 4). “We express[ed] no view” on the question of Madison’s competency “outside of the AEDPA context.” Id., at ___ (slip op., at 4).1 —————— 1 Neither did we opine on—or even mention—the subsidiary legal Cite as: 586 U. S. ____ (2019) 7 Opinion of the Court When Alabama set an execution date in 2018, Madison returned to state court to argue again that his mental condition precluded the State from going forward. In his petition, Madison reiterated the facts and arguments he had previously presented to the state court. But Madison also claimed that since that court’s decision (1) he had suffered further cognitive decline and (2) a state board had suspended Kirkland’s license to practice psychology, thus discrediting his prior testimony. See Pet. to Suspend Execution in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 1–2, 16–19.2 Alabama responded that nothing material had changed since the court’s first com- petency hearing. See Motion to Dismiss (Dec. 20, 2017), p. 9. The State also repeated its argument that Panetti permits executing Madison, pointing to the experts’ agreement that he is “not delusional or psychotic” and —————— question whether a mental disorder other than delusions may render a person incompetent to be executed. Alabama told the Eleventh Circuit that it could not, thus reprising the claim the State had made in the trial court. See Madison, 851 F.3d, at 1188 (describing Alabama’s argument that “only a prisoner suffering from gross delusions can show incompetency under Panetti”); Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 26:36–26:45 (“In this case, what we have is someone who claims to have a mental illness, dementia,” but does not have “delusions, which is what Panetti requires”); id., at 26:48–27:21 (When asked if someone with “severe dementia” but no delusions could be executed, the State responded “I think so because . . . they don’t have delusions”). (Alabama alternatively argued that the state court’s decision was not based on that view, see Brief for Appellee in No. 16– 12279 (CA11), pp. 37–38; the quotations the dissent picks out, see post, at 10, n. 4, come from that additional argument.) The Eleventh Circuit rejected the State’s contention that dementia could not preclude an execution as “inconsistent with the principles underlying” Ford and Panetti. 851 F.3d, at 1188. But we had no reason to address that holding in light of the errors we saw in other parts of the appeals court’s analysis. 2 As Madison’s petition recounted, the license suspension followed the opening of a criminal investigation into whether Kirkland had commit- ted narcotics offenses. See Pet. to Suspend Execution 17–19. 8 MADISON v. ALABAMA Opinion of the Court asserting that neither “memory impairment [n]or demen- tia [could] suffice to satisfy the Panetti and Ford stand- ards” without “an expansion” of those decisions. Motion to Dismiss 4, 10. A week before the scheduled execution, the state court again found Madison mentally competent. Its brief order stated only that Madison “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. Madison then filed in this Court a request to stay his execution and a petition for certiorari. We ordered the stay on the scheduled execution date and granted the petition a few weeks later. See 583 U. S. ___, ___ (2018). Because the case now comes to us on direct review of the state court’s decision (rather than in a habeas proceeding), AEDPA’s deferential standard no longer governs. (And for that reason—contrary to the dissent’s suggestion, post, at 12—our decision on Madison’s habeas petition cannot help resolve the questions raised here.) II Two issues relating to Panetti’s application are before us. Recall that our decision there held the Eighth Amendment to forbid executing a prisoner whose mental illness makes him unable to “reach a rational understand- ing of the reason for [his] execution.” 551 U.S., at 958; see supra, at 2–3. The first question presented is whether Panetti prohibits executing Madison merely because he cannot remember committing his crime. The second ques- tion raised is whether Panetti permits executing Madison merely because he suffers from dementia, rather than psychotic delusions.3 In prior stages of this case, as we —————— 3 The dissent is in high dudgeon over our taking up the second ques- tion, arguing that it was not presented in Madison’s petition for certio- rari. See post, at 1–6. But that is incorrect. The petition presented two questions—the same two we address here. The first question asked Cite as: 586 U. S. ____ (2019) 9 Opinion of the Court have described, the parties disagreed about those matters. See supra, at 4–8. But at this Court, Madison accepted Alabama’s positon on the first issue and Alabama accepted Madison’s on the second. See, e.g., Tr. of Oral Arg. 11, 36. And rightly so. As the parties now recognize, the standard set out in Panetti supplies the answers to both questions. First, a person lacking memory of his crime may yet ra- tionally understand why the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution. Second, a person suffering from dementia may be unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment does not allow his execution. What matters is whether a person has the “rational un- derstanding” Panetti requires—not whether he has any particular memory or any particular mental illness. A Consider initially a person who cannot remember his crime because of a mental disorder, but who otherwise has —————— whether the Eighth Amendment bars executing Madison because he has no “memory of his commission of the capital offense.” Pet. for Cert. iii. The second question asked whether that Amendment bars his execution because his “vascular dementia” and “severe cognitive dys- function” prevent him from either remembering his crime “or under- standing the circumstances of his scheduled execution.” Ibid. So the first question concerned whether memory loss alone could form the basis of a Panetti claim and the second whether the varied consequences of dementia could do so. The body of the petition, to be sure, devoted more space to the first question. But it clearly referenced the second. See Pet. for Cert. 18 (“[T]his Court has never sought to constrain the world of maladies that can give rise to a finding that a prisoner is incompetent to be executed”); id., at 25 (“[C]ourts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompetency to be executed”). And in any event, the number of words spent on each is not what matters. Our Rule states that the Court will consider “[o]nly the questions set out in the petition, or fairly included therein.” This Court’s Rule 14.1(a). Here, we consider, in order, the two questions set out in Madison’s petition. 10 MADISON v. ALABAMA Opinion of the Court full cognitive function. The memory loss is genuine: Let us say the person has some kind of amnesia, which has produced a black hole where that recollection should be. But the person remains oriented in time and place; he can make logical connections and order his thoughts; and he comprehends familiar concepts of crime and punishment. Can the State execute him for a murder? When we con- sidered this case before, using the deferential standard applicable in habeas, we held that a state court could allow such an execution without committing inarguable error. See Madison, 583 U. S., at ___ (slip op., at 4) (stat- ing that no prior decision had “clearly established” the opposite); supra, at 6. Today, we address the issue straight-up, sans any deference to a state court. Again, is the failure to remember committing a crime alone enough to prevent a State from executing a prisoner? It is not, under Panetti’s own terms. That decision asks about understanding, not memory—more specifically, about a person’s understanding of why the State seeks capital punishment for a crime, not his memory of the crime itself. And the one may exist without the other. Do you have an independent recollection of the Civil War? Obviously not. But you may still be able to reach a rational—indeed, a sophisticated—understanding of that conflict and its consequences. Do you recall your first day of school? Probably not. But if your mother told you years later that you were sent home for hitting a classmate, you would have no trouble grasping the story. And similarly, if you somehow blacked out a crime you committed, but later learned what you had done, you could well appreci- ate the State’s desire to impose a penalty. Assuming, that is, no other cognitive impairment, loss of memory of a crime does not prevent rational understanding of the State’s reasons for resorting to punishment. And that kind of comprehension is the Panetti standard’s singular focus. Cite as: 586 U. S. ____ (2019) 11 Opinion of the Court The same answer follows from the core justifications Panetti offered for framing its Eighth Amendment test as it did. Echoing Ford, Panetti reasoned that execution has no retributive value when a prisoner cannot appreciate the meaning of a community’s judgment. See 551 U.S., at 958–959 (citing 477 U.S., at 407–408); supra, at 3. But as just explained, a person who can no longer remember a crime may yet recognize the retributive message society intends to convey with a death sentence. Similarly, Ford and Panetti stated that it “offends humanity” to execute a person so wracked by mental illness that he cannot com- prehend the “meaning and purpose of the punishment.” 477 U.S., at 407; 551 U. S., at 960; see id., at 958. But that offense to morality must be much less when a per- son’s mental disorder causes nothing more than an episodic memory loss. Moral values do not exempt the simply forgetful from punishment, whatever the neurological reason for their lack of recall. But such memory loss still may factor into the “rational understanding” analysis that Panetti demands. If that loss combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend why the State is exacting death as punishment, then the Panetti standard will be satisfied. That may be so when a person has difficulty preserving any memories, so that even newly gained knowledge (about, say, the crime and punishment) will be quickly forgotten. Or it may be so when cognitive deficits prevent the acquisition of such knowledge at all, so that memory gaps go forever uncompensated. As Panetti indicated, neurologists, psychologists, and other experts can contribute to a court’s understanding of issues of that kind. See id., at 962. But the sole inquiry for the court remains whether the prisoner can rationally understand the reasons for his death sentence. 12 MADISON v. ALABAMA Opinion of the Court B Next consider a prisoner who suffers from dementia or a similar disorder, rather than psychotic delusions. The dementia, as is typical, has compromised this prisoner’s cognitive functions. But it has not resulted in the kind of delusional beliefs that Alvin Ford and Scott Panetti held. May the prisoner nonetheless receive a stay of execution under Ford and Panetti? Or instead, is a delusional disor- der a prerequisite to declaring a mentally ill person in- competent to be executed? We did not address that issue when we last considered this case, on habeas review; in that sense, the question is one of first impression. See supra, at 6, n. 1. But here too, Panetti has already answered the ques- tion. Its standard focuses on whether a mental disorder has had a particular effect: an inability to rationally un- derstand why the State is seeking execution. See supra, at 2–3. Conversely, that standard has no interest in es- tablishing any precise cause: Psychosis or dementia, delu- sions or overall cognitive decline are all the same under Panetti, so long as they produce the requisite lack of com- prehension. To be sure, Panetti on occasion spoke of “gross delusions” in explaining its holding. 551 U.S., at 960. And similarly, Ford talked about the “insane,” which sometimes refers to persons holding such irrational be- liefs. See, e.g., 477 U.S., at 401, 410.4 But those refer- ences are no more than a predictable byproduct of the two cases’ facts. At the same time (and interchangeably), Panetti used more inclusive terms, such as “mental ill- —————— 4 Alternatively, however, the term may also be used to encompass persons with other mental conditions, so long as they are “severe enough [to] prevent[ ] a person from having legal capacity and excuse[ ] the person from criminal or civil responsibility.” Black’s Law Diction- ary 914 (10th ed. 2014). In that different understanding, “insanity” connotes a general standard of legal competency rather than a more limited description of delusional disorders. Cite as: 586 U. S. ____ (2019) 13 Opinion of the Court ness,” “mental disorder,” and “psychological dysfunction.” 551 U.S., at 936, 959, 960; see Ford, 477 U.S., at 408– 409, n. 2 (referring to prisoners with “mental illness”). And most important, Panetti framed its test, as just de- scribed, in a way utterly indifferent to a prisoner’s specific mental illness. The Panetti standard concerns, once again, not the diagnosis of such illness, but a consequence—to wit, the prisoner’s inability to rationally understand his punishment. And here too, the key justifications Ford and Panetti offered for the Eighth Amendment’s bar confirm our con- clusion about its reach. As described above, those deci- sions stated that an execution lacks retributive purpose when a mentally ill prisoner cannot understand the socie- tal judgment underlying his sentence. See Panetti, 551 U.S., at 958–959; Ford, 477 U.S., at 409; supra, at 2–3. And they indicated that an execution offends morality in the same circumstance. See 551 U.S., at 958, 960; 477 U. S., at 409; supra, at 2–3. Both rationales for the consti- tutional bar thus hinge (just as the Panetti standard deriving from them does) on the prisoner’s “[in]comprehension of why he has been singled out” to die. 477 U.S., at 409; see supra, at 2–3. Or said otherwise, if and when that failure of understanding is present, the rationales kick in—irrespective of whether one disease or another (say, psychotic delusions or dementia) is to blame. In evaluating competency to be executed, a judge must therefore look beyond any given diagnosis to a down- stream consequence. As Ford and Panetti recognized, a delusional disorder can be of such severity—can “so impair the prisoner’s concept of reality”—that someone in its thrall will be unable “to come to grips with” the punish- ment’s meaning. Panetti, 551 U.S., at 958; Ford, 477 U.S., at 409. But delusions come in many shapes and sizes, and not all will interfere with the understanding that the Eighth Amendment requires. See Panetti, 551 14 MADISON v. ALABAMA Opinion of the Court U. S., at 962 (remanding the case to consider expert evi- dence on whether the prisoner’s delusions did so). And much the same is true of dementia. That mental condition can cause such disorientation and cognitive decline as to prevent a person from sustaining a rational understanding of why the State wants to execute him. See supra, at 11– 12. But dementia also has milder forms, which allow a person to preserve that understanding. Hence the need— for dementia as for delusions as for any other mental disorder—to attend to the particular circumstances of a case and make the precise judgment Panetti requires. III The only question left—and the only one on which the parties now disagree—is whether Madison’s execution may go forward based on the state court’s decision below. Madison’s counsel says it cannot because that ruling was tainted by legal error—specifically, the idea that only delusions, and not dementia, can support a finding of mental incompetency. See Tr. of Oral Arg. 12, 21, 25, 27. Alabama counters that the state court did not rely on that (concededly) incorrect view of the law. See id., at 37–41. But we come away at the least unsure whether that is so—especially given Alabama’s evidence and arguments in the state court. As noted earlier, the 2018 ruling we review today con- tains only one sentence of explanation. See supra, at 7–8. It states that Madison “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. If the state court used the word “insanity” to refer to a delu- sional disorder, then error occurred: The court would have denied a stay on the ground that Madison did not have that specific kind of mental illness. And the likelihood that the court made that mistake is heightened by the State’s emphasis, at that stage of the proceedings (as at Cite as: 586 U. S. ____ (2019) 15 Opinion of the Court others), that Madison was “not delusional or psychotic” and that “dementia” could not suffice to bar his execution absent “an expansion of Ford and Panetti.” Motion to Dismiss 4, 10; see supra, at 4–8; but see post, at 9–10, and n. 4 (disregarding those arguments).5 Alabama argues, however, that the court spoke of “insanity” only because the state statute under which Madison sought relief uses that term. See Tr. of Oral Arg. 37; Ala. Code §15–16–23 (2011) (allowing a stay of execution “on account of the [convict’s] insanity”). But even if so, that does not advance the State’s view that the state court properly understood the Eighth Amendment bar when assessing Madison’s competency. Alabama told this Court in opposing certio- rari that its statute covers only those with delusional disorders, and not those with dementia. See Brief in Opposition 12 (“[T]he sole question to be answered under the state statute was whether Madison was insane, not whether he suffered from dementia”). The state court’s (supposed) echoing of statutory language understood in that way cannot provide assurance that the court knew a person with dementia might receive a stay of execution; indeed, it suggests exactly the opposite. The court’s 2018 order thus calls out for a do-over. Alabama further contends, however, that we should look past the state court’s 2018 decision to the court’s initial 2016 determination of competency. (The dissent similarly begins with the 2016 ruling, see post, at 6–7, even though that is not the decision under review here.) According to the State, nothing material changed in the interim period, see supra, at 7; thus, we may find the meaning of the later ruling in the earlier one, see Tr. of Oral Arg. 36–37. And, —————— 5 The State once again repeated that argument in its Brief in Opposi- tion to Madison’s certiorari petition. See Brief in Opposition 11–12 (“Madison does not argue that he is insane. Instead, he argues that he suffers from dementia” and that his execution should be barred “under a yet-unannounced expansion of Ford and Panetti”). 16 MADISON v. ALABAMA Opinion of the Court the State continues, the 2016 opinion gets the law right. Alabama’s proof is that the court, after summarizing the psychologists’ testimony, found that “Madison has a ra- tional[ ] understanding, as required by Panetti,” concern- ing the “punishment he is about to suffer and why he is about to suffer it.” 2016 Order, at 10; see Tr. of Oral Arg. 39; supra, at 5–6. (The dissent quotes the same passage. See post, at 7.) But the state court’s initial decision does not aid Ala- bama’s cause. First, we do not know that the court in 2018 meant to incorporate everything in its prior opinion. The order says nothing to that effect; and though it came out the same way as the earlier decision, it need not have rested on all the same reasoning. Second, the 2016 opin- ion itself does not show that the state court realized that persons suffering from dementia could satisfy the Panetti standard. True enough, as Alabama says, that the court accurately stated that standard in its decision. But as described above, Alabama had repeatedly argued to the court (over Madison’s objection) that only prisoners suffer- ing from delusional disorders could qualify as incompetent under Panetti. See, e.g., Brief on Madison’s Competency 2 (Madison “failed to implicate” Ford and Panetti because he “does not suffer from psychosis or delusions”); Tr. 82 (“The Supreme Court [in Panetti] is looking at whether some- one’s delusions or someone’s paranoia or someone’s psy- chosis is standing in the way of ” rationally understanding his punishment); see also supra, at 4–5; but see post, at 9– 10, and n. 4 (disregarding those arguments). And Ala- bama relied on the expert opinion of a psychologist who highlighted Madison’s lack of “psychosis, paranoia, or delusion,” while never mentioning his dementia. Tr., Ct. Exh. 1 (Apr. 14, 2016), p. 9. That too-limited understand- ing of Panetti’s compass is reflected in the court’s 2016 opinion. In its single paragraph of analysis, the court “accept[ed] the testimony” of the State’s preferred psy- Cite as: 586 U. S. ____ (2019) 17 Opinion of the Court chologist.6 And the court further found that “the evidence does not support that Mr. Madison is delusional”—without ever considering his undisputed dementia. 2016 Order, at 10. For those reasons, we must return this case to the state court for renewed consideration of Madison’s competency (assuming Alabama sets a new execution date). See, e.g., Kindred Nursing Centers L. P. v. Clark, 581 U. S. ___, ___ (2017) (slip op., at 9) (remanding when “uncertain” whether “an impermissible taint occurred”); Clemons v. Mississippi, 494 U.S. 738, 751–752 (1990) (similar). In that proceed- ing, two matters disputed below should now be clear. First, under Ford and Panetti, the Eighth Amendment may permit executing Madison even if he cannot remem- ber committing his crime. Second, under those same decisions, the Eighth Amendment may prohibit executing Madison even though he suffers from dementia, rather than delusions. The sole question on which Madison’s competency depends is whether he can reach a “rational understanding” of why the State wants to execute him. Panetti, 551 U.S., at 958. In answering that question—on which we again express no view, see supra, at 6—the state court may not rely on any arguments or evidence tainted with the legal errors we have addressed. And because that is so, the court should consider whether it needs to supplement the existing record. Some evidence in that record, including portions of the experts’ reports and testimony, expressly reflects an incorrect view of the relevance of delusions or memory; still other evidence might have implicitly rested on those same misjudgments. —————— 6 The court well understood that expert’s exclusive focus on whether Madison had psychotic delusions. In summarizing his testimony, the court began as follows: “Dr. Kirkland in his exam found no evidence of paranoia or delusion at the time of his examin[ation], on March 31, 2016. He also found that there was no psychosis present.” 2016 Order, at 5; see supra, at 5. 18 MADISON v. ALABAMA Opinion of the Court The state court, we have little doubt, can evaluate such matters better than we. It must do so as the first step in assessing Madison’s competency—and ensuring that if he is to be executed, he understands why. We accordingly vacate the judgment of the state court and remand the case for further proceedings not incon- sistent with this opinion. It is so ordered. JUSTICE KAVANAUGH took no part in the consideration or decision of this case. Cite as: 586 U. S. ____ (2019) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–7505 _________________ VERNON MADISON, PETITIONER v.

The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. v. Quarterman, 551 U.S. 930, 959 (2007). In this case, Vernon ar- gued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief. We now address two questions relating to the Eighth Amendment’s bar, disputed below but not in this Court. First, does the Eighth Amendment forbid execution when- ever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understand- ing of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions? We (and, now, the parties) think so, because either condi- tion may—or, then again, may not—impede the requisite comprehension of his punishment. The only issue left, on which the parties still disagree, is what those rulings 2 MADISON v. ALABAMA Opinion of the Court mean for ’s own execution. We direct that issue to the state court for further consideration in light of this opinion. I A This Court decided in (1986), that the Eighth Amendment’s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. While on death row, Alvin was beset by “pervasive delu- sion[s]” associated with “[p]aranoid [s]chizophrenia.” at 402–403. Surveying both the common law and state statutes, the Court found a uniform practice against tak- ing the life of such a prisoner. See –409. Among the reasons for that time-honored bar, the Court ex- plained, was a moral “intuition” that “killing one who has no capacity” to understand his crime or punishment “simply offends humanity.” ; see at 409 (citing the “natural abhorrence civilized societies feel” at perform- ing such an act). Another rationale rested on the lack of “retributive value” in executing a person who has no com- prehension of the meaning of the community’s judgment. ; see (Powell, J., concurring in part and concurring in judgment) (stating that the death penalty’s “retributive force[ ] depends on the defendant’s awareness of the penalty’s existence and purpose”). The resulting rule, now stated as a matter of constitutional law, held “a category of defendants defined by their mental state” incompetent to be executed. The Court clarified the scope of that category in v. Quarterman by focusing on whether a prisoner can “reach a rational understanding of the reason for [his] execution.” Like Alvin Scott suffered from “gross delusions” stemming from “extreme psychosis.” In reversing a Cite as: 586 U. S. (2019) 3 Opinion of the Court ruling that he could still be executed, the Court set out the appropriate “standard for competency.” at 957. the Court now noted, had not provided “specific criteria.” But had explored what lay behind the Eighth Amendment’s prohibition, high- lighting that the execution of a prisoner who cannot com- prehend the reasons for his punishment offends moral values and “serves no retributive purpose.” 551 U.S., at 958. Those principles, the Court explained, indi- cate how to identify prisoners whom the State may not execute. The critical question is whether a “prisoner’s mental state is so distorted by a mental illness” that he lacks a “rational understanding” of “the State’s rationale for [his] execution.” 58–959. Or similarly put, the issue is whether a “prisoner’s concept of reality” is “so impair[ed]” that he cannot grasp the execution’s “meaning and purpose” or the “link between [his] crime and its punishment.” B Vernon killed a police officer in 1985 during a domestic dispute. An Alabama jury found him guilty of capital murder, and the trial court sentenced him to death. He has spent most of the ensuing decades on the State’s death row. In recent years, ’s mental condition has sharply deteriorated. suffered a series of strokes, includ- ing major ones in 2015 and 2016. See Tr. 19, 46–47 (Apr. 14, 2016). He was diagnosed as having vascular dementia, with attendant disorientation and confusion, cognitive impairment, and memory loss. See at 19–20, 52–54. In particular, claims that he can no longer recol- lect committing the crime for which he has been sentenced to die. See Tr., Pet. Exh. 2, p. 8. After his 2016 stroke, petitioned the trial court for a stay of execution on the ground that he had become 4 MADISON v. ALABAMA Opinion of the Court mentally incompetent. Citing and he argued that “he no longer understands” the “status of his case” or the “nature of his conviction and sentence.” Pet. for Sus- pension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), pp. 11, 14. And in a later filing, emphasized that he could not “independently recall the facts of the offense he is convicted of.” Brief Pursuant to Order (Apr. 21, 2016), p. 8. Alabama countered that Mad- ison had “a rational understanding of [the reasons for] his impending execution,” as required by and even assuming he had no memory of committing his crime. Brief on ’s Competency (April 21, 2016), pp. 4–5, 8. And more broadly, the State claimed that could not possibly qualify as incompetent under those two decisions because both “concerned themselves with ‘[g]ross delusions’ ”—which all agree does not have. at 2; see ( “failed to implicate” and because he “does not suffer from psychosis or delusions”). Expert reports from two psychologists largely aligned with the parties’ contending positions. Dr. John Goff, ’s expert, found that although “un- derst[ood] the nature of execution” in the abstract, he did not comprehend the “reasoning behind” Alabama’s effort to execute him. Tr., Pet. Exh. 2 (Apr. 14, 2016), p. 8; see Goff stated that had “Major Vascular Neurological Disorder”— called vascular dementia— which had caused “significant cognitive decline.” And Goff underscored that “demonstrate[d] retrograde amnesia” about his crime, meaning that he had no “independent recollection[ ]” of the murder. ; see For his part, Dr. Karl Kirkland, the court- appointed expert, reported that “was able to discuss his case” accurately and “appear[ed] to understand his legal situation.” Tr., Ct. Exh. 1, pp. 10–11. Although Kirkland acknowledged that ’s strokes had led to Cite as: 586 U. S. (2019) 5 Opinion of the Court cognitive decline, see the psychologist made no men- tion of ’s diagnosed vascular dementia. Rather, Kirkland highlighted that “[t]here was no evidence of psychosis, paranoia, or delusion.” ; see (Mad- ison “did not seem delusional at all”). At a competency hearing, Alabama similarly stressed ’s absence of psychotic episodes or delusions. The State asked both experts to affirm that was “neither delusional [n]or psychotic.” Tr. 56; see And its closing argument focused on their agreement that he was not. As the State summarized: “He’s not psychotic. He’s not delusional.” 1. On the State’s view, that fact answered the competency question because “[t]he Supreme Court is looking at whether someone’s delusions or someone’s paranoia or someone’s psychosis is standing in the way of ” rationally understanding his punishment. 2. ’s counsel disputed that point. “[T]he State would like to say, well, he’s not delusional, he’s not psychotic,” the attorney recapped. 3. But, she continued, “[t]hat’s not really the criteria” under Tr. 83. Rather, the Court there barred executing a person with any mental illness—“dementia” and “brain injuries” no less than psychosis and delusions—that prevents him from comprehending “why he is being executed.” The trial court found competent to be executed. Its order first recounted the evidence given by each expert witness. The summary of Kirkland’s report and testimony began by stating that the psychologist had “found no evidence of paranoia[,] delusion [or] psychosis.” Order (Apr. 29, 2016), p. 5 (2016 Order). The court then noted Kirkland’s view that could “give details of the history of his case” and “appear[ed] to understand his legal situation.” Turning to the Goff report, the court noted the expert’s finding that was “amne- sic” and could not recollect his crime. ; see at 7. In a single, final paragraph, the court provided both its 6 MADISON v. ALABAMA Opinion of the Court ruling and its reasoning. had failed to show, the court wrote, that he did not “rationally understand the punishment he is about to suffer and why he is about to suffer it.” The court “accept[ed] the testimony of Dr. Kirkland as to the understanding has concerning the situation.” “Further,” the court concluded, “the evidence does not support that Mr. Madi- son is delusional.” next sought habeas relief in federal court, where he faced the heavy burden of showing that the state-court ruling “involved an unreasonable application of[ ] clearly established federal law” or rested on an “un- reasonable determination of the facts.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S. C. The District Court rejected his petition, but the Court of Appeals for the Eleventh Circuit ruled that Madi- son had demonstrated both kinds of indisputable error. See This Court then summarily reversed the appeals court’s decision. See Dunn v. 583 U. S. (per curiam). We explained, contrary to the Eleventh Circuit’s principal holding, that “[n]either nor ‘clearly established’ that a prisoner is incompetent to be executed” because of a simple failure to remember his crime. at (slip op., at 4). And we found that the state court did not act unreasonably—otherwise put, did not err “beyond any possibility for fairminded disagreement”—when it found that had the necessary understanding to be executed. But we made clear that our decision was premised on AEDPA’s “demanding” and “deferential standard.” at (slip op., 4). “We express[ed] no view” on the question of ’s competency “outside of the AEDPA context.” at (slip op., at 4).1 —————— 1 Neither did we opine on—or even mention—the subsidiary legal Cite as: 586 U. S. (2019) 7 Opinion of the Court When Alabama set an execution date in 2018, returned to state court to argue again that his mental condition precluded the State from going forward. In his petition, reiterated the facts and arguments he had previously presented to the state court. But claimed that since that court’s decision (1) he had suffered further cognitive decline and (2) a state board had suspended Kirkland’s license to practice psychology, thus discrediting his prior testimony. See Pet. to Suspend Execution in No. CC–85–1385.80 pp. 1–2, 16–19.2 Alabama responded that nothing material had changed since the court’s first com- petency hearing. See Motion to Dismiss p. 9. The State repeated its argument that permits executing pointing to the experts’ agreement that he is “not delusional or psychotic” and —————— question whether a mental disorder other than delusions may render a person incompetent to be executed. Alabama told the Eleventh Circuit that it could not, thus reprising the claim the State had made in the trial court. See (describing Alabama’s argument that “only a prisoner suffering from gross delusions can show incompetency under ”); Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 26:36–26:45 (“In this case, what we have is someone who claims to have a mental illness, dementia,” but does not have “delusions, which is what requires”); at 26:48–27:21 (When asked if someone with “severe dementia” but no delusions could be executed, the State responded “I think so because they don’t have delusions”). (Alabama alternatively argued that the state court’s decision was not based on that view, see Brief for Appellee in No. 16– 12279 (CA11), pp. 37–38; the quotations the dissent picks out, see post, n. 4, come from that additional argument.) The Eleventh Circuit rejected the State’s contention that dementia could not preclude an execution as “inconsistent with the principles underlying” and But we had no reason to address that holding in light of the errors we saw in other parts of the appeals court’s analysis. 2 As ’s petition recounted, the license suspension followed the opening of a criminal investigation into whether Kirkland had commit- ted narcotics offenses. See Pet. to Suspend Execution 17–19. 8 MADISON v. ALABAMA Opinion of the Court asserting that neither “memory impairment [n]or demen- tia [could] suffice to satisfy the and stand- ards” without “an expansion” of those decisions. Motion to Dismiss 4, 10. A week before the scheduled execution, the state court again found mentally competent. Its brief order stated only that “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. then filed in this Court a request to stay his execution and a petition for certiorari. We ordered the stay on the scheduled execution date and granted the petition a few weeks later. See 583 U. S. (2018). Because the case now comes to us on direct review of the state court’s decision (rather than in a habeas proceeding), AEDPA’s deferential standard no longer governs. (And for that reason—contrary to the dissent’s suggestion, post, at 12—our decision on ’s habeas petition cannot help resolve the questions raised here.) II Two issues relating to ’s application are before us. Recall that our decision there held the Eighth Amendment to forbid executing a prisoner whose mental illness makes him unable to “reach a rational understand- ing of the reason for [his] execution.” ; see at 2–3. The first question presented is whether prohibits executing merely because he cannot remember committing his crime. The second ques- tion raised is whether permits executing merely because he suffers from dementia, rather than psychotic delusions.3 In prior stages of this case, as we —————— 3 The dissent is in high dudgeon over our taking up the second ques- tion, arguing that it was not presented in ’s petition for certio- rari. See post, at 1–6. But that is incorrect. The petition presented two questions—the same two we address here. The first question asked Cite as: 586 U. S. (2019) 9 Opinion of the Court have described, the parties disagreed about those matters. See at 4–8. But at this Court, accepted Alabama’s positon on the first issue and Alabama accepted ’s on the second. See, Tr. of Oral Arg. 11, 36. And rightly so. As the parties now recognize, the standard set out in supplies the answers to both questions. First, a person lacking memory of his crime may yet ra- tionally understand why the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution. Second, a person suffering from dementia may be unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment does not allow his execution. What matters is whether a person has the “rational un- derstanding” requires—not whether he has any particular memory or any particular mental illness. A Consider initially a person who cannot remember his crime because of a mental disorder, but who otherwise has —————— whether the Eighth Amendment bars executing because he has no “memory of his commission of the capital offense.” Pet. for Cert. iii. The second question asked whether that Amendment bars his execution because his “vascular dementia” and “severe cognitive dys- function” prevent him from either remembering his crime “or under- standing the circumstances of his scheduled execution.” So the first question concerned whether memory loss alone could form the basis of a claim and the second whether the varied consequences of dementia could do so. The body of the petition, to be sure, devoted more space to the first question. But it clearly referenced the second. See Pet. for Cert. 18 (“[T]his Court has never sought to constrain the world of maladies that can give rise to a finding that a prisoner is incompetent to be executed”); (“[C]ourts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompetency to be executed”). And in any event, the number of words spent on each is not what matters. Our Rule states that the Court will consider “[o]nly the questions set out in the petition, or fairly included therein.” This Court’s Rule 14.1(a). Here, we consider, in order, the two questions set out in ’s petition. 10 MADISON v. ALABAMA Opinion of the Court full cognitive function. The memory loss is genuine: Let us say the person has some kind of amnesia, which has produced a black hole where that recollection should be. But the person remains oriented in time and place; he can make logical connections and order his thoughts; and he comprehends familiar concepts of crime and punishment. Can the State execute him for a murder? When we con- sidered this case before, using the deferential standard applicable in habeas, we held that a state court could allow such an execution without committing inarguable error. See 583 U. S., at (slip op., at 4) (stat- ing that no prior decision had “clearly established” the opposite); Today, we address the issue straight-up, sans any deference to a state court. Again, is the failure to remember committing a crime alone enough to prevent a State from executing a prisoner? It is not, under ’s own terms. That decision asks about understanding, not memory—more specifically, about a person’s understanding of why the State seeks capital punishment for a crime, not his memory of the crime itself. And the one may exist without the other. Do you have an independent recollection of the Civil War? Obviously not. But you may still be able to reach a rational—indeed, a sophisticated—understanding of that conflict and its consequences. Do you recall your first day of school? Probably not. But if your mother told you years later that you were sent home for hitting a classmate, you would have no trouble grasping the story. And similarly, if you somehow blacked out a crime you committed, but later learned what you had done, you could well appreci- ate the State’s desire to impose a penalty. Assuming, that is, no other cognitive impairment, loss of memory of a crime does not prevent rational understanding of the State’s reasons for resorting to punishment. And that kind of comprehension is the standard’s singular focus. Cite as: 586 U. S. (2019) 11 Opinion of the Court The same answer follows from the core justifications offered for framing its Eighth Amendment test as it did. Echoing reasoned that execution has no retributive value when a prisoner cannot appreciate the meaning of a community’s judgment. See 551 U.S., at 958–959 (citing –408); But as just explained, a person who can no longer remember a crime may yet recognize the retributive message society intends to convey with a death sentence. Similarly, and stated that it “offends humanity” to execute a person so wracked by mental illness that he cannot com- prehend the “meaning and purpose of the punishment.” ; 551 U. S., 60; see 58. But that offense to morality must be much less when a per- son’s mental disorder causes nothing more than an episodic memory loss. Moral values do not exempt the simply forgetful from punishment, whatever the neurological reason for their lack of recall. But such memory loss still may factor into the “rational understanding” analysis that demands. If that loss combines and interacts with other mental shortfalls to deprive a person of the capacity to comprehend why the State is exacting death as punishment, then the standard will be satisfied. That may be so when a person has difficulty preserving any memories, so that even newly gained knowledge (about, say, the crime and punishment) will be quickly forgotten. Or it may be so when cognitive deficits prevent the acquisition of such knowledge at all, so that memory gaps go forever uncompensated. As indicated, neurologists, psychologists, and other experts can contribute to a court’s understanding of issues of that kind. See 62. But the sole inquiry for the court remains whether the prisoner can rationally understand the reasons for his death sentence. 12 MADISON v. ALABAMA Opinion of the Court B Next consider a prisoner who suffers from dementia or a similar disorder, rather than psychotic delusions. The dementia, as is typical, has compromised this prisoner’s cognitive functions. But it has not resulted in the kind of delusional beliefs that Alvin and Scott held. May the prisoner nonetheless receive a stay of execution under and ? Or instead, is a delusional disor- der a prerequisite to declaring a mentally ill person in- competent to be executed? We did not address that issue when we last considered this case, on habeas review; in that sense, the question is one of first impression. See n. 1. But here too, has already answered the ques- tion. Its standard focuses on whether a mental disorder has had a particular effect: an inability to rationally un- derstand why the State is seeking execution. See at 2–3. Conversely, that standard has no interest in es- tablishing any precise cause: Psychosis or dementia, delu- sions or overall cognitive decline are all the same under so long as they produce the requisite lack of com- prehension. To be sure, on occasion spoke of “gross delusions” in explaining its holding. 551 U.S., at 960. And similarly, talked about the “insane,” which sometimes refers to persons holding such irrational be- liefs. See, 410.4 But those refer- ences are no more than a predictable byproduct of the two cases’ facts. At the same time (and interchangeably), used more inclusive terms, such as “mental ill- —————— 4 Alternatively, however, the term may be used to encompass persons with other mental conditions, so long as they are “severe enough [to] prevent[ ] a person from having legal capacity and excuse[ ] the person from criminal or civil responsibility.” Black’s Law Diction- ary 914 (10th ed. 2014). In that different understanding, “insanity” connotes a general standard of legal competency rather than a more limited description of delusional disorders. Cite as: 586 U. S. (2019) 13 Opinion of the Court ness,” “mental disorder,” and “psychological dysfunction.” 551 U.S., 36, 959, 960; see – 409, n. 2 (referring to prisoners with “mental illness”). And most important, framed its test, as just de- scribed, in a way utterly indifferent to a prisoner’s specific mental illness. The standard concerns, once again, not the diagnosis of such illness, but a consequence—to wit, the prisoner’s inability to rationally understand his punishment. And here too, the key justifications and offered for the Eighth Amendment’s bar confirm our con- clusion about its reach. As described above, those deci- sions stated that an execution lacks retributive purpose when a mentally ill prisoner cannot understand the socie- tal judgment underlying his sentence. See 551 U.S., 58–959; ; at 2–3. And they indicated that an execution offends morality in the same circumstance. See 960; 477 U. S., at 409; at 2–3. Both rationales for the consti- tutional bar thus hinge (just as the standard deriving from them does) on the prisoner’s “[in]comprehension of why he has been singled out” to die. ; see at 2–3. Or said otherwise, if and when that failure of understanding is present, the rationales kick in—irrespective of whether one disease or another (say, psychotic delusions or dementia) is to blame. In evaluating competency to be executed, a judge must therefore look beyond any given diagnosis to a down- stream consequence. As and recognized, a delusional disorder can be of such severity—can “so impair the prisoner’s concept of reality”—that someone in its thrall will be unable “to come to grips with” the punish- ment’s meaning. ; 477 U.S., at 409. But delusions come in many shapes and sizes, and not all will interfere with the understanding that the Eighth Amendment requires. See 551 14 MADISON v. ALABAMA Opinion of the Court U. S., 62 (remanding the case to consider expert evi- dence on whether the prisoner’s delusions did so). And much the same is true of dementia. That mental condition can cause such disorientation and cognitive decline as to prevent a person from sustaining a rational understanding of why the State wants to execute him. See at 11– 12. But dementia has milder forms, which allow a person to preserve that understanding. Hence the need— for dementia as for delusions as for any other mental disorder—to attend to the particular circumstances of a case and make the precise judgment requires. III The only question left—and the only one on which the parties now disagree—is whether ’s execution may go forward based on the state court’s decision below. ’s counsel says it cannot because that ruling was tainted by legal error—specifically, the idea that only delusions, and not dementia, can support a finding of mental incompetency. See Tr. of Oral Arg. 12, 21, 25, 27. Alabama counters that the state court did not rely on that (concededly) incorrect view of the law. See 7–41. But we come away at the least unsure whether that is so—especially given Alabama’s evidence and arguments in the state court. As noted earlier, the 2018 ruling we review today con- tains only one sentence of explanation. See –8. It states that “did not provide a substantial threshold showing of insanity[ ] sufficient to convince this Court to stay the execution.” App. A to Pet. for Cert. If the state court used the word “insanity” to refer to a delu- sional disorder, then error occurred: The court would have denied a stay on the ground that did not have that specific kind of mental illness. And the likelihood that the court made that mistake is heightened by the State’s emphasis, at that stage of the proceedings (as at Cite as: 586 U. S. (2019) 15 Opinion of the Court others), that was “not delusional or psychotic” and that “dementia” could not suffice to bar his execution absent “an expansion of and ” Motion to Dismiss 4, 10; see at 4–8; but see post, –10, and n. 4 (disregarding those arguments).5 Alabama argues, however, that the court spoke of “insanity” only because the state statute under which sought relief uses that term. See Tr. of Oral Arg. 37; –16–23 (2011) (allowing a stay of execution “on account of the [convict’s] insanity”). But even if so, that does not advance the State’s view that the state court properly understood the Eighth Amendment bar when assessing ’s competency. Alabama told this Court in opposing certio- rari that its statute covers only those with delusional disorders, and not those with dementia. See Brief in Opposition 12 (“[T]he sole question to be answered under the state statute was whether was insane, not whether he suffered from dementia”). The state court’s (supposed) echoing of statutory language understood in that way cannot provide assurance that the court knew a person with dementia might receive a stay of execution; indeed, it suggests exactly the opposite. The court’s 2018 order thus calls out for a do-over. Alabama further contends, however, that we should look past the state court’s 2018 decision to the court’s initial 2016 determination of competency. (The dissent similarly begins with the 2016 ruling, see post, –7, even though that is not the decision under review here.) According to the State, nothing material changed in the interim period, see ; thus, we may find the meaning of the later ruling in the earlier one, see Tr. of Oral Arg. 36–37. And, —————— 5 The State once again repeated that argument in its Brief in Opposi- tion to ’s certiorari petition. See Brief in Opposition 11–12 (“ does not argue that he is insane. Instead, he argues that he suffers from dementia” and that his execution should be barred “under a yet-unannounced expansion of and ”). 16 MADISON v. ALABAMA Opinion of the Court the State continues, the 2016 opinion gets the law right. Alabama’s proof is that the court, after summarizing the psychologists’ testimony, found that “ has a ra- tional[ ] understanding, as required by” concern- ing the “punishment he is about to suffer and why he is about to suffer it.” 2016 Order, ; see Tr. of Oral Arg. 39; –6. (The dissent quotes the same passage. See post,) But the state court’s initial decision does not aid Ala- bama’s cause. First, we do not know that the court in 2018 meant to incorporate everything in its prior opinion. The order says nothing to that effect; and though it came out the same way as the earlier decision, it need not have rested on all the same reasoning. Second, the 2016 opin- ion itself does not show that the state court realized that persons suffering from dementia could satisfy the standard. True enough, as Alabama says, that the court accurately stated that standard in its decision. But as described above, Alabama had repeatedly argued to the court (over ’s objection) that only prisoners suffer- ing from delusional disorders could qualify as incompetent under See, Brief on ’s Competency 2 ( “failed to implicate” and because he “does not suffer from psychosis or delusions”); Tr. 82 (“The Supreme Court [in ] is looking at whether some- one’s delusions or someone’s paranoia or someone’s psy- chosis is standing in the way of ” rationally understanding his punishment); see at 4–5; but see post, – 10, and n. 4 (disregarding those arguments). And Ala- bama relied on the expert opinion of a psychologist who highlighted ’s lack of “psychosis, paranoia, or delusion,” while never mentioning his dementia. Tr., Ct. Exh. 1 (Apr. 14, 2016), p. 9. That too-limited understand- ing of ’s compass is reflected in the court’s 2016 opinion. In its single paragraph of analysis, the court “accept[ed] the testimony” of the State’s preferred psy- Cite as: 586 U. S. (2019) 17 Opinion of the Court chologist.6 And the court further found that “the evidence does not support that Mr. is delusional”—without ever considering his undisputed dementia. 2016 Order, For those reasons, we must return this case to the state court for renewed consideration of ’s competency (assuming Alabama sets a new execution date). See, Kindred Nursing Centers L. P. v. Clark, 581 U. S. (slip op., ) (remanding when “uncertain” whether “an impermissible taint occurred”); In that proceed- ing, two matters disputed below should now be clear. First, under and the Eighth Amendment may permit executing even if he cannot remem- ber committing his crime. Second, under those same decisions, the Eighth Amendment may prohibit executing even though he suffers from dementia, rather than delusions. The sole question on which ’s competency depends is whether he can reach a “rational understanding” of why the State wants to execute him. In answering that question—on which we again express no view, see —the state court may not rely on any arguments or evidence tainted with the legal errors we have addressed. And because that is so, the court should consider whether it needs to supplement the existing record. Some evidence in that record, including portions of the experts’ reports and testimony, expressly reflects an incorrect view of the relevance of delusions or memory; still other evidence might have implicitly rested on those same misjudgments. —————— 6 The court well understood that expert’s exclusive focus on whether had psychotic delusions. In summarizing his testimony, the court began as follows: “Dr. Kirkland in his exam found no evidence of paranoia or delusion at the time of his examin[ation], on March 31, 2016. He found that there was no psychosis present.” 2016 Order, ; see 18 MADISON v. ALABAMA Opinion of the Court The state court, we have little doubt, can evaluate such matters better than we. It must do so as the first step in assessing ’s competency—and ensuring that if he is to be executed, he understands why. We accordingly vacate the judgment of the state court and remand the case for further proceedings not incon- sistent with this opinion. It is so ordered. JUSTICE KAVANAUGH took no part in the consideration or decision of this case. Cite as: 586 U. S. (2019) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–7505 VERNON MADISON, PETITIONER v.

Justice Alito

dissenting

Madison v. Alabama

2019-02-27

https://www.courtlistener.com/opinion/4594417/madison-v-alabama/

https://www.courtlistener.com/api/rest/v3/clusters/4594417/

What the Court has done in this case makes a mockery of our Rules. Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitu- tional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional. After persuading the Court to grant review of this ques- tion, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental condi- tions, cannot provide a basis for such a claim. See Brief for Petitioner 16. This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition—not even a hint. Nor is this question 2 MADISON v. ALABAMA ALITO, J., dissenting fairly included within those on which the Court granted review. On the contrary, it is an entirely discrete and independent question. Counsel’s tactics flagrantly flouted our Rules. Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”). Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted. See, e.g., Visa, Inc. v. Osborn, 580 U. S. ___ (2016); City and County of San Francisco v. Sheehan, 575 U. S. ___ (2015). We should do that here. Instead, the majority rewards counsel’s trick. It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief. But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that peti- tioner claims it took. I The question on which we granted review was an out- growth of our per curiam decision in Dunn v. Madison, 583 U. S. ___ (2017), which concerned an Eleventh Circuit decision granting petitioner federal habeas relief. Prior to that decision, this Court had held in Ford v. Wainwright, 477 U.S. 399 (1986), that the Eighth Amendment prohib- its the execution of a person who is “insane,” and in Panetti v. Quarterman, 551 U.S. 930 (2007), the Court elaborated on this rule, explaining that a person cannot be executed if he lacks a rational understanding of the reason for the Cite as: 586 U. S. ____ (2019) 3 ALITO, J., dissenting execution. The Eleventh Circuit interpreted those cases to mean that petitioner could not be executed because he did not remember killing his victim, Mobile, Alabama, police officer Julius Schulte. We summarily reversed. Under the relevant provision of the federal habeas statute, 28 U.S. C. §2254(d), which was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), petitioner could not obtain federal habeas relief unless the state court’s rejec- tion of his memory-loss claim represented an unreasonable application of federal law as clearly established at the time by decisions of this Court. We held that neither Ford nor Panetti clearly established that a person cannot be executed if he does not remember committing the crime for which the death sentence was imposed. Our opinion stated, however, that it “express[ed] no view on the merits of the underlying question outside of the AEDPA context.” Dunn, 583 U. S., at ___ (slip op., at 4). And a concurring opinion authored by JUSTICE GINSBURG and joined by JUSTICES BREYER and SOTOMAYOR teed up this question for review in a later case. Id., at ___ (slip op., at 1) (“The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet ad- dressed by the Court. Appropriately presented, the issue would warrant full airing”). Taking this cue, petitioner then sought relief in state court based on his inability to remember his crime, and when that effort failed, he filed the petition at issue now. II The centerpiece of the petition and petitioner’s 11th- hour application for a stay of execution1 was the argument —————— 1 Petitioner sought and obtained a stay of execution based on this 4 MADISON v. ALABAMA ALITO, J., dissenting that he could not constitutionally be executed because he did not remember killing Officer Schulte. The petition repeatedly noted petitioner’s inability to remember his crime. See Pet. for Cert. i, iii, 1, 2, 8, 10, 11, 12, 18, 22, 23, 25, 26, 27, 28. And the petition was very clear about the question on which review was sought: “[T]his case presents this Court with the appropriate vehicle to consider the substantial question of whether the execution of a prisoner with no memory of the un- derlying offense is consistent with the evolving stand- ards of decency inherent in this Court’s Eighth Amendment jurisprudence.” Id., at 2. This same point was made time and again: ● “[B]ecause [petitioner’s] disability renders him unable to remember the underlying offense for which he is to be punished, his execution does not comport with the evolving standards of decency required by this Court’s Eighth Amendment jurisprudence.” Id., at 18. ● “[I]mposing death on a prisoner, who, like Mr. Madi- son, suffers from substantial memory deficits by vir- tue of multiple stroke and resulting vascular dementia serves no retributive or deterrent purpose.” Id., at 22. ● “[E]xecuting an individual with no memory of the un- derlying offense serves no retributive purpose.” Ibid. ● “[W]here the person being punished has no memory of the commission of the offense for which he is to be ex- ecuted, the ‘moral quality’ of that punishment is less- ened and unable to match outrage over the offense.” Id., at 22–23. —————— same argument. See Application for Stay of Execution 2, 6 (moving the Court to stay petitioner’s execution so that it could address the “sub- stantial” and “critical” question whether executing petitioner, “whose severe cognitive dysfunction leaves him without memory of his commis- sion of the capital offense,” would violate the Eighth Amendment). Cite as: 586 U. S. ____ (2019) 5 ALITO, J., dissenting ● “Mr. Madison’s severe memory impairments as a re- sult of vascular dementia render him incompetent to be executed under the Eight Amendment.” Id., at 25 (quotation altered). In sum, the body of the petition makes it clear that review was sought on the question invited by the Dunn concurrence, and the thrust of the wording of the two questions was the same. They read as follows: “1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital of- fense? See Dunn v. Madison, [583 U. S. ___, ___ (2017) (GINSBURG, J., joined by BREYER and SOTOMAYOR, JJ., concurring).] “2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual pun- ishment bar the execution of a prisoner whose compe- tency has been compromised by vascular dementia and multiple strokes causing severe cognitive dys- function and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? ” Pet. for Cert. iii. With the exception of the final phrase in question two (“or understanding the circumstances of his scheduled execution”), both questions solely concern the effect of memory loss on an Eighth Amendment analysis. The final phrase in question two and certain passages in the peti- tion, if read with an exceedingly generous eye, might be seen as a basis for considering whether the evidence in the state-court record shows that petitioner’s dementia ren- dered him incapable of having a rational understanding of the reason for his execution. But that is the sort of fact- bound question on which we rarely grant review, see this 6 MADISON v. ALABAMA ALITO, J., dissenting Court’s Rule 10, and it is questionable whether we did so here. But whether or not the petition may be fairly read to present that factbound question, it is a travesty to read it as challenging the state-court order on the ground that the state court erroneously believed that dementia cannot provide a basis for a Ford/Panetti claim. There is no ink- ling of that argument in the petition. Although the peti- tion described the state-court order at numerous places, the petition never claimed that the order was based on an impermissible distinction between dementia and other mental conditions. See, e.g., Pet. for Cert. ii, 2–3, 16. And in fact, there is a point in the petition where such an interpretation of the state-court order would surely have been mentioned if the petition had intended to raise it as a ground for review. The petition noted that “courts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompe- tency to be executed,” id., at 25, but the petition did not follow that statement by claiming that the state court in this case took a contradictory position. Because the petition did not raise—indeed, did not even hint at—the argument on which the Court now grants relief, the Court’s decision is insupportable.2 It violates our Rule that “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” See Rule 14.1(a). III Even if it were proper for us to consider whether the order below was based on an erroneous distinction be- tween dementia and other mental conditions, there is little reason to think that it was. After a full evidentiary hear- —————— 2 The Court is unable to cite a single place in the petition that makes any reference to the argument that the state court failed to understand that dementia could satisfy the Ford/Panetti test. Cite as: 586 U. S. ____ (2019) 7 ALITO, J., dissenting ing in 2016, the state court rejected petitioner’s Ford/Panetti claim based on a correct statement of the holding of those decisions. It found that petitioner “ha[d] not carried his burden [of showing] by a preponderance of the evidence . . . that he . . . does not rationally understand the punishment he is about to suffer and why he is about to suffer it.” Order (Apr. 29, 2016), p. 10. The court’s order went on to say that it “specifically [found] that Mad- ison has a rationa[l] understanding, as required by Panetti, that he is going to be executed because of the murder he committed and a rationa[l] understanding that the State is seeking retribution and that he will die when he is executed.” Ibid. In concluding that the state court might have drawn a distinction between dementia and other mental conditions, the majority seizes upon the wording of the order issued after a subsequent hearing in 2018. Ante, at 14. In that order, the same judge wrote: “Defendant did not provide a substantial threshold showing of insanity, a requirement set out by the United States Supreme Court, sufficient to convince this Court to stay the execution.” Order (Jan. 16, 2018), p. 1 (emphasis added). The majority worries that the state-court judge might not have applied the same standard in 2018 as he had two years earlier and might have viewed “insanity” as something narrower than the standard mandated by Ford and Panetti. This concern is unfounded. Taken out of context, the term “insanity” might not be read to encompass dementia, but in context, it is apparent that the state court’s use of that term was based on the way in which it was used in Ford and Panetti. The state court did not simply refer to “insanity.” It referred to “insanity, a requirement set out by the United States Supreme Court.” Thus, it followed the term “insanity” with an appositive, which is a word or phrase that re- names the word or phrase that precedes it. In other 8 MADISON v. ALABAMA ALITO, J., dissenting words, what the state court clearly meant by “insanity” was what this Court termed insanity in Ford and Panetti. What was that? In Ford, the Court held that the Eighth Amendment prohibits the execution of a person who is “insane,” and in the portion of Justice Marshall’s lead opinion that was joined by a plurality, Justice Marshall equated insanity with a mental condition that “prevents [a person] from comprehending the reasons for the penalty or its implica- tions.” 477 U.S., at 417. Justice Powell, who provided the fifth vote for the decision, took a similar position. See id., at 422–423 (opinion concurring in part and concurring in judgment). In Panetti, which built on the holding in Ford, the Court used the term in a similar way. See 551 U.S., at 958–960. Accordingly, a defendant suffers from “insanity,” as the term is used in Ford and Panetti, if the prisoner does not understand the reason for his execution. Today’s decision does not reject this interpretation of the state-court order; it says only that it is vacating and re- manding because it is “at the least unsure” whether the state court used the term “insanity” in this way. Ante, at 14. The majority cites two reasons for its uncertainty, but both are weak. First, the majority attributes to the state court an inter- pretation of the term “insanity” that was advanced by the State in this Court in its brief in opposition to the petition for certiorari. Ante, at 15. In that submission, the State argued that certiorari should be denied because petitioner had sought relief in state court under the wrong provision of state law, namely, Ala. Code §15–16–23 (2011), which authorizes the suspension of the execution of an inmate who is “insane.” The State argued that petitioner’s memory loss did not render him “insane” within the mean- ing of this statute and that if he wished to argue that the Eighth Amendment bars the execution of an inmate who cannot remember his crime, he “should have filed a peti- Cite as: 586 U. S. ____ (2019) 9 ALITO, J., dissenting tion for post-conviction relief ” under Alabama Rule of Criminal Procedure 32.4. Brief in Opposition 11–12. The majority’s argument based on the State’s brief in opposition suffers from multiple defects. For one thing, nothing suggests that the state court rejected petitioner’s application on the ground that he invoked the wrong provision of state law; the State’s filing in the state court made no mention of the argument set out in its brief in opposition filed here. Moreover, if the state court had rejected petitioner’s application on the ground that he moved under the wrong provision of state law, it is doubt- ful that we could review that decision, for then it would appear to rest on an adequate and independent state-law ground. And to top things off, the majority’s argument distorts what the State’s brief in opposition attempted to say about the term “insane.” The State did not argue that a defendant who lacks a rational understanding of the reason for his execution due to dementia is not “insane” under Ala. Code §15–16–23. Instead, the State’s point was that a defendant is not “insane” in that sense merely because he cannot remember committing the crime for which he was convicted. The majority’s other proffered basis for doubt is that the State “repeatedly argued to the [state] court (over Madi- son’s objection) that only prisoners suffering from delu- sional disorders could qualify as incompetent under Panetti.” Ante, at 16. The majority, however, cites no place where the State actually made such an argument. To be sure, the State, in contending that petitioner was not entitled to relief under Ford and Panetti, argued strenuously that he was not delusional. (The State made this argument be- cause petitioner’s counsel claimed that petitioner was in fact delusional and fell within Ford and Panetti for that reason.3) But arguing, as the State did, that petitioner —————— 3 Petitioner’s papers emphasized again and again that he suffers from 10 MADISON v. ALABAMA ALITO, J., dissenting was not entitled to relief because the claim that he was delusional was untrue is not the same as arguing that petitioner could be executed even if his dementia rendered him incapable of understanding the reason for his execu- tion. The majority cites no place where the State made the latter argument in the state court.4 And even if the —————— delusions. See Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), p. 1 (“Mr. Madison has long suffered from serious mental illness, marked by paranoid delusions and other disabil- ities”); id., at 5 (“At Mr. Madison’s trial, Dr. Barry Amyx established that Mr. Madison suffers from a delusional disorder that has existed since he was an adolescent”); ibid. (“This well-documented history of paranoia was one of the reasons Dr. Amyx concluded that Mr. Madison had a delusional disorder in a paranoid, really a persecutory type” (internal quotation marks omitted)); ibid. (“Dr. Amyx noted that Mr. Madison exhibited delusional thinking about . . . medication and believed that he was being used as a guinea pig in medical experi- ments”); id., at 6 (emphasizing a “more recent observation” that “ ‘Mr. Madison consistently presented with paranoid delusions’ ”); id., at 8 (“Mr. Madison exhibited delusional and disoriented behavior in June 2015”); id., at 14 (“decades of delusional thinking and psychotropic medications”); see also Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 6–7 (detailing similar statements). This line of argument fell apart when petitioner’s own expert testified that he found no indication that petitioner was “[e]ither delusional or psychotic.” Tr. 56 (Apr. 14, 2016). 4 Unable to cite any place where the State made this argument to the state court, the Court claims that the State did so in the Eleventh Circuit. Ante, at 6–7, n. 1. But even if that were so, it is hard to see what that would have to do with the question whether the state court thought that dementia could not satisfy the Ford/Panetti test. And in any event, the Court does not fairly describe the State’s argument in the Eleventh Circuit. The State’s Eleventh Circuit brief argued that merely suffering from a mental condition like dementia is not enough to render a prisoner incompetent to be executed; instead, the prisoner must also establish that he lacks a rational understanding of the reason for his execution. See Brief for Appellee in No. 16–12279 (CA11), pp. 37–38 (Brief for Appellee) (“The fairest reading of the state court’s opinion is that it assumed that dementia and memory loss caused by strokes is a mental illness and went straight to the rational understanding question. Thus, it is not that the trial court refused to Cite as: 586 U. S. ____ (2019) 11 ALITO, J., dissenting —————— consider Madison’s claims pertaining to dementia—Madison cannot point to any portion of the state court order that says this—it is that the trial court correctly noted that Madison failed to prove that any dementia interfered with Madison’s ability to have a rational under- standing of his execution, including the reasons therefor”); id., at 27 (“The Supreme Court has not held that a petitioner can show incompe- tence without demonstrating a mental illness or that dementia and memory loss definitively preclude rational understanding”); id., at 29 (“To the extent the state court followed the lead of the Supreme Court, this Court, and the ABA and required Madison to show that a mental illness prevented him from having a rational understanding of his punishment, doing so was not an unreasonable application of clearly established federal law”). It is true that the State’s brief, in addressing the standard for granting federal habeas relief under 28 U.S. C. §2254(d), stated that this Court “ha[d] never held that dementia or memory loss is sufficient to show a lack of rational understanding,” Brief for Appellee 29, but that was because a claim under §2254(d) must be based on a clearly established Supreme Court holding. See Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 32:37–33:30 (State rejecting a suggestion that Panetti holds “if you don’t remember committing the crime at all, and it is clear based on the medical testimony that you don’t remember committing this crime, then you don’t have a rational understanding of the factual basis for the imposition of the death penalty”: “First of all, under AEDPA deference, I think that that is not the holding of Panetti. . . . I think under AEDPA deference, it’s pretty clear that the holding of Panetti is very narrow. . . . I would say the holding in Panetti is that documented mental illness that results in a delusion has to be considered when talking about rational understand- ing”); id., at 36:00–36:30 (“I think the Supreme Court has never held that not remembering something is equivalent to not having a rational understanding. I think that is just undeniably true. And if AEDPA deference applies, then I don’t think the state court could have been unreasonable in rejecting the view that memory is required”). The State did not argue either that dementia cannot satisfy Ford and Panetti or that the state court based its decision on that ground. On the contrary, Alabama wrote that “even if the trial court had deter- mined that dementia and severe memory loss—or even total amnesia— are insufficient to meet the rational understanding test, that finding would not contradict clearly established federal law.” Brief for Appellee 29; see also id., at 30 (“Even assuming the state court held, as a matter of law, that amnesia is not sufficient to show a lack of rational under- standing, that determination was not unreasonable in light of clearly 12 MADISON v. ALABAMA ALITO, J., dissenting State had made such an argument, what matters is the basis for the state court’s decision, not what counsel for the State wrote or said. I add one more comment regarding the majority’s uncer- tainty about the basis for the state-court decision: Our decision two years ago in Dunn evinced no similar doubts. There, we said that the state court “held that, under this Court’s decisions in Ford and Panetti, Madison was en- titled to relief if he could show” that he lacks a rational understanding of the circumstances of his punishment. 583 U. S., at ___ (slip op., at 2) (quotation altered). And we said that the state court “determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have commit- ted.” Id., at ___ (slip op., at 4); see also ibid. (referring to the state court’s “finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime”). Why the majority cannot now see what it under- stood without any apparent difficulty two years ago is hard to grasp. For all these reasons, what the Court has done in this case cannot be defended, and therefore it is hard to escape thinking that the real reason for today’s decision is doubt on the part of the majority regarding the correctness of the —————— established federal law”). The majority acknowledges that the State made this concededly correct habeas argument, but then oddly writes it off as an “additional” or alternative argument. Ante, at 7, n. 1. Yet, as the State’s brief and oral argument illustrate, the State’s core contention was that the state court did not unreasonably apply clearly established law under Panet- ti’s “very narrow” holding. (And as we later held in Dunn, the State was correct.) The majority simply cannot escape the inconvenient fact that the State never argued, as a non-AEDPA matter, that peti- tioner could be executed even if his dementia precluded a rational understanding. Cite as: 586 U. S. ____ (2019) 13 ALITO, J., dissenting state court’s factual finding on the question whether Mad- ison has a rational understanding of the reason for his execution. There is no question that petitioner suffers from severe physical and mental problems, and the ques- tion whether he is capable of understanding the reason for his execution was vigorously litigated below. But if the Court thinks it is proper for us to reach that question and to reverse the state court’s finding based on a cold record, it should own up to what it is doing. * * * Petitioner has abandoned the question on which he succeeded in persuading the Court to grant review, and it is highly improper for the Court to grant him relief on a ground not even hinted at in his petition. The writ should be dismissed as improvidently granted, and I therefore respectfully dissent

What the Court has done in this case makes a mockery of our Rules. Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitu- tional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional. After persuading the Court to grant review of this ques- tion, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental condi- tions, cannot provide a basis for such a claim. See Brief for Petitioner 16. This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition—not even a hint. Nor is this question 2 MADISON v. ALABAMA ALITO, J., dissenting fairly included within those on which the Court granted review. On the contrary, it is an entirely discrete and independent question. Counsel’s tactics flagrantly flouted our Rules. Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”). Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted. See, e.g., Visa, Inc. v. Osborn, 580 U. S. (2016); City and County of San Francisco v. Sheehan, 575 U. S. (2015). We should do that here. Instead, the majority rewards counsel’s trick. It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief. But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that peti- tioner claims it took. I The question on which we granted review was an out- growth of our per curiam decision in Dunn v. Madison, 583 U. S. (2017), which concerned an Eleventh Circuit decision granting petitioner federal habeas relief. Prior to that decision, this Court had held in that the Eighth Amendment prohib- its the execution of a person who is “insane,” and in Panetti v. Quarterman, the Court elaborated on this rule, explaining that a person cannot be executed if he lacks a rational understanding of the reason for the Cite as: 586 U. S. (2019) 3 ALITO, J., dissenting execution. The Eleventh Circuit interpreted those cases to mean that petitioner could not be executed because he did not remember killing his victim, Mobile, Alabama, police officer Julius Schulte. We summarily reversed. Under the relevant provision of the federal habeas statute, 28 U.S. C. which was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), petitioner could not obtain federal habeas relief unless the state court’s rejec- tion of his memory-loss claim represented an unreasonable application of federal law as clearly established at the time by decisions of this Court. We held that neither Ford nor Panetti clearly established that a person cannot be executed if he does not remember committing the crime for which the death sentence was imposed. Our opinion stated, however, that it “express[ed] no view on the merits of the underlying question outside of the AEDPA context.” Dunn, 583 U. S., at (slip op., at 4). And a concurring opinion authored by JUSTICE GINSBURG and joined by JUSTICES BREYER and SOTOMAYOR teed up this question for review in a later case. at (slip op., at 1) (“The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet ad- dressed by the Court. Appropriately presented, the issue would warrant full airing”). Taking this cue, petitioner then sought relief in state court based on his inability to remember his crime, and when that effort failed, he filed the petition at issue now. II The centerpiece of the petition and petitioner’s 11th- hour application for a stay of execution1 was the argument —————— 1 Petitioner sought and obtained a stay of execution based on this 4 MADISON v. ALABAMA ALITO, J., dissenting that he could not constitutionally be executed because he did not remember killing Officer Schulte. The petition repeatedly noted petitioner’s inability to remember his crime. See Pet. for Cert. i, iii, 1, 2, 8, 10, 11, 12, 18, 22, 23, 25, 26, 27, 28. And the petition was very clear about the question on which review was sought: “[T]his case presents this Court with the appropriate vehicle to consider the substantial question of whether the execution of a prisoner with no memory of the un- derlying offense is consistent with the evolving stand- ards of decency inherent in this Court’s Eighth Amendment jurisprudence.” This same point was made time and again: ● “[B]ecause [petitioner’s] disability renders him unable to remember the underlying offense for which he is to be punished, his execution does not comport with the evolving standards of decency required by this Court’s Eighth Amendment jurisprudence.” ● “[I]mposing death on a prisoner, who, like Mr. Madi- son, suffers from substantial memory deficits by vir- tue of multiple stroke and resulting vascular dementia serves no retributive or deterrent purpose.” 2. ● “[E]xecuting an individual with no memory of the un- derlying offense serves no retributive purpose.” ● “[W]here the person being punished has no memory of the commission of the offense for which he is to be ex- ecuted, the ‘moral quality’ of that punishment is less- ened and unable to match outrage over the offense.” 2–23. —————— same argument. See Application for Stay of Execution 2, 6 (moving the Court to stay petitioner’s execution so that it could address the “sub- stantial” and “critical” question whether executing petitioner, “whose severe cognitive dysfunction leaves him without memory of his commis- sion of the capital offense,” would violate the Eighth Amendment). Cite as: 586 U. S. (2019) 5 ALITO, J., dissenting ● “Mr. Madison’s severe memory impairments as a re- sult of vascular dementia render him incompetent to be executed under the Eight Amendment.” 5 (quotation altered). In sum, the body of the petition makes it clear that review was sought on the question invited by the Dunn concurrence, and the thrust of the wording of the two questions was the same. They read as follows: “1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital of- fense? See Dunn v. Madison, [583 U. S. (2017) (GINSBURG, J., joined by BREYER and SOTOMAYOR, JJ., concurring).] “2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual pun- ishment bar the execution of a prisoner whose compe- tency has been compromised by vascular dementia and multiple strokes causing severe cognitive dys- function and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? ” Pet. for Cert. iii. With the exception of the final phrase in question two (“or understanding the circumstances of his scheduled execution”), both questions solely concern the effect of memory loss on an Eighth Amendment analysis. The final phrase in question two and certain passages in the peti- tion, if read with an exceedingly generous eye, might be seen as a basis for considering whether the evidence in the state-court record shows that petitioner’s dementia ren- dered him incapable of having a rational understanding of the reason for his execution. But that is the sort of fact- bound question on which we rarely grant review, see this 6 MADISON v. ALABAMA ALITO, J., dissenting Court’s Rule 10, and it is questionable whether we did so here. But whether or not the petition may be fairly read to present that factbound question, it is a travesty to read it as challenging the state-court order on the ground that the state court erroneously believed that dementia cannot provide a basis for a Ford/Panetti claim. There is no ink- ling of that argument in the petition. Although the peti- tion described the state-court order at numerous places, the petition never claimed that the order was based on an impermissible distinction between dementia and other mental conditions. See, e.g., Pet. for Cert. ii, 2–3, 16. And in fact, there is a point in the petition where such an interpretation of the state-court order would surely have been mentioned if the petition had intended to raise it as a ground for review. The petition noted that “courts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompe- tency to be executed,” 5, but the petition did not follow that statement by claiming that the state court in this case took a contradictory position. Because the petition did not raise—indeed, did not even hint at—the argument on which the Court now grants relief, the Court’s decision is insupportable.2 It violates our Rule that “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” See Rule 14.1(a). III Even if it were proper for us to consider whether the order below was based on an erroneous distinction be- tween dementia and other mental conditions, there is little reason to think that it was. After a full evidentiary hear- —————— 2 The Court is unable to cite a single place in the petition that makes any reference to the argument that the state court failed to understand that dementia could satisfy the Ford/Panetti test. Cite as: 586 U. S. (2019) 7 ALITO, J., dissenting ing in 2016, the state court rejected petitioner’s Ford/Panetti claim based on a correct statement of the holding of those decisions. It found that petitioner “ha[d] not carried his burden [of showing] by a preponderance of the evidence that he does not rationally understand the punishment he is about to suffer and why he is about to suffer it.” Order (Apr. 29, 2016), p. 10. The court’s order went on to say that it “specifically [found] that Mad- ison has a rationa[l] understanding, as required by Panetti, that he is going to be executed because of the murder he committed and a rationa[l] understanding that the State is seeking retribution and that he will die when he is executed.” In concluding that the state court might have drawn a distinction between dementia and other mental conditions, the majority seizes upon the wording of the order issued after a subsequent hearing in 2018. Ante, In that order, the same judge wrote: “Defendant did not provide a substantial threshold showing of insanity, a requirement set out by the United States Supreme Court, sufficient to convince this Court to stay the execution.” Order (Jan. 16, 2018), p. 1 (emphasis added). The majority worries that the state-court judge might not have applied the same standard in 2018 as he had two years earlier and might have viewed “insanity” as something narrower than the standard mandated by Ford and Panetti. This concern is unfounded. Taken out of context, the term “insanity” might not be read to encompass dementia, but in context, it is apparent that the state court’s use of that term was based on the way in which it was used in Ford and Panetti. The state court did not simply refer to “insanity.” It referred to “insanity, a requirement set out by the United States Supreme Court.” Thus, it followed the term “insanity” with an appositive, which is a word or phrase that re- names the word or phrase that precedes it. In other 8 MADISON v. ALABAMA ALITO, J., dissenting words, what the state court clearly meant by “insanity” was what this Court termed insanity in Ford and Panetti. What was that? In Ford, the Court held that the Eighth Amendment prohibits the execution of a person who is “insane,” and in the portion of Justice Marshall’s lead opinion that was joined by a plurality, Justice Marshall equated insanity with a mental condition that “prevents [a person] from comprehending the reasons for the penalty or its implica- tions.” Justice Powell, who provided the fifth vote for the decision, took a similar position. See at 422–423 (opinion concurring in part and concurring in judgment). In Panetti, which built on the holding in Ford, the Court used the term in a similar way. See 551 U.S., at 958–960. Accordingly, a defendant suffers from “insanity,” as the term is used in Ford and Panetti, if the prisoner does not understand the reason for his execution. Today’s decision does not reject this interpretation of the state-court order; it says only that it is vacating and re- manding because it is “at the least unsure” whether the state court used the term “insanity” in this way. Ante, at 14. The majority cites two reasons for its uncertainty, but both are weak. First, the majority attributes to the state court an inter- pretation of the term “insanity” that was advanced by the State in this Court in its brief in opposition to the petition for certiorari. Ante, at 15. In that submission, the State argued that certiorari should be denied because petitioner had sought relief in state court under the wrong provision of state law, namely, –16–23 (2011), which authorizes the suspension of the execution of an inmate who is “insane.” The State argued that petitioner’s memory loss did not render him “insane” within the mean- ing of this statute and that if he wished to argue that the Eighth Amendment bars the execution of an inmate who cannot remember his crime, he “should have filed a peti- Cite as: 586 U. S. (2019) 9 ALITO, J., dissenting tion for post-conviction relief ” under Alabama Rule of Criminal Procedure 32.4. Brief in Opposition 11–12. The majority’s argument based on the State’s brief in opposition suffers from multiple defects. For one thing, nothing suggests that the state court rejected petitioner’s application on the ground that he invoked the wrong provision of state law; the State’s filing in the state court made no mention of the argument set out in its brief in opposition filed here. Moreover, if the state court had rejected petitioner’s application on the ground that he moved under the wrong provision of state law, it is doubt- ful that we could review that decision, for then it would appear to rest on an adequate and independent state-law ground. And to top things off, the majority’s argument distorts what the State’s brief in opposition attempted to say about the term “insane.” The State did not argue that a defendant who lacks a rational understanding of the reason for his execution due to dementia is not “insane” under –16–23. Instead, the State’s point was that a defendant is not “insane” in that sense merely because he cannot remember committing the crime for which he was convicted. The majority’s other proffered basis for doubt is that the State “repeatedly argued to the [state] court (over Madi- son’s objection) that only prisoners suffering from delu- sional disorders could qualify as incompetent under Panetti.” Ante, at 16. The majority, however, cites no place where the State actually made such an argument. To be sure, the State, in contending that petitioner was not entitled to relief under Ford and Panetti, argued strenuously that he was not delusional. (The State made this argument be- cause petitioner’s counsel claimed that petitioner was in fact delusional and fell within Ford and Panetti for that reason.3) But arguing, as the State did, that petitioner —————— 3 Petitioner’s papers emphasized again and again that he suffers from 10 MADISON v. ALABAMA ALITO, J., dissenting was not entitled to relief because the claim that he was delusional was untrue is not the same as arguing that petitioner could be executed even if his dementia rendered him incapable of understanding the reason for his execu- tion. The majority cites no place where the State made the latter argument in the state court.4 And even if the —————— delusions. See Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), p. 1 (“Mr. Madison has long suffered from serious mental illness, marked by paranoid delusions and other disabil- ities”); (“At Mr. Madison’s trial, Dr. Barry Amyx established that Mr. Madison suffers from a delusional disorder that has existed since he was an adolescent”); (“This well-documented history of paranoia was one of the reasons Dr. Amyx concluded that Mr. Madison had a delusional disorder in a paranoid, really a persecutory type” (internal quotation marks omitted)); (“Dr. Amyx noted that Mr. Madison exhibited delusional thinking about medication and believed that he was being used as a guinea pig in medical experi- ments”); (emphasizing a “more recent observation” that “ ‘Mr. Madison consistently presented with paranoid delusions’ ”); (“Mr. Madison exhibited delusional and disoriented behavior in June 2015”); (“decades of delusional thinking and psychotropic medications”); see also Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 6–7 (detailing similar statements). This line of argument fell apart when petitioner’s own expert testified that he found no indication that petitioner was “[e]ither delusional or psychotic.” Tr. 56 (Apr. 14, 2016). 4 Unable to cite any place where the State made this argument to the state court, the Court claims that the State did so in the Eleventh Circuit. Ante, –7, n. 1. But even if that were so, it is hard to see what that would have to do with the question whether the state court thought that dementia could not satisfy the Ford/Panetti test. And in any event, the Court does not fairly describe the State’s argument in the Eleventh Circuit. The State’s Eleventh Circuit brief argued that merely suffering from a mental condition like dementia is not enough to render a prisoner incompetent to be executed; instead, the prisoner must also establish that he lacks a rational understanding of the reason for his execution. See Brief for Appellee in No. 16–12279 (CA11), pp. 37–38 (Brief for Appellee) (“The fairest reading of the state court’s opinion is that it assumed that dementia and memory loss caused by strokes is a mental illness and went straight to the rational understanding question. Thus, it is not that the trial court refused to Cite as: 586 U. S. (2019) 11 ALITO, J., dissenting —————— consider Madison’s claims pertaining to dementia—Madison cannot point to any portion of the state court order that says this—it is that the trial court correctly noted that Madison failed to prove that any dementia interfered with Madison’s ability to have a rational under- standing of his execution, including the reasons therefor”); 7 (“The Supreme Court has not held that a petitioner can show incompe- tence without demonstrating a mental illness or that dementia and memory loss definitively preclude rational understanding”); 9 (“To the extent the state court followed the lead of the Supreme Court, this Court, and the ABA and required Madison to show that a mental illness prevented him from having a rational understanding of his punishment, doing so was not an unreasonable application of clearly established federal law”). It is true that the State’s brief, in addressing the standard for granting federal habeas relief under 28 U.S. C. stated that this Court “ha[d] never held that dementia or memory loss is sufficient to show a lack of rational understanding,” Brief for Appellee 29, but that was because a claim under must be based on a clearly established Supreme Court holding. See Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 32:37–33:30 (State rejecting a suggestion that Panetti holds “if you don’t remember committing the crime at all, and it is clear based on the medical testimony that you don’t remember committing this crime, then you don’t have a rational understanding of the factual basis for the imposition of the death penalty”: “First of all, under AEDPA deference, I think that that is not the holding of Panetti. I think under AEDPA deference, it’s pretty clear that the holding of Panetti is very narrow. I would say the holding in Panetti is that documented mental illness that results in a delusion has to be considered when talking about rational understand- ing”); at 36:00–36:30 (“I think the Supreme Court has never held that not remembering something is equivalent to not having a rational understanding. I think that is just undeniably true. And if AEDPA deference applies, then I don’t think the state court could have been unreasonable in rejecting the view that memory is required”). The State did not argue either that dementia cannot satisfy Ford and Panetti or that the state court based its decision on that ground. On the contrary, Alabama wrote that “even if the trial court had deter- mined that dementia and severe memory loss—or even total amnesia— are insufficient to meet the rational understanding test, that finding would not contradict clearly established federal law.” Brief for Appellee 29; see also (“Even assuming the state court held, as a matter of law, that amnesia is not sufficient to show a lack of rational under- standing, that determination was not unreasonable in light of clearly 12 MADISON v. ALABAMA ALITO, J., dissenting State had made such an argument, what matters is the basis for the state court’s decision, not what counsel for the State wrote or said. I add one more comment regarding the majority’s uncer- tainty about the basis for the state-court decision: Our decision two years ago in Dunn evinced no similar doubts. There, we said that the state court “held that, under this Court’s decisions in Ford and Panetti, Madison was en- titled to relief if he could show” that he lacks a rational understanding of the circumstances of his punishment. 583 U. S., at (slip op., ) (quotation altered). And we said that the state court “determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have commit- ted.” at (slip op., at 4); see also (referring to the state court’s “finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime”). Why the majority cannot now see what it under- stood without any apparent difficulty two years ago is hard to grasp. For all these reasons, what the Court has done in this case cannot be defended, and therefore it is hard to escape thinking that the real reason for today’s decision is doubt on the part of the majority regarding the correctness of the —————— established federal law”). The majority acknowledges that the State made this concededly correct habeas argument, but then oddly writes it off as an “additional” or alternative argument. Ante, at 7, n. 1. Yet, as the State’s brief and oral argument illustrate, the State’s core contention was that the state court did not unreasonably apply clearly established law under Panet- ti’s “very narrow” holding. (And as we later held in Dunn, the State was correct.) The majority simply cannot escape the inconvenient fact that the State never argued, as a non-AEDPA matter, that peti- tioner could be executed even if his dementia precluded a rational understanding. Cite as: 586 U. S. (2019) 13 ALITO, J., dissenting state court’s factual finding on the question whether Mad- ison has a rational understanding of the reason for his execution. There is no question that petitioner suffers from severe physical and mental problems, and the ques- tion whether he is capable of understanding the reason for his execution was vigorously litigated below. But if the Court thinks it is proper for us to reach that question and to reverse the state court’s finding based on a cold record, it should own up to what it is doing. * * * Petitioner has abandoned the question on which he succeeded in persuading the Court to grant review, and it is highly improper for the Court to grant him relief on a ground not even hinted at in his petition. The writ should be dismissed as improvidently granted, and I therefore respectfully dissent

Justice Souter

majority

Fernandez-Vargas v. Gonzales

2006-06-22

https://www.courtlistener.com/opinion/145637/fernandez-vargas-v-gonzales/

https://www.courtlistener.com/api/rest/v3/clusters/145637/

2005-074

For some time, the law has provided that an order for removing an alien present unlawfully may be reinstated if he leaves and unlawfully enters again. The Illegal Immi gration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104–208, div. C, 110 Stat. 3009–546, enlarged the class of illegal reentrants whose orders may be reinstated and limited the possible relief from a re moval order available to them. See Immigration and Nationality Act (INA), §241(a)(5), 66 Stat. 204, as added by IIRIRA §305(a)(3), 110 Stat. 3009–599, 8 U.S. C. §1231(a)(5). The questions here are whether the new version of the reinstatement provision is correctly read to apply to individuals who reentered the United States before IIRIRA’s effective date, and whether such a reading may be rejected as impermissibly retroactive. We hold the statute applies to those who entered before IIRIRA and does not retroactively affect any right of, or impose any burden on, the continuing violator of the INA now before us. 2 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court I In 1950, Congress provided that deportation orders issued against some aliens who later reentered the United States illegally could be reinstated.1 Internal Security Act of 1950, §23(d), 64 Stat. 1012, 8 U.S. C. §156(d) (1946 ed., Supp. V).2 Only specific illegal reentrants were subject to the provision, those deported as “anarchists” or “subver sives,” for example, see §23(c), 64 Stat. 1012, while the rest got the benefit of the ordinary deportation rules. Congress retained a reinstatement provision two years later when it revised the immigration laws through the INA, §242(f), 66 Stat. 212, as codified in this subsection: “Should the Attorney General find that any alien has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952,3 on any ground described in subsection (e) . . . , the previous order of deportation shall be deemed to be reinstated from its original date and such alien shall be deported under such previous order at any time subsequent to such reentry.” 8 U.S. C. §1252(f) (1994 ed.). —————— 1 What was formerly known as “deportation” is now called “removal” in IIRIRA. See Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 966 (1998) (IIRIRA “re aligned the vocabulary of immigration law, creating a new category of ‘removal’ proceedings that largely replaces what were formerly exclu sion proceedings and deportation proceedings”). Our use of each term here will vary according to the scheme under discussion. 2 This is the full text of the provision: “Should any alien subject to the provisions of subsection (c) unlawfully return to the United States after having been released for departure or deported pursuant to this section, the previous warrant of deportation against him shall be considered as reinstated from its original date of issuance.” 3 A date was inserted when the provision was codified; as originally enacted, the text read, “whether before or after the date of enactment of this Act.” 66 Stat. 212. Cite as: 548 U. S. ____ (2006) 3 Opinion of the Court Again, only a limited class of illegal reentrants was sus ceptible, see §242(e), 66 Stat. 211; cf. §241(a), id., at 204, and even those affected could seek some varieties of dis cretionary relief, see, e.g., 8 U.S. C. §1254(a)(1) (1994 ed.) (suspension of deportation available to aliens who main tained a continuous presence in the United States for seven years and could demonstrate extreme hardship and a good moral character). In IIRIRA, Congress replaced this reinstatement provi sion with one that toed a harder line, as the old §242(f) was displaced by the new §241(a)(5): “If the Attorney General finds that an alien has reen tered the United States illegally after having been removed or having departed voluntarily, under an or der of removal, the prior order of removal is reinstated from its original date and is not subject to being re opened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.” 8 U.S. C. §1231(a)(5) (1994 ed., Supp. III). The new law became effective on April 1, 1997, “the first day of the first month beginning more than 180 days after” IIRIRA’s enactment. §309(a), 110 Stat. 3009–625. Unlike its predecessor, §241(a)(5) applies to all illegal reentrants, explicitly insulates the removal orders from review, and generally forecloses discretionary relief from the terms of the reinstated order.4 —————— 4 Notwithstanding the absolute terms in which the bar on relief is stated, even an alien subject to §241(a)(5) may seek withholding of removal under 8 U.S. C. §1231(b)(3)(A) (2000 ed.) (alien may not be removed to country if “the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, member ship in a particular social group, or political opinion”), or under 8 CFR §§241.8(e) and 208.31 (2006) (raising the possibility of asylum to aliens 4 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court II Humberto Fernandez-Vargas is a citizen of Mexico, who first came to the United States in the 1970s, only to be deported for immigration violations, and to reenter, sev eral times, his last illegal return having been in 1982. Then his luck changed, and for over 20 years he remained undetected in Utah, where he started a trucking business and, in 1989, fathered a son, who is a United States citi zen. In 2001, Fernandez-Vargas married the boy’s mother, who is also a United States citizen. She soon filed a relative-visa petition on behalf of her husband, see 8 U.S. C. §§1154(a), 1151(b) (2000 ed.); see Fernandez- Vargas v. Ashcroft, 394 F.3d 881, 883, n. 4 (CA10 2005), on the basis of which he filed an application to adjust his status to that of lawful permanent resident, see §1255(i). The filings apparently tipped off the authorities to his illegal presence here, and in November 2003, the Govern ment began proceedings under §241(a)(5) that eventuated in reinstating Fernandez-Vargas’s 1981 deportation order, but without the possibility of adjusting his status to lawful residence. He was detained for 10 months before being removed to Juarez, Mexico in September 2004. Fernandez-Vargas petitioned the United States Court of Appeals for the Tenth Circuit to review the reinstatement order. He took the position that because he illegally reen tered the country before IIRIRA’s effective date, the con trolling reinstatement provision was the old §242(f), which meant he was eligible to apply for adjustment of status as spouse of a citizen, and he said that the new §241(a)(5) would be impermissibly retroactive if it barred his applica tion for adjustment. The Court of Appeals held that §241(a)(5) did bar Fernandez-Vargas’s application and followed Landgraf v. USI Film Products, 511 U.S. 244 (1994), in determining that the new law had no impermissi —————— whose removal order has been reinstated under INA §241(a)(5)). Cite as: 548 U. S. ____ (2006) 5 Opinion of the Court bly retroactive effect in Fernandez-Vargas’s case. 394 F.3d, at 886, 890–891. We granted certiorari to resolve a split among the Courts of Appeals over the application of §241(a)(5) to an alien who reentered illegally before IIRIRA’s effective date,5 546 U. S. ___ (2005), and we now affirm. III Statutes are disfavored as retroactive when their appli cation “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or im pose new duties with respect to transactions already completed.” Landgraf, supra, at 280. The modern law thus follows Justice Story’s definition of a retroactive statute, as “tak[ing] away or impair[ing] vested rights acquired under existing laws, or creat[ing] a new obliga tion, impos[ing] a new duty, or attach[ing] a new disabil ity, in respect to transactions or considerations already past,” Society for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CCNH 1814). Accord ingly, it has become “a rule of general application” that “a —————— 5 Two Courts of Appeals have held that §241(a)(5) does not apply at all to aliens who reentered before the provision’s effective date, see Bejjani v. INS, 271 F.3d 670 (CA6 2001); Castro-Cortez v. INS, 239 F.3d 1037 (CA9 2001), while eight have held that it does, at least in some circumstances, see Arevalo v. Ashcroft, 344 F.3d 1 (CA1 2003); Avila-Macias v. Ashcroft, 328 F.3d 108 (CA3 2003); Velasquez-Gabriel v. Crocetti, 263 F.3d 102 (CA4 2001); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (CA5 2002); Faiz-Mohammad v. Ashcroft, 395 F.3d 799 (CA7 2005); Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (CA8 2002); 394 F.3d 881 (CA10 2005) (case below); Sarmiento Cisneros v. United States Attorney General, 381 F.3d 1277 (CA11 2004). The Courts of Appeals in the majority are themselves divided on the question whether an alien’s marriage or application for adjustment of status before the statute’s effective date (facts not in play here) renders the statute impermissibly retroactive when it is applied to the alien. See, e.g., Faiz-Mohammad, supra, at 809–810 (application for adjustment of status); Alvarez-Portillo, supra, at 862, 867 (marriage). 6 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court statute shall not be given retroactive effect unless such construction is required by explicit language or by neces sary implication.” United States v. St. Louis, S. F. & T. R. Co., 270 U.S. 1, 3 (1926) (opinion for the Court by Brandeis, J.). This Court has worked out a sequence of analysis when an objection is made to applying a particular statute said to affect a vested right or to impose some burden on the basis of an act or event preceding the statute’s enactment. We first look to “whether Congress has expressly pre scribed the statute’s proper reach,” Landgraf, supra, at 280, and in the absence of language as helpful as that we try to draw a comparably firm conclusion about the tem poral reach specifically intended by applying “our normal rules of construction,” Lindh v. Murphy, 521 U.S. 320, 326 (1997). If that effort fails, we ask whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of “affecting substan tive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment,” Landgraf, supra, at 278; see also Lindh, supra, at 326. If the answer is yes, we then apply the presumption against retroactivity by con struing the statute as inapplicable to the event or act in question owing to the “absen[ce of] a clear indication from Congress that it intended such a result.” INS v. St. Cyr, 533 U.S. 289, 316 (2001); see Martin v. Hadix, 527 U.S. 343, 352 (1999) (quoting Landgraf, supra, at 280). Fernandez-Vargas fights at each step of the way, argu ing that Congress intended that INA §241(a)(5) would not apply to illegal reentrants like him who returned to this country before the provision’s effective date; and in any event, that application of the provision to such illegal reentrants would have an impermissibly retroactive effect, to be avoided by applying the presumption against it. We Cite as: 548 U. S. ____ (2006) 7 Opinion of the Court are not persuaded by either contention.6 A Needless to say, Congress did not complement the new version of §241(a)(5) with any clause expressly dealing with individuals who illegally reentered the country before IIRIRA’s April 1, 1997, effective date, either including them within §241(a)(5)’s ambit or excluding them from it. Fernandez-Vargas argues instead on the basis of the generally available interpretive rule of negative implica tion, when he draws attention to language governing temporal reach contained in the old reinstatement provi sion, but missing from the current one. Section 242(f) applied to “any alien [who] has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952, on any ground described in . . . subsection (e).” 8 U.S. C. §1252(f) (1994 ed.). Accord ing to Fernandez-Vargas, since that before-or-after clause made it clear that the statute applied to aliens who reen tered before the enactment date of the earlier version, its elimination in the current iteration shows that Congress no longer meant to cover preenactment reentrants. See Brewster v. Gage, 280 U.S. 327, 337 (1930) (“deliberate selection of language . . . differing from that used in the earlier Acts” can indicate “that a change of law was in —————— 6 The Government urges us to forgo Landgraf analysis altogether because §241(a)(5) regulates only a present removal process, not past primary conduct, citing our recent decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004). Although we ultimately agree with the Government, in the abstract at least, that the reinstatement provision concerns itself with postenactment affairs, see infra, at 13–15, we find the Government’s allusion to Altmann inapt. The Court’s conclusion in that case, that Landgraf was to be avoided, turned on the peculiarities of the Foreign Sovereign Immunities Act. See Altmann, supra, at 694– 696. Those peculiarities are absent here, and we thus advert to Land graf, as we ordinarily do. 8 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court tended”); cf. 2B N. Singer, Statutes and Statutory Construc tion §51.04, p. 244 (6th rev. ed. 2000). But the clues are not that simple. To begin with, the old before-or-after clause was sand wiched between references to departure or deportation under a deportation order and to grounds for deportation set out in a different subsection of the INA. It thus most naturally referred not to the illegal reentry but to the alien’s previous deportation or departure. If its omission from the new subsection (a)(5) is significant, its immediate significance goes to the date of leaving this country, not the date of illegal return. Since the old clause referred to the date of enactment of the INA in 1952, the negative implication argument from dropping the language is that the reinstatement section no longer applies to those who left the country before that date. But, in 1996, application keyed to departures in 1952 or earlier was academic, and the better inference is that the clause was removed for that reason.7 If, moreover, we indulged any suggestion that omitting the clause showed an intent to apply §241(a)(5) only to deportations or departures after IIRIRA’s effective date, the result would be a very strange one: it would exempt from the new reinstatement provision’s coverage anyone who departed before IIRIRA’s effective date but reentered after it. The point of the statute’s revision, however, was obviously to expand the scope of the reinstatement author ity and invest it with something closer to finality, and it would make no sense to infer that Congress meant to except the broad class of persons who had departed before the time of enactment but who might return illegally at some point in the future. —————— 7 We therefore need not entertain Fernandez-Vargas’s argument that the provision’s drafting history indicates that the language was elimi nated deliberately. Cite as: 548 U. S. ____ (2006) 9 Opinion of the Court Fernandez-Vargas sidesteps this problem (on a very generous reading of his argument) by making a more general suggestion of congressional intent: whatever the event to which the old law was tied, activity before as well as activity after it implicated the reinstatement power. Since the new law is bereft of such clarity, we should apply the “ ‘longstanding principle of construing any lin gering ambiguities in deportation statutes in favor of the alien,’ ” St. Cyr, 533 U.S., at 320 (quoting INS v. Car doza-Fonseca, 480 U.S. 421, 449 (1987)), which would effectively impose “[t]he presumption against retroactive application of ambiguous statutory provisions,” St. Cyr, supra, at 320. If we did so, we would find that §241(a)(5) operates only to reentries after its effective date. Even at this amorphously general level, however, the argument suffers from two flaws, the first being that it puts the cart before the horse. As Fernandez-Vargas realizes, he urges application of the presumption against retroactivity as a tool for interpreting the statute at the first Landgraf step. But if that were legitimate, a statute lacking an express provision about temporal reach would never be construed as having a retroactive potential and the final two steps in the Landgraf enquiry would never occur (that is, asking whether the statute would produce a retroactive effect, and barring any such application by applying the presumption against retroactivity). It is not until a statute is shown to have no firm provision about temporal reach but to produce a retroactive effect when straightforwardly applied that the presumption has its work to do. See 511 U.S., at 280. The second flaw is the argument’s failure to account for the new statute’s other provisions on temporal reach, from which one might draw a negative inference that subsec tion (a)(5) was (or at least may well have been) meant to apply to reentries before its effective date. In contrast to their silence about the temporal sweep of §241(a)(5), the 10 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court 1996 amendments speak directly to the scope of changes in provisions making reentry criminal and setting civil penalties. IIRIRA §324(c), 110 Stat. 3009–629, note fol lowing 8 U.S. C. §1326 (2000 ed.), provides that the ex panded criminal prohibitions, see §1326(a), apply only to reentries or attempts after the effective date, and §105(b), 110 Stat. 3009–556, note following 8 U.S. C. §1325, pro vides the same as to civil penalties for illegal reentry, see §1325(b). The point here is not that these provisions alone would support an inference of intent to apply the rein statement provision retroactively, see Lindh, 521 U.S., at 328, n. 4, for we require a clear statement for that, see Martin, 527 U.S., at 354. But these provisions do blunt any argument that removal of the before-or-after clause suffices to establish the applicability of §241(a)(5) only to posteffective date reentries. The fact is that IIRIRA some times expressly made changes prospective as from its effective date and sometimes expressly provided they were applicable to earlier acts; compare §§324(c) and 105(b), with §347(c), 110 Stat. 3009–639 (provision governing removal of aliens who have unlawfully voted is applicable “to voting occurring before, on, or after the date of the enactment of this Act”), and §351(c), id., at 3009–640 (provision applicable to “waivers filed before, on, or after the date of the enactment of this Act”). With such a vari ety of treatment, it is just too hard to infer any clear inten tion at any level of generality from the fact of retiring the old before-or-after language from what is now §241(a)(5). One conclusion can be stated, however. Common prin ciples of statutory interpretation fail to unsettle the ap parent application of §241(a)(5) to any reentrant present in the country, whatever the date of return.8 —————— 8 JUSTICE STEVENS states that when, in 1952, Congress inserted the before-or-after clause with the old §242(f), it was responding to the Immigration and Naturalization Service (INS) practice of applying the Cite as: 548 U. S. ____ (2006) 11 Opinion of the Court B This facial reading is confirmed by two features of IIRIRA, not previously discussed, that describe the con duct to which §241(a)(5) applies, and show that the appli cation suffers from no retroactivity in denying Fernandez- Vargas the opportunity for adjustment of status as the spouse of a citizen of the United States.9 One is in the text of that provision itself, showing that it applies to Fernan dez-Vargas today not because he reentered in 1982 or at any other particular time, but because he chose to remain after the new statute became effective. The second is the provision setting IIRIRA’s effective date, §309(a), 110 Stat. 3009–625, which shows that Fernandez-Vargas had an ample warning of the coming change in the law, but chose —————— reinstatement provision only to deportation orders issued after the provision’s enactment, a practice that necessarily meant INS applied the provision only to postenactment reentries. By correcting the INS’s interpretation only as to deportation orders, JUSTICE STEVENS suggests, Congress did nothing to disturb the practice as to reentries. And when it removed the obsolete before-or-after clause in 1996 without adding alternative language of temporal reach, the argument goes, Congress held fast to its intent in 1950 and 1952 to apply the reinstatement provision only to postenactment reentries. But the INS’s practice circa 1951 of applying the reinstatement provision only to postenactment reentries followed from its policy regarding deportation orders, and in 1952 Congress might just as easily have assumed that the branch would go the way of the root. In any event, it is difficult to accept JUSTICE STEVENS’s view that congressional understanding from 40 years back was intended to govern the IIRIRA reinstatement provision, given Congress’s care to make the revised criminal and civil penalties applicable only to postenactment reentries. 9 We would reach the same conclusion about denial of opportunities to apply for permission for voluntary departure as an alternative to removal, see 8 U.S. C. §1229c, and about cancellation of removal, see §1229b(b), if there were a need to deal with these matters separately. Although Fernandez-Vargas argues that he is being denied the chance to seek these forms of relief, he never applied for either of them and has not formally attempted to claim them in response to the reinstatement and removal proceedings. 12 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court to remain until the old regime expired and §241(a)(5) took its place. As a preface to identifying the conduct by Fernandez- Vargas to which the reinstatement provision applies (the conduct that results in reinstating the old deportation order without the former opportunities to seek adjustment of status), a look at our holding in St. Cyr, 533 U.S. 289, is helpful. The alien, St. Cyr, was a lawful, permanent resident who made a plea agreement and pleaded guilty to an aggravated felony charge. Although the resulting conviction justified his deportation, when he entered his plea the law allowed him to seek a waiver of deportation at the discretion of the Attorney General. Between the plea and deportation proceedings, however, IIRIRA and another statute repealed the provision for that discretion ary relief, converting deportation from a possibility to a certainty. Id., at 325. The question was whether Land graf barred application of the new law eliminating discre tionary relief, on the ground that applying it to a defen dant who pleaded guilty before the enactment of the new law would attach a further burdensome consequence to his plea, amounting to “a new disability, in respect to transac tions or considerations already past,” 533 U.S., at 321 (internal quotation marks omitted). The answer was that converting deportation from a likely possibility to a dead certainty would add such a burden, and application of the new law was accordingly barred. Id., at 325. In making this “commonsense, functional judgment,” Martin, supra, at 357, we emphasized that plea agreements “involve a quid pro quo between a criminal defendant and the gov ernment,” St. Cyr, 533 U.S., at 321, in which a waiver of “constitutional rights (including the right to a trial),” had been exchanged for a “perceived benefit,” id., at 322, which in practical terms was valued in light of the possible dis cretionary relief, a focus of expectation and reliance, id., at 323. Cite as: 548 U. S. ____ (2006) 13 Opinion of the Court St. Cyr’s agreement for a quid pro quo and his plea were entirely past, and there was no question of undoing them, but the “transactio[n] or consideratio[n]” on which §241(a)(5) turns is different.10 While the law looks back to a past act in its application to “an alien [who] has reen tered . . . illegally,” 8 U.S. C. §1231(a)(5), the provision does not penalize an alien for the reentry (criminal and civil penalties do that); it establishes a process to remove him “under the prior order at any time after the reentry.” Ibid. Thus, it is the conduct of remaining in the country after entry that is the predicate action; the statute applies to stop an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country. It is therefore the alien’s choice to continue his illegal presence, after illegal reentry and after the effective date of the new law, that subjects him to the new and less generous legal regime, not a past act that he is helpless to undo up to the moment the Government finds him out. That in itself is enough to explain that Fernandez- Vargas has no retroactivity claim based on a new disabil —————— 10 We understand Fernandez-Vargas’s claim as falling within the second of Justice Story’s categories of retroactivity (new consequences of past acts), not the first category of canceling vested rights. The forms of relief identified by Fernandez-Vargas as rendered unavailable to him by §241(a)(5) include cancellation of removal, see 8 U.S. C. §1229b(b), adjustment of status, see §1255, and voluntary departure, see §1229c. These putative claims to relief are not “vested rights,” a term that describes something more substantial than inchoate expecta tions and unrealized opportunities. In contrast to “an immediate fixed right of present or future enjoyment,” Pearsall v. Great Northern R. Co., 161 U.S. 646, 673 (1896) (internal quotation marks omitted), Fernandez- Vargas’s claim to such relief was contingent, and it was up to him to take some action that would elevate it above the level of hope. It is not that these forms of relief are discretionary, cf. St. Cyr, 533 U.S., at 325; it is rather that before IIRIRA’s effective date Fernandez-Vargas never availed himself of them or took action that enhanced their significance to him in particular, as St. Cyr did in making his quid pro quo agreement, see supra, at 11–12. 14 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court ity consequent to a completed act, but in fact his position is weaker still. For Fernandez-Vargas could not only have chosen to end his continuing violation and his exposure to the less favorable law, he even had an ample warning that the new law could be applied to him and ample opportu nity to avoid that very possibility by leaving the country and ending his violation in the period between enactment of §241(a)(5) and its effective date. IRRIRA became law on September 30, 1996, but it became effective and enforce able only on “the first day of the first month beginning more than 180 days after” IIRIRA’s enactment, that is, April 1, 1997. §309(a), 110 Stat. 3009–625. Unlawful alien reentrants like Fernandez-Vargas thus had the advantage of a grace period between the unequivocal warning that a tougher removal regime lay ahead and actual imposition of the less opportune terms of the new law. In that stretch of six months, Fernandez-Vargas could have ended his illegal presence and potential expo sure to the coming law by crossing back into Mexico.11 For —————— 11 In a series of letters submitted to the Court after oral argument, the parties dispute the consequences if Fernandez-Vargas had left voluntarily after IIRIRA’s enactment and, specifically, the period of inadmissibility to which Fernandez-Vargas would thereupon have been subject. Because we conclude that §241(a)(5) does not operate on a completed pre-enactment act, we need not consider the retroactive implications either of the fact of his inadmissibility or of any variance between the period of inadmissibility upon a postenactment voluntary return and that prescribed under the old regime. The period of inad missibility stems from an alien’s illegal reentry within a specified time after a prior removal and is applicable to Fernandez-Vargas because he reentered shortly after his 1981 deportation, but Fernandez-Vargas does not challenge as impermissibly retroactive IIRIRA’s lengthening of that period from 5 to 10 or 20 years, see 8 U.S. C. §1182(a)(6)(B) (1994 ed.); §1182(a)(9)(A)(ii) (2000 ed.). In any event, any period of inadmissibility is subject to waiver by the Attorney General, see §1182(a)(6)(B) (1994 ed.); §1182(a)(9)(A)(iii) (2000 ed.), and presumably Fernandez-Vargas could plead his serious case for such a waiver (his marriage, his child) in seeking legal reentry Cite as: 548 U. S. ____ (2006) 15 Opinion of the Court that matter, he could have married the mother of his son and applied for adjustment of status during that period, in which case he would at least have had a claim (about which we express no opinion) that proven reliance on the old law should be honored by applying the presumption against retroactivity.12 Fernandez-Vargas did not, however, take advantage of the statutory warning, but augmented his past 15 years of unlawful presence by remaining in the country into the future subject to the new law, whose applicability thus turned not on the completed act of reentry, but on a failure to take timely action that would have avoided application of the new law altogether. To be sure, a choice to avoid the new law before its effective date or to end the continu ing violation thereafter would have come at a high per sonal price, for Fernandez-Vargas would have had to leave a business and a family he had established during his illegal residence. But the branch of retroactivity law that concerns us here is meant to avoid new burdens imposed on completed acts, not all difficult choices occasioned by new law. What Fernandez-Vargas complains of is the application of new law to continuously illegal action within his control both before and after the new law took effect. He claims a right to continue illegal conduct indefinitely under the terms on which it began, an entitlement of legal stasis for those whose lawbreaking is continuous. But “[i]f every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever.” L. Fuller, The Morality of Law 60 (1964) (quoted in Landgraf, 511 U.S., at 269, n. 24).13 —————— to the United States. 12 See 394 F.3d, at 890, and n. 11 (distinguishing Fernandez-Vargas’s circumstance from that of aliens who had married, or both married and applied for adjustment of status, before IIRIRA’s effective date). 13 This is the nub of our disagreement with JUSTICE STEVENS. He says 16 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court Because we conclude that §241(a)(5) has no retroactive effect when applied to aliens like Fernandez-Vargas, we affirm the judgment of the Court of Appeals. It is so ordered. —————— it misses the point to say that Fernandez-Vargas could avoid the new law by returning to Mexico, which he thinks is like saying that a defendant could avoid a retroactive criminal penalty by locking himself up for 10 years, post, at 5, n. 2. JUSTICE STEVENS thus argues that reimposing an order of removal to end illegal residence is like imposing a penalty for a completed act (the defendant’s unspecified act in his analogy). But even on his own analysis, Fernandez-Vargas continued to violate the law by remaining in this country day after day, and JUSTICE STEVENS does not deny that the United States was entitled to bring that continuing violation to an end. He says, however, that Congress should not be understood to provide that if the violation continues into the future it may be ended on terms less favorable than those at the beginning. But this is not the position that retroactivity doctrine imputes to an inexplicit Congress. Fernandez-Vargas may have an equitable argument that the Government should not, for the future, eliminate an opportunity for continuing illegality accompanied by the hopes that long illegal residence and a prospect of marriage gave him in the past. But Congress apparently did not accept such an argument, which could prevail here only if the presumption against retroactivity amounted to a presumption of legal stasis for the benefit of continuous lawbreakers. Cite as: 548 U. S. ____ (2006) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 04–1376 _________________ HUMBERTO FERNANDEZ-VARGAS, PETITIONER v. ALBERTO R.

For some time, the law has provided that an order for removing an alien present unlawfully may be reinstated if he leaves and unlawfully enters again. The Illegal Immi gration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104–208, div. C, –546, enlarged the class of illegal reentrants whose orders may be reinstated and limited the possible relief from a re moval order available to them. See Immigration and Nationality Act (INA), as added by IIRIRA –599, 8 U.S. C. The questions here are whether the new version of the reinstatement provision is correctly read to apply to individuals who reentered the United States before IIRIRA’s effective date, and whether such a reading may be rejected as impermissibly retroactive. We hold the statute applies to those who entered before IIRIRA and does not retroactively affect any right of, or impose any burden on, the continuing violator of the INA now before us. 2 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court I In 1950, Congress provided that deportation orders issued against some aliens who later reentered the United States illegally could be reinstated.1 Internal Security Act of 1950, 8 U.S. C. (1946 ed., Supp. V).2 Only specific illegal reentrants were subject to the provision, those deported as “anarchists” or “subver sives,” for example, see while the rest got the benefit of the ordinary deportation rules. Congress retained a reinstatement provision two years later when it revised the immigration laws through the INA, as codified in this subsection: “Should the Attorney General find that any alien has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952, on any ground described in subsection (e) the previous order of deportation shall be deemed to be reinstated from its original date and such alien shall be deported under such previous order at any time subsequent to such reentry.” 8 U.S. C. (1994 ed.). —————— 1 What was formerly known as “deportation” is now called “removal” in IIRIRA. See Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, (IIRIRA “re aligned the vocabulary of immigration law, creating a new category of ‘removal’ proceedings that largely replaces what were formerly exclu sion proceedings and deportation proceedings”). Our use of each term here will vary according to the scheme under discussion. 2 This is the full text of the provision: “Should any alien subject to the provisions of subsection (c) unlawfully return to the United States after having been released for departure or deported pursuant to this section, the previous warrant of deportation against him shall be considered as reinstated from its original date of issuance.” A date was inserted when the provision was codified; as originally enacted, the text read, “whether before or after the date of enactment of this Act.” Cite as: 548 U. S. (2006) Opinion of the Court Again, only a limited class of illegal reentrants was sus ceptible, see ; cf. and even those affected could seek some varieties of dis cretionary relief, see, e.g., 8 U.S. C. (1994 ed.) (suspension of deportation available to aliens who main tained a continuous presence in the United States for seven years and could demonstrate extreme hardship and a good moral character). In IIRIRA, Congress replaced this reinstatement provi sion with one that toed a harder line, as the old was displaced by the new “If the Attorney General finds that an alien has reen tered the United States illegally after having been removed or having departed voluntarily, under an or der of removal, the prior order of removal is reinstated from its original date and is not subject to being re opened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.” 8 U.S. C. (1994 ed., Supp. III). The new law became effective on April 1, 1997, “the first day of the first month beginning more than 180 days after” IIRIRA’s enactment. –625. Unlike its predecessor, applies to all illegal reentrants, explicitly insulates the removal orders from review, and generally forecloses discretionary relief from the terms of the reinstated order.4 —————— 4 Notwithstanding the absolute terms in which the bar on relief is stated, even an alien subject to may seek withholding of removal under 8 U.S. C. (2000 ed.) (alien may not be removed to country if “the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, member ship in a particular social group, or political opinion”), or under 8 CFR and 208.1 (2006) (raising the possibility of asylum to aliens 4 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court II Humberto Fernandez-Vargas is a citizen of Mexico, who first came to the United States in the 1970s, only to be deported for immigration violations, and to reenter, sev eral times, his last illegal return having been in 1982. Then his luck changed, and for over 20 years he remained undetected in Utah, where he started a trucking business and, in 1989, fathered a son, who is a United States citi zen. In Fernandez-Vargas married the boy’s mother, who is also a United States citizen. She soon filed a relative-visa petition on behalf of her husband, see 8 U.S. C. 1151(b) (2000 ed.); see Fernandez- on the basis of which he filed an application to adjust his status to that of lawful permanent resident, see The filings apparently tipped off the authorities to his illegal presence here, and in November the Govern ment began proceedings under that eventuated in reinstating Fernandez-Vargas’s 1981 deportation order, but without the possibility of adjusting his status to lawful residence. He was detained for 10 months before being removed to Juarez, Mexico in September Fernandez-Vargas petitioned the United States Court of Appeals for the Tenth Circuit to review the reinstatement order. He took the position that because he illegally reen tered the country before IIRIRA’s effective date, the con trolling reinstatement provision was the old which meant he was eligible to apply for adjustment of status as spouse of a citizen, and he said that the new would be impermissibly retroactive if it barred his applica tion for adjustment. The Court of Appeals held that did bar Fernandez-Vargas’s application and followed (1994), in determining that the new law had no impermissi —————— whose removal order has been reinstated under INA ). Cite as: 548 U. S. (2006) 5 Opinion of the Court bly retroactive effect in Fernandez-Vargas’s case. 94 F.d, at 886, 890–891. We granted certiorari to resolve a split among the Courts of Appeals over the application of to an alien who reentered illegally before IIRIRA’s effective date,5 546 U. S. and we now affirm. III Statutes are disfavored as retroactive when their appli cation “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or im pose new duties with respect to transactions already completed.” The modern law thus follows Justice Story’s definition of a retroactive statute, as “tak[ing] away or impair[ing] vested rights acquired under existing laws, or creat[ing] a new obliga tion, impos[ing] a new duty, or attach[ing] a new disabil ity, in respect to transactions or considerations already past,” Society for the Propagation of the (No. 1,156) (CCNH 1814). Accord ingly, it has become “a rule of general application” that “a —————— 5 Two Courts of Appeals have held that does not apply at all to aliens who reentered before the provision’s effective date, see ; Castro-Cortez v. INS, 29 F.d 107 while eight have held that it does, at least in some circumstances, see ; ; Velasquez-Gabriel v. Crocetti, ; Ojeda-Terrazas v. Ashcroft, 290 F.d 292 ; ; ; 94 F.d 881 (case below); Sarmiento The Courts of Appeals in the majority are themselves divided on the question whether an alien’s marriage or application for adjustment of status before the statute’s effective date (facts not in play here) renders the statute impermissibly retroactive when it is applied to the alien. See, e.g., at 809–810 (application for adjustment of status); 6 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court statute shall not be given retroactive effect unless such construction is required by explicit language or by neces sary implication.” United (opinion for the Court by Brandeis, J.). This Court has worked out a sequence of analysis when an objection is made to applying a particular statute said to affect a vested right or to impose some burden on the basis of an act or event preceding the statute’s enactment. We first look to “whether Congress has expressly pre scribed the statute’s proper reach,” at 280, and in the absence of language as helpful as that we try to draw a comparably firm conclusion about the tem poral reach specifically intended by applying “our normal rules of construction,” 521 U.S. 20, 26 (1997). If that effort fails, we ask whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of “affecting substan tive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment,” ; see also at 26. If the answer is yes, we then apply the presumption against retroactivity by con struing the statute as inapplicable to the event or act in question owing to the “absen[ce of] a clear indication from Congress that it intended such a result.” 5 U.S. 289, 16 ; see v. Hadix, 527 U.S. 4, 52 (1999) (quoting ). Fernandez-Vargas fights at each step of the way, argu ing that Congress intended that INA would not apply to illegal reentrants like him who returned to this country before the provision’s effective date; and in any event, that application of the provision to such illegal reentrants would have an impermissibly retroactive effect, to be avoided by applying the presumption against it. We Cite as: 548 U. S. (2006) 7 Opinion of the Court are not persuaded by either contention.6 A Needless to say, Congress did not complement the new version of with any clause expressly dealing with individuals who illegally reentered the country before IIRIRA’s April 1, 1997, effective date, either including them within ’s ambit or excluding them from it. Fernandez-Vargas argues instead on the basis of the generally available interpretive rule of negative implica tion, when he draws attention to language governing temporal reach contained in the old reinstatement provi sion, but missing from the current one. Section 242(f) applied to “any alien [who] has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952, on any ground described in subsection (e).” 8 U.S. C. (1994 ed.). Accord ing to Fernandez-Vargas, since that before-or-after clause made it clear that the statute applied to aliens who reen tered before the enactment date of the earlier version, its elimination in the current iteration shows that Congress no longer meant to cover preenactment reentrants. See 280 U.S. 27, 7 (190) Although we ultimately agree with the Government, in the abstract at least, that the reinstatement provision concerns itself with postenactment affairs, see infra, at 1–15, we find the Government’s allusion to inapt. The Court’s conclusion in that case, that was to be avoided, turned on the peculiarities of the Foreign Sovereign Immunities Act. See at 694– 696. Those peculiarities are absent here, and we thus advert to Land graf, as we ordinarily do. 8 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court tended”); cf. 2B N. Singer, Statutes and Statutory Construc tion p. 244 (6th rev. ed. 2000). But the clues are not that simple. To begin with, the old before-or-after clause was sand wiched between references to departure or deportation under a deportation order and to grounds for deportation set out in a different subsection of the INA. It thus most naturally referred not to the illegal reentry but to the alien’s previous deportation or departure. If its omission from the new subsection (a)(5) is significant, its immediate significance goes to the date of leaving this country, not the date of illegal return. Since the old clause referred to the date of enactment of the INA in 1952, the negative implication argument from dropping the language is that the reinstatement section no longer applies to those who left the country before that date. But, in 1996, application keyed to departures in 1952 or earlier was academic, and the better inference is that the clause was removed for that reason.7 If, moreover, we indulged any suggestion that omitting the clause showed an intent to apply only to deportations or departures after IIRIRA’s effective date, the result would be a very strange one: it would exempt from the new reinstatement provision’s coverage anyone who departed before IIRIRA’s effective date but reentered after it. The point of the statute’s revision, however, was obviously to expand the scope of the reinstatement author ity and invest it with something closer to finality, and it would make no sense to infer that Congress meant to except the broad class of persons who had departed before the time of enactment but who might return illegally at some point in the future. —————— 7 We therefore need not entertain Fernandez-Vargas’s argument that the provision’s drafting history indicates that the language was elimi nated deliberately. Cite as: 548 U. S. (2006) 9 Opinion of the Court Fernandez-Vargas sidesteps this problem (on a very generous reading of his argument) by making a more general suggestion of congressional intent: whatever the event to which the old law was tied, activity before as well as activity after it implicated the reinstatement power. Since the new law is bereft of such clarity, we should apply the “ ‘longstanding principle of construing any lin gering ambiguities in deportation statutes in favor of the alien,’ ” St. 5 U.S., at 20 ), which would effectively impose “[t]he presumption against retroactive application of ambiguous statutory provisions,” St. at 20. If we did so, we would find that operates only to reentries after its effective date. Even at this amorphously general level, however, the argument suffers from two flaws, the first being that it puts the cart before the horse. As Fernandez-Vargas realizes, he urges application of the presumption against retroactivity as a tool for interpreting the statute at the first step. But if that were legitimate, a statute lacking an express provision about temporal reach would never be construed as having a retroactive potential and the final two steps in the enquiry would never occur (that is, asking whether the statute would produce a retroactive effect, and barring any such application by applying the presumption against retroactivity). It is not until a statute is shown to have no firm provision about temporal reach but to produce a retroactive effect when straightforwardly applied that the presumption has its work to do. See 511 U.S., The second flaw is the argument’s failure to account for the new statute’s other provisions on temporal reach, from which one might draw a negative inference that subsec tion (a)(5) was (or at least may well have been) meant to apply to reentries before its effective date. In contrast to their silence about the temporal sweep of the 10 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court 1996 amendments speak directly to the scope of changes in provisions making reentry criminal and setting civil penalties. IIRIRA §24(c), –629, note fol lowing 8 U.S. C. §126 (2000 ed.), provides that the ex panded criminal prohibitions, see §126(a), apply only to reentries or attempts after the effective date, and –556, note following 8 U.S. C. §125, pro vides the same as to civil penalties for illegal reentry, see §125(b). The point here is not that these provisions alone would support an inference of intent to apply the rein statement provision retroactively, see 521 U.S., at 28, n. 4, for we require a clear statement for that, see 527 U.S., at 54. But these provisions do blunt any argument that removal of the before-or-after clause suffices to establish the applicability of only to posteffective date reentries. The fact is that IIRIRA some times expressly made changes prospective as from its effective date and sometimes expressly provided they were applicable to earlier acts; compare §§24(c) and 105(b), with §47(c), –69 (provision governing removal of aliens who have unlawfully voted is applicable “to voting occurring before, on, or after the date of the enactment of this Act”), and §51(c), at 009–640 (provision applicable to “waivers filed before, on, or after the date of the enactment of this Act”). With such a vari ety of treatment, it is just too hard to infer any clear inten tion at any level of generality from the fact of retiring the old before-or-after language from what is now One conclusion can be stated, however. Common prin ciples of statutory interpretation fail to unsettle the ap parent application of to any reentrant present in the country, whatever the date of return.8 —————— 8 JUSTICE STEVENS states that when, in 1952, Congress inserted the before-or-after clause with the old it was responding to the Immigration and Naturalization Service (INS) practice of applying the Cite as: 548 U. S. (2006) 11 Opinion of the Court B This facial reading is confirmed by two features of IIRIRA, not previously discussed, that describe the con duct to which applies, and show that the appli cation suffers from no retroactivity in denying Fernandez- Vargas the opportunity for adjustment of status as the spouse of a citizen of the United States.9 One is in the text of that provision itself, showing that it applies to Fernan dez-Vargas today not because he reentered in 1982 or at any other particular time, but because he chose to remain after the new statute became effective. The second is the provision setting IIRIRA’s effective date, 110 Stat. 009–625, which shows that Fernandez-Vargas had an ample warning of the coming change in the law, but chose —————— reinstatement provision only to deportation orders issued after the provision’s enactment, a practice that necessarily meant INS applied the provision only to postenactment reentries. By correcting the INS’s interpretation only as to deportation orders, JUSTICE STEVENS suggests, Congress did nothing to disturb the practice as to reentries. And when it removed the obsolete before-or-after clause in 1996 without adding alternative language of temporal reach, the argument goes, Congress held fast to its intent in 1950 and 1952 to apply the reinstatement provision only to postenactment reentries. But the INS’s practice circa 1951 of applying the reinstatement provision only to postenactment reentries followed from its policy regarding deportation orders, and in 1952 Congress might just as easily have assumed that the branch would go the way of the root. In any event, it is difficult to accept JUSTICE STEVENS’s view that congressional understanding from 40 years back was intended to govern the IIRIRA reinstatement provision, given Congress’s care to make the revised criminal and civil penalties applicable only to postenactment reentries. 9 We would reach the same conclusion about denial of opportunities to apply for permission for voluntary departure as an alternative to removal, see 8 U.S. C. and about cancellation of removal, see if there were a need to deal with these matters separately. Although Fernandez-Vargas argues that he is being denied the chance to seek these forms of relief, he never applied for either of them and has not formally attempted to claim them in response to the reinstatement and removal proceedings. 12 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court to remain until the old regime expired and took its place. As a preface to identifying the conduct by Fernandez- Vargas to which the reinstatement provision applies (the conduct that results in reinstating the old deportation order without the former opportunities to seek adjustment of status), a look at our holding in St. 5 U.S. 289, is helpful. The alien, St. was a lawful, permanent resident who made a plea agreement and pleaded guilty to an aggravated felony charge. Although the resulting conviction justified his deportation, when he entered his plea the law allowed him to seek a waiver of deportation at the discretion of the Attorney General. Between the plea and deportation proceedings, however, IIRIRA and another statute repealed the provision for that discretion ary relief, converting deportation from a possibility to a certainty. at 25. The question was whether Land graf barred application of the new law eliminating discre tionary relief, on the ground that applying it to a defen dant who pleaded guilty before the enactment of the new law would attach a further burdensome consequence to his plea, amounting to “a new disability, in respect to transac tions or considerations already past,” 5 U.S., at 21 The answer was that converting deportation from a likely possibility to a dead certainty would add such a burden, and application of the new law was accordingly barred. at 25. In making this “commonsense, functional judgment,” at 57, we emphasized that plea agreements “involve a quid pro quo between a criminal defendant and the gov ernment,” St. 5 U.S., at 21, in which a waiver of “constitutional rights (including the right to a trial),” had been exchanged for a “perceived benefit,” at 22, which in practical terms was valued in light of the possible dis cretionary relief, a focus of expectation and reliance, at 2. Cite as: 548 U. S. (2006) 1 Opinion of the Court St. ’s agreement for a quid pro quo and his plea were entirely past, and there was no question of undoing them, but the “transactio[n] or consideratio[n]” on which turns is different.10 While the law looks back to a past act in its application to “an alien [who] has reen tered illegally,” 8 U.S. C. the provision does not penalize an alien for the reentry (criminal and civil penalties do that); it establishes a process to remove him “under the prior order at any time after the reentry.” Thus, it is the conduct of remaining in the country after entry that is the predicate action; the statute applies to stop an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country. It is therefore the alien’s choice to continue his illegal presence, after illegal reentry and after the effective date of the new law, that subjects him to the new and less generous legal regime, not a past act that he is helpless to undo up to the moment the Government finds him out. That in itself is enough to explain that Fernandez- Vargas has no retroactivity claim based on a new disabil —————— 10 We understand Fernandez-Vargas’s claim as falling within the second of Justice Story’s categories of retroactivity (new consequences of past acts), not the first category of canceling vested rights. The forms of relief identified by Fernandez-Vargas as rendered unavailable to him by include cancellation of removal, see 8 U.S. C. adjustment of status, see and voluntary departure, see These putative claims to relief are not “vested rights,” a term that describes something more substantial than inchoate expecta tions and unrealized opportunities. In contrast to “an immediate fixed right of present or future enjoyment,” 67 Fernandez- Vargas’s claim to such relief was contingent, and it was up to him to take some action that would elevate it above the level of hope. It is not that these forms of relief are discretionary, cf. St. 5 U.S., at 25; it is rather that before IIRIRA’s effective date Fernandez-Vargas never availed himself of them or took action that enhanced their significance to him in particular, as St. did in making his quid pro quo agreement, see at 11–12. 14 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court ity consequent to a completed act, but in fact his position is weaker still. For Fernandez-Vargas could not only have chosen to end his continuing violation and his exposure to the less favorable law, he even had an ample warning that the new law could be applied to him and ample opportu nity to avoid that very possibility by leaving the country and ending his violation in the period between enactment of and its effective date. IRRIRA became law on September 0, 1996, but it became effective and enforce able only on “the first day of the first month beginning more than 180 days after” IIRIRA’s enactment, that is, April 1, 1997. –625. Unlawful alien reentrants like Fernandez-Vargas thus had the advantage of a grace period between the unequivocal warning that a tougher removal regime lay ahead and actual imposition of the less opportune terms of the new law. In that stretch of six months, Fernandez-Vargas could have ended his illegal presence and potential expo sure to the coming law by crossing back into Mexico.11 For —————— 11 In a series of letters submitted to the Court after oral argument, the parties dispute the consequences if Fernandez-Vargas had left voluntarily after IIRIRA’s enactment and, specifically, the period of inadmissibility to which Fernandez-Vargas would thereupon have been subject. Because we conclude that does not operate on a completed pre-enactment act, we need not consider the retroactive implications either of the fact of his inadmissibility or of any variance between the period of inadmissibility upon a postenactment voluntary return and that prescribed under the old regime. The period of inad missibility stems from an alien’s illegal reentry within a specified time after a prior removal and is applicable to Fernandez-Vargas because he reentered shortly after his 1981 deportation, but Fernandez-Vargas does not challenge as impermissibly retroactive IIRIRA’s lengthening of that period from 5 to 10 or 20 years, see 8 U.S. C. (1994 ed.); (2000 ed.). In any event, any period of inadmissibility is subject to waiver by the Attorney General, see (1994 ed.); (2000 ed.), and presumably Fernandez-Vargas could plead his serious case for such a waiver (his marriage, his child) in seeking legal reentry Cite as: 548 U. S. (2006) 15 Opinion of the Court that matter, he could have married the mother of his son and applied for adjustment of status during that period, in which case he would at least have had a claim (about which we express no opinion) that proven reliance on the old law should be honored by applying the presumption against retroactivity.12 Fernandez-Vargas did not, however, take advantage of the statutory warning, but augmented his past 15 years of unlawful presence by remaining in the country into the future subject to the new law, whose applicability thus turned not on the completed act of reentry, but on a failure to take timely action that would have avoided application of the new law altogether. To be sure, a choice to avoid the new law before its effective date or to end the continu ing violation thereafter would have come at a high per sonal price, for Fernandez-Vargas would have had to leave a business and a family he had established during his illegal residence. But the branch of retroactivity law that concerns us here is meant to avoid new burdens imposed on completed acts, not all difficult choices occasioned by new law. What Fernandez-Vargas complains of is the application of new law to continuously illegal action within his control both before and after the new law took effect. He claims a right to continue illegal conduct indefinitely under the terms on which it began, an entitlement of legal stasis for those whose lawbreaking is continuous. But “[i]f every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever.” L. Fuller, The Morality of Law 60 (1964) (quoted in 511 U.S., at 269, n. 24).1 —————— to the United States. 12 See 94 F.d, at 890, and n. 11 (distinguishing Fernandez-Vargas’s circumstance from that of aliens who had married, or both married and applied for adjustment of status, before IIRIRA’s effective date). 1 This is the nub of our disagreement with JUSTICE STEVENS. He says 16 FERNANDEZ-VARGAS v. GONZALES Opinion of the Court Because we conclude that has no retroactive effect when applied to aliens like Fernandez-Vargas, we affirm the judgment of the Court of Appeals. It is so ordered. —————— it misses the point to say that Fernandez-Vargas could avoid the new law by returning to Mexico, which he thinks is like saying that a defendant could avoid a retroactive criminal penalty by locking himself up for 10 years, post, at 5, n. 2. JUSTICE STEVENS thus argues that reimposing an order of removal to end illegal residence is like imposing a penalty for a completed act (the defendant’s unspecified act in his analogy). But even on his own analysis, Fernandez-Vargas continued to violate the law by remaining in this country day after day, and JUSTICE STEVENS does not deny that the United States was entitled to bring that continuing violation to an end. He says, however, that Congress should not be understood to provide that if the violation continues into the future it may be ended on terms less favorable than those at the beginning. But this is not the position that retroactivity doctrine imputes to an inexplicit Congress. Fernandez-Vargas may have an equitable argument that the Government should not, for the future, eliminate an opportunity for continuing illegality accompanied by the hopes that long illegal residence and a prospect of marriage gave him in the past. But Congress apparently did not accept such an argument, which could prevail here only if the presumption against retroactivity amounted to a presumption of legal stasis for the benefit of continuous lawbreakers. Cite as: 548 U. S. (2006) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 04–176 HUMBERTO FERNANDEZ-VARGAS, PETITIONER v. ALBERTO R.

Justice Stevens

dissenting

Fernandez-Vargas v. Gonzales

2006-06-22

https://www.courtlistener.com/opinion/145637/fernandez-vargas-v-gonzales/

https://www.courtlistener.com/api/rest/v3/clusters/145637/

2005-074

In 1982, petitioner Humberto Fernandez-Vargas, an alien who had previously been deported, reentered the United States illegally. Over the next 20 years, petitioner remained here. He worked as a truckdriver, owned a trucking business, fathered a child, and eventually mar ried the child’s mother, a United States citizen. The laws in place at the time of petitioner’s entry and for the first 15 years of his residence in this country would have re warded this behavior, allowing him to seek discretionary relief from deportation on the basis of his continued pres ence in and strong ties to the United States. See 8 U.S. C. §1254(a)(1) (1994 ed.). In 1996, however, Congress passed a new version of the applicable provision eliminating almost entirely the possi bility of relief from deportation for aliens who reenter the country illegally having previously been deported. See Illegal Immigration Reform and Immigration Responsibil ity Act (IIRIRA), §305(a)(3), 110 Stat. 3009–599, 8 U.S. C. §1231(a)(5) (2000 ed.); see also ante, at 3, n. 4. The 1996 provision is silent as to whether it was intended to apply retroactively to conduct that predated its enactment.1 —————— 1 The statutory provisions expanding the class of people to whom criminal penalties for illegal reentry might apply, however, explicitly 2 FERNANDEZ-VARGAS v. GONZALES STEVENS, J., dissenting Despite a historical practice supporting petitioner’s read ing, and despite the harsh consequences that attend its application to thousands of individuals who, like peti tioner, entered the country illegally before 1997, the Court not only holds that the statute applies to preenactment reentries but also that it has no retroactive effect. I dis agree with both of these conclusions. I In 1950, when Congress first gave the Attorney General the authority to reinstate an order of deportation, it en acted a reinstatement provision containing no explicit temporal reach.2 See Internal Security Act, §23(d), 64 Stat. 1012, 8 U.S. C. §156(d) (1946 ed., Supp. V). The natural reading of this provision, the one most consistent with the “deeply rooted” traditional presumption against retroactivity, Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994), is that it would apply to deportations that occurred before the provision’s enactment but not to preenactment reentries. While both deportation and reentry can constitute “events completed before [the provi sion’s] enactment,” id., at 270, an alien’s reentry is the act that triggers the provision’s operation and is therefore the act to which the provision attaches legal consequences. When the Immigration and Naturalization Service (INS) promulgated regulations implementing the 1950 statute, however, it did not read the statute so naturally. Instead, the INS’ regulations, embodying an overly strong version —————— apply only to postenactment reentries. See IIRIRA, §324(c), 110 Stat. 3009–629, note following 8 U.S. C. §1326. 2 The provision stated: “Should any alien subject to the provisions of subsection (c) unlawfully return to the United States after having been released for departure or deported pursuant to this section, the previous war-rant of deportation against him shall be considered as reinstated from its original date of issuance.” 64 Stat. 1012, codified as 8 U.S. C. §156(d) (1946 ed., Supp. V). Cite as: 548 U. S. ____ (2006) 3 STEVENS, J., dissenting of the presumption against retroactivity, provided that an order of deportation could only be reinstated if that depor tation occurred after the statute’s enactment date. See 8 CFR §152.5 (1950 Cum. Supp.). Thus, the INS read the reinstatement provision as inapplicable even to reentries that occurred after the statute’s enactment date if the underlying deportation had been entered before that date; it follows a fortiori that the provision was considered inapplicable to reentries that occurred before the statute’s enactment. Congress corrected the INS’ error two years later by adding the clause “whether before or after the date of enactment of this Act.” Immigration and Nationality Act, §242(f), 66 Stat. 212, 8 U.S. C. §1252(f) (1994 ed.); see also ante, at 2, and nn. 2–3. As the Court correctly notes, that amendment “most naturally referred not to the illegal reentry but to the alien’s previous deportation or depar ture.” Ante, at 8. The best interpretation of Congress’ intent with regard to the 1952 statute, then, was that it meant to apply the reinstatement provision to preenact ment deportations but to preserve the status quo with regard to preenactment reentries: In accordance with the traditional presumption against retroactivity, preenact ment reentries would remain uncovered by the reinstate ment provision. In 1996, when Congress enacted the current reinstate ment provision, it drafted a version of the statute that, like its 1950 predecessor, was silent as to its temporal reach. See 8 U.S. C. §1231(a)(5) (2000 ed.). If we assume (as the Court does) that the addition of the “before-or after” clause in the 1952 statute merely clarified Congress’ original intent in 1950 to make the provision applicable to preenactment departures without authorizing any appli cation to preenactment reentries, it is reasonable to at tribute precisely the same intent to the Congress that enacted the 1996 statute: As in the 1950 and 1952 ver 4 FERNANDEZ-VARGAS v. GONZALES STEVENS, J., dissenting sions of the provision, Congress intended the 1996 rein statement provision to apply to preenactment deportations but not to preenactment reentries. In sum, our normal rules of construction support the reasonable presumption that Congress intended the provi sion to cover only postenactment reentries. Accordingly, the 1996 reinstatement provision should not be construed to apply to petitioner’s earlier entry into the United States. II The Court not only fails to give the 1996 Act its most normal interpretation, but also erroneously concludes that the provision does not have any retroactive effect. The Court reaches this conclusion based on its judgment that the provision applies not to conduct that occurred before the statute’s enactment date, but rather to “an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country.” Ante, at 13. This reasoning is unpersuasive. It is true, of course, that the order of deportation en tered against petitioner in 1981 could not be reinstated unless he was present in the United States, and that, until he was arrested in 2003, petitioner could have chosen to leave the United States. But it is precisely petitioner’s “continuing violation” that allowed him to be eligible for relief from deportation in the first place: He was required to have been physically present in the United States for a period of not less than seven years, to have been a person of good moral character during that time, and to have developed ties to the United States such that his deporta tion would result in extreme hardship to himself or to his United States citizen wife or child.3 See 8 U.S. C. —————— 3 Although petitioner became eligible for relief from deportation after being physically present in the United States for seven years, he could not apply for that relief until the Government placed him in deporta Cite as: 548 U. S. ____ (2006) 5 STEVENS, J., dissenting §1254(a)(1) (1994 ed.); see also INS v. Phinpathya, 464 U.S. 183 (1984) (strictly construing physical presence requirement). Moreover, under the pre-1996 version of the reinstatement provision, the longer petitioner re mained in the United States the more likely he was to be granted relief from deportation. See Matter of Ige, 20 I. & N. Dec. 880, 882 (1994) (listing factors considered in evaluating extreme hardship requirement, including alien’s length of residence in United States, family in United States, business or occupation, and position in community). Given these incentives, petitioner legitimately com plains that the Government has changed the rules midgame. At the time of his entry, and for the next 15 years, it inured to petitioner’s benefit for him to remain in the United States continuously, to build a business, and to start a family. After April 1, 1997, the date on which the applicable reinstatement provision became effective, all of these activities were rendered irrelevant in the eyes of the law. Only the Court’s unfortunately formalistic search for a single “past act that [petitioner] is helpless to undo,” ante, at 13, allows it to conclude that the provision at issue has no retroactive effect.4 For regardless of whether his —————— tion proceedings, at which point he could raise his eligibility as an affirmative defense. Cf. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 951–952 (1997) (applying presumption against retroactivity to statute eliminating affirmative defense). 4 Even on its own terms the Court’s logic is troubling. The Court believes that petitioner could have avoided being affected by the 1996 reinstatement provision, not just retroactively but in any way whatso ever, by leaving the country prior to its effective date—a date that occurred six months after the statute’s enactment date not to give aliens “ample warning,” ante, at 11, 13, but instead to allow the Attor ney General to prepare for the substantial changes caused by the IIRIRA and to promulgate regulations to effectuate that Act. See §309, 110 Stat. 3009–625. But had petitioner “take[n] advantage of the statutory warning,” ante, at 15, he would have imposed upon himself 6 FERNANDEZ-VARGAS v. GONZALES STEVENS, J., dissenting 1982 reentry was or was not an act that he could now “undo,” it is certainly an act to which the 1996 reinstate ment provision has attached serious adverse conse quences. Because the provision has an undeniably harsh retroactive effect, “absent a clear indication from Congress that it intended such a result,” INS v. St. Cyr, 533 U.S. 289, 316 (2001), we should apply the presumption against retroactivity and hold that the 1996 reinstatement provi sion does not apply to petitioner. Accordingly, I respectfully dissent. —————— the very same punishment—the guarantee of removal to Mexico—that he hopes to avoid. Just as we would not say that a defendant may avoid the retroactive application of a criminal statute by locking him self up for 10 years, it cannot be that petitioner’s ability to leave the country of his own accord somehow helps to prove that the provision at issue has no retroactive effect

In 1982, petitioner Humberto Fernandez-Vargas, an alien who had previously been deported, reentered the United States illegally. Over the next 20 years, petitioner remained here. He worked as a truckdriver, owned a trucking business, fathered a child, and eventually mar ried the child’s mother, a United States citizen. The laws in place at the time of petitioner’s entry and for the first 15 years of his residence in this country would have re warded this behavior, allowing him to seek discretionary relief from deportation on the basis of his continued pres ence in and strong ties to the United States. See 8 U.S. C. (1994 ed.). In 1996, however, Congress passed a new version of the applicable provision eliminating almost entirely the possi bility of relief from deportation for aliens who reenter the country illegally having previously been deported. See Illegal Immigration Reform and Immigration Responsibil ity Act (IIRIRA), –599, 8 U.S. C. (2000 ed.); see also ante, at 3, n. 4. The 1996 provision is silent as to whether it was intended to apply retroactively to conduct that predated its enactment.1 —————— 1 The statutory provisions expanding the class of people to whom criminal penalties for illegal reentry might apply, however, explicitly 2 FERNANDEZ-VARGAS v. GONZALES STEVENS, J., dissenting Despite a historical practice supporting petitioner’s read ing, and despite the harsh consequences that attend its application to thousands of individuals who, like peti tioner, entered the country illegally before 1997, the Court not only holds that the statute applies to preenactment reentries but also that it has no retroactive effect. I dis agree with both of these conclusions. I In 1950, when Congress first gave the Attorney General the authority to reinstate an order of deportation, it en acted a reinstatement provision containing no explicit temporal reach.2 See Internal Security Act, 64 Stat. 1012, 8 U.S. C. (1946 ed., Supp. V). The natural reading of this provision, the one most consistent with the “deeply rooted” traditional presumption against retroactivity, Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994), is that it would apply to deportations that occurred before the provision’s enactment but not to preenactment reentries. While both deportation and reentry can constitute “events completed before [the provi sion’s] enactment,” an alien’s reentry is the act that triggers the provision’s operation and is therefore the act to which the provision attaches legal consequences. When the Immigration and Naturalization Service (INS) promulgated regulations implementing the 1950 statute, however, it did not read the statute so naturally. Instead, the INS’ regulations, embodying an overly strong version —————— apply only to postenactment reentries. See IIRIRA, 110 Stat. 3009–629, note following 8 U.S. C. 2 The provision stated: “Should any alien subject to the provisions of subsection (c) unlawfully return to the United States after having been released for departure or deported pursuant to this section, the previous war-rant of deportation against him shall be considered as reinstated from its original date of issuance.” codified as 8 U.S. C. (1946 ed., Supp. V). Cite as: 548 U. S. (2006) 3 STEVENS, J., dissenting of the presumption against retroactivity, provided that an order of deportation could only be reinstated if that depor tation occurred after the statute’s enactment date. See 8 CFR (1950 Cum. Supp.). Thus, the INS read the reinstatement provision as inapplicable even to reentries that occurred after the statute’s enactment date if the underlying deportation had been entered before that date; it follows a fortiori that the provision was considered inapplicable to reentries that occurred before the statute’s enactment. Congress corrected the INS’ error two years later by adding the clause “whether before or after the date of enactment of this Act.” Immigration and Nationality Act, 8 U.S. C. (1994 ed.); see also ante, at 2, and nn. 2–3. As the Court correctly notes, that amendment “most naturally referred not to the illegal reentry but to the alien’s previous deportation or depar ture.” Ante, at 8. The best interpretation of Congress’ intent with regard to the 1952 statute, then, was that it meant to apply the reinstatement provision to preenact ment deportations but to preserve the status quo with regard to preenactment reentries: In accordance with the traditional presumption against retroactivity, preenact ment reentries would remain uncovered by the reinstate ment provision. In 1996, when Congress enacted the current reinstate ment provision, it drafted a version of the statute that, like its 1950 predecessor, was silent as to its temporal reach. See 8 U.S. C. (2000 ed.). If we assume (as the Court does) that the addition of the “before-or after” clause in the 1952 statute merely clarified Congress’ original intent in 1950 to make the provision applicable to preenactment departures without authorizing any appli cation to preenactment reentries, it is reasonable to at tribute precisely the same intent to the Congress that enacted the 1996 statute: As in the 1950 and 1952 ver 4 FERNANDEZ-VARGAS v. GONZALES STEVENS, J., dissenting sions of the provision, Congress intended the 1996 rein statement provision to apply to preenactment deportations but not to preenactment reentries. In sum, our normal rules of construction support the reasonable presumption that Congress intended the provi sion to cover only postenactment reentries. Accordingly, the 1996 reinstatement provision should not be construed to apply to petitioner’s earlier entry into the United States. II The Court not only fails to give the 1996 Act its most normal interpretation, but also erroneously concludes that the provision does not have any retroactive effect. The Court reaches this conclusion based on its judgment that the provision applies not to conduct that occurred before the statute’s enactment date, but rather to “an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country.” Ante, at 13. This reasoning is unpersuasive. It is true, of course, that the order of deportation en tered against petitioner in 1981 could not be reinstated unless he was present in the United States, and that, until he was arrested in 2003, petitioner could have chosen to leave the United States. But it is precisely petitioner’s “continuing violation” that allowed him to be eligible for relief from deportation in the first place: He was required to have been physically present in the United States for a period of not less than seven years, to have been a person of good moral character during that time, and to have developed ties to the United States such that his deporta tion would result in extreme hardship to himself or to his United States citizen wife or child.3 See 8 U.S. C. —————— 3 Although petitioner became eligible for relief from deportation after being physically present in the United States for seven years, he could not apply for that relief until the Government placed him in deporta Cite as: 548 U. S. (2006) 5 STEVENS, J., dissenting (1994 ed.); see also INS v. Phinpathya, 464 U.S. 183 (1984) (strictly construing physical presence requirement). Moreover, under the pre-1996 version of the reinstatement provision, the longer petitioner re mained in the United States the more likely he was to be granted relief from deportation. See Matter of Ige, 20 I. & N. Dec. 880, 882 (1994) (listing factors considered in evaluating extreme hardship requirement, including alien’s length of residence in United States, family in United States, business or occupation, and position in community). Given these incentives, petitioner legitimately com plains that the Government has changed the rules midgame. At the time of his entry, and for the next 15 years, it inured to petitioner’s benefit for him to remain in the United States continuously, to build a business, and to start a family. After April 1, 1997, the date on which the applicable reinstatement provision became effective, all of these activities were rendered irrelevant in the eyes of the law. Only the Court’s unfortunately formalistic search for a single “past act that [petitioner] is helpless to undo,” ante, at 13, allows it to conclude that the provision at issue has no retroactive effect.4 For regardless of whether his —————— tion proceedings, at which point he could raise his eligibility as an affirmative defense. Cf. Hughes Aircraft (applying presumption against retroactivity to statute eliminating affirmative defense). 4 Even on its own terms the Court’s logic is troubling. The Court believes that petitioner could have avoided being affected by the 1996 reinstatement provision, not just retroactively but in any way whatso ever, by leaving the country prior to its effective date—a date that occurred six months after the statute’s enactment date not to give aliens “ample warning,” ante, at 11, 13, but instead to allow the Attor ney General to prepare for the substantial changes caused by the IIRIRA and to promulgate regulations to effectuate that Act. See –625. But had petitioner “take[n] advantage of the statutory warning,” ante, at 15, he would have imposed upon himself 6 FERNANDEZ-VARGAS v. GONZALES STEVENS, J., dissenting 1982 reentry was or was not an act that he could now “undo,” it is certainly an act to which the 1996 reinstate ment provision has attached serious adverse conse quences. Because the provision has an undeniably harsh retroactive effect, “absent a clear indication from Congress that it intended such a result,” INS v. St. Cyr, 533 U.S. 289, 316 (2001), we should apply the presumption against retroactivity and hold that the 1996 reinstatement provi sion does not apply to petitioner. Accordingly, I respectfully dissent. —————— the very same punishment—the guarantee of removal to Mexico—that he hopes to avoid. Just as we would not say that a defendant may avoid the retroactive application of a criminal statute by locking him self up for 10 years, it cannot be that petitioner’s ability to leave the country of his own accord somehow helps to prove that the provision at issue has no retroactive effect

Justice Souter

majority

Shalala v. Whitecotton

1995-04-18

https://www.courtlistener.com/opinion/117917/shalala-v-whitecotton/

https://www.courtlistener.com/api/rest/v3/clusters/117917/

1994-041

The question in this case is whether a claimant who shows that she experienced symptoms of an injury after receiving a vaccination makes out a prima facie case for compensation under the National Childhood Vaccine Injury Act of 1986, 100 Stat. 3755, 42 U.S. C. § 300aa-1 et seq. (1988 ed. and Supp. V), where the evidence fails to indicate that she had no symptoms of that injury before the vaccination. We hold that the claimant does not make out a case for compensation. I For injuries and deaths traceable to vaccinations, the Act establishes a scheme of recovery designed to work faster and with greater ease than the civil tort system. H. R. Rep. *270 No. 99-908, pp. 3-7 (1986). Special masters in the Court of Federal Claims hear vaccine-related complaints, 42 U.S. C. § 300aa-12(c) (1988 ed., Supp. V), which they adjudicate informally, § 300aa-12(d)(2), within strict time limits, § 300aa12(d)(3)(A), subject to similarly expeditious review, § 300aa12(e)(2). A claimant alleging that more than $1,000 in damages resulted from a vaccination after the Act's effective date in 1988 must exhaust the Act's procedures and refuse to accept the resulting judgment before filing any de novo civil action in state or federal court. 42 U.S. C. § 300aa11(a) (1988 ed. and Supp. V). The streamlining does not stop with the mechanics of litigation, but goes even to substantive standards of proof. While a claimant may establish prima facie entitlement to compensation by introducing proof of actual causation, § 300aa-11(c)(1)(C)(ii), she can reach the same result by meeting the requirements of what the Act calls the Vaccine Injury Table. The table lists the vaccines covered under the Act, together with particular injuries or conditions associated with each one. 42 U.S. C. § 300aa-14 (1988 ed., Supp. V). A claimant who meets certain other conditions not relevant here makes out a prima facie case by showing that she (or someone for whom she brings a claim) "sustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table in association with [a] vaccine . . . or died from the administration of such vaccine, and the first symptom or manifestation of the onset or of the significant aggravation of any such illness, disability, injury, or condition or the death occurred within the time period after vaccine administration set forth in the Vaccine Injury Table." 42 U.S. C. § 300aa11(c)(1)(C)(i). Thus, the rule of prima facie proof turns the old maxim on its head by providing that if the post hoc event happens fast, ergo propter hoc. The Secretary of Health and Human Services may rebut a prima facie case by proving that the injury or death was in fact caused by "factors unrelated *271 to the administration of the vaccine . . . ." § 300aa13(a)(1)(B). If the Secretary fails to rebut, the claimant is entitled to compensation. 42 U.S. C. § 300aa-13(a)(1) (1988 ed. and Supp. V). Respondents, Margaret Whitecotton and her parents, filed a claim under the Act for injuries Margaret allegedly sustained as a result of vaccination against diphtheria, pertussis, and tetanus (or DPT) on August 18, 1975, when she was nearly four months old. They alleged that Margaret (whom we will refer to as claimant) had suffered encephalopathy after the DPT vaccination, and they relied on the table scheme to make out a prima facie case. The Act defines encephalopathy as "any significant acquired abnormality of, or injury to, or impairment of function of the brain," 42 U.S. C. § 300aa-14(b)(3)(A), and lists the condition on the Vaccine Injury Table in association with the DPT vaccine. Under the Act, a claimant who does not prove actual causation must show that "the first symptom or manifestation of the onset or of the significant aggravation" of encephalopathy occurred within three days of a DPT vaccination in order to make out a prima facie right to compensation. § 300aa11(c)(1)(C)(i); 42 U.S. C. § 300aa-14(a) (1988 ed., Supp. V). The Special Master found that claimant had suffered clonic seizures on the evening after her vaccination and again the following morning, App. to Pet. for Cert. 24a, 27a, and accepted those seizures as symptoms of encephalopathy. He also found, however, that by the time claimant received the vaccination she was "clearly microcephalic" (meaning that she had a head size more than two standard deviations below the mean for a girl her age) and that her microcephaly was a symptom or evidence of encephalopathy that existed before the vaccination. Id., at 32a-33a. Accordingly, the Master concluded that the first symptom or manifestation of the onset of claimant's encephalopathy had occurred before the vaccination and the ensuing 3-day period provided for in the table. Id., at 34a. *272 The Master then considered whether the series of seizures was "the first symptom or manifestation . . . of [a] significant aggravation" of the claimant's encephalopathy, 42 U.S. C. § 300aa-11(c)(1)(C)(i), and again decided that it was not. The Act defines "significant aggravation" as "any change for the worse in a preexisting condition which results in markedly greater disability, pain, or illness accompanied by substantial deterioration of health." § 300aa-33(4). The Master found that "[t]here is nothing to distinguish this case from what would reasonably have been expected considering [claimant's] microcephaly. . . . [T]here was nothing that occurred in temporal relationship to the DPT vaccination which indicates that it is more likely than not that the vaccine permanently aggravated her condition. . . . [T]he seizures did not continue and there was no dramatic turn for the worse in her condition . . . . Thus, there is no basis for implicating the vaccine as the cause of any aspect of [claimant's] present condition." App. to Pet. for Cert. 41a-43a. Because he found that claimant had failed to satisfy the table requirements, and had not tried to prove actual causation, the Master denied her compensation for failure to make out a prima facie case. The Court of Federal Claims found the Master's decision neither arbitrary nor otherwise unlawful, see 42 U.S. C. § 300aa-12(e)(2) (1988 ed., Supp. V), and affirmed. The Court of Appeals for the Federal Circuit then reversed, holding that a claimant satisfies the table requirements for the "first symptom or manifestation of the onset" of an injury whenever she shows that any symptom or manifestation of a listed condition occurred within the time period after vaccination specified in the table, even if there was evidence of the condition before the vaccination. Because claimant here showed symptoms of encephalopathy during the 3-day period after her DPT vaccination, the Court of Appeals concluded for that reason alone that she had made out a prima facie entitlement to recovery. 17 F.3d 374, 376-377 (1994). *273 The Court of Appeals went on to say that the Secretary had failed to rebut this prima facie case because she had not shown that claimant's encephalopathy was caused by "factors unrelated to the administration of the vaccine," 42 U.S. C. § 300aa-13(a)(1)(B). The Court of Appeals relied on the provision that a "facto[r] unrelated" cannot include an "idiopathic" condition, § 300aa-13(a)(2)(A), which the court read to mean that even when the Secretary can point to a specific factor, unrelated to the vaccine, as the source of a claimant's injury, she does not defeat a prima facie case when the cause of the identified factor is itself unknown. Taking the Secretary to have relied on claimant's microcephaly as the unrelated factor (or as associated with it), the court ruled the Secretary's evidence insufficient on the ground that the cause of microcephaly is unknown. 17 F.3d, at 377-378.[*] We granted certiorari to address the Court of Appeals's construction of the Act's requirements for making and rebutting a prima facie case. 513 U.S. 959 (1994). Because we hold that the court erroneously construed the provisions defining a prima facie case under the Act, we reverse without reaching the adequacy of the Secretary's rebuttal. II The Court of Appeals declared that nowhere does the Act "expressly state" that a claimant relying on the table to establish a prima facie case for compensation must show "that the child sustained no injury prior to administration of the vaccine," that is, that the first symptom of the injury *274 occurred after vaccination. 17 F.3d, at 376. This statement simply does not square with the plain language of the statute. In laying out the elements of a prima facie case, the Act provides that a claimant relying on the table (and not alleging significant aggravation) must show that "the first symptom or manifestation of the onset . . . of [her table illness] . . . occurred within the time period after vaccine administration set forth in the Vaccine Injury Table." § 300aa-11(c)(1)(C)(i). If a symptom or manifestation of a table injury has occurred before a claimant's vaccination, a symptom or manifestation after the vaccination cannot be the first, or signal the injury's onset. There cannot be two first symptoms or on sets of the same injury. Thus, a demonstration that the claimant experienced symptoms of an injury during the table period, while necessary, is insufficient to make out a prima facie case. The claimant must also show that no evidence of the injury appeared before the vaccination. In coming to the contrary conclusion, the Court of Appeals relied on language in the table, which contains the heading, "Time period for first symptom or manifestation of onset. . . after vaccine administration." 42 U.S. C. § 300aa-14(a) (1988 ed., Supp. V). The Court of Appeals saw a "significant" distinction, 17 F.3d, at 376, between this language and that of 42 U.S. C. § 300aa-11(c)(1)(C)(i), which is set forth above. We do not. The key to understanding the heading is the word "onset." Since the symptom or manifestation occurring after the vaccination must be evidence of the table injury's onset, an injury manifested before the vaccination could qualify only on the theory that it could have two onsets, one before the vaccination, one after it. But it cannot: one injury, one onset. Indeed, even if the language of the heading did conflict with the text of § 300aa-11(c)(1)(C)(i), the latter would prevail, since the table heading was obviously meant to be a short form of the text preceding it. *275 The Court of Appeals sought to shore up the contrary conclusion with two further arguments. As the court read the Act, Congress "expressly made the absence of preexisting injury an element of the prima facie case" for residual seizure disorder (another table injury), 17 F.3d, at 376; thus, the court reasoned, Congress had implicitly rejected any need to negate the pre-existence of other injuries like encephalopathy. This argument rests on a misreading of the language in question. The statutory notes explaining the table provide that a claimant "may be considered to have suffered a residual seizure disorder if [she] did not suffer a seizure or convulsion unaccompanied by fever or accompanied by a fever of less than 102 degrees Fahrenheit before the first seizure or convulsion after the administration of the vaccine involved . . . ." § 300aa-14(b)(2). But this is not the language that requires a claimant alleging a seizure disorder to demonstrate the absence of pre-existing symptoms. This provision specifies instead that certain types of seizures (those accompanied by a high fever) may not be considered symptoms of residual seizure disorder, and, so, do not preclude a prima facie case even when a claimant suffered them before vaccination. The language carries no implication about a claimant's burden generally and does nothing to undermine Congress's global provision that a claimant who has actually suffered symptoms of a listed injury before vaccination cannot make out a prima facie case of the injury's onset after vaccination. Finally, we cannot accept the Court of Appeals's argument that because the causal "factors unrelated" on which the Secretary may rely to defeat a prima facie case can include occurrences before vaccination, see § 300aa-13(a)(2)(B), such occurrences cannot bar the establishment of a prima facie case in the first instance. The "factors unrelated" provision is wholly independent of the first-symptom and onset provisions, serving the distinct purpose of allowing the Secretary to defeat a claim even when an injury has not manifested *276 itself before vaccination. It does not relieve a claimant of the clear statutory requirements for making out a prima facie case. III The judgment of the Court of Appeals for the Federal Circuit is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

The question in this case is whether a claimant who shows that she experienced symptoms of an injury after receiving a vaccination makes out a prima facie case for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S. C. 300aa-1 et seq. (1988 ed. and Supp. V), where the evidence fails to indicate that she had no symptoms of that injury before the vaccination. We hold that the claimant does not make out a case for compensation. I For injuries and deaths traceable to vaccinations, the Act establishes a scheme of recovery designed to work faster and with greater ease than the civil tort system. H. R. Rep. *270 No. 99-908, pp. 3-7 (1986). Special masters in the Court of Federal Claims hear vaccine-related complaints, 42 U.S. C. 300aa-12(c) (1988 ed., Supp. V), which they adjudicate informally, 300aa-12(d)(2), within strict time limits, 300aa12(d)(3)(A), subject to similarly expeditious review, 300aa12(e)(2). A claimant alleging that more than $1,000 in damages resulted from a vaccination after the Act's effective date in 1988 must exhaust the Act's procedures and refuse to accept the resulting judgment before filing any de novo civil action in state or federal court. 42 U.S. C. 300aa11(a) (1988 ed. and Supp. V). The streamlining does not stop with the mechanics of litigation, but goes even to substantive standards of proof. While a claimant may establish prima facie entitlement to compensation by introducing proof of actual causation, 300aa-11(c)(1)(C)(ii), she can reach the same result by meeting the requirements of what the Act calls the Vaccine Injury Table. The table lists the vaccines covered under the Act, together with particular injuries or conditions associated with each one. 42 U.S. C. 300aa-14 (1988 ed., Supp. V). A claimant who meets certain other conditions not relevant here makes out a prima facie case by showing that she (or someone for whom she brings a claim) "sustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table in association with [a] vaccine or died from the administration of such vaccine, and the first symptom or manifestation of the onset or of the significant aggravation of any such illness, disability, injury, or condition or the death occurred within the time period after vaccine administration set forth in the Vaccine Injury Table." 42 U.S. C. 300aa11(c)(1)(C)(i). Thus, the rule of prima facie proof turns the old maxim on its head by providing that if the post hoc event happens fast, ergo propter hoc. The Secretary of Health and Human Services may rebut a prima facie case by proving that the injury or death was in fact caused by "factors unrelated *271 to the administration of the vaccine" 300aa13(a)(1)(B). If the Secretary fails to rebut, the claimant is entitled to compensation. 42 U.S. C. 300aa-13(a)(1) (1988 ed. and Supp. V). Respondents, Margaret Whitecotton and her parents, filed a claim under the Act for injuries Margaret allegedly sustained as a result of vaccination against diphtheria, pertussis, and tetanus (or DPT) on August 18, 1975, when she was nearly four months old. They alleged that Margaret (whom we will refer to as claimant) had suffered encephalopathy after the DPT vaccination, and they relied on the table scheme to make out a prima facie case. The Act defines encephalopathy as "any significant acquired abnormality of, or injury to, or impairment of function of the brain," 42 U.S. C. 300aa-14(b)(3)(A), and lists the condition on the Vaccine Injury Table in association with the DPT vaccine. Under the Act, a claimant who does not prove actual causation must show that "the first symptom or manifestation of the onset or of the significant aggravation" of encephalopathy occurred within three days of a DPT vaccination in order to make out a prima facie right to compensation. 300aa11(c)(1)(C)(i); 42 U.S. C. 300aa-14(a) (1988 ed., Supp. V). The Special Master found that claimant had suffered clonic seizures on the evening after her vaccination and again the following morning, App. to Pet. for Cert. 24a, 27a, and accepted those seizures as symptoms of encephalopathy. He also found, however, that by the time claimant received the vaccination she was "clearly microcephalic" (meaning that she had a head size more than two standard deviations below the mean for a girl her age) and that her microcephaly was a symptom or evidence of encephalopathy that existed before the vaccination. at 32a-33a. Accordingly, the Master concluded that the first symptom or manifestation of the onset of claimant's encephalopathy had occurred before the vaccination and the ensuing 3-day period provided for in the table. at 34a. *272 The Master then considered whether the series of seizures was "the first symptom or manifestation of [a] significant aggravation" of the claimant's encephalopathy, 42 U.S. C. 300aa-11(c)(1)(C)(i), and again decided that it was not. The Act defines "significant aggravation" as "any change for the worse in a preexisting condition which results in markedly greater disability, pain, or illness accompanied by substantial deterioration of health." 300aa-33(4). The Master found that "[t]here is nothing to distinguish this case from what would reasonably have been expected considering [claimant's] microcephaly. [T]here was nothing that occurred in temporal relationship to the DPT vaccination which indicates that it is more likely than not that the vaccine permanently aggravated her condition. [T]he seizures did not continue and there was no dramatic turn for the worse in her condition Thus, there is no basis for implicating the vaccine as the cause of any aspect of [claimant's] present condition." App. to Pet. for Cert. 41a-43a. Because he found that claimant had failed to satisfy the table requirements, and had not tried to prove actual causation, the Master denied her compensation for failure to make out a prima facie case. The Court of Federal Claims found the Master's decision neither arbitrary nor otherwise unlawful, see 42 U.S. C. 300aa-12(e)(2) (1988 ed., Supp. V), and affirmed. The Court of Appeals for the Federal Circuit then reversed, holding that a claimant satisfies the table requirements for the "first symptom or manifestation of the onset" of an injury whenever she shows that any symptom or manifestation of a listed condition occurred within the time period after vaccination specified in the table, even if there was evidence of the condition before the vaccination. Because claimant here showed symptoms of encephalopathy during the 3-day period after her DPT vaccination, the Court of Appeals concluded for that reason alone that she had made out a prima facie entitlement to recovery. *273 The Court of Appeals went on to say that the Secretary had failed to rebut this prima facie case because she had not shown that claimant's encephalopathy was caused by "factors unrelated to the administration of the vaccine," 42 U.S. C. 300aa-13(a)(1)(B). The Court of Appeals relied on the provision that a "facto[r] unrelated" cannot include an "idiopathic" condition, 300aa-13(a)(2)(A), which the court read to mean that even when the Secretary can point to a specific factor, unrelated to the vaccine, as the source of a claimant's injury, she does not defeat a prima facie case when the cause of the identified factor is itself unknown. Taking the Secretary to have relied on claimant's microcephaly as the unrelated factor (or as associated with it), the court ruled the Secretary's evidence insufficient on the ground that the cause of microcephaly is unknown. -378.[*] We granted certiorari to address the Court of Appeals's construction of the Act's requirements for making and rebutting a prima facie case. Because we hold that the court erroneously construed the provisions defining a prima facie case under the Act, we reverse without reaching the adequacy of the Secretary's rebuttal. II The Court of Appeals declared that nowhere does the Act "expressly state" that a claimant relying on the table to establish a prima facie case for compensation must show "that the child sustained no injury prior to administration of the vaccine," that is, that the first symptom of the injury *274 occurred after vaccination. This statement simply does not square with the plain language of the statute. In laying out the elements of a prima facie case, the Act provides that a claimant relying on the table (and not alleging significant aggravation) must show that "the first symptom or manifestation of the onset of [her table illness] occurred within the time period after vaccine administration set forth in the Vaccine Injury Table." 300aa-11(c)(1)(C)(i). If a symptom or manifestation of a table injury has occurred before a claimant's vaccination, a symptom or manifestation after the vaccination cannot be the first, or signal the injury's onset. There cannot be two first symptoms or on sets of the same injury. Thus, a demonstration that the claimant experienced symptoms of an injury during the table period, while necessary, is insufficient to make out a prima facie case. The claimant must also show that no evidence of the injury appeared before the vaccination. In coming to the contrary conclusion, the Court of Appeals relied on language in the table, which contains the heading, "Time period for first symptom or manifestation of onset. after vaccine administration." 42 U.S. C. 300aa-14(a) (1988 ed., Supp. V). The Court of Appeals saw a "significant" between this language and that of 42 U.S. C. 300aa-11(c)(1)(C)(i), which is set forth above. We do not. The key to understanding the heading is the word "onset." Since the symptom or manifestation occurring after the vaccination must be evidence of the table injury's onset, an injury manifested before the vaccination could qualify only on the theory that it could have two onsets, one before the vaccination, one after it. But it cannot: one injury, one onset. Indeed, even if the language of the heading did conflict with the text of 300aa-11(c)(1)(C)(i), the latter would prevail, since the table heading was obviously meant to be a short form of the text preceding it. *275 The Court of Appeals sought to shore up the contrary conclusion with two further arguments. As the court read the Act, Congress "expressly made the absence of preexisting injury an element of the prima facie case" for residual seizure disorder (another table injury), ; thus, the court reasoned, Congress had implicitly rejected any need to negate the pre-existence of other injuries like encephalopathy. This argument rests on a misreading of the language in question. The statutory notes explaining the table provide that a claimant "may be considered to have suffered a residual seizure disorder if [she] did not suffer a seizure or convulsion unaccompanied by fever or accompanied by a fever of less than 102 degrees Fahrenheit before the first seizure or convulsion after the administration of the vaccine involved" 300aa-14(b)(2). But this is not the language that requires a claimant alleging a seizure disorder to demonstrate the absence of pre-existing symptoms. This provision specifies instead that certain types of seizures (those accompanied by a high fever) may not be considered symptoms of residual seizure disorder, and, so, do not preclude a prima facie case even when a claimant suffered them before vaccination. The language carries no implication about a claimant's burden generally and does nothing to undermine Congress's global provision that a claimant who has actually suffered symptoms of a listed injury before vaccination cannot make out a prima facie case of the injury's onset after vaccination. Finally, we cannot accept the Court of Appeals's argument that because the causal "factors unrelated" on which the Secretary may rely to defeat a prima facie case can include occurrences before vaccination, see 300aa-13(a)(2)(B), such occurrences cannot bar the establishment of a prima facie case in the first instance. The "factors unrelated" provision is wholly independent of the first-symptom and onset provisions, serving the distinct purpose of allowing the Secretary to defeat a claim even when an injury has not manifested *276 itself before vaccination. It does not relieve a claimant of the clear statutory requirements for making out a prima facie case. III The judgment of the Court of Appeals for the Federal Circuit is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice O'Connor

concurring

Shalala v. Whitecotton

1995-04-18

https://www.courtlistener.com/opinion/117917/shalala-v-whitecotton/

https://www.courtlistener.com/api/rest/v3/clusters/117917/

1994-041

Margaret Whitecotton was born in 1975 with a condition known as microcephaly, defined commonly (but not universally) as a head size smaller than two standard deviations below the norm. At the age of four months, she received a diphtheria, pertussis, and tetanus (DPT) vaccination. Prior to receiving her vaccine, Margaret had never had a seizure. The day after receiving her vaccine, she suffered a series of seizures that required three days of hospitalization. Over the next five years, Margaret had intermittent seizures. She now has cerebral palsy and hip and joint problems and cannot communicate verbally. In 1990, Margaret's parents applied for compensation for her injuries under the National Childhood Vaccine Injury Act of 1986. The Special Master denied compensation, and the Court of Federal Claims agreed. The Court of Appeals for the Federal Circuit reversed, 17 F.3d 374 (1994), finding that the Whitecottons had made out a prima facie case for compensation. Although I join the Court's opinion rejecting the Court of Appeals' reading of the pertinent statutory provision, I write separately to make two points. First, I wish to indicate an additional factor supporting my conclusion that the Court of Appeals' reading of 42 U.S. C. § 300aa-11(c)(1)(C)(i) is inconsistent with congressional intent. Second, I wish to underscore the limited nature of the question the Court decides. *277 Examining the language of § 300aa-11(c)(1)(C)(i), the Court properly rejects the Court of Appeals' determination that a claimant may make out a prima facie "onset" case simply by proving that she experienced a symptom of a "table illness" within the specified period after receiving a vaccination. Ante, at 273-274. To establish a table case, the statute requires that a claimant prove by a preponderance of the evidence either (1) that she suffered the first symptom or manifestation of the onset of a table condition within the period specified in the table or (2) that she suffered the first symptom or manifestation of a significant aggravation of a pre-existing condition within the same period. As the Court rightly concludes, proof that the claimant suffered a symptom within the period is necessary but not sufficient to satisfy either burden; the word "first" is significant and requires that the claimant demonstrate that the postvaccine symptom, whether of onset or of significant aggravation, was in fact the very first such manifestation. The Court relies on a commonsense consideration of the words "first" and "onset" in reaching this conclusion: "If a symptom or manifestation of a table injury has occurred before a claimant's vaccination, a symptom or manifestation after the vaccination cannot be the first, or signal the injury's onset." Ante, at 274. I find equally persuasive the observation that the Court of Appeals' reading deprives the "significant aggravation" language in the provision of all meaningful effect. The term "significant aggravation" is defined in the statute to mean "any change for the worse in a preexisting condition which results in markedly greater disability, pain, or illness accompanied by substantial deterioration of health." 42 U.S. C. § 300aa-33(4). If,as the Court of Appeals determined, a claimant makes out an "onset" case any time she can demonstrate that any symptom occurred within the relevant period, all cases in which children experience postvaccine symptoms within the table period become "onset" cases. The phrase "significant aggravation," *278 and any limitations Congress sought to impose by including language like "markedly greater disability" and "substantial deterioration of health," are altogether lost. To the extent possible, we adhere to "the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative." Department of Revenue of Ore. v. ACF Industries, Inc., 510 U.S. 332, 340 (1994) (internal quotation marks omitted); Pennsylvania Dept. of Public Welfare v.Davenport, 495 U.S. 552, 562 (1990). The construction adopted by the Court of Appeals contravenes this principle. Our reading gives effect to the "onset" and the "significant aggravation" language while according "first" its commonsense meaning. Today's decision is quite limited. The Court of Appeals had no occasion to address the Whitecottons' challenges to the Special Master's factual findings with respect to their daughter's condition. We assume, arguendo, the soundness of his conclusions that Margaret Whitecotton suffered a preexisting encephalopathy that was manifested by her prevaccine microcephaly. But this may not be the case, and the Whitecottons of course may challenge these findings as clearly erroneous on remand. The Court of Appeals also did not address the Whitecottons' argument, rejected by the Special Master, that their daughter suffered a significant aggravation of whatever pre-existing condition she may have had as a result of the vaccine. This factual challenge appears to be open as well, as does a challenge to the legal standard used by the Special Master to define "significant aggravation." We also do not pass on the Secretary's argument that the Court of Appeals misstated petitioner's burden under 42 U.S. C. § 300aa-13(a)(1)(B) (1988 ed. and Supp. V) in rebutting a claimant's prima facie case. Given our holding with respect to the claimant's burden, it is speculative at this time whether any effort on our part to evaluate the Court of Appeals' approach to the "facto[r] unrelated" standard will find *279 concrete application in this case. That said, the approach taken by the Court of Appeals, under which the Secretary may not point to an underlying condition that predated use of a vaccine and obviously caused a claimant's ill health, if the cause of that underlying condition is unknown, may well warrant our attention in the future.

Margaret Whitecotton was born in 1975 with a condition known as microcephaly, defined commonly (but not universally) as a head size smaller than two standard deviations below the norm. At the age of four months, she received a diphtheria, pertussis, and tetanus (DPT) vaccination. Prior to receiving her vaccine, Margaret had never had a seizure. The day after receiving her vaccine, she suffered a series of seizures that required three days of hospitalization. Over the next five years, Margaret had intermittent seizures. She now has cerebral palsy and hip and joint problems and cannot communicate verbally. In 1990, Margaret's parents applied for compensation for her injuries under the National Childhood Vaccine Injury Act of 1986. The Special Master denied compensation, and the Court of Federal Claims agreed. The Court of Appeals for the Federal Circuit reversed, finding that the Whitecottons had made out a prima facie case for compensation. Although I join the Court's opinion rejecting the Court of Appeals' reading of the pertinent statutory provision, I write separately to make two points. First, I wish to indicate an additional factor supporting my conclusion that the Court of Appeals' reading of 42 U.S. C. 300aa-11(c)(1)(C)(i) is inconsistent with congressional intent. Second, I wish to underscore the limited nature of the question the Court decides. *277 Examining the language of 300aa-11(c)(1)(C)(i), the Court properly rejects the Court of Appeals' determination that a claimant may make out a prima facie "onset" case simply by proving that she experienced a symptom of a "table illness" within the specified period after receiving a vaccination. Ante, at 273-274. To establish a table case, the statute requires that a claimant prove by a preponderance of the evidence either (1) that she suffered the first symptom or manifestation of the onset of a table condition within the period specified in the table or (2) that she suffered the first symptom or manifestation of a significant aggravation of a pre-existing condition within the same period. As the Court rightly concludes, proof that the claimant suffered a symptom within the period is necessary but not sufficient to satisfy either burden; the word "first" is significant and requires that the claimant demonstrate that the postvaccine symptom, whether of onset or of significant aggravation, was in fact the very first such manifestation. The Court relies on a commonsense consideration of the words "first" and "onset" in reaching this conclusion: "If a symptom or manifestation of a table injury has occurred before a claimant's vaccination, a symptom or manifestation after the vaccination cannot be the first, or signal the injury's onset." Ante, at 274. I find equally persuasive the observation that the Court of Appeals' reading deprives the "significant aggravation" language in the provision of all meaningful effect. The term "significant aggravation" is defined in the statute to mean "any change for the worse in a preexisting condition which results in markedly greater disability, pain, or illness accompanied by substantial deterioration of health." 42 U.S. C. 300aa-33(4). If,as the Court of Appeals determined, a claimant makes out an "onset" case any time she can demonstrate that any symptom occurred within the relevant period, all cases in which children experience postvaccine symptoms within the table period become "onset" cases. The phrase "significant aggravation," *278 and any limitations Congress sought to impose by including language like "markedly greater disability" and "substantial deterioration of health," are altogether lost. To the extent possible, we adhere to "the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative." Department of Revenue of ; Pennsylvania Dept. of Public Welfare v.Davenport, The construction adopted by the Court of Appeals contravenes this principle. Our reading gives effect to the "onset" and the "significant aggravation" language while according "first" its commonsense meaning. Today's decision is quite limited. The Court of Appeals had no occasion to address the Whitecottons' challenges to the Special Master's factual findings with respect to their daughter's condition. We assume, arguendo, the soundness of his conclusions that Margaret Whitecotton suffered a preexisting encephalopathy that was manifested by her prevaccine microcephaly. But this may not be the case, and the Whitecottons of course may challenge these findings as clearly erroneous on remand. The Court of Appeals also did not address the Whitecottons' argument, rejected by the Special Master, that their daughter suffered a significant aggravation of whatever pre-existing condition she may have had as a result of the vaccine. This factual challenge appears to be open as well, as does a challenge to the legal standard used by the Special Master to define "significant aggravation." We also do not pass on the Secretary's argument that the Court of Appeals misstated petitioner's burden under 42 U.S. C. 300aa-13(a)(1)(B) (1988 ed. and Supp. V) in rebutting a claimant's prima facie case. Given our holding with respect to the claimant's burden, it is speculative at this time whether any effort on our part to evaluate the Court of Appeals' approach to the "facto[r] unrelated" standard will find *279 concrete application in this case. That said, the approach taken by the Court of Appeals, under which the Secretary may not point to an underlying condition that predated use of a vaccine and obviously caused a claimant's ill health, if the cause of that underlying condition is unknown, may well warrant our attention in the future.

Justice Souter

majority

Lopez v. Gonzales

2006-12-05

https://www.courtlistener.com/opinion/145772/lopez-v-gonzales/

https://www.courtlistener.com/api/rest/v3/clusters/145772/

2006-003

The question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a "felony punishable under the Controlled Substances Act." 18 U.S.C. § 924(c)(2). We hold it is not. I A The Immigration and Nationality Act (INA) defines the term "aggravated felony" *628 by a list that mentions "illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in section 924(c) of title 18)." § 101(a)(43)(B), as added by § 7342, 102 Stat. 4469, and as amended by § 222(a), 108 Stat. 4320, 8 U.S.C. § 1101(a)(43)(B). The general phrase "illicit trafficking" is left undefined, but § 924(c)(2) of Title 18 identifies the subcategory by defining "drug trafficking crime" as "any felony punishable under the Controlled Substances Act" or under either of two other federal statutes having no bearing on this case. Following the listing, § 101(a)(43) of the INA provides in its penultimate sentence that "[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law" or, in certain circumstances, "the law of a foreign country." 8 U.S.C. § 1101(a)(43). An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple. Under the immigration statutes, for example, the Attorney General's discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. § 1229b(a)(3). Nor is an aggravated felon eligible for asylum. §§ 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). And under the sentencing law, the Federal Guidelines attach special significance to the "aggravated felony" designation: a conviction of unlawfully entering or remaining in the United States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for "any other felony." United States Sentencing Commission, Guidelines Manual § 2L1.2 (Nov.2005) (hereinafter USSG); id., comment., n. 3 (adopting INA definition of aggravated felony). B Although petitioner Jose Antonio Lopez entered the United States illegally in 1986, in 1990 he became a legal permanent resident. In 1997, he was arrested on state charges in South Dakota, pleaded guilty to aiding and abetting another person's possession of cocaine, and was sentenced to five years' imprisonment. See S.D. Codified Laws § 22-2-5 (1988); § 22-6-1 (Supp.1997); § 22-3-3 (1988). He was released for good conduct after 15 months. After his release, the Immigration and Naturalization Service (INS)[1] began removal proceedings against Lopez, on two grounds: that his state conviction was a controlled substance violation, see 8 U.S.C. § 1227(a)(2)(B)(i), and was also for an aggravated felony, see § 1227(a)(2)(A)(iii). Lopez conceded the controlled substance violation but contested the aggravated felony determination, which would disqualify him from discretionary cancellation of removal. See § 1229b(a)(3). At first, the Immigration Judge agreed with Lopez that his state offense was not an aggravated felony because the conduct it proscribed was no felony under the Controlled Substances Act (CSA). But after the Board of Immigration Appeals (BIA) switched its position on the issue, the same judge ruled that Lopez's drug crime was an aggravated felony after all, owing to its being a felony under state law. See Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 2002 WL 993589 (2002) (announcing that BIA decisions would conform to the applicable Circuit law); United States v. Briones-Mata, 116 F.3d 308 (C.A.8 1997) (per curiam) (holding state felony possession offenses are aggravated felonies). That left Lopez ineligible for cancellation of removal, and the judge ordered him *629 removed. The BIA affirmed, and the Court of Appeals affirmed the BIA, 417 F.3d 934 (C.A.8 2005).[2] We granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA.[3] 547 U.S. 1054, 126 S. Ct. 1651, 164 L. Ed. 2d 395 (2006). We now reverse. II The INA makes Lopez guilty of an aggravated felony if he has been convicted of "illicit trafficking in a controlled substance ... including," but not limited to, "a drug trafficking crime (as defined in section 924(c) of title 18)." 8 U.S.C. § 1101(a)(43)(B). Lopez's state conviction was for helping someone else possess cocaine in South Dakota, which state law treated as the equivalent of possessing the drug, S.D. Codified Laws § 22-3-3, a state felony, § 22-42-5. Mere possession is not, however, a felony under the federal CSA, see 21 U.S.C. § 844(a), although possessing more than what one person would have for himself will support conviction for the federal felony of possession with intent to distribute, see § 841 (2000 ed. and Supp. III); United States v. Kates, 174 F.3d 580, 582 (C.A.5 1999) (per curiam) ("Intent to distribute may be inferred from the possession of a quantity of drugs too large to be used by the defendant alone"). Despite this federal misdemeanor treatment, the Government argues that possession's felonious character as a state crime can turn it into an aggravated felony under the INA. There, it says, illicit trafficking includes a drug trafficking crime as defined in federal Title 18. Title 18 defines "drug trafficking crime" as "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)," § 924(c)(2), and the CSA punishes possession, albeit as a misdemeanor, see 21 U.S.C. § 844(a). That is enough, says the Government, because § 924(c)(2) requires only that the offense be punishable, not that it be punishable as a federal felony. Hence, a prior conviction in state court will satisfy the felony element because the State treats possession that way. There are a few things wrong with this argument, the first being its incoherence with any commonsense conception of "illicit trafficking," the term ultimately being *630 defined. The everyday understanding of "trafficking" should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant. FDIC v. Meyer, 510 U.S. 471, 476, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994). And ordinarily "trafficking" means some sort of commercial dealing. See Black's Law Dictionary 1534 (8th ed.2004) (defining to "traffic" as to "trade or deal in (goods, esp. illicit drugs or other contraband)"); see also Urena-Ramirez v. Ashcroft, 341 F.3d 51, 57 (C.A.1 2003) (similar definition); State v. Ezell, 321 S.C. 421, 425, 468 S.E.2d 679, 681 (App.1996) (same). Commerce, however, was no part of Lopez's South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government's reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and nontrafficking offenses as misdemeanors, several States deviate significantly from this pattern.[4] Reading § 924(c) the Government's way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government's position. Cf. Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S. Ct. 377, 160 L. Ed. 2d 271 (2004) ("[W]e cannot forget that we ultimately are determining the meaning of the term `crime of violence'"). Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean "`just what [he chose] it to mean—neither more nor less,'"[5] and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.[6] First, an offense that necessarily counts as "illicit trafficking" under the INA is a "drug trafficking crime" under § 924(c), that is, a "felony punishable under the [CSA]," § 924(c)(2). And if we want to know what felonies might qualify, the place to go is to the definitions of crimes punishable as felonies under the CSA; where else would one naturally look? Although the Government would have us look to *631 state law, we suspect that if Congress had meant us to do that it would have found a much less misleading way to make its point. Indeed, other parts of § 924 expressly refer to guilt under state law, see §§ 924(g)(3), (k)(2), and the implication confirms that the reference solely to a "felony punishable under the [CSA]" in § 924(c)(2) is to a crime punishable as a felony under the federal Act. See Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983) ("[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" (alteration in original; internal quotation marks omitted)). Unless a state offense is punishable as a federal felony it does not count. The Government stresses that the text does not read "punishable as a felony," and that by saying simply "punishable" Congress left the door open to counting state felonies, so long as they would be punishable at all under the CSA. But we do not normally speak or write the Government's way. We do not use a phrase like "felony punishable under the [CSA]" when we mean to signal or allow a break between the noun "felony" and the contiguous modifier "punishable under the [CSA]," let alone a break that would let us read the phrase as if it said "felony punishable under the CSA whether or not as a felony." Regular usage points in the other direction, and when we read "felony punishable under the ... Act," we instinctively understand "felony punishable as such under the Act" or "felony as defined by the Act."[7] Without some further explanation, using the phrase to cover even a misdemeanor punishable under the Act would be so much trickery, violating "the cardinal rule that statutory language must be read in context." General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 596, 124 S. Ct. 1236, 157 L. Ed. 2d 1094 (2004) (internal quotation marks and brackets omitted). That is why our interpretive regime reads whole sections of a statute together to fix on the meaning of any one of them, and the last thing this approach would do is divorce a noun from the modifier next to it without some extraordinary reason. The Government thinks it has a good enough reason for doing just that, in the INA provision already mentioned, that the term "aggravated felony" "applies to an offense described in this paragraph whether in violation of Federal or State law." 8 U.S.C. § 1101(a)(43). But before this provision is given the Government's expansive treatment, it makes sense to ask whether it would have some use short of wrenching the expectations raised by normal English usage, and in fact it has two perfectly straightforward jobs to do: it provides that a generic description of "an offense... in this paragraph," one not specifically couched as a state offense or a federal one, covers either one, and it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony. Thus, if Lopez's state crime actually fell within the *632 general term "illicit trafficking," the state felony conviction would count as an "aggravated felony," regardless of the existence of a federal felony counterpart; and a state offense of possessing more than five grams of cocaine base is an aggravated felony because it is a felony under the CSA, 21 U.S.C. § 844(a).[8] The Government's reliance on the penultimate sentence of 8 U.S.C. § 1101(a)(43) is misplaced for a second reason. The Government tries to justify its unusual reading of a defined term in the criminal code on the basis of a single sentence in the INA. But nothing in the penultimate sentence of § 1101(a)(43) suggests that Congress changed the meaning of "felony punishable under the [CSA]" when it took that phrase from Title 18 and incorporated it into Title 8's definition of "aggravated felony." Yet the Government admits it has never begun a prosecution under 18 U.S.C. § 924(c)(1)(A) where the underlying "drug trafficking crime" was a state felony but a federal misdemeanor. See Tr. of Oral Arg. 33-36. This is telling: the failure of even a single eager Assistant United States Attorney to act on the Government's interpretation of "felony punishable under the [CSA]" in the very context in which that phrase appears in the United States Code belies the Government's claim that its interpretation is the more natural one.[9] Finally, the Government's reading would render the law of alien removal, see 8 U.S.C. § 1229b(a)(3), and the law of sentencing for illegal entry into the country, see USSG § 2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose. It may not be all that remarkable that federal consequences of state crimes will vary according to state severity classification when Congress describes an aggravated felony in generic terms, without express reference to the definition of a crime in a federal statute (as in the case of "illicit trafficking in a controlled substance"). But it would have been passing strange for Congress to intend any such result when a state criminal classification is at odds with a federal provision that the INA expressly provides as a specific example of an "aggravated felony" (like the § 924(c)(2) definition of "drug trafficking crime"). We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies *633 and misdemeanors if it meant courts to ignore it whenever a State chose to punish a given act more heavily. Two examples show the untoward consequences of the Government's approach. Consider simple possession of marijuana. Not only is it a misdemeanor under the CSA, see 21 U.S.C. § 844(a), but the INA expressly excludes "a single offense involving possession for one's own use of 30 grams or less" from the controlled substance violations that are grounds for deportation, 8 U.S.C. § 1227(a)(2)(B)(i). Yet by the Government's lights, if a State makes it a felony to possess a gram of marijuana the congressional judgment is supplanted, and a state convict is subject to mandatory deportation because the alien is ineligible for cancellation of removal. See § 1229b(a)(3).[10] There is no hint in the statute's text that Congress was courting any such state-by-state disparity. The situation in reverse flouts probability just as much. Possessing more than five grams of cocaine base is a felony under federal law. See 21 U.S.C. § 844(a). If a State drew the misdemeanor-felony line at six grams plus, a person convicted in state court of possessing six grams would not be guilty of an aggravated felony on the Government's reading, which makes the law of the convicting jurisdiction dispositive. See Brief for Respondent 48. Again, it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers. True, the argument is not all one-sided. The Government points out that some States graduate offenses of drug possession from misdemeanor to felony depending on quantity, whereas Congress generally treats possession alone as a misdemeanor whatever the amount (but leaves it open to charge the felony of possession with intent to distribute when the amount is large). Thus, an alien convicted by a State of possessing large quantities of drugs would escape the aggravated felony designation simply for want of a federal felony defined as possessing a substantial amount. This is so, but we do not weigh it as heavily as the anomalies just mentioned on the other side. After all, Congress knows that any resort to state law will implicate some disuniformity in state misdemeanor-felony classifications, but that is no reason to think Congress meant to allow the States to supplant its own classifications when it specifically constructed its immigration law to turn on them. In sum, we hold that a state offense constitutes a "felony punishable under the Controlled Substances Act" only if it proscribes conduct punishable as a felony under that 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.

The question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a "felony punishable under the Controlled Substances Act." (c)(2). We hold it is not. I A The Immigration and Nationality Act (INA) defines the term "aggravated felony" *628 by a list that mentions "illicit trafficking in a controlled substance including a drug trafficking crime (as defined in section 924(c) of title 18)." 101(a)(43)(B), as added by 7342, and as amended by 222(a), 8 U.S.C. 01(a)(43)(B). The general phrase "illicit trafficking" is left undefined, but 924(c)(2) of Title 18 identifies the subcategory by defining "drug trafficking crime" as "any felony punishable under the Controlled Substances Act" or under either of two other federal statutes having no bearing on this case. Following the listing, 101(a)(43) of the INA provides in its penultimate sentence that "[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law" or, in certain circumstances, "the law of a foreign country." 8 U.S.C. 01(a)(43). An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple. Under the immigration statutes, for example, the Attorney General's discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. 1229b(a)(3). Nor is an aggravated felon eligible for asylum. 58(b)(2)(A)(ii), 58(b)(2)(B)(i). And under the sentencing law, the Federal Guidelines attach special significance to the "aggravated felony" designation: a conviction of unlawfully entering or remaining in the United States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for "any other felony." United States Sentencing Commission, Guidelines Manual 2L1.2 (hereinafter USSG); comment., n. 3 (adopting INA definition of aggravated felony). B Although petitioner Jose Antonio Lopez entered the United States illegally in 1986, in 1990 he became a legal permanent resident. In he was arrested on state charges in South Dakota, pleaded guilty to aiding and abetting another person's possession of cocaine, and was sentenced to five years' imprisonment. See S.D. Codified Laws 22-2-5 (1988); 22-6-1 ; 22-3-3 (1988). He was released for good conduct after 15 months. After his release, the Immigration and Naturalization Service (INS)[1] began removal proceedings against Lopez, on two grounds: that his state conviction was a controlled substance violation, see 8 U.S.C. 1227(a)(2)(B)(i), and was also for an aggravated felony, see 1227(a)(2)(A)(iii). Lopez conceded the controlled substance violation but contested the aggravated felony determination, which would disqualify him from discretionary cancellation of removal. See 1229b(a)(3). At first, the Immigration Judge agreed with Lopez that his state offense was not an aggravated felony because the conduct it proscribed was no felony under the Controlled Substances Act (CSA). But after the Board of Immigration Appeals (BIA) switched its position on the issue, the same judge ruled that Lopez's drug crime was an aggravated felony after all, owing to its being a felony under state law. See Matter of Yanez-Garcia, WL 993589 ; United (holding state felony possession offenses are aggravated felonies). That left Lopez ineligible for cancellation of removal, and the judge ordered him *629 removed. The BIA affirmed, and the Court of Appeals affirmed the BIA,[2] We granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA.[3] We now reverse. II The INA makes Lopez guilty of an aggravated felony if he has been convicted of "illicit trafficking in a controlled substance including," but not limited to, "a drug trafficking crime (as defined in section 924(c) of title 18)." 8 U.S.C. 01(a)(43)(B). Lopez's state conviction was for helping someone else possess cocaine in South Dakota, which state law treated as the equivalent of possessing the drug, S.D. Codified Laws 22-3-3, a state felony, 22-42-5. Mere possession is not, however, a felony under the federal CSA, see 21 U.S.C. 844(a), although possessing more than what one person would have for himself will support conviction for the federal felony of possession with intent to distribute, see 841 (2000 ed. and Supp. III); United ("Intent to distribute may be inferred from the possession of a quantity of drugs too large to be used by the defendant alone"). Despite this federal misdemeanor treatment, the Government argues that possession's felonious character as a state crime can turn it into an aggravated felony under the INA. There, it says, illicit trafficking includes a drug trafficking crime as defined in federal Title 18. Title 18 defines "drug trafficking crime" as "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)," 924(c)(2), and the CSA punishes possession, albeit as a misdemeanor, see 21 U.S.C. 844(a). That is enough, says the Government, because 924(c)(2) requires only that the offense be punishable, not that it be punishable as a federal felony. Hence, a prior conviction in state court will satisfy the felony element because the State treats possession that way. There are a few things wrong with this argument, the first being its incoherence with any commonsense conception of "illicit trafficking," the term ultimately being *630 defined. The everyday understanding of "trafficking" should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant. And ordinarily "trafficking" means some sort of commercial dealing. See Black's Law Dictionary 1534 (defining to "traffic" as to "trade or deal in (goods, esp. illicit drugs or other contraband)"); see also ; (App.1996) (same). Commerce, however, was no part of Lopez's South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government's reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and nontrafficking offenses as misdemeanors, several States deviate significantly from this pattern.[4] Reading 924(c) the Government's way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government's position. Cf. Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean "`just what [he chose] it to mean—neither more nor less,'"[5] and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.[6] First, an offense that necessarily counts as "illicit trafficking" under the INA is a "drug trafficking crime" under 924(c), that is, a "felony punishable under the [CSA]," 924(c)(2). And if we want to know what felonies might qualify, the place to go is to the definitions of crimes punishable as felonies under the CSA; where else would one naturally look? Although the Government would have us look to *631 state law, we suspect that if Congress had meant us to do that it would have found a much less misleading way to make its point. Indeed, other parts of 924 expressly refer to guilt under state law, see 924(g)(3), (k)(2), and the implication confirms that the reference solely to a "felony punishable under the [CSA]" in 924(c)(2) is to a crime punishable as a felony under the federal Act. See ("[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" (alteration in original; internal quotation marks omitted)). Unless a state offense is punishable as a federal felony it does not count. The Government stresses that the text does not read "punishable as a felony," and that by saying simply "punishable" Congress left the door open to counting state felonies, so long as they would be punishable at all under the CSA. But we do not normally speak or write the Government's way. We do not use a phrase like "felony punishable under the [CSA]" when we mean to signal or allow a break between the noun "felony" and the contiguous modifier "punishable under the [CSA]," let alone a break that would let us read the phrase as if it said "felony punishable under the CSA whether or not as a felony." Regular usage points in the other direction, and when we read "felony punishable under the Act," we instinctively understand "felony punishable as such under the Act" or "felony as defined by the Act."[7] Without some further explanation, using the phrase to cover even a misdemeanor punishable under the Act would be so much trickery, violating "the cardinal rule that statutory language must be read in context." General Dynamics Land Systems, 124 S. Ct. 16, 1 L. Ed. 2d 1094 That is why our interpretive regime reads whole sections of a statute together to fix on the meaning of any one of them, and the last thing this approach would do is divorce a noun from the modifier next to it without some extraordinary reason. The Government thinks it has a good enough reason for doing just that, in the INA provision already mentioned, that the term "aggravated felony" "applies to an offense described in this paragraph whether in violation of Federal or State law." 8 U.S.C. 01(a)(43). But before this provision is given the Government's expansive treatment, it makes sense to ask whether it would have some use short of wrenching the expectations raised by normal English usage, and in fact it has two perfectly straightforward jobs to do: it provides that a generic description of "an offense. in this paragraph," one not specifically couched as a state offense or a federal one, covers either one, and it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony. Thus, if Lopez's state crime actually fell within the *632 general term "illicit trafficking," the state felony conviction would count as an "aggravated felony," regardless of the existence of a federal felony counterpart; and a state offense of possessing more than five grams of cocaine base is an aggravated felony because it is a felony under the CSA, 21 U.S.C. 844(a).[8] The Government's reliance on the penultimate sentence of 8 U.S.C. 01(a)(43) is misplaced for a second reason. The Government tries to justify its unusual reading of a defined term in the criminal code on the basis of a single sentence in the INA. But nothing in the penultimate sentence of 01(a)(43) suggests that Congress changed the meaning of "felony punishable under the [CSA]" when it took that phrase from Title 18 and incorporated it into Title 8's definition of "aggravated felony." Yet the Government admits it has never begun a prosecution under (c)(1)(A) where the underlying "drug trafficking crime" was a state felony but a federal misdemeanor. See Tr. of Oral Arg. 33-36. This is telling: the failure of even a single eager Assistant United States Attorney to act on the Government's interpretation of "felony punishable under the [CSA]" in the very context in which that phrase appears in the United States Code belies the Government's claim that its interpretation is the more natural one.[9] Finally, the Government's reading would render the law of alien removal, see 8 U.S.C. 1229b(a)(3), and the law of sentencing for illegal entry into the country, see USSG 2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose. It may not be all that remarkable that federal consequences of state crimes will vary according to state severity classification when Congress describes an aggravated felony in generic terms, without express reference to the definition of a crime in a federal statute (as in the case of "illicit trafficking in a controlled substance"). But it would have been passing strange for Congress to intend any such result when a state criminal classification is at odds with a federal provision that the INA expressly provides as a specific example of an "aggravated felony" (like the 924(c)(2) definition of "drug trafficking crime"). We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies *633 and misdemeanors if it meant courts to ignore it whenever a State chose to punish a given act more heavily. Two examples show the untoward consequences of the Government's approach. Consider simple possession of marijuana. Not only is it a misdemeanor under the CSA, see 21 U.S.C. 844(a), but the INA expressly excludes "a single offense involving possession for one's own use of 30 grams or less" from the controlled substance violations that are grounds for deportation, 8 U.S.C. 1227(a)(2)(B)(i). Yet by the Government's lights, if a State makes it a felony to possess a gram of marijuana the congressional judgment is supplanted, and a state convict is subject to mandatory deportation because the alien is ineligible for cancellation of removal. See 1229b(a)(3).[10] There is no hint in the statute's text that Congress was courting any such state-by-state disparity. The situation in reverse flouts probability just as much. Possessing more than five grams of cocaine base is a felony under federal law. See 21 U.S.C. 844(a). If a State drew the misdemeanor-felony line at six grams plus, a person convicted in state court of possessing six grams would not be guilty of an aggravated felony on the Government's reading, which makes the law of the convicting jurisdiction dispositive. See Brief for Respondent 48. Again, it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers. True, the argument is not all one-sided. The Government points out that some States graduate offenses of drug possession from misdemeanor to felony depending on quantity, whereas Congress generally treats possession alone as a misdemeanor whatever the amount (but leaves it open to charge the felony of possession with intent to distribute when the amount is large). Thus, an alien convicted by a State of possessing large quantities of drugs would escape the aggravated felony designation simply for want of a federal felony defined as possessing a substantial amount. This is so, but we do not weigh it as heavily as the anomalies just mentioned on the other side. After all, Congress knows that any resort to state law will implicate some disuniformity in state misdemeanor-felony classifications, but that is no reason to think Congress meant to allow the States to supplant its own classifications when it specifically constructed its immigration law to turn on them. In sum, we hold that a state offense constitutes a "felony punishable under the Controlled Substances Act" only if it proscribes conduct punishable as a felony under that 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.

Justice Thomas

dissenting

Lopez v. Gonzales

2006-12-05

https://www.courtlistener.com/opinion/145772/lopez-v-gonzales/

https://www.courtlistener.com/api/rest/v3/clusters/145772/

2006-003

Jose Antonio Lopez pleaded guilty to aiding and abetting the possession of cocaine, a felony under South Dakota law. The Court holds that Lopez's conviction does not constitute an "aggravated felony" *634 because federal law would classify Lopez's possession offense as a misdemeanor. I respectfully dissent. I The Immigration and Nationality Act (INA) provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). As relevant to this case, the INA defines an "aggravated felony" as "illicit trafficking in a controlled substance ... including a drug trafficking crime (as defined in section 924(c) of title 18)." § 1101(a)(43)(B). And "the term 'drug trafficking crime' means any felony punishable under the Controlled Substances Act 18 U.S.C. § 924(c)(2). Lopez's state felony offense qualifies as a "drug trafficking crime" as defined in § 924(c)(2). A plain reading of this definition identifies two elements: First, the offense must be a felony; second, the offense must be capable of punishment under the Controlled Substances Act (CSA). No one disputes that South Dakota punishes Lopez's crime as a felony. See S.D. Codified Laws § 22-42-5 (1988). Likewise, no one disputes that the offense was capable of punishment under the CSA. See 21 U.S.C. § 844(a). Lopez's possession offense therefore satisfies both elements, and the inquiry should end there. The Court, however, takes the inquiry further by reasoning that only federal felonies qualify as drug trafficking crimes. According to the Court, the definition of drug trafficking crime contains an implied limitation: "any felony punishable [as a felony] under the" CSA. The text does not support this interpretation. Most obviously, the language "as a felony" appears nowhere in § 924(c)(2). Without doubt, Congress could have written the definition with this limitation, but it did not. Furthermore, Lopez's suggested addition conflicts with the clear meaning of § 924(c)(2), which extends to both state and federal felonies. Specifically, the definition broadly encompasses "any felony" capable of being punished under the CSA. 18 U.S.C. § 924(c)(2) (emphasis added). "Read naturally, the word `any' has an expansive meaning ... ." United States v. Gonzales, 520 U.S. 1, 5, 117 S. Ct. 1032, 137 L. Ed. 2d 132 (1997); see also Small v. United States, 544 U.S. 385, 397, 125 S. Ct. 1752, 161 L. Ed. 2d 651 (2005) (THOMAS, J., dissenting) ("The broad phrase `any court' unambiguously includes all judicial bodies with jurisdiction to impose the requisite conviction ..." (footnote omitted)). The term "felony" takes its meaning from Title 18, which classifies crimes as felonies when punishable by death or greater than one year of imprisonment. § 3559(a). "[A]ny felony" therefore includes both federal and state felonies: The classification depends only on the authorized term of imprisonment. Accordingly, by the plain terms of § 924(c)(2), conduct prohibited by the CSA may qualify as a "drug trafficking crime" if under either federal law or state law the conduct is punishable by more than one year of imprisonment. This interpretation finds support in other provisions in which Congress placed limits on the types of drug trafficking crimes eligible for consideration. In particular, § 924(c)(1)(A) proscribes the use or possession of a firearm "during and in relation to any ... drug trafficking crime... for which the person may be prosecuted in a court of the United States ... ." (Emphasis added). See also 18 U.S.C. § 924(c)(5) (2000 ed., Supp.V) (using identical language in proscribing the use or possession of "armor piercing ammunition"). The Court has previously interpreted this language to limit "any ... drug trafficking crime" to federal crimes. Gonzales, *635 supra, at 5, 125 S. Ct. 2195. This language, therefore, acts as a jurisdictional limitation, carving out the subset of federal drug trafficking crimes and making only those eligible for use in §§ 924(c)(1)(A) and 924(c)(5). No similar federal-crime limitation appears in § 924(c)(2). Interpreting the term "drug trafficking crime," as defined in § 924(c)(2), to reach only federal felonies would render superfluous the federal-crime limitations in these other provisions. See Duncan v. Walker, 533 U.S. 167, 174, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001) (counseling against interpretations that result in surplus language).[1] This interpretation also finds support in the INA, which lists "illicit trafficking" and its subset of "drug trafficking crime[s]" as aggravated felonies. 8 U.S.C. § 1101(a)(43)(B). The INA considers these offenses aggravated felonies "whether in violation of Federal or State law... ." § 1101(a)(43) (penultimate sentence). Thus, by incorporating § 924(c)(2)'s definition of "drug trafficking crime," the INA supports and confirms the conclusion that the definition of "drug trafficking crime" applies to both federal and state felonies. Moreover, the INA isolates the relevant inquiry to the prosecuting jurisdiction. Section 1227(a)(2)(A)(iii) of Title 8 makes an alien eligible for deportation only upon a conviction for an "aggravated felony." The conviction requirement suggests that the jurisdiction issuing the conviction determines whether the offense is a felony. This result makes sense. When faced with an actual conviction, it would be unusual to ask, hypothetically, whether that conviction would have been a felony in a different jurisdiction. Furthermore, that hypothetical inquiry could cause significant inconsistencies. For instance, where a State convicts an alien of a misdemeanor drug crime, but federal law classifies the crime as a felony, the misdemeanor conviction would constitute an aggravated felony. This anomaly does not arise when relying on the prosecuting jurisdiction's classification of the crime. II The Court's approach is unpersuasive. At the outset of its analysis, the Court avers that it must look to the ordinary meaning of "illicit trafficking" because "the statutes in play do not define the term." Ante, at 630. That statement is incorrect. Section 1101(a)(43)(B) of Title 8 clearly defines "illicit trafficking in a controlled substance," at least in part, as "a drug trafficking crime (as defined in section 924(c) of title 18)." (Emphasis added.) Therefore, whatever else "illicit trafficking" might mean, it must include anything defined as a "drug trafficking crime" in § 924(c)(2). Rather than grappling with this definition of the relevant term, the Court instead sets up a conflicting straw man definition. The majority states that the ordinary meaning of "illicit trafficking" involves "some sort of commercial dealing." Ante, at 630. Because mere possession does not constitute commercial dealing, the Court concludes that Lopez's possession offense cannot qualify as an "illicit trafficking" offense—or, by implication, a "drug trafficking crime." Yet even the Court admits *636 that the term "drug trafficking crime" includes federal drug felonies, several of which are mere possession offenses. See 21 U.S.C. § 844(a) (possession of more than five grams of cocaine base, possession of flunitrazepam, and repeat possession offenses). If the Court recognizes, in light of § 924(c)(2), some mere possession offenses under the umbrella of "illicit trafficking," it cannot reject Lopez's conviction out of hand. Yet the Court downplays these "few exceptions" in two footnotes, concluding that "this coerced inclusion of a few possession offenses" gives no reason to "override [the] ordinary meaning" of "illicit trafficking." Ante, at 630, nn. 4 and 6. The inconsistency deserves more than the Court's passing reference. By encompassing repeat possession offenses, the term "illicit trafficking" includes far more than "a few" offenses outside of its ordinary meaning. It must include every type of possession offense under the CSA, so long as the offender has had a previous possession offense. If defining "illicit trafficking" to include the entire range of unlawful possession does not provide a "clear statutory command to override ordinary meaning," ante, at 630, n. 6, I do not know what would.[2] The Court, however, gives only fleeting consideration to the text of § 924(c)(2) itself. After referencing the phrase "felony punishable under" the CSA, the Court asks "where else would one naturally look" other than the CSA to determine whether a felony qualifies as a drug trafficking crime. Ante, at 630. In response to the Court's rhetorical question, I suggest that one might naturally look to the conviction itself to determine whether it is a felony. When presented with an actual conviction, one would not expect to look to a hypothetical prosecution to determine whether an offender has committed a felony. Continuing to avoid the text of § 924(c)(2), the Court instead focuses on what the statute does not say. It concludes that Congress could have expressly referenced state law as in §§ 924(g)(3) and (k)(2). Ibid. The response, of course, is that Congress could just as well have defined a "drug trafficking crime" as "any felony punishable as a felony under the CSA." Rejoining, the Court resorts to an "instinctiv[e] understand[ing]" that the statutory definition actually means "`felony as defined by the Act.'" Ibid. Instinct notwithstanding, we must interpret what Congress actually wrote, not what it could have written. Furthermore, the Court's "instinct" to interpret § 924(c)(2) to mean "felony as defined by" the CSA creates an unnecessary ambiguity in the meaning of "felony." The CSA defines "felony" as "any Federal or State offense classified by applicable Federal or State law as a felony." 21 U.S.C. § 802(13).[3] Under the Court's interpretation, *637 that definition seemingly should apply. The Court concludes otherwise but never resolves the ambiguity it creates: It instead explains that "felony" is defined by the CSA as something other than the CSA's definition of "felony." Ante, at 631, n. 7. That explanation is, at best, unsatisfying. After gliding past the statutory text, the Court expresses concern over the fact that the Government's interpretation allows federal immigration law to turn on varying state criminal classifications. Congress apparently did not share this concern because some definitions of "aggravated felony" explicitly turn on the State's authorized term of imprisonment, not a uniform federal classification. See 8 U.S.C. §§ 1101(a)(43)(F), (G), (J), (P)-(T). Even the Court finds this variance "not ... all that remarkable." Ante, at 632. The Court's real concern therefore has little to do with variations in state law. Rather, it worries that "a state criminal classification [may be] at odds with a federal provision." Ibid. But, obviously, if a state offense does not qualify under the definitions in § 1101(a)(43), then the offense cannot be an "aggravated felony." As shown in Part I, though, nothing about Lopez's offense conflicts with the plain language of § 924(c)(2) as incorporated into § 1101(a)(43)(B). He was convicted of a "felony," and his offense was "punishable under the" CSA. The Court also notes apparent anomalies in the Government's approach. It asserts that, under the Government's interpretation, a state felony conviction for simple possession of less than 30 grams of marijuana could be an "aggravated felony" even though the INA expressly excludes such an offense as grounds for deportation under 8 U.S.C. § 1227(a)(2)(B)(i). Ante, at 632-633. The Court's concern has little basis in reality. Only one State authorizes more than one year of imprisonment for possession of over 20 grams. See Fla. Stat. §§ 893.13(6)(a)-(b), 775.082(3)(d) (2006). A few others classify possession of one ounce (or 28.3 grams) as a felony. See, e.g., Nev.Rev.Stat. §§ 453.336(1)-(2) (2004), §§ 453.336(4), 193.130 (2003). The mere possibility that a case could fall into this small gap and lead to removal provides no ground for the Court to depart from the plain meaning of 18 U.S.C. § 924(c)(2). In fact, it is the Court's interpretation that will have a significant effect on removal proceedings involving state possession offenses. Federal law treats possession of large quantities of controlled substances as felonious possession with intent to distribute. States frequently treat the same conduct as simple possession offenses, which would escape classification as aggravated felonies under the Court's interpretation. Thus, the Court's interpretation will result in a large disparity between the treatment of federal and state convictions for possession of large amounts of drugs. And it is difficult to see why Congress would "authorize a State to overrule its judgment" about possession of large quantities of drugs any more than it would about other possession offenses. Ante, at 633. Finally, the Court admits that its reading will subject an alien defendant convicted of a state misdemeanor to deportation if his conduct was punishable as a felony *638 under the CSA. Accordingly, even if never convicted of an actual felony, an alien defendant becomes eligible for deportation based on a hypothetical federal prosecution. It is at least anomalous, if not inconsistent, that an actual misdemeanor may be considered an "aggravated felony." III Because a plain reading of the statute would avoid the ambiguities and anomalies created by today's majority opinion, I respectfully dissent.

Jose Antonio Lopez pleaded guilty to aiding and abetting the possession of cocaine, a felony under South Dakota law. The Court holds that Lopez's conviction does not constitute an "aggravated felony" *634 because federal law would classify Lopez's possession offense as a misdemeanor. I respectfully dissent. I The Immigration and Nationality Act (INA) provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." (a)(2)(A)(iii). As relevant to this case, the INA defines an "aggravated felony" as "illicit trafficking in a controlled substance including a drug trafficking crime (as defined in section 924(c) of title 18)." 1101(a)(43)(B). And "the term 'drug trafficking crime' means any felony punishable under the Controlled Substances Act 18 U.S.C. 924(c)(2). Lopez's state felony offense qualifies as a "drug trafficking crime" as defined in 924(c)(2). A plain reading of this definition identifies two elements: First, the offense must be a felony; second, the offense must be capable of punishment under the Controlled Substances Act (CSA). No one disputes that South Dakota punishes Lopez's crime as a felony. See S.D. Codified Laws 22-42- (1988). Likewise, no one disputes that the offense was capable of punishment under the CSA. See 21 U.S.C. 844(a). Lopez's possession offense therefore satisfies both elements, and the inquiry should end there. The Court, however, takes the inquiry further by reasoning that only federal felonies qualify as drug trafficking crimes. According to the Court, the definition of drug trafficking crime contains an implied limitation: "any felony punishable [as a felony] under the" CSA. The text does not support this interpretation. Most obviously, the language "as a felony" appears nowhere in 924(c)(2). Without doubt, Congress could have written the definition with this limitation, but it did not. Furthermore, Lopez's suggested addition conflicts with the clear meaning of 924(c)(2), which extends to both state and federal felonies. Specifically, the definition broadly encompasses "any felony" capable of being punished under the CSA. 18 U.S.C. 924(c)(2) "Read naturally, the word `any' has an expansive meaning" United ; see also 44 U.S. 38, 12 S. Ct. 172, 161 L. Ed. 2d 61 (200) ("The broad phrase `any court' unambiguously includes all judicial bodies with jurisdiction to impose the requisite conviction" (footnote omitted)). The term "felony" takes its meaning from Title 18, which classifies crimes as felonies when punishable by death or greater than one year of imprisonment. 39(a). "[A]ny felony" therefore includes both federal and state felonies: The classification depends only on the authorized term of imprisonment. Accordingly, by the plain terms of 924(c)(2), conduct prohibited by the CSA may qualify as a "drug trafficking crime" if under either federal law or state law the conduct is punishable by more than one year of imprisonment. This interpretation finds support in other provisions in which Congress placed limits on the types of drug trafficking crimes eligible for consideration. In particular, 924(c)(1)(A) proscribes the use or possession of a firearm "during and in relation to any drug trafficking crime. for which the person may be prosecuted in a court of the United States" (Emphasis added). See also 18 U.S.C. 924(c)() (using identical language in proscribing the use or possession of "armor piercing ammunition"). The Court has previously interpreted this language to limit "any drug trafficking crime" to federal crimes. Gonzales, *63 at 12 S. Ct. 219. This language, therefore, acts as a jurisdictional limitation, carving out the subset of federal drug trafficking crimes and making only those eligible for use in 924(c)(1)(A) and 924(c)(). No similar federal-crime limitation appears in 924(c)(2). Interpreting the term "drug trafficking crime," as defined in 924(c)(2), to reach only federal felonies would render superfluous the federal-crime limitations in these other provisions. See 33 U.S. 167, 10 L. Ed. 2d 21[1] This interpretation also finds support in the INA, which lists "illicit trafficking" and its subset of "drug trafficking crime[s]" as aggravated felonies. 8 U.S.C. 1101(a)(43)(B). The INA considers these offenses aggravated felonies "whether in violation of Federal or State law." 1101(a)(43) (penultimate sentence). Thus, by incorporating 924(c)(2)'s definition of "drug trafficking crime," the INA supports and confirms the conclusion that the definition of "drug trafficking crime" applies to both federal and state felonies. Moreover, the INA isolates the relevant inquiry to the prosecuting jurisdiction. Section 1227(a)(2)(A)(iii) of Title 8 makes an alien eligible for deportation only upon a conviction for an "aggravated felony." The conviction requirement suggests that the jurisdiction issuing the conviction determines whether the offense is a felony. This result makes sense. When faced with an actual conviction, it would be unusual to ask, hypothetically, whether that conviction would have been a felony in a different jurisdiction. Furthermore, that hypothetical inquiry could cause significant inconsistencies. For instance, where a State convicts an alien of a misdemeanor drug crime, but federal law classifies the crime as a felony, the misdemeanor conviction would constitute an aggravated felony. This anomaly does not arise when relying on the prosecuting jurisdiction's classification of the crime. II The Court's approach is unpersuasive. At the outset of its analysis, the Court avers that it must look to the ordinary meaning of "illicit trafficking" because "the statutes in play do not define the term." Ante, at 630. That statement is incorrect. Section 1101(a)(43)(B) of Title 8 clearly defines "illicit trafficking in a controlled substance," at least in part, as "a drug trafficking crime (as defined in section 924(c) of title 18)." (Emphasis added.) Therefore, whatever else "illicit trafficking" might mean, it must include anything defined as a "drug trafficking crime" in 924(c)(2). Rather than grappling with this definition of the relevant term, the Court instead sets up a conflicting straw man definition. The majority states that the ordinary meaning of "illicit trafficking" involves "some sort of commercial dealing." Ante, at 630. Because mere possession does not constitute commercial dealing, the Court concludes that Lopez's possession offense cannot qualify as an "illicit trafficking" offense—or, by implication, a "drug trafficking crime." Yet even the Court admits *636 that the term "drug trafficking crime" includes federal drug felonies, several of which are mere possession offenses. See 21 U.S.C. 844(a) If the Court recognizes, in light of 924(c)(2), some mere possession offenses under the umbrella of "illicit trafficking," it cannot reject Lopez's conviction out of hand. Yet the Court downplays these "few exceptions" in two footnotes, concluding that "this coerced inclusion of a few possession offenses" gives no reason to "override [the] ordinary meaning" of "illicit trafficking." Ante, at 630, nn. 4 and 6. The inconsistency deserves more than the Court's passing reference. By encompassing repeat possession offenses, the term "illicit trafficking" includes far more than "a few" offenses outside of its ordinary meaning. It must include every type of possession offense under the CSA, so long as the offender has had a previous possession offense. If defining "illicit trafficking" to include the entire range of unlawful possession does not provide a "clear statutory command to override ordinary meaning," ante, at 630, n. 6, I do not know what would.[2] The Court, however, gives only fleeting consideration to the text of 924(c)(2) itself. After referencing the phrase "felony punishable under" the CSA, the Court asks "where else would one naturally look" other than the CSA to determine whether a felony qualifies as a drug trafficking crime. Ante, at 630. In response to the Court's rhetorical question, I suggest that one might naturally look to the conviction itself to determine whether it is a felony. When presented with an actual conviction, one would not expect to look to a hypothetical prosecution to determine whether an offender has committed a felony. Continuing to avoid the text of 924(c)(2), the Court instead focuses on what the statute does not say. It concludes that Congress could have expressly referenced state law as in 924(g)(3) and (k)(2). The response, of course, is that Congress could just as well have defined a "drug trafficking crime" as "any felony punishable as a felony under the CSA." Rejoining, the Court resorts to an "instinctiv[e] understand[ing]" that the statutory definition actually means "`felony as defined by the Act.'" Instinct notwithstanding, we must interpret what Congress actually wrote, not what it could have written. Furthermore, the Court's "instinct" to interpret 924(c)(2) to mean "felony as defined by" the CSA creates an unnecessary ambiguity in the meaning of "felony." The CSA defines "felony" as "any Federal or State offense classified by applicable Federal or State law as a felony." 21 U.S.C. 802(13).[3] Under the Court's interpretation, *637 that definition seemingly should apply. The Court concludes otherwise but never resolves the ambiguity it creates: It instead explains that "felony" is defined by the CSA as something other than the CSA's definition of "felony." Ante, at 631, n. 7. That explanation is, at best, unsatisfying. After gliding past the statutory text, the Court expresses concern over the fact that the Government's interpretation allows federal immigration law to turn on varying state criminal classifications. Congress apparently did not share this concern because some definitions of "aggravated felony" explicitly turn on the State's authorized term of imprisonment, not a uniform federal classification. See 8 U.S.C. 1101(a)(43)(F), (G), (J), (P)-(T). Even the Court finds this variance "not all that remarkable." Ante, at 632. The Court's real concern therefore has little to do with variations in state law. Rather, it worries that "a state criminal classification [may be] at odds with a federal provision." But, obviously, if a state offense does not qualify under the definitions in 1101(a)(43), then the offense cannot be an "aggravated felony." As shown in Part I, though, nothing about Lopez's offense conflicts with the plain language of 924(c)(2) as incorporated into 1101(a)(43)(B). He was convicted of a "felony," and his offense was "punishable under the" CSA. The Court also notes apparent anomalies in the Government's approach. It asserts that, under the Government's interpretation, a state felony conviction for simple possession of less than 30 grams of marijuana could be an "aggravated felony" even though the INA expressly excludes such an offense as grounds for deportation under (a)(2)(B)(i). Ante, at 632-633. The Court's concern has little basis in reality. Only one State authorizes more than one year of imprisonment for possession of over 20 grams. See Fla. Stat. 893.13(6)(a)-(b), 77.082(3)(d) (2006). A few others classify possession of one ounce (or 28.3 grams) as a felony. See, e.g., Nev.Rev.Stat. 43.336(1)-(2) (2004), 43.336(4), 193.130 (2003). The mere possibility that a case could fall into this small gap and lead to removal provides no ground for the Court to depart from the plain meaning of 18 U.S.C. 924(c)(2). In fact, it is the Court's interpretation that will have a significant effect on removal proceedings involving state possession offenses. Federal law treats possession of large quantities of controlled substances as felonious possession with intent to distribute. States frequently treat the same conduct as simple possession offenses, which would escape classification as aggravated felonies under the Court's interpretation. Thus, the Court's interpretation will result in a large disparity between the treatment of federal and state convictions for possession of large amounts of drugs. And it is difficult to see why Congress would "authorize a State to overrule its judgment" about possession of large quantities of drugs any more than it would about other possession offenses. Ante, at 633. Finally, the Court admits that its reading will subject an alien defendant convicted of a state misdemeanor to deportation if his conduct was punishable as a felony *638 under the CSA. Accordingly, even if never convicted of an actual felony, an alien defendant becomes eligible for deportation based on a hypothetical federal prosecution. It is at least anomalous, if not inconsistent, that an actual misdemeanor may be considered an "aggravated felony." III Because a plain reading of the statute would avoid the ambiguities and anomalies created by today's majority opinion, I respectfully dissent.

Justice Thomas

majority

Carcieri v. Salazar

2009-02-24

https://www.courtlistener.com/opinion/145908/carcieri-v-salazar/

https://www.courtlistener.com/api/rest/v3/clusters/145908/

2008-023

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 provid ing 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 recog nized 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 proceed ings before the Interior Board of Indian Appeals (IBIA), the District Court, and the Court of Appeals for the First Circuit, petitioners unsuccessfully challenged the Secre tary’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 2 CARCIERI v. SALAZAR Opinion of the Court 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 mem bers of recognized tribes that were “under Federal juris diction” in 1934. The respondents argue that the word “now” is an ambiguous term that can reasonably be con strued 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 juris diction 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 Determina tion of Federal Acknowledgement of Narragansett Indian Tribe of Rhode Island, 48 Fed. Reg. 6177 (1983) (hereinaf ter Final Determination). Initial relations between colo nial settlers, the Narragansett Tribe, and the other Indian tribes in the region were peaceful, but relations deterio rated 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 Cite as: 555 U. S. ____ (2009) 3 Opinion of the Court been decimated, was placed under formal guardianship by the Colony of Rhode Island in 1709. 48 Fed. Reg. 6177.1 Not quite two centuries later, in 1880, the State of Rhode Island convinced the Narragansett Tribe to relin quish its tribal authority as part of an effort to assimilate tribal members into the local population. See Narragan sett 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, mem bers of the Tribe sought economic support and other assis tance from the Federal Government. But, in correspon dence 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, claim ing that the State had misappropriated its territory in violation of the Indian Non-Intercourse Act, 25 U.S. C. §177.2 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 codi —————— 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. 2 Title 25 U.S. C. §177 provides, in pertinent part, that “[n]o pur chase, 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 conven tion entered into pursuant to the Constitution.” 4 CARCIERI v. SALAZAR Opinion of the Court fied 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 recog nition from the United States Government finally suc ceeded 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 pre pared 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 re quest in 1988. See Town of Charlestown, Rhode Island v. Eastern Area Director, Bur. of Indian Affairs, 18 IBIA 67, 69 (1989).3 In 1991, the Tribe’s housing authority purchased an —————— 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). Cite as: 555 U. S. ____ (2009) 5 Opinion of the Court 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 noti fied 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 cur rently “federally-recognized” and “existed at the time of the enactment of the IRA,” the Narragansett Tribe “quali fies 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. 6 CARCIERI v. SALAZAR Opinion of the Court 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). Al though 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 stat ute, 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 rea sonable 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 Ap peals 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 construc tion 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 demon strate that the Secretary’s interpretation was inconsistent Cite as: 555 U. S. ____ (2009) 7 Opinion of the Court with earlier practices of the Department of Interior. Fur thermore, the court determined that even if the interpre tation 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 statu tory 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 rec ognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the pre sent 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 Secre 8 CARCIERI v. SALAZAR Opinion of the Court tary’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 Collier ies, 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 Inter national 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 citizen ship 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 Cite as: 555 U. S. ____ (2009) 9 Opinion of the Court 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 exten sion measures now pending in Congress . . . become law.” IRA, §5, 48 Stat. 985 (emphasis added).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 posi tions 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, ex plained that: —————— 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 bounda ries 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.” 10 CARCIERI v. SALAZAR Opinion of the Court “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).5 Thus, although we do not defer to Commissioner Col lier’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 —————— 5 In addition to serving as Commissioner of Indian Affairs, John Col lier 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)). Cite as: 555 U. S. ____ (2009) 11 Opinion of the Court 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 Con gress 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 defini tions: “[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 12 CARCIERI v. SALAZAR Opinion of the Court within the definitions of “Indian” set forth in §479.6 Had it understood the word “include” in §479 to encompass tribes other than those satisfying one of the three §479 defini tions, Congress would have not needed to enact these additional statutory references to specific Tribes. The Secretary and his amici also go beyond the statu tory 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).7 —————— 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”). 7 Because we conclude that the language of §465 unambiguously pre cludes 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. Cite as: 555 U. S. ____ (2009) 13 Opinion of the Court 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, organ ized band, pueblo, or the Indians residing on one reserva tion” (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 “In dian” in delineating the Secretary’s authority under §§ 465 and 479. 8 —————— 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 Secre tary’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)). 14 CARCIERI v. SALAZAR Opinion of the Court 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 ap ply to all tribes notwithstanding the provisions of sec tion 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 author ity 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 1934.9 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 pursu ant to §478, which allowed tribal members to reject the application of the IRA to their tribe. §478 (“This Act shall —————— 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. Cite as: 555 U. S. ____ (2009) 15 Opinion of the Court 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 limita tion 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 en acted §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. Na tional 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 rec 16 CARCIERI v. SALAZAR Opinion of the Court ognized nor under the jurisdiction of the federal govern ment.’’ Pet. for Cert. 6. The respondents’ brief in opposi tion declined to contest this assertion. See Brief in Oppo sition 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. Cite as: 555 U. S. ____ (2009) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 07–526 _________________ DONALD L. CARCIERI, GOVERNOR OF RHODE ISLAND, ET AL., PETITIONERS v. KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ET AL.

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 provid ing land for Indians.” Ch. 576, 25 U.S. C. The IRA defines the term “Indian” to “include all persons of Indian descent who are members of any recog nized Indian tribe now under Federal jurisdiction.” 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 proceed ings before the Interior Board of Indian Appeals (IBIA), the District Court, and the Court of Appeals for the First Circuit, petitioners unsuccessfully challenged the Secre tary’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 2 CARCIERI v. SALAZAR Opinion of the Court Federal jurisdiction” in 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 mem bers of recognized tribes that were “under Federal juris diction” in 193. The respondents argue that the word “now” is an ambiguous term that can reasonably be con strued 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 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, 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 193. Because the record in this case establishes that the Narragansett Tribe was not under federal juris diction 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 Determina tion of Federal Acknowledgement of Narragansett Indian Tribe of Rhode Island, (1983) (hereinaf ter Final Determination). Initial relations between colo nial settlers, the Narragansett Tribe, and the other Indian tribes in the region were peaceful, but relations deterio rated 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 Cite as: 555 U. S. (2009) 3 Opinion of the Court been decimated, was placed under formal guardianship by the Colony of Rhode Island in 1709.1 Not quite two centuries later, in 1880, the State of Rhode Island convinced the Narragansett Tribe to relin quish its tribal authority as part of an effort to assimilate tribal members into the local population. See Narragan sett 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. Almost immediately, the Tribe regretted its decisions and embarked on a campaign to regain its land and tribal status. In the early 20th century, mem bers of the Tribe sought economic support and other assis tance from the Federal Government. But, in correspon dence 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, claim ing that the State had misappropriated its territory in violation of the Indian Non-Intercourse Act, 25 U.S. C. The claims were resolved in 1978 by enactment of the Rhode Island Indian Claims Settlement Act, 92 Stat. 813, 25 U.S. C. et seq. Under the agreement codi —————— 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, 2 Title 25 U.S. C. provides, in pertinent part, that “[n]o pur chase, 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 conven tion entered into pursuant to the Constitution.” CARCIERI v. SALAZAR Opinion of the Court fied 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.” see also The Narragansett Tribe’s ongoing efforts to gain recog nition from the United States Government finally suc ceeded in 1983. 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.” The BIA referred to the Tribe’s “documented history dating from 161” 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 pre pared after the 1880 Rhode Island ‘detribalization’ act.” 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. (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 re quest in 1988. See Town of Charlestown, Rhode Island v. Eastern Area Director, Bur. of Indian Affairs, 18 IBIA 67, 69 (1989).3 In 1991, the Tribe’s housing authority purchased an —————— 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 ; Narragansett Indian Tribe v. Rhode Island, Cite as: 555 U. S. (2009) 5 Opinion of the Court 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., 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. –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. By letter dated March 6, 1998, the Secretary noti fied 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 Petitioners sought review of the IBIA decision pursuant to the Administrative Procedure Act, 5 U.S. C. 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. defines “Indian” to include members of all tribes in existence in 193, but does not require a tribe to have been federally recognized on that date. 179–181 (RI 2003). According to the District Court, because it is cur rently “federally-recognized” and “existed at the time of the enactment of the IRA,” the Narragansett Tribe “quali fies as an ‘Indian tribe’ within the meaning of ” at 181. As a result, “the secretary possesses authority under to accept lands into trust for the benefit of the Narragansetts.” 6 CARCIERI v. SALAZAR Opinion of the Court The Court of Appeals for the First Circuit affirmed, first in a panel decision, and then sitting en banc, Al though the Court of Appeals acknowledged that “[o]ne might have an initial instinct to read the word ‘now’ [in ] to mean the date of [the] enactment of the stat ute, June 18, 193,” 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.” 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. –27. The Court of Appeals also found that the particular statutory context of 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. 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, contains the particular application date of “June 1, 193,” suggesting that if Congress had wanted to refer to the date of enactment, it could have done so more specifically. The Court of Appeals further reasoned that both interpretations of “now” are supported by rea sonable policy explanations, at 27–28, and it found that the legislative history failed to “clearly resolve the issue,” Having found the statute ambiguous, the Court of Ap peals applied the principles set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 67 U.S. 837, 83 (198), and deferred to the Secretary’s construc tion of the The court rejected petitioners’ arguments that the Secretary’s interpretation was an impermissible construction of the statute. at 30–3. It also held that petitioners had failed to demon strate that the Secretary’s interpretation was inconsistent Cite as: 555 U. S. (2009) 7 Opinion of the Court with earlier practices of the Department of Interior. Fur thermore, the court determined that even if the interpre tation were a departure from the Department’s prior practices, the decision should be affirmed based on the Secretary’s “reasoned explanation for his interpretation.” We granted certiorari, 552 U. S. and now reverse. II This case requires us to apply settled principles of statu tory construction under which we must first determine whether the statutory text is plain and unambiguous. United If it is, we must apply the statute according to its terms. See, e.g., 55 U.S. 353, ; Lamie v. United States Trustee, 50 U.S. 526, 53 (200); Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 ; 22 U.S. 70, 85 (1917). The Secretary may accept land into trust only for “the purpose of providing land for Indians.” 25 U.S. C. “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 rec ognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 193, residing within the pre sent 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.” The parties are in agreement, as are we, that the Secre 8 CARCIERI v. SALAZAR Opinion of the Court tary’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.” 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 193, 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 ; Moskal v. United States, 98 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 Inter national Dictionary 1671 (2d ed. 193); 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” ). 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., (internal quotation marks omitted))); 310–311 (1961) (interpreting a statute granting citizen ship 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. which provided the same authority to the Secretary to accept land into trust for “the Cite as: 555 U. S. (2009) 9 Opinion of the Court 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 exten sion measures now pending in Congress become law.” IRA, 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. §68 (referring to “the geographic boundaries of any Indian reservation now existing or established hereafter”); §72 (referring to “Indians who may be appointed to the various posi tions 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., 53 U.S. 38, 52 (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, ex plained that: —————— The current version of provides “[t]hat no part of such funds shall be used to acquire additional land outside of the exterior bounda ries 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.” 10 CARCIERI v. SALAZAR Opinion of the Court “Section 19 of the Indian Reorganization Act of June 18, 193 (8 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 Lodging of Respondents5 Thus, although we do not defer to Commissioner Col lier’s interpretation of this unambiguous statute, see Estate of 505 U.S. 69, 76 we agree with his conclusion that the word “now” in limits the definition of “Indian,” and therefore limits the exercise of the Secretary’s trust authority under 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 is ambiguous. We reject them both. First, the Secretary —————— 5 In addition to serving as Commissioner of Indian Affairs, John Col lier was “a principal author of the [IRA].” United States v. Mitchell, 63 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. 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 (193). 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–2a. 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 (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)). Cite as: 555 U. S. (2009) 11 Opinion of the Court 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, 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 68 and 72, 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 Con gress used.” 2 U.S. 330, (1979). Second, the Secretary argues that 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. (citing (b), (c)(1) ). But, as explained above, Congress left no gap in 25 U.S. C. for the agency to fill. Rather, it explicitly and comprehensively defined the term by including only three discrete defini tions: “[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, 193, residing within the present boundaries of any Indian reservation, and [3] all other persons of one-half or more Indian blood.” In other statutory provisions, Congress chose to expand the Secretary’s authority to particular Indian tribes not necessarily encompassed 12 CARCIERI v. SALAZAR Opinion of the Court within the definitions of “Indian” set forth in 6 Had it understood the word “include” in to encompass tribes other than those satisfying one of the three defini tions, Congress would have not needed to enact these additional statutory references to specific Tribes. The Secretary and his amici also go beyond the statu tory text to argue that Congress had no policy justification for limiting the Secretary’s trust authority to those tribes under federal jurisdiction in 193, because the IRA was intended to strengthen Indian communities as a whole, regardless of their status in 193. Petitioners counter that the main purpose of was to reverse the loss of lands that Indians sustained under the General Allotment Act, see Atkinson Trading 532 U.S. 65, 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 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. U.S. 29, 253–257 —————— 6 See, e.g., 25 U.S. C. §73a (“Sections 65 and 79 of this title shall after May 1, 1936, apply to the Territory of Alaska”); §101e(a) (“The [Shawnee] Tribe shall be eligible to have land acquired in trust for its benefit pursuant to section 65 of this title”); §1300b–1(a) (“[Sections 65 and 79 of this title are] hereby made applicable to the [Texas] Band [of Kickapoo Indians]”); (“[Sections 65 and 79] shall apply to the members of the [Ysleta Del Ser Pueblo] tribe, the tribe, and the reservation”). 7 Because we conclude that the language of unambiguously pre cludes 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, 25 U.S. C. et seq., precludes the Secretary from exercising his authority under Cite as: 555 U. S. (2009) 13 Opinion of the Court III The Secretary and his supporting amici also offer two alternative arguments that rely on statutory provisions other than the definition of “Indian” in 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 is rendered irrelevant by the broader definition of “tribe” in 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. ” ; Brief for Respondents 12–1. But the definition of “tribe” in itself refers to “any Indian tribe” and therefore is limited by the temporal restrictions that apply to ’s definition of “Indian.” See (“The term ‘tribe’ wherever used in this Act shall be construed to refer to any Indian tribe, organ ized band, pueblo, or the Indians residing on one reserva tion” ). And, although authorizes the United States to take land in trust for an Indian tribe, 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 “In dian” in delineating the Secretary’s authority under 65 and 79. 8 —————— 8 For this reason, we disagree with the argument made by JUSTICE STEVENS that the term “Indians” in has a different meaning than the definition of “Indian” provided in and that the term’s meaning in is controlled by later-enacted regulations governing the Secre tary’s recognition of tribes like the Narragansetts. See post, at –6, 9– 11 (dissenting opinion). When Congress has enacted a definition with “detailed and unyielding provisions,” as it has in 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, 79 U.S. 85, 88–89 (1986) (per curium) (quoting Fiallo v. Bell, 30 U.S. 787, 798 (1977)). 1 CARCIERI v. SALAZAR Opinion of the Court Second, amicus National Congress of American Indians (NCAI) argues that 25 U.S. C. which was enacted as part of the Indian Land Consolidation Act (ILCA), Title II, overcomes the limitations set forth in and, in turn, authorizes the Secretary’s action. Section 2202 provides: “The provisions of section 65 of this title shall ap ply to all tribes notwithstanding the provisions of sec tion 78 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 author ity under Section 65 for the Secretary to execute the challenged trust acquisition.” NCAI Brief 8. We do not agree. The plain language of does not expand the power set forth in which requires that the Secretary take land into trust only “for the purpose of providing land for Indians.” Nor does alter the definition of “Indian” in which is limited to members of tribes that were under federal jurisdiction in 193.9 See at 7–12. Rather, by its terms simply ensures that tribes may benefit from even if they opted out of the IRA pursu ant to §78, which allowed tribal members to reject the application of the IRA to their tribe. §78 (“This Act shall —————— 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.” But is, by its express terms, applicable only to Chapter 2 of Title 25 of the United States Code. The IRA is codified in Chapter 1 of Title 25. See Section 2201, therefore, does not itself alter the authority granted to the Secretary by Cite as: 555 U. S. (2009) 15 Opinion of the Court 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 and the limita tion on the Secretary’s authority to take lands contained in Rather, provides additional protections to those who satisfied the definition of “Indian” in at the time of the statute’s enactment, but opted out of the IRA shortly thereafter. NCAI’s reading of also would nullify the plain meaning of the definition of “Indian” set forth in and incorporated into Consistent with our obligation to give effect to every provision of the statute, Reiter, 2 U.S., at we will not assume that Congress repealed the plain and unambiguous restrictions on the Secretary’s exercise of trust authority in § and 79 when it en acted “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. 25, 273 (2003) (plurality opinion) (quoting Morton v. Mancari, 17 U.S. 535, (197), and 296 U.S. 97, ). IV We hold that the term “now under Federal jurisdiction” in unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 193. None of the parties or amici, including the Narragansett Tribe itself, has argued that the Tribe was under federal jurisdiction in 193. And the evidence in the record is to the contrary. 8 Fed. Reg. 6177. Moreover, the petition for writ of certiorari filed in this case specifically represented that ‘‘[i]n 193, the Narragansett Indian Tribe was neither federally rec 16 CARCIERI v. SALAZAR Opinion of the Court ognized nor under the jurisdiction of the federal govern ment.’’ Pet. for Cert. 6. The respondents’ brief in opposi tion declined to contest this assertion. See Brief in Oppo sition 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. Cite as: 555 U. S. (2009) 1 BREYER, J., concurring SUPREME COURT OF THE UNITED STATES No. 07–526 DONALD L. CARCIERI, GOVERNOR OF RHODE ISLAND, ET AL., PETITIONERS v. KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ET AL.

Justice Breyer

concurring

Carcieri v. Salazar

2009-02-24

https://www.courtlistener.com/opinion/145908/carcieri-v-salazar/

https://www.courtlistener.com/api/rest/v3/clusters/145908/

2008-023

I join the Court’s opinion with three qualifications. First, I cannot say that the statute’s language by itself is determinative. Linguistically speaking, the word “now” in the phrase “now under Federal jurisdiction,” 25 U.S. C. §479, may refer to a tribe’s jurisdictional status as of 1934. But one could also read it to refer to the time the Secre tary of the Interior exercises his authority to take land “for Indians.” §465. Compare Montana v. Kennedy, 366 U.S. 308, 311–312 (1961) (“now” refers to time of statutory enactment), with Difford v. Secretary of HHS, 910 F.2d 1316, 1320 (CA6 1990) (“now” refers to time of exercise of delegated authority); In re Lusk’s Estate, 336 Pa. 465, 467–468, 9 A.2d 363, 365 (1939) (property “now” owned refers to property owned when a will becomes operative). I also concede that the Court owes the Interior Depart ment the kind of interpretive respect that reflects an agency’s greater knowledge of the circumstances in which a statute was enacted, cf. Skidmore v. Swift & Co., 323 U.S. 134 (1944). Yet because the Department then fa vored the Court’s present interpretation, see infra, at 2, that respect cannot help the Department here. Neither can Chevron U. S. A. Inc. v. Natural Resources 2 CARCIERI v. SALAZAR BREYER, J., concurring Defense Council, Inc., 467 U.S. 837 (1984), help the De partment. The scope of the word “now” raises an interpre tive question of considerable importance; the provision’s legislative history makes clear that Congress focused directly upon that language, believing it definitively re solved a specific underlying difficulty; and nothing in that history indicates that Congress believed departmental expertise should subsequently play a role in fixing the temporal reference of the word “now.” These circum stances indicate that Congress did not intend to delegate interpretive authority to the Department. Consequently, its interpretation is not entitled to Chevron deference, despite linguistic ambiguity. See United States v. Mead Corp., 533 U.S. 218, 227, 229–230 (2001). Second, I am persuaded that “now” means “in 1934” not only for the reasons the Court gives but also because an examination of the provision’s legislative history convinces me that Congress so intended. As I read that history, it shows that Congress expected the phrase would make clear that the Secretary could employ §465’s power to take land into trust in favor only of those tribes in respect to which the Federal Government already had the kinds of obligations that the words “under Federal jurisdiction” imply. See Hearings on S. 2755 et al.: A Bill to Grant to 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, pp. 263–266 (1934). Indeed, the very Department official who sug gested the phrase to Congress during the relevant legisla tive hearings subsequently explained its meaning in terms that the Court now adopts. See Letter from John Collier, Commissioner, to Superintendents (Mar. 7, 1936), Lodging of Respondents (explaining that §479 included “persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Cite as: 555 U. S. ____ (2009) 3 BREYER, J., concurring Act”). Third, an interpretation that reads “now” as meaning “in 1934” may prove somewhat less restrictive than it at first appears. That is because a tribe may have been “under Federal jurisdiction” in 1934 even though the Federal Government did not believe so at the time. We know, for example, that following the Indian Reorganiza tion Act’s enactment, the Department compiled a list of 258 tribes covered by the Act; and we also know that it wrongly left certain tribes off the list. See Brief for Law Professors Specializing in Federal Indian Law as Amicus Curiae 22–24; Quinn, Federal Acknowledgment of Ameri can Indian Tribes: The Historical Development of a Legal Concept, 34 Am. J. Legal Hist. 331, 356–359 (1990). The Department later recognized some of those tribes on grounds that showed that it should have recognized them in 1934 even though it did not. And the Department has sometimes considered that circumstance sufficient to show that a tribe was “under Federal jurisdiction” in 1934— even though the Department did not know it at the time. The statute, after all, imposes no time limit upon rec ognition. See §479 (“The term ‘Indian’ . . . shall include all persons of Indian descent who are members of any recog nized Indian tribe now under Federal jurisdiction . . .” (emphasis added)). And administrative practice suggests that the Department has accepted this possibility. The Department, for example, did not recognize the Stilla guamish Tribe until 1976, but its reasons for recognition in 1976 included the fact that the Tribe had maintained treaty rights against the United States since 1855. Con sequently, the Department concluded that land could be taken into trust for the Tribe. See Memorandum from Associate Solicitor, Indian Affairs to Assistant Secretary, Indian Affairs, Request for Reconsideration of Decision Not to Take Land in Trust for the Stillaguamish Tribe (Oct. 1, 1980), Lodging of Respondents 6–7. Similarly, in 4 CARCIERI v. SALAZAR BREYER, J., concurring 1934 the Department thought that the Grand Traverse Band of Ottawa and Chippewa Indians had long since been dissolved. Grand Traverse Band of Ottawa & Chip pewa Indians v. Office of U. S. Attorney for Western Dist. of Mich., 369 F.3d 960, 961, and n. 2 (CA6 2004). But later the Department recognized the Tribe, considering it to have existed continuously since 1675. 45 Fed. Reg. 19321 (1980). Further, the Department in the 1930’s thought that an anthropological study showed that the Mole Lake Tribe no longer existed. But the Department later decided that the study was wrong, and it then recog nized the Tribe. See Memorandum from the Solicitor to the Commissioner of Indian Affairs 2758, 2762–2763 (Feb. 8, 1937) (recognizing the Mole Lake Indians as a separate tribe). In my view, this possibility—that later recognition reflects earlier “Federal jurisdiction”—explains some of the instances of early Department administrative practice to which JUSTICE STEVENS refers. I would explain the other instances to which JUSTICE STEVENS refers as in volving the taking of land “for” a tribe with members who fall under that portion of the statute that defines “Indians” to include “persons of one-half or more Indian blood,” §479. See 1 Dept. of Interior, Opinions of the Solicitor Relating to Indian Affairs, 1917–1974, pp. 706–707 (Shoshone Indians), 724–725 (St. Croix Chippewas), 747–748 (Nahma and Beaver Indians) (1979). Neither the Narragansett Tribe nor the Secretary has argued that the Tribe was under federal jurisdiction in 1934. Nor have they claimed that any member of the Narragansett Tribe satisfies the “one-half or more Indian blood” requirement. And I have found nothing in the briefs that suggests the Narragansett Tribe could prevail on either theory. Each of the administrative decisions just discussed involved post-1934 recognition on grounds that implied a 1934 relationship between the tribe and Cite as: 555 U. S. ____ (2009) 5 BREYER, J., concurring Federal Government that could be described as jurisdic tional, for example, a treaty with the United States (in effect in 1934), a (pre-1934) congressional appropriation, or enrollment (as of 1934) with the Indian Office. I can find no similar indication of 1934 federal jurisdiction here. Instead, both the State and Federal Government consid ered the Narragansett Tribe as under state, but not under federal, jurisdiction in 1934. And until the 1970’s there was “little Federal contact with the Narragansetts as a group.” Memorandum from Deputy Assistant Secretary— Indian Affairs (Operations) to Assistant Scretary—Indian Affairs, Recommendation and Summary of Evidence for Proposed Finding for Federal Acknowledgment of Narra gansett Indian Tribe of Rhode Island Pursuant to 25 CFR 83, p. 8 (July 29, 1982). Because I see no realistic possi bility that the Narragansett Tribe could prevail on the basis of a theory alternative to the theories argued here, I would not remand this case. With the qualifications here expressed, I join the Court’s opinion and its judgment. Cite as: 555 U. S. ____ (2009) 1 Opinion of SOUTER, J. SUPREME COURT OF THE UNITED STATES _________________ No. 07–526 _________________ DONALD L. CARCIERI, GOVERNOR OF RHODE ISLAND, ET AL., PETITIONERS v. KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT [February 24, 2009] JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring in part and dissenting in part. Save as to one point, I agree with JUSTICE BREYER’s concurring opinion, which in turn concurs with the opinion of the Court, subject to the three qualifications JUSTICE BREYER explains. I have, however, a further reservation that puts me in the dissenting column. The disposition of the case turns on the construction of the language from 25 U.S. C. §479, “any recognized In dian tribe now under Federal jurisdiction.” Nothing in the majority opinion forecloses the possibility that the two concepts, recognition and jurisdiction, may be given sepa rate content. As JUSTICE BREYER makes clear in his concurrence, the statute imposes no time limit upon rec ognition, and in the past, the Department of the Interior has stated that the fact that the United States Govern ment was ignorant of a tribe in 1934 does not preclude that tribe from having been under federal jurisdiction at that time. See Memorandum from Associate Solicitor, Indian Affairs, to Assistant Secretary, Indian Affairs, Request for Reconsideration of Decision Not to Take Land in Trust for the Stillaguamish Tribe (Oct. 1, 1980), Lodg ing of Respondents 7. And giving each phrase its own 2 CARCIERI v. SALAZAR Opinion of SOUTER, J. meaning would be consistent with established principles of statutory interpretation. During oral argument, however, respondents explained that the Secretary’s more recent interpretation of this statutory language had “understood recognition and under Federal jurisdiction at least with respect to tribes to be one and the same.” Tr. of Oral Arg. 42. Given the Secre tary’s position, it is not surprising that neither he nor the Tribe raised a claim that the Tribe was under federal jurisdiction in 1934: they simply failed to address an issue that no party understood to be present. The error was shared equally all around, and there is no equitable de mand that one side be penalized when both sides nodded. I can agree with JUSTICE BREYER that the current re cord raises no particular reason to expect that the Tribe might be shown to have been under federal jurisdiction in 1934, but I would not stop there. The very notion of juris diction as a distinct statutory condition was ignored in this litigation, and I know of no body of precedent or his tory of practice giving content to the condition sufficient for gauging the Tribe’s chances of satisfying it. So I see no reason to deny the Secretary and the Narragansett Tribe an opportunity to advocate a construction of the “jurisdic tion” phrase that might favor their position here. I would therefore reverse and remand with opportunity for respondents to pursue a “jurisdiction” claim and re spectfully dissent from the Court’s straight reversal.* —————— * Depending on the outcome of proceedings on remand, it might be necessary to address the second potential issue in this case, going to the significance of the Rhode Island Indian Claims Settlement Act, 25 U.S. C. §1701 et seq. There is no utility in confronting it now. Cite as: 555 U. S. ____ (2009) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 07–526 _________________ DONALD L. CARCIERI, GOVERNOR OF RHODE ISLAND, ET AL., PETITIONERS v. KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ET AL.

I join the Court’s opinion with three qualifications. First, I cannot say that the statute’s language by itself is determinative. Linguistically speaking, the word “now” in the phrase “now under Federal jurisdiction,” 25 U.S. C. may refer to a tribe’s jurisdictional status as of 1934. But one could also read it to refer to the time the Secre tary of the Interior exercises his authority to take land “for Indians.” Compare Montana v. Kennedy, 366 U.S. 308, 311–312 (1) (“now” refers to time of statutory enactment), with Difford v. Secretary of HHS, 910 F.2d 1316, 1320 (CA6 1990) (“now” refers to time of exercise of delegated authority); In re Lusk’s Estate, 467–468, (property “now” owned refers to property owned when a will becomes operative). I also concede that the Court owes the Interior Depart ment the kind of interpretive respect that reflects an agency’s greater knowledge of the circumstances in which a statute was enacted, cf. Skidmore v. Swift & Co., 323 U.S. 134 (1944). Yet because the Department then fa vored the Court’s present interpretation, see infra, at 2, that respect cannot help the Department here. Neither can Chevron U. S. A. Inc. v. Natural Resources 2 help the De partment. The scope of the word “now” raises an interpre tive question of considerable importance; the provision’s legislative history makes clear that Congress focused directly upon that language, believing it definitively re solved a specific underlying difficulty; and nothing in that history indicates that Congress believed departmental expertise should subsequently play a role in fixing the temporal reference of the word “now.” These circum stances indicate that Congress did not intend to delegate interpretive authority to the Department. Consequently, its interpretation is not entitled to Chevron deference, despite linguistic ambiguity. See United Second, I am persuaded that “now” means “in 1934” not only for the reasons the Court gives but also because an examination of the provision’s legislative history convinces me that Congress so intended. As I read that history, it shows that Congress expected the phrase would make clear that the Secretary could employ power to take land into trust in favor only of those tribes in respect to which the Federal Government already had the kinds of obligations that the words “under Federal jurisdiction” imply. See Hearings on S. 2755 et al.: A Bill to Grant to 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, pp. 263–266 (1934). Indeed, the very Department official who sug gested the phrase to Congress during the relevant legisla tive hearings subsequently explained its meaning in terms that the Court now adopts. See Letter from John Collier, Commissioner, to Superintendents (Mar. 7, 1936), Lodging of Respondents (explaining that included “persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Cite as: 555 U. S. (2009) 3 BREYER, J., concurring Act”). Third, an interpretation that reads “now” as meaning “in 1934” may prove somewhat less restrictive than it at first appears. That is because a tribe may have been “under Federal jurisdiction” in 1934 even though the Federal Government did not believe so at the time. We know, for example, that following the Indian Reorganiza tion Act’s enactment, the Department compiled a list of 258 tribes covered by the Act; and we also know that it wrongly left certain tribes off the list. See Brief for Law Professors Specializing in Federal Indian Law as Amicus Curiae 22–24; Quinn, Federal Acknowledgment of Ameri can Indian Tribes: The Historical Development of a Legal Concept, 356–359 (1990). The Department later recognized some of those tribes on grounds that showed that it should have recognized them in 1934 even though it did not. And the Department has sometimes considered that circumstance sufficient to show that a tribe was “under Federal jurisdiction” in 1934— even though the Department did not know it at the time. The statute, after all, imposes no time limit upon rec ognition. See (“The term ‘Indian’ shall include all persons of Indian descent who are members of any recog nized Indian tribe now under Federal jurisdiction” (emphasis added)). And administrative practice suggests that the Department has accepted this possibility. The Department, for example, did not recognize the Stilla guamish Tribe until 1976, but its reasons for recognition in 1976 included the fact that the Tribe had maintained treaty rights against the United States since 1855. Con sequently, the Department concluded that land could be taken into trust for the Tribe. See Memorandum from Associate Solicitor, Indian Affairs to Assistant Secretary, Indian Affairs, Request for Reconsideration of Decision Not to Take Land in Trust for the Stillaguamish Tribe (Oct. 1, 1980), Lodging of Respondents 6–7. Similarly, in 4 CARCIERI v. SALAZAR BREYER, J., concurring 1934 the Department thought that the Grand Traverse Band of Ottawa and Chippewa Indians had long since been dissolved. Grand Traverse Band of Ottawa & Chip pewa But later the Department recognized the Tribe, considering it to have existed continuously since 1675. 45 Fed. Reg. 19321 (1980). Further, the Department in the 1930’s thought that an anthropological study showed that the Mole Lake Tribe no longer existed. But the Department later decided that the study was wrong, and it then recog nized the Tribe. See Memorandum from the Solicitor to the Commissioner of Indian Affairs 2758, 2762–2763 (Feb. 8, 1937) (recognizing the Mole Lake Indians as a separate tribe). In my view, this possibility—that later recognition reflects earlier “Federal jurisdiction”—explains some of the instances of early Department administrative practice to which JUSTICE STEVENS refers. I would explain the other instances to which JUSTICE STEVENS refers as in volving the taking of land “for” a tribe with members who fall under that portion of the statute that defines “Indians” to include “persons of one-half or more Indian blood,” See 1 Dept. of Interior, Opinions of the Solicitor Relating to Indian Affairs, 1917–1974, pp. 706–707 (Shoshone Indians), 724–725 (St. Croix Chippewas), 747–748 (Nahma and Beaver Indians) (1979). Neither the Narragansett Tribe nor the Secretary has argued that the Tribe was under federal jurisdiction in 1934. Nor have they claimed that any member of the Narragansett Tribe satisfies the “one-half or more Indian blood” requirement. And I have found nothing in the briefs that suggests the Narragansett Tribe could prevail on either theory. Each of the administrative decisions just discussed involved post-1934 recognition on grounds that implied a 1934 relationship between the tribe and Cite as: 555 U. S. (2009) 5 BREYER, J., concurring Federal Government that could be described as jurisdic tional, for example, a treaty with the United States (in effect in 1934), a (pre-1934) congressional appropriation, or enrollment (as of 1934) with the Indian Office. I can find no similar indication of 1934 federal jurisdiction here. Instead, both the State and Federal Government consid ered the Narragansett Tribe as under state, but not under federal, jurisdiction in 1934. And until the 1970’s there was “little Federal contact with the Narragansetts as a group.” Memorandum from Deputy Assistant Secretary— Indian Affairs (Operations) to Assistant Scretary—Indian Affairs, Recommendation and Summary of Evidence for Proposed Finding for Federal Acknowledgment of Narra gansett Indian Tribe of Rhode Island Pursuant to 25 CFR 83, p. 8 (July 29, 1982). Because I see no realistic possi bility that the Narragansett Tribe could prevail on the basis of a theory alternative to the theories argued here, I would not remand this case. With the qualifications here expressed, I join the Court’s opinion and its judgment. Cite as: 555 U. S. (2009) 1 Opinion of SOUTER, J. SUPREME COURT OF THE UNITED STATES No. 07–526 DONALD L. CARCIERI, GOVERNOR OF RHODE ISLAND, ET AL., PETITIONERS v. KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT [February 24, 2009] JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring in part and dissenting in part. Save as to one point, I agree with JUSTICE BREYER’s concurring opinion, which in turn concurs with the opinion of the Court, subject to the three qualifications JUSTICE BREYER explains. I have, however, a further reservation that puts me in the dissenting column. The disposition of the case turns on the construction of the language from 25 U.S. C. “any recognized In dian tribe now under Federal jurisdiction.” Nothing in the majority opinion forecloses the possibility that the two concepts, recognition and jurisdiction, may be given sepa rate content. As JUSTICE BREYER makes clear in his concurrence, the statute imposes no time limit upon rec ognition, and in the past, the Department of the Interior has stated that the fact that the United States Govern ment was ignorant of a tribe in 1934 does not preclude that tribe from having been under federal jurisdiction at that time. See Memorandum from Associate Solicitor, Indian Affairs, to Assistant Secretary, Indian Affairs, Request for Reconsideration of Decision Not to Take Land in Trust for the Stillaguamish Tribe (Oct. 1, 1980), Lodg ing of Respondents 7. And giving each phrase its own 2 CARCIERI v. SALAZAR Opinion of SOUTER, J. meaning would be consistent with established principles of statutory interpretation. During oral argument, however, respondents explained that the Secretary’s more recent interpretation of this statutory language had “understood recognition and under Federal jurisdiction at least with respect to tribes to be one and the same.” Tr. of Oral Arg. 42. Given the Secre tary’s position, it is not surprising that neither he nor the Tribe raised a claim that the Tribe was under federal jurisdiction in 1934: they simply failed to address an issue that no party understood to be present. The error was shared equally all around, and there is no equitable de mand that one side be penalized when both sides nodded. I can agree with JUSTICE BREYER that the current re cord raises no particular reason to expect that the Tribe might be shown to have been under federal jurisdiction in 1934, but I would not stop there. The very notion of juris diction as a distinct statutory condition was ignored in this litigation, and I know of no body of precedent or his tory of practice giving content to the condition sufficient for gauging the Tribe’s chances of satisfying it. So I see no reason to deny the Secretary and the Narragansett Tribe an opportunity to advocate a construction of the “jurisdic tion” phrase that might favor their position here. I would therefore reverse and remand with opportunity for respondents to pursue a “jurisdiction” claim and re spectfully dissent from the Court’s straight reversal.* —————— * Depending on the outcome of proceedings on remand, it might be necessary to address the second potential issue in this case, going to the significance of the Rhode Island Indian Claims Settlement Act, 25 U.S. C. et seq. There is no utility in confronting it now. Cite as: 555 U. S. (2009) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 07–526 DONALD L. CARCIERI, GOVERNOR OF RHODE ISLAND, ET AL., PETITIONERS v. KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ET AL.

Justice Stevens

dissenting

Carcieri v. Salazar

2009-02-24

https://www.courtlistener.com/opinion/145908/carcieri-v-salazar/

https://www.courtlistener.com/api/rest/v3/clusters/145908/

2008-023

Congress has used the term “Indian” in the Indian Reorganization Act of 1934 to describe those individuals who are entitled to special protections and benefits under federal Indian law. The Act specifies that benefits shall be available to individuals who qualify as Indian either as a result of blood quantum or as descendants of members of “any recognized Indian tribe now under Federal jurisdic tion.” 25 U.S. C. §479. In contesting the Secretary of the Interior’s acquisition of trust land for the Narragansett Tribe of Rhode Island, the parties have focused on the meaning of “now” in the Act’s definition of “Indian.” Yet to my mind, whether “now” means 1934 (as the Court holds) or the present time (as respondents would have it) sheds no light on the question whether the Secretary’s actions on behalf of the Narragansett were permitted under the statute. The plain text of the Act clearly authorizes the Secretary to take land into trust for Indian tribes as well as individual Indians, and it places no temporal limitation on the definition of “Indian tribe.”1 Because the Narra —————— 1 In 25 U.S. C. §479, Congress defined both “Indian” and “tribe.” Section 479 states, in relevant part: 2 CARCIERI v. SALAZAR STEVENS, J., dissenting gansett Tribe is an Indian tribe within the meaning of the Act, I would affirm the judgment of the Court of Appeals. I This case involves a challenge to the Secretary of the Interior’s acquisition of a 31-acre parcel of land in Charlestown, Rhode Island, to be held in trust for the Narragansett Tribe.2 That Tribe has existed as a continu ous political entity since the early 17th century. Although it was once one of the most powerful tribes in New Eng land, a series of wars, epidemics, and difficult relations with the State of Rhode Island sharply reduced the Tribe’s ancestral landholdings. Two blows, delivered centuries apart, exacted a particu larly high toll on the Tribe. First, in 1675, King Philip’s War essentially destroyed the Tribe, forcing it to accept the Crown as sovereign and to submit to the guardianship of the Colony of Rhode Island. Then, in 1880, the State of Rhode Island passed a “detribalization” law that abolished tribal authority, ended the State’s guardianship of the —————— “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.” Notably the word “now,” which is used to define one of the categories of Indians, does not appear in the definition of “tribe.” 2 In 1991, the Narragansett Tribe purchased the 31-acre parcel in fee simple from a private developer. In 1998, the Bureau of Indian Affairs notified the State of the Secretary’s decision to take the land into unreserved trust for the Tribe. The Tribe “acquired [the land] for the express purpose of building much needed low-income Indian Housing via a contract between the Narragansett Indian Wetuomuck Housing Authority (NIWHA) and the Department of Housing and Urban Devel opment (HUD).” App. 46a. Cite as: 555 U. S. ____ (2009) 3 STEVENS, J., dissenting Tribe, and attempted to sell all tribal lands. The Narra gansett originally assented to detribalization and ceded all but two acres of its ancestral land. In return, the Tribe received $5,000. See Memorandum from the Deputy Assistant Secretary-Indian Affairs (Operations) to Assis tant Secretary-Indian Affairs (Operations) 4 (July 19, 1982) (Recommendation for Acknowledgment). Recognizing that its consent to detribalization was a mistake, the Tribe embarked on a century-long campaign to recoup its losses.3 Obtaining federal recognition was critical to this effort. The Secretary officially recognized the Narragansett as an Indian tribe in 1983, Final Deter mination for Federal Acknowledgement of Narragansett Indian Tribe of Rhode Island, 48 Fed. Reg. 6177, and with that recognition the Tribe qualified for the bundle of fed eral benefits established in the Indian Reorganization Act of 1934 (IRA or Act),4 25 U.S. C. §461 et seq. The Tribe’s attempt to exercise one of those rights, the ability to peti tion the Secretary to take land into trust for the Tribe’s benefit, is now vigorously contested in this litigation. II The Secretary’s trust authority is located in 25 U.S. C. —————— 3 Indeed, this litigation stems in part from the Tribe’s suit against (and subsequent settlement with) Rhode Island and private landowners on the ground that the 1880 sale violated the Indian Non-Intercourse Act of June 30, 1834, ch. 161, §12, 4 Stat. 730 (25 U.S. C. §177), which prohibited sales of tribal land without “treaty or convention entered into pursuant to the Constitution.” 4 The IRA was the cornerstone of the Indian New Deal. “The intent and purpose of the [IRA] was ‘to rehabilitate the Indian’s economic life and to give him a chance to develop the initiative destroyed by a cen tury of oppression and paternalism.’ ” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152 (1973) (quoting H. R. Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934)). See generally F. Cohen, Handbook of Federal Indian Law §1.05 (2005) (hereinafter Cohen); G. Taylor, The New Deal and American Indian Tribalism: The Administration of the Indian Reor ganization Act, 1934–45 (1980). 4 CARCIERI v. SALAZAR STEVENS, J., dissenting §465. That provision grants the Secretary power to take “in trust for [an] Indian tribe or individual Indian” “any interest in lands . . . for the purpose of providing land for Indians.”5 The Act’s language could not be clearer: To effectuate the Act’s broad mandate to revitalize tribal development and cultural self-determination, the Secre tary can take land into trust for a tribe or he can take land into trust for an individual Indian. Though Congress outlined the Secretary’s trust author ity in §465, it specified which entities would be considered “tribes” and which individuals would qualify as “Indian” in §479. An individual Indian, §479 tells us, “shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction” as well as “all other persons of one-half or more Indian blood.” A tribe, §479 goes on to state, “shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation.” Because federal recognition is generally required before a tribe can receive federal benefits, the Secretary has interpreted this defini tion of “tribe” to refer only to recognized tribes. See 25 CFR §83.2 (2008) (stating that recognition “is a prerequi site to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes”); §151.2 (defining “tribe” for the purposes —————— 5 Section 465 reads more fully: “The Secretary of the Interior is authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assign ment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians. . . . . . “Title to any lands or rights acquired pursuant to this Act . . . shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.” Cite as: 555 U. S. ____ (2009) 5 STEVENS, J., dissenting of land acquisition to mean “any Indian tribe, band, na tion, pueblo, community, rancheria, colony, or other group of Indians, . . . which is recognized by the Secretary as eligible for the special programs and services from the Bureau of Indian Affairs”).6 Having separate definitions for “Indian” and “tribe” is essential for the administration of IRA benefits. The statute reflects Congress’ intent to extend certain benefits to individual Indians, e.g., 25 U.S. C. §471 (offering loans to Indian students for tuition at vocational and trade schools); §472 (granting hiring preferences to Indians seeking federal employment related to Indian affairs), while directing other benefits to tribes, e.g., §476 (allowing tribes to adopt constitutions and bylaws); §470 (giving loans to Indian-chartered corporations). Section 465, by giving the Secretary discretion to steer benefits to tribes and individuals alike, is therefore unique. But establishing this broad benefit scheme was undoubtedly intentional: The original draft of the IRA presented to Congress directed the Secretary to take land into trust only for entities such as tribes. Compare H. R. 7902, 73d Cong., 2d Sess., 30 (1934) (“Title to any land acquired pursuant to the provisions of this section shall be taken in the name of the United States in trust for the Indian tribe or community for whom the land is acquired” (emphasis added)), with 25 U.S. C. §465 (“Title to any lands or rights acquired pursuant to this Act . . . shall be —————— 6 The regulations that govern the tribal recognition process, 25 CFR §83 et seq. (2008), were promulgated pursuant to the President’s general mandate established in the early 1830’s to manage “all Indian affairs and . . . all matters arising out of Indian relations,” 25 U.S. C. §2, and to “prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs,” §9. Thus, contrary to the argument pressed by the Governor of Rhode Island before this Court, see Reply Brief for Petitioner Carcieri 9, the requirement that a tribe be federally recognized before it is eligible for trust land does not stem from the IRA. 6 CARCIERI v. SALAZAR STEVENS, J., dissenting taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired” (emphasis added)). The Secretary has long exercised his §465 trust author ity in accordance with this design. In the years immedi ately following the adoption of the IRA, the Solicitor of the Department of the Interior repeatedly advised that the Secretary could take land into trust for federally recog nized tribes and for individual Indians who qualified for federal benefits by lineage or blood quantum. For example, in 1937, when evaluating whether the Secretary could purchase approximately 2,100 acres of land for the Mole Lake Chippewa Indians of Wisconsin, the Solicitor instructed that the purchase could not be “completed until it is determined whether the beneficiary of the trust title should be designated as a band or whether the title should be taken for the individual Indi ans in the vicinity of Mole Lake who are of one half or more Indian blood.” Memorandum from the Solicitor to the Commissioner of Indian Affairs 2758 (Feb. 8, 1937). Because the Mole Lake Chippewa was not yet recognized by the Federal Government as an Indian tribe, the Solici tor determined that the Secretary had two options: “Either the Department should provide recognition of this group, or title to the purchased land should be taken on behalf of the individuals who are of one half or more Indian blood.” Id., at 2763. The tribal trust and individual trust options were simi larly outlined in other post-1934 opinion letters, including those dealing with the Shoshone Indians of Nevada, the St. Croix Chippewa Indians of Wisconsin, and the Nahma and Beaver Island Indians of Michigan. See 1 Dept. of Interior, Opinions of the Solicitor Relating to Indian Af fairs, 1917–1974, pp. 706–707, 724–725, 747–748 (1979). Unless and until a tribe was formally recognized by the Federal Government and therefore eligible for trust land, Cite as: 555 U. S. ____ (2009) 7 STEVENS, J., dissenting the Secretary would take land into trust for individual Indians who met the blood quantum threshold. Modern administrative practice has followed this well trodden path. Absent a specific statute recognizing a tribe and authorizing a trust land acquisition,7 the Secretary has exercised his trust authority—now governed by regu lations promulgated in 1980 after notice-and-comment rulemaking, 25 CFR §151 et seq.; 45 Fed. Reg. 62034—to acquire land for federally recognized Indian tribes like the Narragansett. The Grand Traverse Band of Ottowa and Chippewa Indians, although denied federal recognition in 1934 and 1943, see Dept. of Interior, Office of Federal Acknowledgement, Memorandum from Acting Deputy Commissioner to Assistant Secretary 4 (Oct. 3, 1979) (GTB–V001–D002), was the first tribe the Secretary rec ognized under the 1980 regulations, see 45 Fed. Reg. 19322. Since then, the Secretary has used his trust au thority to expand the Tribe’s land base. See, e.g., 49 Fed. Reg. 2025–2026 (1984) (setting aside a 12.5-acre parcel as reservation land for the Tribe’s exclusive use). The Tu —————— 7 Although Congress has passed specific statutes granting the Secre tary authority to take land into trust for certain tribes, it would be a mistake to conclude that the Secretary lacks residual authority to take land into trust under 25 U.S. C. §465 of the IRA. Some of these stat utes place explicit limits on the Secretary’s trust authority and can be properly read as establishing the outer limit of the Secretary’s trust authority with respect to the specified tribes. See, e.g., §1724(d) (au thorizing trust land for the Houlton Band of Maliseet Indians, the Passamaquoddy Tribe of Maine, and the Penobscot Tribe of Maine). Other statutes, while identifying certain parcels the Secretary will take into trust for a tribe, do not purport to diminish the Secretary’s residual authority under §465. See, e.g., §1775c(a) (Mohegan Tribe); §1771d (Wampanoag Tribe); §1747(a) (Miccosukee Tribe). Indeed, the Secre tary has invoked his §465 authority to take additional land into trust for the Miccosukee Tribe despite the existence of a statute authorizing and directing him to acquire certain land for the Tribe. See Post- Argument En Banc Brief for National Congress of American Indians et al. as Amici Curiae 7 and App. 9 in No. 03–2647 (CA1). 8 CARCIERI v. SALAZAR STEVENS, J., dissenting nica-Biloxi Tribe of Louisiana has similarly benefited from administrative recognition, 46 Fed. Reg. 38411 (1981), followed by tribal trust acquisition. And in 2006, the Secretary took land into trust for the Snoqualmie Tribe which, although unrecognized as an Indian tribe in the 1950’s, regained federal recognition in 1999. See 71 Fed. Reg. 5067 (taking land into trust for the Tribe); 62 Fed. Reg. 45864 (1997) (recognizing the Snoqualmie as an Indian tribe). This brief history of §465 places the case before us into proper context. Federal recognition, regardless of when it is conferred, is the necessary condition that triggers a tribe’s eligibility to receive trust land. No party has dis puted that the Narragansett Tribe was properly recog nized as an Indian tribe in 1983. See 48 Fed. Reg. 6177. Indeed, given that the Tribe has a documented history that stretches back to 1614 and has met the rigorous criteria for administrative recognition, Recommendation for Acknowledgment 1, 7–18, it would be difficult to sus tain an objection to the Tribe’s status. With this in mind, and in light of the Secretary’s longstanding authority under the plain text of the IRA to acquire tribal trust land, it is perfectly clear that the Secretary’s land acquisition for the Narragansett was entirely proper. III Despite the clear text of the IRA and historical pedigree of the Secretary’s actions on behalf of the Narragansett, the majority holds that one word (“now”) nestled in one clause in one of §479’s several definitions demonstrates that the Secretary acted outside his statutory authority in this case. The consequences of the majority’s reading are both curious and harsh: curious because it turns “now” into the most important word in the IRA, limiting not only some individuals’ eligibility for federal benefits but also a tribe’s; harsh because it would result in the unsupportable Cite as: 555 U. S. ____ (2009) 9 STEVENS, J., dissenting conclusion that, despite its 1983 administrative recogni tion, the Narragansett Tribe is not an Indian tribe under the IRA. In the Court’s telling, when Congress granted the Secre tary power to acquire trust land “for the purpose of provid ing land for Indians,” 25 U.S. C. §465 (emphasis added), it meant to permit land acquisitions for those persons whose tribal membership qualify them as “Indian” as defined by §479. In other words, the argument runs, the Secretary can acquire trust land for “persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” §479. This strained construction, advanced by petitioners, explains the majority’s laser-like focus on the meaning of “now”: If the Narragansett Tribe was not recognized or under federal jurisdiction in 1934, the Tribe’s members do not belong to an Indian tribe “now under Federal jurisdiction” and would therefore not be “Indians” under §465 by virtue of their tribal membership. Petitioners’ argument works only if one reads “Indians” (in the phrase in §465 “providing land for Indians”) to refer to individuals, not an Indian tribe. To petitioners, this reading is obvious; the alternative, they insist, would be “nonsensical.” Reply Brief for Petitioner State of Rhode Island 3. This they argue despite the clear evidence of Congress’ intent to provide the Secretary with the option of acquiring either tribal trusts or individual trusts in service of “providing land for Indians.” And they ignore unambiguous evidence that Congress used “Indian tribe” and “Indians” interchangeably in other parts of the IRA. See §475 (discussing “any claim or suit of any Indian tribe against the United States” in the first sentence and “any claim of such Indians against the United States” in the last sentence (emphasis added)). In any event, this much must be admitted: Without the benefit of context, a reasonable person could conclude that “Indians” refers to multiple individuals who each qualify 10 CARCIERI v. SALAZAR STEVENS, J., dissenting as “Indian” under the IRA. An equally reasonable person could also conclude that “Indians” is meant to refer to a collective, namely, an Indian tribe. Because “[t]he mean ing—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), the proper course of action is to widen the interpretive lens and look to the rest of the statute for clarity. Doing so would lead to §465’s last sentence, which specifies that the Secretary is to hold land in trust “for the Indian tribe or individual Indian for which the land is acquired.” Put simply, in §465 Congress used the term “Indians” to refer both to tribes and individuals.8 The majority nevertheless dismisses this reading of the statute. The Court notes that even if the Secretary has authority to take land into trust for a tribe, it must be an “Indian tribe,” with §479’s definition of “Indian” determin ing a tribe’s eligibility. The statute’s definition of “tribe,” the majority goes on to state, itself makes reference to “Indian tribe.” Thus, the Court concludes, “[t]here simply is no legitimate way to circumvent the definition of ‘In dian’ in delineating the Secretary’s authority under §479.” Ante, at 13. The majority bypasses a straightforward explanation on its way to a circular one. Requiring that a tribe be an “Indian tribe” does not demand immediate reference to the definition of “Indian”; instead, it simply reflects the re quirement that the tribe in question be formally recog nized as an Indian tribe. As explained above, the Secre tary has limited benefits under federal Indian law— including the acquisition of trust land—to recognized —————— 8 The majority continues to insist, quite incorrectly, that Congress meant the term “Indians” in §465 to have the same meaning as the term “Indian” in §479. That the text of the statute tells a different story appears to be an inconvenience the Court would rather ignore. Cite as: 555 U. S. ____ (2009) 11 STEVENS, J., dissenting tribes. Recognition, then, is the central requirement for being considered an “Indian tribe” for purposes of the Act. If a tribe satisfies the stringent criteria established by the Secretary to qualify for federal recognition, including the requirement that the tribe prove that it “has existed as a community from historical times until the present,” 25 CFR §83.7(b) (2008), it is a fortiori an “Indian tribe” as a matter of law. The Narragansett Tribe is no different. In 1983, upon meeting the criteria for recognition, the Secretary gave notice that “the Narragansett Indian Tribe . . . exists as an Indian tribe.” 48 Fed. Reg. 6177 (emphasis added). How the Narragansett could be an Indian tribe in 1983 and yet not be an Indian tribe today is a proposition the majority cannot explain. The majority’s retort, that because “tribe” refers to “Indian,” the definition of “Indian” must control which groups can be considered a “tribe,” is entirely circular. Yes, the word “tribe” is defined in part by reference to “Indian tribe.” But the word “Indian” is also defined in part by reference to “Indian tribe.” Relying on one defini tion to provide content to the other is thus “completely circular and explains nothing.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). The Governor of Rhode Island, for his part, adopts this circular logic and offers two examples of why reading the statute any other way would be implausible. He first argues that if §479’s definition of “Indian” does not deter mine a tribe’s eligibility, the Secretary would have author ity to take land into trust “for the benefit of any group that he deems, at his whim and fancy, to be an ‘Indian tribe.’ ” Reply Brief for Petitioner Carcieri 7. The Governor carica tures the Secretary’s discretion. This Court has long made clear that Congress—and therefore the Secretary—lacks constitutional authority to “bring a community or body of people within [federal jurisdiction] by arbitrarily calling 12 CARCIERI v. SALAZAR STEVENS, J., dissenting them an Indian tribe.” United States v. Sandoval, 231 U.S. 28, 46 (1913). The Governor’s next objection, that condoning the acquisition of trust land for the Narragan sett Tribe would allow the Secretary to acquire land for an Indian tribe that lacks Indians, is equally unpersuasive. As a general matter, to obtain federal recognition, a tribe must demonstrate that its “membership consists of indi viduals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.” 25 CFR §83.7(e) (2008). If the Governor suspects that the Narragansett is not an Indian tribe because it may lack members who are blood quantum Indians, he should have challenged the Secretary’s decision to recognize the Tribe in 1983 when such an objection could have been properly received.9 —————— 9 The Department of the Interior found “a high degree of retention of [Narragansett] family lines” between 1880 and 1980, and remarked that “[t]he close intermarriage and stability of composition, plus the geographic stability of the group, reflect the maintenance of a socially distinct community.” Recommendation for Acknowledgment 10. It also noted that the Narragansett “require applicants for full voting mem bership to trace their Narragansett Indian bloodlines back to the ‘Detribalization Rolls of 1880–84.’ ” Id., at 16. The record in this case does not tell us how many members of the Narragansett currently qualify as “Indian” by meeting the individual blood quantum require ment. Indeed, it is possible that a significant number of the Narragan sett are blood quantum Indians. Accordingly, nothing the Court decides today prevents the Secretary from taking land into trust for those members of the Tribe who independently qualify as “Indian” under 25 U.S. C. §479. Although the record does not demonstrate how many members of the Narragansett qualify as blood quantum Indians, JUSTICE BREYER nevertheless assumes that no member of the Tribe is a blood quantum Indian. Ante, at 4 (concurring opinion). This assumption is misguided for two reasons. To start, the record’s silence on this matter is to be expected; the parties have consistently focused on the Secretary’s authority to take land into trust for the Tribe, not for individual mem bers of the Tribe. There is thus no legitimate basis for interpreting the lack of record evidence as affirmative proof that none of the Tribe’s Cite as: 555 U. S. ____ (2009) 13 STEVENS, J., dissenting In sum, petitioners’ arguments—and the Court’s conclu sion—are based on a misreading of the statute. “[N]ow,” the temporal limitation in the definition of “Indian,” only affects an individual’s ability to qualify for federal benefits under the IRA. If this case were about the Secretary’s decision to take land into trust for an individual who was incapable of proving her eligibility by lineage or blood quantum, I would have no trouble concluding that such an action was contrary to the IRA. But that is not the case before us. By taking land into trust for a validly recog nized Indian tribe, the Secretary acted well within his statutory authority.10 IV The Court today adopts a cramped reading of a statute Congress intended to be “sweeping” in scope. Morton v. Mancari, 417 U.S. 535, 542 (1974). In so doing, the Court ignores the “principle deeply rooted in [our] Indian juris prudence” that “ ‘statutes are to be construed liberally in favor of the Indians.’ ” County of Yakima v. Confederated —————— members are “Indian.” Second, neither the statute nor the relevant regulations mandate that a tribe have a threshold amount of blood quantum Indians as members in order to receive trust land. JUSTICE BREYER’s unwarranted assumption about the Narragansett’s member ship, even if true, would therefore also be irrelevant to whether the Secretary’s actions were proper. 10 Petitioners advance the additional argument that the Secretary lacks authority to take land into trust for the Narragansett because the Rhode Island Indian Claims Settlement Act, 92 Stat. 813, 25 U.S. C. §1701 et seq., implicitly repealed the Secretary’s §465 trust authority as applied to lands in Rhode Island. This claim plainly fails. While the Tribe agreed to subject the 1,800 acres it obtained in the Settlement Act to the State’s civil and criminal laws, §1708(a), the 31-acre parcel of land at issue here was not part of the settlement lands. And, critically, nothing in the text of the Settlement Act suggests that Con- gress intended to prevent the Secretary from acquiring additional parcels of land in Rhode Island that would be exempt from the State’s jurisdiction. 14 CARCIERI v. SALAZAR STEVENS, J., dissenting Tribes and Bands of Yakima Nation, 502 U.S. 251, 269 (1992) (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 767–768 (1985)); see also Cohen §2.02[1], p. 119 (“The basic Indian law canons of construction require that trea ties, agreements, statutes, and executive orders be liber ally construed in favor of the Indians”). Given that the IRA plainly authorizes the Secretary to take land into trust for an Indian tribe, and in light of the Narragansett’s status as such, the Court’s decision can be best understood as protecting one sovereign (the State) from encroachment from another (the Tribe). Yet in mat ters of Indian law, the political branches have been en trusted to mark the proper boundaries between tribal and state jurisdiction. See U. S. Const., Art. I, §8, cl. 3; Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989); Worcester v. Georgia, 6 Pet. 515, 559 (1832). With the IRA, Congress drew the boundary in a manner that favors the Narragansett. I respectfully dissent

Congress has used the term “Indian” in the Indian Reorganization Act of 1934 to describe those individuals who are entitled to special protections and benefits under federal Indian law. The Act specifies that benefits shall be available to individuals who qualify as Indian either as a result of blood quantum or as descendants of members of “any recognized Indian tribe now under Federal jurisdic tion.” 25 U.S. C. In contesting the Secretary of the Interior’s acquisition of trust land for the Narragansett Tribe of Rhode Island, the parties have focused on the meaning of “now” in the Act’s definition of “Indian.” Yet to my mind, whether “now” means 1934 (as the Court holds) or the present time (as respondents would have it) sheds no light on the question whether the Secretary’s actions on behalf of the Narragansett were permitted under the statute. The plain text of the Act clearly authorizes the Secretary to take land into trust for Indian tribes as well as individual Indians, and it places no temporal limitation on the definition of “Indian tribe.”1 Because the Narra —————— 1 In 25 U.S. C. Congress defined both “Indian” and “tribe.” Section 479 states, in relevant part: 2 CARCIERI v. SALAZAR STEVENS, J., dissenting gansett Tribe is an Indian tribe within the meaning of the Act, I would affirm the judgment of the Court of Appeals. I This case involves a challenge to the Secretary of the Interior’s acquisition of a 31-acre parcel of land in Charlestown, Rhode Island, to be held in trust for the Narragansett Tribe.2 That Tribe has existed as a continu ous political entity since the early 17th century. Although it was once one of the most powerful tribes in New Eng land, a series of wars, epidemics, and difficult relations with the State of Rhode Island sharply reduced the Tribe’s ancestral landholdings. Two blows, delivered centuries apart, exacted a particu larly high toll on the Tribe. First, in 1675, King Philip’s War essentially destroyed the Tribe, forcing it to accept the Crown as sovereign and to submit to the guardianship of the Colony of Rhode Island. Then, in 1880, the State of Rhode Island passed a “detribalization” law that abolished tribal authority, ended the State’s guardianship of the —————— “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.” Notably the word “now,” which is used to define one of the categories of Indians, does not appear in the definition of “tribe.” 2 In 1991, the Narragansett Tribe purchased the 31-acre parcel in fee simple from a private developer. In 1998, the Bureau of Indian Affairs notified the State of the Secretary’s decision to take the land into unreserved trust for the Tribe. The Tribe “acquired [the land] for the express purpose of building much needed low-income Indian Housing via a contract between the Narragansett Indian Wetuomuck Housing Authority (NIWHA) and the Department of Housing and Urban Devel opment (HUD).” App. 46a. Cite as: 555 U. S. (2009) 3 STEVENS, J., dissenting Tribe, and attempted to sell all tribal lands. The Narra gansett originally assented to detribalization and ceded all but two acres of its ancestral land. In return, the Tribe received $5,000. See Memorandum from the Deputy Assistant Secretary-Indian Affairs (Operations) to Assis tant Secretary-Indian Affairs (Operations) 4 (July 19, 1982) (Recommendation for Acknowledgment). Recognizing that its consent to detribalization was a mistake, the Tribe embarked on a century-long campaign to recoup its losses.3 Obtaining federal recognition was critical to this effort. The Secretary officially recognized the Narragansett as an Indian tribe in 1983, Final Deter mination for Federal Acknowledgement of Narragansett Indian Tribe of Rhode Island, and with that recognition the Tribe qualified for the bundle of fed eral benefits established in the Indian Reorganization Act of 1934 (IRA or Act),4 25 U.S. C. et seq. The Tribe’s attempt to exercise one of those rights, the ability to peti tion the Secretary to take land into trust for the Tribe’s benefit, is now vigorously contested in this litigation. II The Secretary’s trust authority is located in 25 U.S. C. —————— 3 Indeed, this litigation stems in part from the Tribe’s suit against (and subsequent settlement with) Rhode Island and private landowners on the ground that the 1880 sale violated the Indian Non-Intercourse Act of June 30, 1834, ch. 161, (quoting H. R. Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934)). See generally F. Cohen, Handbook of Federal Indian Law (2005) (hereinafter Cohen); G. Taylor, The New Deal and American Indian Tribalism: The Administration of the Indian Reor ganization Act, 1934–45 (1980). 4 CARCIERI v. SALAZAR STEVENS, J., dissenting That provision grants the Secretary power to take “in trust for [an] Indian tribe or individual Indian” “any interest in lands for the purpose of providing land for Indians.”5 The Act’s language could not be clearer: To effectuate the Act’s broad mandate to revitalize tribal development and cultural self-determination, the Secre tary can take land into trust for a tribe or he can take land into trust for an individual Indian. Though Congress outlined the Secretary’s trust author ity in it specified which entities would be considered “tribes” and which individuals would qualify as “Indian” in An individual Indian, tells us, “shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction” as well as “all other persons of one-half or more Indian blood.” A tribe, goes on to state, “shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation.” Because federal recognition is generally required before a tribe can receive federal benefits, the Secretary has interpreted this defini tion of “tribe” to refer only to recognized tribes. See 25 CFR (2008) (stating that recognition “is a prerequi site to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes”); (defining “tribe” for the purposes —————— 5 Section 465 reads more fully: “The Secretary of the Interior is authorized, in his discretion, to acquire, through purchase, relinquishment, gift, exchange, or assign ment, any interest in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments whether the allottee be living or deceased, for the purpose of providing land for Indians. “Title to any lands or rights acquired pursuant to this Act shall be taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired, and such lands or rights shall be exempt from State and local taxation.” Cite as: 555 U. S. (2009) 5 STEVENS, J., dissenting of land acquisition to mean “any Indian tribe, band, na tion, pueblo, community, rancheria, colony, or other group of Indians, which is recognized by the Secretary as eligible for the special programs and services from the Bureau of Indian Affairs”).6 Having separate definitions for “Indian” and “tribe” is essential for the administration of IRA benefits. The statute reflects Congress’ intent to extend certain benefits to individual Indians, e.g., 25 U.S. C. (offering loans to Indian students for tuition at vocational and trade schools); (granting hiring preferences to Indians seeking federal employment related to Indian affairs), while directing other benefits to tribes, e.g., (allowing tribes to adopt constitutions and bylaws); (giving loans to Indian-chartered corporations). Section 465, by giving the Secretary discretion to steer benefits to tribes and individuals alike, is therefore unique. But establishing this broad benefit scheme was undoubtedly intentional: The original draft of the IRA presented to Congress directed the Secretary to take land into trust only for entities such as tribes. Compare H. R. 7902, 73d Cong., 2d Sess., 30 (1934) (“Title to any land acquired pursuant to the provisions of this section shall be taken in the name of the United States in trust for the Indian tribe or community for whom the land is acquired” ), with 25 U.S. C. (“Title to any lands or rights acquired pursuant to this Act shall be —————— 6 The regulations that govern the tribal recognition process, 25 CFR et seq. (2008), were promulgated pursuant to the President’s general mandate established in the early 1830’s to manage “all Indian affairs and all matters arising out of Indian relations,” 25 U.S. C. and to “prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs,” Thus, contrary to the argument pressed by the Governor of Rhode Island before this Court, see Reply Brief for Petitioner Carcieri 9, the requirement that a tribe be federally recognized before it is eligible for trust land does not stem from the IRA. 6 CARCIERI v. SALAZAR STEVENS, J., dissenting taken in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired” ). The Secretary has long exercised his trust author ity in accordance with this design. In the years immedi ately following the adoption of the IRA, the Solicitor of the Department of the Interior repeatedly advised that the Secretary could take land into trust for federally recog nized tribes and for individual Indians who qualified for federal benefits by lineage or blood quantum. For example, in 1937, when evaluating whether the Secretary could purchase approximately 2,100 acres of land for the Mole Lake Chippewa Indians of Wisconsin, the Solicitor instructed that the purchase could not be “completed until it is determined whether the beneficiary of the trust title should be designated as a band or whether the title should be taken for the individual Indi ans in the vicinity of Mole Lake who are of one half or more Indian blood.” Memorandum from the Solicitor to the Commissioner of Indian Affairs 2758 (Feb. 8, 1937). Because the Mole Lake Chippewa was not yet recognized by the Federal Government as an Indian tribe, the Solici tor determined that the Secretary had two options: “Either the Department should provide recognition of this group, or title to the purchased land should be taken on behalf of the individuals who are of one half or more Indian blood.” The tribal trust and individual trust options were simi larly outlined in other post-1934 opinion letters, including those dealing with the Shoshone Indians of Nevada, the St. Croix Chippewa Indians of Wisconsin, and the Nahma and Beaver Island Indians of Michigan. See 1 Dept. of Interior, Opinions of the Solicitor Relating to Indian Af fairs, 1917–1974, pp. 706–707, 724–725, 747–748 (1979). Unless and until a tribe was formally recognized by the Federal Government and therefore eligible for trust land, Cite as: 555 U. S. (2009) 7 STEVENS, J., dissenting the Secretary would take land into trust for individual Indians who met the blood quantum threshold. Modern administrative practice has followed this well trodden path. Absent a specific statute recognizing a tribe and authorizing a trust land acquisition,7 the Secretary has exercised his trust authority—now governed by regu lations promulgated in 1980 after notice-and-comment rulemaking, et seq.; —to acquire land for federally recognized Indian tribes like the Narragansett. The Grand Traverse Band of Ottowa and Chippewa Indians, although denied federal recognition in 1934 and 1943, see Dept. of Interior, Office of Federal Acknowledgement, Memorandum from Acting Deputy Commissioner to Assistant Secretary 4 (Oct. 3, 1979) (GTB–V001–D002), was the first tribe the Secretary rec ognized under the 1980 regulations, see 45 Fed. Reg. 19322. Since then, the Secretary has used his trust au thority to expand the Tribe’s land base. See, e.g., 49 Fed. Reg. 2025–2026 (1984) (setting aside a 12.5-acre parcel as reservation land for the Tribe’s exclusive use). The Tu —————— 7 Although Congress has passed specific statutes granting the Secre tary authority to take land into trust for certain tribes, it would be a mistake to conclude that the Secretary lacks residual authority to take land into trust under 25 U.S. C. of the IRA. Some of these stat utes place explicit limits on the Secretary’s trust authority and can be properly read as establishing the outer limit of the Secretary’s trust authority with respect to the specified tribes. See, e.g., (au thorizing trust land for the Houlton Band of Maliseet Indians, the Passamaquoddy Tribe of Maine, and the Penobscot Tribe of Maine). Other statutes, while identifying certain parcels the Secretary will take into trust for a tribe, do not purport to diminish the Secretary’s residual authority under See, e.g., (Mohegan Tribe); (Wampanoag Tribe); (Miccosukee Tribe). Indeed, the Secre tary has invoked his authority to take additional land into trust for the Miccosukee Tribe despite the existence of a statute authorizing and directing him to acquire certain land for the Tribe. See Post- Argument En Banc Brief for National Congress of American Indians et al. as Amici Curiae 7 and App. 9 in No. 03–2647 (CA1). 8 CARCIERI v. SALAZAR STEVENS, J., dissenting nica-Biloxi Tribe of Louisiana has similarly benefited from administrative recognition, (1981), followed by tribal trust acquisition. And in 2006, the Secretary took land into trust for the Snoqualmie Tribe which, although unrecognized as an Indian tribe in the 1950’s, regained federal recognition in 1999. See 71 Fed. Reg. 5067 (taking land into trust for the Tribe); 62 Fed. Reg. 45864 (1997) (recognizing the Snoqualmie as an Indian tribe). This brief history of places the case before us into proper context. Federal recognition, regardless of when it is conferred, is the necessary condition that triggers a tribe’s eligibility to receive trust land. No party has dis puted that the Narragansett Tribe was properly recog nized as an Indian tribe in 1983. See Indeed, given that the Tribe has a documented history that stretches back to 1614 and has met the rigorous criteria for administrative recognition, Recommendation for Acknowledgment 1, 7–18, it would be difficult to sus tain an objection to the Tribe’s status. With this in mind, and in light of the Secretary’s longstanding authority under the plain text of the IRA to acquire tribal trust land, it is perfectly clear that the Secretary’s land acquisition for the Narragansett was entirely proper. III Despite the clear text of the IRA and historical pedigree of the Secretary’s actions on behalf of the Narragansett, the majority holds that one word (“now”) nestled in one clause in one of ’s several definitions demonstrates that the Secretary acted outside his statutory authority in this case. The consequences of the majority’s reading are both curious and harsh: curious because it turns “now” into the most important word in the IRA, limiting not only some individuals’ eligibility for federal benefits but also a tribe’s; harsh because it would result in the unsupportable Cite as: 555 U. S. (2009) 9 STEVENS, J., dissenting conclusion that, despite its 1983 administrative recogni tion, the Narragansett Tribe is not an Indian tribe under the IRA. In the Court’s telling, when Congress granted the Secre tary power to acquire trust land “for the purpose of provid ing land for Indians,” 25 U.S. C. it meant to permit land acquisitions for those persons whose tribal membership qualify them as “Indian” as defined by In other words, the argument runs, the Secretary can acquire trust land for “persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” This strained construction, advanced by petitioners, explains the majority’s laser-like focus on the meaning of “now”: If the Narragansett Tribe was not recognized or under federal jurisdiction in 1934, the Tribe’s members do not belong to an Indian tribe “now under Federal jurisdiction” and would therefore not be “Indians” under by virtue of their tribal membership. Petitioners’ argument works only if one reads “Indians” (in the phrase in “providing land for Indians”) to refer to individuals, not an Indian tribe. To petitioners, this reading is obvious; the alternative, they insist, would be “nonsensical.” Reply Brief for Petitioner State of Rhode Island 3. This they argue despite the clear evidence of Congress’ intent to provide the Secretary with the option of acquiring either tribal trusts or individual trusts in service of “providing land for Indians.” And they ignore unambiguous evidence that Congress used “Indian tribe” and “Indians” interchangeably in other parts of the IRA. See (discussing “any claim or suit of any Indian tribe against the United States” in the first sentence and “any claim of such Indians against the United States” in the last sentence ). In any event, this much must be admitted: Without the benefit of context, a reasonable person could conclude that “Indians” refers to multiple individuals who each qualify 10 CARCIERI v. SALAZAR STEVENS, J., dissenting as “Indian” under the IRA. An equally reasonable person could also conclude that “Indians” is meant to refer to a collective, namely, an Indian tribe. Because “[t]he mean ing—or ambiguity—of certain words or phrases may only become evident when placed in context,” the proper course of action is to widen the interpretive lens and look to the rest of the statute for clarity. Doing so would lead to ’s last sentence, which specifies that the Secretary is to hold land in trust “for the Indian tribe or individual Indian for which the land is acquired.” Put simply, in Congress used the term “Indians” to refer both to tribes and individuals.8 The majority nevertheless dismisses this reading of the statute. The Court notes that even if the Secretary has authority to take land into trust for a tribe, it must be an “Indian tribe,” with ’s definition of “Indian” determin ing a tribe’s eligibility. The statute’s definition of “tribe,” the majority goes on to state, itself makes reference to “Indian tribe.” Thus, the Court concludes, “[t]here simply is no legitimate way to circumvent the definition of ‘In dian’ in delineating the Secretary’s authority under ” Ante, at 13. The majority bypasses a straightforward explanation on its way to a circular one. Requiring that a tribe be an “Indian tribe” does not demand immediate reference to the definition of “Indian”; instead, it simply reflects the re quirement that the tribe in question be formally recog nized as an Indian tribe. As explained above, the Secre tary has limited benefits under federal Indian law— including the acquisition of trust land—to recognized —————— 8 The majority continues to insist, quite incorrectly, that Congress meant the term “Indians” in to have the same meaning as the term “Indian” in That the text of the statute tells a different story appears to be an inconvenience the Court would rather ignore. Cite as: 555 U. S. (2009) 11 STEVENS, J., dissenting tribes. Recognition, then, is the central requirement for being considered an “Indian tribe” for purposes of the Act. If a tribe satisfies the stringent criteria established by the Secretary to qualify for federal recognition, including the requirement that the tribe prove that it “has existed as a community from historical times until the present,” 25 CFR7(b) (2008), it is a fortiori an “Indian tribe” as a matter of law. The Narragansett Tribe is no different. In 1983, upon meeting the criteria for recognition, the Secretary gave notice that “the Narragansett Indian Tribe exists as an Indian tribe.” How the Narragansett could be an Indian tribe in 1983 and yet not be an Indian tribe today is a proposition the majority cannot explain. The majority’s retort, that because “tribe” refers to “Indian,” the definition of “Indian” must control which groups can be considered a “tribe,” is entirely circular. Yes, the word “tribe” is defined in part by reference to “Indian tribe.” But the word “Indian” is also defined in part by reference to “Indian tribe.” Relying on one defini tion to provide content to the other is thus “completely circular and explains nothing.” Nationwide Mut. Ins. Co. v. Darden, The Governor of Rhode Island, for his part, adopts this circular logic and offers two examples of why reading the statute any other way would be implausible. He first argues that if ’s definition of “Indian” does not deter mine a tribe’s eligibility, the Secretary would have author ity to take land into trust “for the benefit of any group that he deems, at his whim and fancy, to be an ‘Indian tribe.’ ” Reply Brief for Petitioner Carcieri 7. The Governor carica tures the Secretary’s discretion. This Court has long made clear that Congress—and therefore the Secretary—lacks constitutional authority to “bring a community or body of people within [federal jurisdiction] by arbitrarily calling 12 CARCIERI v. SALAZAR STEVENS, J., dissenting them an Indian tribe.” United States v. Sandoval, 231 U.S. 28, 46 (1913). The Governor’s next objection, that condoning the acquisition of trust land for the Narragan sett Tribe would allow the Secretary to acquire land for an Indian tribe that lacks Indians, is equally unpersuasive. As a general matter, to obtain federal recognition, a tribe must demonstrate that its “membership consists of indi viduals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.” 25 CFR7(e) (2008). If the Governor suspects that the Narragansett is not an Indian tribe because it may lack members who are blood quantum Indians, he should have challenged the Secretary’s decision to recognize the Tribe in 1983 when such an objection could have been properly received.9 —————— 9 The Department of the Interior found “a high degree of retention of [Narragansett] family lines” between 1880 and 1980, and remarked that “[t]he close intermarriage and stability of composition, plus the geographic stability of the group, reflect the maintenance of a socially distinct community.” Recommendation for Acknowledgment 10. It also noted that the Narragansett “require applicants for full voting mem bership to trace their Narragansett Indian bloodlines back to the ‘Detribalization Rolls of 1880–84.’ ” The record in this case does not tell us how many members of the Narragansett currently qualify as “Indian” by meeting the individual blood quantum require ment. Indeed, it is possible that a significant number of the Narragan sett are blood quantum Indians. Accordingly, nothing the Court decides today prevents the Secretary from taking land into trust for those members of the Tribe who independently qualify as “Indian” under 25 U.S. C. Although the record does not demonstrate how many members of the Narragansett qualify as blood quantum Indians, JUSTICE BREYER nevertheless assumes that no member of the Tribe is a blood quantum Indian. Ante, at 4 (concurring opinion). This assumption is misguided for two reasons. To start, the record’s silence on this matter is to be expected; the parties have consistently focused on the Secretary’s authority to take land into trust for the Tribe, not for individual mem bers of the Tribe. There is thus no legitimate basis for interpreting the lack of record evidence as affirmative proof that none of the Tribe’s Cite as: 555 U. S. (2009) 13 STEVENS, J., dissenting In sum, petitioners’ arguments—and the Court’s conclu sion—are based on a misreading of the statute. “[N]ow,” the temporal limitation in the definition of “Indian,” only affects an individual’s ability to qualify for federal benefits under the IRA. If this case were about the Secretary’s decision to take land into trust for an individual who was incapable of proving her eligibility by lineage or blood quantum, I would have no trouble concluding that such an action was contrary to the IRA. But that is not the case before us. By taking land into trust for a validly recog nized Indian tribe, the Secretary acted well within his statutory authority.10 IV The Court today adopts a cramped reading of a statute Congress intended to be “sweeping” in scope. Morton v. Mancari, In so doing, the Court ignores the “principle deeply rooted in [our] Indian juris prudence” that “ ‘statutes are to be construed liberally in favor of the Indians.’ ” County of Yakima v. Confederated —————— members are “Indian.” Second, neither the statute nor the relevant regulations mandate that a tribe have a threshold amount of blood quantum Indians as members in order to receive trust land. JUSTICE BREYER’s unwarranted assumption about the Narragansett’s member ship, even if true, would therefore also be irrelevant to whether the Secretary’s actions were proper. 10 Petitioners advance the additional argument that the Secretary lacks authority to take land into trust for the Narragansett because the Rhode Island Indian Claims Settlement Act, 25 U.S. C. et seq., implicitly repealed the Secretary’s trust authority as applied to lands in Rhode Island. This claim plainly fails. While the Tribe agreed to subject the 1,800 acres it obtained in the Settlement Act to the State’s civil and criminal laws, the 31-acre parcel of land at issue here was not part of the settlement lands. And, critically, nothing in the text of the Settlement Act suggests that Con- gress intended to prevent the Secretary from acquiring additional parcels of land in Rhode Island that would be exempt from the State’s jurisdiction. 14 (quoting 767–768 (1985)); see also Cohen p. 119 (“The basic Indian law canons of construction require that trea ties, agreements, statutes, and executive orders be liber ally construed in favor of the Indians”). Given that the IRA plainly authorizes the Secretary to take land into trust for an Indian tribe, and in light of the Narragansett’s status as such, the Court’s decision can be best understood as protecting one sovereign (the State) from encroachment from another (the Tribe). Yet in mat ters of Indian law, the political branches have been en trusted to mark the proper boundaries between tribal and state jurisdiction. See U. S. Const., Art. I, cl. 3; Cotton Petroleum ; With the IRA, Congress drew the boundary in a manner that favors the Narragansett. I respectfully dissent

Justice Kennedy

majority

National Cable & Telecommunications Assn., Inc. v. Gulf Power Co.

2002-01-16

https://www.courtlistener.com/opinion/118477/national-cable-telecommunications-assn-inc-v-gulf-power-co/

https://www.courtlistener.com/api/rest/v3/clusters/118477/

2001-018

I Since the inception of cable television, cable companies have sought the means to run a wire into the home of each subscriber. They have found it convenient, and often essential, to lease space for their cables on telephone and electric utility poles. Utilities, in turn, have found it convenient to charge monopoly rents. Congress first addressed these transactions in 1978, by enacting the Pole Attachments Act, 92 Stat. 35, as amended, 47 U.S. C. § 224 (1994 ed.), which requires the Federal Communications Commission (FCC) to "regulate the rates, *331 terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable." § 224(b). (The Act is set forth in full in the Appendix, infra. ) The cases now before us present two questions regarding the scope of the Act. First, does the Act reach attachments that provide both cable television and high-speed (broadband) Internet service? Second, does it reach attachments by wireless telecommunications providers? Both questions require us to interpret what constitutes a "pole attachment" under the Act. In the original Act a "pole attachment" was defined as "any attachment by a cable television system to a pole, duct, conduit, or right-of-way owned or controlled by a utility," § 224(a)(4). The Telecommunications Act of 1996, § 703, 110 Stat. 150, expanded the definition to include, as an additional regulated category, "any attachment by a . . .provider of telecommunications service." § 224(a)(4) (1994 ed., Supp. V). Cable companies had begun providing high-speed Internet service, as well as traditional cable television, over their wires even before 1996. The FCC had interpreted the Act to cover pole attachments for these commingled services, and its interpretation had been approved by the Court of Appeals for the District of Columbia Circuit. Texas Util. Elec. Co. v. FCC, 997 F.2d 925, 927, 929 (1993). Finding nothing in the 1996 amendments to change its view on this question, the FCC continued to assert jurisdiction over pole attachments for these particular commingled services. In re Implementation of Section 703(e) of the Telecommunications Act of 1996: Amendment of the Commission's Rules and Policies Governing Pole Attachments, 13 FCC Rcd. 6777 (1998). In the same order the FCC concluded further that the amended Act covers attachments by wireless telecommunications providers. "[T]he use of the word `any' *332 precludes a position that Congress intended to distinguish between wire and wireless attachments." Id., at 6798. Certain pole-owning utilities challenged the FCC's order in various Courts of Appeals. See 47 U.S. C. § 402(a) (1994 ed.); 28 U.S. C. § 2342 (1994 ed.). The challenges were consolidated in the Court of Appeals for the Eleventh Circuit, see § 2112(a), which reversed the FCC on both points. 208 F.3d 1263 (2000). On the question of commingled services, the court held that the two specific rate formulas in 47 U.S. C. §§ 224(d)(3) and (e)(1) (1994 ed., Supp. V) narrow the general definition of pole attachments. The first formula applies to "any pole attachment used by a cable television system solely to provide cable service," § 224(d)(3), and the second applies to "pole attachments used by telecommunications carriers to provide telecommunications services," § 224(e)(1). The majority concluded that attachments for commingled services are neither, and that "no other rates are authorized." 208 F.3d, at 1276, n. 29. Because it found that neither rate formula covers commingled services, it ruled those attachments must be excluded from the Act's coverage. On the wireless question, the majority relied on the statutory definition of "utility": "any person . . . who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications." § 224(a)(1). The majority concluded that the definition of "utility" informed the definition of "pole attachment," restricting it to attachments used, at least in part, for wire communications. Attachments for wireless communications, it held, are excluded by negative implication. Id., at 1274. Judge Carnes dissented on these two issues. In his view, §§ 224(a)(4) and (b) "unambiguously giv[e] the FCC regulatory authority over wireless telecommunications service and Internet service." Id., at 1281 (opinion concurring in part and dissenting in part). We granted certiorari. 531 U.S. 1125 (2001). *333 II We turn first to the question whether the Act applies to attachments that provide high-speed Internet access at the same time as cable television, the commingled services at issue here. As we have noted, the Act requires the FCC to "regulate the rates, terms, and conditions for pole attachments," § 224(b) (1994 ed.), and defines these to include "any attachment by a cable television system," § 224(a)(4) (1994 ed., Supp. V). These provisions resolve the question. No one disputes that a cable attached by a cable television company, which provides only cable television service, is an attachment "by a cable television system." If one day its cable provides high-speed Internet access, in addition to cable television service, the cable does not cease, at that instant, to be an attachment "by a cable television system." The addition of a service does not change the character of the attaching entity—the entity the attachment is "by." And this is what matters under the statute. This is our own, best reading of the statute, which we find unambiguous. If the statute were thought ambiguous, however, the FCC's reading must be accepted nonetheless, provided it is a reasonable interpretation. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984). Respondents' burden, then, is not merely to refute the proposition that "any attachment" means "any attachment"; they must prove also the FCC's interpretation is unreasonable. This they cannot do. Some respondents now advance an interpretation of the statute not presented to the Court of Appeals, or, so far as our review discloses, to the FCC. They contend it is wrong to concentrate on whose attachment is at issue; the question, they say, is what does the attachment do? Under this approach, an attachment is only an attachment by a cable television system to the extent it is used to provide cable television. To the extent it does other things, it falls outside the ambit of the Act, and respondents may charge whatever *334 rates they choose. To make this argument, respondents rely on a statutory definition of "cable system" (which the FCC treats as synonymous with "cable television system," see 47 CFR § 76.5(a) (2000)). The definition begins as follows: "[T]he term `cable system' means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community." 47 U.S. C. § 522(7) (1994 ed., Supp. V). The first part of the definition would appear to cover commingled services, but the definition goes on to exclude "a facility of a common carrier . . . except that such facility shall be considered a cable system . . . to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services." Ibid. Respondents assert that "most major cable companies are now common carriers [since they also provide] residential and/or commercial telephone service." Brief for Respondents American Electric Power Service Corp. et al. 20. If so, they contend, then for purposes of § 224(a)(4), a facility that provides commingled cable television and Internet service is a "cable television system" only "to the extent that" it provides cable television. Even if a cable company is a common carrier because it provides telephone service, of course, the attachment might still fall under the second half of the "pole attachments" definition: "any attachment by a . . . provider of telecommunications service." § 224(a)(4). This argument, and the related assertion that "most major cable companies are now common carriers," need not be considered by us in the first instance, when neither the FCC nor the Court of Appeals has had the opportunity to pass upon the points. There is a factual premise here, as well as an application of the statute to the facts, that the FCC and the Court of Appeals ought *335 to have the opportunity to address in the first instance. This does not leave the cases in doubt, however. Even if a "cable television system" is best thought of as a certain "facility" rather than a certain type of entity, respondents still must confront the problem that the statute regulates attachments "by" (rather than "of") these facilities. The word "by" still limits pole attachments by who is doing the attaching, not by what is attached. So even if a cable television system is only a cable television system "to the extent" it provides cable television, an "attachment . . . by a cable television system" is still (entirely) an attachment "by" a cable television system whether or not it does other things as well. The Court of Appeals based its ruling on a different theory. The statute sets two different formulas for just and reasonable rates—one for pole attachments "used by a cable television system solely to provide cable service," § 224(d)(3), and one for those "used by telecommunications carriers to provide telecommunications services," § 224(e)(1). In a footnote, the Court of Appeals concluded without analysis that "subsections (d) and (e) narrow (b)(1)'s general mandate to set just and reasonable rates." 208 F.3d, at 1276, n. 29. In its view, Congress would not have provided two specific rate formulas, and yet left a residual category for which the FCC would derive its own view of just and reasonable rates. "The straightforward language of subsections (d) and (e) directs the FCC to establish two specific just and reasonable rates . . . ; no other rates are authorized." Ibid. This conclusion has no foundation in the plain language of §§ 224(a)(4) and (b). Congress did indeed prescribe two formulas for "just and reasonable" rates in two specific categories; but nothing about the text of §§ 224(d) and (e) (1994 ed. and Supp. V), and nothing about the structure of the Act, suggest that these are the exclusive rates allowed. It is true that specific statutory language should control more general language when there is a conflict between the two. *336 Here, however, there is no conflict. The specific controls but only within its self-described scope. The sum of the transactions addressed by the rate formulas—§ 224(d)(3) (1994 ed., Supp. V) (attachments "used by a cable television system solely to provide cable service") and § 224(e)(1) (attachments "used by telecommunications carriers to provide telecommunications services")—is less than the theoretical coverage of the Act as a whole. Section 224(a)(4) reaches "any attachment by a cable television system or provider of telecommunications service." The first two subsections are simply subsets of—but not limitations upon—the third. Likewise, nothing about the 1996 amendments suggests an intent to decrease the jurisdiction of the FCC. To the contrary, the amendments' new provisions extend the Act to cover telecommunications. As we have noted, commingled services were covered under the statute as first enacted, in the views of the FCC and the Court of Appeals for the District of Columbia Circuit. Texas Util. Elec. Co. v. FCC, 997 F.2d 925 (1993). Before 1996, it is true, the grant of authority in §§ 224(a)(4) and (b) was coextensive with the application of the single rate formula in § 224(d). The 1996 amendments limited § 224(d) to attachments used by a cable television system "solely to provide cable service," but—despite Texas Util. Elec. Co. —did not so limit "pole attachment" in § 224(a)(4). At this point, coextensiveness ended. Cable television systems that also provide Internet service are still covered by §§ 224(a)(4) and (b)—just as they were before 1996—whether or not they are now excluded from the specific rate formula of § 224(d); if they are, this would simply mean that the FCC must prescribe just and reasonable rates for them without necessary reliance upon a specific statutory formula devised by Congress. The Court of Appeals held that §§ 224(d) and (e) implicitly limit the reach of §§ 224(a)(4) and (b); as a result, it was compelled to reach the question of the correct categorization *337 of Internet services—that is, whether these services are "cable service," § 224(d)(3), or "telecommunications services," § 224(e)(1). It held that they are neither. By contrast, we hold that §§ 224(d) and (e) work no limitation on §§ 224(a)(4) and (b); for this reason, and because we granted certiorari only to determine the scope of the latter provisions, we need not decide the scope of the former. The FCC had to go a step further, because once it decided that it had jurisdiction over attachments providing commingled services, it then had to set a just and reasonable rate. Again, no rate challenge is before us, but we note that the FCC proceeded in a sensible fashion. It first decided that Internet services are not telecommunications services: "Several commentators suggested that cable operators providing Internet service should be required to pay the Section 224(e) telecommunications rate. We disagree. . . . Under [our] precedent, a cable television system providing Internet service over a commingled facility is not a telecommunications carrier subject to the revised rate mandated by Section 224(e) by virtue of providing Internet service." 13 FCC Rcd., at 6794— 6795 (footnotes omitted). After deciding Internet services are not telecommunications services, the FCC then found that it did not need to decide whether they are cable services: "Regardless of whether such commingled services constitute `solely cable services' under Section 224(d)(3), we believe that the subsection (d) rate should apply. If the provision of such services over a cable television system is a `cable service' under Section 224(d)(3), then the rate encompassed by that section would clearly apply. Even if the provision of Internet service over a cable television system is deemed to be neither `cable service' nor `telecommunications service' under the existing definitions, the Commission is still obligated under Section *338 224(b)(1) to ensure that the `rates, terms and conditions [for pole attachments] are just and reasonable,' . . . [a]nd we would, in our discretion, apply the subsection (d) rate as a `just and reasonable rate.' " Id., at 6795— 6796 (footnote omitted). Respondents are frustrated by the FCC's refusal to categorize Internet services, and doubly frustrated by the FCC's contingent decision that even if commingled services are not "cable service," those services nevertheless warrant the § 224(d) rate. On the first point, though, decision-makers sometimes dodge hard questions when easier ones are dispositive; and we cannot fault the FCC for taking this approach. The second point, in essence, is a challenge to the rate the FCC has chosen, a question not now before us. We note that the FCC, subsequent to the order under review, has reiterated that it has not yet categorized Internet service. See, e. g., Pet. for Cert. in No. 00-843, p. 15, n. 4. It has also suggested a willingness to reconsider its conclusion that Internet services are not telecommunications. See, e. g., In re Inquiry Concerning High-Speed Access to Internet Over Cable and Other Facilities, 15 FCC Rcd. 19287, 19294 (2000). Of course, the FCC has power to reconsider prior decisions. The order under review in this litigation, however, is both logical and unequivocal. If the FCC should reverse its decision that Internet services are not telecommunications, only its choice of rate, and not its assertion of jurisdiction, would be implicated by the reversal. In this suit, though, we address only whether pole attachments that carry commingled services are subject to FCC regulation at all. The question is answered by §§ 224(a)(4) and (b), and the answer is yes. Even if the FCC decides, in the end, that Internet service is not "cable service," the result obtained by its interpretation of §§ 224(a)(4) and (b) is sensible. Congress may well have chosen to define a "just and reasonable" rate for pure cable television service, yet declined to produce a prospective *339 formula for commingled cable service. The latter might be expected to evolve in directions Congress knew it could not anticipate. As it was in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the subject matter here is technical, complex, and dynamic; and as a general rule, agencies have authority to fill gaps where the statutes are silent, id., at 843-844. It might have been thought prudent to provide set formulas for telecommunications service and "solely cable service," and to leave unmodified the FCC's customary discretion in calculating a "just and reasonable" rate for commingled services. This result is more sensible than the one for which respondents contend. On their view, if a cable company attempts to innovate at all and provide anything other than pure television, it loses the protection of the Pole Attachments Act and subjects itself to monopoly pricing. The resulting contradiction of long-standing interpretation—on which cable companies have relied since before the 1996 amendments to the Act—would defeat Congress' general instruction to the FCC to "encourage the deployment" of broadband Internet capability and, if necessary, "to accelerate deployment of such capability by removing barriers to infrastructure investment." Pub. L. 104-104, Tit. VII, §§ 706(a), (b), and (c)(1), 110 Stat. 153, note following 47 U.S. C. § 157 (1994 ed., Supp. V). This congressional policy underscores the reasonableness of the FCC's interpretation: Cable attachments providing commingled services come within the ambit of the Act. III The second question presented is whether and to what extent the equipment of wireless telecommunications providers is susceptible of FCC regulation under the Act. The Eleventh Circuit held that "the act does not provide the FCC with authority to regulate wireless carriers." 208 F.3d, at 1275. All parties now agree this holding was overstated. *340 "[T]o the extent a wireless carrier seeks to attach a wireline facility to a utility pole . . . the wireline attachment is subject to Section 224." Brief for Respondents American Electric Power Service Corp. et al. 31; see also Brief for Respondents Atlantic City Electric Co. et al. 40; Brief for Repondent TXU Electric Co. 18; Brief for Respondent Florida Power & Light Co. 10-11. We agree, and we so hold. The dispute that remains becomes a narrow one. Are some attachments by wireless telecommunications providers—those, presumably, which are composed of distinctively wireless equipment—excluded from the coverage of the Act? Again, the dispositive text requires the FCC to "regulate the rates, terms, and conditions for pole attachments," § 224(b) (1994 ed.), and defines these to include "any attachment by a . . . provider of telecommunications service," § 224(a)(4) (1994 ed., Supp. V). "Telecommunications service," in turn, is defined as the offering of telecommunications to the public for a fee, "regardless of the facilities used," § 153(46). A provider of wireless telecommunications service is a "provider of telecommunications service," so its attachment is a "pole attachment." Once more, respondents seek refuge in other parts of the statute. A "utility" is defined as an entity "who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications." § 224(a)(1). The definition, though, concerns only whose poles are covered, not which attachments are covered. Likewise, the rate formula is based upon the poles' "usable space," which is defined as "the space above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment," § 224(d)(2) (1994 ed.). This definition, too, does not purport to limit which pole attachments are covered. In short, nothing in § 224(a)(1) or § 224(d)(2) limits § 224(a)(4) or § 224(b). Even if they did, moreover, respondents still would need to confront the provision for "associated *341 equipment." As noted above, respondents themselves concede that attachments of wires by wireless providers of telecommunications service are covered by the Act. See supra, at 339-340. It follows, in our view, that "associated equipment" which is indistinguishable from the "associated equipment" of wire-based telecommunications providers would also be covered. Respondents must demand a distinction between prototypical wire-based "associated equipment" and the wireless "associated equipment" to which they object. The distinction, they contend, is required by the economic rationale of the Act. The very reason for the Act is that—as to wires—utility poles constitute a bottleneck facility, for which utilities could otherwise charge monopoly rents. Poles, they say, are not a bottleneck facility for the siting of at least some, distinctively wireless equipment, like antennas. These can be located anywhere sufficiently high. The economic analysis may be correct as far as it goes. Yet the proposed distinction—between prototypical wirebased "associated equipment" and the wireless "associated equipment" which allegedly falls outside of the rationale of the Act—finds no support in the text, and, based on our present understanding of the record before us, appears quite difficult to draw. Congress may have decided that the difficulties of drawing such a distinction would burden the orderly administration of the Act. In any event, the FCC was not unreasonable in declining to draw this distinction; and if the text were ambiguous, we would defer to its judgment on this technical question. IV Respondents insist that "any attachment" cannot mean "any attachment." Surely, they say, the Act cannot cover billboards, or clotheslines, or anything else that a cable television system or provider of telecommunications service should fancy attaching to a pole. Since the literal reading is absurd, they contend, there must be a limiting principle. *342 Appendix to opinion of the Court The FCC did not purport either to enunciate or to disclaim a specific limiting principle, presumably because, in its view, the attachments at issue here did not test the margins of the Act. The term "any attachment by a cable television system" covers at least those attachments which do in fact provide cable television service, and "any attachment by a . . . provider of telecommunications service" covers at least those which in fact provide telecommunications. Attachments of other sorts may be examined by the agency in the first instance. The attachments at issue in this suit—ones which provide commingled cable and Internet service and ones which provide wireless telecommunications—fall within the heartland of the Act. The agency's decision, therefore, to assert jurisdiction over these attachments is reasonable and entitled to our deference. The judgment of the Court of Appeals for the Eleventh Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Justice O'Connor took no part in the consideration or decision of these cases. APPENDIX TO OPINION OF THE COURT 47 U.S. C. § 224. Pole attachments (a) Definitions As used in this section: (1) The term "utility" means any person who is a local exchange carrier or an electric, gas, water, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications. Such term does not include any railroad, any person who is cooperatively organized, or any person owned by the Federal Government or any State. *343 (2) The term "Federal Government" means the Government of the United States or any agency or instrumentality thereof. (3) The term "State" means any State, territory, or possession of the United States, the District of Columbia, or any political subdivision, agency, or instrumentality thereof. (4) The term "pole attachment" means any attachment by a cable television system or provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a utility. (5) For purposes of this section, the term "telecommunications carrier" (as defined in section 153 of this title) does not include any incumbent local exchange carrier as defined in section 251(h) of this title. (b) Authority of Commission to regulate rates, terms, and conditions; enforcement powers; promulgation of regulations (1) Subject to the provisions of subsection (c) of this sec(1) the tion, Commission shall regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable, and shall adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions. For purposes of enforcing any determinations resulting from complaint procedures established pursuant to this subsection, the Commission shall take such action as it deems appropriate and necessary, including issuing cease and desist orders, as authorized by section 312(b) of this title. (2) The Commission shall prescribe by rule regulations to carry out the provisions of this section. (c) State regulatory authority over rates, terms, and conditions; preemption; certification; circumstances constituting State regulation (1) Nothing in this section shall be construed to apply to, or to give the Commission jurisdiction with respect to rates, terms, and conditions, or access to poles, ducts, conduits, and *344 Appendix to opinion of the Court rights-of-way as provided in subsection (f) of this section, for pole attachments in any case where such matters are regulated by a State. (2) Each State which regulates the rates, terms, and conditions for pole attachments shall certify to the Commission that— (A) it regulates such rates, terms, and conditions; and (B) in so regulating such rates, terms, and conditions, the State has the authority to consider and does consider the interests of the subscribers of the services offered via such attachments, as well as the interests of the consumers of the utility services. (3) For purposes of this subsection, a State shall not be considered to regulate the rates, terms, and conditions for pole attachments— (A) unless the State has issued and made effective rules and regulations implementing the State's regulatory authority over pole attachments; and (B) with respect to any individual matter, unless the State takes final action on a complaint regarding such matter— (i) within 180 days after the complaint is filed with the State, or (ii) within the applicable period prescribed for such final action in such rules and regulations of the State, if the prescribed period does not extend beyond 360 days after the filing of such complaint. (d) Determination of just and reasonable rates; "usable space" defined (1) For purposes of subsection (b) of this section, a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and *345 actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way. (2) As used in this subsection, the term "usable space" means the space above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment. (3) This subsection shall apply to the rate for any pole attachment used by a cable television system solely to provide cable service. Until the effective date of the regulations required under subsection (e) of this section, this subsection shall also apply to the rate for any pole attachment used by a cable system or any telecommunications carrier (to the extent such carrier is not a party to a pole attachment agreement) to provide any telecommunications service. (e) Regulations governing charges; apportionment of costs of providing space (1) The Commission shall, no later than 2 years after February 8, 1996, prescribe regulations in accordance with this subsection to govern the charges for pole attachments used by telecommunications carriers to provide telecommunications services, when the parties fail to resolve a dispute over such charges. Such regulations shall ensure that a utility charges just, reasonable, and nondiscriminatory rates for pole attachments. (2) A utility shall apportion the cost of providing space on a pole, duct, conduit, or right-of-way other than the usable space among entities so that such apportionment equals two-thirds of the costs of providing space other than the usable space that would be allocated to such entity under an equal apportionment of such costs among all attaching entities. (3) A utility shall apportion the cost of providing usable space among all entities according to the percentage of usable space required for each entity. (4) The regulations required under paragraph (1) shall become effective 5 years after February 8, 1996. Any increase *346 Appendix to opinion of the Court in the rates for pole attachments that result from the adoption of the regulations required by this subsection shall be phased in equal annual increments over a period of 5 years beginning on the effective date of such regulations. (f) Nondiscriminatory access (1) A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it. (2) Notwithstanding paragraph (1), a utility providing electric service may deny a cable television system or any telecommunications carrier access to its poles, ducts, conduits, or rights-of-way, on a non-discriminatory basis where there is insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes. (g) Imputation to costs of pole attachment rate A utility that engages in the provision of telecommunications services or cable services shall impute to its costs of providing such services (and charge any affiliate, subsidiary, or associate company engaged in the provision of such services) an equal amount to the pole attachment rate for which such company would be liable under this section. (h) Modification or alteration of pole, duct, conduit, or right-of-way Whenever the owner of a pole, duct, conduit, or rightof-way intends to modify or alter such pole, duct, conduit, or right-of-way, the owner shall provide written notification of such action to any entity that has obtained an attachment to such conduit or right-of-way so that such entity may have a reasonable opportunity to add to or modify its existing attachment. Any entity that adds to or modifies its existing attachment after receiving such notification shall bear a proportionate share of the costs incurred by the owner in making such pole, duct, conduit, or right-of-way accessible. (i) Costs of rearranging or replacing attachment An entity that obtains an attachment to a pole, conduit, or right-of-way shall not be required to bear any of the costs *347 of rearranging or replacing its attachment, if such rearrangement or replacement is required as a result of an additional attachment or the modification of an existing attachment sought by any other entity (including the owner of such pole, duct, conduit, or right-of-way). Justice Thomas, with whom Justice Souter joins, concurring in part and dissenting in part. I join Parts I and III of the Court's opinion because I agree that the Pole Attachments Act, 47 U.S. C. § 224 (1994 ed. and Supp. V), grants the Federal Communications Commission (FCC or Commission) jurisdiction to regulate attachments by wireless telecommunications providers. The Court's conclusion in Part II of its opinion that the Act gives the FCC the authority to regulate rates for attachments providing commingled cable television service and high-speed Internet access may be correct as well. Nevertheless, because the FCC failed to engage in reasoned decision-making before asserting jurisdiction over attachments transmitting these commingled services, I cannot agree with the Court that the judgment below should be reversed and the FCC's decision on this point allowed to stand. Instead, I would vacate the Court of Appeals' judgment and remand the cases to the FCC with instructions that the Commission clearly explain the specific statutory basis on which it is regulating rates for attachments that provide commingled cable television service and high-speed Internet access. Such a determination would require the Commission to decide at long last whether high-speed Internet access provided through cable wires constitutes cable service or telecommunications service or falls into neither category. I As these cases have been presented to this Court, the dispute over the FCC's authority to regulate rates for attachments providing commingled cable television service and high-speed Internet access turns on one central question: *348 whether 47 U.S. C. § 224(b)(1)'s general grant of authority empowers the FCC to regulate rates for "pole attachments," § 224(a)(4) (1994 ed., Supp. V), that are not covered by either of the Act's two specific rate methodologies, § 224(d) and § 224(e) (1994 ed. and Supp. V). Petitioners, including the FCC, contend that § 224(b)(1) (1994 ed.) authorizes the Commission to regulate rates for all "pole attachments" as that term is defined in § 224(a)(4) (1994 ed., Supp. V). Respondents, on the other hand, argue that the FCC may only regulate rates for attachments covered by one of the two specific rate methodologies set forth in the Act, the position adopted by the Court of Appeals below. It is not at all clear, however, that the disputed attachments at issue here—those providing both cable television programming and high-speed Internet access—are attachments for which neither of the Act's two specific rate methodologies applies. The FCC has made no determination with respect to this issue that this Court (or any other court) can review. Indeed, there is nothing in the record indicating whether any pole attachments currently exist that fall within the terms of § 224(a)(4) yet are not covered by either of the Act's specific rate methodologies. Consequently, the specific legal issue the Court chooses to address is, at this time, nothing more than a tempest in a teapot. The disputed attachments here provide two distinct services: conventional cable television programming and high-speed Internet access. No party disputes the FCC's conclusion that conventional cable television programming constitutes cable service. See ante, at 333. Crucially, however, the FCC has made no determination as to the proper statutory classification of high-speed Internet access using cable modem technology. In fact, in asserting its authority to regulate rates for attachments providing commingled cable television service and high-speed Internet access, the Commission explicitly declined to address the issue: "We need not decide at this time . . . the precise category into which Internet services fit." In re Implementation of Sec- *349 tion 703(e) of the Telecommunications Act of 1996: Amendment of the Commission's Rules and Policies Governing Pole Attachments, 13 FCC Rcd. 6777, 6795 (1998). In their petition for certiorari, the Government and the FCC explained that the FCC proceeded in this manner "because the classification of cable Internet access as `cable service,' `telecommunications service,' or some other form of service is the subject of ongoing proceedings before the Commission concerning issues outside the Pole Attachments Act," and it "`d[id] not intend . . . to foreclose any aspect of the Commission's ongoing examination of those issues.' " Pet. for Cert. in No. 00-843, p. 5, n. 2 (quoting 13 FCC Rcd., at 6795). The statutory scheme, however, does not permit the FCC to avoid this question. None of the parties disputes that the two specific rate methodologies set forth in the Act are mandatory if applicable. If an attachment by a cable television system is used solely to provide cable service, the rate for that attachment must be set pursuant to the methodology contained in § 224(d). See 47 U.S. C. § 224(d)(3). And, if an attachment is used to provide telecommunications service, the rate for that attachment must be set pursuant to the methodology contained in § 224(e). As a result, before the FCC may regulate rates for a category of attachments, the statute requires the FCC to make at least two determinations: whether the attachments are used "solely to provide cable service" and whether the attachments are used to provide "telecommunications service." Here, however, the FCC has failed to take either necessary step. For if high-speed Internet access using cable modem technology is a cable service,[1] then attachments providing commingled cable television programming and high-speed Internet access are used solely to provide cable service, and the rates for these attachments must be regulated pursuant to § 224(d)'s methodology. Or if, on the other hand, such Internet *350 access constitutes a telecommunications service,[2] then these attachments are used to provide telecommunications service and must be regulated pursuant to § 224(e)'s rate methodology.[3] Only after determining whether either of the Act's mandatory rate methodologies applies to particular attachments and answering that question in the negative does the statute allow the FCC to examine whether it may define a "just and reasonable" rate for those attachments pursuant to § 224(b)(1). Had the FCC engaged in such reasoned decision-making below and concluded that it had the authority to regulate rates for attachments used to provide commingled cable television service and high-speed Internet access even though high-speed Internet access using cable modem technology constitutes neither cable service nor telecommunications service, then this Court would have been able to review the Commission's order in a logical manner. We first would have asked whether the Commission had permissibly classified the services provided by these attachments. And, if we answered that question in the affirmative, we would then (and only then) have asked whether the FCC has the authority under § 224(b)(1) to regulate rates for attachments where Congress has not provided an applicable rate methodology. Instead, the FCC asks this Court to sustain its authority to regulate rates for attachments providing commingled cable television programming and high-speed Internet access, even though it has yet to articulate the specific statutory basis for its authority to regulate these attachments. Yet, as Justice Harlan noted some years ago: "Judicial review of [an agency's] orders will . . . function accurately and efficaciously *351 only if the [agency] indicates fully and carefully the methods by which . . . it has chosen to act." Permian Basin Area Rate Cases, 390 U.S. 747, 792 (1968). Here, the FCC obviously has fallen far short of this standard. The FCC seems to hold open the following options: (a) Rates for attachments providing commingled cable television programming and high-speed Internet access may be regulated pursuant to § 224(d)'s rate methodology; (b) rates for these attachments may be regulated pursuant to § 224(e)'s rate methodology; or (c) rates for these attachments may be regulated under the FCC's general authority to define "just and reasonable" rates pursuant to § 224(b)(1). To be sure, the Commission has rejected a fourth possible option advanced by respondents: that it lacks any authority to regulate rates for attachments providing commingled cable television programming and high-speed Internet access. But if the FCC wishes to regulate rates for these attachments, the statute requires the Commission to do more. Eliminating only one of four possible answers in this instance does not constitute reasoned decision-making. For these reasons, the FCC's attempt to regulate rates for attachments providing commingled cable television service and high-speed Internet access while refusing to classify the services provided by these attachments is "arbitrary, capricious," and "not in accordance with law." 5 U.S. C. § 706(2)(A). I would therefore remand these cases to the FCC for the Commission to identify the specific statutory basis for its authority to regulate rates for attachments providing commingled cable television programming and high-speed Internet access: 47 U.S. C. § 224(d), § 224(e), or § 224(b)(1) (1994 ed. and Supp. V). II Notwithstanding the FCC's failure to classify the services provided by the attachments at issue in these cases, the Court nonetheless concludes that the FCC's analysis below *352 was adequate. Proceeding from the premise that the Commission in fact has determined that high-speed Internet access using cable modem technology is not a telecommunications service, see ante, at 337, the Court finds that the Commission, after reaching this conclusion, was not required to determine whether the attachments here are used solely to provide cable service. Even if the FCC had concluded that these attachments are not used solely to provide cable service, the Court notes that the FCC indicated it would have used its power under § 224(b)(1) to apply § 224(d)'s rate methodology regardless. See ante, at 337-338. Under the Court's reasoning, this is therefore a case of six of one, a half dozen of another. Either the FCC must apply § 224(d)'s methodology to attachments providing commingled cable television programming and high-speed Internet access because such attachments are used solely to provide cable service, see § 224(d)(3) (1994 ed., Supp. V), or the FCC has exercised its power under § 224(b)(1) (1994 ed.) to regulate the rates for these attachments and has chosen to "apply the [§ 224(d)] rate as a `just and reasonable' rate." 13 FCC Rcd., at 6796. The problem with this position is twofold. A First, the FCC has not conclusively determined that highspeed Internet access using cable modem technology is not a telecommunications service. Admittedly, the FCC's discussion of the topic in its order below was opaque.[4] The *353 Commission, however, has since made its lack of a position on the issue unambiguous. The FCC has not represented to this Court that highspeed Internet access provided through cable wires is not a telecommunications service. To the contrary, it has made its agnosticism on the topic quite clear. In its petition for *354 certiorari, for instance, the FCC complained that the Court of Appeals "mistakenly felt compelled to address whether a cable company's provision of Internet access is properly characterized as a `cable service,' a `telecommunications service,' or an `information service.' " Pet. for Cert. in No. 00-843, p. 15, n. 4. It then clearly stated, "To date, the FCC has taken no position on that issue." Ibid. (emphasis added). The FCC not only repeated this contention in its merits brief, see Brief for Petitioners in No. 00-843, p. 30, but also explicitly asked this Court not to evaluate whether high-speed Internet access using cable modem technology is "a `cable service,' a `telecommunications service,' or some other kind of service," ibid., even if we concluded such an inquiry was necessary to determine whether the FCC could regulate rates for attachments providing commingled cable television programming and high-speed Internet access. The reason it gave for this request was simple: The FCC should be allowed to "address the characterization issue in the first instance. " Id., at 31 (emphasis added). Outside of this litigation, the FCC has also unambiguously indicated that it holds "no position" as to whether high-speed Internet access using cable modem technology constitutes a telecommunications service. For example, in an amicus curiae brief submitted to the United States Court of Appeals for the Ninth Circuit, the FCC stated: "To date, the Commission has not decided whether broadband capability offered over cable facilities is a `cable service' under the Communications Act, or instead should be classified as `telecommunications' or as an `information service.' The answer to this question is far from clear." Brief for FCC as Amicus Curiae in AT&T Corp. v. Portland, No. 99-35609 (CA9), p. 19.[5] Just last year, in fact, the Commission issued a notice *355 of inquiry seeking comment on the proper statutory classification of high-speed Internet access using cable modem technology. See In re Inquiry Concerning High-Speed Access to Internet Over Cable and Other Facilities, 15 FCC Rcd. 19287 (2000). In this notice of inquiry, the FCC specifically sought comment on, among other issues, whether such Internet access "is a telecommunications service," see id., at 19294, at no point indicating that the FCC had ever taken any position on the issue. The Court's conclusion that the FCC has already decided that high-speed Internet access using cable modem technology is not a telecommunications service thus stands in stark contrast to the FCC's own view of the matter. "[T]he Commission has not determined whether Internet access via cable system facilities should be classified as a `cable service' subject to Title VI of the Act, or as a `telecommunications' or `information service' subject to Title II. There may well come a time when it will be necessary and useful from a policy perspective for the Commission to make these legal determinations." In re Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations from Media One Group, Inc., to AT&T Corp., 15 FCC Rcd. 9816, 9872 (2000) (footnote omitted). The Court, however, does not dispute that reasoned decision-making required the FCC to make the "legal determination" whether high-speed Internet access using cable modem technology constitutes a telecommunications service nearly four years ago when the Commission asserted its authority *356 to regulate rates for attachments providing commingled cable television programming and high-speed Internet access. Instead, the Court mistakenly concludes that the Commission has reached a decision on the issue. In the Court's view, the FCC's repeated statements that it has not determined whether high-speed Internet access using cable modem technology constitutes a telecommunications service only reflect the "[Commission's] willingness to reconsider its conclusion that Internet services are not telecommunications." Ante, at 338. The relevant issue here, however, is not whether Internet service is a telecommunications service. Rather, it is whether high-speed Internet access provided through cable wires constitutes a telecommunications service. The two questions are entirely distinct, see n. 4, supra, and, as shown above, the FCC has never answered the latter question and has indicated as much no less than six times in recent years.[6] These cases therefore should be remanded to the FCC on this basis alone. B Second, even if the FCC had determined that high-speed Internet access provided through cable wires does not constitute a telecommunications service, these cases still would need to be remanded to the FCC. In order to endorse the FCC's primary argument that § 224(b)(1) provides the Commission with the authority to regulate rates for attachments not covered by either of the Act's specific rate methodologies, §§ 224(d) and 224(e), it seems necessary, as a matter of logic, for such attachments to exist. But as both the FCC and the *357 Court admit, the attachments here very well may be addressed by one of the Act's rate formulas. Moreover, neither the FCC nor the Court advances a single example of any attachment that is a covered "pole attachment" under the definition provided in § 224(a)(4) (1994 ed., Supp. V) but is not covered by either of the Act's specific rate methodologies. This obviously suggests a dilemma: If all attachments covered by the Act are in fact addressed by the Act's specific rate methodologies, then the coverage of § 224(a)(4) is not greater than the sum of §§ 224(d) and (e), and the FCC has no residual power to define "just and reasonable" rates for attachments pursuant to § 224(b)(1) (1994 ed.). Yet the Court affirms that the FCC indeed possesses just such authority. Unable to provide a single example of an attachment not addressed by either of the Act's specific rate methodologies, the most the Court can argue is that "[t]he sum of the transactions addressed by the rate formulas . . . is less than the theoretical coverage of the Act as a whole." Ante, at 336 (emphasis added). The Court, though, offers no reasoning whatsoever in support of this observation, nor does it have any basis in the record. Leaving aside that which may or may not be theoretically possible, I do not have a view at the present time as to whether any attachments exist that are covered "pole attachments" under the Act, see § 224(a)(4) (1994 ed., Supp. V), but do not fall within the ambit of § 224(d) or § 224(e) (1994 ed. and Supp. V).[7] I do question, however, whether Congress *358 contemplated the existence of such attachments. Before 1996, the parties agree that the FCC did not possess any general authority to define "just and reasonable" rates for attachments pursuant to § 224(b)(1); rates for all attachments were set pursuant to the formula contained in § 224(d).[8] And if Congress in 1996 intended to transform § 224(b)(1) into a provision empowering the FCC to define "just and reasonable" rates for attachments, it did so in an odd manner: The 1996 amendments to the Act did not change a single word in the relevant statutory provision, and the legislative history contains nary a word indicating that Congress intended to take this step.[9] Congress may have believed that attachments were always used to provide cable service and/or telecommunications service and then taken great care to ensure that specified rate methodologies covered all attachments providing each of these services and both of these services.[10] In *359 this vein, Congress in 1996 provided a new rate methodology for the new category of attachments added to the Act,[11] see § 224(e), and required that the old rate methodology be applied to the new category of attachments until regulations implementing the new rate methodology for these attachments could be promulgated, see § 224(d)(3). It is certainly possible that Congress, in fact, has not provided an applicable rate methodology for all attachments covered by § 224(a)(4). Knowing the size and composition of the universe of attachments not addressed by the Act's two specific rate methodologies, however, would be extremely useful in evaluating the reasonableness of the FCC's position that it may regulate rates for those attachments. So in the complete absence of evidence concerning whether any pole attachments actually exist that are not covered by either of the Act's two specific rate methodologies, my position is simple: It is not conducive to "accurate" or "efficacious" judicial review to consider in the abstract whether the FCC has been given the authority to regulate rates for these "theoretical" attachments. See Permian Basin Area Rate Cases, 390 U. S., at 792. This is especially true given that the unusual posture of these cases is entirely the result of the FCC's failure to engage in reasoned decision-making below. See Part I, supra. III For many of the same reasons given by the Court, I believe it is likely that the FCC, at the end of the day, *360 has the authority to regulate rates for attachments providing commingled cable television programming and high-speed Internet access. Prior to 1996, the Act was interpreted to grant the FCC such broad authority, see Texas Util. Elec. Co. v. FCC, 997 F.2d 925, 929 (CADC 1993), and there is no clear indication in either the text of the 1996 amendments to the Act or the relevant legislative history that Congress intended to take this power away from the FCC. Moreover, such an interpretation of the 1996 amendments to the Act would be in substantial tension with two congressional policies underlying the Telecommunications Act of 1996. First, Congress directed the FCC to "encourage the deployment" of high-speed Internet capability and, if necessary, to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment." See §§ 706(a), (b), and (c)(1), 110 Stat. 153, note following 47 U.S. C. § 157 (1994 ed., Supp. V). And second, Congress declared that "[i]t is the policy of the United States . . . to promote the continued development of the Internet and other interactive computer services and other interactive media." § 509, 47 U.S. C. § 230(b)(1). Needless to say, withdrawing the Act's rate protection for the attachments of those cable operators providing high-speed Internet access through their wires and instead subjecting their attachments to monopoly pricing would appear to be fundamentally inconsistent with encouraging the deployment of cable modem service and promoting the development of the Internet. That the FCC may have reached a permissible conclusion below, however, does not excuse its failure to engage in reasoned decision-making and does not justify the Court's decision to allow the Commission's order to stand.[12] If the FCC *361 is to regulate rates for attachments providing commingled cable television programming and high-speed Internet access, it is required to determine whether high-speed Internet access provided through cable wires is a cable service or telecommunications service or falls into neither category. See Part I, supra. The Commission does not claim to have taken this step. As a result, the judgment of the Court of Appeals should be vacated, and the cases should be remanded to the FCC with instructions that the Commission identify the specific statutory basis on which it believes it is authorized to regulate rates for attachments used to provide commingled cable television programming and high-speed Internet access: § 224(d), § 224(e), or § 224(b)(1). For all of these reasons, I respectfully dissent from Parts II and IV of the Court's opinion.

Since the inception of cable television, cable companies have sought the means to run a wire into the home of each subscriber. They have found it convenient, and often essential, to lease space for their cables on telephone and electric utility poles. Utilities, in turn, have found it convenient to charge monopoly rents. Congress first addressed these transactions in 1978, by enacting the Pole Attachments Act, as amended, 7 U.S. C. 22 (199 ed.), which requires the Federal Communications Commission (FCC) to "regulate the rates, *331 terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable." 22(b). (The Act is set forth in full in the Appendix, infra. ) The cases now before us present two questions regarding the scope of the Act. First, does the Act reach attachments that provide both cable television and high-speed (broadband) nternet service? Second, does it reach attachments by wireless telecommunications providers? Both questions require us to interpret what constitutes a "pole attachment" under the Act. n the original Act a "pole attachment" was defined as "any attachment by a cable television system to a pole, duct, conduit, or right-of-way owned or controlled by a utility," 22(a)(). The Telecommunications Act of 1996, 703, expanded the definition to include, as an additional regulated category, "any attachment by aprovider of telecommunications service." 22(a)() (199 ed., Supp. V). Cable companies had begun providing high-speed nternet service, as well as traditional cable television, over their wires even before 1996. The FCC had interpreted the Act to cover pole attachments for these commingled services, and its interpretation had been approved by the Court of Appeals for the District of Columbia Circuit. Texas Util. Elec. Finding nothing in the 1996 amendments to change its view on this question, the FCC continued to assert jurisdiction over pole attachments for these particular commingled services. n re mplementation of Section 703(e) of the Telecommunications Act of 1996: Amendment of the Commission's Rules and Policies Governing Pole Attachments, 13 FCC Rcd. 6777 (1998). n the same order the FCC concluded further that the amended Act covers attachments by wireless telecommunications providers. "[T]he use of the word `any' *332 precludes a position that Congress intended to distinguish between wire and wireless attachments." Certain pole-owning utilities challenged the FCC's order in various Courts of Appeals. See 7 U.S. C. 02(a) (199 ed.); 28 U.S. C. 232 (199 ed.). The challenges were consolidated in the Court of Appeals for the Eleventh Circuit, see 2112(a), which reversed the FCC on both points. On the question of commingled services, the court held that the two specific rate formulas in 7 U.S. C. 22(d)(3) and (e)(1) (199 ed., Supp. V) narrow the general definition of pole attachments. The first formula applies to "any pole attachment used by a cable television system solely to provide cable service," 22(d)(3), and the second applies to "pole attachments used by telecommunications carriers to provide telecommunications services," 22(e)(1). The majority concluded that attachments for commingled services are neither, and that "no other rates are authorized." n. 29. Because it found that neither rate formula covers commingled services, it ruled those attachments must be excluded from the Act's coverage. On the wireless question, the majority relied on the statutory definition of "utility": "any person who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications." 22(a)(1). The majority concluded that the definition of "utility" informed the definition of "pole attachment," restricting it to attachments used, at least in part, for wire communications. Attachments for wireless communications, it held, are excluded by negative implication. Judge Carnes dissented on these two issues. n his view, 22(a)() and (b) "unambiguously giv[e] the FCC regulatory authority over wireless telecommunications service and nternet service." We granted certiorari. *333 We turn first to the question whether the Act applies to attachments that provide high-speed nternet access at the same time as cable television, the commingled services at issue here. As we have noted, the Act requires the FCC to "regulate the rates, terms, and conditions for pole attachments," 22(b) (199 ed.), and defines these to include "any attachment by a cable television system," 22(a)() (199 ed., Supp. V). These provisions resolve the question. No one disputes that a cable attached by a cable television company, which provides only cable television service, is an attachment "by a cable television system." f one day its cable provides high-speed nternet access, in addition to cable television service, the cable does not cease, at that instant, to be an attachment "by a cable television system." The addition of a service does not change the character of the attaching entity—the entity the attachment is "by." And this is what matters under the statute. This is our own, best reading of the statute, which we find unambiguous. f the statute were thought ambiguous, however, the FCC's reading must be accepted nonetheless, provided it is a reasonable interpretation. See Chevron U. S. A. Respondents' burden, then, is not merely to refute the proposition that "any attachment" means "any attachment"; they must prove also the FCC's interpretation is unreasonable. This they cannot do. Some respondents now advance an interpretation of the statute not presented to the Court of Appeals, or, so far as our review discloses, to the FCC. They contend it is wrong to concentrate on whose attachment is at issue; the question, they say, is what does the attachment do? Under this approach, an attachment is only an attachment by a cable television system to the extent it is used to provide cable television. To the extent it does other things, it falls outside the ambit of the Act, and respondents may charge whatever *33 rates they choose. To make this argument, respondents rely on a statutory definition of "cable system" (which the FCC treats as synonymous with "cable television system," see 7 CFR 76.5(a) ). The definition begins as follows: "[T]he term `cable system' means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community." 7 U.S. C. 522(7) (199 ed., Supp. V). The first part of the definition would appear to cover commingled services, but the definition goes on to exclude "a facility of a common carrier except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services." Respondents assert that "most major cable companies are now common carriers [since they also provide] residential and/or commercial telephone service." Brief for Respondents American Electric Power Service Corp. et al. 20. f so, they contend, then for purposes of 22(a)(), a facility that provides commingled cable television and nternet service is a "cable television system" only "to the extent that" it provides cable television. Even if a cable company is a common carrier because it provides telephone service, of course, the attachment might still fall under the second half of the "pole attachments" definition: "any attachment by a provider of telecommunications service." 22(a)(). This argument, and the related assertion that "most major cable companies are now common carriers," need not be considered by us in the first instance, when neither the FCC nor the Court of Appeals has had the opportunity to pass upon the points. There is a factual premise here, as well as an application of the statute to the facts, that the FCC and the Court of Appeals ought *335 to have the opportunity to address in the first instance. This does not leave the cases in doubt, however. Even if a "cable television system" is best thought of as a certain "facility" rather than a certain type of entity, respondents still must confront the problem that the statute regulates attachments "by" (rather than "of") these facilities. The word "by" still limits pole attachments by who is doing the attaching, not by what is attached. So even if a cable television system is only a cable television system "to the extent" it provides cable television, an "attachment by a cable television system" is still (entirely) an attachment "by" a cable television system whether or not it does other things as well. The Court of Appeals based its ruling on a different theory. The statute sets two different formulas for just and reasonable rates—one for pole attachments "used by a cable television system solely to provide cable service," 22(d)(3), and one for those "used by telecommunications carriers to provide telecommunications services," 22(e)(1). n a footnote, the Court of Appeals concluded without analysis that "subsections (d) and (e) narrow (b)(1)'s general mandate to set just and reasonable rates." n. 29. n its view, Congress would not have provided two specific rate formulas, and yet left a residual category for which the FCC would derive its own view of just and reasonable rates. "The straightforward language of subsections (d) and (e) directs the FCC to establish two specific just and reasonable rates ; no other rates are authorized." This conclusion has no foundation in the plain language of 22(a)() and (b). Congress did indeed prescribe two formulas for "just and reasonable" rates in two specific categories; but nothing about the text of 22(d) and (e) (199 ed. and Supp. V), and nothing about the structure of the Act, suggest that these are the exclusive rates allowed. t is true that specific statutory language should control more general language when there is a conflict between the two. *336 Here, however, there is no conflict. The specific controls but only within its self-described scope. The sum of the transactions addressed by the rate formulas— 22(d)(3) (199 ed., Supp. V) (attachments "used by a cable television system solely to provide cable service") and 22(e)(1) (attachments "used by telecommunications carriers to provide telecommunications services")—is less than the theoretical coverage of the Act as a whole. Section 22(a)() reaches "any attachment by a cable television system or provider of telecommunications service." The first two subsections are simply subsets of—but not limitations upon—the third. Likewise, nothing about the 1996 amendments suggests an intent to decrease the jurisdiction of the FCC. To the contrary, the amendments' new provisions extend the Act to cover telecommunications. As we have noted, commingled services were covered under the statute as first enacted, in the views of the FCC and the Court of Appeals for the District of Columbia Circuit. Texas Util. Elec. Before 1996, it is true, the grant of authority in 22(a)() and (b) was coextensive with the application of the single rate formula in 22(d). The 1996 amendments limited 22(d) to attachments used by a cable television system "solely to provide cable service," but—despite Texas Util. Elec. Co. —did not so limit "pole attachment" in 22(a)(). At this point, coextensiveness ended. Cable television systems that also provide nternet service are still covered by 22(a)() and (b)—just as they were before 1996—whether or not they are now excluded from the specific rate formula of 22(d); if they are, this would simply mean that the FCC must prescribe just and reasonable rates for them without necessary reliance upon a specific statutory formula devised by Congress. The Court of Appeals held that 22(d) and (e) implicitly limit the reach of 22(a)() and (b); as a result, it was compelled to reach the question of the correct categorization *337 of nternet services—that is, whether these services are "cable service," 22(d)(3), or "telecommunications services," 22(e)(1). t held that they are neither. By contrast, we hold that 22(d) and (e) work no limitation on 22(a)() and (b); for this reason, and because we granted certiorari only to determine the scope of the latter provisions, we need not decide the scope of the former. The FCC had to go a step further, because once it decided that it had jurisdiction over attachments providing commingled services, it then had to set a just and reasonable rate. Again, no rate challenge is before us, but we note that the FCC proceeded in a sensible fashion. t first decided that nternet services are not telecommunications services: "Several commentators suggested that cable operators providing nternet service should be required to pay the Section 22(e) telecommunications rate. We disagree. Under [our] precedent, a cable television system providing nternet service over a commingled facility is not a telecommunications carrier subject to the revised rate mandated by Section 22(e) by virtue of providing nternet service." 13 FCC Rcd., at 679— 6795 (footnotes omitted). After deciding nternet services are not telecommunications services, the FCC then found that it did not need to decide whether they are cable services: "Regardless of whether such commingled services constitute `solely cable services' under Section 22(d)(3), we believe that the subsection (d) rate should apply. f the provision of such services over a cable television system is a `cable service' under Section 22(d)(3), then the rate encompassed by that section would clearly apply. Even if the provision of nternet service over a cable television system is deemed to be neither `cable service' nor `telecommunications service' under the existing definitions, the Commission is still obligated under Section *338 22(b)(1) to ensure that the `rates, terms and conditions [for pole attachments] are just and reasonable,' [a]nd we would, in our discretion, apply the subsection (d) rate as a `just and reasonable rate.' " at 6795— 6796 (footnote omitted). Respondents are frustrated by the FCC's refusal to categorize nternet services, and doubly frustrated by the FCC's contingent decision that even if commingled services are not "cable service," those services nevertheless warrant the 22(d) rate. On the first point, though, decision-makers sometimes dodge hard questions when easier ones are dispositive; and we cannot fault the FCC for taking this approach. The second point, in essence, is a challenge to the rate the FCC has chosen, a question not now before us. We note that the FCC, subsequent to the order under review, has reiterated that it has not yet categorized nternet service. See, e. g., Pet. for Cert. in No. 00-83, p. 15, n. t has also suggested a willingness to reconsider its conclusion that nternet services are not telecommunications. See, e. g., n re nquiry Concerning High-Speed Access to nternet Over Cable and Other Facilities, 15 FCC Rcd. 19287, 1 Of course, the FCC has power to reconsider prior decisions. The order under review in this litigation, however, is both logical and unequivocal. f the FCC should reverse its decision that nternet services are not telecommunications, only its choice of rate, and not its assertion of jurisdiction, would be implicated by the reversal. n this suit, though, we address only whether pole attachments that carry commingled services are subject to FCC regulation at all. The question is answered by 22(a)() and (b), and the answer is yes. Even if the FCC decides, in the end, that nternet service is not "cable service," the result obtained by its interpretation of 22(a)() and (b) is sensible. Congress may well have chosen to define a "just and reasonable" rate for pure cable television service, yet declined to produce a prospective *339 formula for commingled cable service. The latter might be expected to evolve in directions Congress knew it could not anticipate. As it was in Chevron U. S. A. the subject matter here is technical, complex, and dynamic; and as a general rule, agencies have authority to fill gaps where the statutes are silent, t might have been thought prudent to provide set formulas for telecommunications service and "solely cable service," and to leave unmodified the FCC's customary discretion in calculating a "just and reasonable" rate for commingled services. This result is more sensible than the one for which respondents contend. On their view, if a cable company attempts to innovate at all and provide anything other than pure television, it loses the protection of the Pole Attachments Act and subjects itself to monopoly pricing. The resulting contradiction of long-standing interpretation—on which cable companies have relied since before the 1996 amendments to the Act—would defeat Congress' general instruction to the FCC to "encourage the deployment" of broadband nternet capability and, if necessary, "to accelerate deployment of such capability by removing barriers to infrastructure investment." Tit. V, 706(a), (b), and (c)(1), note following 7 U.S. C. 157 (199 ed., Supp. V). This congressional policy underscores the reasonableness of the FCC's interpretation: Cable attachments providing commingled services come within the ambit of the Act. The second question presented is whether and to what extent the equipment of wireless telecommunications providers is susceptible of FCC regulation under the Act. The Eleventh Circuit held that "the act does not provide the FCC with authority to regulate wireless carriers." All parties now agree this holding was overstated. *30 "[T]o the extent a wireless carrier seeks to attach a wireline facility to a utility pole the wireline attachment is subject to Section 22." Brief for Respondents American Electric Power Service Corp. et al. 31; see also Brief for Respondents Atlantic City Electric Co. et al. 0; Brief for Repondent TXU Electric Co. 18; Brief for Respondent Florida Power & Light Co. 10-11. We agree, and we so hold. The dispute that remains becomes a narrow one. Are some attachments by wireless telecommunications providers—those, presumably, which are composed of distinctively wireless equipment—excluded from the coverage of the Act? Again, the dispositive text requires the FCC to "regulate the rates, terms, and conditions for pole attachments," 22(b) (199 ed.), and defines these to include "any attachment by a provider of telecommunications service," 22(a)() (199 ed., Supp. V). "Telecommunications service," in turn, is defined as the offering of telecommunications to the public for a fee, "regardless of the facilities used," 153(6). A provider of wireless telecommunications service is a "provider of telecommunications service," so its attachment is a "pole attachment." Once more, respondents seek refuge in other parts of the statute. A "utility" is defined as an entity "who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications." 22(a)(1). The definition, though, concerns only whose poles are covered, not which attachments are covered. Likewise, the rate formula is based upon the poles' "usable space," which is defined as "the space above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment," 22(d)(2) (199 ed.). This definition, too, does not purport to limit which pole attachments are covered. n short, nothing in 22(a)(1) or 22(d)(2) limits 22(a)() or 22(b). Even if they did, moreover, respondents still would need to confront the provision for "associated *31 equipment." As noted above, respondents themselves concede that attachments of wires by wireless providers of telecommunications service are covered by the Act. See t follows, in our view, that "associated equipment" which is indistinguishable from the "associated equipment" of wire-based telecommunications providers would also be covered. Respondents must demand a distinction between prototypical wire-based "associated equipment" and the wireless "associated equipment" to which they object. The distinction, they contend, is required by the economic rationale of the Act. The very reason for the Act is that—as to wires—utility poles constitute a bottleneck facility, for which utilities could otherwise charge monopoly rents. Poles, they say, are not a bottleneck facility for the siting of at least some, distinctively wireless equipment, like antennas. These can be located anywhere sufficiently high. The economic analysis may be correct as far as it goes. Yet the proposed distinction—between prototypical wirebased "associated equipment" and the wireless "associated equipment" which allegedly falls outside of the rationale of the Act—finds no support in the text, and, based on our present understanding of the record before us, appears quite difficult to draw. Congress may have decided that the difficulties of drawing such a distinction would burden the orderly administration of the Act. n any event, the FCC was not unreasonable in declining to draw this distinction; and if the text were ambiguous, we would defer to its judgment on this technical question. V Respondents insist that "any attachment" cannot mean "any attachment." Surely, they say, the Act cannot cover billboards, or clotheslines, or anything else that a cable television system or provider of telecommunications service should fancy attaching to a pole. Since the literal reading is absurd, they contend, there must be a limiting principle. *32 Appendix to opinion of the Court The FCC did not purport either to enunciate or to disclaim a specific limiting principle, presumably because, in its view, the attachments at issue here did not test the margins of the Act. The term "any attachment by a cable television system" covers at least those attachments which do in fact provide cable television service, and "any attachment by a provider of telecommunications service" covers at least those which in fact provide telecommunications. Attachments of other sorts may be examined by the agency in the first instance. The attachments at issue in this suit—ones which provide commingled cable and nternet service and ones which provide wireless telecommunications—fall within the heartland of the Act. The agency's decision, therefore, to assert jurisdiction over these attachments is reasonable and entitled to our deference. The judgment of the Court of Appeals for the Eleventh Circuit is reversed, and the cases are remanded for further proceedings consistent with this opinion. t is so ordered. Justice O'Connor took no part in the consideration or decision of these cases. APPENDX TO OPNON OF THE COURT 7 U.S. C. 22. Pole attachments (a) Definitions As used in this section: (1) The term "utility" means any person who is a local exchange carrier or an electric, gas, water, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications. Such term does not include any railroad, any person who is cooperatively organized, or any person owned by the Federal Government or any State. *33 (2) The term "Federal Government" means the Government of the United States or any agency or instrumentality thereof. (3) The term "State" means any State, territory, or possession of the United States, the District of Columbia, or any political subdivision, agency, or instrumentality thereof. () The term "pole attachment" means any attachment by a cable television system or provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a utility. (5) For purposes of this section, the term "telecommunications carrier" (as defined in section 153 of this title) does not include any incumbent local exchange carrier as defined in section 251(h) of this title. (b) Authority of Commission to regulate rates, terms, and conditions; enforcement powers; promulgation of regulations (1) Subject to the provisions of subsection (c) of this sec(1) the tion, Commission shall regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable, and shall adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions. For purposes of enforcing any determinations resulting from complaint procedures established pursuant to this subsection, the Commission shall take such action as it deems appropriate and necessary, including issuing cease and desist orders, as authorized by section 312(b) of this title. (2) The Commission shall prescribe by rule regulations to carry out the provisions of this section. (c) State regulatory authority over rates, terms, and conditions; preemption; certification; circumstances constituting State regulation (1) Nothing in this section shall be construed to apply to, or to give the Commission jurisdiction with respect to rates, terms, and conditions, or access to poles, ducts, conduits, and *3 Appendix to opinion of the Court rights-of-way as provided in subsection (f) of this section, for pole attachments in any case where such matters are regulated by a State. (2) Each State which regulates the rates, terms, and conditions for pole attachments shall certify to the Commission that— (A) it regulates such rates, terms, and conditions; and (B) in so regulating such rates, terms, and conditions, the State has the authority to consider and does consider the interests of the subscribers of the services offered via such attachments, as well as the interests of the consumers of the utility services. (3) For purposes of this subsection, a State shall not be considered to regulate the rates, terms, and conditions for pole attachments— (A) unless the State has issued and made effective rules and regulations implementing the State's regulatory authority over pole attachments; and (B) with respect to any individual matter, unless the State takes final action on a complaint regarding such matter— (i) within 180 days after the complaint is filed with the State, or (ii) within the applicable period prescribed for such final action in such rules and regulations of the State, if the prescribed period does not extend beyond 360 days after the filing of such complaint. (d) Determination of just and reasonable rates; "usable space" defined (1) For purposes of subsection (b) of this section, a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and *35 actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way. (2) As used in this subsection, the term "usable space" means the space above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment. (3) This subsection shall apply to the rate for any pole attachment used by a cable television system solely to provide cable service. Until the effective date of the regulations required under subsection (e) of this section, this subsection shall also apply to the rate for any pole attachment used by a cable system or any telecommunications carrier (to the extent such carrier is not a party to a pole attachment agreement) to provide any telecommunications service. (e) Regulations governing charges; apportionment of costs of providing space (1) The Commission shall, no later than 2 years after February 8, 1996, prescribe regulations in accordance with this subsection to govern the charges for pole attachments used by telecommunications carriers to provide telecommunications services, when the parties fail to resolve a dispute over such charges. Such regulations shall ensure that a utility charges just, reasonable, and nondiscriminatory rates for pole attachments. (2) A utility shall apportion the cost of providing space on a pole, duct, conduit, or right-of-way other than the usable space among entities so that such apportionment equals two-thirds of the costs of providing space other than the usable space that would be allocated to such entity under an equal apportionment of such costs among all attaching entities. (3) A utility shall apportion the cost of providing usable space among all entities according to the percentage of usable space required for each entity. () The regulations required under paragraph (1) shall become effective 5 years after February 8, 1996. Any increase *36 Appendix to opinion of the Court in the rates for pole attachments that result from the adoption of the regulations required by this subsection shall be phased in equal annual increments over a period of 5 years beginning on the effective date of such regulations. (f) Nondiscriminatory access (1) A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it. (2) Notwithstanding paragraph (1), a utility providing electric service may deny a cable television system or any telecommunications carrier access to its poles, ducts, conduits, or rights-of-way, on a non-discriminatory basis where there is insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes. (g) mputation to costs of pole attachment rate A utility that engages in the provision of telecommunications services or cable services shall impute to its costs of providing such services (and charge any affiliate, subsidiary, or associate company engaged in the provision of such services) an equal amount to the pole attachment rate for which such company would be liable under this section. (h) Modification or alteration of pole, duct, conduit, or right-of-way Whenever the owner of a pole, duct, conduit, or rightof-way intends to modify or alter such pole, duct, conduit, or right-of-way, the owner shall provide written notification of such action to any entity that has obtained an attachment to such conduit or right-of-way so that such entity may have a reasonable opportunity to add to or modify its existing attachment. Any entity that adds to or modifies its existing attachment after receiving such notification shall bear a proportionate share of the costs incurred by the owner in making such pole, duct, conduit, or right-of-way accessible. (i) Costs of rearranging or replacing attachment An entity that obtains an attachment to a pole, conduit, or right-of-way shall not be required to bear any of the costs *37 of rearranging or replacing its attachment, if such rearrangement or replacement is required as a result of an additional attachment or the modification of an existing attachment sought by any other entity (including the owner of such pole, duct, conduit, or right-of-way). Justice Thomas, with whom Justice Souter joins, concurring in part and dissenting in part. join Parts and of the Court's opinion because agree that the Pole Attachments Act, 7 U.S. C. 22 (199 ed. and Supp. V), grants the Federal Communications Commission (FCC or Commission) jurisdiction to regulate attachments by wireless telecommunications providers. The Court's conclusion in Part of its opinion that the Act gives the FCC the authority to regulate rates for attachments providing commingled cable television service and high-speed nternet access may be correct as well. Nevertheless, because the FCC failed to engage in reasoned decision-making before asserting jurisdiction over attachments transmitting these commingled services, cannot agree with the Court that the judgment below should be reversed and the FCC's decision on this point allowed to stand. nstead, would vacate the Court of Appeals' judgment and remand the cases to the FCC with instructions that the Commission clearly explain the specific statutory basis on which it is regulating rates for attachments that provide commingled cable television service and high-speed nternet access. Such a determination would require the Commission to decide at long last whether high-speed nternet access provided through cable wires constitutes cable service or telecommunications service or falls into neither category. As these cases have been presented to this Court, the dispute over the FCC's authority to regulate rates for attachments providing commingled cable television service and high-speed nternet access turns on one central question: *38 whether 7 U.S. C. 22(b)(1)'s general grant of authority empowers the FCC to regulate rates for "pole attachments," 22(a)() (199 ed., Supp. V), that are not covered by either of the Act's two specific rate methodologies, 22(d) and 22(e) (199 ed. and Supp. V). Petitioners, including the FCC, contend that 22(b)(1) (199 ed.) authorizes the Commission to regulate rates for all "pole attachments" as that term is defined in 22(a)() (199 ed., Supp. V). Respondents, on the other hand, argue that the FCC may only regulate rates for attachments covered by one of the two specific rate methodologies set forth in the Act, the position adopted by the Court of Appeals below. t is not at all clear, however, that the disputed attachments at issue here—those providing both cable television programming and high-speed nternet access—are attachments for which neither of the Act's two specific rate methodologies applies. The FCC has made no determination with respect to this issue that this Court (or any other court) can review. ndeed, there is nothing in the record indicating whether any pole attachments currently exist that fall within the terms of 22(a)() yet are not covered by either of the Act's specific rate methodologies. Consequently, the specific legal issue the Court chooses to address is, at this time, nothing more than a tempest in a teapot. The disputed attachments here provide two distinct services: conventional cable television programming and high-speed nternet access. No party disputes the FCC's conclusion that conventional cable television programming constitutes cable service. See ante, at 333. Crucially, however, the FCC has made no determination as to the proper statutory classification of high-speed nternet access using cable modem technology. n fact, in asserting its authority to regulate rates for attachments providing commingled cable television service and high-speed nternet access, the Commission explicitly declined to address the issue: "We need not decide at this time the precise category into which nternet services fit." n re mplementation of Sec- *39 tion 703(e) of the Telecommunications Act of 1996: Amendment of the Commission's Rules and Policies Governing Pole Attachments, 13 FCC Rcd. 6777, 6795 (1998). n their petition for certiorari, the Government and the FCC explained that the FCC proceeded in this manner "because the classification of cable nternet access as `cable service,' `telecommunications service,' or some other form of service is the subject of ongoing proceedings before the Commission concerning issues outside the Pole Attachments Act," and it "`d[id] not intend to foreclose any aspect of the Commission's ongoing examination of those issues.' " Pet. for Cert. in No. 00-83, p. 5, n. 2 (quoting 13 FCC Rcd., at 6795). The statutory scheme, however, does not permit the FCC to avoid this question. None of the parties disputes that the two specific rate methodologies set forth in the Act are mandatory if applicable. f an attachment by a cable television system is used solely to provide cable service, the rate for that attachment must be set pursuant to the methodology contained in 22(d). See 7 U.S. C. 22(d)(3). And, if an attachment is used to provide telecommunications service, the rate for that attachment must be set pursuant to the methodology contained in 22(e). As a result, before the FCC may regulate rates for a category of attachments, the statute requires the FCC to make at least two determinations: whether the attachments are used "solely to provide cable service" and whether the attachments are used to provide "telecommunications service." Here, however, the FCC has failed to take either necessary step. For if high-speed nternet access using cable modem technology is a cable service,[1] then attachments providing commingled cable television programming and high-speed nternet access are used solely to provide cable service, and the rates for these attachments must be regulated pursuant to 22(d)'s methodology. Or if, on the other hand, such nternet *350 access constitutes a telecommunications service,[2] then these attachments are used to provide telecommunications service and must be regulated pursuant to 22(e)'s rate methodology.[3] Only after determining whether either of the Act's mandatory rate methodologies applies to particular attachments and answering that question in the negative does the statute allow the FCC to examine whether it may define a "just and reasonable" rate for those attachments pursuant to 22(b)(1). Had the FCC engaged in such reasoned decision-making below and concluded that it had the authority to regulate rates for attachments used to provide commingled cable television service and high-speed nternet access even though high-speed nternet access using cable modem technology constitutes neither cable service nor telecommunications service, then this Court would have been able to review the Commission's order in a logical manner. We first would have asked whether the Commission had permissibly classified the services provided by these attachments. And, if we answered that question in the affirmative, we would then (and only then) have asked whether the FCC has the authority under 22(b)(1) to regulate rates for attachments where Congress has not provided an applicable rate methodology. nstead, the FCC asks this Court to sustain its authority to regulate rates for attachments providing commingled cable television programming and high-speed nternet access, even though it has yet to articulate the specific statutory basis for its authority to regulate these attachments. Yet, as Justice Harlan noted some years ago: "Judicial review of [an agency's] orders will function accurately and efficaciously *351 only if the [agency] indicates fully and carefully the methods by which it has chosen to act." Permian Basin Area Rate Here, the FCC obviously has fallen far short of this standard. The FCC seems to hold open the following options: (a) Rates for attachments providing commingled cable television programming and high-speed nternet access may be regulated pursuant to 22(d)'s rate methodology; (b) rates for these attachments may be regulated pursuant to 22(e)'s rate methodology; or (c) rates for these attachments may be regulated under the FCC's general authority to define "just and reasonable" rates pursuant to 22(b)(1). To be sure, the Commission has rejected a fourth possible option advanced by respondents: that it lacks any authority to regulate rates for attachments providing commingled cable television programming and high-speed nternet access. But if the FCC wishes to regulate rates for these attachments, the statute requires the Commission to do more. Eliminating only one of four possible answers in this instance does not constitute reasoned decision-making. For these reasons, the FCC's attempt to regulate rates for attachments providing commingled cable television service and high-speed nternet access while refusing to classify the services provided by these attachments is "arbitrary, capricious," and "not in accordance with law." 5 U.S. C. 706(2)(A). would therefore remand these cases to the FCC for the Commission to identify the specific statutory basis for its authority to regulate rates for attachments providing commingled cable television programming and high-speed nternet access: 7 U.S. C. 22(d), 22(e), or 22(b)(1) (199 ed. and Supp. V). Notwithstanding the FCC's failure to classify the services provided by the attachments at issue in these cases, the Court nonetheless concludes that the FCC's analysis below *352 was adequate. Proceeding from the premise that the Commission in fact has determined that high-speed nternet access using cable modem technology is not a telecommunications service, see ante, at 337, the Court finds that the Commission, after reaching this conclusion, was not required to determine whether the attachments here are used solely to provide cable service. Even if the FCC had concluded that these attachments are not used solely to provide cable service, the Court notes that the FCC indicated it would have used its power under 22(b)(1) to apply 22(d)'s rate methodology regardless. See ante, at 337-338. Under the Court's reasoning, this is therefore a case of six of one, a half dozen of another. Either the FCC must apply 22(d)'s methodology to attachments providing commingled cable television programming and high-speed nternet access because such attachments are used solely to provide cable service, see 22(d)(3) (199 ed., Supp. V), or the FCC has exercised its power under 22(b)(1) (199 ed.) to regulate the rates for these attachments and has chosen to "apply the [ 22(d)] rate as a `just and reasonable' rate." 13 FCC Rcd., at 6796. The problem with this position is twofold. A First, the FCC has not conclusively determined that highspeed nternet access using cable modem technology is not a telecommunications service. Admittedly, the FCC's discussion of the topic in its order below was opaque.[] The *353 Commission, however, has since made its lack of a position on the issue unambiguous. The FCC has not represented to this Court that highspeed nternet access provided through cable wires is not a telecommunications service. To the contrary, it has made its agnosticism on the topic quite clear. n its petition for *35 certiorari, for instance, the FCC complained that the Court of Appeals "mistakenly felt compelled to address whether a cable company's provision of nternet access is properly characterized as a `cable service,' a `telecommunications service,' or an `information service.' " Pet. for Cert. in No. 00-83, p. 15, n. t then clearly stated, "To date, the FCC has taken no position on that issue." The FCC not only repeated this contention in its merits brief, see Brief for Petitioners in No. 00-83, p. 30, but also explicitly asked this Court not to evaluate whether high-speed nternet access using cable modem technology is "a `cable service,' a `telecommunications service,' or some other kind of service," ib even if we concluded such an inquiry was necessary to determine whether the FCC could regulate rates for attachments providing commingled cable television programming and high-speed nternet access. The reason it gave for this request was simple: The FCC should be allowed to "address the characterization issue in the first instance. " Outside of this litigation, the FCC has also unambiguously indicated that it holds "no position" as to whether high-speed nternet access using cable modem technology constitutes a telecommunications service. For example, in an amicus curiae brief submitted to the United States Court of Appeals for the Ninth Circuit, the FCC stated: "To date, the Commission has not decided whether broadband capability offered over cable facilities is a `cable service' under the Communications Act, or instead should be classified as `telecommunications' or as an `information service.' The answer to this question is far from clear." Brief for FCC as Amicus Curiae in AT&T Corp. v. Portland, No. 99-35609 (CA9), p. 19.[5] Just last year, in fact, the Commission issued a notice *355 of inquiry seeking comment on the proper statutory classification of high-speed nternet access using cable modem technology. See n re nquiry Concerning High-Speed Access to nternet Over Cable and Other Facilities, 15 FCC Rcd. 19287 n this notice of inquiry, the FCC specifically sought comment on, among other issues, whether such nternet access "is a telecommunications service," see at no point indicating that the FCC had ever taken any position on the issue. The Court's conclusion that the FCC has already decided that high-speed nternet access using cable modem technology is not a telecommunications service thus stands in stark contrast to the FCC's own view of the matter. "[T]he Commission has not determined whether nternet access via cable system facilities should be classified as a `cable service' subject to Title V of the Act, or as a `telecommunications' or `information service' subject to Title There may well come a time when it will be necessary and useful from a policy perspective for the Commission to make these legal determinations." n re Applications for Consent to the Transfer of Control of Licenses and Section 21 Authorizations from Media One Group, nc., to AT&T Corp., 15 FCC Rcd. 9816, 9872 (footnote omitted). The Court, however, does not dispute that reasoned decision-making required the FCC to make the "legal determination" whether high-speed nternet access using cable modem technology constitutes a telecommunications service nearly four years ago when the Commission asserted its authority *356 to regulate rates for attachments providing commingled cable television programming and high-speed nternet access. nstead, the Court mistakenly concludes that the Commission has reached a decision on the issue. n the Court's view, the FCC's repeated statements that it has not determined whether high-speed nternet access using cable modem technology constitutes a telecommunications service only reflect the "[Commission's] willingness to reconsider its conclusion that nternet services are not telecommunications." Ante, at 338. The relevant issue here, however, is not whether nternet service is a telecommunications service. Rather, it is whether high-speed nternet access provided through cable wires constitutes a telecommunications service. The two questions are entirely distinct, see n. and, as shown above, the FCC has never answered the latter question and has indicated as much no less than six times in recent years.[6] These cases therefore should be remanded to the FCC on this basis alone. B Second, even if the FCC had determined that high-speed nternet access provided through cable wires does not constitute a telecommunications service, these cases still would need to be remanded to the FCC. n order to endorse the FCC's primary argument that 22(b)(1) provides the Commission with the authority to regulate rates for attachments not covered by either of the Act's specific rate methodologies, 22(d) and 22(e), it seems necessary, as a matter of logic, for such attachments to exist. But as both the FCC and the *357 Court admit, the attachments here very well may be addressed by one of the Act's rate formulas. Moreover, neither the FCC nor the Court advances a single example of any attachment that is a covered "pole attachment" under the definition provided in 22(a)() (199 ed., Supp. V) but is not covered by either of the Act's specific rate methodologies. This obviously suggests a dilemma: f all attachments covered by the Act are in fact addressed by the Act's specific rate methodologies, then the coverage of 22(a)() is not greater than the sum of 22(d) and (e), and the FCC has no residual power to define "just and reasonable" rates for attachments pursuant to 22(b)(1) (199 ed.). Yet the Court affirms that the FCC indeed possesses just such authority. Unable to provide a single example of an attachment not addressed by either of the Act's specific rate methodologies, the most the Court can argue is that "[t]he sum of the transactions addressed by the rate formulas is less than the theoretical coverage of the Act as a whole." Ante, at 336 The Court, though, offers no reasoning whatsoever in support of this observation, nor does it have any basis in the record. Leaving aside that which may or may not be theoretically possible, do not have a view at the present time as to whether any attachments exist that are covered "pole attachments" under the Act, see 22(a)() (199 ed., Supp. V), but do not fall within the ambit of 22(d) or 22(e) (199 ed. and Supp. V).[7] do question, however, whether Congress *358 contemplated the existence of such attachments. Before 1996, the parties agree that the FCC did not possess any general authority to define "just and reasonable" rates for attachments pursuant to 22(b)(1); rates for all attachments were set pursuant to the formula contained in 22(d).[8] And if Congress in 1996 intended to transform 22(b)(1) into a provision empowering the FCC to define "just and reasonable" rates for attachments, it did so in an odd manner: The 1996 amendments to the Act did not change a single word in the relevant statutory provision, and the legislative history contains nary a word indicating that Congress intended to take this step.[9] Congress may have believed that attachments were always used to provide cable service and/or telecommunications service and then taken great care to ensure that specified rate methodologies covered all attachments providing each of these services and both of these services.[10] n *359 this vein, Congress in 1996 provided a new rate methodology for the new category of attachments added to the Act,[11] see 22(e), and required that the old rate methodology be applied to the new category of attachments until regulations implementing the new rate methodology for these attachments could be promulgated, see 22(d)(3). t is certainly possible that Congress, in fact, has not provided an applicable rate methodology for all attachments covered by 22(a)(). Knowing the size and composition of the universe of attachments not addressed by the Act's two specific rate methodologies, however, would be extremely useful in evaluating the reasonableness of the FCC's position that it may regulate rates for those attachments. So in the complete absence of evidence concerning whether any pole attachments actually exist that are not covered by either of the Act's two specific rate methodologies, my position is simple: t is not conducive to "accurate" or "efficacious" judicial review to consider in the abstract whether the FCC has been given the authority to regulate rates for these "theoretical" attachments. See Permian Basin Area Rate 390 U. S., at This is especially true given that the unusual posture of these cases is entirely the result of the FCC's failure to engage in reasoned decision-making below. See Part For many of the same reasons given by the Court, believe it is likely that the FCC, at the end of the day, *360 has the authority to regulate rates for attachments providing commingled cable television programming and high-speed nternet access. Prior to 1996, the Act was interpreted to grant the FCC such broad authority, see Texas Util. Elec. and there is no clear indication in either the text of the 1996 amendments to the Act or the relevant legislative history that Congress intended to take this power away from the FCC. Moreover, such an interpretation of the 1996 amendments to the Act would be in substantial tension with two congressional policies underlying the Telecommunications Act of 1996. First, Congress directed the FCC to "encourage the deployment" of high-speed nternet capability and, if necessary, to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment." See 706(a), (b), and (c)(1), note following 7 U.S. C. 157 (199 ed., Supp. V). And second, Congress declared that "[i]t is the policy of the United States to promote the continued development of the nternet and other interactive computer services and other interactive media." 509, 7 U.S. C. 230(b)(1). Needless to say, withdrawing the Act's rate protection for the attachments of those cable operators providing high-speed nternet access through their wires and instead subjecting their attachments to monopoly pricing would appear to be fundamentally inconsistent with encouraging the deployment of cable modem service and promoting the development of the nternet. That the FCC may have reached a permissible conclusion below, however, does not excuse its failure to engage in reasoned decision-making and does not justify the Court's decision to allow the Commission's order to stand.[12] f the FCC *361 is to regulate rates for attachments providing commingled cable television programming and high-speed nternet access, it is required to determine whether high-speed nternet access provided through cable wires is a cable service or telecommunications service or falls into neither category. See Part The Commission does not claim to have taken this step. As a result, the judgment of the Court of Appeals should be vacated, and the cases should be remanded to the FCC with instructions that the Commission identify the specific statutory basis on which it believes it is authorized to regulate rates for attachments used to provide commingled cable television programming and high-speed nternet access: 22(d), 22(e), or 22(b)(1). For all of these reasons, respectfully dissent from Parts and V of the Court's opinion.

Justice Kennedy

majority

Romer v. Evans

1996-06-03

https://www.courtlistener.com/opinion/118027/romer-v-evans/

https://www.courtlistener.com/api/rest/v3/clusters/118027/

1995-053

One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution. I The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to it as "Amendment 2," its designation when submitted to the voters. The impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities. For example, the cities of Aspen and Boulder and the city and County of Denver each had *624 enacted ordinances which banned discrimination in many transactions and activities, including housing, employment, education, public accommodations, and health and welfare services. Denver Rev. Municipal Code, Art. IV, §§ 28-91 to 28-116 (1991); Aspen Municipal Code § 13-98 (1977); Boulder Rev. Code §§ 12-1—1 to 12-1—11 (1987). What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation. See Boulder Rev. Code § 12-1—1 (defining "sexual orientation" as "the choice of sexual partners, i. e., bisexual, homosexual or heterosexual"); Denver Rev. Municipal Code, Art. IV, § 28-92 (defining "sexual orientation" as "[t]he status of an individual as to his or her heterosexuality, homosexuality or bisexuality"). Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Colo. Const., Art. II, § 30b. Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads: "No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing." Ibid. *625 Soon after Amendment 2 was adopted, this litigation to declare its invalidity and enjoin its enforcement was commenced in the District Court for the City and County of Denver. Among the plaintiffs (respondents here) were homosexual persons, some of them government employees. They alleged that enforcement of Amendment 2 would subject them to immediate and substantial risk of discrimination on the basis of their sexual orientation. Other plaintiffs (also respondents here) included the three municipalities whose ordinances we have cited and certain other governmental entities which had acted earlier to protect homosexuals from discrimination but would be prevented by Amendment 2 from continuing to do so. Although Governor Romer had been on record opposing the adoption of Amendment 2, he was named in his official capacity as a defendant, together with the Colorado Attorney General and the State of Colorado. The trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal was taken to the Supreme Court of Colorado. Sustaining the interim injunction and remanding the case for further proceedings, the State Supreme Court held that Amendment 2 was subject to strict scrutiny under the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (Evans I). To reach this conclusion, the state court relied on our voting rights cases, e. g., Reynolds v. Sims, 377 U.S. 533 (1964); Carrington v. Rash, 380 U.S. 89 (1965); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Williams v. Rhodes, 393 U.S. 23 (1968), and on our precedents involving discriminatory restructuring of governmental decisionmaking, see, e. g., Hunter v. Erickson, 393 U.S. 385 (1969); Reitman v. Mulkey, 387 U.S. 369 (1967); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982); Gordon v. Lance, 403 U.S. 1 (1971). On remand, the State advanced various arguments in an effort to show that *626 Amendment 2 was narrowly tailored to serve compelling interests, but the trial court found none sufficient. It enjoined enforcement of Amendment 2, and the Supreme Court of Colorado, in a second opinion, affirmed the ruling. 882 P.2d 1335 (1994) (Evans II). We granted certiorari, 513 U.S. 1146 (1995), and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court. II The State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights. This reading of the amendment's language is implausible. We rely not upon our own interpretation of the amendment but upon the authoritative construction of Colorado's Supreme Court. The state court, deeming it unnecessary to determine the full extent of the amendment's reach, found it invalid even on a modest reading of its implications. The critical discussion of the amendment, set out in Evans I, is as follows: "The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation. See Aspen, Colo., Mun. Code § 13-98 (1977) (prohibiting discrimination in employment, housing and public accommodations on the basis of sexual orientation); Boulder, Colo., Rev. Code §§ 12-1—2 to —4 (1987) (same); Denver, Colo., Rev. Mun. Code art. IV, §§ 28-91 to —116 (1991) (same); Executive Order No. D0035 (December 10, 1990) (prohibiting employment discrimination for `all state employees, classified and exempt' on the basis of sexual orientation); Colorado Insurance Code, § 10-3—1104, 4A C. R. S. (1992 Supp.) (forbidding health insurance providers from determining insurability and premiums based on an applicant's, a beneficiary's, or an insured's *627 sexual orientation); and various provisions prohibiting discrimination based on sexual orientation at state colleges.[26] "26 Metropolitan State College of Denver prohibits college sponsored social clubs from discriminating in membership on the basis of sexual orientation and Colorado State University has an antidiscrimination policy which encompasses sexual orientation. "The `ultimate effect' of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures." 854 P.2d, at 1284— 1285, and n. 26. Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. The change Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching, both on its own terms and when considered in light of the structure and operation of modern antidiscrimination laws. That structure is well illustrated by contemporary statutes and ordinances prohibiting discrimination by providers of public accommodations. "At common law, innkeepers, smiths, and others who `made profession of a public employment,' were prohibited from refusing, without good reason, to serve a customer." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 571 (1995). The duty was a general one and did not specify protection for particular groups. The common-law rules, however, proved *628 insufficient in many instances, and it was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations, Civil Rights Cases, 109 U.S. 3, 25 (1883). In consequence, most States have chosen to counter discrimination by enacting detailed statutory schemes. See, e. g., S. D. Codified Laws §§ 20-13-10, 20-13-22, 20-13-23 (1995); Iowa Code §§ 216.6-216.8 (1994); Okla. Stat., Tit. 25, §§ 1302, 1402 (1987); 43 Pa. Cons. Stat. §§ 953, 955 (Supp. 1995); N. J. Stat. Ann. §§ 10:5-3, 10:5-4 (West Supp. 1995); N. H. Rev. Stat. Ann. §§ 354—A:7, 354—A:10, 354—A:17 (1995); Minn. Stat. § 363.03 (1991 and Supp. 1995). Colorado's state and municipal laws typify this emerging tradition of statutory protection and follow a consistent pattern. The laws first enumerate the persons or entities subject to a duty not to discriminate. The list goes well beyond the entities covered by the common law. The Boulder ordinance, for example, has a comprehensive definition of entities deemed places of "public accommodation." They include "any place of business engaged in any sales to the general public and any place that offers services, facilities, privileges, or advantages to the general public or that receives financial support through solicitation of the general public or through governmental subsidy of any kind." Boulder Rev. Code § 12-1—1(j) (1987). The Denver ordinance is of similar breadth, applying, for example, to hotels, restaurants, hospitals, dental clinics, theaters, banks, common carriers, travel and insurance agencies, and "shops and stores dealing with goods or services of any kind," Denver Rev. Municipal Code, Art. IV, § 28-92 (1991). These statutes and ordinances also depart from the common law by enumerating the groups or persons within their ambit of protection. Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply. In following this approach, Colorado's state and local governments have *629 not limited antidiscrimination laws to groups that have so far been given the protection of heightened equal protection scrutiny under our cases. See, e. g., J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 135 (1994) (sex); Lalli v. Lalli, 439 U.S. 259, 265 (1978) (illegitimacy); McLaughlin v. Florida, 379 U.S. 184, 191-192 (1964) (race); Oyama v. California, 332 U.S. 633 (1948) (ancestry). Rather, they set forth an extensive catalog of traits which cannot be the basis for discrimination, including age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability of an individual or of his or her associates—-and, in recent times, sexual orientation. Aspen Municipal Code § 13-98(a)(1) (1977); Boulder Rev. Code §§ 12-1—1 to 12-1—4 (1987); Denver Rev. Municipal Code, Art. IV, §§ 28-92 to 28-119 (1991); Colo. Rev. Stat. §§ 24-34-401 to XX-XX-XXX (1988 and Supp. 1995). Amendment 2 bars homosexuals from securing protection against the injuries that these public-accommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2, in addition, nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment. See, e. g., Aspen Municipal Code §§ 13-98(b), (c) (1977); Boulder Rev. Code §§ 12-1—2, 12-1—3 (1987); Denver Rev. Municipal Code, Art. IV, §§ 28-93 to 28-95, 28-97 (1991). Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government. The State Supreme Court cited two examples of protections in the governmental sphere that are now rescinded and may not be reintroduced. The first is Colorado Executive Order D0035 (1990), which forbids employment discrimination against "`all state employees, classified and exempt' on the basis of sexual orientation." 854 P.2d, at 1284. Also repealed, and now forbidden, *630 are "various provisions prohibiting discrimination based on sexual orientation at state colleges." Id., at 1284, 1285. The repeal of these measures and the prohibition against their future reenactment demonstrate that Amendment 2 has the same force and effect in Colorado's governmental sector as it does elsewhere and that it applies to policies as well as ordinary legislation. Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. See, e. g., Colo. Rev. Stat. § 24-4—106(7) (1988) (agency action subject to judicial review under arbitrary and capricious standard); § 18-8—405 (making it a criminal offense for a public servant knowingly, arbitrarily, or capriciously to refrain from performing a duty imposed on him by law); § 10-3—1104(1)(f) (prohibiting "unfair discrimination" in insurance); 4 Colo. Code of Regulations 801-1, Policy 11-1 (1983) (prohibiting discrimination in state employment on grounds of specified traits or "other non-merit factor"). At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and, thus, forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid. If this consequence follows from Amendment 2, as its broad language suggests, it would compound the constitutional difficulties the law creates. The state court did not decide whether the amendment has this effect, however, and neither need we. In the course of rejecting the argument that Amendment 2 is intended to conserve resources to fight discrimination against suspect classes, the Colorado Supreme *631 Court made the limited observation that the amendment is not intended to affect many antidiscrimination laws protecting nonsuspect classes, Romer II, 882 P. 2d, at 1346, n. 9. In our view that does not resolve the issue. In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society. III The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e. g., Heller v. Doe, 509 U.S. 312, 319-320 (1993). *632 Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. See New Orleans v. Dukes, 427 U.S. 297 (1976) (tourism benefits justified classification favoring pushcart vendors of certain longevity); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955) (assumed health concerns justified law favoring optometrists over opticians); Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949) (potential traffic hazards justified exemption of vehicles advertising the owner's products from general advertising ban); Kotch v. Board of River Port Pilot Comm'rs for Port of New Orleans, 330 U.S. 552 (1947) (licensing scheme that disfavored persons unrelated to current river boat pilots justified by possible efficiency and safety benefits of a closely knit pilotage system). The laws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient factual context for us to *633 ascertain some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. See Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) ("If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect"). Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928). It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.' " Sweatt v. Painter, 339 U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws *634 is a pledge of the protection of equal laws.' " Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)). Davis v. Beason, 133 U.S. 333 (1890), not cited by the parties but relied upon by the dissent, is not evidence that Amendment 2 is within our constitutional tradition, and any reliance upon it as authority for sustaining the amendment is misplaced. In Davis, the Court approved an Idaho territorial statute denying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Court construed the statute, it "simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it." Id., at 347. To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. Dunn v. Blumstein, 405 U.S. 330, 337 (1972); cf. United States v. Brown, 381 U.S. 437 (1965); United States v. Robel, 389 U.S. 258 (1967). To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable. See Richardson v. Ramirez, 418 U.S. 24 (1974). A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of Agriculture v. Moreno, 413 U.S. 528, 534 *635 (1973). Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988), and Amendment 2 does not. The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ." Civil Rights Cases, 109 U. S., at 24. We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, *636 and the judgment of the Supreme Court of Colorado is affirmed. It is so ordered.

One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution. I The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to it as "Amendment 2," its designation when submitted to the voters. The impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities. For example, the cities of Aspen and Boulder and the city and County of Denver each had *624 enacted ordinances which banned discrimination in many transactions and activities, including housing, employment, education, public accommodations, and health and welfare services. Denver Rev. Municipal Code, Art. IV, 28-91 to 28-116 (1991); Aspen Municipal Code 13-98 (1977); Boulder Rev. Code 12-1—1 to 12-1—11 (1987). What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation. See Boulder Rev. Code 12-1—1 (defining "sexual orientation" as "the choice of sexual partners, i. e., bisexual, homosexual or heterosexual"); Denver Rev. Municipal Code, Art. IV, 28-92 (defining "sexual orientation" as "[t]he status of an individual as to his or her heterosexuality, homosexuality or bisexuality"). Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Colo. Const., Art. II, 30b. Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads: "No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing." *6 Soon after Amendment 2 was adopted, this litigation to declare its invalidity and enjoin its enforcement was commenced in the District Court for the City and County of Denver. Among the plaintiffs (respondents here) were homosexual persons, some of them government employees. They alleged that enforcement of Amendment 2 would subject them to immediate and substantial risk of discrimination on the basis of their sexual orientation. Other plaintiffs (also respondents here) included the three municipalities whose ordinances we have cited and certain other governmental entities which had acted earlier to protect homosexuals from discrimination but would be prevented by Amendment 2 from continuing to do so. Although Governor Romer had been on record opposing the adoption of Amendment 2, he was named in his official capacity as a defendant, together with the Colorado Attorney General and the State of Colorado. The trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal was taken to the Supreme Court of Colorado. Sustaining the interim injunction and remanding the case for further proceedings, the State Supreme Court held that Amendment 2 was subject to strict scrutiny under the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. To reach this conclusion, the state court relied on our voting rights cases, e. g., ; ; ; and on our precedents involving discriminatory restructuring of governmental decisionmaking, see, e. g., ; ; ; On remand, the State advanced various arguments in an effort to show that *626 Amendment 2 was narrowly tailored to serve compelling interests, but the trial court found none sufficient. It enjoined enforcement of Amendment 2, and the Supreme Court of Colorado, in a second opinion, affirmed the ruling. We granted certiorari, and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court. II The State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights. This reading of the amendment's language is implausible. We rely not upon our own interpretation of the amendment but upon the authoritative construction of Colorado's Supreme Court. The state court, deeming it unnecessary to determine the full extent of the amendment's reach, found it invalid even on a modest reading of its implications. The critical discussion of the amendment, set out in Evans I, is as follows: "The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation. See Aspen, Colo., Mun. Code 13-98 (1977) (prohibiting discrimination in employment, housing and public accommodations on the basis of sexual orientation); Boulder, Colo., Rev. Code 12-1—2 to —4 (1987) (same); Denver, Colo., Rev. Mun. Code art. IV, 28-91 to —116 (1991) (same); Executive Order No. D0035 (December 10, 1990) (prohibiting employment discrimination for `all state employees, classified and exempt' on the basis of sexual orientation); Colorado Insurance Code, 10-3—1104, 4A C. R. S. (1992 Supp.) (forbidding health insurance providers from determining insurability and premiums based on an applicant's, a beneficiary's, or an insured's *627 sexual orientation); and various provisions prohibiting discrimination based on sexual orientation at state colleges.[26] "26 Metropolitan State College of Denver prohibits college sponsored social clubs from discriminating in membership on the basis of sexual orientation and Colorado State University has an antidiscrimination policy which encompasses sexual orientation. "The `ultimate effect' of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures." — 1285, and n. 26. Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. The change Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching, both on its own terms and when considered in light of the structure and operation of modern antidiscrimination laws. That structure is well illustrated by contemporary statutes and ordinances prohibiting discrimination by providers of public accommodations. "At common law, innkeepers, smiths, and others who `made profession of a public employment,' were prohibited from refusing, without good reason, to serve a customer." The duty was a general one and did not specify protection for particular groups. The common-law rules, however, proved *628 insufficient in many instances, and it was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations, Civil Rights In consequence, most States have chosen to counter discrimination by enacting detailed statutory schemes. See, e. g., S. D. Codified Laws 20-13-10, 20-13-, 20-13-23 ; Iowa Code 216.6-216.8 ; Okla. Stat., Tit. 1302, 1402 (1987); 43 Pa. Cons. Stat. 953, 955 ; N. J. Stat. Ann. 10:5-3, 10:5-4 ; N. H. Rev. Stat. Ann. 354—A:7, 354—A:10, 354—A:17 ; Minn. Stat. 363.03 Colorado's state and municipal laws typify this emerging tradition of statutory protection and follow a consistent pattern. The laws first enumerate the persons or entities subject to a duty not to discriminate. The list goes well beyond the entities covered by the common law. The Boulder ordinance, for example, has a comprehensive definition of entities deemed places of "public accommodation." They include "any place of business engaged in any sales to the general public and any place that offers services, facilities, privileges, or advantages to the general public or that receives financial support through solicitation of the general public or through governmental subsidy of any kind." Boulder Rev. Code 12-1—1(j) (1987). The Denver ordinance is of similar breadth, applying, for example, to hotels, restaurants, hospitals, dental clinics, theaters, banks, common carriers, travel and insurance agencies, and "shops and stores dealing with goods or services of any kind," Denver Rev. Municipal Code, Art. IV, 28-92 (1991). These statutes and ordinances also depart from the common law by enumerating the groups or persons within their ambit of protection. Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply. In following this approach, Colorado's state and local governments have *629 not limited antidiscrimination laws to groups that have so far been given the protection of heightened equal protection scrutiny under our cases. See, e. g., J. E. ; 439 U.S. 9, ; ; Rather, they set forth an extensive catalog of traits which cannot be the basis for discrimination, including age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability of an individual or of his or her associates—-and, in recent times, sexual orientation. Aspen Municipal Code 13-98(a)(1) (1977); Boulder Rev. Code 12-1—1 to 12-1—4 (1987); Denver Rev. Municipal Code, Art. IV, 28-92 to 28-119 (1991); Colo. Rev. Stat. 24-34-401 to XX-XX-XXX Amendment 2 bars homosexuals from securing protection against the injuries that these public-accommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2, in addition, nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment. See, e. g., Aspen Municipal Code 13-98(b), (c) (1977); Boulder Rev. Code 12-1—2, 12-1—3 (1987); Denver Rev. Municipal Code, Art. IV, 28-93 to 28-95, 28-97 (1991). Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government. The State Supreme Court cited two examples of protections in the governmental sphere that are now rescinded and may not be reintroduced. The first is Colorado Executive Order D0035 (1990), which forbids employment discrimination against "`all state employees, classified and exempt' on the basis of sexual orientation." Also repealed, and now forbidden, *630 are "various provisions prohibiting discrimination based on sexual orientation at state colleges." The repeal of these measures and the prohibition against their future reenactment demonstrate that Amendment 2 has the same force and effect in Colorado's governmental sector as it does elsewhere and that it applies to policies as well as ordinary legislation. Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. See, e. g., Colo. Rev. Stat. 24-4—106(7) (agency action subject to judicial review under arbitrary and capricious standard); 18-8—405 (making it a criminal offense for a public servant knowingly, arbitrarily, or capriciously to refrain from performing a duty imposed on him by law); 10-3—1104(1)(f) (prohibiting "unfair discrimination" in insurance); 4 Colo. Code of Regulations 801-1, Policy 11-1 (1983) (prohibiting discrimination in state employment on grounds of specified traits or "other non-merit factor"). At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and, thus, forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid. If this consequence follows from Amendment 2, as its broad language suggests, it would compound the constitutional difficulties the law creates. The state court did not decide whether the amendment has this effect, however, and neither need we. In the course of rejecting the argument that Amendment 2 is intended to conserve resources to fight discrimination against suspect classes, the Colorado Supreme *631 Court made the limited observation that the amendment is not intended to affect many antidiscrimination laws protecting nonsuspect classes, Romer II, 882 P. 2d, at 1346, n. 9. In our view that does not resolve the issue. In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society. III The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of 442 U.S. 6, ; F. S. Royster Guano 3 U.S. 412, We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e. g., *632 Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. See New ; ; Railway Express Agency, ; The laws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient factual context for us to *633 ascertain some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. See Railroad Retirement ("If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect"). Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Louisville Gas & Elec. It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.' " ). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws *634 is a pledge of the protection of equal laws.' " not cited by the parties but relied upon by the dissent, is not evidence that Amendment 2 is within our constitutional tradition, and any reliance upon it as authority for sustaining the amendment is misplaced. In Davis, the Court approved an Idaho territorial statute denying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Court construed the statute, it "simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it." To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. ; cf. United ; United 389 U.S. 8 To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable. See A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of 534 * Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not. The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation [is] obnoxious to the prohibitions of the Fourteenth Amendment" Civil Rights We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, *636 and the judgment of the Supreme Court of Colorado is affirmed. It is so ordered.

Justice Scalia

dissenting

Romer v. Evans

1996-06-03

https://www.courtlistener.com/opinion/118027/romer-v-evans/

https://www.courtlistener.com/api/rest/v3/clusters/118027/

1995-053

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a "`bare . . . desire to harm' " homosexuals, ante, at 634, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court. In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U.S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality, ante, at 634, is evil. I vigorously dissent. *637 I Let me first discuss Part II of the Court's opinion, its longest section, which is devoted to rejecting the State's arguments that Amendment 2 "puts gays and lesbians in the same position as all other persons," and "does no more than deny homosexuals special rights," ante, at 626. The Court concludes that this reading of Amendment 2's language is "implausible" under the "authoritative construction" given Amendment 2 by the Supreme Court of Colorado. Ibid. In reaching this conclusion, the Court considers it unnecessary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the "protection [afforded by] general laws and policies that prohibit arbitrary discrimination in governmental and private settings." Ante, at 630. I agree that we need not resolve that dispute, because the Supreme Court of Colorado has resolved it for us. In the case below, 882 P.2d 1335 (1994), the Colorado court stated: "[I]t is significant to note that Colorado law currently proscribes discrimination against persons who are not suspect classes, including discrimination based on age, § 24-34-402(1)(a), 10A C. R. S. (1994 Supp.); marital or family status, § 24-34-502(1)(a), 10A C. R. S. (1994 Supp.); veterans' status, § 28-3—506, 11B C. R. S. (1989); and for any legal, off-duty conduct such as smoking tobacco, § 24-34-402.5, 10A C. R. S. (1994 Supp.). Of course Amendment 2 is not intended to have any effect on this legislation, but seeks only to prevent the adop- tion of anti-discrimination laws intended to protect gays, lesbians, and bisexuals. " Id., at 1346, n. 9 (emphasis added). The Court utterly fails to distinguish this portion of the Colorado court's opinion. Colorado Rev. Stat. § 24-34-402.5 (Supp. 1995), which this passage authoritatively declares not to be affected by Amendment 2, was respondents' primary *638 example of a generally applicable law whose protections would be unavailable to homosexuals under Amendment 2. See Brief for Respondents Evans et al. 11-12. The clear import of the Colorado court's conclusion that it is not affected is that "general laws and policies that prohibit arbitrary discrimination" would continue to prohibit discrimination on the basis of homosexual conduct as well. This analysis, which is fully in accord with (indeed, follows inescapably from) the text of the constitutional provision, lays to rest such horribles, raised in the course of oral argument, as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the State or any municipality from making death-benefit payments to the "life partner" of a homosexual when it does not make such payments to the long-time roommate of a nonhomosexual employee. Or again, it does not affect the requirement of the State's general insurance laws that customers be afforded coverage without discrimination unrelated to anticipated risk. Thus, homosexuals could not be denied coverage, or charged a greater premium, with respect to auto collision insurance; but neither the State nor any municipality could require that distinctive health insurance risks associated with homosexuality (if there are any) be ignored. Despite all of its hand wringing about the potential effect of Amendment 2 on general antidiscrimination laws, the Court's opinion ultimately does not dispute all this, but assumes it to be true. See ante, at 630. The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the State Constitution. That is to say, the principle underlying the Court's opinion is that one who is accorded *639 equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness. The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i. e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature—unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of. The Court might reply that the example I have given is not a denial of equal protection only because the same "rational basis" (avoidance of corruption) which renders constitutional the substantive discrimination against relatives (i. e., the fact that they alone cannot obtain city contracts) also automatically suffices to sustain what might be called the electoral-procedural discrimination against them (i. e., *640 the fact that they must go to the state level to get this changed). This is of course a perfectly reasonable response, and would explain why "electoral-procedural discrimination" has not hitherto been heard of: A law that is valid in its substance is automatically valid in its level of enactment. But the Court cannot afford to make this argument, for as I shall discuss next, there is no doubt of a rational basis for the substance of the prohibition at issue here. The Court's entire novel theory rests upon the proposition that there is something special —something that cannot be justified by normal "rational basis" analysis—in making a disadvantaged group (or a nonpreferred group) resort to a higher decisionmaking level. That proposition finds no support in law or logic. II I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment—for the prohibition of special protection for homosexuals.[1] It is unsurprising that the Court avoids discussion of this question, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the Court's opinion: In Bowers v. Hardwick, 478 U.S. 186 (1986), we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years—making homosexual conduct a crime. That holding is unassailable, except by those who *641 think that the Constitution changes to suit current fashions. But in any event it is a given in the present case: Respondents' briefs did not urge overruling Bowers, and at oral argument respondents' counsel expressly disavowed any intent to seek such overruling, Tr. of Oral Arg. 53. If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. (As the Court of Appeals for the District of Columbia Circuit has aptly put it: "If the Court [in Bowers ] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open . . . to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Padula v. Webster, 822 F.2d 97, 103 (1987).) And a fortiori it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct. Respondents (who, unlike the Court, cannot afford the luxury of ignoring inconvenient precedent) counter Bowers with the argument that a greater-includes-the-lesser rationale cannot justify Amendment 2's application to individuals who do not engage in homosexual acts, but are merely of homosexual "orientation." Some Courts of Appeals have concluded that, with respect to laws of this sort at least, that is a distinction without a difference. See Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F.3d 261, 267 (CA6 1995) ("[F]or purposes of these proceedings, it is virtually impossible to distinguish or separate individuals of a particular orientation which predisposes them toward a particular sexual conduct from those who actually engage in that particular type of sexual conduct"); Steffan v. Perry, 41 F.3d 677, 689-690 (CADC 1994). The Supreme Court of Colorado itself appears to be of this view. See 882 P. 2d, at *642 1349-1350 ("Amendment 2 targets this class of persons based on four characteristics: sexual orientation; conduct; practices, and relationships. Each characteristic provides a potentially different way of identifying that class of persons who are gay, lesbian, or bisexual. These four characteristics are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons ") (emphasis added). But assuming that, in Amendment 2, a person of homosexual "orientation" is someone who does not engage in homosexual conduct but merely has a tendency or desire to do so, Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual "orientation" is an acceptable stand-in for homosexual conduct. A State "does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect," Dandridge v. Williams, 397 U.S. 471, 485 (1970). Just as a policy barring the hiring of methadone users as transit employees does not violate equal protection simply because some methadone users pose no threat to passenger safety, see New York City Transit Authority v. Beazer, 440 U.S. 568 (1979), and just as a mandatory retirement age of 50 for police officers does not violate equal protection even though it prematurely ends the careers of many policemen over 50 who still have the capacity to do the job, see Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam), Amendment 2 is not constitutionally invalid simply because it could have been drawn more precisely so as to withdraw special antidiscrimination protections only from those of homosexual "orientation" who actually engage in homosexual conduct. As Justice Kennedy wrote, when he was on the Court of Appeals, in a case involving discharge of homosexuals from the Navy: "Nearly any *643 statute which classifies people may be irrational as applied in particular cases. Discharge of the particular plaintiffs before us would be rational, under minimal scrutiny, not because their particular cases present the dangers which justify Navy policy, but instead because the general policy of discharging all homosexuals is rational." Beller v. Middendorf, 632 F.2d 788, 808-809, n. 20 (CA9 1980) (citation omitted). See also Ben-Shalom v. Marsh, 881 F.2d 454, 464 (CA7 1989), cert. denied, 494 U.S. 1004 (1990). Moreover, even if the provision regarding homosexual "orientation" were invalid, respondents' challenge to Amendment 2—which is a facial challenge—must fail. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). It would not be enough for respondents to establish (if they could) that Amendment 2 is unconstitutional as applied to those of homosexual "orientation"; since, under Bowers, Amendment 2 is unquestionably constitutional as applied to those who engage in homosexual conduct, the facial challenge cannot succeed. Some individuals of homosexual "orientation" who do not engage in homosexual acts might successfully bring an as-applied challenge to Amendment 2, but so far as the record indicates, none of the respondents is such a person. See App. 4-5 (complaint describing each of the individual respondents as either "a gay man" or "a lesbian").[2] *644 III The foregoing suffices to establish what the Court's failure to cite any case remotely in point would lead one to suspect: No principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here. But the case for Colorado is much stronger than that. What it has done is not only unprohibited, but eminently reasonable, with close, congressionally approved precedent in earlier constitutional practice. First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons—for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct —that is, it prohibits favored status for homosexuality. But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable. *645 The Court's portrayal of Coloradans as a society fallen victim to pointless, hate-filled "gay-bashing" is so false as to be comical. Colorado not only is one of the 25 States that have repealed their antisodomy laws, but was among the first to do so. See 1971 Colo. Sess. Laws, ch. 121, § 1. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens. Cf. Brief for Lambda Legal Defense and Education Fund, Inc., et al. as Amici Curiae in Bowers v. Hardwick, O. T. 1985, No. 85-140, p. 25, n. 21 (antisodomy statutes are "unenforceable by any but the most offensive snooping and wasteful allocation of law enforcement resources"); Kadish, The Crisis of Overcriminalization, 374 The Annals of the American Academy of Political and Social Science 157, 161 (1967) ("To obtain evidence [in sodomy cases], police are obliged to resort to behavior which tends to degrade and demean both themselves personally and law enforcement as an institution"). There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable "alternative life style." The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and, of course, care about homosexual-rights issues much *646 more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e. g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation"). By the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals' quest for social endorsement was not limited to newspaper accounts of happenings in places such as New York, Los Angeles, San Francisco, and Key West. Three Colorado cities—Aspen, Boulder, and Denver—had enacted ordinances that listed "sexual orientation" as an impermissible ground for discrimination, equating the moral disapproval of homosexual conduct with racial and religious bigotry. See Aspen Municipal Code § 13-98 (1977); Boulder Rev. Municipal Code §§ 12-1—1 to 12-1—11 (1987); Denver Rev. Municipal Code, Art. IV, §§ 28-91 to 28-116 (1991). The phenomenon had even appeared statewide: The Governor of Colorado had signed an executive order pronouncing that "in the State of Colorado we recognize the diversity in our pluralistic society and strive to bring an end to discrimination in any form," and directing state agencyheads to "ensure non-discrimination" in hiring and promotion based on, among other things, "sexual orientation." Executive Order No. D0035 (Dec. 10, 1990). I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as is the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well. *647 That is where Amendment 2 came in. It sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single-issue contest for both sides. It put directly, to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no. The Court today asserts that this most democratic of procedures is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never happened before. "[Amendment 2] identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive . . . . "It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance." Ante, at 633. As I have noted above, this is proved false every time a state law prohibiting or disfavoring certain conduct is passed, because such a law prevents the adversely affected group— whether drug addicts, or smokers, or gun owners, or motorcyclists—from changing the policy thus established in "each of [the] parts" of the State. What the Court says is even demonstrably false at the constitutional level. The Eighteenth Amendment to the Federal Constitution, for example, deprived those who drank alcohol not only of the power to alter the policy of prohibition locally or through state legislation, but even of the power to alter it through state constitutional amendment or federal legislation. The *648 Establishment Clause of the First Amendment prevents theocrats from having their way by converting their fellow citizens at the local, state, or federal statutory level; as does the Republican Form of Government Clause prevent monarchists. But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The Constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, § 4; N. M. Const., Art. XXI, § 1; Okla. Const., Art. I, § 2; Utah Const., Art. III, § 1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even localoption, basis—unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals. The United States Congress, by the way, required the inclusion of these antipolygamy provisions in the Constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission to statehood. See Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 36 Stat. 558; Oklahoma Enabling Act, 34 Stat. 269; Utah Enabling Act, 28 Stat. 108. (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the antipolygamy provisions be "irrevocable without the consent of the United States and the people of said State"—so that not only were "each of [the] parts" of these States not "open on impartial terms" to polygamists, but even the States as a whole were not; *649 polygamists would have to persuade the whole country to their way of thinking.) Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Idaho into the Union, found its Constitution to be "republican in form and . . . in conformity with the Constitution of the United States. " Act of Admission of Idaho, 26 Stat. 215 (emphasis added). Thus, this "singling out" of the sexual practices of a single group for statewide, democratic vote—so utterly alien to our constitutional system, the Court would have us believe—has not only happened, but has received the explicit approval of the United States Congress. I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote. In Davis v. Beason, 133 U.S. 333 (1890), Justice Field wrote for a unanimous Court: "In our judgment, § 501 of the Revised Statutes of Idaho Territory, which provides that `no person . . . who is a bigamist or polygamist or who teaches, advises, counsels, or encourages any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels, or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law . . . is permitted to vote at any election, or to hold any position or office of honor, trust, or profit within this Territory,' is not open to any constitutional or legal objection. " Id., at 346-347 (emphasis added). To the extent, if any, that this opinion permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, *650 it has, of course, been overruled by later cases. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law. See Richardson v. Ramirez, 418 U.S. 24, 53 (1974). Beason rejected the argument that "such discrimination is a denial of the equal protection of the laws." Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were the two whose views in other cases the Court today treats as equal protection lodestars—Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissenting opinion), that the Constitution "neither knows nor tolerates classes among citizens," quoted ante, at 623, and Justice Bradley, who had earlier declared that "class legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment," Civil Rights Cases, 109 U.S. 3, 24 (1883), quoted ante, at 635.[3] *651 This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the Court today. That opinion said: "[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. . . . See, e. g., . . . Davis v. Beason, 133 U.S. 333 (1890)." Church of Lukumi Babalu Aye, Inc. v.Hialeah, 508 U.S. 520, 535 (1993). It remains to be explained how § 501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not? IV I strongly suspect that the answer to the last question is yes, which leads me to the last point I wish to make: The Court today, announcing that Amendment 2 "defies . . . conventional [constitutional] inquiry," ante, at 632, and "confounds [the] normal process of judicial review," ante, at 633, employs a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values. The Court's stern disapproval of "animosity" towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey, 114 U.S. 15 (1885), rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation: "[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, selfgoverning *652 commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Id., at 45. I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than "`a bare . . . desire to harm a politically unpopular group,' " ante, at 634, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), is nothing short of insulting. (It is also nothing short of preposterous to call "politically unpopular" a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2, see App. to Pet. for Cert. C-18.) When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins—and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong *653 prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. § 6-4(b); Executive Committee Regulations of the Association of American Law Schools § 6.19, in 1995 Handbook, Association of American Law Schools. This law-school view of what "prejudices" must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws, see, e. g., Employment NonDiscrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude them specifically from the Americans with Disabilities Act of 1990, see 42 U.S. C. § 12211(a) (1988 ed., Supp. V). * * * Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a "`bare desire to harm' " homosexuals, ante, at 634, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court. In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality, ante, at 634, is evil. I vigorously dissent. *637 I Let me first discuss Part II of the Court's opinion, its longest section, which is devoted to rejecting the State's arguments that Amendment 2 "puts gays and lesbians in the same position as all other persons," and "does no more than deny homosexuals special rights," ante, at 626. The Court concludes that this reading of Amendment 2's language is "implausible" under the "authoritative construction" given Amendment 2 by the Supreme Court of Colorado. In reaching this conclusion, the Court considers it unnecessary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the "protection [afforded by] general laws and policies that prohibit arbitrary discrimination in governmental and private settings." Ante, at 630. I agree that we need not resolve that dispute, because the Supreme Court of Colorado has resolved it for us. In the case below, the Colorado court stated: "[I]t is significant to note that Colorado law currently proscribes discrimination against persons who are not suspect classes, including discrimination based on age, -34-402(1)(a), 10A C. R. S. ( Supp.); marital or family status, -34-502(1)(a), 10A C. R. S. ( Supp.); veterans' status, 28-3—506, 11B C. R. S. ; and for any legal, off-duty conduct such as smoking tobacco, -34-402.5, 10A C. R. S. ( Supp.). Of course Amendment 2 is not intended to have any effect on this legislation, but seeks only to prevent the adop- tion of anti-discrimination laws intended to protect gays, lesbians, and bisexuals. " The Court utterly fails to distinguish this portion of the Colorado court's opinion. Colorado Rev. Stat. -34-402.5 which this passage authoritatively declares not to be affected by Amendment 2, was respondents' primary *638 example of a generally applicable law whose protections would be unavailable to homosexuals under Amendment 2. See Brief for Respondents Evans et al. 11-12. The clear import of the Colorado court's conclusion that it is not affected is that "general laws and policies that prohibit arbitrary discrimination" would continue to prohibit discrimination on the basis of homosexual conduct as well. This analysis, which is fully in accord with (indeed, follows inescapably from) the text of the constitutional provision, lays to rest such horribles, raised in the course of oral argument, as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the State or any municipality from making death-benefit payments to the "life partner" of a homosexual when it does not make such payments to the long-time roommate of a nonhomosexual employee. Or again, it does not affect the requirement of the State's general insurance laws that customers be afforded coverage without discrimination unrelated to anticipated risk. Thus, homosexuals could not be denied coverage, or charged a greater premium, with respect to auto collision insurance; but neither the State nor any municipality could require that distinctive health insurance risks associated with homosexuality (if there are any) be ignored. Despite all of its hand wringing about the potential effect of Amendment 2 on general antidiscrimination laws, the Court's opinion ultimately does not dispute all this, but assumes it to be true. See ante, at 630. The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the State Constitution. That is to say, the principle underlying the Court's opinion is that one who is accorded *639 equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness. The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i. e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature—unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of. The Court might reply that the example I have given is not a denial of equal protection only because the same "rational basis" (avoidance of corruption) which renders constitutional the substantive discrimination against relatives (i. e., the fact that they alone cannot obtain city contracts) also automatically suffices to sustain what might be called the electoral-procedural discrimination against them (i. e., *640 the fact that they must go to the state level to get this changed). This is of course a perfectly reasonable response, and would explain why "electoral-procedural discrimination" has not hitherto been heard of: A law that is valid in its substance is automatically valid in its level of enactment. But the Court cannot afford to make this argument, for as I shall discuss next, there is no doubt of a rational basis for the substance of the prohibition at issue here. The Court's entire novel theory rests upon the proposition that there is something special —something that cannot be justified by normal "rational basis" analysis—in making a disadvantaged group (or a nonpreferred group) resort to a higher decisionmaking level. That proposition finds no support in law or logic. II I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment—for the prohibition of special protection for homosexuals.[1] It is unsurprising that the Court avoids discussion of this question, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the Court's opinion: In we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years—making homosexual conduct a crime. That holding is unassailable, except by those who *641 think that the Constitution changes to suit current fashions. But in any event it is a given in the present case: Respondents' briefs did not urge overruling Bowers, and at oral argument respondents' counsel expressly disavowed any intent to seek such overruling, Tr. of Oral Arg. If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct.) And a fortiori it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct. Respondents (who, unlike the Court, cannot afford the luxury of ignoring inconvenient precedent) counter Bowers with the argument that a greater-includes-the-lesser rationale cannot justify Amendment 2's application to individuals who do not engage in homosexual acts, but are merely of homosexual "orientation." Some Courts of Appeals have concluded that, with respect to laws of this sort at least, that is a distinction without a difference. See Equality Foundation of Greater Cincinnati, ; The Supreme Court of Colorado itself appears to be of this view. See 882 P. 2d, at *642 1349-1350 ("Amendment 2 targets this class of persons based on four characteristics: sexual orientation; conduct; practices, and relationships. Each characteristic provides a potentially different way of identifying that class of persons who are gay, lesbian, or bisexual. These four characteristics are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons ") But assuming that, in Amendment 2, a person of homosexual "orientation" is someone who does not engage in homosexual conduct but merely has a tendency or desire to do so, Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual "orientation" is an acceptable stand-in for homosexual conduct. A State "does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect," Just as a policy barring the hiring of methadone users as transit employees does not violate equal protection simply because some methadone users pose no threat to passenger safety, see New York City Transit and just as a mandatory retirement age of 50 for police officers does not violate equal protection even though it prematurely ends the careers of many policemen over 50 who still have the capacity to do the job, see Massachusetts Bd. of Amendment 2 is not constitutionally invalid simply because it could have been drawn more precisely so as to withdraw special antidiscrimination protections only from those of homosexual "orientation" who actually engage in homosexual conduct. As Justice Kennedy wrote, when he was on the Court of Appeals, in a case involving discharge of homosexuals from the Navy: "Nearly any *643 statute which classifies people may be irrational as applied in particular cases. Discharge of the particular plaintiffs before us would be rational, under minimal scrutiny, not because their particular cases present the dangers which justify Navy policy, but instead because the general policy of discharging all homosexuals is rational." See also cert. denied, Moreover, even if the provision regarding homosexual "orientation" were invalid, respondents' challenge to Amendment 2—which is a facial challenge—must fail. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United It would not be enough for respondents to establish (if they could) that Amendment 2 is unconstitutional as applied to those of homosexual "orientation"; since, under Bowers, Amendment 2 is unquestionably constitutional as applied to those who engage in homosexual conduct, the facial challenge cannot succeed. Some individuals of homosexual "orientation" who do not engage in homosexual acts might successfully bring an as-applied challenge to Amendment 2, but so far as the record indicates, none of the respondents is such a person. See App. 4-5 (complaint describing each of the individual respondents as either "a gay man" or "a lesbian").[2] *644 III The foregoing suffices to establish what the Court's failure to cite any case remotely in point would lead one to suspect: No principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here. But the case for Colorado is much stronger than that. What it has done is not only unprohibited, but eminently reasonable, with close, congressionally approved precedent in earlier constitutional practice. First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons—for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct —that is, it prohibits favored status for homosexuality. But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceivable. *645 The Court's portrayal of Coloradans as a society fallen victim to pointless, hate-filled "gay-bashing" is so false as to be comical. Colorado not only is one of the 25 States that have repealed their antisodomy laws, but was among the first to do so. See 1971 Colo. Sess. Laws, ch. 121, 1. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens. Cf. Brief for Lambda Legal Defense and Education Fund, Inc., et al. as Amici Curiae in O. T. 1985, No. 85-140, p. 25, n. 21 (antisodomy statutes are "unenforceable by any but the most offensive snooping and wasteful allocation of law enforcement resources"); Kadish, The Crisis of Overcriminalization, 374 The Annals of the American Academy of Political and Social Science 157, 161 (1967) ("To obtain evidence [in sodomy cases], police are obliged to resort to behavior which tends to degrade and demean both themselves personally and law enforcement as an institution"). There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable "alternative life style." The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and, of course, care about homosexual-rights issues much *646 more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e. g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, By the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals' quest for social endorsement was not limited to newspaper accounts of happenings in places such as New York, Los Angeles, San Francisco, and Key West. Three Colorado cities—Aspen, Boulder, and Denver—had enacted ordinances that listed "sexual orientation" as an impermissible ground for discrimination, equating the moral disapproval of homosexual conduct with racial and religious bigotry. See Aspen Municipal Code 13-98 (1977); Boulder Rev. Municipal Code 12-1—1 to 12-1—11 ; Denver Rev. Municipal Code, Art. IV, 28-91 to 28-116 (1991). The phenomenon had even appeared statewide: The Governor of Colorado had signed an executive order pronouncing that "in the State of Colorado we recognize the diversity in our pluralistic society and strive to bring an end to discrimination in any form," and directing state agencyheads to "ensure non-discrimination" in hiring and promotion based on, among other things, "sexual orientation." Executive Order No. D0035 I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as is the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well. *647 That is where Amendment 2 came in. It sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single-issue contest for both sides. It put directly, to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no. The Court today asserts that this most democratic of procedures is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never happened before. "[Amendment 2] identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive "It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance." Ante, at 633. As I have noted above, this is proved false every time a state law prohibiting or disfavoring certain conduct is passed, because such a law prevents the adversely affected group— whether drug addicts, or smokers, or gun owners, or motorcyclists—from changing the policy thus established in "each of [the] parts" of the State. What the Court says is even demonstrably false at the constitutional level. The Eighteenth Amendment to the Federal Constitution, for example, deprived those who drank alcohol not only of the power to alter the policy of prohibition locally or through state legislation, but even of the power to alter it through state constitutional amendment or federal legislation. The *648 Establishment Clause of the First Amendment prevents theocrats from having their way by converting their fellow citizens at the local, state, or federal statutory level; as does the Republican Form of Government Clause prevent monarchists. But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The Constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, 4; N. M. Const., Art. XXI, 1; Okla. Const., Art. I, 2; Utah Const., Art. III, 1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even localoption, basis—unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals. The United States Congress, by the way, required the inclusion of these antipolygamy provisions in the Constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission to statehood. See Arizona Enabling Act, ; New Mexico Enabling Act, ; Oklahoma Enabling Act, ; Utah Enabling Act, (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the antipolygamy provisions be "irrevocable without the consent of the United States and the people of said State"—so that not only were "each of [the] parts" of these States not "open on impartial terms" to polygamists, but even the States as a whole were not; *649 polygamists would have to persuade the whole country to their way of thinking.) Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Idaho into the Union, found its Constitution to be "republican in form and in conformity with the Constitution of the United States. " Act of Admission of Idaho, Thus, this "singling out" of the sexual practices of a single group for statewide, democratic vote—so utterly alien to our constitutional system, the Court would have us believe—has not only happened, but has received the explicit approval of the United States Congress. I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote. In Justice Field wrote for a unanimous Court: "In our judgment, 501 of the Revised Statutes of Idaho Territory, which provides that `no person who is a bigamist or polygamist or who teaches, advises, counsels, or encourages any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels, or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law is permitted to vote at any election, or to hold any position or office of honor, trust, or profit within this Territory,' is not open to any constitutional or legal objection. " To the extent, if any, that this opinion permits the imposition of adverse consequences upon mere abstract advocacy of polygamy, *650 it has, of course, been overruled by later cases. See But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law. See Beason rejected the argument that "such discrimination is a denial of the equal protection of the laws." Brief for Appellant in O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were the two whose views in other cases the Court today treats as equal protection lodestars—Justice Harlan, who was to proclaim in 163 U.S. 7, that the Constitution "neither knows nor tolerates classes among citizens," quoted ante, at 623, and Justice Bradley, who had earlier declared that "class legislation [is] obnoxious to the prohibitions of the Fourteenth Amendment," Civil Rights Cases, quoted ante, at 635.[3] *651 This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the Court today. That opinion said: "[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. See, e. g.," Church of Lukumi Babalu Aye, Inc. v.Hialeah, 5 It remains to be explained how 501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not? IV I strongly suspect that the answer to the last question is yes, which leads me to the last point I wish to make: The Court today, announcing that Amendment 2 "defies conventional [constitutional] inquiry," ante, at 632, and "confounds [the] normal process of judicial review," ante, at 633, employs a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values. The Court's stern disapproval of "animosity" towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation: "[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, selfgoverning *652 commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than "`a bare desire to harm a politically unpopular group,' " ante, at 634, quoting Department of 4 is nothing short of insulting. (It is also nothing short of preposterous to call "politically unpopular" a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2, see App. to Pet. for Cert. C-18.) When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins—and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong *6 prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. 6-4(b); Executive Committee Regulations of the Association of American Law Schools 6.19, in Handbook, Association of American Law Schools. This law-school view of what "prejudices" must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws, see, e. g., Employment NonDiscrimination Act of S. 2238, d Cong., 2d Sess. ; Civil Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude them specifically from the Americans with Disabilities Act of 1990, see 42 U.S. C. 12211(a) (1988 ed., Supp. V). * * * Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.

Justice Breyer

majority

Lagos v. United States

2018-05-29

https://www.courtlistener.com/opinion/4501696/lagos-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4501696/

2017-061

The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to “reimburse the victim for lost income and necessary child care, transportation, and other expenses in- curred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S. C. §3663A(b)(4) (em- phasis added). We must decide whether the words “investigation” and “proceedings” are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings. In our view, they are limited to government investigations and criminal proceedings. I The petitioner, Sergio Fernando Lagos, was convicted of using a company that he controlled (Dry Van Logistics) to defraud a lender (General Electric Capital Corporation, or GE) of tens of millions of dollars. The fraud involved 2 LAGOS v. UNITED STATES Opinion of the Court generating false invoices for services that Dry Van Logis- tics had not actually performed and then borrowing money from GE using the false invoices as collateral. Eventually, the scheme came to light. Dry Van Logistics went bank- rupt. GE investigated. The Government indicted Lagos. Lagos pleaded guilty to wire fraud. And the judge, among other things, ordered him to pay GE restitution. The issue here concerns the part of the restitution order that requires Lagos to reimburse GE for expenses GE incurred during its own investigation of the fraud and during its participation in Dry Van Logistics’ bankruptcy proceedings. The amounts are substantial (about $5 million), and primarily consist of professional fees for attorneys, accountants, and consultants. The Government argued that the District Court must order restitution of these amounts under the Mandatory Victims Restitution Act because these sums were “necessary . . . other expenses incurred during participation in the investigation . . . of the offense or attendance at proceedings related to the offense.” §3663A(b)(4). The District Court agreed, as did the U. S. Court of Appeals for the Fifth Circuit. 864 F.3d 320, 323 (2017). Lagos filed a petition for certiorari. And in light of a division of opinion on the matter, we granted the petition. Compare United States v. Papagno, 639 F.3d 1093, 1100 (CADC 2011) (subsection (b)(4) of the Mandatory Victims Restitution Act does not cover private investigation costs), with United States v. Elson, 577 F.3d 713, 726–729 (CA6 2009) (statute not so limited); United States v. Hosking, 567 F.3d 329, 331–332 (CA7 2009) (same); United States v. Stennis-Williams, 557 F.3d 927, 930 (CA8 2009) (same); United States v. Amato, 540 F.3d 153, 159–163 (CA2 2008) (same); United States v. Gordon, 393 F.3d 1044, 1056–1057 (CA9 2004) (same). Cite as: 584 U. S. ____ (2018) 3 Opinion of the Court II The Mandatory Victims Restitution Act is one of several federal statutes that govern federal court orders requiring defendants convicted of certain crimes to pay their victims restitution. It concerns “crime[s] of violence,” “offense[s] against property . . . , including any offense committed by fraud or deceit,” and two specific offenses, one concern- ing tampering with a consumer product and the other concerning theft of medical products. 18 U.S. C. §3663A(c)(1)(A). It requires, in the case of property of- fenses, return of the property taken or its value, §3663A(b)(1); in the case of bodily injury, the payment of medical expenses and lost income, §3663A(b)(2); in the case of death, the payment of funeral expenses, §3663A(b)(3); and, as we have said, supra, at 1, in all cases, “reimburse[ment]” to “the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the of- fense.” §3663A(b)(4) (emphasis added). We here consider the meaning of that italicized phrase. Specifically, we ask whether the scope of the words “inves- tigation” and “proceedings” is limited to government inves- tigations and criminal proceedings, or whether it includes private investigations and civil or bankruptcy litigation. We conclude that those words are limited to government investigations and criminal proceedings. Our conclusion rests in large part upon the statute’s wording, both its individual words and the text taken as a whole. The individual words suggest (though they do not demand) our limited interpretation. The word “investiga- tion” is directly linked by the word “or” to the word “prose- cution,” with which it shares the article “the.” This sug- gests that the “investigation[s]” and “prosecution[s]” that 4 LAGOS v. UNITED STATES Opinion of the Court the statute refers to are of the same general type. And the word “prosecution” must refer to a government’s criminal prosecution, which suggests that the word “investigation” may refer to a government’s criminal investigation. A similar line of reasoning suggests that the immediately following reference to “proceedings” also refers to criminal proceedings in particular, rather than to “proceedings” of any sort. Furthermore, there would be an awkwardness about the statute’s use of the word “participation” to refer to a vic- tim’s role in its own private investigation, and the word “attendance” to refer to a victim’s role as a party in non- criminal court proceedings. A victim opting to pursue a private investigation of an offense would be more naturally said to “provide for” or “conduct” the private investigation (in which he may, or may not, actively “participate”). And a victim who pursues civil or bankruptcy litigation does not merely “atten[d]” such other “proceedings related to the offense” but instead “participates” in them as a party. In contrast, there is no awkwardness, indeed it seems perfectly natural, to say that a victim “participat[es] in the investigation” or “attend[s] . . . proceedings related to the offense” if the investigation at issue is a government’s criminal investigation, and if the proceedings at issue are criminal proceedings conducted by a government. Moreover, to consider the statutory phrase as a whole strengthens these linguistic points considerably. The phrase lists three specific items that must be reimbursed, namely, lost income, child care, and transportation; and it then adds the words, “and other expenses.” §3663A(b)(4). Lost income, child care expenses, and transportation expenses are precisely the kind of expenses that a victim would be likely to incur when he or she (or, for a corporate victim like GE, its employees) misses work and travels to talk to government investigators, to participate in a gov- ernment criminal investigation, or to testify before a Cite as: 584 U. S. ____ (2018) 5 Opinion of the Court grand jury or attend a criminal trial. At the same time, the statute says nothing about the kinds of expenses a victim would often incur when private investigations, or, say, bankruptcy proceedings are at issue, namely, the costs of hiring private investigators, attorneys, or account- ants. Thus, if we look to noscitur a sociis, the well-worn Latin phrase that tells us that statutory words are often known by the company they keep, we find here both the presence of company that suggests limitation and the absence of company that suggests breadth. See, e.g., Yates v. United States, 574 U. S. ___, ___ (2015) (slip op., at 14). We add a practical fact: A broad reading would create significant administrative burdens. The statute provides for mandatory restitution, and the portion we construe is limited to “necessary . . . other expenses.” §3663A(b)(4) (emphasis added). The word “necessary” would, if the statute is broadly interpreted, invite disputes as to whether particular expenses “incurred during” participation in a private investigation or attendance at, say, a bankruptcy proceeding, were in fact “necessary.” Such disputes may become burdensome in cases involving multimillion dollar investigation expenses for teams of lawyers and account- ants. A district court might, for example, need to decide whether each witness interview and each set of documents reviewed was really “necessary” to the investigation. Similarly, the statute also limits restitution to expenses incurred only during “attendance at proceedings related to the offense,” ibid. (emphasis added), inviting disputes as to whether, say, a licensing proceeding, a human resources review, an in-house disciplinary proceeding, a job inter- view, a Consumer Product Safety Commission hearing, or a neighborhood watch meeting qualified as “proceedings” sufficiently “related to the offense” so as to be eligible for restitution. To interpret the statute broadly is to invite controversy on those and other matters; our narrower construction 6 LAGOS v. UNITED STATES Opinion of the Court avoids it. And one begins to doubt whether Congress intended, in making this restitution mandatory, to require courts to resolve these potentially time-consuming contro- versies as part of criminal sentencing—particularly once one realizes that few victims are likely to benefit because more than 90% of criminal restitution is never collected. See GAO, Federal Criminal Restitution: Most Debt Is Outstanding and Oversight of Collections Could Be Im- proved 25 (GAO–18–203, 2018) (explaining that the Jus- tice Department considers 91% of outstanding criminal restitution to be “uncollectible”). There are, of course, contrary arguments—arguments favoring a broad interpretation. The Government points out, in particular, that our narrow interpretation will sometimes leave a victim without a restitution remedy sufficient to cover some expenses (say, those related to his private investigation) which he undoubtedly incurred as a result of the offense. Leaving the victim without that restitution remedy, the Government adds, runs contrary to the broad purpose of the Mandatory Victims Restitution Act, namely, “to ensure that victims of a crime receive full restitution.” Dolan v. United States, 560 U.S. 605, 612 (2010). But a broad general purpose of this kind does not al- ways require us to interpret a restitution statute in a way that favors an award. After all, Congress has enacted many different restitution statutes with differing lan- guage, governing different circumstances. Some of those statutes specifically require restitution for the “full amount of the victim’s losses,” defined to include “any . . . losses suffered by the victim as a proximate result of the offense.” See 18 U.S. C. §§2248(b), 2259(b), 2264(b), 2327(b). The Mandatory Victims Restitution Act, however, contains no such language; it specifically lists the kinds of losses and expenses that it covers. Moreover, in at least one other statute Congress has expressly provided for Cite as: 584 U. S. ____ (2018) 7 Opinion of the Court restitution of “the value of the time reasonably spent by the victim in an attempt to remediate the intended or actual harm incurred by the victim from the offense.” §3663(b)(6). Again the Mandatory Victims Restitution Act has no similar provision. And given those differences between the Mandatory Victims Restitution Act and other restitution statutes, we conclude that the considerations we have mentioned, particularly those based on a reading of the statute as a whole, tip the balance in favor of our more limited interpretation. We add that this interpretation does not leave a victim such as GE totally without a remedy for additional losses not covered by the Mandatory Victims Restitution Act. GE also brought a civil lawsuit against Lagos for the full extent of its losses, and obtained an over-$30 million judgment against him. The Government says that GE has largely been unable to collect on that judgment, but there is no reason to think that collection efforts related to a criminal restitution award would prove any more successful. The Government makes one additional argument. It points out that GE shared with the Government the in- formation that its private investigation uncovered. And that fact, the Government says, should bring the expenses of that investigation within the terms of the statute even if the “investigation” referred to by the statute is a govern- ment’s criminal investigation. The short, conclusive answer to that claim, however, lies in the fact that the statute refers to “necessary child care, transportation, and other expenses incurred during participation in the inves- tigation or prosecution of the offense.” §3663A(b)(4) (em- phasis added). It does not refer to expenses incurred before the victim’s participation in a government’s investi- gation began. And the Government does not deny that it is those preparticipation expenses—the expenses of con- ducting GE’s investigation, not those of sharing the results 8 LAGOS v. UNITED STATES Opinion of the Court from it—that are at issue here. We therefore need not address in this case whether this part of the Mandatory Victims Restitution Act would cover similar expenses incurred during a private investigation that was pursued at a government’s invitation or request. It is enough to hold that it does not cover the costs of a private investiga- tion that the victim chooses on its own to conduct. * * * For the reasons stated, we conclude that the words “investigation” and “proceedings” in the Mandatory Vic- tims Restitution Act refer to government investigations and criminal proceedings. Consequently Lagos is not obliged to pay the portion of the restitution award that he here challenges. We reverse the Court of Appeals’ judg- ment to the contrary, and we remand the case for further proceedings consistent with this opinion. It is so ordered

The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to “reimburse the victim for lost income and necessary child care, transportation, and other expenses in- curred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S. C. (em- phasis added). We must decide whether the words “investigation” and “proceedings” are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings. In our view, they are limited to government investigations and criminal proceedings. I The petitioner, Sergio Fernando Lagos, was convicted of using a company that he controlled (Dry Van Logistics) to defraud a lender (General Electric Capital Corporation, or GE) of tens of millions of dollars. The fraud involved 2 LAGOS v. UNITED STATES Opinion of the Court generating false invoices for services that Dry Van Logis- tics had not actually performed and then borrowing money from GE using the false invoices as collateral. Eventually, the scheme came to light. Dry Van Logistics went bank- rupt. GE investigated. The Government indicted Lagos. Lagos pleaded guilty to wire fraud. And the judge, among other things, ordered him to pay GE restitution. The issue here concerns the part of the restitution order that requires Lagos to reimburse GE for expenses GE incurred during its own investigation of the fraud and during its participation in Dry Van Logistics’ bankruptcy proceedings. The amounts are substantial (about $5 million), and primarily consist of professional fees for attorneys, accountants, and consultants. The Government argued that the District Court must order restitution of these amounts under the Mandatory Victims Restitution Act because these sums were “necessary other expenses incurred during participation in the investigation of the offense or attendance at proceedings related to the offense.” The District Court agreed, as did the U. S. Court of Appeals for the Fifth Circuit. 864 F.3d 320, 323 (2017). Lagos filed a petition for certiorari. And in light of a division of opinion on the matter, we granted the petition. Compare United (CADC 2011) (subsection (b)(4) of the Mandatory Victims Restitution Act does not cover private investigation costs), with United 726–729 (statute not so limited); United ; United States v. Stennis-Williams, ; United 159–163 (CA2 2008) ; United 1056–1057 (CA9 2004) Cite as: 584 U. S. (2018) 3 Opinion of the Court II The Mandatory Victims Restitution Act is one of several federal statutes that govern federal court orders requiring defendants convicted of certain crimes to pay their victims restitution. It concerns “crime[s] of violence,” “offense[s] against property including any offense committed by fraud or deceit,” and two specific offenses, one concern- ing tampering with a consumer product and the other concerning theft of medical products. 18 U.S. C. It requires, in the case of property of- fenses, return of the property taken or its value, in the case of bodily injury, the payment of medical expenses and lost income, in the case of death, the payment of funeral expenses, and, as we have in all cases, “reimburse[ment]” to “the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the of- fense.” We here consider the meaning of that italicized phrase. Specifically, we ask whether the scope of the words “inves- tigation” and “proceedings” is limited to government inves- tigations and criminal proceedings, or whether it includes private investigations and civil or bankruptcy litigation. We conclude that those words are limited to government investigations and criminal proceedings. Our conclusion rests in large part upon the statute’s wording, both its individual words and the text taken as a whole. The individual words suggest (though they do not demand) our limited interpretation. The word “investiga- tion” is directly linked by the word “or” to the word “prose- cution,” with which it shares the article “the.” This sug- gests that the “investigation[s]” and “prosecution[s]” that 4 LAGOS v. UNITED STATES Opinion of the Court the statute refers to are of the same general type. And the word “prosecution” must refer to a government’s criminal prosecution, which suggests that the word “investigation” may refer to a government’s criminal investigation. A similar line of reasoning suggests that the immediately following reference to “proceedings” also refers to criminal proceedings in particular, rather than to “proceedings” of any sort. Furthermore, there would be an awkwardness about the statute’s use of the word “participation” to refer to a vic- tim’s role in its own private investigation, and the word “attendance” to refer to a victim’s role as a party in non- criminal court proceedings. A victim opting to pursue a private investigation of an offense would be more naturally to “provide for” or “conduct” the private investigation (in which he may, or may not, actively “participate”). And a victim who pursues civil or bankruptcy litigation does not merely “atten[d]” such other “proceedings related to the offense” but instead “participates” in them as a party. In contrast, there is no awkwardness, indeed it seems perfectly natural, to say that a victim “participat[es] in the investigation” or “attend[s] proceedings related to the offense” if the investigation at issue is a government’s criminal investigation, and if the proceedings at issue are criminal proceedings conducted by a government. Moreover, to consider the statutory phrase as a whole strengthens these linguistic points considerably. The phrase lists three specific items that must be reimbursed, namely, lost income, child care, and transportation; and it then adds the words, “and other expenses.” Lost income, child care expenses, and transportation expenses are precisely the kind of expenses that a victim would be likely to incur when he or she (or, for a corporate victim like GE, its employees) misses work and travels to talk to government investigators, to participate in a gov- ernment criminal investigation, or to testify before a Cite as: 584 U. S. (2018) 5 Opinion of the Court grand jury or attend a criminal trial. At the same time, the statute says nothing about the kinds of expenses a victim would often incur when private investigations, or, say, bankruptcy proceedings are at issue, namely, the costs of hiring private investigators, attorneys, or account- ants. Thus, if we look to noscitur a sociis, the well-worn Latin phrase that tells us that statutory words are often known by the company they keep, we find here both the presence of company that suggests limitation and the absence of company that suggests breadth. See, e.g., Yates v. United States, 574 U. S. (2015) (slip op., 4). We add a practical fact: A broad reading would create significant administrative burdens. The statute provides for mandatory restitution, and the portion we construe is limited to “necessary other expenses.” The word “necessary” would, if the statute is broadly interpreted, invite disputes as to whether particular expenses “incurred during” participation in a private investigation or attendance at, say, a bankruptcy proceeding, were in fact “necessary.” Such disputes may become burdensome in cases involving multimillion dollar investigation expenses for teams of lawyers and account- ants. A district court might, for example, need to decide whether each witness interview and each set of documents reviewed was really “necessary” to the investigation. Similarly, the statute also limits restitution to expenses incurred only during “attendance at proceedings related to the offense,” inviting disputes as to whether, say, a licensing proceeding, a human resources review, an in-house disciplinary proceeding, a job inter- view, a Consumer Product Safety Commission hearing, or a neighborhood watch meeting qualified as “proceedings” sufficiently “related to the offense” so as to be eligible for restitution. To interpret the statute broadly is to invite controversy on those and other matters; our narrower construction 6 LAGOS v. UNITED STATES Opinion of the Court avoids it. And one begins to doubt whether Congress intended, in making this restitution mandatory, to require courts to resolve these potentially time-consuming contro- versies as part of criminal sentencing—particularly once one realizes that few victims are likely to benefit because more than 90% of criminal restitution is never collected. See GAO, Federal Criminal Restitution: Most Debt Is Outstanding and Oversight of Collections Could Be Im- proved 25 (GAO–18–203, 2018) (explaining that the Jus- tice Department considers 91% of outstanding criminal restitution to be “uncollectible”). There are, of course, contrary arguments—arguments favoring a broad interpretation. The Government points out, in particular, that our narrow interpretation will sometimes leave a victim without a restitution remedy sufficient to cover some expenses (say, those related to his private investigation) which he undoubtedly incurred as a result of the offense. Leaving the victim without that restitution remedy, the Government adds, runs contrary to the broad purpose of the Mandatory Victims Restitution Act, namely, “to ensure that victims of a crime receive full restitution.” (2010). But a broad general purpose of this kind does not al- ways require us to interpret a restitution statute in a way that favors an award. After all, Congress has enacted many different restitution statutes with differing lan- guage, governing different circumstances. Some of those statutes specifically require restitution for the “full amount of the victim’s losses,” defined to include “any losses suffered by the victim as a proximate result of the offense.” See 18 U.S. C. 2259(b), 2264(b), 2327(b). The Mandatory Victims Restitution Act, however, contains no such language; it specifically lists the kinds of losses and expenses that it covers. Moreover, in at least one other statute Congress has expressly provided for Cite as: 584 U. S. (2018) 7 Opinion of the Court restitution of “the value of the time reasonably spent by the victim in an attempt to remediate the intended or actual harm incurred by the victim from the offense.” Again the Mandatory Victims Restitution Act has no similar provision. And given those differences between the Mandatory Victims Restitution Act and other restitution statutes, we conclude that the considerations we have mentioned, particularly those based on a reading of the statute as a whole, tip the balance in favor of our more limited interpretation. We add that this interpretation does not leave a victim such as GE totally without a remedy for additional losses not covered by the Mandatory Victims Restitution Act. GE also brought a civil lawsuit against Lagos for the full extent of its losses, and obtained an over-$30 million judgment against him. The Government says that GE has largely been unable to collect on that judgment, but there is no reason to think that collection efforts related to a criminal restitution award would prove any more successful. The Government makes one additional argument. It points out that GE shared with the Government the in- formation that its private investigation uncovered. And that fact, the Government says, should bring the expenses of that investigation within the terms of the statute even if the “investigation” referred to by the statute is a govern- ment’s criminal investigation. The short, conclusive answer to that claim, however, lies in the fact that the statute refers to “necessary child care, transportation, and other expenses incurred during participation in the inves- tigation or prosecution of the offense.” (em- phasis added). It does not refer to expenses incurred before the victim’s participation in a government’s investi- gation began. And the Government does not deny that it is those preparticipation expenses—the expenses of con- ducting GE’s investigation, not those of sharing the results 8 LAGOS v. UNITED STATES Opinion of the Court from it—that are at issue here. We therefore need not address in this case whether this part of the Mandatory Victims Restitution Act would cover similar expenses incurred during a private investigation that was pursued at a government’s invitation or request. It is enough to hold that it does not cover the costs of a private investiga- tion that the victim chooses on its own to conduct. * * * For the reasons stated, we conclude that the words “investigation” and “proceedings” in the Mandatory Vic- tims Restitution Act refer to government investigations and criminal proceedings. Consequently Lagos is not obliged to pay the portion of the restitution award that he here challenges. We reverse the Court of Appeals’ judg- ment to the contrary, and we remand the case for further proceedings consistent with this opinion. It is so ordered

Justice Stevens

majority

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

2002-04-23

https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/

https://www.courtlistener.com/api/rest/v3/clusters/118498/

2001-040

The question presented is whether a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause of the United States Constitution.[1] This case actually involves two moratoria ordered by respondent Tahoe Regional Planning Agency (TRPA) to maintain the status quo while studying the impact of development on Lake Tahoe and designing a strategy for environmentally sound growth. The first, Ordinance 81-5, was effective from August 24, 1981, until August 26, 1983, whereas the second more restrictive Resolution 83-21 was in effect from August 27, 1983, until April 25, 1984. As a result of these two directives, virtually all development on a substantial portion of the property subject to TRPA's jurisdiction was prohibited for a period of 32 months. Although the question we decide relates only to that 32-month period, a brief description of the events leading up to the moratoria and a comment on the two permanent *307 plans that TRPA adopted thereafter will clarify the narrow scope of our holding. I The relevant facts are undisputed. The Court of Appeals, while reversing the District Court on a question of law, accepted all of its findings of fact, and no party challenges those findings. All agree that Lake Tahoe is "uniquely beautiful," 34 F. Supp. 2d 1226, 1230 (Nev. 1999), that President Clinton was right to call it a "`national treasure that must be protected and preserved,' " ibid., and that Mark Twain aptly described the clarity of its waters as "`not merely transparent, but dazzlingly, brilliantly so,' " ibid. (emphasis added) (quoting M. Twain, Roughing It 174-175 (1872)). Lake Tahoe's exceptional clarity is attributed to the absence of algae that obscures the waters of most other lakes. Historically, the lack of nitrogen and phosphorous, which nourish the growth of algae, has ensured the transparency of its waters.[2] Unfortunately, the lake's pristine state has deteriorated rapidly over the past 40 years; increased land development in the Lake Tahoe Basin (Basin) has threatened the "`noble sheet of blue water' " beloved by Twain and countless others. 34 F. Supp. 2d, at 1230. As the District Court found, "[d]ramatic decreases in clarity first began to be noted in the late 1950's/early 1960's, shortly after development at the lake began in earnest." Id., at 1231. The lake's unsurpassed beauty, it seems, is the wellspring of its undoing. *308 The upsurge of development in the area has caused "increased nutrient loading of the lake largely because of the increase in impervious coverage of land in the Basin resulting from that development." Ibid. "Impervious coverage—such as asphalt, concrete, buildings, and even packed dirt—prevents precipitation from being absorbed by the soil. Instead, the water is gathered and concentrated by such coverage. Larger amounts of water flowing off a driveway or a roof have more erosive force than scattered raindrops falling over a dispersed area—especially one covered with indigenous vegetation, which softens the impact of the raindrops themselves." Ibid. Given this trend, the District Court predicted that "unless the process is stopped, the lake will lose its clarity and its trademark blue color, becoming green and opaque for eternity."[3] Those areas in the Basin that have steeper slopes produce more runoff; therefore, they are usually considered "high hazard" lands. Moreover, certain areas near streams or wetlands known as "Stream Environment Zones" (SEZs) are especially vulnerable to the impact of development because, in their natural state, they act as filters for much of the debris that runoff carries. Because "[t]he most obvious response to this problem . . . is torestrict development around the lake—especially in SEZ lands, as well as in areas already naturally prone to runoff," id., at 1232, conservation efforts have focused on controlling growth in these high hazard areas. In the 1960's, when the problems associated with the burgeoning development began to receive significant attention, *309 jurisdiction over the Basin, which occupies 501 square miles, was shared by the States of California and Nevada, five counties, several municipalities, and the Forest Service of the Federal Government. In 1968, the legislatures of the two States adopted the Tahoe Regional Planning Compact, see 1968 Cal. Stats. no. 998, p. 1900, § 1; 1968 Nev. Stats. p. 4, which Congress approved in 1969, Pub. L. 91-148, 83 Stat. 360. The compact set goals for the protection and preservation of the lake and created TRPA as the agency assigned "to coordinate and regulate development in the Basin and to conserve its natural resources." Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 394 (1979). Pursuant to the compact, in 1972 TRPA adopted a Land Use Ordinance that divided the land in the Basin into seven "land capability districts," based largely on steepness but also taking into consideration other factors affecting runoff. Each district was assigned a "land coverage coefficient—a recommended limit on the percentage of such land that could be covered by impervious surface." Those limits ranged from 1% for districts 1 and 2 to 30% for districts 6 and 7. Land in districts 1, 2, and 3 is characterized as "high hazard" or "sensitive," while land in districts 4, 5, 6, and 7 is "low hazard" or "non-sensitive." The SEZ lands, though often treated as a separate category, were actually a subcategory of district 1. 34 F. Supp. 2d, at 1232. Unfortunately, the 1972 ordinance allowed numerous exceptions and did not significantly limit the construction of new residential housing. California became so dissatisfied with TRPA that it withdrew its financial support and unilaterally imposed stricter regulations on the part of the Basin located in California. Eventually the two States, with the approval of Congress and the President, adopted an extensive amendment to the compact that became effective on December 19, 1980. Pub. L. 96-551, 94 Stat. 3233; Cal. *310 Govt. Code Ann. § 66801 (West Supp. 2002); Nev. Rev. Stat. § 277.200 (1980). The 1980 Tahoe Regional Planning Compact (Compact) redefined the structure, functions, and voting procedures of TRPA, App. 37, 94 Stat. 3235-3238; 34 F. Supp. 2d, at 1233, and directed it to develop regional "environmental threshold carrying capacities"—a term that embraced "standards for air quality, water quality, soil conservation, vegetation preservation and noise." 94 Stat. 3235, 3239. The Compact provided that TRPA "shall adopt" those standards within 18 months, and that "[w]ithin 1 year after" their adoption (i. e., by June 19, 1983), it "shall" adopt an amended regional plan that achieves and maintains those carrying capacities. Id., at 3240. The Compact also contained a finding by the legislatures of California and Nevada "that in order to make effective the regional plan as revised by [TRPA], it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan." Id., at 3243. Accordingly, for the period prior to the adoption of the final plan ("or until May 1, 1983, whichever is earlier"), the Compact itself prohibited the development of new subdivisions, condominiums, and apartment buildings, and also prohibited each city and county in the Basin from granting any more permits in 1981, 1982, or 1983 than had been granted in 1978.[4] During this period TRPA was also working on the development of a regional water quality plan to comply with the Clean Water Act, 33 U.S. C. § 1288 (1994 ed.). Despite *311 the fact that TRPA performed these obligations in "good faith and to the best of its ability," 34 F. Supp. 2d, at 1233, after a few months it concluded that it could not meet the deadlines in the Compact. On June 25, 1981, it therefore enacted Ordinance 81-5 imposing the first of the two moratoria on development that petitioners challenge in this proceeding. The ordinance provided that it would become effective on August 24, 1981, and remain in effect pending the adoption of the permanent plan required by the Compact. App. 159, 191. The District Court made a detailed analysis of the ordinance, noting that it might even prohibit hiking or picnicking on SEZ lands, but construed it as essentially banning any construction or other activity that involved the removal of vegetation or the creation of land coverage on all SEZ lands, as well as on class 1, 2, and 3 lands in California. 34 F. Supp. 2d, at 1233-1235. Some permits could be obtained for such construction in Nevada if certain findings were made. Id., at 1235. It is undisputed, however, that Ordinance 81-5 prohibited the construction of any new residences on SEZ lands in either State and on class 1, 2, and 3 lands in California. Given the complexity of the task of defining "environmental threshold carrying capacities" and the division of opinion within TRPA's governing board, the District Court found that it was "unsurprising" that TRPA failed to adopt those thresholds until August 26, 1982, roughly two months after the Compact deadline. Ibid. Under a liberal reading of the Compact, TRPA then had until August 26, 1983, to adopt a new regional plan. 94 Stat. 3240. "Unfortunately, but again not surprisingly, no regional plan was in place as of that date." 34 F. Supp. 2d, at 1235. TRPA therefore adopted Resolution 83-21, "which completely suspended all project reviews and approvals, including the acceptance of new proposals," and which remained in effect until a new regional plan was adopted on April 26, 1984. Thus, Resolution *312 83-21 imposed an 8-month moratorium prohibiting all construction on high hazard lands in either State. In combination, Ordinance 81-5 and Resolution 83-21 effectively prohibited all construction on sensitive lands in California and on all SEZ lands in the entire Basin for 32 months, and on sensitive lands in Nevada (other than SEZ lands) for eight months. It is these two moratoria that are at issue in this case. On the same day that the 1984 plan was adopted, the State of California filed an action seeking to enjoin its implementation on the ground that it failed to establish land-use controls sufficiently stringent to protect the Basin. Id., at 1236. The District Court entered an injunction that was upheld by the Court of Appeals and remained in effect until a completely revised plan was adopted in 1987. Both the 1984 injunction and the 1987 plan contained provisions that prohibited new construction on sensitive lands in the Basin. As the case comes to us, however, we have no occasion to consider the validity of those provisions. II Approximately two months after the adoption of the 1984 plan, petitioners filed parallel actions against TRPA and other defendants in federal courts in Nevada and California that were ultimately consolidated for trial in the District of Nevada. The petitioners include the Tahoe-Sierra Preservation Council, Inc., a nonprofit membership corporation representing about 2,000 owners of both improved and unimproved parcels of real estate in the Lake Tahoe Basin, and a class of some 400 individual owners of vacant lots located either on SEZ lands or in other parts of districts 1, 2, or 3. Those individuals purchased their properties prior to the effective date of the 1980 Compact, App. 34, primarily for the purpose of constructing "at a time of their choosing" a single-family home "to serve as a permanent, retirement or *313 vacation residence," id., at 36. When they made those purchases, they did so with the understanding that such construction was authorized provided that "they complied with all reasonable requirements for building." Ibid.[5] Petitioners' complaints gave rise to protracted litigation that has produced four opinions by the Court of Appeals for the Ninth Circuit and several published District Court opinions.[6] For present purposes, however, we need only describe those courts' disposition of the claim that three actions taken by TRPA—Ordinance 81-5, Resolution 83-21, and the 1984 regional plan—constituted takings of petitioners' property without just compensation.[7] Indeed, the challenge to the 1984 plan is not before us because both the District Court and the Court of Appeals held that it was the federal injunction against implementing that plan, rather than the plan itself, that caused the post-1984 injuries that petitioners allegedly suffered, and those rulings are not encompassed within our limited grant of certiorari.[8] Thus, *314 we limit our discussion to the lower courts' disposition of the claims based on the 2-year moratorium (Ordinance 81-5) and the ensuing 8-month moratorium (Resolution 83-21). The District Court began its constitutional analysis by identifying the distinction between a direct government appropriation of property without just compensation and a government regulation that imposes such a severe restriction on the owner's use of her property that it produces "nearly the same result as a direct appropriation." 34 F. Supp. 2d, at 1238. The court noted that all of the claims in this case "are of the `regulatory takings' variety." Id., at 1239. Citing our decision in Agins v. City of Tiburon, 447 U.S. 255 (1980), it then stated that a "regulation will constitute a taking when either: (1) it does not substantially advance a legitimate state interest; or (2) it denies the owner economically viable use of her land." 34 F. Supp. 2d, at 1239. The District Court rejected the first alternative based on its finding that "further development on high hazard lands such as [petitioners'] would lead to significant additional damage to the lake." Id., at 1240.[9] With respect *315 to the second alternative, the court first considered whether the analysis adopted in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), would lead to the conclusion that TRPA had effected a "partial taking," and then whether those actions had effected a "total taking."[10] Emphasizing the temporary nature of the regulations, the testimony that the "average holding time of a lot in the Tahoe area between lot purchase and home construction is twenty-five years," and the failure of petitioners to offer specific evidence of harm, the District Court concluded that "consideration of the Penn Central factors clearly leads to the conclusion that there was no taking." 34 F. Supp. 2d, at 1240. In the absence of evidence regarding any of the individual plaintiffs, the court evaluated the "average" purchasers' intent and found that such purchasers "did not have reasonable, investment-backed expectations that they would be able to build single-family homes on their land within the six-year period involved in this lawsuit." Id., at 1241.[11] *316 The District Court had more difficulty with the "total taking" issue. Although it was satisfied that petitioners' property did retain some value during the moratoria,[12] it found that they had been temporarily deprived of "all economically viable use of their land." Id., at 1245. The court concluded that those actions therefore constituted "categorical" takings under our decision in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). It rejected TRPA's response that Ordinance 81-5 and Resolution 8321 were "reasonable temporary planning moratoria" that should be excluded from Lucas' categorical approach. The court thought it "fairly clear" that such interim actions would not have been viewed as takings prior to our decisions in Lucas and First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), because "[z]oning boards, cities, counties and other agencies used them all the time to `maintain the status quo pending study and governmental decision making.' " 34 F. Supp. 2d, at 1248-1249 (quoting Williams v. Central, 907 P.2d 701, 706 (Colo. App. 1995)). After expressing uncertainty as to whether those cases required a holding that moratoria on development automatically effect takings, the court concluded that TRPA's actions did so, partly because neither the ordinance nor the resolution, even though intended to be temporary from the beginning, contained an *317 express termination date. 34 F. Supp. 2d, at 1250-1251.[13] Accordingly, it ordered TRPA to pay damages to most petitioners for the 32-month period from August 24, 1981, to April 25, 1984, and to those owning class 1, 2, or 3 property in Nevada for the 8-month period from August 27, 1983, to April 25, 1984. Id., at 1255. Both parties appealed. TRPA successfully challenged the District Court's takings determination, and petitioners unsuccessfully challenged the dismissal of their claims based on the 1984 and 1987 plans. Petitioners did not, however, challenge the District Court's findings or conclusions concerning its application of Penn Central. With respect to the two moratoria, the Ninth Circuit noted that petitioners had expressly disavowed an argument "that the regulations constitute a taking under the ad hoc balancing approach described in Penn Central " and that they did not "dispute that the restrictions imposed on their properties are appropriate means of securing the purpose set forth in the Compact."[14] Accordingly, the only question before the court was "whether the rule set forth in Lucas applies—that is, whether a categorical *318 taking occurred because Ordinance 81-5 and Resolution 83-21 denied the plaintiffs `all economically beneficial or productive use of land.' " 216 F.3d 764, 773 (2000). Moreover, because petitioners brought only a facial challenge, the narrow inquiry before the Court of Appeals was whether the mere enactment of the regulations constituted a taking. Contrary to the District Court, the Court of Appeals held that because the regulations had only a temporary impact on petitioners' fee interest in the properties, no categorical taking had occurred. It reasoned: "Property interests may have many different dimensions. For example, the dimensions of a property interest may include a physical dimension (which describes the size and shape of the property in question), a functional dimension (which describes the extent to which an owner may use or dispose of the property in question), and a temporal dimension (which describes the duration of the property interest). At base, the plaintiffs' argument is that we should conceptually sever each plaintiff's fee interest into discrete segments in at least one of these dimensions—the temporal one— and treat each of those segments as separate and distinct property interests for purposes of takings analysis. Under this theory, they argue that there was a categorical taking of one of those temporal segments." Id., at 774. Putting to one side "cases of physical invasion or occupation," ibid., the court read our cases involving regulatory taking claims to focus on the impact of a regulation on the parcel as a whole. In its view a "planning regulation that prevents the development of a parcel for a temporary period of time is conceptually no different than a land-use restriction that permanently denies all use on a discrete portion of property, or that permanently restricts a type *319 of use across all of the parcel." Id., at 776. In each situation, a regulation that affects only a portion of the parcel— whether limited by time, use, or space—does not deprive the owner of all economically beneficial use.[15] The Court of Appeals distinguished Lucas as applying to the "`relatively rare' " case in which a regulation denies all productive use of an entire parcel, whereas the moratoria involve only a "temporal `slice' " of the fee interest and a form of regulation that is widespread and well established. 216 F.3d, at 773-774. It also rejected petitioners' argument that our decision in First English was controlling. According to the Court of Appeals, First English concerned the question whether compensation is an appropriate remedy for a temporary taking and not whether or when such a taking has occurred. 216 F.3d, at 778. Faced squarely with the question whether a taking had occurred, the court held that Penn Central was the appropriate framework for analysis. Petitioners, however, had failed to challenge the District *320 Court's conclusion that they could not make out a taking claim under the Penn Central factors. Over the dissent of five judges, the Ninth Circuit denied a petition for rehearing en banc. 228 F.3d 998 (2000). In the dissenters' opinion, the panel's holding was not faithful to this Court's decisions in First English and Lucas, nor to Justice Holmes admonition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922), that "`a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.' " 228 F.3d, at 1003. Because of the importance of the case, we granted certiorari limited to the question stated at the beginning of this opinion. 533 U.S. 948 (2001). We now affirm. III Petitioners make only a facial attack on Ordinance 81-5 and Resolution 83-21. They contend that the mere enactment of a temporary regulation that, while in effect, denies a property owner all viable economic use of her property gives rise to an unqualified constitutional obligation to compensate her for the value of its use during that period. Hence, they "face an uphill battle," Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495 (1987), that is made especially steep by their desire for a categorical rule requiring compensation whenever the government imposes such a moratorium on development. Under their proposed rule, there is no need to evaluate the landowners' investment-backed expectations, the actual impact of the regulation on any individual, the importance of the public interest served by the regulation, or the reasons for imposing the temporary restriction. For petitioners, it is enough that a regulation imposes a temporary deprivation— no matter how brief—of all economically viable use to trigger a per se rule that a taking has occurred. Petitioners assert that our opinions in First English and Lucas have *321 already endorsed their view, and that it is a logical application of the principle that the Takings Clause was "designed to bar Government from forcing some people alone to bear burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49 (1960). We shall first explain why our cases do not support their proposed categorical rule—indeed, fairly read, they implicitly reject it. Next, we shall explain why the Armstrong principle requires rejection of that rule as well as the less extreme position advanced by petitioners at oral argument. In our view the answer to the abstract question whether a temporary moratorium effects a taking is neither "yes, always" nor "no, never"; the answer depends upon the particular circumstances of the case.[16] Resisting "[t]he temptation to adopt what amount to per se rules in either direction," Palazzolo v. Rhode Island, 533 U.S. 606, 636 (2001) (O'Connor, J., concurring), we conclude that the circumstances in this case are best analyzed within the Penn Central framework. IV The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from *322 making certain uses of her private property.[17] Our jurisprudence involving condemnations and physical takings is as old as the Republic and, for the most part, involves the straightforward application of per se rules. Our regulatory takings jurisprudence, in contrast, is of more recent vintage and is characterized by "essentially ad hoc, factual inquiries," Penn Central, 438 U. S., at 124, designed to allow "careful examination and weighing of all the relevant circumstances." Palazzolo, 533 U. S., at 636 (O'Connor, J., concurring). When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, United States v. Pewee Coal Co., 341 U.S. 114, 115 (1951), regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. United States v. General Motors Corp., 323 U.S. 373 (1945); United States v. Petty Motor Co., 327 U.S. 372 (1946). Similarly, when the government appropriates part of a roof top in order to provide cable TV access for apartment tenants, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); or when its planes use private airspace to approach a government airport, United States v. Causby, 328 U.S. 256 (1946), it is required to pay for that share no matter how small. But a government regulation that merely prohibits landlords from evicting *323 tenants unwilling to pay a higher rent, Block v. Hirsh, 256 U.S. 135 (1921); that bans certain private uses of a portion of an owner's property, Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987); or that forbids the private use of certain airspace, Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), does not constitute a categorical taking. "The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions." Yee v. Escondido, 503 U.S. 519, 523 (1992). See also Loretto, 458 U. S., at 440; Keystone, 480 U. S., at 489, n. 18. This longstanding distinction between acquisitions of property for public use, on the one hand, and regulations prohibiting private uses, on the other, makes it inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a "regulatory taking,"[18] and vice versa. For the same reason that we do not ask whether a physical appropriation advances a substantial government interest or whether it deprives the owner of all economically valuable use, we do not apply our precedent from the physical takings context *324 to regulatory takings claims. Land-use regulations are ubiquitous and most of them impact property values in some tangential way—often in completely unanticipated ways. Treating them all as per se takings would transform government regulation into a luxury few governments could afford. By contrast, physical appropriations are relatively rare, easily identified, and usually represent a greater affront to individual property rights.[19] "This case does not present the `classi[c] taking' in which the government directly appropriates private property for its own use," Eastern Enterprises v. Apfel, 524 U.S. 498, 522 (1998); instead the interference with property rights "arises from some public program adjusting the benefits and burdens of economic *325 life to promote the common good," Penn Central, 438 U. S., at 124. Perhaps recognizing this fundamental distinction, petitioners wisely do not place all their emphasis on analogies to physical takings cases. Instead, they rely principally on our decision in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)—a regulatory takings case that, nevertheless, applied a categorical rule—to argue that the Penn Central framework is inapplicable here. A brief review of some of the cases that led to our decision in Lucas, however, will help to explain why the holding in that case does not answer the question presented here. As we noted in Lucas, it was Justice Holmes' opinion in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922),[20] that gave birth to our regulatory takings jurisprudence.[21]*326 In subsequent opinions we have repeatedly and consistently endorsed Holmes' observation that "if regulation goes too far it will be recognized as a taking." Id., at 415. Justice Holmes did not provide a standard for determining when a regulation goes "too far," but he did reject the view expressed in Justice Brandeis' dissent that there could not be a taking because the property remained in the possession of the owner and had not been appropriated or used by the public.[22] After Mahon, neither a physical appropriation nor a public use has ever been a necessary component of a "regulatory taking." In the decades following that decision, we have "generally eschewed" any set formula for determining how far is too far, choosing instead to engage in "`essentially ad hoc, factual inquiries.' " Lucas, 505 U. S., at 1015 (quoting Penn Central, 438 U. S., at 124). Indeed, we still resist the temptation to adopt per se rules in our cases involving partial regulatory takings, preferring to examine "a number of factors" rather than a simple "mathematically precise" formula.[23] Justice Brennan's opinion for the Court in Penn *327 Central did, however, make it clear that even though multiple factors are relevant in the analysis of regulatory takings claims, in such cases we must focus on "the parcel as a whole": "`Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole—here, the city tax block designated as the `landmark site.' " Id., at 130-131. This requirement that "the aggregate must be viewed in its entirety" explains why, for example, a regulation that prohibited commercial transactions in eagle feathers, but did not bar other uses or impose any physical invasion or restraint upon them, was not a taking. Andrus v. Allard, 444 U.S. 51, 66 (1979). It also clarifies why restrictions on the use of only limited portions of the parcel, such as setback ordinances, Gorieb v. Fox, 274 U.S. 603 (1927), or a requirement that coal pillars be left in place to prevent mine subsidence, Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S., at 498, were not considered regulatory takings. In each of these cases, we affirmed that "where an owner possesses a full `bundle' of property rights, the destruction of one `strand' of the bundle is not a taking." Andrus, 444 U. S., at 65-66. *328 While the foregoing cases considered whether particular regulations had "gone too far" and were therefore invalid, none of them addressed the separate remedial question of how compensation is measured once a regulatory taking is established. In his dissenting opinion in San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 636 (1981), Justice Brennan identified that question and explained how he would answer it: "The constitutional rule I propose requires that, once a court finds that a police power regulation has effected a `taking,' the government entity must pay just compensation for the period commencing on the date the regulation first effected the `taking,' and ending on the date the government entity chooses to rescind or otherwise amend the regulation." Id., at 658. Justice Brennan's proposed rule was subsequently endorsed by the Court in First English, 482 U. S., at 315, 318, 321. First English was certainly a significant decision, and nothing that we say today qualifies its holding. Nonetheless, it is important to recognize that we did not address in that case the quite different and logically prior question whether the temporary regulation at issue had in fact constituted a taking. In First English, the Court unambiguously and repeatedly characterized the issue to be decided as a "compensation question" or a "remedial question." Id., at 311 ("The disposition of the case on these grounds isolates the remedial question for our consideration"); see also id., at 313, 318. And the Court's statement of its holding was equally unambiguous: "We merely hold that where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." Id., at 321 (emphasis added). In fact, First English expressly disavowed any ruling on the *329 merits of the takings issue because the California courts had decided the remedial question on the assumption that a taking had been alleged. Id., at 312-313 ("We reject appellee's suggestion that . . . we must independently evaluate the adequacy of the complaint and resolve the takings claim on the merits before we can reach the remedial question"). After our remand, the California courts concluded that there had not been a taking, First English Evangelical Church of Glendale v. County of Los Angeles, 210 Cal. App. 3d 1353, 258 Cal. Rptr. 893 (1989), and we declined review of that decision, 493 U.S. 1056 (1990). To the extent that the Court in First English referenced the antecedent takings question, we identified two reasons why a regulation temporarily denying an owner all use of her property might not constitute a taking. First, we recognized that "the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations." 482 U.S., at 313. Second, we limited our holding "to the facts presented" and recognized "the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which [were] not before us." Id., at 321. Thus, our decision in First English surely did not approve, and implicitly rejected, the categorical submission that petitioners are now advocating. Similarly, our decision in Lucas is not dispositive of the question presented. Although Lucas endorsed and applied a categorical rule, it was not the one that petitioners propose. Lucas purchased two residential lots in 1988 for $975,000. These lots were rendered "valueless" by a statute enacted two years later. The trial court found that a taking had occurred and ordered compensation of $1,232,387.50, representing the value of the fee simple estate, plus interest. As the statute read at the time of the trial, it effected a taking that "was unconditional and permanent." 505 U. S., *330 at 1012. While the State's appeal was pending, the statute was amended to authorize exceptions that might have allowed Lucas to obtain a building permit. Despite the fact that the amendment gave the State Supreme Court the opportunity to dispose of the appeal on ripeness grounds, it resolved the merits of the permanent takings claim and reversed. Since "Lucas had no reason to proceed on a `temporary taking' theory at trial," we decided the case on the permanent taking theory that both the trial court and the State Supreme Court had addressed. Ibid. The categorical rule that we applied in Lucas states that compensation is required when a regulation deprives an owner of "all economically beneficial uses" of his land. Id., at 1019. Under that rule, a statute that "wholly eliminated the value" of Lucas' fee simple title clearly qualified as a taking. But our holding was limited to "the extraordinary circumstance when no productive or economically beneficial use of land is permitted." Id., at 1017. The emphasis on the word "no" in the text of the opinion was, in effect, reiterated in a footnote explaining that the categorical rule would not apply if the diminution in value were 95% instead of 100%. Id., at 1019, n. 8.[24] Anything less than a "complete elimination of value," or a "total loss," the Court acknowledged, would require the kind of analysis applied in Penn Central. Lucas, 505 U. S., at 1019-1020, n. 8.[25] Certainly, our holding that the permanent "obliteration of the value" of a fee simple estate constitutes a categorical taking does not answer the question whether a regulation *331 prohibiting any economic use of land for a 32-month period has the same legal effect. Petitioners seek to bring this case under the rule announced in Lucas by arguing that we can effectively sever a 32-month segment from the remainder of each landowner's fee simple estate, and then ask whether that segment has been taken in its entirety by the moratoria. Of course, defining the property interest taken in terms of the very regulation being challenged is circular. With property so divided, every delay would become a total ban; the moratorium and the normal permit process alike would constitute categorical takings. Petitioners' "conceptual severance" argument is unavailing because it ignores Penn Central `s admonition that in regulatory takings cases we must focus on "the parcel as a whole." 438 U.S., at 130— 131. We have consistently rejected such an approach to the "denominator" question. See Keystone, 480 U. S., at 497. See also Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 644 (1993) ("To the extent that any portion of property is taken, that portion is always taken in its entirety; the relevant question, however, is whether the property taken is all, or only a portion of, the parcel in question"). Thus, the District Court erred when it disaggregated petitioners' property into temporal segments corresponding to the regulations at issue and then analyzed whether petitioners were deprived of all economically viable use during each period. 34 F. Supp. 2d, at 1242-1245. The starting point for the court's analysis should have been to ask whether there was a total taking of the entire parcel; if not, then Penn Central was the proper framework.[26] An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the *332 term of years that describes the temporal aspect of the owner's interest. See Restatement of Property §§ 7-9 (1936). Both dimensions must be considered if the interest is to be viewed in its entirety. Hence, a permanent deprivation of the owner's use of the entire area is a taking of "the parcel as a whole," whereas a temporary restriction that merely causes a diminution in value is not. Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted. Cf. Agins v. City of Tiburon, 447 U. S., at 263, n. 9 ("Even if the appellants' ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are `incidents of ownership. They cannot be considered as a "taking" in the constitutional sense' " (quoting Danforth v. United States, 308 U.S. 271, 285 (1939))). Neither Lucas, nor First English, nor any of our other regulatory takings cases compels us to accept petitioners' categorical submission. In fact, these cases make clear that the categorical rule in Lucas was carved out for the "extraordinary case" in which a regulation permanently deprives property of all value; the default rule remains that, in the regulatory taking context, we require a more fact specific inquiry. Nevertheless, we will consider whether the interest in protecting individual property owners from bearing public burdens "which, in all fairness and justice, should be borne by the public as a whole," Armstrong v. United States, 364 U. S., at 49, justifies creating a new rule for these circumstances.[27] *333 V Considerations of "fairness and justice" arguably could support the conclusion that TRPA's moratoria were takings of petitioners' property based on any of seven different theories. First, even though we have not previously done so, we might now announce acategorical rule that, in the interest of fairness and justice, compensation is required whenever government temporarily deprives an owner of all economically viable use of her property. Second, we could craft a narrower rule that would cover all temporary landuse restrictions except those "normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like" which were put to one side in our opinion in First English, 482 U. S., at 321. Third, we could adopt a rule like the one suggested by an amicus supporting petitioners that would "allow a short fixed period for deliberations to take place without compensation—say maximum one year—after which the just compensation requirements" would "kick in."[28] Fourth, with the benefit of hindsight, we might characterize the successive actions of TRPA as a "series of rolling moratoria" that were the functional equivalent of a permanent taking.[29] Fifth, were it not for the findings of the District Court that TRPA acted diligently and in good faith, we might have concluded that the agency was stalling in order to avoid promulgating the environmental threshold carrying capacities and regional plan mandated by the 1980 Compact. Cf. Monterey v. Del Monte Dunes at *334 Monterey, Ltd., 526 U.S. 687, 698 (1999). Sixth, apart from the District Court's finding that TRPA's actions represented a proportional response to a serious risk of harm to the lake, petitioners might have argued that the moratoria did not substantially advance a legitimate state interest, see Agins and Monterey. Finally, if petitioners had challenged the application of the moratoria to their individual parcels, instead of making a facial challenge, some of them might have prevailed under a Penn Central analysis. As the case comes to us, however, none of the last four theories is available. The "rolling moratoria" theory was presented in the petition for certiorari, but our order granting review did not encompass that issue, 533 U.S. 948 (2001); the case was tried in the District Court and reviewed in the Court of Appeals on the theory that each of the two moratoria was a separate taking, one for a 2-year period and the other for an 8-month period. 216 F.3d, at 769. And, as we have already noted, recovery on either a bad faith theory or a theory that the state interests were insubstantial is foreclosed by the District Court's unchallenged findings of fact. Recovery under a Penn Central analysis is also foreclosed both because petitioners expressly disavowed that theory, and because they did not appeal from the District Court's conclusion that the evidence would not support it. Nonetheless, each of the three per se theories is fairly encompassed within the question that we decided to answer. With respect to these theories, the ultimate constitutional question is whether the concepts of "fairness and justice" that underlie the Takings Clause will be better served by one of these categorical rules or by a Penn Central inquiry into all of the relevant circumstances in particular cases. From that perspective, the extreme categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable taking surely cannot be sustained. Petitioners' broad submission would apply to numerous *335 "normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like," 482 U.S., at 321, as well as to orders temporarily prohibiting access to crime scenes, businesses that violate health codes, fire-damaged buildings, or other areas that we cannot now foresee. Such a rule would undoubtedly require changes in numerous practices that have long been considered permissible exercises of the police power. As Justice Holmes warned in Mahon, "[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." 260 U.S., at 413. A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decisionmaking. Such an important change in the law should be the product of legislative rulemaking rather than adjudication.[30] More importantly, for reasons set out at some length by Justice O'Connor in her concurring opinion in Palazzolo v. Rhode Island, 533 U. S., at 636, we are persuaded that the better approach to claims that a regulation has effected a temporary taking "requires careful examination and weighing of all the relevant circumstances." In that opinion, Justice O'Connor specifically considered the role that the "temporal relationship between regulatory enactment and title acquisition" should play in the analysis of a takings claim. Id., at 632. We have no occasion to address that particular issue in this case, because it involves a different *336 temporal relationship—the distinction between a temporary restriction and one that is permanent. Her comments on the "fairness and justice" inquiry are, nevertheless, instructive: "Today's holding does not mean that the timing of the regulation's enactment relative to the acquisition of title is immaterial to the Penn Central analysis. Indeed, it would be just as much error to expunge this consideration from the takings inquiry as it would be to accord it exclusive significance. Our polestar instead remains the principles set forth in Penn Central itself and our other cases that govern partial regulatory takings. Under these cases, interference with investment-backed expectations is one of a number of factors that a court must examine. . . . "The Fifth Amendment forbids the taking of private property for public use without just compensation. We have recognized that this constitutional guarantee is ` "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."` Penn Central, [438 U. S.], at 123-124 (quoting Arm- strong v. United States, 364 U.S. 40, 49 (1960)). The concepts of `fairness and justice' that underlie the Takings Clause, of course, are less than fully determinate. Accordingly, we have eschewed `any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.' Penn Central, supra, at 124 (quoting Goldblatt v. Hemp- stead, 369 U.S. 590, 594 (1962)). The outcome instead `depends largely "upon the particular circumstances [in that] case."` Penn Central, supra, at 124 (quoting United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958))." Id., at 633. *337 In rejecting petitioners' per se rule, we do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other. A narrower rule that excluded the normal delays associated with processing permits, or that covered only delays of more than a year, would certainly have a less severe impact on prevailing practices, but it would still impose serious financial constraints on the planning process.[31] Unlike the "extraordinary circumstance" in which the government deprives a property owner of all economic use, Lucas, 505 U. S., at 1017, moratoria like Ordinance 81-5 and Resolution 83— 21 are used widely among land-use planners to preserve the status quo while formulating a more permanent development strategy.[32] In fact, the consensus in the planning community *338 appears to be that moratoria, or "interim development controls" as they are often called, are an essential tool of successful development.[33] Yet even the weak version of petitioners' categorical rule would treat these interim measures as takings regardless of the good faith of the planners, the reasonable expectations of the landowners, or the actual impact of the moratorium on property values.[34] *339 The interest in facilitating informed decisionmaking by regulatory agencies counsels against adopting a per se rule that would impose such severe costs on their deliberations. Otherwise, the financial constraints of compensating property owners during a moratorium may force officials to rush through the planning process or to abandon the practice altogether. To the extent that communities are forced to abandon using moratoria, landowners will have incentives to develop their property quickly before a comprehensive plan can be enacted, thereby fostering inefficient and ill-conceived growth. A finding in the 1980 Compact itself, which presumably was endorsed by all three legislative bodies that participated in its enactment, attests to the importance of that concern. 94 Stat. 3243 ("The legislatures of the States of California and Nevada find that in order to make effective the regional plan as revised by the agency, it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan"). As Justice Kennedy explained in his opinion for the Court in Palazzolo, it is the interest in informed decisionmaking that underlies our decisions imposing a strict ripeness requirement on landowners asserting regulatory takings claims: "These cases stand for the important principle that a landowner may not establish a taking before a landuse authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner's first having followed reasonable *340 and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established. See Suitum [v. Tahoe Regional Planning Agency, 520 U.S. 725, 736, and n. 10 (1997)] (noting difficulty of demonstrating that `mere enactment' of regulations restricting land use effects a taking)." 533 U.S., at 620-621. We would create a perverse system of incentives were we to hold that landowners must wait for a takings claim to ripen so that planners can make well-reasoned decisions while, at the same time, holding that those planners must compensate landowners for the delay. Indeed, the interest in protecting the decisional process is even stronger when an agency is developing a regional plan than when it is considering a permit for a single parcel. In the proceedings involving the Lake Tahoe Basin, for example, the moratoria enabled TRPA to obtain the benefit of comments and criticisms from interested parties, such as the petitioners, during its deliberations.[35] Since a categorical rule tied to the length of deliberations would likely create added pressure on decisionmakers to reach a quick resolution of land-use questions, it would only serve to disadvantage those landowners and interest groups who are not as organized *341 or familiar with the planning process. Moreover, with a temporary ban on development there is a lesser risk that individual landowners will be "singled out" to bear a special burden that should be shared by the public as a whole. Nollan v. California Coastal Comm'n, 483 U.S. 825, 835 (1987). At least with a moratorium there is a clear "reciprocity of advantage," Mahon, 260 U. S., at 415, because it protects the interests of all affected landowners against immediate construction that might be inconsistent with the provisions of the plan that is ultimately adopted. "While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others." Keystone, 480 U. S., at 491. In fact, there is reason to believe property values often will continue to increase despite a moratorium. See, e. g., Growth Properties, Inc. v. Klingbeil Holding Co., 419 F. Supp. 212, 218 (Md. 1976) (noting that land values could be expected to increase 20% during a 5-year moratorium on development). Cf. Forest Properties, Inc. v. United States, 177 F.3d 1360, 1367 (CA Fed. 1999) (record showed that market value of the entire parcel increased despite denial of permit to fill and develop lake-bottom property). Such an increase makes sense in this context because property values throughout the Basin can be expected to reflect the added assurance that Lake Tahoe will remain in its pristine state. Since in some cases a 1-year moratorium may not impose a burden at all, we should not adopt a rule that assumes moratoria always force individuals to bear a special burden that should be shared by the public as a whole. It may well be true that any moratorium that lasts for more than one year should be viewed with special skepticism. But given the fact that the District Court found that the 32 months required by TRPA to formulate the 1984 Regional Plan was not unreasonable, we could not possibly conclude that every delay of over one year is constitutionally *342 unacceptable.[36] Formulating a general rule of this kind is a suitable task for state legislatures.[37] In our view, the duration of the restriction is one of the important factors that a court must consider in the appraisal of a regulatory takings claim, but with respect to that factor as with respect to other factors, the "temptation to adopt what amount to per se rules in either direction must be resisted." Palazzolo, 533 U. S., at 636 (O'Connor, J., concurring). There may be moratoria that last longer than one year which interfere with reasonable investment-backed expectations, but as the District Court's opinion illustrates, petitioners' proposed rule is simply "too blunt an instrument" for identifying those cases. Id., at 628. We conclude, therefore, that the interest in "fairness and justice" will be best served by relying on the familiar Penn Central approach when deciding cases like this, rather than by attempting to craft a new categorical rule. *343 Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.

The question presented is whether a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause of the United Constitution.[1] This case actually involves two moratoria ordered by respondent Tahoe Regional Planning Agency (TRPA) to maintain the status quo while studying the impact of development on Lake Tahoe and designing a strategy for environmentally sound growth. The first, Ordinance 81-5, was effective from August 24, 1981, until August 26, 1983, whereas the second more restrictive Resolution 83-21 was in effect from August 27, 1983, until April 25, 1984. As a result of these two directives, virtually all development on a substantial portion of the property subject to TRPA's jurisdiction was prohibited for a period of 32 months. Although the question we decide relates only to that 32-month period, a brief description of the events leading up to the moratoria and a comment on the two permanent *307 plans that TRPA adopted thereafter will clarify the narrow scope of our holding. I The relevant facts are undisputed. The Court of Appeals, while reversing the District Court on a question of law, accepted all of its findings of fact, and no party challenges those findings. All agree that Lake Tahoe is "uniquely beautiful," that President Clinton was right to call it a "`national treasure that must be protected and preserved,' " and that Mark Twain aptly described the clarity of its waters as "`not merely transparent, but dazzlingly, brilliantly so,' " (quoting M. Twain, Roughing It 174-175 (1872)). Lake Tahoe's exceptional clarity is attributed to the absence of algae that obscures the waters of most other lakes. Historically, the lack of nitrogen and phosphorous, which nourish the growth of algae, has ensured the transparency of its waters.[2] Unfortunately, the lake's pristine state has deteriorated rapidly over the past 40 years; increased land development in the Lake Tahoe Basin (Basin) has threatened the "`noble sheet of blue water' " beloved by Twain and countless others. 34 F. Supp. 2d, at As the District Court found, "[d]ramatic decreases in clarity first began to be noted in the late 1950's/early 1960's, shortly after development at the lake began in earnest." The lake's unsurpassed beauty, it seems, is the wellspring of its undoing. *308 The upsurge of development in the area has caused "increased nutrient loading of the lake largely because of the increase in impervious coverage of land in the Basin resulting from that development." "Impervious coverage—such as asphalt, concrete, buildings, and even packed dirt—prevents precipitation from being absorbed by the soil. Instead, the water is gathered and concentrated by such coverage. Larger amounts of water flowing off a driveway or a roof have more erosive force than scattered raindrops falling over a dispersed area—especially one covered with indigenous vegetation, which softens the impact of the raindrops themselves." Given this trend, the District Court predicted that "unless the process is stopped, the lake will lose its clarity and its trademark blue color, becoming green and opaque for eternity."[3] Those areas in the Basin that have steeper slopes produce more runoff; therefore, they are usually considered "high hazard" lands. Moreover, certain areas near streams or wetlands known as "Stream Environment Zones" (SEZs) are especially vulnerable to the impact of development because, in their natural state, they act as filters for much of the debris that runoff carries. Because "[t]he most obvious response to this problem is torestrict development around the lake—especially in SEZ lands, as well as in areas already naturally prone to runoff," conservation efforts have focused on controlling growth in these high hazard areas. In the 1960's, when the problems associated with the burgeoning development began to receive significant attention, *309 jurisdiction over the Basin, which occupies 501 square miles, was shared by the of California and Nevada, five counties, several municipalities, and the Forest Service of the Federal Government. In 1968, the legislatures of the two adopted the Tahoe Regional Planning Compact, see 1968 Cal. Stats. no. 998, p. 1900, 1; 1968 Nev. Stats. p. 4, which Congress approved in 1969, Stat. 360. The compact set goals for the protection and preservation of the lake and created TRPA as the agency assigned "to coordinate and regulate development in the Basin and to conserve its natural resources." Lake Country Estates, Pursuant to the compact, in 1972 TRPA adopted a Land Use Ordinance that divided the land in the Basin into seven "land capability districts," based largely on steepness but also taking into consideration other factors affecting runoff. Each district was assigned a "land coverage coefficient—a recommended limit on the percentage of such land that could be covered by impervious surface." Those limits ranged from 1% for districts 1 and 2 to 30% for districts 6 and 7. Land in districts 1, 2, and 3 is characterized as "high hazard" or "sensitive," while land in districts 4, 5, 6, and 7 is "low hazard" or "non-sensitive." The SEZ lands, though often treated as a separate category, were actually a subcategory of district 1. 34 F. Supp. 2d, Unfortunately, the 1972 ordinance allowed numerous exceptions and did not significantly limit the construction of new residential housing. California became so dissatisfied with TRPA that it withdrew its financial support and unilaterally imposed stricter regulations on the part of the Basin located in Eventually the two with the approval of Congress and the President, adopted an extensive amendment to the compact that became effective on December 19, 1980. Stat. 3233; Cal. *310 Govt. Code Ann. 801 (West Supp. 2002); Nev. Rev. Stat. 277.200 The 1980 Tahoe Regional Planning Compact (Compact) redefined the structure, functions, and voting procedures of TRPA, App. 37, -3238; and directed it to develop regional "environmental threshold carrying capacities"—a term that embraced "standards for air quality, water quality, soil conservation, vegetation preservation and noise." 3239. The Compact provided that TRPA "shall adopt" those standards within 18 months, and that "[w]ithin 1 year after" their adoption (i. e., by June 19, 1983), it "shall" adopt an amended regional plan that achieves and maintains those carrying capacities. The Compact also contained a finding by the legislatures of California and Nevada "that in order to make effective the regional plan as revised by [TRPA], it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan." Accordingly, for the period prior to the adoption of the final plan ("or until May 1, 1983, whichever is earlier"), the Compact itself prohibited the development of new subdivisions, condominiums, and apartment buildings, and also prohibited each city and county in the Basin from granting any more permits in 1981, 1982, or 1983 than had been granted in 1978.[4] During this period TRPA was also working on the development of a regional water quality plan to comply with the Clean Water Act, 33 U.S. C. 1288 (1994 ed.). Despite *311 the fact that TRPA performed these obligations in "good faith and to the best of its ability," after a few months it concluded that it could not meet the deadlines in the Compact. On June 25, 1981, it therefore enacted Ordinance 81-5 imposing the first of the two moratoria on development that petitioners challenge in this proceeding. The ordinance provided that it would become effective on August 24, 1981, and remain in effect pending the adoption of the permanent plan required by the Compact. App. 159, 191. The District Court made a detailed analysis of the ordinance, noting that it might even prohibit hiking or picnicking on SEZ lands, but construed it as essentially banning any construction or other activity that involved the removal of vegetation or the creation of land coverage on all SEZ lands, as well as on class 1, 2, and 3 lands in -1235. Some permits could be obtained for such construction in Nevada if certain findings were made. It is undisputed, however, that Ordinance 81-5 prohibited the construction of any new residences on SEZ lands in either State and on class 1, 2, and 3 lands in Given the complexity of the task of defining "environmental threshold carrying capacities" and the division of opinion within TRPA's governing board, the District Court found that it was "unsurprising" that TRPA failed to adopt those thresholds until August 26, 1982, roughly two months after the Compact deadline. Under a liberal reading of the Compact, TRPA then had until August 26, 1983, to adopt a new regional plan. "Unfortunately, but again not surprisingly, no regional plan was in place as of that date." 34 F. Supp. 2d, TRPA therefore adopted Resolution 83-21, "which completely suspended all project reviews and approvals, including the acceptance of new proposals," and which remained in effect until a new regional plan was adopted on April 26, 1984. Thus, Resolution *312 83-21 imposed an 8-month moratorium prohibiting all construction on high hazard lands in either State. In combination, Ordinance 81-5 and Resolution 83-21 effectively prohibited all construction on sensitive lands in California and on all SEZ lands in the entire Basin for 32 months, and on sensitive lands in Nevada (other than SEZ lands) for eight months. It is these two moratoria that are at issue in this case. On the same day that the 1984 plan was adopted, the State of California filed an action seeking to enjoin its implementation on the ground that it failed to establish land-use controls sufficiently stringent to protect the Basin. The District Court entered an injunction that was upheld by the Court of Appeals and remained in effect until a completely revised plan was adopted in 1987. Both the 1984 injunction and the 1987 plan contained provisions that prohibited new construction on sensitive lands in the Basin. As the case comes to us, however, we have no occasion to consider the validity of those provisions. II Approximately two months after the adoption of the 1984 plan, petitioners filed parallel actions against TRPA and other defendants in federal courts in Nevada and California that were ultimately consolidated for trial in the District of Nevada. The petitioners include the Tahoe-Sierra Preservation Council, Inc., a nonprofit membership corporation representing about 2,000 owners of both improved and unimproved parcels of real estate in the Lake Tahoe Basin, and a class of some 400 individual owners of vacant lots located either on SEZ lands or in other parts of districts 1, 2, or 3. Those individuals purchased their properties prior to the effective date of the 1980 Compact, App. 34, primarily for the purpose of constructing "at a time of their choosing" a single-family home "to serve as a permanent, retirement or *313 vacation residence," When they made those purchases, they did so with the understanding that such construction was authorized provided that "they complied with all reasonable requirements for building." [5] Petitioners' complaints gave rise to protracted litigation that has produced four opinions by the Court of Appeals for the Ninth Circuit and several published District Court opinions.[6] For present purposes, however, we need only describe those courts' disposition of the claim that three actions taken by TRPA—Ordinance 81-5, Resolution 83-21, and the 1984 regional plan—constituted takings of petitioners' property without just compensation.[7] Indeed, the challenge to the 1984 plan is not before us because both the District Court and the Court of Appeals held that it was the federal injunction against implementing that plan, rather than the plan itself, that caused the post-1984 injuries that petitioners allegedly suffered, and those rulings are not encompassed within our limited grant of certiorari.[8] Thus, *314 we limit our discussion to the lower courts' disposition of the claims based on the 2-year moratorium (Ordinance 81-5) and the ensuing 8-month moratorium (Resolution 83-21). The District Court began its constitutional analysis by identifying the distinction between a direct government appropriation of property without just compensation and a government regulation that imposes such a severe restriction on the owner's use of her property that it produces "nearly the same result as a direct appropriation." The court noted that all of the claims in this case "are of the `regulatory takings' variety." Citing our decision in it then stated that a "regulation will constitute a taking when either: (1) it does not substantially advance a legitimate state interest; or (2) it denies the owner economically viable use of her land." 34 F. Supp. 2d, The District Court rejected the first alternative based on its finding that "further development on high hazard lands such as [petitioners'] would lead to significant additional damage to the lake."[9] With respect *315 to the second alternative, the court first considered whether the analysis adopted in Penn Transp. would lead to the conclusion that TRPA had effected a "partial taking," and then whether those actions had effected a "total taking."[10] Emphasizing the temporary nature of the regulations, the testimony that the "average holding time of a lot in the Tahoe area between lot purchase and home construction is twenty-five years," and the failure of petitioners to offer specific evidence of harm, the District Court concluded that "consideration of the Penn factors clearly leads to the conclusion that there was no taking." 34 F. Supp. 2d, In the absence of evidence regarding any of the individual plaintiffs, the court evaluated the "average" purchasers' intent and found that such purchasers "did not have reasonable, investment-backed expectations that they would be able to build single-family homes on their land within the six-year period involved in this lawsuit."[11] *316 The District Court had more difficulty with the "total taking" issue. Although it was satisfied that petitioners' property did retain some value during the moratoria,[12] it found that they had been temporarily deprived of "all economically viable use of their land." The court concluded that those actions therefore constituted "categorical" takings under our decision in It rejected TRPA's response that Ordinance 81-5 and Resolution 8321 were "reasonable temporary planning moratoria" that should be excluded from ' categorical approach. The court thought it "fairly clear" that such interim actions would not have been viewed as takings prior to our decisions in and First Evangelical Lutheran Church of because "[z]oning boards, cities, counties and other agencies used them all the time to `maintain the status quo pending study and governmental decision making.' " -12 ). After expressing uncertainty as to whether those cases required a holding that moratoria on development automatically effect takings, the court concluded that TRPA's actions did so, partly because neither the ordinance nor the resolution, even though intended to be temporary from the beginning, contained an *317 express termination date. -1251.[13] Accordingly, it ordered TRPA to pay damages to most petitioners for the 32-month period from August 24, 1981, to April 25, 1984, and to those owning class 1, 2, or 3 property in Nevada for the 8-month period from August 27, 1983, to April 25, 1984. Both parties appealed. TRPA successfully challenged the District Court's takings determination, and petitioners unsuccessfully challenged the dismissal of their claims based on the 1984 and 1987 plans. Petitioners did not, however, challenge the District Court's findings or conclusions concerning its application of Penn With respect to the two moratoria, the Ninth Circuit noted that petitioners had expressly disavowed an argument "that the regulations constitute a taking under the ad hoc balancing approach described in Penn " and that they did not "dispute that the restrictions imposed on their properties are appropriate means of securing the purpose set forth in the Compact."[14] Accordingly, the only question before the court was "whether the rule set forth in applies—that is, whether a categorical *318 taking occurred because Ordinance 81-5 and Resolution 83-21 denied the plaintiffs `all economically beneficial or productive use of land.' " Moreover, because petitioners brought only a facial challenge, the narrow inquiry before the Court of Appeals was whether the mere enactment of the regulations constituted a taking. Contrary to the District Court, the Court of Appeals held that because the regulations had only a temporary impact on petitioners' fee interest in the properties, no categorical taking had It reasoned: "Property interests may have many different dimensions. For example, the dimensions of a property interest may include a physical dimension (which describes the size and shape of the property in question), a functional dimension (which describes the extent to which an owner may use or dispose of the property in question), and a temporal dimension (which describes the duration of the property interest). At base, the plaintiffs' argument is that we should conceptually sever each plaintiff's fee interest into discrete segments in at least one of these dimensions—the temporal one— and treat each of those segments as separate and distinct property interests for purposes of takings analysis. Under this theory, they argue that there was a categorical taking of one of those temporal segments." Putting to one side "cases of physical invasion or occupation," the court read our cases involving regulatory taking claims to focus on the impact of a regulation on the parcel as a whole. In its view a "planning regulation that prevents the development of a parcel for a temporary period of time is conceptually no different than a land-use restriction that permanently denies all use on a discrete portion of property, or that permanently restricts a type *319 of use across all of the parcel." In each situation, a regulation that affects only a portion of the parcel— whether limited by time, use, or space—does not deprive the owner of all economically beneficial use.[15] The Court of Appeals distinguished as applying to the "`relatively rare' " case in which a regulation denies all productive use of an entire parcel, whereas the moratoria involve only a "temporal `slice' " of the fee interest and a form of regulation that is widespread and well 216 F.3d, at -774. It also rejected petitioners' argument that our decision in First was controlling. According to the Court of Appeals, First concerned the question whether compensation is an appropriate remedy for a temporary taking and not whether or when such a taking has Faced squarely with the question whether a taking had occurred, the court held that Penn was the appropriate framework for analysis. Petitioners, however, had failed to challenge the District *320 Court's conclusion that they could not make out a taking claim under the Penn factors. Over the dissent of five judges, the Ninth Circuit denied a petition for rehearing en banc. In the dissenters' opinion, the panel's holding was not faithful to this Court's decisions in First and nor to Justice Holmes admonition in Pennsylvania Coal that "`a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.' " Because of the importance of the case, we granted certiorari limited to the question stated at the beginning of this opinion. We now affirm. III Petitioners make only a facial attack on Ordinance 81-5 and Resolution 83-21. They contend that the mere enactment of a temporary regulation that, while in effect, denies a property owner all viable economic use of her property gives rise to an unqualified constitutional obligation to compensate her for the value of its use during that Hence, they "face an uphill battle," Bituminous Coal that is made especially steep by their desire for a categorical rule requiring compensation whenever the government imposes such a moratorium on development. Under their proposed rule, there is no need to evaluate the landowners' investment-backed expectations, the actual impact of the regulation on any individual, the importance of the public interest served by the regulation, or the reasons for imposing the temporary restriction. For petitioners, it is enough that a regulation imposes a temporary deprivation— no matter how brief—of all economically viable use to trigger a per se rule that a taking has Petitioners assert that our opinions in First and have *321 already endorsed their view, and that it is a logical application of the principle that the Takings Clause was "designed to bar Government from forcing some people alone to bear burdens which, in all fairness and justice, should be borne by the public as a whole." We shall first explain why our cases do not support their proposed categorical rule—indeed, fairly read, they implicitly reject it. Next, we shall explain why the Armstrong principle requires rejection of that rule as well as the less extreme position advanced by petitioners at oral argument. In our view the answer to the abstract question whether a temporary moratorium effects a taking is neither "yes, always" nor "no, never"; the answer depends upon the particular circumstances of the case.[16] Resisting "[t]he temptation to adopt what amount to per se rules in either direction," we conclude that the circumstances in this case are best analyzed within the Penn framework. IV The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from *322 making certain uses of her private property.[17] Our jurisprudence involving condemnations and physical takings is as old as the Republic and, for the most part, involves the straightforward application of per se rules. Our regulatory takings jurisprudence, in contrast, is of more recent vintage and is characterized by "essentially ad hoc, factual inquiries," Penn designed to allow "careful examination and weighing of all the relevant circumstances." 533 U. S., at When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, United regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. United ; United Similarly, when the government appropriates part of a roof top in order to provide cable TV access for apartment tenants, ; or when its planes use private airspace to approach a government airport, United it is required to pay for that share no matter how small. But a government regulation that merely prohibits landlords from evicting *323 tenants unwilling to pay a higher rent, ; that bans certain private uses of a portion of an owner's property, Village of ; Bituminous Coal ; or that forbids the private use of certain airspace, Penn Transp. does not constitute a categorical taking. "The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions." See also ; n. 18. This longstanding distinction between acquisitions of property for public use, on the one hand, and regulations prohibiting private uses, on the other, makes it inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a "regulatory taking,"[18] and vice versa. For the same reason that we do not ask whether a physical appropriation advances a substantial government interest or whether it deprives the owner of all economically valuable use, we do not apply our precedent from the physical takings context *324 to regulatory takings claims. Land-use regulations are ubiquitous and most of them impact property values in some tangential way—often in completely unanticipated ways. Treating them all as per se takings would transform government regulation into a luxury few governments could afford. By contrast, physical appropriations are relatively rare, easily identified, and usually represent a greater affront to individual property rights.[19] "This case does not present the `classi[c] taking' in which the government directly appropriates private property for its own use," Eastern 524 U.S. 8, ; instead the interference with property rights "arises from some public program adjusting the benefits and burdens of economic *325 life to promote the common good," Penn Perhaps recognizing this fundamental distinction, petitioners wisely do not place all their emphasis on analogies to physical takings cases. Instead, they rely principally on our decision in —a regulatory takings case that, nevertheless, applied a categorical rule—to argue that the Penn framework is inapplicable here. A brief review of some of the cases that led to our decision in however, will help to explain why the holding in that case does not answer the question presented here. As we noted in it was Justice Holmes' opinion in Pennsylvania Coal[20] that gave birth to our regulatory takings jurisprudence.[21]*326 In subsequent opinions we have repeatedly and consistently endorsed Holmes' observation that "if regulation goes too far it will be recognized as a taking." Justice Holmes did not provide a standard for determining when a regulation goes "too far," but he did reject the view expressed in Justice Brandeis' dissent that there could not be a taking because the property remained in the possession of the owner and had not been appropriated or used by the public.[22] After neither a physical appropriation nor a public use has ever been a necessary component of a "regulatory taking." In the decades following that decision, we have "generally eschewed" any set formula for determining how far is too far, choosing instead to engage in "`essentially ad hoc, factual inquiries.' " (quoting Penn ). Indeed, we still resist the temptation to adopt per se rules in our cases involving partial regulatory takings, preferring to examine "a number of factors" rather than a simple "mathematically precise" formula.[23] Justice Brennan's opinion for the Court in Penn *327 did, however, make it clear that even though multiple factors are relevant in the analysis of regulatory takings claims, in such cases we must focus on "the parcel as a whole": "`Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole—here, the city tax block designated as the `landmark site.' " This requirement that "the aggregate must be viewed in its entirety" explains why, for example, a regulation that prohibited commercial transactions in eagle feathers, but did not bar other uses or impose any physical invasion or restraint upon them, was not a taking. It also clarifies why restrictions on the use of only limited portions of the parcel, such as setback ordinances, or a requirement that coal pillars be left in place to prevent mine subsidence, Bituminous Coal 480 U. S., at 8, were not considered regulatory takings. In each of these cases, we affirmed that "where an owner possesses a full `bundle' of property rights, the destruction of one `strand' of the bundle is not a taking." -. *328 While the foregoing cases considered whether particular regulations had "gone too far" and were therefore invalid, none of them addressed the separate remedial question of how compensation is measured once a regulatory taking is In his dissenting opinion in San Diego Gas & Elec. Justice Brennan identified that question and explained how he would answer it: "The constitutional rule I propose requires that, once a court finds that a police power regulation has effected a `taking,' the government entity must pay just compensation for the period commencing on the date the regulation first effected the `taking,' and ending on the date the government entity chooses to rescind or otherwise amend the regulation." Justice Brennan's proposed rule was subsequently endorsed by the Court in First 318, 321. First was certainly a significant decision, and nothing that we say today qualifies its holding. Nonetheless, it is important to recognize that we did not address in that case the quite different and logically prior question whether the temporary regulation at issue had in fact constituted a taking. In First the Court unambiguously and repeatedly characterized the issue to be decided as a "compensation question" or a "remedial question." ; see also And the Court's statement of its holding was equally unambiguous: "We merely hold that where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." In fact, First expressly disavowed any ruling on the *329 merits of the takings issue because the California courts had decided the remedial question on the assumption that a taking had been alleged. After our remand, the California courts concluded that there had not been a taking, First Evangelical Church of and we declined review of that decision, 3 U.S. 1056 To the extent that the Court in First referenced the antecedent takings question, we identified two reasons why a regulation temporarily denying an owner all use of her property might not constitute a taking. First, we recognized that "the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations." Second, we limited our holding "to the facts presented" and recognized "the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which [were] not before us." Thus, our decision in First surely did not approve, and implicitly rejected, the categorical submission that petitioners are now advocating. Similarly, our decision in is not dispositive of the question presented. Although endorsed and applied a categorical rule, it was not the one that petitioners propose. purchased two residential lots in 1988 for $975,000. These lots were rendered "valueless" by a statute enacted two years later. The trial court found that a taking had occurred and ordered compensation of $1,232,387.50, representing the value of the fee simple estate, plus interest. As the statute read at the time of the trial, it effected a taking that "was unconditional and permanent." 505 U. S., *330 at 1012. While the State's appeal was pending, the statute was amended to authorize exceptions that might have allowed to obtain a building permit. Despite the fact that the amendment gave the State Supreme Court the opportunity to dispose of the appeal on ripeness grounds, it resolved the merits of the permanent takings claim and reversed. Since " had no reason to proceed on a `temporary taking' theory at trial," we decided the case on the permanent taking theory that both the trial court and the State Supreme Court had addressed. The categorical rule that we applied in states that compensation is required when a regulation deprives an owner of "all economically beneficial uses" of his land. Under that rule, a statute that "wholly eliminated the value" of ' fee simple title clearly qualified as a taking. But our holding was limited to "the extraordinary circumstance when no productive or economically beneficial use of land is permitted." The emphasis on the word "no" in the text of the opinion was, in effect, reiterated in a footnote explaining that the categorical rule would not apply if the diminution in value were 95% instead of 100%. n. 8.[24] Anything less than a "complete elimination of value," or a "total loss," the Court acknowledged, would require the kind of analysis applied in Penn 505 U. S., -1020, n. 8.[25] Certainly, our holding that the permanent "obliteration of the value" of a fee simple estate constitutes a categorical taking does not answer the question whether a regulation *331 prohibiting any economic use of land for a 32-month period has the same legal effect. Petitioners seek to bring this case under the rule announced in by arguing that we can effectively sever a 32-month segment from the remainder of each landowner's fee simple estate, and then ask whether that segment has been taken in its entirety by the moratoria. Of course, defining the property interest taken in terms of the very regulation being challenged is circular. With property so divided, every delay would become a total ban; the moratorium and the normal permit process alike would constitute categorical takings. Petitioners' "conceptual severance" argument is unavailing because it ignores Penn `s admonition that in regulatory takings cases we must focus on "the parcel as a whole." — 131. We have consistently rejected such an approach to the "denominator" question. See 480 U. S., at 7. See also Concrete Pipe & Products of Cal., Thus, the District Court erred when it disaggregated petitioners' property into temporal segments corresponding to the regulations at issue and then analyzed whether petitioners were deprived of all economically viable use during each -1245. The starting point for the court's analysis should have been to ask whether there was a total taking of the entire parcel; if not, then Penn was the proper framework.[26] An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the *332 term of years that describes the temporal aspect of the owner's interest. See Restatement of Property 7-9 (1936). Both dimensions must be considered if the interest is to be viewed in its entirety. Hence, a permanent deprivation of the owner's use of the entire area is a taking of "the parcel as a whole," whereas a temporary restriction that merely causes a diminution in value is not. Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted. Cf. n. 9 )). Neither nor First nor any of our other regulatory takings cases compels us to accept petitioners' categorical submission. In fact, these cases make clear that the categorical rule in was carved out for the "extraordinary case" in which a regulation permanently deprives property of all value; the default rule remains that, in the regulatory taking context, we require a more fact specific inquiry. Nevertheless, we will consider whether the interest in protecting individual property owners from bearing public burdens "which, in all fairness and justice, should be borne by the public as a whole," 364 U. S., at justifies creating a new rule for these circumstances.[27] *333 V Considerations of "fairness and justice" arguably could support the conclusion that TRPA's moratoria were takings of petitioners' property based on any of seven different theories. First, even though we have not previously done so, we might now announce acategorical rule that, in the interest of fairness and justice, compensation is required whenever government temporarily deprives an owner of all economically viable use of her property. Second, we could craft a narrower rule that would cover all temporary landuse restrictions except those "normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like" which were put to one side in our opinion in First 482 U. S., Third, we could adopt a rule like the one suggested by an amicus supporting petitioners that would "allow a short fixed period for deliberations to take place without compensation—say maximum one year—after which the just compensation requirements" would "kick in."[28] Fourth, with the benefit of hindsight, we might characterize the successive actions of TRPA as a "series of rolling moratoria" that were the functional equivalent of a permanent taking.[29] Fifth, were it not for the findings of the District Court that TRPA acted diligently and in good faith, we might have concluded that the agency was stalling in order to avoid promulgating the environmental threshold carrying capacities and regional plan mandated by the 1980 Compact. Cf. Sixth, apart from the District Court's finding that TRPA's actions represented a proportional response to a serious risk of harm to the lake, petitioners might have argued that the moratoria did not substantially advance a legitimate state interest, see Agins and Monterey. Finally, if petitioners had challenged the application of the moratoria to their individual parcels, instead of making a facial challenge, some of them might have prevailed under a Penn analysis. As the case comes to us, however, none of the last four theories is available. The "rolling moratoria" theory was presented in the petition for certiorari, but our order granting review did not encompass that issue, ; the case was tried in the District Court and reviewed in the Court of Appeals on the theory that each of the two moratoria was a separate taking, one for a 2-year period and the other for an 8-month And, as we have already noted, recovery on either a bad faith theory or a theory that the state interests were insubstantial is foreclosed by the District Court's unchallenged findings of fact. Recovery under a Penn analysis is also foreclosed both because petitioners expressly disavowed that theory, and because they did not appeal from the District Court's conclusion that the evidence would not support it. Nonetheless, each of the three per se theories is fairly encompassed within the question that we decided to answer. With respect to these theories, the ultimate constitutional question is whether the concepts of "fairness and justice" that underlie the Takings Clause will be better served by one of these categorical rules or by a Penn inquiry into all of the relevant circumstances in particular cases. From that perspective, the extreme categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable taking surely cannot be sustained. Petitioners' broad submission would apply to numerous *335 "normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like," 482 U.S., as well as to orders temporarily prohibiting access to crime scenes, businesses that violate health codes, fire-damaged buildings, or other areas that we cannot now foresee. Such a rule would undoubtedly require changes in numerous practices that have long been considered permissible exercises of the police power. As Justice Holmes warned in "[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decisionmaking. Such an important change in the law should be the product of legislative rulemaking rather than adjudication.[30] More importantly, for reasons set out at some length by Justice O'Connor in her concurring opinion in 533 U. S., at we are persuaded that the better approach to claims that a regulation has effected a temporary taking "requires careful examination and weighing of all the relevant circumstances." In that opinion, Justice O'Connor specifically considered the role that the "temporal relationship between regulatory enactment and title acquisition" should play in the analysis of a takings claim. We have no occasion to address that particular issue in this case, because it involves a different *336 temporal relationship—the distinction between a temporary restriction and one that is permanent. Her comments on the "fairness and justice" inquiry are, nevertheless, instructive: "Today's holding does not mean that the timing of the regulation's enactment relative to the acquisition of title is immaterial to the Penn analysis. Indeed, it would be just as much error to expunge this consideration from the takings inquiry as it would be to accord it exclusive significance. Our polestar instead remains the principles set forth in Penn itself and our other cases that govern partial regulatory takings. Under these cases, interference with investment-backed expectations is one of a number of factors that a court must examine. "The Fifth Amendment forbids the taking of private property for public use without just compensation. We have recognized that this constitutional guarantee is ` "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."` Penn [438 U. S.], at 123-124 ). The concepts of `fairness and justice' that underlie the Takings Clause, of course, are less than fully determinate. Accordingly, we have eschewed `any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.' Penn ). The outcome instead `depends largely "upon the particular circumstances [in that] case."` Penn )." *337 In rejecting petitioners' per se rule, we do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other. A narrower rule that excluded the normal delays associated with processing permits, or that covered only delays of more than a year, would certainly have a less severe impact on prevailing practices, but it would still impose serious financial constraints on the planning process.[31] Unlike the "extraordinary circumstance" in which the government deprives a property owner of all economic use, 505 U. S., moratoria like Ordinance 81-5 and Resolution 83— 21 are used widely among land-use planners to preserve the status quo while formulating a more permanent development strategy.[32] In fact, the consensus in the planning community *338 appears to be that moratoria, or "interim development controls" as they are often called, are an essential tool of successful development.[33] Yet even the weak version of petitioners' categorical rule would treat these interim measures as takings regardless of the good faith of the planners, the reasonable expectations of the landowners, or the actual impact of the moratorium on property values.[34] *339 The interest in facilitating informed decisionmaking by regulatory agencies counsels against adopting a per se rule that would impose such severe costs on their deliberations. Otherwise, the financial constraints of compensating property owners during a moratorium may force officials to rush through the planning process or to abandon the practice altogether. To the extent that communities are forced to abandon using moratoria, landowners will have incentives to develop their property quickly before a comprehensive plan can be enacted, thereby fostering inefficient and ill-conceived growth. A finding in the 1980 Compact itself, which presumably was endorsed by all three legislative bodies that participated in its enactment, attests to the importance of that concern. ("The legislatures of the of California and Nevada find that in order to make effective the regional plan as revised by the agency, it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan"). As Justice Kennedy explained in his opinion for the Court in it is the interest in informed decisionmaking that underlies our decisions imposing a strict ripeness requirement on landowners asserting regulatory takings claims: "These cases stand for the important principle that a landowner may not establish a taking before a landuse authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner's first having followed reasonable *340 and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been See Suitum [v. Tahoe Regional Planning Agency, ] (noting difficulty of demonstrating that `mere enactment' of regulations restricting land use effects a taking)." -621. We would create a perverse system of incentives were we to hold that landowners must wait for a takings claim to ripen so that planners can make well-reasoned decisions while, at the same time, holding that those planners must compensate landowners for the delay. Indeed, the interest in protecting the decisional process is even stronger when an agency is developing a regional plan than when it is considering a permit for a single parcel. In the proceedings involving the Lake Tahoe Basin, for example, the moratoria enabled TRPA to obtain the benefit of comments and criticisms from interested parties, such as the petitioners, during its deliberations.[35] Since a categorical rule tied to the length of deliberations would likely create added pressure on decisionmakers to reach a quick resolution of land-use questions, it would only serve to disadvantage those landowners and interest groups who are not as organized *341 or familiar with the planning process. Moreover, with a temporary ban on development there is a lesser risk that individual landowners will be "singled out" to bear a special burden that should be shared by the public as a whole. At least with a moratorium there is a clear "reciprocity of advantage," 260 U. S., because it protects the interests of all affected landowners against immediate construction that might be inconsistent with the provisions of the plan that is ultimately adopted. "While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others." 480 U. S., at 1. In fact, there is reason to believe property values often will continue to increase despite a moratorium. See, e. g., Growth Properties, Cf. Forest Properties, Inc. v. United Such an increase makes sense in this context because property values throughout the Basin can be expected to reflect the added assurance that Lake Tahoe will remain in its pristine state. Since in some cases a 1-year moratorium may not impose a burden at all, we should not adopt a rule that assumes moratoria always force individuals to bear a special burden that should be shared by the public as a whole. It may well be true that any moratorium that lasts for more than one year should be viewed with special skepticism. But given the fact that the District Court found that the 32 months required by TRPA to formulate the 1984 Regional Plan was not unreasonable, we could not possibly conclude that every delay of over one year is constitutionally *342 unacceptable.[36] Formulating a general rule of this kind is a suitable task for state legislatures.[37] In our view, the duration of the restriction is one of the important factors that a court must consider in the appraisal of a regulatory takings claim, but with respect to that factor as with respect to other factors, the "temptation to adopt what amount to per se rules in either direction must be resisted." 533 U. S., at There may be moratoria that last longer than one year which interfere with reasonable investment-backed expectations, but as the District Court's opinion illustrates, petitioners' proposed rule is simply "too blunt an instrument" for identifying those cases. We conclude, therefore, that the interest in "fairness and justice" will be best served by relying on the familiar Penn approach when deciding cases like this, rather than by attempting to craft a new categorical rule. *343 Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.

Justice Rehnquist

dissenting

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

2002-04-23

https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/

https://www.courtlistener.com/api/rest/v3/clusters/118498/

2001-040

For over half a decade petitioners were prohibited from building homes, or any other structures, on their land. Because the Takings Clause requires the government to pay compensation when it deprives owners of all economically viable use of their land, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), and because a ban on all development lasting almost six years does not resemble any traditional land-use planning device, I dissent. I "A court cannot determine whether a regulation has gone `too far' unless it knows how far the regulation goes." MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986) (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).[1] In failing to undertake this inquiry, the Court *344 ignores much of the impact of respondent's conduct on petitioners. Instead, it relies on the flawed determination of the Court of Appeals that the relevant time period lasted only from August 1981 until April 1984. Ante, at 312, 313-314. During that period, Ordinance 81-5 and Regulation 83-21 prohibited development pending the adoption of a new regional land-use plan. The adoption of the 1984 Regional Plan (hereinafter Plan or 1984 Plan) did not, however, change anything from petitioners' standpoint. After the adoption of the 1984 Plan, petitioners still could make no use of their land. The Court of Appeals disregarded this post-April 1984 deprivation on the ground that respondent did not "cause" it. In a 42 U.S. C. § 1983 action, "the plaintiff must demonstrate that the defendant's conduct was the actionable cause of the claimed injury." 216 F.3d 764, 783 (CA9 2000). Applying this principle, the Court of Appeals held that the 1984 Plan did not amount to a taking because the Plan actually allowed permits to issue for the construction of single-family residences. Those permits were never issued because the District Court immediately issued a temporary restraining order, and later a permanent injunction that lasted until 1987, prohibiting the approval of any building projects under the 1984 Plan. Thus, the Court of Appeals concluded that the "1984 Plan itself could not have constituted a taking," because it was the injunction, not the Plan, that prohibited development during this period. Id., at 784. The Court of Appeals is correct that the 1984 Plan did not cause petitioners' injury. But that is the right answer to the wrong question. The causation question is not limited to whether the 1984 Plan caused petitioners' injury; the question is whether respondent caused petitioners' injury. We have never addressed the § 1983 causation requirement in the context of a regulatory takings claim, though language in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), suggests that ordinary principles of proximate cause *345 govern the causation inquiry for takings claims. Id., at 124. The causation standard does not require much elaboration in this case, because respondent was undoubtedly the "moving force" behind petitioners' inability to build on their land from August 1984 through 1987. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978) (§ 1983 causation established when government action is the "moving force" behind the alleged constitutional violation). The injunction in this case issued because the 1984 Plan did not comply with the 1980 Tahoe Regional Planning Compact (Compact) and regulations issued pursuant to the Compact. And, of course, respondent is responsible for the Compact and its regulations. On August 26, 1982, respondent adopted Resolution 82-11. That resolution established "environmental thresholds for water quality, soil conservation, air quality, vegetation preservation, wildlife, fisheries, noise, recreation, and scenic resources." California v. Tahoe Regional Planning Agency, 766 F.2d 1308, 1311 (CA9 1985). The District Court enjoined the 1984 Plan in part because the Plan would have allowed 42,000 metric tons of soil per year to erode from some of the single-family residences, in excess of the Resolution 82-11 threshold for soil conservation. Id., at 1315; see also id., at 1312. Another reason the District Court enjoined the 1984 Plan was that it did not comply with article V(g) of the Compact, which requires a finding, "with respect to each project, that the project will not cause the established [environmental] thresholds to be exceeded." Ibid. Thus, the District Court enjoined the 1984 Plan because the Plan did not comply with the environmental requirements of respondent's regulations and of the Compact itself. Respondent is surely responsible for its own regulations, and it is also responsible for the Compact as it is the governmental agency charged with administering the Compact. Compact, Art. I(c), 94 Stat. 3234. It follows that respondent was the "moving force" behind petitioners' inability to develop *346 their land from April 1984 through the enactment of the 1987 plan. Without the environmental thresholds established by the Compact and Resolution 82-11, the 1984 Plan would have gone into effect and petitioners would have been able to build single-family residences. And it was certainly foreseeable that development projects exceeding the environmental thresholds would be prohibited; indeed, that was the very purpose of enacting the thresholds. Because respondent caused petitioners' inability to use their land from 1981 through 1987, that is the appropriate period of time from which to consider their takings claim. II I now turn to determining whether a ban on all economic development lasting almost six years is a taking. Lucas reaffirmed our "frequently expressed" view that "when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking." 505 U.S., at 1019. See also Agins v. City of Tiburon, 447 U.S. 255, 258-259 (1980). The District Court in this case held that the ordinances and resolutions in effect between August 24, 1981, and April 25, 1984, "did in fact deny the plaintiffs all economically viable use of their land." 34 F. Supp. 2d 1226, 1245 (Nev. 1999). The Court of Appeals did not overturn this finding. And the 1984 injunction, issued because the environmental thresholds issued by respondent did not permit the development of single-family residences, forced petitioners to leave their land economically idle for at least another three years. The Court does not dispute that petitioners were forced to leave their land economically idle during this period. See ante, at 312. But the Court refuses to apply Lucas on the ground that the deprivation was "temporary." Neither the Takings Clause nor our case law supports such a distinction. For one thing, a distinction between *347 "temporary" and "permanent" prohibitions is tenuous. The "temporary" prohibition in this case that the Court finds is not a taking lasted almost six years.[2] The "permanent" prohibition that the Court held to be a taking in Lucas lasted less than two years. See 505 U.S., at 1011-1012. The "permanent" prohibition in Lucas lasted less than two years because the law, as it often does, changed. The South Carolina Legislature in 1990 decided to amend the 1988 Beach front Management Act to allow the issuance of "`special permits' for the construction or reconstruction of habitable structures seaward of the baseline." Id., at 1011-1012. Landuse regulations are not irrevocable. And the government can even abandon condemned land. See United States v. Dow, 357 U.S. 17, 26 (1958). Under the Court's decision today, the takings question turns entirely on the initial label given a regulation, a label that is often without much meaning. There is every incentive for government to simply label any prohibition on development "temporary," or to fix a set number of years. As in this case, this initial designation does not preclude the government from repeatedly extending the "temporary" prohibition into a long-term ban on all development. The Court now holds that such a designation by the government is conclusive even though in fact the moratorium greatly exceeds the time initially specified. Apparently, the Court would not view even a 10-year moratorium as a taking under Lucas because the moratorium is not "permanent." Our opinion in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), rejects any distinction between temporary and permanent takings when a landowner is deprived of all economically beneficial use of his land. First English stated that "`temporary takings which, as here, deny a landowner all use of his property, are not different in kind from permanent *348 takings, for which the Constitution clearly requires compensation." Id., at 318. Because of First English `s rule that "temporary deprivations of use are compensable under the Takings Clause," the Court in Lucas found nothing problematic about the later developments that potentially made the ban on development temporary. 505 U.S., at 1011-1012 (citing First English, supra ); see also 505 U.S., at 1033 (Kennedy, J., concurring in judgment) ("It is well established that temporary takings are as protected by the Constitution as are permanent ones" (citing First English, supra, at 318)). More fundamentally, even if a practical distinction between temporary and permanent deprivations were plausible, to treat the two differently in terms of takings law would be at odds with the justification for the Lucas rule. The Lucas rule is derived from the fact that a "total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation." 505 U.S., at 1017. The regulation in Lucas was the "practical equivalence" of a long-term physical appropriation, i. e., a condemnation, so the Fifth Amendment required compensation. The "practical equivalence," from the landowner's point of view, of a "temporary" ban on all economic use is a forced leasehold. For example, assume the following situation: Respondent is contemplating the creation of a National Park around Lake Tahoe to preserve its scenic beauty. Respondent decides to take a 6-year leasehold over petitioners' property, during which any human activity on the land would be prohibited, in order to prevent any further destruction to the area while it was deciding whether to request that the area be designated a National Park. Surely that leasehold would require compensation. In a series of World War II-era cases in which the Government had condemned leasehold interests in order to support the war effort, the Government conceded that it was required *349 to pay compensation for the leasehold interest.[3] See United States v. Petty Motor Co., 327 U.S. 372 (1946); United States v. General Motors Corp., 323 U.S. 373, 376 (1945). From petitioners' standpoint, what happened in this case is no different than if the government had taken a 6-year lease of their property. The Court ignores this "practical equivalence" between respondent's deprivation and the deprivation resulting from a leasehold. In so doing, the Court allows the government to "do by regulation what it cannot do through eminent domain—i. e., take private property without paying for it." 228 F.3d 998, 999 (CA9 2000) (Kozinski, J., dissenting from denial of rehearing en banc). Instead of acknowledging the "practical equivalence" of this case and a condemned leasehold, the Court analogizes to other areas of takings law in which we have distinguished between regulations and physical appropriations, see ante, at 321-324. But whatever basis there is for such distinctions in those contexts does not apply when a regulation deprives a landowner of all economically beneficial use of his land. In addition to the "practical equivalence" from the landowner's perspective of such a regulation and a physical appropriation, we have held that a regulation denying all productive use of land does not implicate the traditional justification for differentiating between regulations and physical appropriations. In "the extraordinary circumstance when no productive or economically beneficial use of land is permitted," it is less likely that "the legislature is simply *350 `adjusting the benefits and burdens of economic life' . . . in a manner that secures an `average reciprocity of advantage' to everyone concerned," Lucas, supra, at 1017-1018 (quoting Penn Central Transp. Co. v. New York City, 438 U. S., at 124, and Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415), and more likely that the property "is being pressed into some form of public service under the guise of mitigating serious public harm," Lucas, supra, at 1018. The Court also reads Lucas as being fundamentally concerned with value, ante, at 329-331, rather than with the denial of "all economically beneficial or productive use of land," 505 U.S., at 1015. But Lucas repeatedly discusses its holding as applying where "no productive or economically beneficial use of land is permitted." Id., at 1017; see also ibid. ("[T]otal deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation"); id., at 1016 ("[T]he Fifth Amendment is violated when land-use regulation . . . denies an owner economically viable use of his land"); id., at 1018 ("[T]he functional basis for permitting the government, by regulation, to affect property values without compensation . . . does not apply to the relatively rare situations where the government has deprived a landowner of all economically beneficial uses"); ibid. ("[T]he fact that regulations that leave the owner of land without economically beneficial or productive options for its use . . . carry with them a heightened risk that private property is being pressed into some form of public service"); id., at 1019 ("[W]hen the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking"). Moreover, the Court's position that value is the sine qua non of the Lucas rule proves too much. Surely, the land at issue in Lucas retained some market value based on the contingency, which soon came to fruition (see supra, at 347), that the development ban would be amended. *351 Lucas is implicated when the government deprives a landowner of "all economically beneficial or productive use of land." 505 U.S., at 1015. The District Court found, and the Court agrees, that the moratorium "temporarily" deprived petitioners of "`all economically viable use of their land.' " Ante, at 316. Because the rationale for the Lucas rule applies just as strongly in this case, the "temporary" denial of all viable use of land for six years is a taking. III The Court worries that applying Lucas here compels finding that an array of traditional, short-term, land-use planning devices are takings. Ante, at 334-335, 337-338. But since the beginning of our regulatory takings jurisprudence, we have recognized that property rights "are enjoyed under an implied limitation." Mahon, supra, at 413. Thus, in Lucas, after holding that the regulation prohibiting all economically beneficial use of the coastal land came within our categorical takings rule, we nonetheless inquired into whether such a result "inhere[d] in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership." 505 U.S., at 1029. Because the regulation at issue in Lucas purported to be permanent, or at least long term, we concluded that the only implied limitation of state property law that could achieve a similar long-term deprivation of all economic use would be something "achieved in the courts—by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise." Ibid. When a regulation merely delays a final land-use decision, we have recognized that there are other background principles of state property law that prevent the delay from being deemed a taking. We thus noted in First English that our discussion of temporary takings did not apply "in the case *352 of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like." 482 U.S., at 321. We reiterated this last Term: "The right to improve property, of course, is subject to the reasonable exercise of state authority, including the enforcement of valid zoning and land-use restrictions." Palazzolo v. Rhode Island, 533 U.S. 606, 627 (2001). Zoning regulations existed as far back as colonial Boston, see Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 789 (1995), and New York City enacted the first comprehensive zoning ordinance in 1916, see 1 Anderson's American Law of Zoning § 3.07, p. 92 (K. Young rev. 4th ed. 1995). Thus, the short-term delays attendant to zoning and permit regimes are a longstanding feature of state property law and part of a landowner's reasonable investment-backed expectations. See Lucas, supra, at 1034 (Kennedy, J., concurring in judgment). But a moratorium prohibiting all economic use for a period of six years is not one of the longstanding, implied limitations of state property law.[4] Moratoria are "interim controls on the use of land that seek to maintain the status quo with respect to land development in an area by either `freezing' existing land uses or by allowing the issuance of building permits for only certain land uses that would not be inconsistent with a contemplated zoning plan or zoning change." 1 E. Ziegler, Rathkopf's The Law of Zoning and *353 Planning § 13:3, p. 13-6 (4th ed. 2001). Typical moratoria thus prohibit only certain categories of development, such as fast-food restaurants, see Schafer v. New Orleans, 743 F.2d 1086 (CA5 1984), or adult businesses, see Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), or all commercial development, see Arnold Bernhard & Co. v. Planning & Zoning Comm'n, 194 Conn. 152, 479 A.2d 801 (1984). Such moratoria do not implicate Lucas because they do not deprive landowners of all economically beneficial use of their land. As for moratoria that prohibit all development, these do not have the lineage of permit and zoning requirements and thus it is less certain that property is acquired under the "implied limitation" of a moratorium prohibiting all development. Moreover, unlike a permit system in which it is expected that a project will be approved so long as certain conditions are satisfied, a moratorium that prohibits all uses is by definition contemplating a new land-use plan that would prohibit all uses. But this case does not require us to decide as a categorical matter whether moratoria prohibiting all economic use are an implied limitation of state property law, because the duration of this "moratorium" far exceeds that of ordinary moratoria. As the Court recognizes, ante, at 342, n. 37, state statutes authorizing the issuance of moratoria often limit the moratoria's duration. California, where much of the land at issue in this case is located, provides that a moratorium "shall be of no further force and effect 45 days from its date of adoption," and caps extension of the moratorium so that the total duration cannot exceed two years. Cal. Govt. Code Ann. § 65858(a) (West Supp. 2002); see also Minn. Stat. § 462.355, subd. 4 (2000) (limiting moratoria to 18 months, with one permissible extension, for a total of two years). Another State limits moratoria to 120 days, with the possibility of a single 6-month extension. Ore. Rev. Stat. Ann. § 197.520(4) (1997). Others limit moratoria to six *354 months without any possibility of an extension. See Colo. Rev. Stat. § 30-28-121 (2001); N. J. Stat. Ann. § 40:55D-90(b) (1991).[5] Indeed, it has long been understood that moratoria on development exceeding these short time periods are not a legitimate planning device. See, e. g., Holdsworth v. Hague, 9 N. J. Misc. 715, 155 A. 892 (1931). Resolution 83-21 reflected this understanding of the limited duration of moratoria in initially limiting the moratorium in this case to 90 days. But what resulted—a "moratorium" lasting nearly six years—bears no resemblance to the short-term nature of traditional moratoria as understood from these background examples of state property law. Because the prohibition on development of nearly six years in this case cannot be said to resemble any "implied limitation" of state property law, it is a taking that requires compensation. * * * Lake Tahoe is a national treasure, and I do not doubt that respondent's efforts at preventing further degradation of the lake were made in good faith in furtherance of the public interest. But, as is the case with most governmental action that furthers the public interest, the Constitution requires that the costs and burdens be borne by the public at large, not by a few targeted citizens. Justice Holmes' admonition of 80 years ago again rings true: "We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Mahon, 260 U. S., at 416.

For over half a decade petitioners were prohibited from building homes, or any other structures, on their land. Because the Takings Clause requires the government to pay compensation when it deprives owners of all economically viable use of their land, see and because a ban on all development lasting almost six years does not resemble any traditional land-use planning device, I dissent. I "A court cannot determine whether a regulation has gone `too far' unless it knows how far the regulation goes." MacDonald, Sommer &[1] In failing to undertake this inquiry, the Court *344 ignores much of the impact of respondent's conduct on petitioners. Instead, it relies on the flawed determination of the Court of Appeals that the relevant time period lasted only from August 1981 until April Ante, at 312, 313-314. During that period, Ordinance 81-5 and Regulation 83-21 prohibited development pending the adoption of a new regional land-use plan. The adoption of the Regional Plan (hereinafter Plan or Plan) did not, however, change anything from petitioners' standpoint. After the adoption of the Plan, petitioners still could make no use of their land. The Court of Appeals disregarded this post-April deprivation on the ground that respondent did not "cause" it. In a 42 U.S. C. 1983 action, "the plaintiff must demonstrate that the defendant's conduct was the actionable cause of the claimed injury." Applying this principle, the Court of Appeals held that the Plan did not amount to a taking because the Plan actually allowed permits to issue for the construction of single-family residences. Those permits were never issued because the District Court immediately issued a temporary restraining order, and later a permanent injunction that lasted until 1987, prohibiting the approval of any building projects under the Plan. Thus, the Court of Appeals concluded that the " Plan itself could not have constituted a taking," because it was the injunction, not the Plan, that prohibited development during this period. The Court of Appeals is correct that the Plan did not cause petitioners' injury. But that is the right answer to the wrong question. The causation question is not limited to whether the Plan caused petitioners' injury; the question is whether respondent caused petitioners' injury. We have never addressed the 1983 causation requirement in the context of a regulatory takings claim, though language in Penn Central Transp. suggests that ordinary principles of proximate cause *345 govern the causation inquiry for takings claims. The causation standard does not require much elaboration in this case, because respondent was undoubtedly the "moving force" behind petitioners' inability to build on their land from August through 1987. ( 1983 causation established when government action is the "moving force" behind the alleged constitutional violation). The injunction in this case issued because the Plan did not comply with the 1980 Tahoe Regional Planning Compact (Compact) and regulations issued pursuant to the Compact. And, of course, respondent is responsible for the Compact and its regulations. On August 1982, respondent adopted Resolution 82-11. That resolution established "environmental thresholds for water quality, soil conservation, air quality, vegetation preservation, wildlife, fisheries, noise, recreation, and scenic resources." The District Court enjoined the Plan in part because the Plan would have allowed 42,000 metric tons of soil per year to erode from some of the single-family residences, in excess of the Resolution 82-11 threshold for soil conservation. ; see Another reason the District Court enjoined the Plan was that it did not comply with article V(g) of the Compact, which requires a finding, "with respect to each project, that the project will not cause the established [environmental] thresholds to be exceeded." Thus, the District Court enjoined the Plan because the Plan did not comply with the environmental requirements of respondent's regulations and of the Compact itself. Respondent is surely responsible for its own regulations, and it is responsible for the Compact as it is the governmental agency charged with administering the Compact. Compact, Art. I(c), It follows that respondent was the "moving force" behind petitioners' inability to develop *346 their land from April through the enactment of the 1987 plan. Without the environmental thresholds established by the Compact and Resolution 82-11, the Plan would have gone into effect and petitioners would have been able to build single-family residences. And it was certainly foreseeable that development projects exceeding the environmental thresholds would be prohibited; indeed, that was the very purpose of enacting the thresholds. Because respondent caused petitioners' inability to use their land from 1981 through 1987, that is the appropriate period of time from which to consider their takings claim. II I now turn to determining whether a ban on all economic development lasting almost six years is a taking. reaffirmed our "frequently expressed" view that "when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking." See The District Court in this case held that the ordinances and resolutions in effect between August 24, 1981, and April 25, "did in fact deny the plaintiffs all economically viable use of their land." The Court of Appeals did not overturn this finding. And the injunction, issued because the environmental thresholds issued by respondent did not permit the development of single-family residences, forced petitioners to leave their land economically idle for at least another three years. The Court does not dispute that petitioners were forced to leave their land economically idle during this period. See ante, at 312. But the Court refuses to apply on the ground that the deprivation was "" Neither the Takings Clause nor our case law supports such a distinction. For one thing, a distinction between *347 "temporary" and "permanent" prohibitions is tenuous. The "temporary" prohibition in this case that the Court finds is not a taking lasted almost six years.[2] The "permanent" prohibition that the Court held to be a taking in lasted less than two years. See -1012. The "permanent" prohibition in lasted less than two years because the law, as it often does, changed. The South Carolina Legislature in 1990 decided to amend the 1988 Beach front Management Act to allow the issuance of "`special permits' for the construction or reconstruction of habitable structures seaward of the baseline." Landuse regulations are not irrevocable. And the government can even abandon condemned land. See United Under the Court's decision today, the takings question turns entirely on the initial label given a regulation, a label that is often without much meaning. There is every incentive for government to simply label any prohibition on development "temporary," or to fix a set number of years. As in this case, this initial designation does not preclude the government from repeatedly extending the "temporary" prohibition into a long-term ban on all development. The Court now holds that such a designation by the government is conclusive even though in fact the moratorium greatly exceeds the time initially specified. Apparently, the Court would not view even a 10-year moratorium as a taking under because the moratorium is not "permanent." Our opinion in First Evangelical Lutheran Church of rejects any distinction between temporary and permanent takings when a landowner is deprived of all economically beneficial use of his land. First stated that "`temporary takings which, as here, deny a landowner all use of his property, are not different in kind from permanent * takings, for which the Constitution clearly requires compensation." Because of First `s rule that "temporary deprivations of use are compensable under the Takings Clause," the Court in found nothing problematic about the later developments that potentially made the ban on development -1012 (citing First ); see ("It is well established that temporary takings are as protected by the Constitution as are permanent ones" (citing First )). More fundamentally, even if a practical distinction between temporary and permanent deprivations were plausible, to treat the two differently in terms of takings law would be at odds with the justification for the rule. The rule is derived from the fact that a "total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation." The regulation in was the "practical equivalence" of a long-term physical appropriation, i. e., a condemnation, so the Fifth Amendment required compensation. The "practical equivalence," from the landowner's point of view, of a "temporary" ban on all economic use is a forced leasehold. For example, assume the following situation: Respondent is contemplating the creation of a National Park around Lake Tahoe to preserve its scenic beauty. Respondent decides to take a 6-year leasehold over petitioners' property, during which any human activity on the land would be prohibited, in order to prevent any further destruction to the area while it was deciding whether to request that the area be designated a National Park. Surely that leasehold would require compensation. In a series of World War II-era cases in which the Government had condemned leasehold interests in order to support the war effort, the Government conceded that it was required *349 to pay compensation for the leasehold interest.[3] See United ; United From petitioners' standpoint, what happened in this case is no different than if the government had taken a 6-year lease of their property. The Court ignores this "practical equivalence" between respondent's deprivation and the deprivation resulting from a leasehold. In so doing, the Court allows the government to "do by regulation what it cannot do through eminent domain—i. e., take private property without paying for it." Instead of acknowledging the "practical equivalence" of this case and a condemned leasehold, the Court analogizes to other areas of takings law in which we have distinguished between regulations and physical appropriations, see ante, at 321-324. But whatever basis there is for such distinctions in those contexts does not apply when a regulation deprives a landowner of all economically beneficial use of his land. In addition to the "practical equivalence" from the landowner's perspective of such a regulation and a physical appropriation, we have held that a regulation denying all productive use of land does not implicate the traditional justification for differentiating between regulations and physical appropriations. In "the extraordinary circumstance when no productive or economically beneficial use of land is permitted," it is less likely that "the legislature is simply *350 `adjusting the benefits and burdens of economic life' in a manner that secures an `average reciprocity of advantage' to everyone concerned," (quoting Penn Central Transp. 438 U. S., and Pennsylvania Coal 0 U. S., at ), and more likely that the property "is being pressed into some form of public service under the guise of mitigating serious public harm," The Court reads as being fundamentally concerned with value, ante, at 329-331, rather than with the denial of "all economically beneficial or productive use of land," But repeatedly discusses its holding as applying where "no productive or economically beneficial use of land is permitted." ; see ; ; ; ; Moreover, the Court's position that value is the sine qua non of the rule proves too much. Surely, the land at issue in retained some market value based on the contingency, which soon came to fruition (see ), that the development ban would be amended. *351 is implicated when the government deprives a landowner of "all economically beneficial or productive use of land." The District Court found, and the Court agrees, that the moratorium "temporarily" deprived petitioners of "`all economically viable use of their land.' " Ante, at 316. Because the rationale for the rule applies just as strongly in this case, the "temporary" denial of all viable use of land for six years is a taking. III The Court worries that applying here compels finding that an array of traditional, short-term, land-use planning devices are takings. Ante, at 334-335, 337-338. But since the beginning of our regulatory takings jurisprudence, we have recognized that property rights "are enjoyed under an implied limitation." Thus, in after holding that the regulation prohibiting all economically beneficial use of the coastal land came within our categorical takings rule, we nonetheless inquired into whether such a result "inhere[d] in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership." Because the regulation at issue in purported to be permanent, or at least long term, we concluded that the only implied limitation of state property law that could achieve a similar long-term deprivation of all economic use would be something "achieved in the courts—by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise." When a regulation merely delays a final land-use decision, we have recognized that there are other background principles of state property law that prevent the delay from being deemed a taking. We thus noted in First that our discussion of temporary takings did not apply "in the case *352 of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like." We reiterated this last Term: "The right to improve property, of course, is subject to the reasonable exercise of state authority, including the enforcement of valid zoning and land-use restrictions." Zoning regulations existed as far back as colonial Boston, see Treanor, The Original Understanding of the Takings Clause and the Political Process, and New York enacted the first comprehensive zoning ordinance in 1916, see 1 Anderson's American Law of Zoning 3.07, p. 92 Thus, the short-term delays attendant to zoning and permit regimes are a longstanding feature of state property law and part of a landowner's reasonable investment-backed expectations. See But a moratorium prohibiting all economic use for a period of six years is not one of the longstanding, implied limitations of state property law.[4] Moratoria are "interim controls on the use of land that seek to maintain the status quo with respect to land development in an area by either `freezing' existing land uses or by allowing the issuance of building permits for only certain land uses that would not be inconsistent with a contemplated zoning plan or zoning change." 1 E. Ziegler, Rathkopf's The Law of Zoning and *353 Planning 13:3, p. 13-6 Typical moratoria thus prohibit only certain categories of development, such as fast-food restaurants, see or adult businesses, see or all commercial development, see Arnold Bernhard & Such moratoria do not implicate because they do not deprive landowners of all economically beneficial use of their land. As for moratoria that prohibit all development, these do not have the lineage of permit and zoning requirements and thus it is less certain that property is acquired under the "implied limitation" of a moratorium prohibiting all development. Moreover, unlike a permit system in which it is expected that a project will be approved so long as certain conditions are satisfied, a moratorium that prohibits all uses is by definition contemplating a new land-use plan that would prohibit all uses. But this case does not require us to decide as a categorical matter whether moratoria prohibiting all economic use are an implied limitation of state property law, because the duration of this "moratorium" far exceeds that of ordinary moratoria. As the Court recognizes, ante, at 342, n. 37, state statutes authorizing the issuance of moratoria often limit the moratoria's duration. California, where much of the land at issue in this case is located, provides that a moratorium "shall be of no further force and effect 45 days from its date of adoption," and caps extension of the moratorium so that the total duration cannot exceed two years. Cal. Govt. Code Ann. 65858(a) (West Supp. 2002); see Minn. Stat. 462.355, subd. 4 (limiting moratoria to 18 months, with one permissible extension, for a total of two years). Another State limits moratoria to 120 days, with the possibility of a single 6-month extension. Ore. Rev. Stat. Ann. 197.520(4) (1997). Others limit moratoria to six *354 months without any possibility of an extension. See Colo. Rev. Stat. 30-28-121 ; N. J. Stat. Ann. 40:55D-90(b) (1991).[5] Indeed, it has long been understood that moratoria on development exceeding these short time periods are not a legitimate planning device. See, e. g., Resolution 83-21 reflected this understanding of the limited duration of moratoria in initially limiting the moratorium in this case to 90 days. But what resulted—a "moratorium" lasting nearly six years—bears no resemblance to the short-term nature of traditional moratoria as understood from these background examples of state property law. Because the prohibition on development of nearly six years in this case cannot be said to resemble any "implied limitation" of state property law, it is a taking that requires compensation. * * * Lake Tahoe is a national treasure, and I do not doubt that respondent's efforts at preventing further degradation of the lake were made in good faith in furtherance of the public interest. But, as is the case with most governmental action that furthers the public interest, the Constitution requires that the costs and burdens be borne by the public at large, not by a few targeted citizens. Justice Holmes' admonition of 80 years ago again rings true: "We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." 0 U. S., at 416.

Justice Thomas

second_dissenting

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

2002-04-23

https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/

https://www.courtlistener.com/api/rest/v3/clusters/118498/

2001-040

I join The Chief Justice's dissent. I write separately to address the majority's conclusion that the temporary moratorium at issue here was not a taking because it was not a "taking of `the parcel as a whole.' " Ante, at 332. While this questionable rule[*] has been applied to various alleged regulatory takings, it was, in my view, rejected in the context of temporal deprivations of property by First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 318 (1987), which held that temporary and permanent takings "are not different in kind" when a landowner is deprived of all beneficial use of his land. I had thought that First English put to rest the notion that the "relevant denominator" is land's infinite life. Consequently, a regulation effecting a total deprivation of the use of a so-called "temporal slice" of property is compensable under the Takings Clause unless background principles of state property law prevent it from being deemed a taking; "total deprivation of use is, from the landowner's point of view, the equivalent of a physical appropriation." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017 (1992). A taking is exactly what occurred in this case. No one seriously doubts that the land-use regulations at issue rendered petitioners' land unsusceptible of any economically beneficial use. This was true at the inception of the moratorium, *356 and it remains true today. These individuals and families were deprived of the opportunity to build singlefamily homes as permanent, retirement, or vacation residences on land upon which such construction was authorized when purchased. The Court assures them that "a temporary prohibition on economic use" cannot be a taking because "[l]ogically . . . the property will recover value as soon as the prohibition is lifted." Ante, at 332. But the "logical" assurance that a "temporary restriction . . . merely causes a diminution in value," ibid., is cold comfort to the property owners in this case or any other. After all, "[i]n the long run we are all dead." J. Keynes, Monetary Reform 88 (1924). I would hold that regulations prohibiting all productive uses of property are subject to Lucas' per se rule, regardless of whether the property so burdened retains theoretical useful life and value if, and when, the "temporary" moratorium is lifted. To my mind, such potential future value bears on the amount of compensation due and has nothing to do with the question whether there was a taking in the first place. It is regrettable that the Court has charted a markedly different path today.

I join The Chief Justice's dissent. I write separately to address the majority's conclusion that the temporary moratorium at issue here was not a taking because it was not a "taking of `the parcel as a whole.' " Ante, at 332. While this questionable rule[*] has been applied to various alleged regulatory takings, it was, in my view, rejected in the context of temporal deprivations of property by First English Evangelical Lutheran Church of which held that temporary and permanent takings "are not different in kind" when a landowner is deprived of all beneficial use of his land. I had thought that First English put to rest the notion that the "relevant denominator" is land's infinite life. Consequently, a regulation effecting a total deprivation of the use of a so-called "temporal slice" of property is compensable under the Takings Clause unless background principles of state property law prevent it from being deemed a taking; "total deprivation of use is, from the landowner's point of view, the equivalent of a physical appropriation." A taking is exactly what occurred in this case. No one seriously doubts that the land-use regulations at issue rendered petitioners' land unsusceptible of any economically beneficial use. This was true at the inception of the moratorium, *356 and it remains true today. These individuals and families were deprived of the opportunity to build singlefamily homes as permanent, retirement, or vacation residences on land upon which such construction was authorized when purchased. The Court assures them that "a temporary prohibition on economic use" cannot be a taking because "[l]ogically the property will recover value as soon as the prohibition is lifted." Ante, at 332. But the "logical" assurance that a "temporary restriction merely causes a diminution in value," ibid., is cold comfort to the property owners in this case or any other. After all, "[i]n the long run we are all dead." J. Keynes, Monetary Reform 88 (1924). I would hold that regulations prohibiting all productive uses of property are subject to Lucas' per se rule, regardless of whether the property so burdened retains theoretical useful life and value if, and when, the "temporary" moratorium is lifted. To my mind, such potential future value bears on the amount of compensation due and has nothing to do with the question whether there was a taking in the first place. It is regrettable that the Court has charted a markedly different path today.

Justice Stevens

majority

Rogers v. United States

1998-01-14

https://www.courtlistener.com/opinion/118162/rogers-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118162/

1997-016

We granted certiorari, 520 U.S. 1239 (1997), to decide whether a district court's failure to instruct the jury on an element of an offense is harmless error where, at trial, the defendant admitted that element. Because we have concluded that the question is not fairly presented by the record, we dismiss the writ as improvidently granted. *254 I Petitioner was charged with the knowing possession of an unregistered and unserialized firearm described as "a 9" by 1[3]20444" silencer," App. 6-7, in violation of 26 U.S. C. §§ 5861(d) and (i).[1] Although he claimed that he did not know that the item was in a canvas bag found behind the driver's seat in his pickup truck when he was arrested, he candidly acknowledged that he knew it was a silencer. He repeated this admission during questioning by the police and in his testimony at trial; moreover, it was confirmed by his lawyer during argument to the jury. Under our decision in Staples v. United States, 511 U.S. 600 (1994), the mens rea element of a violation of § 5861(d) requires the Government to prove that the defendant knew that the item he possessed had the characteristics that brought it within the statutory definition of a firearm.[2] It *255 is not, however, necessary to prove that the defendant knew that his possession was unlawful, or that the firearm was unregistered. United States v. Freed, 401 U.S. 601 (1971); see Staples, 511 U. S., at 609. Thus, in this case, petitioner's admission that he knew the item was a silencer constituted evidence sufficient to satisfy the mens rea element of the charged offenses. He nevertheless submits that his conviction is unconstitutional because, without an instruction from the trial judge defining that element of the offense, there has been no finding by the jury that each of the elements of the offense has been proved beyond a reasonable doubt. Relying on Justice Scalia's opinion concurring in the judgment in Carella v. California, 491 U.S. 263, 267 (1989) (per curiam), petitioner contends that "` "the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials."` " Brief for Petitioner 20-21 (quoting Carella, 491 U. S., at 269 (in turn quoting Bollenbach v. United States, 326 U.S. 607, 614 (1946))). The Court of Appeals for the Eleventh Circuit rejected petitioner's argument and affirmed his conviction. 94 F.3d 1519 (1996). The Court of Appeals reasoned that the failure to give an instruction on an element of the offense can be harmless error if the "omission related to an element of the crime that the defendant in any case admitted,"[3] and that in this case petitioner's unequivocal and repeated admissions made it clear that the error was harmless beyond a reasonable doubt. In view of the fact that petitioner's submission relies on the Due Process Clause of the Fifth Amendment *256 and the Sixth Amendment right to a jury trial, as interpreted in cases like In re Winship, 397 U.S. 358 (1970), and Sullivan v. Louisiana, 508 U.S. 275 (1993), it is clear that the Court of Appeals decided an important constitutional question. Given our tradition of avoiding the unnecessary or premature adjudication of such questions, see, e. g., New York City Transit Authority v. Beazer, 440 U.S. 568, 582— 583 (1979), we first consider whether the trial judge failed to give the jury an adequate instruction on the mens rea element of the offense. II Count 2 of the indictment charged that petitioner "knowingly" possessed an unregistered firearm, and Count 3 charged that he "knowingly" possessed a firearm that was not properly identified by a serial number. The trial judge denied petitioner's request for an instruction that defined the Government's burden of establishing "`knowing possession' " as proof that "the defendant willfully and consciously possessed items which he knew to be `firearms.' " App. 12. Apparently assuming that our holding in Staples required such an instruction, the Court of Appeals concluded that the trial judge's denial "effectively omitted from the instructions an essential element of the crime charged under § 5861(d)." 94 F.3d, at 1524. For two reasons, we believe this assumption was unwarranted. First, the tendered instruction was ambiguous. It might have been interpreted to require proof that the defendant knew that his silencer was a "firearm" as defined by the federal statute, not merely that the item possessed certain offending characteristics. Second, and of greater importance, a fair reading of the instructions as actually given did require the jury to find that petitioner knew that he possessed a silencer. In his objections to the instruction that the trial judge originally proposed as a definition of the § 5861(d) offense *257 charged in Count 2, petitioner complained of "a third essential element in there, that being knowledge or knowing." App. 78. In response, the trial judge inserted the word "knowingly" between the words "Defendant" and "possessed" in the instruction defining the necessary mens rea.[4] In instructing the jury, the judge first explained that the statute defined the term "firearm" to include a silencer. He then instructed the jury that the defendant could not be found guilty without proof beyond a reasonable doubt that "the Defendant knowingly possessed a `firearm,' as defined above." Id., at 104. Since the term "firearm" had been "defined above" to include a silencer, that instruction required the jury to determine that the defendant knew that the item he possessed was a silencer.[5] A comparable instruction was given on Count 3.[6] *258 Petitioner also has called our attention to the instruction which told the jury that it was not necessary for the Government to prove that petitioner knew that the item "was a `firearm' which the law requires to be registered." Ibid. Given the fact that the jurors had previously been told that a conviction requires that they find that petitioner knew the item was a silencer, this instruction is best read as merely explaining that a conviction did not require the jury to find that the defendant knew that the law required registration of the silencer. Under our decision in Freed, the Government was entitled to such an instruction. We assume that the trial judge would have been more explicit in explaining the mens rea element of these offenses if Staples had been decided prior to submitting the case to the jury. However, in this case, we are satisfied that the instructions as given did inform the jurors that they must find that the defendant knew that the silencer was in fact a silencer.[7]*259 We therefore conclude that the record does not fairly present the question that we granted certiorari to address. Accordingly, the writ is dismissed as improvidently granted. It is so ordered. Justice O'Connor, with whom Justice Scalia joins, concurring in the result. As the plurality points out, we granted certiorari to address an important issue of constitutional law, and we ought not to decide the question if it has not been cleanly presented. In my view, it is sufficient to dismiss the writ that the instructions tendered by the District Court were ambiguous on whether the jury was asked to find, as is required by Staples v. United States, 511 U.S. 600 (1994), that petitioner "knew that the item he possessed was a silencer," ante, at 257. As a result, it is at least unclear whether the question we intended to address in this case—whether a district court's failure to instruct the jury on an element of an offense is harmless error where, at trial, the defendant admitted that element—is squarely presented. For that reason, I concur in the dismissal of the writ as improvidently granted. I share the plurality's concern, ante this page, n. 7, that trial courts should structure their instructions in cases implicating Staples in a way that prevents the possible interpretation identified by Justice Kennedy in his dissent.

We granted certiorari, to decide whether a district court's failure to instruct the jury on an element of an offense is harmless error where, at trial, the defendant admitted that element. Because we have concluded that the question is not fairly presented by the record, we dismiss the writ as improvidently granted. *254 I Petitioner was charged with the knowing possession of an unregistered and unserialized firearm described as "a 9" by 1[3]20444" silencer," App. 6-7, in violation of 26 U.S. C. 5861(d) and (i).[1] Although he claimed that he did not know that the item was in a canvas bag found behind the driver's seat in his pickup truck when he was arrested, he candidly acknowledged that he knew it was a silencer. He repeated this admission during questioning by the police and in his testimony at trial; moreover, it was confirmed by his lawyer during argument to the jury. Under our decision in the mens rea element of a violation of 5861(d) requires the Government to prove that the defendant knew that the item he possessed had the characteristics that brought it within the statutory definition of a firearm.[2] It *255 is not, however, necessary to prove that the defendant knew that his possession was unlawful, or that the firearm was unregistered. United ; see Thus, in this case, petitioner's admission that he knew the item was a silencer constituted evidence sufficient to satisfy the mens rea element of the charged offenses. He nevertheless submits that his conviction is unconstitutional because, without an instruction from the trial judge defining that element of the offense, there has been no finding by the jury that each of the elements of the offense has been proved beyond a reasonable doubt. Relying on Justice Scalia's opinion concurring in the judgment in petitioner contends that "` "the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials."` " Brief for Petitioner 20-21 )). The Court of Appeals for the Eleventh Circuit rejected petitioner's argument and affirmed his conviction. The Court of Appeals reasoned that the failure to give an instruction on an element of the offense can be harmless error if the "omission related to an element of the crime that the defendant in any case admitted,"[3] and that in this case petitioner's unequivocal and repeated admissions made it clear that the error was harmless beyond a reasonable doubt. In view of the fact that petitioner's submission relies on the Due Process Clause of the Fifth Amendment *256 and the Sixth Amendment right to a jury trial, as interpreted in cases like In re Winship, and it is clear that the Court of Appeals decided an important constitutional question. Given our tradition of avoiding the unnecessary or premature adjudication of such questions, see, e. g., New York City Transit we first consider whether the trial judge failed to give the jury an adequate instruction on the mens rea element of the offense. II Count 2 of the indictment charged that petitioner "knowingly" possessed an unregistered firearm, and Count 3 charged that he "knowingly" possessed a firearm that was not properly identified by a serial number. The trial judge denied petitioner's request for an instruction that defined the Government's burden of establishing "`knowing possession' " as proof that "the defendant willfully and consciously possessed items which he knew to be `firearms.' " App. 12. Apparently assuming that our holding in required such an instruction, the Court of Appeals concluded that the trial judge's denial "effectively omitted from the instructions an essential element of the crime charged under 5861(d)." For two reasons, we believe this assumption was unwarranted. First, the tendered instruction was ambiguous. It might have been interpreted to require proof that the defendant knew that his silencer was a "firearm" as defined by the federal statute, not merely that the item possessed certain offending characteristics. Second, and of greater importance, a fair reading of the instructions as actually given did require the jury to find that petitioner knew that he possessed a silencer. In his objections to the instruction that the trial judge originally proposed as a definition of the 5861(d) offense *257 charged in Count 2, petitioner complained of "a third essential element in there, that being knowledge or knowing." App. 78. In response, the trial judge inserted the word "knowingly" between the words "Defendant" and "possessed" in the instruction defining the necessary mens rea.[4] In instructing the jury, the judge first explained that the statute defined the term "firearm" to include a silencer. He then instructed the jury that the defendant could not be found guilty without proof beyond a reasonable doubt that "the Defendant knowingly possessed a `firearm,' as defined above." Since the term "firearm" had been "defined above" to include a silencer, that instruction required the jury to determine that the defendant knew that the item he possessed was a silencer.[5] A comparable instruction was given on Count 3.[6] *258 Petitioner also has called our attention to the instruction which told the jury that it was not necessary for the Government to prove that petitioner knew that the item "was a `firearm' which the law requires to be registered." Given the fact that the jurors had previously been told that a conviction requires that they find that petitioner knew the item was a silencer, this instruction is best read as merely explaining that a conviction did not require the jury to find that the defendant knew that the law required registration of the silencer. Under our decision in Freed, the Government was entitled to such an instruction. We assume that the trial judge would have been more explicit in explaining the mens rea element of these offenses if had been decided prior to submitting the case to the jury. However, in this case, we are satisfied that the instructions as given did inform the jurors that they must find that the defendant knew that the silencer was in fact a silencer.[7]*259 We therefore conclude that the record does not fairly present the question that we granted certiorari to address. Accordingly, the writ is dismissed as improvidently granted. It is so ordered. Justice O'Connor, with whom Justice Scalia joins, concurring in the result. As the plurality points out, we granted certiorari to address an important issue of constitutional law, and we ought not to decide the question if it has not been cleanly presented. In my view, it is sufficient to dismiss the writ that the instructions tendered by the District Court were ambiguous on whether the jury was asked to find, as is required by that petitioner "knew that the item he possessed was a silencer," ante, at 257. As a result, it is at least unclear whether the question we intended to address in this case—whether a district court's failure to instruct the jury on an element of an offense is harmless error where, at trial, the defendant admitted that element—is squarely presented. For that reason, I concur in the dismissal of the writ as improvidently granted. I share the plurality's concern, ante this page, n. 7, that trial courts should structure their instructions in cases implicating in a way that prevents the possible interpretation identified by Justice Kennedy in his dissent.

Justice Kennedy

dissenting

Rogers v. United States

1998-01-14

https://www.courtlistener.com/opinion/118162/rogers-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118162/

1997-016

The case was submitted to a jury prior to our decision in Staples v. United States, 511 U.S. 600 (1994), and there was a colloquy between defense counsel and the trial court about whether the Government was required to show the defendant knew the object was a silencer. See, e. g. , App. 84-87. A fair reading of the record indicates that, consistent with then-governing Eleventh Circuit precedent, see 94 F.3d 1519, 1523, n. 7 (1996), the trial court ruled this knowledge was not a necessary part of the Government's case. Under the trial court's instructions, the defendant could be found guilty if he "knowingly possessed a `firearm,' as defined above." App. 104. The word "knowingly" in the instruction modifies the word which follows it, viz., "possessed," rather than the instruction's further reference to the statutory definition of "firearm." Although in other circumstances one might argue the instruction was ambiguous, here the trial court agreed with the defendant's understanding of it. The trial court explained to the jury: "What must be proved beyond a reasonable doubt is that the Defendant knowingly possessed the item as charged, that such item was a `firearm' as defined above, and that [it] was not then registered to the Defendant in the National Firearms Registration and Transfer Record." Ibid. As understood by the trial court, ibid., petitioner's counsel, Brief for Petitioner 2, the Solicitor General, Brief for United States 12, and the Court of Appeals, 94 F.3d, at 1523, the instruction told the jury it had to find the defendant knew he possessed the device in question but not that he knew it was a silencer. The plurality proceeds, however, to find not even that the instruction was ambiguous, but that it was a satisfactory implementation of our later announced decision in Staples. And, though the Court in the end does nothing more than order the case dismissed, the plurality by its extensive discussion suggests, in effect, that all convictions based on this *261 form of instruction must be affirmed. This is a substantive point; it was neither briefed nor argued; it is contrary to a commonsense reading of the instruction;and it tends to diminish the force of Staples itself. If the plurality wishes to persist in its interpretation of the instruction, it ought to issue a full opinion addressing the merits of the conviction, rather than mask a substantive determination in its opinion supporting dismissal. As things stand, it brings little credit to us to get rid of the case by a strained and novel reading of the instruction—a reading quite unsupportable on the record—after we granted certiorari and expended the Court's resources to determine a different and important issue of substantive criminal law. The petitioner, whose conviction now stands based on what is for practical purposes an affirmance on a theory no one has suggested until now, will be hard put to understand the plurality's cavalier refusal to address his substantive arguments. I dissent from the order dismissing the case.

The case was submitted to a jury prior to our decision in and there was a colloquy between defense counsel and the trial court about whether the Government was required to show the defendant knew the object was a silencer. See, e. g. App. 84-87. A fair reading of the record indicates that, consistent with then-governing Eleventh Circuit precedent, see the trial court ruled this knowledge was not a necessary part of the Government's case. Under the trial court's instructions, the defendant could be found guilty if he "knowingly possessed a `firearm,' as defined above." App. 104. The word "knowingly" in the instruction modifies the word which follows it, viz., "possessed," rather than the instruction's further reference to the statutory definition of "firearm." Although in other circumstances one might argue the instruction was ambiguous, here the trial court agreed with the defendant's understanding of it. The trial court explained to the jury: "What must be proved beyond a reasonable doubt is that the Defendant knowingly possessed the item as charged, that such item was a `firearm' as defined above, and that [it] was not then registered to the Defendant in the National Firearms Registration and Transfer Record." As understood by the trial court, ibid., petitioner's counsel, Brief for Petitioner 2, the Solicitor General, Brief for United States 12, and the Court of the instruction told the jury it had to find the defendant knew he possessed the device in question but not that he knew it was a silencer. The plurality proceeds, however, to find not even that the instruction was ambiguous, but that it was a satisfactory implementation of our later announced decision in Staples. And, though the Court in the end does nothing more than order the case dismissed, the plurality by its extensive discussion suggests, in effect, that all convictions based on this *261 form of instruction must be affirmed. This is a substantive point; it was neither briefed nor argued; it is contrary to a commonsense reading of the instruction;and it tends to diminish the force of Staples itself. If the plurality wishes to persist in its interpretation of the instruction, it ought to issue a full opinion addressing the merits of the conviction, rather than mask a substantive determination in its opinion supporting dismissal. As things stand, it brings little credit to us to get rid of the case by a strained and novel reading of the instruction—a reading quite unsupportable on the record—after we granted certiorari and expended the Court's resources to determine a different and important issue of substantive criminal law. The petitioner, whose conviction now stands based on what is for practical purposes an affirmance on a theory no one has suggested until now, will be hard put to understand the plurality's cavalier refusal to address his substantive arguments. I dissent from the order dismissing the case.

Justice Ginsburg

majority

Timbs v. Indiana

2019-02-20

https://www.courtlistener.com/opinion/4591916/timbs-v-indiana/

https://www.courtlistener.com/api/rest/v3/clusters/4591916/

2018-030

Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to com- mit theft. The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about $42,000. Timbs paid for the vehicle with money he re- ceived from an insurance policy when his father died. The State engaged a private law firm to bring a civil suit for forfeiture of Timbs’s Land Rover, charging that the vehicle had been used to transport heroin. After Timbs’s guilty plea in the criminal case, the trial court held a hearing on the forfeiture demand. Although finding that Timbs’s vehicle had been used to facilitate violation of a criminal statute, the court denied the requested forfeiture, observing that Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug convic- tion. Forfeiture of the Land Rover, the court determined, 2 TIMBS v. INDIANA Opinion of the Court would be grossly disproportionate to the gravity of Timbs’s offense, hence unconstitutional under the Eighth Amend- ment’s Excessive Fines Clause. The Court of Appeals of Indiana affirmed that determination, but the Indiana Supreme Court reversed. 84 N.E.3d 1179 (2017). The Indiana Supreme Court did not decide whether the forfeit- ure would be excessive. Instead, it held that the Exces- sive Fines Clause constrains only federal action and is inapplicable to state impositions. We granted certiorari. 585 U. S. __ (2018). The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection appli- cable to the States under the Fourteenth Amendment’s Due Process Clause? Like the Eighth Amendment’s pro- scriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal- law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U.S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment. I A When ratified in 1791, the Bill of Rights applied only to the Federal Government. Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). “The constitutional Amendments adopted in the aftermath of the Civil War,” however, “fundamentally altered our country’s federal system.” McDonald, 561 U.S., at 754. With only “a hand- ful” of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protec- tions contained in the Bill of Rights, rendering them appli- Cite as: 586 U. S. ____ (2019) 3 Opinion of the Court cable to the States. Id., at 764–765, and nn. 12–13. A Bill of Rights protection is incorporated, we have explained, if it is “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” Id., at 767 (internal quotation marks omitted; emphasis deleted). Incorporated Bill of Rights guarantees are “enforced against the States under the Fourteenth Amendment according to the same standards that protect those per- sonal rights against federal encroachment.” Id., at 765 (internal quotation marks omitted). Thus, if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.1 B Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Taken together, these Clauses place “parallel limitations” on “the power of those entrusted with the criminal-law function of government.” Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 263 (1989) (quoting Ingraham v. Wright, 430 U.S. 651, 664 (1977)). Directly at issue here is the phrase “nor excessive fines imposed,” which “limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” United States v. Bajakajian, 524 U.S. 321, 327–328 (1998) (quot- —————— 1 The sole exception is our holding that the Sixth Amendment re- quires jury unanimity in federal, but not state, criminal proceedings. Apodaca v. Oregon, 406 U.S. 404 (1972). As we have explained, that “exception to th[e] general rule . . . was the result of an unusual divi- sion among the Justices,” and it “does not undermine the well- established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” McDonald, 561 U.S., at 766, n. 14. 4 TIMBS v. INDIANA Opinion of the Court ing Austin v. United States, 509 U.S. 602, 609–610 (1993)). The Fourteenth Amendment, we hold, incorpo- rates this protection. The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .” §20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225).2 As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” Browning- Ferris, 492 U.S., at 271. See also 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (“[N]o man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear . . . .”). But cf. Bajakajian, 524 U.S., at 340, n. 15 (taking no position on the question whether a person’s income and wealth are relevant considerations in judging the exces- siveness of a fine). Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, har- ass their political foes, and indefinitely detain those un- able to pay. E.g., The Grand Remonstrance ¶¶17, 34 (1641), in The Constitutional Documents of the Puritan Revolution 1625–1660, pp. 210, 212 (S. Gardiner ed., 3d ed. rev. 1906); Browning-Ferris, 492 U.S., at 267. When James II was overthrown in the Glorious Revolution, the —————— 2 “Amercements were payments to the Crown, and were required of individuals who were ‘in the King’s mercy,’ because of some act offen- sive to the Crown.” Browning-Ferris, 492 U.S., at 269. “[T]hough fines and amercements had distinct historical antecedents, they served fundamentally similar purposes—and, by the seventeenth and eight- eenth centuries, the terms were often used interchangeably.” Brief for Eighth Amendment Scholars as Amici Curiae 12. Cite as: 586 U. S. ____ (2019) 5 Opinion of the Court attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.” 1 Wm. & Mary, ch. 2, §10, in 3 Eng. Stat. at Large 441 (1689). Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Adoption of the Excessive Fines Clause was in tune not only with English law; the Clause resonated as well with similar colonial-era provisions. See, e.g., Pa. Frame of Govt., Laws Agreed Upon in England, Art. XVIII (1682), in 5 Federal and State Constitutions 3061 (F. Thorpe ed. 1909) (“[A]ll fines shall be moderate, and saving men’s contenements, merchandize, or wainage.”). In 1787, the constitutions of eight States—accounting for 70% of the U. S. population—forbade excessive fines. Calabresi, Agudo, & Dore, State Bills of Rights in 1787 and 1791, 85 S. Cal. L. Rev. 1451, 1517 (2012). An even broader consensus obtained in 1868 upon ratifi- cation of the Fourteenth Amendment. By then, the consti- tutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines. Calabresi & Agudo, Individual Rights Under State Consti- tutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 82 (2008). Notwithstanding the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuses continued. Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on “vagrancy” and other dubious offenses. See, e.g., Mississippi Vagrant Law, 6 TIMBS v. INDIANA Opinion of the Court Laws of Miss. §2 (1865), in 1 W. Fleming, Documentary History of Reconstruction 283–285 (1950). When newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead. E.g., id. §5; see Finkelman, John Bingham and the Background to the Fourteenth Amendment, 36 Akron L. Rev 671, 681–685 (2003) (describing Black Codes’ use of fines and other methods to “replicate, as much as possible, a system of involuntary servitude”). Congressional debates over the Civil Rights Act of 1866, the joint resolution that became the Fourteenth Amendment, and similar measures re- peatedly mentioned the use of fines to coerce involuntary labor. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 443 (1866); id., at 1123–1124. Today, acknowledgment of the right’s fundamental nature remains widespread. As Indiana itself reports, all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality. Brief in Opposition 8–9. Indeed, Indiana explains that its own Supreme Court has held that the Indiana Constitution should be interpreted to impose the same restrictions as the Eighth Amendment. Id., at 9 (citing Norris v. State, 271 Ind. 568, 576, 394 N.E.2d 144, 150 (1979)). For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago. See Browning-Ferris, 492 U.S., at 267. Even absent a politi- cal motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” Harmelin v. Michigan, 501 U.S. 957, 979, n. 9 (1991) (opinion of Scalia, J.) (“it Cite as: 586 U. S. ____ (2019) 7 Opinion of the Court makes sense to scrutinize governmental action more closely when the State stands to benefit”). This concern is scarcely hypothetical. See Brief for American Civil Liberties Union et al. as Amici Curiae 7 (“Perhaps because they are politically easier to impose than generally applicable taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue.”). In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Exces- sive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald, 561 U.S., at 767 (internal quotation marks omitted; emphasis deleted). II The State of Indiana does not meaningfully challenge the case for incorporating the Excessive Fines Clause as a general matter. Instead, the State argues that the Clause does not apply to its use of civil in rem forfeitures because, the State says, the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted. In Austin v. United States, 509 U.S. 602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially puni- tive. Austin arose in the federal context. But when a Bill of Rights protection is incorporated, the protection applies “identically to both the Federal Government and the States.” McDonald, 561 U.S., at 766, n. 14. Accordingly, to prevail, Indiana must persuade us either to overrule our decision in Austin or to hold that, in light of Austin, the Excessive Fines Clause is not incorporated because the Clause’s application to civil in rem forfeitures is neither fundamental nor deeply rooted. The first argument is not 8 TIMBS v. INDIANA Opinion of the Court properly before us, and the second misapprehends the nature of our incorporation inquiry. A In the Indiana Supreme Court, the State argued that forfeiture of Timbs’s SUV would not be excessive. See Brief in Opposition 5. It never argued, however, that civil in rem forfeitures were categorically beyond the reach of the Excessive Fines Clause. The Indiana Supreme Court, for its part, held that the Clause did not apply to the States at all, and it nowhere addressed the Clause’s appli- cation to civil in rem forfeitures. See 84 N.E.3d 1179. Accordingly, Timbs sought our review of the question “[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Four- teenth Amendment.” Pet. for Cert. i. In opposing review, Indiana attempted to reformulate the question to ask “[w]hether the Eighth Amendment’s Excessive Fines Clause restricts States’ use of civil asset forfeitures.” Brief in Opposition i. And on the merits, Indiana has argued not only that the Clause is not incorporated, but also that Austin was wrongly decided. Respondents’ “right, in their brief in opposition, to restate the questions presented,” however, “does not give them the power to expand [those] questions.” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 279, n. 10 (1993) (emphasis deleted). That is particularly the case where, as here, a respondent’s reformulation would lead us to address a question neither pressed nor passed upon below. Cf. Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view . . . .”). We thus decline the State’s invita- tion to reconsider our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of the Eighth Amendment when they are at least partially punitive. Cite as: 586 U. S. ____ (2019) 9 Opinion of the Court B As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection con- tained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated. For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain common- place social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” Id., at ___ (slip op., at 1). We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted. See also, e.g., Riley v. California, 573 U.S. 373 (2014) (holding, without sepa- rately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinar- ily violates the Fourth Amendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorpo- rated remains unchanged. * * * For the reasons stated, the judgment of the Indiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Cite as: 586 U. S. ____ (2019) 1 GORSUCH, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 17–1091 _________________ TYSON TIMBS, PETITIONER v.

Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to com- mit theft. The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about $42,000. Timbs paid for the vehicle with money he re- ceived from an insurance policy when his father died. The State engaged a private law firm to bring a civil suit for forfeiture of Timbs’s Land Rover, charging that the vehicle had been used to transport heroin. After Timbs’s guilty plea in the criminal case, the trial court held a hearing on the forfeiture demand. Although finding that Timbs’s vehicle had been used to facilitate violation of a criminal statute, the court denied the requested forfeiture, observing that Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug convic- tion. Forfeiture of the Land Rover, the court determined, 2 TIMBS v. INDIANA Opinion of the Court would be grossly disproportionate to the gravity of Timbs’s offense, hence unconstitutional under the Eighth Amend- ment’s Excessive Fines Clause. The Court of Appeals of Indiana affirmed that determination, but the Indiana Supreme Court reversed. The Indiana Supreme Court did not decide whether the forfeit- ure would be excessive. Instead, it held that the Exces- sive Fines Clause constrains only federal action and is inapplicable to state impositions. We granted certiorari. 585 U. S. (2018). The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection appli- cable to the States under the Fourteenth Amendment’s Due Process Clause? Like the Eighth Amendment’s pro- scriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal- law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” v. Chicago, (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment. I A When ratified in 1791, the Bill of Rights applied only to the Federal Government. Barron ex rel. “The constitutional Amendments adopted in the aftermath of the Civil War,” however, “fundamentally altered our country’s federal system.” With only “a hand- ful” of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protec- tions contained in the Bill of Rights, rendering them appli- Cite as: 586 U. S. (2019) 3 Opinion of the Court cable to the States. at 764–765, and nn. 12–13. A Bill of Rights protection is incorporated, we have explained, if it is “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” at (internal quotation marks omitted; emphasis deleted). Incorporated Bill of Rights guarantees are “enforced against the States under the Fourteenth Amendment according to the same standards that protect those per- sonal rights against federal encroachment.” (internal quotation marks omitted). Thus, if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.1 B Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Taken together, these Clauses place “parallel limitations” on “the power of those entrusted with the criminal-law function of government.” Browning- Industries of Vt., ). Directly at issue here is the phrase “nor excessive fines imposed,” which “limits the government’s power to extract payments, whether in cash or in kind, ‘as punishment for some offense.’ ” United As we have explained, that “exception to th[e] general rule was the result of an unusual divi- sion among the Justices,” and it “does not undermine the well- established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government.” 561 U.S., at 766, n. 14. 4 TIMBS v. INDIANA Opinion of the Court ing 609–610 ). The Fourteenth Amendment, we hold, incorpo- rates this protection. The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement” 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225).2 As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” Browning- See also 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (“[N]o man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear”). But cf. n. 15 (taking no position on the question whether a person’s income and wealth are relevant considerations in judging the exces- siveness of a fine). Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, har- ass their political foes, and indefinitely detain those un- able to pay. E.g., The Grand Remonstrance ¶¶17, 34 (1641), in The Constitutional Documents of the Puritan Revolution 1625–1660, pp. 210, 212 (S. Gardiner ed., 3d ed. rev. 1906); Browning-, When James II was overthrown in the Glorious Revolution, the —————— 2 “Amercements were payments to the Crown, and were required of individuals who were ‘in the King’s mercy,’ because of some act offen- sive to the Crown.” Browning-, “[T]hough fines and amercements had distinct historical antecedents, they served fundamentally similar purposes—and, by the seventeenth and eight- eenth centuries, the terms were often used interchangeably.” Brief for Eighth Amendment Scholars as Amici Curiae 12. Cite as: 586 U. S. (2019) 5 Opinion of the Court attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.” 1 Wm. & Mary, ch. 2, in 3 Eng. Stat. at Large 441 (1689). Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Adoption of the Excessive Fines Clause was in tune not only with English law; the Clause resonated as well with similar colonial-era provisions. See, e.g., Pa. Frame of Govt., Laws Agreed Upon in England, Art. XVIII (1682), in 5 Federal and State Constitutions 3061 (F. Thorpe ed. 1909) (“[A]ll fines shall be moderate, and saving men’s contenements, merchandize, or wainage.”). In 1787, the constitutions of eight States—accounting for 70% of the U. S. population—forbade excessive fines. Calabresi, Agudo, & Dore, State Bills of Rights in 1787 and 1791, 85 S. Cal. L. Rev. 1451, 1517 (2012). An even broader consensus obtained in 1868 upon ratifi- cation of the Fourteenth Amendment. By then, the consti- tutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines. Calabresi & Agudo, Individual Rights Under State Consti- tutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 82 (2008). Notwithstanding the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuses continued. Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on “vagrancy” and other dubious offenses. See, e.g., Mississippi Vagrant Law, 6 TIMBS v. INDIANA Opinion of the Court Laws of Miss. (1865), in 1 W. Fleming, Documentary History of Reconstruction 283–285 (1950). When newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead. E.g., see Finkelman, John Bingham and the Background to the Fourteenth Amendment, 36 Akron L. Rev 671, 681–685 (2003) (describing Black Codes’ use of fines and other methods to “replicate, as much as possible, a system of involuntary servitude”). Congressional debates over the Civil Rights Act of 1866, the joint resolution that became the Fourteenth Amendment, and similar measures re- peatedly mentioned the use of fines to coerce involuntary labor. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 443 (1866); at 1123–1124. Today, acknowledgment of the right’s fundamental nature remains widespread. As Indiana itself reports, all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality. Brief in Opposition 8–9. Indeed, Indiana explains that its own Supreme Court has held that the Indiana Constitution should be interpreted to impose the same restrictions as the Eighth Amendment. (citing 150 (1979)). For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago. See Browning-, Even absent a politi- cal motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” (“it Cite as: 586 U. S. (2019) 7 Opinion of the Court makes sense to scrutinize governmental action more closely when the State stands to benefit”). This concern is scarcely hypothetical. See Brief for American Civil Liberties Union et al. as Amici Curiae 7 (“Perhaps because they are politically easier to impose than generally applicable taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue.”). In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Exces- sive Fines Clause is overwhelming. Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” 561 U.S., at (internal quotation marks omitted; emphasis deleted). II The State of Indiana does not meaningfully challenge the case for incorporating the Excessive Fines Clause as a general matter. Instead, the State argues that the Clause does not apply to its use of civil in rem forfeitures because, the State says, the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted. In however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially puni- tive. Austin arose in the federal context. But when a Bill of Rights protection is incorporated, the protection applies “identically to both the Federal Government and the States.” n. 14. Accordingly, to prevail, Indiana must persuade us either to overrule our decision in Austin or to hold that, in light of Austin, the Excessive Fines Clause is not incorporated because the Clause’s application to civil in rem forfeitures is neither fundamental nor deeply rooted. The first argument is not 8 TIMBS v. INDIANA Opinion of the Court properly before us, and the second misapprehends the nature of our incorporation inquiry. A In the Indiana Supreme Court, the State argued that forfeiture of Timbs’s SUV would not be excessive. See Brief in Opposition 5. It never argued, however, that civil in rem forfeitures were categorically beyond the reach of the Excessive Fines Clause. The Indiana Supreme Court, for its part, held that the Clause did not apply to the States at all, and it nowhere addressed the Clause’s appli- cation to civil in rem forfeitures. See Accordingly, Timbs sought our review of the question “[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Four- teenth Amendment.” Pet. for Cert. i. In opposing review, Indiana attempted to reformulate the question to ask “[w]hether the Eighth Amendment’s Excessive Fines Clause restricts States’ use of civil asset forfeitures.” Brief in Opposition i. And on the merits, Indiana has argued not only that the Clause is not incorporated, but also that Austin was wrongly decided. Respondents’ “right, in their brief in opposition, to restate the questions presented,” however, “does not give them the power to expand [those] questions.” 506 U.S. That is particularly the case where, as here, a respondent’s reformulation would lead us to address a question neither pressed nor passed upon below. Cf. (“[W]e are a court of review, not of first view”). We thus decline the State’s invita- tion to reconsider our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of the Eighth Amendment when they are at least partially punitive. Cite as: 586 U. S. (2019) 9 Opinion of the Court B As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection con- tained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated. For example, in Packingham v. North Carolina, 582 U. S. we held that a North Carolina statute prohibiting registered sex offenders from accessing certain common- place social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” at (slip op., at 1). We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted. See also, e.g., Riley v. California, (holding, without sepa- rately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinar- ily violates the Fourth Amendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorpo- rated remains unchanged. * * * For the reasons stated, the judgment of the Indiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Cite as: 586 U. S. (2019) 1 GORSUCH, J., concurring SUPREME COURT OF THE UNITED STATES No. 17–1091 TYSON TIMBS, PETITIONER v.

Justice Souter

majority

Nebraska v. Wyoming

1995-05-30

https://www.courtlistener.com/opinion/117940/nebraska-v-wyoming/

https://www.courtlistener.com/api/rest/v3/clusters/117940/

1994-062

Since 1945, a decree of this Court has rationed the North Platte River among users in Wyoming, Nebraska, and Colorado. By petition in 1986, Nebraska again brought the matter before us, and we appointed a Special Master to conduct the appropriate proceedings. In his Third Interim Report on Motions to Amend Pleadings (Sept. 9, 1994) (hereinafter Third Interim Report), the Master has made recommendations for rulings on requests for leave to amend filed by Nebraska and Wyoming. We now have before us the parties' exceptions to the Master's report, each of which we overrule. I The North Platte River is a nonnavigable stream rising in northern Colorado and flowing through Wyoming into Nebraska, where it joins with the South Platte to form the Platte River. In 1934, Nebraska invoked our original jurisdiction under the Constitution, Art. III, § 2, cl. 2, by suing Wyoming for an equitable apportionment of the North Platte. The United States had leave to intervene, Colorado was impleaded as a defendant, and the ensuing litigation culminated *5 in the decision and decree in Nebraska v. Wyoming, 325 U.S. 589 (1945) (Nebraska I) . We concluded that the doctrine of prior appropriation should serve as the general "guiding principle" in our allocation of the North Platte's flows, id., at 618, but resisted an inflexible application of that doctrine in rendering four principal rulings. Ibid. First, we enjoined Colorado and Wyoming from diverting or storing water above prescribed amounts, meant to reflect existing uses, on the river's upper reaches. Id., at 621-625, 665-666. Second, we set priorities among Wyoming canals that divert water for the use of Nebraska irrigators and federal reservoirs, also in Wyoming, that store water for Wyoming and Nebraska irrigation districts. Id., at 625-637, 666-667. Third, we apportioned the natural irrigation-season flows in a stretch of river that proved to be the principal focus of the litigation (the "pivotal reach" of 41 miles between the Guernsey Dam in Wyoming and the Tri-State Dam in Nebraska), allocating 75 percent of those flows to Nebraska and 25 percent to Wyoming. Id., at 637-654, 667-669. Finally, we held that any party could apply for amendment of the decree or for further relief. Id., at 671 (Decree Paragraph XIII). With the parties' stipulation, the decree has since been modified once, to account for the construction of the Glendo Dam and Reservoir. Nebraska v. Wyoming, 345 U.S. 981 (1953). Nebraska returned to this Court in 1986 seeking additional relief under the decree, alleging that Wyoming was threatening its equitable apportionment, primarily by planning water projects on tributaries that have historically added significant flows to the pivotal reach. We granted Nebraska leave to file its petition, 479 U.S. 1051 (1987), and allowed Wyoming to file a counterclaim, 481 U.S. 1011 (1987). Soon thereafter, Wyoming made a global motion for summary judgment, which the Master in his First Interim Report recommended be denied. See First Interim Report of Special Master, O. T. 1988, No. 108 Orig. After engaging *6 in discovery, Nebraska, Wyoming, Colorado, and the United States all filed further summary judgment motions. In his Second Interim Report, the Master recommended that we grant the motions of the United States and Nebraska in part, but that we otherwise deny summary relief. See Second Interim Report of Special Master on Motions for Summary Judgment and Renewed Motions for Intervention, O. T. 1991, No. 108 Orig. We overruled the parties' exceptions. Nebraska v. Wyoming, 507 U.S. 584 (1993) (Nebraska II). Nebraska and Wyoming then sought leave to amend their pleadings, and we referred those requests to the Master. The Amended Petition that Nebraska seeks to file contains four counts. Count I alleges that Wyoming is depleting the natural flows of the North Platte and asks for an injunction against constructing storage capacity on the river's tributaries and "permitting unlimited depletion of groundwater that is hydrologically connected to the North Platte River and its tributaries." App. to Third Interim Report D-2 to D-7. Count II alleges that the United States is operating the Glendo Reservoir in violation of the decree and seeks an order holding the United States to the decree. Id., at D-7 to D-8. Count III alleges that Wyoming water projects and groundwater development threaten to deplete the Laramie River's contributions to the North Platte, and asks the Court to "specify that the inflows of the Laramie River below Wheatland are a component of the equitable apportionment of the natural flows in the [pivotal] reach, 75% to Nebraska and 25% to Wyoming, and [to] enjoin the State of Wyoming from depleting Nebraska's equitable share of the Laramie River's contribution to the North Platte River . . . ." Id., at D-8 to D-12. Count IV seeks an equitable apportionment of the North Platte's nonirrigation season flows. Id., at D-12 to D-16. The Master recommended that we allow Nebraska to substitute the first three counts of its Amended Petition for its current petition, but that we deny leave to file Count IV. Neither Nebraska nor the United States has *7 excepted to the Master's recommendation, whereas Wyoming has filed three exceptions, set out in detail below. Wyoming proposes to amend its pleading with four counterclaims and five cross-claims. The First Counterclaim and Cross-Claim allege that Nebraska and the United States have failed to recognize beneficial use limitations on diversions by Nebraska canals, and that Nebraska (with the acquiescence of the United States) has violated the equitable apportionment by demanding natural flow and storage water from sources above Tri-State Dam and diverting them for use below Tri-State Dam. App. to Third Interim Report E-3 to E-6, E-8 to E-10. Wyoming's Second and Third Counterclaims and Cross-Claims seek enforcement or modification of Paragraph XVII of the decree, which deals with the operation of the Glendo Reservoir and is also the subject of Count II of Nebraska's Amended Petition. Id., at E-6 to E-7, E-10 to E-11. By its Fourth Counterclaim and Fifth Cross-Claim, Wyoming asks the Court to modify the decree to leave the determination of carriage (or transportation) losses to state officials under state law. Id., at E-7 to E-8, E-12. Finally, Wyoming's Fourth Cross-Claim alleges that the United States has failed to operate its storage reservoirs in accordance with federal and state law and its own storage water contracts, thus upsetting the very basis of the decree's equitable apportionment. Id., at E-11 to E-12. The Master recommended that we allow Wyoming to substitute its Second through Fourth Counterclaims and its Second through Fifth Cross-Claims for its current pleadings, but that we deny leave to file Wyoming's First Counterclaim and Cross-Claim insofar as they seek to impose a beneficial use limitation on Nebraska's diversions of natural flow. The United States and Nebraska except to the recommendation to allow Wyoming to file its Fourth Cross-Claim. Wyoming excepts to the Master's recommended disposition of its First Counterclaim and Cross-Claim. In all, then, Wyoming has filed four exceptions to the Master's recommendations and *8 the United States and Nebraska a single (and largely overlapping) exception each. II We have found that the solicitude for liberal amendment of pleadings animating the Federal Rules of Civil Procedure, Rule 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962), does not suit cases within this Court's original jurisdiction. Ohio v. Kentucky, 410 U.S. 641, 644 (1973); cf. this Court's Rule 17.2. The need for a less complaisant standard follows from our traditional reluctance to exercise original jurisdiction in any but the most serious of circumstances, even where, as in cases between two or more States, our jurisdiction is exclusive. Mississippi v. Louisiana, 506 U.S. 73, 77 (1992) ("`The model case for invocation of this Court's original jurisdiction is a dispute between States of such seriousness that it would amount to casus belli if the States were fully sovereign,' " quoting Texas v. New Mexico, 462 U.S. 554, 571, n. 18 (1983)); New York v. New Jersey, 256 U.S. 296, 309 (1921) ("Before this court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one State at the suit of another, the threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence"). Our requirement that leave be obtained before a complaint may be filed in an original action, see this Court's Rule 17.3, serves an important gatekeeping function, and proposed pleading amendments must be scrutinized closely in the first instance to see whether they would take the litigation beyond what we reasonably anticipated when we granted leave to file the initial pleadings. See Ohio v. Kentucky, supra, at 644. Accordingly, an understanding of the scope of this litigation as envisioned under the initial pleadings is the critical first step in our consideration of the motions to amend. We have, in fact, already discussed the breadth of the current litigation at some length in reviewing the Special Master's First and Second Interim Reports, Nebraska II, 507 U. S., *9 at 590-593, where we concluded that this litigation is not restricted "solely to enforcement of rights determined in the prior proceedings," id., at 592. To the contrary, we observed that in Paragraph XIII of the decree, we had retained jurisdiction "to modify the decree to answer unresolved questions and to accommodate `change[s] in conditions'—a phrase sufficiently broad to encompass not only changes in water supply, . . . but also new development that threatens a party's interests." Id., at 591, citing Nebraska I, 325 U. S., at 620. The parties may therefore not only seek to enforce rights established by the decree, but may also ask for "a reweighing of equities and an injunction declaring new rights and responsibilities . . . ." 507 U.S., at 593. We made it clear, however, that while "Paragraph XIII perhaps eases a [party's] burden of establishing, as an initial matter, that a claim [for modification] is `of that character and dignity which makes the controversy a justiciable one under our original jurisdiction,' " ibid. , quoting Nebraska I, supra, at 610, the "[party] still must make a showing of substantial injury to be entitled to relief," 507 U.S., at 593. We think the Master appreciated these conclusions about the scope of this litigation when he assessed the proposed amendments to pleadings to see whether they sought enforcement of the decree or plausibly alleged a change in conditions sufficient to justify its modification. See Third Interim Report 33-36. The parties, of course, do not wholly agree with us, as they indicate by their exceptions, to which we turn. III A Wyoming's First Amended Counterclaim alleges that "Nebraska has circumvented and violated the equitable apportionment by demanding natural flow water for diversion by irrigation canals at and above Tri-State Dam in excess of the beneficial use requirements of the Nebraska lands entitled to *10 water from those canals under the Decree .. . ." App. to Third Interim Report E-4. Wyoming's First Amended Cross-Claim alleges that the United States "has circumvented and violated the equitable apportionment, and continues to do so, by operating the federal reservoirs to deliver natural flow water for diversion by Nebraska irrigation canals at and above Tri-State Dam in excess of the beneficial use requirements of the lands entitled to water from those canals under the Decree . . . ." Id., at E-8. The Master recommended that we deny leave to inject these claims into the litigation, concluding that Wyoming's object is to transform the 1945 apportionment from a proportionate sharing of the natural flows in the pivotal reach to a scheme based on the beneficial use requirements of the pivotal reach irrigators. Third Interim Report 55-64. Wyoming excepts to the recommendation, claiming that its amendments do no more than elaborate on the suggestion made in the counterclaim that we allowed it to file in 1987, that Nebraska irrigators are wasting water diverted in the pivotal reach. But there is more to the amendments than that, and we agree with the Master that Wyoming in reality is calling for a fundamental modification of the settled apportionment scheme established in 1945, without alleging a change in conditions that would arguably justify so bold a step. In Nebraska II we rejected any notion that our 1945 decision and decree "impose absolute ceilings on diversions by canals taking in the pivotal reach." 507 U.S., at 602. We found that although the irrigation requirements of the lands served by the canals were calculated in the prior proceedings, those calculations were used to "determin[e] the appropriate apportionment of the pivotal reach, not to impose a cap on the canals' total diversions, either individually or cumulatively." Ibid. This was clearly indicated, we observed, by the fact that "Paragraph V of the decree, which sets forth the apportionment, makes no mention of diversion ceilings and expressly states that Nebraska is free to allocate *11 its share among its canals as it sees fit." Id., at 603, citing Nebraska I, supra, at 667. These conclusions about our 1945 decision and decree expose the true nature of Wyoming's amended claims. Simply put, Wyoming seeks to replace a simple apportionment scheme with one in which Nebraska's share would be capped at the volume of probable beneficial use, presumably to Wyoming's advantage. Wyoming thus seeks nothing less than relitigation of the "main controversy" of the 1945 litigation, the equitable apportionment of irrigation-season flows in the North Platte's pivotal reach. See 325 U.S., at 637-638. Under any circumstance, we would be profoundly reluctant to revisit such a central question supposedly resolved 50 years ago, and there can be no temptation to do so here, in the absence of any allegation of a change in conditions that might warrant reexamining the decree's apportionment scheme. Wyoming's first exception is overruled.[1] B Counts I and III of Nebraska's Amended Petition would have us modify the decree to enjoin proposed developments by Wyoming on the North Platte's tributaries, see App. to Third Interim Report D-4 to D-6, D-9 to D-11, on the theory *12 that these will deplete the tributaries' contributions to the mainstem, and hence upset "the equitable balance of the North Platte River established in the Decree," id., at D-5, D-10. Wyoming's second exception takes issue with the Master's stated intention to consider a broad array of downstream interests in passing on Nebraska's claims, and to hear evidence of injury not only to downstream irrigators, but also to wildlife and wildlife habitat. Third Interim Report 14, 17, 19, 26. Consideration of this evidence, Wyoming argues, would run counter to our denial of two earlier motions to amend filed by Nebraska: its 1988 motion, 485 U.S. 931, by which it expressly sought modification of the decree to make Wyoming and Colorado share the burden of providing instream flows necessary to preserve critical wildlife habitat, and its 1991 motion, see 507 U.S. 1049 (1993), in which it sought an apportionment of nonirrigation-season flows. Wyoming also suggests that allegations of injury to wildlife are as yet purely speculative and would be best left to other forums. Wyoming's arguments are not persuasive. To assign an affirmative obligation to protect wildlife is one thing; to consider all downstream effects of upstream development when assessing threats to equitable apportionment is quite another. As we have discussed above, Nebraska II makes it clear that modification of the decree (as by enjoining developments on tributaries) will follow only upon a "balancing of equities," 507 U.S., at 592, and that Nebraska will have to make a showing of "substantial injury" before we will grant it such relief, id., at 593. There is no warrant for placing entire categories of evidence beyond Nebraska's reach when it attempts to satisfy this burden, which is far from insignificant. Nor does our resistance to Nebraska's efforts to bring about broad new apportionments (as of nonirrigation-season flows) alter this conclusion. Here, Nebraska seeks only to have us enjoin discrete Wyoming developments. If Nebraska *13 is to have a fair opportunity to present its case for our doing so, we do not understand how we can preclude it from setting forth that evidence of environmental injury, or consign it to producing that evidence in some other forum, since this is the only Court in which Nebraska can challenge the Wyoming projects. And as for Wyoming's argument that any proof of environmental injury that Nebraska will present will be highly speculative, the point is urged prematurely. Purely speculative harms will not, of course, carry Nebraska's burden of showing substantial injury, but at this stage we certainly have no basis for judging Nebraska's proof, and no justification for denying Nebraska the chance to prove what it can. C Wyoming's third exception is to the Master's recommendation to allow Nebraska to proceed with its challenge to Wyoming's actions on Horse Creek, a tributary that flows into the North Platte below the Tri-State Dam. In Count I of its Amended Petition, Nebraska alleges that Wyoming is "presently violating and threatens to violate" Nebraska's equitable apportionment "by depleting the natural flows of the North Platte River by such projects as . . . reregulating reservoirs and canal linings in the . . . Horse Creek Conservancy District." App. to Third Interim Report D-5. Nebraska asks for an injunction against Wyoming's depletions of the creek. Wyoming argues that the claim is simply not germane to this case, since Horse Creek feeds into the North Platte below the apportioned reach, the downstream boundary of which is the Tri-State Dam. It is clear, however, that the territorial scope of the case extends downstream of the pivotal reach. In the 1945 decision and decree, we held against apportioning that stretch of river between the Tri-State Dam and Bridgeport, Nebraska, not because it fell outside the geographic confines of the case, but because its needed water was "adequately supplied from return flows and other *14 local sources." Nebraska I, 325 U. S., at 654-655. In so concluding, we had evidence that return flows from Horse Creek provided an average annual contribution of 21,900 acre-feet of water to the North Platte during the irrigation season. Third Interim Report 42. Now Nebraska alleges that Wyoming's actions threaten serious depletion of these return flows, with consequent injury to its interests in the region below the Tri-State Dam. These allegations describe a change in conditions sufficient, if proven, to warrant the injunctive relief sought, and Nebraska is accordingly entitled to proceed with its claim. Wyoming's third exception is overruled. D In Counts I and III of its Amended Petition, Nebraska alleges that increased groundwater pumping within Wyoming threatens substantial depletion of the natural flow of the river. This allegation is obviously one of a change in conditions posing a threat of significant injury, and Wyoming concedes that "groundwater pumping in Wyoming can and does in fact deplete surface water flows in the North Platte River," Third Interim Report 38. In excepting nevertheless to the Master's recommendation that we allow the claim to go forward, Wyoming raises Nebraska's failure to regulate groundwater pumping within its own borders, which is said to preclude Nebraska as a matter of equity from seeking limitations on pumping within Wyoming. We fail to see how the mere fact of unregulated pumping within Nebraska can serve to bar Nebraska's claim. Nebraska is the downstream State and claims that Wyoming's pumping hurts it; Wyoming is upstream and has yet to make a showing that Nebraska's pumping hurts it or anyone else. If Wyoming ultimately makes such a showing, it could well affect the relief to which Nebraska is entitled, but that is a question for trial, and does not stop Nebraska from amending its claims at this stage. *15 Wyoming's reliance on two of this Court's prior original cases is, at best, premature. Both cases were decided after trial, see Kansas v. Colorado, 206 U.S. 46, 49, 105 (1907); Missouri v. Illinois, 200 U.S. 496, 518 (1906), and while both recognize that relief on the merits may turn on the equities, 206 U.S., at 104-105, 113-114; 200 U.S., at 522, the application of that principle to Nebraska's claim is not, as we have just stated, obvious at this point. We accordingly accept the Master's recommendation, Third Interim Report 41, and overrule Wyoming's fourth exception. IV Wyoming's Fourth Amended Cross-Claim seeks declaratory and injunctive relief and is aimed against the United States alone, alleging that federal management of reservoirs has contravened state and federal law as well as contracts governing water supply to individual users. Wyoming claims that "the United States has allocated storage water in a manner which (a) upsets the equitable balance on which the apportionment of natural flow was based, (b) results in the allocation of natural flow contrary to the provisions of the Decree . . . , (c) promotes inefficiency and waste of water contrary to federal and state law, (d) violates the contract rights of the North Platte Project Irrigation Districts and violates the provisions of the Warren Act, 43 U.S. C. § 523, . . . and (e) exceeds the limitations in the contracts under the Warren Act." App. to Third Interim Report E-11 to E-12. Wyoming alleges that this mismanagement has made "water shortages . . . more frequen[t] and. . . more severe, thereby causing injury to Wyoming and its water users." Id., at E-12. The United States and Nebraska except to allowing Wyoming's cross-claim to proceed, for two reasons. They argue, first, that the decree expressly refrained from apportioning storage water, as distinct from natural flow, with the consequence that the violations alleged are not cognizable in an *16 action brought under the decree. Second, they maintain that any claim turning on the United States's failure to comply with individual contracts for the release of storage water ought to be relegated to an action brought by individual contract holders in a federal district court and that, indeed, just such an action is currently pending in Goshen Irrigation District v. United States, No. C89-0161—J (D. Wyo., filed June 23, 1989). The Master addressed both objections. As to the first, he said that "even though the decree did not apportion storage water, it was framed based in part on assumptions about storage water rights and deliveries," and that therefore "Wyoming should have the opportunity to go forward with her claims that the United States has violated the law and contracts rights and that such violations have the effect of undermining Wyoming's apportionment." Third Interim Report 70. The Master found the second point "unpersuasive" because "neither Wyoming nor Nebraska [is a party] to the [Goshen] case [brought by the individual contractors], and the federal district court, therefore, does not have jurisdiction to consider whether any violations that may be proven on the part of the United States will have the effect of undermining the 1945 apportionment decree." Id., at 71. We agree with the Master on both counts. The availability of storage water and its distribution under storage contracts was a predicate to the original apportionment decree. Our 1945 opinion expressly recognized the significance of storage water to the lands irrigated by the pivotal reach, noting that over the prior decade storage water was on average over half of the total supply and that over 90 percent of the irrigated lands had storage rights as well as rights to natural flow. Nebraska I, 325 U. S., at 605. We pointed out that Nebraska appropriators in the pivotal reach had "greater storage water rights" than Wyoming appropriators, id. , at 645, a fact that helped "tip the scales in *17 favor of the flat percentage system," as against a scheme even more favorable to Nebraska, ibid. In rejecting Wyoming's original proposal, which was to combine water from storage and natural flow and apportion both by volume among the different users, id., at 621, we anticipated that the storage supply would "be left for distribution in accordance with the contracts which govern it," id., at 631. In doing so, we were clearly aware of the beneficial use limitations that govern federal contracts for storage water. Contracts between the United States and individual water users on the North Platte, we pointed out, had been made and were maintained in compliance with § 8 of the Reclamation Act of 1902, 32 Stat. 388, 43 U.S. C. §§ 372, 383, which provided that "`the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.' " 325 U.S., at 613. In addition, contracts had been made under the Warren Act, 36 Stat. 925, 43 U.S. C. §§ 523-525, which granted the Secretary of the Interior the further power to contract for the storage and delivery of water available in excess of the requirements of any given project managed under the Reclamation Act. See Nebraska I, supra, at 631, 639-640. Under this system, access to water from storage facilities was only possible by a contract for its use, Nebraska I, 325 U. S., at 640, and apportionment of storage water would have disrupted that system. "If storage water is not segregated, storage water contractors in times of shortage of the total supply will be deprived of the use of a part of the storage supply for which they pay . . . [and] those who have not contracted for the storage supply will receive at the expense of those who have contracted for it a substantial increment to the natural flow supply which, as we have seen, has been insufficient to go around." Ibid. Hence, we refrained from apportioning stored water and went no further than capping *18 the total amount of storage in certain dams to protect senior, downstream rights to natural flow. Id., at 630. But although our refusal in 1945 to apportion storage water was driven by a respect for the statutory and contractual regime in place at the time, we surely did not dismiss storage water as immaterial to the proper allocation of the natural flow in the pivotal reach. And while our decree expressly protected those with rights to storage water, it did so on the condition that storage water would continue to be distributed "in accordance with . . . lawful contracts . . . ." Id., at 669. This is the very condition that Wyoming now seeks to vindicate. Wyoming argues that the United States no longer abides by the governing law in administering the storage water contracts. First, it contends that the Government pays no heed to federal law's beneficial use limitations on the disposition of storage water but rather "releas[es] storage water on demand to the canals in the pivotal reach without regard to how the water is used." Brief for Wyoming in Response to Exceptions of Nebraska and United States to Third Interim Report 6 (emphasis deleted) (hereinafter Response Brief). This liberality allegedly harms Wyoming contractees whose storage supply is wasted, as well as junior Wyoming appropriators who are subject to the senior call of the United States to refill the reservoirs and are consequently deprived of the natural flow they would otherwise receive. Second, Wyoming claims that federal policy in drought years encourages contract users to exploit this failure of the Government to police consumption. It points out that in years of insufficient supply, the United States has calculated each water district's average use of storage water in prior years, and then allocated to each district a certain percentage of that average, according to what the overall supply will bear. The United States has then further reduced the allotment of each individual canal within a district by the *19 amount of natural flow delivered to the canal, with the result that in dry years water is distributed under "purely a mass [i. e., fixed volume] allocation that sets a cap on the total diversion of each individual canal." Id., at 8. Wyoming thus contends not only that under this system "in a dry year like 1989 the [United States's] allocation effectively replaces the Court decreed 75/25 apportionment," id., at 9, but that the departure from the norm is needlessly great because the system "encourages individual canals to divert as much water as possible during `non-allocation' years in order to maximize their average diversions which will be the measure of their entitlement in a subsequent dry year allocation," id., at 8, n. 6. If Wyoming were arguing merely that any administration of storage water that takes account of fluctuations in the natural flow received by a contractee violates the decree, we would reject its claim, for we recognized in 1945 that the outstanding Warren Act contracts contained "agree[ments] to deliver water which will, with all the water to which the land is entitled by appropriation or otherwise, aggregate a stated amount." 325 U.S., at 631. Indeed, we set forth an example of just such a contract in our opinion. Id., at 631, n. 17. In asserting, however, that a predicate to the 1945 decree was that the United States adhered to beneficial use limitations in administering storage water contracts, that it no longer does so, and that this change has caused or permitted significant injury to Wyoming interests, Wyoming has said enough to state a serious claim that ought to be allowed to go forward.[2] *20 Although the claim may well require consideration of individual contracts and compliance with the Reclamation and Warren Acts, it does not follow (as Nebraska and the United States argue) that Wyoming is asserting the private contractors' rights proper, or (as the United States contends) that Wyoming brings suit "`in reality for the benefit of particular individuals,' " Brief for United States in Support of Exception 25, quoting Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387, 393-394 (1938). Wyoming argues only that the cumulative effect of the United States's failure to adhere to the law governing the contracts undermines the operation of the decree, see Response Brief 14-21, and thereby states a claim arising under the decree itself, one by which it seeks to vindicate its "`quasi-sovereign' interests which are `independent of and behind the titles of its citizens, in all the earth and air within its domain,' " Oklahoma ex rel. Johnson v. Cook, supra, at 393, quoting Georgia v.Tennessee Copper Co., 206 U.S. 230, 237 (1907). It is of no moment that some of the contracts could be made (or are) the subject of litigation between individual contract holders and the United States in federal district court. Wyoming is not a party to any such litigation and, as *21 counsel for the United States acknowledged at oral argument, it is uncertain whether the State would qualify for intervention in the ongoing Goshen litigation under Federal Rule of Civil Procedure 24. See Tr. of Oral Arg. 46. While the uncertainty of intervention is beside the point on the dissent's view, which "see[s] no reason . . . why Wyoming could not institute its own action against the United States in [district court]," post, at 27, the dissent nowhere explains how Wyoming would have standing to bring an action under storage water contracts to which it is not a party. As we have just said, Wyoming's claim derives not from rights under individual contracts but from the decree, and the decree can be modified only by this Court. Putting aside, then, whether another forum might offer relief that, as a practical matter, would mitigate the alleged ill effects of the National Government's contract administration, this is the proper forum for the State's claim, and it makes sense to entertain the claim in the course of adjudicating the broader controversy among Wyoming, Nebraska, and the United States. Cf. United States v. Nevada, 412 U.S. 534, 537 (1973) (per curiam) (denying motion for leave to file bill of complaint in part because "[t]here is now no controversy between the two States with respect to the . . . [r]iver [in question]"). Nor do we fear the specter, raised by the United States, of intervention by many individual storage contractors in this proceeding. Ordinarily, in a suit by one State against another subject to the original jurisdiction of this Court, each State "must be deemed to represent all its citizens." Kentucky v. Indiana, 281 U.S. 163, 173 (1930). A State is presumed to speak in the best interests of those citizens, and requests to intervene by individual contractees may be treated under the general rule that an individual's motion for leave to intervene in this Court will be denied absent a "showing [of] some compelling interest in his own right, *22 apart from his interest in a class with all other citizens and creatures of the state, which interest is not properly represented by the state." New Jersey v. New York, 345 U.S. 369, 373 (1953); cf. Fed. Rule Civ. Proc. 24(a)(2). We have said on many occasions that water disputes among States may be resolved by compact or decree without the participation of individual claimants, who nonetheless are bound by the result reached through representation by their respective States. Nebraska I, 325 U. S., at 627, citing Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 106-108 (1938); see also Wyoming v. Colorado, 286 U.S. 494, 508-509 (1932). As we view the litigation at the current time, it is unlikely to present occasion for individual storage contract holders to show that their proprietary interests are not adequately represented by their State. Two caveats are nonetheless in order, despite our allowance of Wyoming's cross-claim. Nebraska argues that Wyoming is using its cross-claim as a back door to achieving the mass allocation of natural flows sought in its First Counterclaim and Cross-Claim. This argument will be difficult to assess without further development of the merits, and we can only emphasize at this point that in allowing Wyoming's Fourth Cross-Claim to go forward, we are not, of course, in any way sanctioning the very modification of the decree that we have just ruled out in this proceeding. Second, the parties should not take our allowance of the Fourth Cross-Claim as an opportunity to enquire into every detail of the United States's administration of storage water contracts. The United States's contractual compliance is not, of itself, an appropriate subject of the Special Master's attention, which is properly confined to the effects of contract administration on the operation of the decree. Contractual compliance, as such, is the subject of the Goshen litigation, which we presume will move forward independently of this original action. *23 V For these reasons, the exceptions to the Special Master's Third Interim Report are overruled. It is so ordered. Justice Thomas, concurring in part and dissenting in part. I agree with the decision of the Court to overrule all of Wyoming's exceptions to the Third Interim Report on Motions to Amend Pleading (Report). Accordingly, I join Parts I, II, and III of the Court's opinion. I do not agree, however, that we should overrule the exceptions of the United States and Nebraska to the Master's recommendation that Wyoming be allowed to proceed with its proposed Fourth Cross-Claim against the United States. I would sustain those exceptions and require Wyoming to pursue that claim in another forum. Wyoming's Fourth Cross-Claim begins with the following allegation: "The equitable apportionment which the Decree was intended to carry into effect was premised in part on the assumption that the United States would operate the federal reservoirs and deliver storage water in accordance with applicable federal and state law and in accordance with the contracts governing use of water from the federal reservoirs." App. to Report E-11. Wyoming then alleges generally that "[t]he United States has failed to operate the federal reservoirs in accordance with applicable federal and state laws and has failed to abide by the contracts governing use of water from the federal reservoirs." Ibid. According to Wyoming, these failures have "caused water shortages to occur more frequently and to be more severe, thereby causing injury to Wyoming and its water users." Id., at E-12. In short, Wyoming alleges *24 that "a predicate to the 1945 decree was that the United States adhered to [riparian law's] beneficial use limitations in administering storage water contracts, that it no longer does so, and that this change has caused or permitted significant injury to Wyoming interests." Ante, at 19. In the abstract, these allegations are sufficient to state a claim for modification of the decree based on changed circumstances. Such relief is authorized by the decree's Paragraph XIII, which invited the parties to "apply at the foot of this decree for its amendment or for further relief." Nebraska v. Wyoming, 325 U.S. 589, 671 (1945) (Nebraska I). In particular, subdivision (f) of Paragraph XIII anticipates that we might modify the decree in light of "[a]ny change in conditions making modifications of the decree or the granting of further relief necessary or appropriate." Id., at 672. Thus, in light of the Federal Government's failure to satisfy our expectation that it would comply with applicable riparian law and with its contracts, we might engage in "a reweighing of equities" and accordingly "reope[n]" the 1945 apportionment of the North Platte and modify the decree in Wyoming's favor. Nebraska v. Wyoming, 507 U.S. 584, 593 (1993) (Nebraska II). If Wyoming's Fourth Cross-Claim against the United States had actually sought such relief, I might agree with the Court's decision to allow the claim to proceed. But the cross-claim's prayer for relief seeks neither a reapportionment of the North Platte nor any other modification of the decree. Instead, it asks the Court "to enjoin the United States' continuing violations of federal and state law and . . . to direct the United States to comply with the terms of its contracts." App. to Report E-12. This prayer makes perfect sense: Why seek to modify the decree based on a "change in conditions" if such change could be reversed or annulled by means of injunctive relief grounded in existing law? Indeed, were existing law sufficient to prevent the injuries *25 alleged by Wyoming, the State could hardly point to the "considerable justification" necessary for "reopening an apportionment of interstate water rights." Nebraska II, supra, at 593.[1] Yet precisely because the injunctive relief requested by Wyoming arises out of and depends on a body of law that exists independently of the decree, the Court errs in asserting that Wyoming "states a claim arising under the decree itself." Ante, at 20. This is so for two reasons. First, a claim that the United States must comply with applicable law and with contracts governed by such law—here, § 8 of the Reclamation Act of 1902, 32 Stat. 390, 43 U.S. C. §§ 372, 383, the Warren Act, ch. 141, 36 Stat. 925, 43 U.S. C. §§ 523— 525, and other federal and state riparian law, see ante, at 17—necessarily "arises under" that body of law. See, e. g., Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 8-9 (1983) (approving, as a principle of inclusion, "Justice Holmes' statement, `A suit arises under the law that creates the cause of action' " (quoting American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916))). Second, although a decree entered by this Court could conceivably afford an additional and separate basis for ordering *26 the United States to comply with applicable riparian law and with its storage contracts, our 1945 decree in fact does not. That is, we "anticipated that the storage [water] supply would `be left for distribution in accordance with the contracts which govern it,' " ante, at 17 (emphasis added) (quoting Nebraska I, 325 U. S., at 631), but we did not mandate that result. To the contrary, Paragraph VI of the decree states expressly that "[s]torage water shall not be affected by this decree" and that storage water shall be distributed "without interference because of this decree." Id., at 669. Accord, Brief for Wyoming in Response to Exceptions of Nebraska and the United States 19 ("No one asserted [in 1945] a need for the Court affirmatively to require the [Federal Government's] compliance with federal law; such compliance was assumed"). Because Wyoming's Fourth Cross-Claim against the United States therefore involves neither "an application for enforcement of rights already recognized in the decree" nor a request for "a modification of the decree," Nebraska II, supra, at 590, I do not understand why the Court chooses to entertain that claim as part of the present proceeding. It is well established that "[w]e seek to exercise our original jurisdiction sparingly and are particularly reluctant to take jurisdiction of a suit where the plaintiff has another adequate forum in which to settle his claim." United States v. Nevada, 412 U.S. 534, 538 (1973) (per curiam). This particular reluctance applies squarely to "controversies between the United States and a State," of which we have "original but not exclusive jurisdiction." 28 U.S. C. § 1251(b)(2) (emphasis added). Thus, in United States v. Nevada, we declined to exercise jurisdiction over a dispute between those parties about intrastate water rights, noting that such dispute was "within the jurisdiction of the District Court" in Nevada. 412 U.S., at 538. Accord, id., at 539-540 ("Any possible dispute with California with respect to United States water *27 uses in that State can be settled in the lower federal courts in California . . .").[2] These principles should be applied here. Although I agree with the Court that the mere existence of pending litigation brought by individual storage contract holders against the United States in the Federal District Court in Wyoming is not dispositive, see ante, at 20-21, I see no reason (and the parties offer none) why Wyoming could not institute its own action against the United States in that forum.[3] Moreover, *28 given the number and variety of the other new or amended claims we have approved today, see ante, at 11-15—not to mention the issues left unresolved by our 1993 opinion, see Nebraska II, 507 U. S., at 596-603—the significant statutory and contractual issues raised by Wyoming's cross-claim against the United States would most likely be resolved in the District Court with far greater dispatch. Indeed, the present round of litigation has dragged on for almost nine years, but we are not even beyond the stage of considering amendments to the pleadings. Finally, although I share the Court's distaste at the prospect of intervention by individual storage contract holders in this original action, see ante, at 21-22, I find it just as distasteful unnecessarily to deny private parties the opportunity to participate in a case the disposition of which may impair their interests. By remitting Wyoming's claim to the District Court, we would allow the storage contract holders to participate voluntarily by joinder or intervention, see Fed. Rules Civ. Proc. 20(a) and 24, or to be joined involuntarily in the interest of just adjudication, see Rule 19. * * * The Court's decision to entertain Wyoming's Fourth Cross-Claim against the United States departs from our established principles for exercising our original jurisdiction, ignores the relief requested by Wyoming, and needlessly opens the possibility to a reapportionment of the North Platte. In short, it constitutes "a misguided exercise of [our] discretion." Wyoming v. Oklahoma, 502 U.S. 437, 475 (1992) (Thomas, J., dissenting). Accordingly, I respectfully dissent from the Court's decision in this regard.

Since 1945, a decree of this Court has rationed the North Platte River among users in Wyoming, and Colorado. By petition in 1986, again brought the matter before us, and we appointed a Special Master to conduct the appropriate proceedings. n his Third nterim Report on Motions to Amend Pleadings (Sept. 9, 1994) (hereinafter Third nterim Report), the Master has made recommendations for rulings on requests for leave to amend filed by and Wyoming. We now have before us the parties' exceptions to the Master's report, each of which we overrule. The North Platte River is a nonnavigable stream rising in northern Colorado and flowing through Wyoming into where it joins with the South Platte to form the Platte River. n 1934, invoked our original jurisdiction under the Constitution, Art. 2, cl. 2, by suing Wyoming for an equitable apportionment of the North Platte. The United States had leave to intervene, Colorado was impleaded as a defendant, and the ensuing litigation culminated *5 in the decision and decree in We concluded that the doctrine of prior appropriation should serve as the general "guiding principle" in our allocation of the North Platte's flows, but resisted an inflexible application of that doctrine in rendering four principal rulings. First, we enjoined Colorado and Wyoming from diverting or storing water above prescribed amounts, meant to reflect existing uses, on the river's upper reaches. Second, we set priorities among Wyoming canals that divert water for the use of irrigators and federal reservoirs, also in Wyoming, that store water for Wyoming and irrigation districts. Third, we apportioned the natural irrigation-season flows in a stretch of river that proved to be the principal focus of the litigation (the "pivotal reach" of 41 miles between the Guernsey Dam in Wyoming and the Tri-State Dam in ), allocating 75 percent of those flows to and 25 percent to Wyoming. Finally, we held that any party could apply for amendment of the decree or for further relief. With the parties' stipulation, the decree has since been modified once, to account for the construction of the Glendo Dam and Reservoir. returned to this Court in 1986 seeking additional relief under the decree, alleging that Wyoming was threatening its equitable apportionment, primarily by planning water projects on tributaries that have historically added significant flows to the pivotal reach. We granted leave to file its petition, and allowed Wyoming to file a counterclaim, Soon thereafter, Wyoming made a global motion for summary judgment, which the Master in his First nterim Report recommended be denied. See First nterim Report of Special Master, O. T. 1988, No. 108 Orig. After engaging *6 in discovery, Wyoming, Colorado, and the United States all filed further summary judgment motions. n his Second nterim Report, the Master recommended that we grant the motions of the United States and in part, but that we otherwise deny summary relief. See Second nterim Report of Special Master on Motions for Summary Judgment and Renewed Motions for ntervention, O. T. 1991, No. 108 Orig. We overruled the parties' exceptions. and Wyoming then sought leave to amend their pleadings, and we referred those requests to the Master. The Amended Petition that seeks to file contains four counts. Count alleges that Wyoming is depleting the natural flows of the North Platte and asks for an injunction against constructing storage capacity on the river's tributaries and "permitting unlimited depletion of groundwater that is hydrologically connected to the North Platte River and its tributaries." App. to Third nterim Report D-2 to D-7. Count alleges that the United States is operating the Glendo Reservoir in violation of the decree and seeks an order holding the United States to the decree. at D-7 to D-8. Count alleges that Wyoming water projects and groundwater development threaten to deplete the Laramie River's contributions to the North Platte, and asks the Court to "specify that the inflows of the Laramie River below Wheatland are a component of the equitable apportionment of the natural flows in the [pivotal] reach, 75% to and 25% to Wyoming, and [to] enjoin the State of Wyoming from depleting 's equitable share of the Laramie River's contribution to the North Platte River" at D-8 to D-12. Count V seeks an equitable apportionment of the North Platte's nonirrigation season flows. at D-12 to D-16. The Master recommended that we allow to substitute the first three counts of its Amended Petition for its current petition, but that we deny leave to file Count V. Neither nor the United States has *7 excepted to the Master's recommendation, whereas Wyoming has filed three exceptions, set out in detail below. Wyoming proposes to amend its pleading with four counterclaims and five cross-claims. The First Counterclaim and Cross-Claim allege that and the United States have failed to recognize beneficial use limitations on diversions by canals, and that (with the acquiescence of the United States) has violated the equitable apportionment by demanding natural flow and storage water from sources above Tri-State Dam and diverting them for use below Tri-State Dam. App. to Third nterim Report E-3 to E-6, E-8 to E-10. Wyoming's Second and Third Counterclaims and Cross-Claims seek enforcement or modification of Paragraph XV of the decree, which deals with the operation of the Glendo Reservoir and is also the subject of Count of 's Amended Petition. at E-6 to E-7, E-10 to E-11. By its Fourth Counterclaim and Fifth Cross-Claim, Wyoming asks the Court to modify the decree to leave the determination of carriage (or transportation) losses to state officials under state law. at E-7 to E-8, E-12. Finally, Wyoming's Fourth Cross-Claim alleges that the United States has failed to operate its storage reservoirs in accordance with federal and state law and its own storage water contracts, thus upsetting the very basis of the decree's equitable apportionment. at E-11 to E-12. The Master recommended that we allow Wyoming to substitute its Second through Fourth Counterclaims and its Second through Fifth Cross-Claims for its current pleadings, but that we deny leave to file Wyoming's First Counterclaim and Cross-Claim insofar as they seek to impose a beneficial use limitation on 's diversions of natural flow. The United States and except to the recommendation to allow Wyoming to file its Fourth Cross-Claim. Wyoming excepts to the Master's recommended disposition of its First Counterclaim and Cross-Claim. n all, then, Wyoming has filed four exceptions to the Master's recommendations and *8 the United States and a single (and largely overlapping) exception each. We have found that the solicitude for liberal amendment of pleadings animating the Federal Rules of Civil Procedure, Rule 15(a); does not suit cases within this Court's original jurisdiction. ; cf. this Court's Rule 17.2. The need for a less complaisant standard follows from our traditional reluctance to exercise original jurisdiction in any but the most serious of circumstances, even where, as in cases between two or more States, our jurisdiction is exclusive. ; New Our requirement that leave be obtained before a complaint may be filed in an original action, see this Court's Rule 17.3, serves an important gatekeeping function, and proposed pleading amendments must be scrutinized closely in the first instance to see whether they would take the litigation beyond what we reasonably anticipated when we granted leave to file the initial pleadings. See at Accordingly, an understanding of the scope of this litigation as envisioned under the initial pleadings is the critical first step in our consideration of the motions to amend. We have, in fact, already discussed the breadth of the current litigation at some length in reviewing the Special Master's First and Second nterim Reports, 507 U. S., *9 -, where we concluded that this litigation is not restricted "solely to enforcement of rights determined in the prior proceedings," To the contrary, we observed that in Paragraph X of the decree, we had retained jurisdiction "to modify the decree to answer unresolved questions and to accommodate `change[s] in conditions'—a phrase sufficiently broad to encompass not only changes in water supply, but also new development that threatens a party's interests." citing The parties may therefore not only seek to enforce rights established by the decree, but may also ask for "a reweighing of and an injunction declaring new rights and responsibilities" We made it clear, however, that while "Paragraph X perhaps eases a [party's] burden of establishing, as an initial matter, that a claim [for modification] is `of that character and dignity which makes the controversy a justiciable one under our original jurisdiction,' " quoting the "[party] still must make a showing of substantial injury to be entitled to relief," We think the Master appreciated these conclusions about the scope of this litigation when he assessed the proposed amendments to pleadings to see whether they sought enforcement of the decree or plausibly alleged a change in conditions sufficient to justify its modification. See Third nterim Report 33-36. The parties, of course, do not wholly agree with us, as they indicate by their exceptions, to which we turn. A Wyoming's First Amended Counterclaim alleges that " has circumvented and violated the equitable apportionment by demanding natural flow water for diversion by irrigation canals at and above Tri-State Dam in excess of the beneficial use requirements of the lands entitled to *10 water from those canals under the Decree" App. to Third nterim Report E-4. Wyoming's First Amended Cross-Claim alleges that the United States "has circumvented and violated the equitable apportionment, and continues to do so, by operating the federal reservoirs to deliver natural flow water for diversion by irrigation canals at and above Tri-State Dam in excess of the beneficial use requirements of the lands entitled to water from those canals under the Decree" at E-8. The Master recommended that we deny leave to inject these claims into the litigation, concluding that Wyoming's object is to transform the 1945 apportionment from a proportionate sharing of the natural flows in the pivotal reach to a scheme based on the beneficial use requirements of the pivotal reach irrigators. Third nterim Report 55-64. Wyoming excepts to the recommendation, claiming that its amendments do no more than elaborate on the suggestion made in the counterclaim that we allowed it to file in 1987, that irrigators are wasting water diverted in the pivotal reach. But there is more to the amendments than that, and we agree with the Master that Wyoming in reality is calling for a fundamental modification of the settled apportionment scheme established in 1945, without alleging a change in conditions that would arguably justify so bold a step. n we rejected any notion that our 1945 decision and decree "impose absolute ceilings on diversions by canals taking in the pivotal reach." We found that although the irrigation requirements of the lands served by the canals were calculated in the prior proceedings, those calculations were used to "determin[e] the appropriate apportionment of the pivotal reach, not to impose a cap on the canals' total diversions, either individually or cumulatively." This was clearly indicated, we observed, by the fact that "Paragraph V of the decree, which sets forth the apportionment, makes no mention of diversion ceilings and expressly states that is free to allocate *11 its share among its canals as it sees fit." citing These conclusions about our 1945 decision and decree expose the true nature of Wyoming's amended claims. Simply put, Wyoming seeks to replace a simple apportionment scheme with one in which 's share would be capped at the volume of probable beneficial use, presumably to Wyoming's advantage. Wyoming thus seeks nothing less than relitigation of the "main controversy" of the 1945 litigation, the equitable apportionment of irrigation-season flows in the North Platte's pivotal reach. See -638. Under any circumstance, we would be profoundly reluctant to revisit such a central question supposedly resolved 50 years ago, and there can be no temptation to do so here, in the absence of any allegation of a change in conditions that might warrant reexamining the decree's apportionment scheme. Wyoming's first exception is overruled.[1] B Counts and of 's Amended Petition would have us modify the decree to enjoin proposed developments by Wyoming on the North Platte's tributaries, see App. to Third nterim Report D-4 to D-6, D-9 to D-11, on the theory *12 that these will deplete the tributaries' contributions to the mainstem, and hence upset "the equitable balance of the North Platte River established in the Decree," at D-5, D-10. Wyoming's second exception takes issue with the Master's stated intention to consider a broad array of downstream interests in passing on 's claims, and to hear evidence of injury not only to downstream irrigators, but also to wildlife and wildlife habitat. Third nterim Report 14, 17, 19, 26. Consideration of this evidence, Wyoming argues, would run counter to our denial of two earlier motions to amend filed by : its 1988 motion, in which it sought an apportionment of nonirrigation-season flows. Wyoming also suggests that allegations of injury to wildlife are as yet purely speculative and would be best left to other forums. Wyoming's arguments are not persuasive. To assign an affirmative obligation to protect wildlife is one thing; to consider all downstream effects of upstream development when assessing threats to equitable apportionment is quite another. As we have discussed above, makes it clear that modification of the decree (as by enjoining developments on tributaries) will follow only upon a "balancing of" 507 U.S., and that will have to make a showing of "substantial injury" before we will grant it such relief, There is no warrant for placing entire categories of evidence beyond 's reach when it attempts to satisfy this burden, which is far from insignificant. Nor does our resistance to 's efforts to bring about broad new apportionments (as of nonirrigation-season flows) alter this conclusion. Here, seeks only to have us enjoin discrete Wyoming developments. f *13 is to have a fair opportunity to present its case for our doing so, we do not understand how we can preclude it from setting forth that evidence of environmental injury, or consign it to producing that evidence in some other forum, since this is the only Court in which can challenge the Wyoming projects. And as for Wyoming's argument that any proof of environmental injury that will present will be highly speculative, the point is urged prematurely. Purely speculative harms will not, of course, carry 's burden of showing substantial injury, but at this stage we certainly have no basis for judging 's proof, and no justification for denying the chance to prove what it can. C Wyoming's third exception is to the Master's recommendation to allow to proceed with its challenge to Wyoming's actions on Horse Creek, a tributary that flows into the North Platte below the Tri-State Dam. n Count of its Amended Petition, alleges that Wyoming is "presently violating and threatens to violate" 's equitable apportionment "by depleting the natural flows of the North Platte River by such projects as reregulating reservoirs and canal linings in the Horse Creek Conservancy District." App. to Third nterim Report D-5. asks for an injunction against Wyoming's depletions of the creek. Wyoming argues that the claim is simply not germane to this case, since Horse Creek feeds into the North Platte below the apportioned reach, the downstream boundary of which is the Tri-State Dam. t is clear, however, that the territorial scope of the case extends downstream of the pivotal reach. n the 1945 decision and decree, we held against apportioning that stretch of river between the Tri-State Dam and Bridgeport, not because it fell outside the geographic confines of the case, but because its needed water was "adequately supplied from return flows and other *14 local sources." -655. n so concluding, we had evidence that return flows from Horse Creek provided an average annual contribution of 21,900 acre-feet of water to the North Platte during the irrigation season. Third nterim Report 42. Now alleges that Wyoming's actions threaten serious depletion of these return flows, with consequent injury to its interests in the region below the Tri-State Dam. These allegations describe a change in conditions sufficient, if proven, to warrant the injunctive relief sought, and is accordingly entitled to proceed with its claim. Wyoming's third exception is overruled. D n Counts and of its Amended Petition, alleges that increased groundwater pumping within Wyoming threatens substantial depletion of the natural flow of the river. This allegation is obviously one of a change in conditions posing a threat of significant injury, and Wyoming concedes that "groundwater pumping in Wyoming can and does in fact deplete surface water flows in the North Platte River," Third nterim Report 38. n excepting nevertheless to the Master's recommendation that we allow the claim to go forward, Wyoming raises 's failure to regulate groundwater pumping within its own borders, which is said to preclude as a matter of equity from seeking limitations on pumping within Wyoming. We fail to see how the mere fact of unregulated pumping within can serve to bar 's claim. is the downstream State and claims that Wyoming's pumping hurts it; Wyoming is upstream and has yet to make a showing that 's pumping hurts it or anyone else. f Wyoming ultimately makes such a showing, it could well affect the relief to which is entitled, but that is a question for trial, and does not stop from amending its claims at this stage. *15 Wyoming's reliance on two of this Court's prior original cases is, at best, premature. Both cases were decided after trial, see ; Missouri v. llinois, and while both recognize that relief on the merits may turn on the -105, 113-114; the application of that principle to 's claim is not, as we have just stated, obvious at this point. We accordingly accept the Master's recommendation, Third nterim Report 41, and overrule Wyoming's fourth exception. V Wyoming's Fourth Amended Cross-Claim seeks declaratory and injunctive relief and is aimed against the United States alone, alleging that federal management of reservoirs has contravened state and federal law as well as contracts governing water supply to individual users. Wyoming claims that "the United States has allocated storage water in a manner which (a) upsets the equitable balance on which the apportionment of natural flow was based, (b) results in the allocation of natural flow contrary to the provisions of the Decree (c) promotes inefficiency and waste of water contrary to federal and state law, (d) violates the contract rights of the North Platte Project rrigation Districts and violates the provisions of the Warren Act, 43 U.S. C. 523, and (e) exceeds the limitations in the contracts under the Warren Act." App. to Third nterim Report E-11 to E-12. Wyoming alleges that this mismanagement has made "water shortages more frequen[t] and. more severe, thereby causing injury to Wyoming and its water users." at E-12. The United States and except to allowing Wyoming's cross-claim to proceed, for two reasons. They argue, first, that the decree expressly refrained from apportioning storage water, as distinct from natural flow, with the consequence that the violations alleged are not cognizable in an *16 action brought under the decree. Second, they maintain that any claim turning on the United States's failure to comply with individual contracts for the release of storage water ought to be relegated to an action brought by individual contract holders in a federal district court and that, indeed, just such an action is currently pending in Goshen rrigation District v. United States, No. C89-0161—J (D. Wyo., filed June 23, 1989). The Master addressed both objections. As to the first, he said that "even though the decree did not apportion storage water, it was framed based in part on assumptions about storage water rights and deliveries," and that therefore "Wyoming should have the opportunity to go forward with her claims that the United States has violated the law and contracts rights and that such violations have the effect of undermining Wyoming's apportionment." Third nterim Report 70. The Master found the second point "unpersuasive" because "neither Wyoming nor [is a party] to the [Goshen] case [brought by the individual contractors], and the federal district court, therefore, does not have jurisdiction to consider whether any violations that may be proven on the part of the United States will have the effect of undermining the 1945 apportionment decree." We agree with the Master on both counts. The availability of storage water and its distribution under storage contracts was a predicate to the original apportionment decree. Our 1945 opinion expressly recognized the significance of storage water to the lands irrigated by the pivotal reach, noting that over the prior decade storage water was on average over half of the total supply and that over 90 percent of the irrigated lands had storage rights as well as rights to natural flow. We pointed out that appropriators in the pivotal reach had "greater storage water rights" than Wyoming appropriators, at 645, a fact that helped "tip the scales in *17 favor of the flat percentage system," as against a scheme even more favorable to n rejecting Wyoming's original proposal, which was to combine water from storage and natural flow and apportion both by volume among the different users, we anticipated that the storage supply would "be left for distribution in accordance with the contracts which govern it," n doing so, we were clearly aware of the beneficial use limitations that govern federal contracts for storage water. Contracts between the United States and individual water users on the North Platte, we pointed out, had been made and were maintained in compliance with 8 of the Reclamation Act of 1902, 43 U.S. C. 372, 383, which provided that "`the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.' " n addition, contracts had been made under the Warren Act, 43 U.S. C. 523-525, which granted the Secretary of the nterior the further power to contract for the storage and delivery of water available in excess of the requirements of any given project managed under the Reclamation Act. See 639-640. Under this system, access to water from storage facilities was only possible by a contract for its use, and apportionment of storage water would have disrupted that system. "f storage water is not segregated, storage water contractors in times of shortage of the total supply will be deprived of the use of a part of the storage supply for which they pay [and] those who have not contracted for the storage supply will receive at the expense of those who have contracted for it a substantial increment to the natural flow supply which, as we have seen, has been insufficient to go around." Hence, we refrained from apportioning stored water and went no further than capping *18 the total amount of storage in certain dams to protect senior, downstream rights to natural flow. But although our refusal in 1945 to apportion storage water was driven by a respect for the statutory and contractual regime in place at the time, we surely did not dismiss storage water as immaterial to the proper allocation of the natural flow in the pivotal reach. And while our decree expressly protected those with rights to storage water, it did so on the condition that storage water would continue to be distributed "in accordance with lawful contracts" This is the very condition that Wyoming now seeks to vindicate. Wyoming argues that the United States no longer abides by the governing law in administering the storage water contracts. First, it contends that the Government pays no heed to federal law's beneficial use limitations on the disposition of storage water but rather "releas[es] storage water on demand to the canals in the pivotal reach without regard to how the water is used." Brief for Wyoming in Response to Exceptions of and United States to Third nterim Report 6 (emphasis deleted) (hereinafter Response Brief). This liberality allegedly harms Wyoming contractees whose storage supply is wasted, as well as junior Wyoming appropriators who are subject to the senior call of the United States to refill the reservoirs and are consequently deprived of the natural flow they would otherwise receive. Second, Wyoming claims that federal policy in drought years encourages contract users to exploit this failure of the Government to police consumption. t points out that in years of insufficient supply, the United States has calculated each water district's average use of storage water in prior years, and then allocated to each district a certain percentage of that average, according to what the overall supply will bear. The United States has then further reduced the allotment of each individual canal within a district by the *19 amount of natural flow delivered to the canal, with the result that in dry years water is distributed under "purely a mass [i. e., fixed volume] allocation that sets a cap on the total diversion of each individual canal." Wyoming thus contends not only that under this system "in a dry year like 1989 the [United States's] allocation effectively replaces the Court decreed 75/25 apportionment," but that the departure from the norm is needlessly great because the system "encourages individual canals to divert as much water as possible during `non-allocation' years in order to maximize their average diversions which will be the measure of their entitlement in a subsequent dry year allocation," n. 6. f Wyoming were arguing merely that any administration of storage water that takes account of fluctuations in the natural flow received by a contractee violates the decree, we would reject its claim, for we recognized in 1945 that the outstanding Warren Act contracts contained "agree[ments] to deliver water which will, with all the water to which the land is entitled by appropriation or otherwise, aggregate a stated amount." 325 U.S., ndeed, we set forth an example of just such a contract in our opinion. n. 17. n asserting, however, that a predicate to the 1945 decree was that the United States adhered to beneficial use limitations in administering storage water contracts, that it no longer does so, and that this change has caused or permitted significant injury to Wyoming interests, Wyoming has said enough to state a serious claim that ought to be allowed to go forward.[2] *20 Although the claim may well require consideration of individual contracts and compliance with the Reclamation and Warren Acts, it does not follow (as and the United States argue) that Wyoming is asserting the private contractors' rights proper, or (as the United States contends) that Wyoming brings suit "`in reality for the benefit of particular individuals,' " Brief for United States in Support of Exception 25, quoting Oklahoma ex rel. Wyoming argues only that the cumulative effect of the United States's failure to adhere to the law governing the contracts undermines the operation of the decree, see Response Brief 14-21, and thereby states a claim arising under the decree itself, one by which it seeks to vindicate its "`quasi-sovereign' interests which are `independent of and behind the titles of its citizens, in all the earth and air within its domain,' " Oklahoma ex rel. quoting Georgia v.Tennessee Copper Co., t is of no moment that some of the contracts could be made (or are) the subject of litigation between individual contract holders and the United States in federal district court. Wyoming is not a party to any such litigation and, as *21 counsel for the United States acknowledged at oral argument, it is uncertain whether the State would qualify for intervention in the ongoing Goshen litigation under Federal Rule of Civil Procedure 24. See Tr. of Oral Arg. 46. While the uncertainty of intervention is beside the point on the dissent's view, which "see[s] no reason why Wyoming could not institute its own action against the United States in [district court]," post, at 27, the dissent nowhere explains how Wyoming would have standing to bring an action under storage water contracts to which it is not a party. As we have just said, Wyoming's claim derives not from rights under individual contracts but from the decree, and the decree can be modified only by this Court. Putting aside, then, whether another forum might offer relief that, as a practical matter, would mitigate the alleged ill effects of the National Government's contract administration, this is the proper forum for the State's claim, and it makes sense to entertain the claim in the course of adjudicating the broader controversy among Wyoming, and the United States. Cf. United (denying motion for leave to file bill of complaint in part because "[t]here is now no controversy between the two States with respect to the [r]iver [in question]"). Nor do we fear the specter, raised by the United States, of intervention by many individual storage contractors in this proceeding. Ordinarily, in a suit by one State against another subject to the original jurisdiction of this Court, each State "must be deemed to represent all its citizens." v. ndiana, A State is presumed to speak in the best interests of those citizens, and requests to intervene by individual contractees may be treated under the general rule that an individual's motion for leave to intervene in this Court will be denied absent a "showing [of] some compelling interest in his own right, *22 apart from his interest in a class with all other citizens and creatures of the state, which interest is not properly represented by the state." New ; cf. Fed. Rule Civ. Proc. 24(a)(2). We have said on many occasions that water disputes among States may be resolved by compact or decree without the participation of individual claimants, who nonetheless are bound by the result reached through representation by their respective States. citing ; see also As we view the litigation at the current time, it is unlikely to present occasion for individual storage contract holders to show that their proprietary interests are not adequately represented by their State. Two caveats are nonetheless in order, despite our allowance of Wyoming's cross-claim. argues that Wyoming is using its cross-claim as a back door to achieving the mass allocation of natural flows sought in its First Counterclaim and Cross-Claim. This argument will be difficult to assess without further development of the merits, and we can only emphasize at this point that in allowing Wyoming's Fourth Cross-Claim to go forward, we are not, of course, in any way sanctioning the very modification of the decree that we have just ruled out in this proceeding. Second, the parties should not take our allowance of the Fourth Cross-Claim as an opportunity to enquire into every detail of the United States's administration of storage water contracts. The United States's contractual compliance is not, of itself, an appropriate subject of the Special Master's attention, which is properly confined to the effects of contract administration on the operation of the decree. Contractual compliance, as such, is the subject of the Goshen litigation, which we presume will move forward independently of this original action. *23 V For these reasons, the exceptions to the Special Master's Third nterim Report are overruled. t is so ordered. Justice Thomas, concurring in part and dissenting in part. agree with the decision of the Court to overrule all of Wyoming's exceptions to the Third nterim Report on Motions to Amend Pleading (Report). Accordingly, join Parts and of the Court's opinion. do not agree, however, that we should overrule the exceptions of the United States and to the Master's recommendation that Wyoming be allowed to proceed with its proposed Fourth Cross-Claim against the United States. would sustain those exceptions and require Wyoming to pursue that claim in another forum. Wyoming's Fourth Cross-Claim begins with the following allegation: "The equitable apportionment which the Decree was intended to carry into effect was premised in part on the assumption that the United States would operate the federal reservoirs and deliver storage water in accordance with applicable federal and state law and in accordance with the contracts governing use of water from the federal reservoirs." App. to Report E-11. Wyoming then alleges generally that "[t]he United States has failed to operate the federal reservoirs in accordance with applicable federal and state laws and has failed to abide by the contracts governing use of water from the federal reservoirs." According to Wyoming, these failures have "caused water shortages to occur more frequently and to be more severe, thereby causing injury to Wyoming and its water users." at E-12. n short, Wyoming alleges *24 that "a predicate to the 1945 decree was that the United States adhered to [riparian law's] beneficial use limitations in administering storage water contracts, that it no longer does so, and that this change has caused or permitted significant injury to Wyoming interests." Ante, at 19. n the abstract, these allegations are sufficient to state a claim for modification of the decree based on changed circumstances. Such relief is authorized by the decree's Paragraph X, which invited the parties to "apply at the foot of this decree for its amendment or for further relief." n particular, subdivision (f) of Paragraph X anticipates that we might modify the decree in light of "[a]ny change in conditions making modifications of the decree or the granting of further relief necessary or appropriate." Thus, in light of the Federal Government's failure to satisfy our expectation that it would comply with applicable riparian law and with its contracts, we might engage in "a reweighing of " and accordingly "reope[n]" the 1945 apportionment of the North Platte and modify the decree in Wyoming's favor. f Wyoming's Fourth Cross-Claim against the United States had actually sought such relief, might agree with the Court's decision to allow the claim to proceed. But the cross-claim's prayer for relief seeks neither a reapportionment of the North Platte nor any other modification of the decree. nstead, it asks the Court "to enjoin the United States' continuing violations of federal and state law and to direct the United States to comply with the terms of its contracts." App. to Report E-12. This prayer makes perfect sense: Why seek to modify the decree based on a "change in conditions" if such change could be reversed or annulled by means of injunctive relief grounded in existing law? ndeed, were existing law sufficient to prevent the injuries *25 alleged by Wyoming, the State could hardly point to the "considerable justification" necessary for "reopening an apportionment of interstate water rights."[1] Yet precisely because the injunctive relief requested by Wyoming arises out of and depends on a body of law that exists independently of the decree, the Court errs in asserting that Wyoming "states a claim arising under the decree itself." Ante, at 20. This is so for two reasons. First, a claim that the United States must comply with applicable law and with contracts governed by such law—here, 8 of the Reclamation Act of 1902, 43 U.S. C. 372, 383, the Warren Act, ch. 141, 43 U.S. C. 523— 525, and other federal and state riparian law, see ante, at 17—necessarily "arises under" that body of law. See, e. g., Franchise Tax Bd. of Second, although a decree entered by this Court could conceivably afford an additional and separate basis for ordering *26 the United States to comply with applicable riparian law and with its storage contracts, our 1945 decree in fact does not. That is, we "anticipated that the storage [water] supply would `be left for distribution in accordance with the contracts which govern it,' " ante, at 17 (emphasis added) (quoting 325 U. S., ), but we did not mandate that result. To the contrary, Paragraph V of the decree states expressly that "[s]torage water shall not be affected by this decree" and that storage water shall be distributed "without interference because of this decree." Accord, Brief for Wyoming in Response to Exceptions of and the United States 19 ("No one asserted [in 1945] a need for the Court affirmatively to require the [Federal Government's] compliance with federal law; such compliance was assumed"). Because Wyoming's Fourth Cross-Claim against the United States therefore involves neither "an application for enforcement of rights already recognized in the decree" nor a request for "a modification of the decree," do not understand why the Court chooses to entertain that claim as part of the present proceeding. t is well established that "[w]e seek to exercise our original jurisdiction sparingly and are particularly reluctant to take jurisdiction of a suit where the plaintiff has another adequate forum in which to settle his claim." United This particular reluctance applies squarely to "controversies between the United States and a State," of which we have "original but not exclusive jurisdiction." 28 U.S. C. 1251(b)(2) (emphasis added). Thus, in United we declined to exercise jurisdiction over a dispute between those parties about intrastate water rights, noting that such dispute was "within the jurisdiction of the District Court" in 412 U.S., at Accord,[2] These principles should be applied here. Although agree with the Court that the mere existence of pending litigation brought by individual storage contract holders against the United States in the Federal District Court in Wyoming is not dispositive, see ante, at 20-21, see no reason (and the parties offer none) why Wyoming could not institute its own action against the United States in that forum.[3] Moreover, *28 given the number and variety of the other new or amended claims we have approved today, see ante, at 11-15—not to mention the issues left unresolved by our 1993 opinion, see -603—the significant statutory and contractual issues raised by Wyoming's cross-claim against the United States would most likely be resolved in the District Court with far greater dispatch. ndeed, the present round of litigation has dragged on for almost nine years, but we are not even beyond the stage of considering amendments to the pleadings. Finally, although share the Court's distaste at the prospect of intervention by individual storage contract holders in this original action, see ante, at 21-22, find it just as distasteful unnecessarily to deny private parties the opportunity to participate in a case the disposition of which may impair their interests. By remitting Wyoming's claim to the District Court, we would allow the storage contract holders to participate voluntarily by joinder or intervention, see Fed. Rules Civ. Proc. 20(a) and 24, or to be joined involuntarily in the interest of just adjudication, see Rule 19. * * * The Court's decision to entertain Wyoming's Fourth Cross-Claim against the United States departs from our established principles for exercising our original jurisdiction, ignores the relief requested by Wyoming, and needlessly opens the possibility to a reapportionment of the North Platte. n short, it constitutes "a misguided exercise of [our] discretion." Accordingly, respectfully dissent from the Court's decision in this regard.

Justice Ginsburg

majority

Marshall v. Marshall

2006-05-01

https://www.courtlistener.com/opinion/145660/marshall-v-marshall/

https://www.courtlistener.com/api/rest/v3/clusters/145660/

2005-051

In Cohens v. Virginia, Chief Justice Marshall famously cautioned: "It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. . . . We have no more right to decline the exercise of jurisdiction which is given, than to *299 usurp that which is not given." 6 Wheat. 264, 404 (1821). Among longstanding limitations on federal jurisdiction otherwise properly exercised are the so-called "domestic relations" and "probate" exceptions. Neither is compelled by the text of the Constitution or federal statute. Both are judicially created doctrines stemming in large measure from misty understandings of English legal history. See, e. g., Atwood, Domestic Relations Cases in Federal Court: Toward a Principled Exercise of Jurisdiction, 35 Hastings L. J. 571, 584-588 (1984); Spindel v. Spindel, 283 F. Supp. 797, 802 (EDNY 1968) (collecting cases and commentary revealing vulnerability of historical explanation for domestic relations exception); Winkler, The Probate Jurisdiction of the Federal Courts, 14 Probate L. J. 77, 125-126, and n. 256 (1997) (describing historical explanation for probate exception as "an exercise in mythography"). In the years following Marshall's 1821 pronouncement, courts have sometimes lost sight of his admonition and have rendered decisions expansively interpreting the two exceptions. In Ankenbrandt v. Richards, 504 U.S. 689 (1992), this Court reined in the "domestic relations exception." Earlier, in Markham v. Allen, 326 U.S. 490 (1946), the Court endeavored similarly to curtail the "probate exception." Nevertheless, the Ninth Circuit in the instant case read the probate exception broadly to exclude from the federal courts' adjudicatory authority "not only direct challenges to a will or trust, but also questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument." 392 F.3d 1118, 1133 (2004). The Court of Appeals further held that a State's vesting of exclusive jurisdiction over probate matters in a special court strips federal courts of jurisdiction to entertain any "probate related matter," including claims respecting "tax liability, debt, gift, [or] tort." Id., at 1136. We hold that the Ninth Circuit had no warrant from Congress, *300 or from decisions of this Court, for its sweeping extension of the probate exception. I Petitioner, Vickie Lynn Marshall (Vickie), also known as Anna Nicole Smith, is the surviving widow of J. Howard Marshall II (J. Howard). Vickie and J. Howard met in October 1991. After a courtship lasting more than two years, they were married on June 27, 1994. J. Howard died on August 4, 1995. Although he lavished gifts and significant sums of money on Vickie during their courtship and marriage, J. Howard did not include anything for Vickie in his will. According to Vickie, J. Howard intended to provide for her financial security through a gift in the form of a "catchall" trust. Respondent, E. Pierce Marshall (Pierce), one of J. Howard's sons, was the ultimate beneficiary of J. Howard's estate plan, which consisted of a living trust and a "pourover" will. Under the terms of the will, all of J. Howard's assets not already included in the trust were to be transferred to the trust upon his death. Competing claims regarding J. Howard's fortune ignited proceedings in both state and federal courts. In January 1996, while J. Howard's estate was subject to ongoing proceedings in Probate Court in Harris County, Texas, Vickie filed for bankruptcy under Chapter 11 of the Bankruptcy Code, 11 U.S. C. § 1101 et seq., in the United States Bankruptcy Court for the Central District of California. See 275 B.R. 5, 8 (CD Cal. 2002). In June 1996, Pierce filed a proof of claim in the federal bankruptcy proceeding, id., at 9; see 11 U.S. C. § 501, alleging that Vickie had defamed him when, shortly after J. Howard's death, lawyers representing Vickie told members of the press that Pierce had engaged in forgery, fraud, and overreaching to gain control of his father's assets, 275 B.R., at 9. Pierce sought a declaration that *301 the debt he asserted in that claim was not dischargeable in bankruptcy. Ibid.[1] Vickie answered, asserting truth as a defense. She also filed counterclaims, among them a claim that Pierce had tortiously interfered with a gift she expected. Ibid.; see App. 23-25. Vickie alleged that Pierce prevented the transfer of his father's intended gift to her by, among other things: effectively imprisoning J. Howard against his wishes; surrounding him with hired guards for the purpose of preventing personal contact between him and Vickie; making misrepresentations to J. Howard; and transferring property against J. Howard's expressed wishes. Id., at 24. Vickie's tortious interference counterclaim turned her objection to Pierce's claim into an adversary proceeding. Id., at 39; see Fed. Rule Bkrtcy. Proc. 3007. In that proceeding, the Bankruptcy Court granted summary judgment in favor of Vickie on Pierce's claim and, after a trial on the merits, entered judgment for Vickie on her tortious interference counterclaim. See 253 B.R. 550, 558-559 (2000). The Bankruptcy Court also held that both Vickie's objection to Pierce's claim and Vickie's counterclaim qualified as "core proceedings" under 28 U.S. C. § 157, which meant that the court had authority to enter a final judgment disposing of those claims. See 257 B.R. 35, 39-40 (2000). The court awarded Vickie compensatory damages of more than $449 million—less whatever she recovered in the ongoing probate action in Texas—as well as $25 million in punitive damages. Id., at 40. Pierce filed a post-trial motion to dismiss for lack of subject-matter jurisdiction, asserting that Vickie's tortious interference claim could be tried only in the Texas probate proceedings. Id., at 36. The Bankruptcy Court held that *302 "the `probate exception' argument was waived" because it was not timely raised. Id., at 39. Relying on this Court's decision in Markham, the court observed that a federal court has jurisdiction to "adjudicate rights in probate property, so long as its final judgment does not undertake to interfere with the state court's possession of the property." 257 B.R., at 38 (citing Markham, 326 U. S., at 494). Meanwhile, in the Texas Probate Court, Pierce sought a declaration that the living trust and his father's will were valid. 392 F.3d, at 1124-1125. Vickie, in turn, challenged the validity of the will and filed a tortious interference claim against Pierce, ibid., but voluntarily dismissed both claims once the Bankruptcy Court entered its judgment, id., at 1128. Following a jury trial, the Probate Court declared the living trust and J. Howard's will valid. Id., at 1129. Back in the federal forum, Pierce sought district-court review of the Bankruptcy Court's judgment. While rejecting the Bankruptcy Court's determination that Pierce had forfeited any argument based on the probate exception, the District Court held that the exception did not reach Vickie's claim. 264 B.R. 609, 619-625 (CD Cal. 2001). The Bankruptcy Court "did not assert jurisdiction generally over the probate proceedings . . . or take control over [the] estate's assets," the District Court observed, id., at 621, "[t]hus, the probate exception would bar federal jurisdiction over Vickie's counterclaim only if such jurisdiction would `interfere' with the probate proceedings," ibid. (quoting Markham, 326 U. S., at 494). Federal jurisdiction would not "interfere" with the probate proceedings, the District Court concluded, because: (1) success on Vickie's counterclaim did not necessitate any declaration that J. Howard's will was invalid, 264 B.R., at 621; and (2) under Texas law, probate courts do not have exclusive jurisdiction to entertain claims of the kind asserted in Vickie's counterclaim, id., at 622-625. The District Court also held that Vickie's claim did not qualify as a "core proceedin[g] arising under title 11, or arising in a case under title 11." 28 U.S. C. § 157(b)(1); see 264 *303 B. R., at 625-632. A bankruptcy court may exercise plenary power only over "core proceedings." See § 157(b)-(c).[2] In noncore matters, a bankruptcy court may not enter final judgment; it has authority to issue only proposed findings of fact and conclusions of law, which are reviewed de novo by the district court. See § 157(c)(1). Accordingly, the District Court treated the Bankruptcy Court's judgment as "proposed[,] rather than final," and undertook a "comprehensive, complete, and independent review of" the Bankruptcy Court's determinations. Id., at 633. *304 Adopting and supplementing the Bankruptcy Court's findings, the District Court determined that Pierce had tortiously interfered with Vickie's expectancy. Specifically, the District Court found that J. Howard directed his lawyers to prepare an inter vivos trust for Vickie consisting of half the appreciation of his assets from the date of their marriage. See 275 B.R., at 25-30, 51-53. It further found that Pierce conspired to suppress or destroy the trust instrument and to strip J. Howard of his assets by backdating, altering, and otherwise falsifying documents, arranging for surveillance of J. Howard and Vickie, and presenting documents to J. Howard under false pretenses. See id., at 36-50, 57-58; see also 253 B.R., at 554-556, 559-560. Based on these findings, the District Court awarded Vickie some $44.3 million in compensatory damages. 275 B.R., at 53-57. In addition, finding "overwhelming" evidence of Pierce's "willfulness, maliciousness, and fraud," the District Court awarded an equal amount in punitive damages. Id., at 57-58. The Court of Appeals for the Ninth Circuit reversed. The appeals court recognized that Vickie's claim "does not involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F.3d, at 1133. Nevertheless, the court held that the probate exception bars federal jurisdiction in this case. In the Ninth Circuit's view, a claim falls within the probate exception if it raises "questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument," whether those questions involve "fraud, undue influence[, or] tortious interference with the testator's intent." Ibid. The Ninth Circuit was also of the view that state-court delineation of a probate court's exclusive adjudicatory authority could control federal subject-matter jurisdiction. In this regard, the Court of Appeals stated: "Where a state has relegated jurisdiction over probate matters to a special court *305 and [the] state's trial courts of general jurisdiction do not have jurisdiction to hear probate matters, then the federal courts also lack jurisdiction over probate matters." Id., at 1136. Noting that "[t]he [P]robate [C]ourt ruled it had exclusive jurisdiction over all of Vickie[`s] claims," the Ninth Circuit held that "ruling . . . binding on the United States [D]istrict [C]ourt." Ibid. (citing Durfee v. Duke, 375 U.S. 106, 115-116 (1963)). We granted certiorari, 545 U.S. 1165 (2005), to resolve the apparent confusion among federal courts concerning the scope of the probate exception. Satisfied that the instant case does not fall within the ambit of the narrow exception recognized by our decisions, we reverse the Ninth Circuit's judgment. II In Ankenbrandt v. Richards, 504 U.S. 689 (1992), we addressed both the derivation and the limits of the "domestic relations exception" to the exercise of federal jurisdiction. Carol Ankenbrandt, a citizen of Missouri, brought suit in Federal District Court on behalf of her daughters, naming as defendants their father (Ankenbrandt's former husband) and his female companion, both citizens of Louisiana. Id., at 691. Ankenbrandt's complaint sought damages for the defendants' alleged sexual and physical abuse of the children. Ibid. Federal jurisdiction was predicated on diversity of citizenship. Ibid. (citing 28 U.S. C. § 1332). The District Court dismissed the case for lack of subject-matter jurisdiction, holding that Ankenbrandt's suit fell within "the `domestic relations' exception to diversity jurisdiction." 504 U.S., at 692. The Court of Appeals agreed and affirmed. Ibid. We reversed the Court of Appeals' judgment. Id., at 706-707. Holding that the District Court improperly refrained from exercising jurisdiction over Ankenbrandt's tort claim, id., at 704, we traced explanation of the current domestic relations *306 exception to Barber v. Barber, 21 How. 582 (1859). See Ankenbrandt, 504 U. S., at 693-695. In Barber, the Court upheld federal-court authority, in a diversity case, to enforce an alimony award decreed by a state court. In dicta, however, the Barber Court announced—without citation or discussion— that federal courts lack jurisdiction over suits for divorce or the allowance of alimony. 21 How., at 584-589; see Ankenbrandt, 504 U. S., at 693-695. Finding no Article III impediment to federal-court jurisdiction in domestic relations cases, id., at 695-697, the Court in Ankenbrandt anchored the exception in Congress' original provision for diversity jurisdiction, id., at 698-701. Beginning at the beginning, the Court recalled: "The Judiciary Act of 1789 provided that `the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and . . . an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State.'" Id., at 698 (quoting Act of Sept. 24, 1789, § 11, 1 Stat. 78; emphasis added in Ankenbrandt). The defining phrase, "all suits of a civil nature at common law or in equity," the Court stressed, remained in successive statutory provisions for diversity jurisdiction until 1948, when Congress adopted the more economical phrase, "all civil actions." 504 U.S., at 698; 1948 Judicial Code and Judiciary Act, 62 Stat. 930, 28 U.S. C. § 1332. The Barber majority, we acknowledged in Ankenbrandt, did not expressly tie its announcement of a domestic relations exception to the text of the diversity statute. 504 U.S., at 698. But the dissenters in that case made the connection. They stated that English courts of chancery lacked *307 authority to issue divorce and alimony decrees. Because "the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England," Barber, 21 How., at 605 (opinion of Daniel, J.), the dissenters reasoned, our federal courts similarly lack authority to decree divorces or award alimony, ibid. Such relief, in other words, would not fall within the diversity statute's original grant of jurisdiction over "all suits of a civil nature at common law or in equity." We concluded in Ankenbrandt that "it may be inferred fairly that the jurisdictional limitation recognized by the [Barber] Court rested on th[e] statutory basis" indicated by the dissenters in that case. 504 U.S., at 699. We were "content" in Ankenbrandt "to rest our conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of the historical justifications on which [the exception] was seemingly based." Id., at 700. "[R]ather," we relied on "Congress' apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 1948, when the statute limited jurisdiction to `suits of a civil nature at common law or in equity.'" Ibid. (quoting 1 Stat. 78). We further determined that Congress did not intend to terminate the exception in 1948 when it "replace[d] the law/equity distinction with the phrase `all civil actions.'" 504 U.S., at 700. Absent contrary indications, we presumed that Congress meant to leave undisturbed "the Court's nearly century-long interpretation" of the diversity statute "to contain an exception for certain domestic relations matters." Ibid. We nevertheless emphasized in Ankenbrandt that the exception covers only "a narrow range of domestic relations issues." Id., at 701. The Barber Court itself, we reminded, "sanctioned the exercise of federal jurisdiction over the enforcement of an alimony decree that had been properly obtained in a state court of competent jurisdiction." 504 U.S., at 702. Noting that some lower federal courts had applied *308 the domestic relations exception "well beyond the circumscribed situations posed by Barber and its progeny," id., at 701, we clarified that only "divorce, alimony, and child custody decrees" remain outside federal jurisdictional bounds, id., at 703, 704. While recognizing the "special proficiency developed by state tribunals . . . in handling issues that arise in the granting of [divorce, alimony, and child custody] decrees," id., at 704, we viewed federal courts as equally equipped to deal with complaints alleging the commission of torts, ibid. III Federal jurisdiction in this case is premised on 28 U.S. C. § 1334, the statute vesting in federal district courts jurisdiction in bankruptcy cases and related proceedings. Decisions of this Court have recognized a "probate exception," kin to the domestic relations exception, to otherwise proper federal jurisdiction. See Markham, 326 U. S., at 494; see also Sutton v. English, 246 U.S. 199 (1918); Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33 (1909). Like the domestic relations exception, the probate exception has been linked to language contained in the Judiciary Act of 1789. Markham, the Court's most recent and pathmarking pronouncement on the probate exception, stated that "the equity jurisdiction conferred by the Judiciary Act of 1789 . . ., which is that of the English Court of Chancery in 1789, did not extend to probate matters." 326 U.S., at 494. See generally Nicolas, Fighting the Probate Mafia: A Dissection of the Probate Exception to Federal Court Jurisdiction, 74 S. Cal. L. Rev. 1479 (2001). As in Ankenbrandt, so in this case, "[w]e have no occasion . . . to join the historical debate" over the scope of English chancery jurisdiction in 1789, 504 U.S., at 699, for Vickie Marshall's claim falls far outside the bounds of the probate exception described in Markham. We therefore need not consider in this case whether there exists any *309 uncodified probate exception to federal bankruptcy jurisdiction under § 1334.[3] In Markham, the plaintiff Alien Property Custodian [4] commenced suit in Federal District Court against an executor and resident heirs to determine the Custodian's asserted rights regarding a decedent's estate. 326 U.S., at 491-492. Jurisdiction was predicated on § 24(1) of the Judicial Code, now 28 U.S. C. § 1345, which provides for federal jurisdiction over suits brought by an officer of the United States. At the time the federal suit commenced, the estate was undergoing *310 probate administration in a state court. The Custodian had issued an order vesting in himself all right, title, and interest of German legatees. He sought and gained in the District Court a judgment determining that the resident heirs had no interest in the estate, and that the Custodian, substituting himself for the German legatees, was entitled to the entire net estate, including specified real estate passing under the will. Reversing the Ninth Circuit, which had ordered the case dismissed for want of federal subject-matter jurisdiction, this Court held that federal jurisdiction was properly invoked. The Court first stated: "It is true that a federal court has no jurisdiction to probate a will or administer an estate . . . . But it has been established by a long series of decisions of this Court that federal courts of equity have jurisdiction to entertain suits `in favor of creditors, legatees and heirs' and other claimants against a decedent's estate `to establish their claims' so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court." 326 U.S., at 494 (quoting Waterman, 215 U. S., at 43). Next, the Court described a probate exception of distinctly limited scope: "[W]hile a federal court may not exercise its jurisdiction to disturb or affect the possession of property in the custody of a state court, . . . it may exercise its jurisdiction to adjudicate rights in such property where the final judgment does not undertake to interfere with the state court's possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court." 326 U.S., at 494. The first of the above-quoted passages from Markham is not a model of clear statement. The Court observed that *311 federal courts have jurisdiction to entertain suits to determine the rights of creditors, legatees, heirs, and other claimants against a decedent's estate, "so long as the federal court does not interfere with the probate proceedings." Ibid. (emphasis added). Lower federal courts have puzzled over the meaning of the words "interfere with the probate proceedings," and some have read those words to block federal jurisdiction over a range of matters well beyond probate of a will or administration of a decedent's estate. See, e. g., Mangieri v. Mangieri, 226 F.3d 1, 2-3 (CA1 2000) (breach of fiduciary duty by executor); Golden ex rel. Golden v. Golden, 382 F.3d 348, 360-362 (CA3 2004) (same); Lepard v. NBD Bank, Div. of Bank One, 384 F.3d 232, 234-237 (CA6 2004) (breach of fiduciary duty by trustee); Storm v. Storm, 328 F.3d 941, 943-945 (CA7 2003) (probate exception bars claim that plaintiff's father tortiously interfered with plaintiff's inheritance by persuading trust grantor to amend irrevocable inter vivos trust); Rienhardt v. Kelly, 164 F.3d 1296, 1300-1301 (CA10 1999) (probate exception bars claim that defendants exerted undue influence on testator and thereby tortiously interfered with plaintiff's expected inheritance). We read Markham's enigmatic words, in sync with the second above-quoted passage, to proscribe "disturb[ing] or affect[ing] the possession of property in the custody of a state court." 326 U.S., at 494. True, that reading renders the first-quoted passage in part redundant, but redundancy in this context, we do not doubt, is preferable to incoherence. In short, we comprehend the "interference" language in Markham as essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. See, e. g., Penn General Casualty Co. v. Pennsylvania ex rel. Schnader, 294 U.S. 189, 195-196 (1935); Waterman, 215 U. S., at 45-46. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it also *312 precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction. A As the Court of Appeals correctly observed, Vickie's claim does not "involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F.3d, at 1133. Provoked by Pierce's claim in the bankruptcy proceedings, Vickie's claim, like Carol Ankenbrandt's, alleges a widely recognized tort. See King v. Acker, 725 S.W.2d 750, 754 (Tex. App. 1987); 4 Restatement (Second) of Torts § 774B (1977) ("One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that [s]he would otherwise have received is subject to liability to the other for loss of the inheritance or gift."). Vickie seeks an in personam judgment against Pierce, not the probate or annulment of a will. Cf. Sutton, 246 U. S., at 208 (suit to annul a will found "supplemental to the proceedings for probate of the will" and therefore not cognizable in federal court). Nor does she seek to reach a res in the custody of a state court. See Markham, 326 U. S., at 494. Furthermore, no "sound policy considerations" militate in favor of extending the probate exception to cover the case at hand. Cf. Ankenbrandt, 504 U. S., at 703. Trial courts, both federal and state, often address conduct of the kind Vickie alleges. State probate courts possess no "special proficiency . . . in handling [such] issues." Cf. id., at 704. B The Court of Appeals advanced an alternate basis for its conclusion that the federal courts lack jurisdiction over Vickie's claim. Noting that the Texas Probate Court "ruled it had exclusive jurisdiction over all of Vickie Lynn Marshall's *313 claims against E. Pierce Marshall," the Ninth Circuit held that "ruling . . . binding on the United States [D]istrict [C]ourt." 392 F.3d, at 1136. We reject that determination. Texas courts have recognized a state-law tort action for interference with an expected inheritance or gift, modeled on the Restatement formulation. See King, 725 S. W. 2d, at 754; Brandes v. Rice Trust, Inc., 966 S.W.2d 144, 146-147 (Tex. App. 1998).[5] It is clear, under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), that Texas law governs the substantive elements of Vickie's tortious interference claim. It is also clear, however, that Texas may not reserve to its probate courts the exclusive right to adjudicate a transitory *314 tort. We have long recognized that "a State cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction." Tennessee Coal, Iron & R. Co. v. George, 233 U.S. 354, 360 (1914). Jurisdiction is determined "by the law of the court's creation and cannot be defeated by the extraterritorial operation of a [state] statute . . ., even though it created the right of action." Ibid. Directly on point, we have held that the jurisdiction of the federal courts, "having existed from the beginning of the Federal government, [can]not be impaired by subsequent state legislation creating courts of probate." McClellan v. Carland, 217 U.S. 268, 281 (1910) (upholding federal jurisdiction over action by heirs of decedent, who died intestate, to determine their rights in the estate (citing Waterman, 215 U.S. 33)). Our decision in Durfee v. Duke, 375 U.S. 106 (1963), relied upon by the Ninth Circuit, 392 F.3d, at 1136, is not to the contrary. Durfee stands only for the proposition that a state court's final judgment determining its own jurisdiction ordinarily qualifies for full faith and credit, so long as the jurisdictional issue was fully and fairly litigated in the court that rendered the judgment. See 375 U.S., at 111, 115. At issue here, however, is not the Texas Probate Court's jurisdiction, but the federal courts' jurisdiction to entertain Vickie's tortious interference claim. Under our federal system, Texas cannot render its probate courts exclusively competent to entertain a claim of that genre. We therefore hold that the District Court properly asserted jurisdiction over Vickie's counterclaim against Pierce. IV After determining that Vickie's claim was not a "core proceeding," the District Court reviewed the case de novo and entered its final judgment on March 7, 2002. 275 B.R., at 5-8. The Texas Probate Court's judgment became final on February 11, 2002, nearly one month earlier. App. to Pet. *315 for Cert. 41. The Court of Appeals considered only the issue of federal subject-matter jurisdiction. It did not address the question whether Vickie's claim was "core"; nor did it address Pierce's arguments concerning claim and issue preclusion. 392 F.3d, at 1137. These issues remain open for consideration on remand. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, concurring in part and concurring in the judgment.

In Cohens v. Virginia, Chief Justice Marshall famously cautioned: "It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. We have no more right to decline the exercise of jurisdiction which is given, than to *299 usurp that which is not given." Among longstanding limitations on federal jurisdiction otherwise properly exercised are the so-called "domestic relations" and "probate" exceptions. Neither is compelled by the text of the Constitution or federal Both are judicially created doctrines stemming in large measure from misty understandings of English legal history. See, e. g., Atwood, Domestic Relations Cases in Federal Court: Toward a Principled Exercise of Jurisdiction, 35 Hastings L. J. 571, 54-5 (194); ; Winkler, The Probate Jurisdiction of the Federal Courts, 14 Probate L. J. 77, 125-126, and n. 256 (1997) (describing historical explanation for probate exception as "an exercise in mythography"). In the years following Marshall's 121 pronouncement, courts have sometimes lost sight of his admonition and have rendered decisions expansively interpreting the two exceptions. In this Court reined in the "domestic relations exception." Earlier, in the Court endeavored similarly to curtail the "probate exception." Nevertheless, the Ninth in the instant case read the probate exception broadly to exclude from the federal courts' adjudicatory authority "not only direct challenges to a will or trust, but questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument." The Court of Appeals further held that a State's vesting of exclusive jurisdiction over probate matters in a special court strips federal courts of jurisdiction to entertain any "probate related matter," including claims respecting "tax liability, debt, gift, [or] tort." We hold that the Ninth had no warrant from Congress, *300 or from decisions of this Court, for its sweeping extension of the probate exception. I Petitioner, Vickie Lynn Marshall (Vickie), known as Anna Nicole Smith, is the surviving widow of J. Howard Marshall II (J. Howard). Vickie and J. Howard met in October 1991. After a courtship lasting more than two years, they were married on June 27, 1994. J. Howard died on August 4, 1995. Although he lavished gifts and significant sums of money on Vickie during their courtship and marriage, J. Howard did not include anything for Vickie in his According to Vickie, J. Howard intended to provide for her financial security through a gift in the form of a "catchall" trust. Respondent, E. Pierce Marshall (Pierce), one of J. Howard's sons, was the ultimate beneficiary of J. Howard's estate plan, which consisted of a living trust and a "pourover" Under the terms of the will, all of J. Howard's not already included in the trust were to be transferred to the trust upon his death. Competing claims regarding J. Howard's fortune ignited proceedings in both state and federal courts. In January 1996, while J. Howard's estate was subject to ongoing proceedings in Probate Court in Harris County, Texas, Vickie filed for bankruptcy under Chapter 11 of the Bankruptcy Code, 11 U.S. C. 1101 et seq., in the United States Bankruptcy Court for the Central District of California. See In June 1996, Pierce filed a proof of claim in the federal bankruptcy proceeding, ; see 11 U.S. C. 501, alleging that Vickie had defamed him when, shortly after J. Howard's death, lawyers representing Vickie told members of the press that Pierce had engaged in forgery, fraud, and overreaching to gain control of his father's 275 B.R., Pierce sought a declaration that *301 the debt he asserted in that claim was not dischargeable in bankruptcy. [1] Vickie answered, asserting truth as a defense. She filed counterclaims, among them a claim that Pierce had tortiously interfered with a gift she expected. ; see App. 23-25. Vickie alleged that Pierce prevented the transfer of his father's intended gift to her by, among other things: effectively imprisoning J. Howard against his wishes; surrounding him with hired guards for the purpose of preventing personal contact between him and Vickie; making misrepresentations to J. Howard; and transferring property against J. Howard's expressed wishes. Vickie's tortious interference counterclaim turned her objection to Pierce's claim into an adversary proceeding. ; see Fed. Rule Bkrtcy. Proc. 3007. In that proceeding, the Bankruptcy Court granted summary judgment in favor of Vickie on Pierce's claim and, after a trial on the merits, entered judgment for Vickie on her tortious interference counterclaim. See 55-559 The Bankruptcy Court held that both Vickie's objection to Pierce's claim and Vickie's counterclaim qualified as "core proceedings" under 2 U.S. C. 157, which meant that the court had authority to enter a final judgment disposing of those claims. See The court awarded Vickie compensatory damages of more than $449 million—less whatever she recovered in the ongoing probate action in Texas—as well as $25 million in punitive Pierce filed a post-trial motion to dismiss for lack of subject-matter jurisdiction, asserting that Vickie's tortious interference claim could be tried only in the Texas probate proceedings. The Bankruptcy Court held that *302 "the `probate exception' argument was waived" because it was not timely raised. Relying on this Court's decision in the court observed that a federal court has jurisdiction to "adjudicate rights in probate property, so long as its final judgment does not undertake to interfere with the state court's possession of the property." 257 B.R., at 3 (citing ). Meanwhile, in the Texas Probate Court, Pierce sought a declaration that the living trust and his father's will were -1125. Vickie, in turn, challenged the validity of the will and filed a tortious interference claim against Pierce, ib but voluntarily dismissed both claims once the Bankruptcy Court entered its judgment, at 112. Following a jury trial, the Probate Court declared the living trust and J. Howard's will Back in the federal forum, Pierce sought district-court review of the Bankruptcy Court's judgment. While rejecting the Bankruptcy Court's determination that Pierce had forfeited any argument based on the probate exception, the District Court held that the exception did not reach Vickie's claim. The Bankruptcy Court "did not assert jurisdiction generally over the probate proceedings or take control over [the] estate's" the District Court observed, "[t]hus, the probate exception would bar federal jurisdiction over Vickie's counterclaim only if such jurisdiction would `interfere' with the probate proceedings," (quoting ). Federal jurisdiction would not "interfere" with the probate proceedings, the District Court concluded, because: (1) success on Vickie's counterclaim did not necessitate any declaration that J. Howard's will was 264 B.R., ; and (2) under Texas law, probate courts do not have exclusive jurisdiction to entertain claims of the kind asserted in Vickie's counterclaim, The District Court held that Vickie's claim did not qualify as a "core proceedin[g] arising under title 11, or arising in a case under title 11." 2 U.S. C. 157(b)(1); see 264 *-632. A bankruptcy court may exercise plenary power only over "core proceedings." See 157(b)-(c).[2] In noncore matters, a bankruptcy court may not enter final judgment; it has authority to issue only proposed findings of fact and conclusions of law, which are reviewed de novo by the district court. See 157(c)(1). Accordingly, the District Court treated the Bankruptcy Court's judgment as "proposed[,] rather than final," and undertook a "comprehensive, complete, and independent review of" the Bankruptcy Court's determinations. *304 Adopting and supplementing the Bankruptcy Court's findings, the District Court determined that Pierce had tortiously interfered with Vickie's expectancy. Specifically, the District Court found that J. Howard directed his lawyers to prepare an inter vivos trust for Vickie consisting of half the appreciation of his from the date of their marriage. See -30, 51-53. It further found that Pierce conspired to suppress or destroy the trust instrument and to strip J. Howard of his by backdating, altering, and otherwise falsifying documents, arranging for surveillance of J. Howard and Vickie, and presenting documents to J. Howard under false pretenses. See -50, 57-5; see -556, 559-560. Based on these findings, the District Court awarded Vickie some $44.3 million in compensatory -57. In addition, finding "overwhelming" evidence of Pierce's "willfulness, maliciousness, and fraud," the District Court awarded an equal amount in punitive at 57-5. The Court of Appeals for the Ninth reversed. The appeals court recognized that Vickie's claim "does not involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F.3d, at Nevertheless, the court held that the probate exception bars federal jurisdiction in this case. In the Ninth 's view, a claim falls within the probate exception if it raises "questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument," whether those questions involve "fraud, undue influence[, or] tortious interference with the testator's intent." The Ninth was of the view that state-court delineation of a probate court's exclusive adjudicatory authority could control federal subject-matter jurisdiction. In this regard, the Court of Appeals stated: "Where a state has relegated jurisdiction over probate matters to a special court *305 and [the] state's trial courts of general jurisdiction do not have jurisdiction to hear probate matters, then the federal courts lack jurisdiction over probate matters." Noting that "[t]he [P]robate [C]ourt ruled it had exclusive jurisdiction over all of Vickie[`s] claims," the Ninth held that "ruling binding on the United States [D]istrict [C]ourt." ). We granted certiorari, to resolve the apparent confusion among federal courts concerning the scope of the probate exception. Satisfied that the instant case does not fall within the ambit of the narrow exception recognized by our decisions, we reverse the Ninth 's judgment. II In we addressed both the derivation and the limits of the "domestic relations exception" to the exercise of federal jurisdiction. Carol a citizen of Missouri, brought suit in Federal District Court on behalf of her daughters, naming as defendants their father ('s former husband) and his female companion, both citizens of Louisiana. 's complaint sought damages for the defendants' alleged sexual and physical abuse of the children. Federal jurisdiction was predicated on diversity of citizenship. (citing 2 U.S. C. 1332). The District Court dismissed the case for lack of subject-matter jurisdiction, holding that 's suit fell within "the `domestic relations' exception to diversity jurisdiction." The Court of Appeals agreed and affirmed. We reversed the Court of Appeals' judgment. Holding that the District Court improperly refrained from exercising jurisdiction over 's tort claim, we traced explanation of the current domestic relations *306 exception to 21 How. 52 (159). See -695. In the Court upheld federal-court authority, in a diversity case, to enforce an alimony award decreed by a state court. In dicta, however, the Court announced—without citation or discussion— that federal courts lack jurisdiction over suits for divorce or the allowance of alimony. 21 How., at 54-59; see -695. Finding no Article III impediment to federal-court jurisdiction in domestic relations cases, the Court in anchored the exception in Congress' original provision for diversity jurisdiction, at 69-701. Beginning at the beginning, the Court recalled: "The Judiciary Act of 179 provided that `the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State.'" at 69 (quoting Act of Sept. 24, 179, 11, 1 Stat. 7; emphasis added in ). The defining phrase, "all suits of a civil nature at common law or in equity," the Court stressed, remained in successive statutory provisions for diversity jurisdiction until 194, when Congress adopted the more economical phrase, "all civil actions." 504 U.S., at 69; 194 Judicial Code and Judiciary Act, 2 U.S. C. 1332. The majority, we acknowledged in did not expressly tie its announcement of a domestic relations exception to the text of the diversity 504 U.S., at 69. But the dissenters in that case made the connection. They stated that English courts of chancery lacked *307 authority to issue divorce and alimony decrees. Because "the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England," the dissenters reasoned, our federal courts similarly lack authority to decree divorces or award alimony, Such relief, in other words, would not fall within the diversity statute's original grant of jurisdiction over "all suits of a civil nature at common law or in equity." We concluded in that "it may be inferred fairly that the jurisdictional limitation recognized by the [] Court rested on th[e] statutory basis" indicated by the dissenters in that case. We were "content" in "to rest our conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of the historical justifications on which [the exception] was seemingly based." "[R]ather," we relied on "Congress' apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 194, when the statute limited jurisdiction to `suits of a civil nature at common law or in equity.'" (quoting 1 Stat. 7). We further determined that Congress did not intend to terminate the exception in 194 when it "replace[d] the law/equity distinction with the phrase `all civil actions.'" 504 U.S., Absent contrary indications, we presumed that Congress meant to leave undisturbed "the Court's nearly century-long interpretation" of the diversity statute "to contain an exception for certain domestic relations matters." We nevertheless emphasized in that the exception covers only "a narrow range of domestic relations issues." The Court itself, we reminded, "sanctioned the exercise of federal jurisdiction over the enforcement of an alimony decree that had been properly obtained in a state court of competent jurisdiction." Noting that some lower federal courts had applied *30 the domestic relations exception "well beyond the circumscribed situations posed by and its progeny," we clarified that only "divorce, alimony, and child custody decrees" remain outside federal jurisdictional bounds, While recognizing the "special proficiency developed by state tribunals in handling issues that arise in the granting of [divorce, alimony, and child custody] decrees," we viewed federal courts as equally equipped to deal with complaints alleging the commission of torts, III Federal jurisdiction in this case is premised on 2 U.S. C. 1334, the statute vesting in federal district courts jurisdiction in bankruptcy cases and related proceedings. Decisions of this Court have recognized a "probate exception," kin to the domestic relations exception, to otherwise proper federal jurisdiction. See ; see (191); Like the domestic relations exception, the probate exception has been linked to language contained in the Judiciary Act of 179. the Court's most recent and pathmarking pronouncement on the probate exception, stated that "the equity jurisdiction conferred by the Judiciary Act of 179, which is that of the English Court of Chancery in 179, did not extend to probate matters." See generally Nicolas, Fighting the Probate Mafia: A Dissection of the Probate Exception to Federal Court Jurisdiction, As in so in this case, "[w]e have no occasion to join the historical debate" over the scope of English chancery jurisdiction in 179, for Vickie Marshall's claim falls far outside the bounds of the probate exception described in We therefore need not consider in this case whether there exists any *309 uncodified probate exception to federal bankruptcy jurisdiction under 1334.[3] In the plaintiff Alien Property Custodian [4] commenced suit in Federal District Court against an executor and resident heirs to determine the Custodian's asserted rights regarding a decedent's -492. Jurisdiction was predicated on 24(1) of the Judicial Code, now 2 U.S. C. 1345, which provides for federal jurisdiction over suits brought by an officer of the United States. At the time the federal suit commenced, the estate was undergoing *310 probate administration in a state court. The Custodian had issued an order vesting in himself all right, title, and interest of German legatees. He sought and gained in the District Court a judgment determining that the resident heirs had no interest in the estate, and that the Custodian, substituting himself for the German legatees, was entitled to the entire net estate, including specified real estate passing under the Reversing the Ninth which had ordered the case dismissed for want of federal subject-matter jurisdiction, this Court held that federal jurisdiction was properly invoked. The Court first stated: "It is true that a federal court has no jurisdiction to probate a will or administer an estate But it has been established by a long series of decisions of this Court that federal courts of equity have jurisdiction to entertain suits `in favor of creditors, legatees and heirs' and other claimants against a decedent's estate `to establish their claims' so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court." (quoting ). Next, the Court described a probate exception of distinctly limited scope: "[W]hile a federal court may not exercise its jurisdiction to disturb or affect the possession of property in the custody of a state court, it may exercise its jurisdiction to adjudicate rights in such property where the final judgment does not undertake to interfere with the state court's possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court." The first of the above-quoted passages from is not a model of clear statement. The Court observed that *311 federal courts have jurisdiction to entertain suits to determine the rights of creditors, legatees, heirs, and other claimants against a decedent's estate, "so long as the federal court does not interfere with the probate proceedings." Lower federal courts have puzzled over the meaning of the words "interfere with the probate proceedings," and some have read those words to block federal jurisdiction over a range of matters well beyond probate of a will or administration of a decedent's See, e. g., ; Golden ex rel. 32 F.3d 34, ; 34 F.3d 232, ; 32 F.3d 941, ; We read 's enigmatic words, in sync with the second above-quoted passage, to proscribe "disturb[ing] or affect[ing] the possession of property in the custody of a state court." True, that reading renders the first-quoted passage in part redundant, but redundancy in this context, we do not doubt, is preferable to incoherence. In short, we comprehend the "interference" language in as essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. See, e. g., Penn General Casualty 294 U.S. 19, ; -46. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it *312 precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction. A As the Court of Appeals correctly observed, Vickie's claim does not "involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F.3d, at Provoked by Pierce's claim in the bankruptcy proceedings, Vickie's claim, like Carol 's, alleges a widely recognized tort. See (Tex. App. 197); 4 Restatement (Second) of Torts 774B (1977) ("One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that [s]he would otherwise have received is subject to liability to the other for loss of the inheritance or gift."). Vickie seeks an in personam judgment against Pierce, not the probate or annulment of a Cf. Sutton, 246 U. S., at 20 Nor does she seek to reach a res in the custody of a state court. See Furthermore, no "sound policy considerations" militate in favor of extending the probate exception to cover the case at hand. Cf. Trial courts, both federal and state, often address conduct of the kind Vickie alleges. State probate courts possess no "special proficiency in handling [such] issues." Cf. B The Court of Appeals advanced an alternate basis for its conclusion that the federal courts lack jurisdiction over Vickie's claim. Noting that the Texas Probate Court "ruled it had exclusive jurisdiction over all of Vickie Lynn Marshall's *313 claims against E. Pierce Marshall," the Ninth held that "ruling binding on the United States [D]istrict [C]ourt." 392 F.3d, We reject that determination. Texas courts have recognized a state-law tort action for interference with an expected inheritance or gift, modeled on the Restatement formulation. See King, 725 S. W. 2d, at ; (Tex. App. 199).[5] It is clear, under Erie R. (193), that Texas law governs the substantive elements of Vickie's tortious interference claim. It is clear, however, that Texas may not reserve to its probate courts the exclusive right to adjudicate a transitory *314 tort. We have long recognized that "a State cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction." Tennessee Coal, Iron & R. Jurisdiction is determined "by the law of the court's creation and cannot be defeated by the extraterritorial operation of a [state] statute, even though it created the right of action." Directly on point, we have held that the jurisdiction of the federal courts, "having existed from the beginning of the Federal government, [can]not be impaired by subsequent state legislation creating courts of probate." 217 U.S. 26, 21 (upholding federal jurisdiction over action by heirs of decedent, who died intestate, to determine their rights in the estate (citing )). Our decision in relied upon by the Ninth 392 F.3d, is not to the contrary. Durfee stands only for the proposition that a state court's final judgment determining its own jurisdiction ordinarily qualifies for full faith and credit, so long as the jurisdictional issue was fully and fairly litigated in the court that rendered the judgment. See 115. At issue here, however, is not the Texas Probate Court's jurisdiction, but the federal courts' jurisdiction to entertain Vickie's tortious interference claim. Under our federal system, Texas cannot render its probate courts exclusively competent to entertain a claim of that genre. We therefore hold that the District Court properly asserted jurisdiction over Vickie's counterclaim against Pierce. IV After determining that Vickie's claim was not a "core proceeding," the District Court reviewed the case de novo and entered its final judgment on March 7, -. The Texas Probate Court's judgment became final on February 11, nearly one month earlier. App. to Pet. *315 for Cert. 41. The Court of Appeals considered only the issue of federal subject-matter jurisdiction. It did not address the question whether Vickie's claim was "core"; nor did it address Pierce's arguments concerning claim and issue These issues remain open for consideration on remand. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, concurring in part and concurring in the judgment.

Justice Stevens

concurring

Marshall v. Marshall

2006-05-01

https://www.courtlistener.com/opinion/145660/marshall-v-marshall/

https://www.courtlistener.com/api/rest/v3/clusters/145660/

2005-051

The administration of decedents' estates typically is governed by rules of state law and conducted by state probate courts. Occasionally, however, disputes between interested parties arise, either in the probate proceeding itself or elsewhere, that qualify as cases or controversies that federal courts have jurisdiction to decide. See, e. g., Reed v. Reed, 404 U.S. 71 (1971). In her opinion for the Court, Justice GINSBURG has cogently explained why this is such a case. I write separately to explain why I do not believe there is any "probate exception" that ousts a federal court of jurisdiction it otherwise possesses. The familiar aphorism that hard cases make bad law should extend to easy cases as well. Markham v. Allen, 326 U.S. 490 (1946), like this case, was an easy case. In Markham, as here, it was unnecessary to question the historical or logical underpinnings of the probate exception to federal jurisdiction because, whatever the scope of the supposed exception, it did not extend to the case at hand. But Markham's obiter dicta—dicta that the Court now describes as redundant if not incoherent, ante, at 311—generated both *316 confusion and abdication of the obligation Chief Justice Marshall so famously articulated, see Cohens v. Virginia, 6 Wheat. 264, 404 (1821); see also ante, at 298-299. While the Court today rightly abandons much of that dicta, I would go further. The Court is content to adopt the approach it followed in Ankenbrandt v. Richards, 504 U.S. 689 (1992), and to accept as foundation for the probate exception Markham's bald assertion that the English High Court of Chancery's jurisdiction did not "extend to probate matters" in 1789. 326 U.S., at 494; see ante, at 308. I would not accept that premise. Not only had the theory Markham espoused been only sporadically and tentatively cited as justification for the exception,[1] but the most comprehensive article on the subject has persuasively demonstrated that Markham's assertion is "an exercise in mythography."[2] Markham's theory apparently is the source of the Court's reformulated exception, which "reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate." Ante, at 311. Although undoubtedly narrower in scope than Markham's ill-considered description of the probate carve-out, this description also *317 sweeps too broadly. For the Court has correctly upheld the exercise of federal jurisdiction over actions involving the annulment of wills and the administration of decedents' estates. In Gaines v. Fuentes, 92 U.S. 10 (1876), for example, the Court held that a defendant in an action to annul a will should be permitted to remove the case to federal court. In so doing, it explained: "[W]henever a controversy in a suit . . . arises respecting the validity or construction of a will, or the enforcement of a decree admitting it to probate, there is no more reason why the Federal courts should not take jurisdiction of the case than there is that they should not take jurisdiction of any other controversy between the parties." Id., at 22. Likewise, in Payne v. Hook, 7 Wall. 425 (1869), the Court explained that it was "well settled that a court of chancery, as an incident to its power to enforce trusts, and make those holding a fiduciary relation account, has jurisdiction to compel executors and administrators to account and distribute the assets in their hands." Id., at 431. (In that same case, a federal court later appointed a Special Master to administer the estate. This Court upheld some of the Master's determinations and rejected others. See Hook v. Payne, 14 Wall. 252, 255 (1872).) To be sure, there are cases that support limitations on federal courts' jurisdiction over the probate and annulment of wills and the administration of decedents' estates. But careful examination reveals that at least most of the limitations so recognized stem not from some sui generis exception, but rather from generally applicable jurisdictional rules. Cf. Ellis v. Davis, 109 U.S. 485, 497 (1883) ("Jurisdiction as to wills, and their probate as such, is neither included in nor excepted out of the grant of judicial power to the courts of the United States"). Some of those rules, like the rule that diversity jurisdiction will not attach absent an inter *318 partes controversy, plainly are still relevant today. See, e. g., Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 44-45 (1909); see also id., at 46 (reaffirming the in gremio legis principle). Others, like the rule that a bill in equity will lie only where there is no adequate remedy elsewhere, have less straightforward application in the wake of 20th-century jurisdictional developments. See, e. g., Case of Broderick's Will, 21 Wall. 503, 510-512 (1875); Ellis, 109 U. S., at 503 (denying relief where plaintiff had "a plain, adequate and complete remedy at law"); see also Winkler, supra n. 2, at 112-113. Whatever the continuing viability of these individual rules, together they are more than adequate to the task of cabining federal courts' jurisdiction. They require no helping hand from the so-called probate exception. Rather than preserving whatever vitality that the "exception" has retained as a result of the Markham dicta, I would provide the creature with a decent burial in a grave adjacent to the resting place of the Rooker-Feldman doctrine. See Lance v. Dennis, 546 U.S. 459, 468 (2006) (Stevens, J., dissenting).

The administration of decedents' estates typically is governed by rules of state law and conducted by state probate courts. Occasionally, however, disputes between interested parties arise, either in the probate proceeding itself or elsewhere, that qualify as cases or controversies that federal courts have jurisdiction to decide. See, e. g., In her opinion for the Court, Justice GINSBURG has cogently explained why this is such a case. I write separately to explain why I do not believe there is any "probate exception" that ousts a federal court of jurisdiction it otherwise possesses. The familiar aphorism that hard cases make bad law should extend to easy cases as well. like this case, was an easy case. In Markham, as here, it was unnecessary to question the historical or logical underpinnings of the probate exception to federal jurisdiction because, whatever the scope of the supposed exception, it did not extend to the case at hand. But Markham's obiter dicta—dicta that the Court now describes as redundant if not incoherent, ante, at 311—generated both *316 confusion and abdication of the obligation Chief Justice Marshall so famously articulated, see ; see also ante, at 298-299. While the Court today rightly abandons much of that dicta, I would go further. The Court is content to adopt the approach it followed in and to accept as foundation for the probate exception Markham's bald assertion that the English High Court of Chancery's jurisdiction did not "extend to probate matters" in ; see ante, at 308. I would not accept that premise. Not only had the theory Markham espoused been only sporadically and tentatively cited as justification for the exception,[1] but the most comprehensive article on the subject has persuasively demonstrated that Markham's assertion is "an exercise in mythography."[2] Markham's theory apparently is the source of the Court's reformulated exception, which "reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate." Ante, at 311. Although undoubtedly narrower in scope than Markham's ill-considered description of the probate carve-out, this description also *317 sweeps too broadly. For the Court has correctly upheld the exercise of federal jurisdiction over actions involving the annulment of wills and the administration of decedents' estates. In for example, the Court held that a defendant in an action to annul a will should be permitted to remove the case to federal court. In so doing, it explained: "[W]henever a controversy in a suit arises respecting the validity or construction of a will, or the enforcement of a decree admitting it to probate, there is no more reason why the Federal courts should not take jurisdiction of the case than there is that they should not take jurisdiction of any other controversy between the parties." Likewise, in the Court explained that it was "well settled that a court of chancery, as an incident to its power to enforce trusts, and make those holding a fiduciary relation account, has jurisdiction to compel executors and administrators to account and distribute the assets in their hands.") To be sure, there are cases that support limitations on federal courts' jurisdiction over the probate and annulment of wills and the administration of decedents' estates. But careful examination reveals that at least most of the limitations so recognized stem not from some sui generis exception, but rather from generally applicable jurisdictional rules. Cf. Some of those rules, like the rule that diversity jurisdiction will not attach absent an inter *318 partes controversy, plainly are still relevant today. See, e. g., ; see also Others, like the rule that a bill in equity will lie only where there is no adequate remedy elsewhere, have less straightforward application in the wake of 20th-century jurisdictional developments. See, e. g., Case of Broderick's Will, ; ; see also at 112-113. Whatever the continuing viability of these individual rules, together they are more than adequate to the task of cabining federal courts' jurisdiction. They require no helping hand from the so-called probate exception. Rather than preserving whatever vitality that the "exception" has retained as a result of the Markham dicta, I would provide the creature with a decent burial in a grave adjacent to the resting place of the Rooker-Feldman doctrine. See

Justice Breyer

majority

Standard Fire Ins. Co. v. Knowles

2013-03-19

https://www.courtlistener.com/opinion/855517/standard-fire-ins-co-v-knowles/

https://www.courtlistener.com/api/rest/v3/clusters/855517/

2012-026

The Class Action Fairness Act of 2005 (CAFA) provides that the federal “district courts shall have original juris- diction” over a civil “class action” if, among other things, the “matter in controversy exceeds the sum or value of $5,000,000.” 28 U.S. C. §§1332(d)(2), (5). The statute adds that “to determine whether the matter in controversy exceeds the sum or value of $5,000,000,” the “claims of the individual class members shall be aggregated.” §1332(d)(6). The question presented concerns a class-action plaintiff who stipulates, prior to certification of the class, that he, and the class he seeks to represent, will not seek damages that exceed $5 million in total. Does that stipulation remove the case from CAFA’s scope? In our view, it does not. I In April 2011 respondent, Greg Knowles, filed this proposed class action in an Arkansas state court against petitioner, the Standard Fire Insurance Company. Knowles claimed that, when the company had made cer- 2 STANDARD FIRE INS. CO. v. KNOWLES Opinion of the Court tain homeowner’s insurance loss payments, it had un- lawfully failed to include a general contractor fee. And Knowles sought to certify a class of “hundreds, and pos- sibly thousands” of similarly harmed Arkansas policyhold- ers. App. to Pet. for Cert. 66. In describing the relief sought, the complaint says that the “Plaintiff and Class stipulate they will seek to recover total aggregate damages of less than five million dollars.” Id., at 60. An attached affidavit stipulates that Knowles “will not at any time during this case . . . seek damages for the class . . . in excess of $5,000,000 in the aggregate.” Id., at 75. On May 18, 2011, the company, pointing to CAFA’s jurisdictional provision, removed the case to Federal Dis- trict Court. See 28 U.S. C. §1332(d); §1453. Knowles argued for remand on the ground that the District Court lacked jurisdiction. He claimed that the “sum or value” of the “amount in controversy” fell beneath the $5 million threshold. App. to Pet. for Cert. 2. On the basis of evi- dence presented by the company, the District Court found that that the “sum or value” of the “amount in contro- versy” would, in the absence of the stipulation, have fallen just above the $5 million threshold. Id., at 2, 8. Nonethe- less, in light of Knowles’ stipulation, the court concluded that the amount fell beneath the threshold. The court con- sequently ordered the case remanded to the state court. Id., at 15. The company appealed from the remand order, but the Eighth Circuit declined to hear the appeal. Id., at 1. See 28 U.S. C. §1453(c)(1) (2006 ed., Supp. V) (providing discretion to hear an appeal from a remand order). The company petitioned for a writ of certiorari. And, in light of divergent views in the lower courts, we granted the writ. Compare Frederick v. Hartford Underwriters Ins. Co., 683 F.3d 1242, 1247 (CA10 2012) (a proposed class-action representative’s “attempt to limit damages in the com- plaint is not dispositive when determining the amount in Cite as: 568 U. S. ____ (2013) 3 Opinion of the Court controversy”); with Rolwing v. Nestle Holdings, Inc., 666 F.3d 1069, 1072 (CA8 2012) (a precertification “bind- ing stipulation limiting damages sought to an amount not exceeding $5 million can be used to defeat CAFA jurisdiction”). II CAFA provides the federal district courts with “original jurisdiction” to hear a “class action” if the class has more than 100 members, the parties are minimally diverse, and the “matter in controversy exceeds the sum or value of $5,000,000.” 28 U.S. C. §§1332(d)(2), (5)(B). To “deter- mine whether the matter in controversy” exceeds that sum, “the claims of the individual class members shall be aggregated.” §1332(d)(6). And those “class members” include “persons (named or unnamed) who fall within the definition of the proposed or certified class.” §1332(d) (1)(D) (emphasis added). As applied here, the statute tells the District Court to determine whether it has jurisdiction by adding up the value of the claim of each person who falls within the definition of Knowles’ proposed class and determine whether the resulting sum exceeds $5 million. If so, there is jurisdiction and the court may proceed with the case. The District Court in this case found that resulting sum would have exceeded $5 million but for the stipulation. And we must decide whether the stipulation makes a critical difference. In our view, it does not. Our reason is a simple one: Stipulations must be binding. See 9 J. Wigmore, Evidence §2588, p. 821 (J. Chadbourn rev. 1981) (defining a “judicial admission or stipulation” as an “express waiver made . . . by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact” (emphasis deleted)); Christian Legal Soc. Chapter of Univ. of Cal., Hast- ings College of Law v. Martinez, 561 U.S. ___, ___ (2010) 4 STANDARD FIRE INS. CO. v. KNOWLES Opinion of the Court (slip op., at 10) (describing a stipulation as “ ‘binding and conclusive’ ” and “ ‘not subject to subsequent variation’ ” (quoting 83 C. J. S., Stipulations §93 (2000))); 9 Wigmore, supra, §2590, at 822 (the “vital feature” of a judicial ad- mission is “universally conceded to be its conclusiveness upon the party making it”). The stipulation Knowles prof- fered to the District Court, however, does not speak for those he purports to represent. That is because a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified. See Smith v. Bayer Corp., 564 U.S. ___, ___ (2011) (slip op., at 15) (“Neither a proposed class action nor a rejected class action may bind nonpar- ties”); id., at ___ (slip op., at 13) (“ ‘[A] nonnamed class member is [not] a party to the class-action litigation before the class is certified’ ” (quoting Devlin v. Scardelletti, 536 U.S. 1, 16, n. 1 (2002) (SCALIA, J., dissenting))); Brief for Respondent 12 (conceding that “a damages limitation . . . cannot have a binding effect on the merits of absent class members’ claims unless and until the class is certified”). Because his precertification stipulation does not bind anyone but himself, Knowles has not reduced the value of the putative class members’ claims. For jurisdictional purposes, our inquiry is limited to examining the case “as of the time it was filed in state court,” Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 390 (1998). At that point, Knowles lacked the authority to concede the amount-in-controversy issue for the absent class members. The Federal District Court, therefore, wrongly concluded that Knowles’ precertification stipulation could overcome its finding that the CAFA jurisdictional threshold had been met. Knowles concedes that “[f]ederal jurisdiction cannot be based on contingent future events.” Brief for Respondent 20. Yet the two legal principles to which we have just Cite as: 568 U. S. ____ (2013) 5 Opinion of the Court referred—that stipulations must be binding and that a named plaintiff cannot bind precertification class mem- bers—mean that the amount to which Knowles has stipu- lated is in effect contingent. If, for example, as Knowles’ complaint asserts, “hun- dreds, and possibly thousands” of persons in Arkansas have similar claims, App. to Pet. for Cert. 66, and if each of those claims places a significant sum in controversy, the state court might certify the class and permit the case to proceed, but only on the condition that the stipulation be excised. Or a court might find that Knowles is an inade- quate representative due to the artificial cap he purports to impose on the class’ recovery. E.g., Back Doctors Ltd. v. Metropolitan Property & Cas. Ins. Co., 637 F.3d 827, 830– 831 (CA7 2011) (noting a class representative’s fiduciary duty not to “throw away what could be a major component of the class’s recovery”). Similarly, another class mem- ber could intervene with an amended complaint (without a stipulation), and the District Court might permit the action to proceed with a new representative. See 5 A. Conte & H. Newberg, Class Actions §16:7, p. 154 (4th ed. 2002) (“[M]embers of a class have a right to intervene if their interests are not adequately represented by existing parties”). Even were these possibilities remote in Knowles’ own case, there is no reason to think them farfetched in other cases where similar stipulations could have more dramatic amount-lowering effects. The strongest counterargument, we believe, takes a syl- logistic form: First, this complaint contains a presently nonbinding stipulation that the class will seek damages that amount to less than $5 million. Second, if the state court eventually certifies that class, the stipulation will bind those who choose to remain as class members. Third, if the state court eventually insists upon modification of the stipulation (thereby permitting class members to obtain more than $5 million), it will have in effect created 6 STANDARD FIRE INS. CO. v. KNOWLES Opinion of the Court a new, different case. Fourth, CAFA, however, permits the federal court to consider only the complaint that the plain- tiff has filed, i.e., this complaint, not a new, modified (or amended) complaint that might eventually emerge. Our problem with this argument lies in its conclusion. We do not agree that CAFA forbids the federal court to consider, for purposes of determining the amount in con- troversy, the very real possibility that a nonbinding, amount-limiting, stipulation may not survive the class certification process. This potential outcome does not re- sult in the creation of a new case not now before the federal court. To hold otherwise would, for CAFA jurisdic- tional purposes, treat a nonbinding stipulation as if it were binding, exalt form over substance, and run directly counter to CAFA’s primary objective: ensuring “Federal court consideration of interstate cases of national impor- tance.” §2(b)(2), 119 Stat. 5. It would also have the ef- fect of allowing the subdivision of a $100 million action into 21 just-below-$5-million state-court actions simply by including nonbinding stipulations; such an outcome would squarely conflict with the statute’s objective. We agree with Knowles that a federal district court might find it simpler to value the amount in controversy on the basis of a stipulation than to aggregate the value of the individual claims of all who meet the class description. We also agree that, when judges must decide jurisdictional matters, simplicity is a virtue. See Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). But to ignore a nonbinding stipu- lation does no more than require the federal judge to do what she must do in cases without a stipulation and what the statute requires, namely “aggregat[e]” the “claims of the individual class members.” 28 U.S. C. §1332(d)(6). Knowles also points out that federal courts permit indi- vidual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand Cite as: 568 U. S. ____ (2013) 7 Opinion of the Court to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement. That is so. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 294 (1938) (“If [a plaintiff] does not desire to try his case in the federal court he may resort to the expedi- ent of suing for less than the jurisdictional amount, and though he would be justly entitled to more, the defendant cannot remove”). But the key characteristic about those stipulations is that they are legally binding on all plain- tiffs. See 14AA C. Wright, A. Miller, & E. Cooper, Fed- eral Practice and Procedure §3702.1, p. 335 (4th ed. 2011) (federal court, as condition for remand, can insist on a “binding affidavit or stipulation that the plaintiff will continue to claim less than the jurisdictional amount” (em- phasis added)). That essential feature is missing here, as Knowles cannot yet bind the absent class. Knowles argues in the alternative that a stipulation is binding to the extent it limits attorney’s fees so that the amount in controversy remains below the CAFA thresh- old. We do not consider this issue because Knowles’ stipu- lation did not provide for that option. In sum, the stipulation at issue here can tie Knowles’ hands, but it does not resolve the amount-in-controversy question in light of his inability to bind the rest of the class. For this reason, we believe the District Court, when following the statute to aggregate the proposed class members’ claims, should have ignored that stipulation. Because it did not, we vacate the judgment below and remand the case for further proceedings consistent with this opinion. It is so ordered

The Class Action Fairness Act of 2005 (CAFA) provides that the federal “district courts shall have original juris- diction” over a civil “class action” if, among other things, the “matter in controversy exceeds the sum or value of $5,000,000.” 28 U.S. C. (5). The statute adds that “to determine whether the matter in controversy exceeds the sum or value of $5,000,000,” the “claims of the individual class members shall be aggregated.” The question presented concerns a class-action plaintiff who stipulates, prior to certification of the class, that he, and the class he seeks to represent, will not seek damages that exceed $5 million in total. Does that stipulation remove the case from CAFA’s scope? In our view, it does not. I In April 2011 respondent, Greg Knowles, filed this proposed class action in an Arkansas state court against petitioner, the Standard Fire Insurance Company. Knowles claimed that, when the company had made cer- 2 STANDARD FIRE INS. CO. v. KNOWLES Opinion of the Court tain homeowner’s insurance loss payments, it had un- lawfully failed to include a general contractor fee. And Knowles sought to certify a class of “hundreds, and pos- sibly thousands” of similarly harmed Arkansas policyhold- ers. App. to Pet. for Cert. 66. In describing the relief sought, the complaint says that the “Plaintiff and Class stipulate they will seek to recover total aggregate damages of less than five million dollars.” An attached affidavit stipulates that Knowles “will not at any time during this case seek damages for the class in excess of $5,000,000 in the aggregate.” On May 18, 2011, the company, pointing to CAFA’s jurisdictional provision, removed the case to Federal Dis- trict Court. See 28 U.S. C. Knowles argued for remand on the ground that the District Court lacked jurisdiction. He claimed that the “sum or value” of the “amount in controversy” fell beneath the $5 million threshold. App. to Pet. for Cert. 2. On the basis of evi- dence presented by the company, the District Court found that that the “sum or value” of the “amount in contro- versy” would, in the absence of the stipulation, have fallen just above the $5 million threshold. Nonethe- less, in light of Knowles’ stipulation, the court concluded that the amount fell beneath the threshold. The court con- sequently ordered the case remanded to the state court. The company appealed from the remand order, but the Eighth Circuit declined to hear the appeal. See 28 U.S. C. (2006 ed., Supp. V) (providing discretion to hear an appeal from a remand order). The company petitioned for a writ of certiorari. And, in light of divergent views in the lower courts, we granted the writ. Compare Frederick v. Hartford Underwriters Ins. Co., 683 F.3d 1242, 1247 (a proposed class-action representative’s “attempt to limit damages in the com- plaint is not dispositive when determining the amount in Cite as: 568 U. S. (2013) 3 Opinion of the Court controversy”); with (a precertification “bind- ing stipulation limiting damages sought to an amount not exceeding $5 million can be used to defeat CAFA jurisdiction”). II CAFA provides the federal district courts with “original jurisdiction” to hear a “class action” if the class has more than 100 members, the parties are minimally diverse, and the “matter in controversy exceeds the sum or value of $5,000,000.” 28 U.S. C. (5)(B). To “deter- mine whether the matter in controversy” exceeds that sum, “the claims of the individual class members shall be aggregated.” And those “class members” include “persons (named or unnamed) who fall within the definition of the proposed or certified class.” (1)(D) (emphasis added). As applied here, the statute tells the District Court to determine whether it has jurisdiction by adding up the value of the claim of each person who falls within the definition of Knowles’ proposed class and determine whether the resulting sum exceeds $5 million. If so, there is jurisdiction and the court may proceed with the case. The District Court in this case found that resulting sum would have exceeded $5 million but for the stipulation. And we must decide whether the stipulation makes a critical difference. In our view, it does not. Our reason is a simple one: Stipulations must be binding. See 9 J. Wigmore, Evidence p. 821 (J. Chadbourn rev. 1981) (defining a “judicial admission or stipulation” as an “express waiver made by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact” (emphasis deleted)); Christian Legal Soc. Chapter of Univ. of Cal., Hast- ings College of Law v. Martinez, 561 U.S. 4 STANDARD FIRE INS. CO. v. KNOWLES Opinion of the Court (slip op., 0) (describing a stipulation as “ ‘binding and conclusive’ ” and “ ‘not subject to subsequent variation’ ” (quoting 83 C. J. S., Stipulations (2000))); 9 Wigmore, at 822 (the “vital feature” of a judicial ad- mission is “universally conceded to be its conclusiveness upon the party making it”). The stipulation Knowles prof- fered to the District Court, however, does not speak for those he purports to represent. That is because a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified. See Smith v. Bayer Corp., 564 U.S. (2011) (slip op., ) (“Neither a proposed class action nor a rejected class action may bind nonpar- ties”); at (slip op., 3) (“ ‘[A] nonnamed class member is [not] a party to the class-action litigation before the class is certified’ ” (quoting Devlin v. Scardelletti, 536 U.S. 1, 16, n. 1 (2002) (SCALIA, J., dissenting))); Brief for Respondent 12 (conceding that “a damages limitation cannot have a binding effect on the merits of absent class members’ claims unless and until the class is certified”). Because his precertification stipulation does not bind anyone but himself, Knowles has not reduced the value of the putative class members’ claims. For jurisdictional purposes, our inquiry is limited to examining the case “as of the time it was filed in state court,” Wisconsin Dept. of At that point, Knowles lacked the authority to concede the amount-in-controversy issue for the absent class members. The Federal District Court, therefore, wrongly concluded that Knowles’ precertification stipulation could overcome its finding that the CAFA jurisdictional threshold had been met. Knowles concedes that “[f]ederal jurisdiction cannot be based on contingent future events.” Brief for Respondent 20. Yet the two legal principles to which we have just Cite as: 568 U. S. (2013) 5 Opinion of the Court referred—that stipulations must be binding and that a named plaintiff cannot bind precertification class mem- bers—mean that the amount to which Knowles has stipu- lated is in effect contingent. If, for example, as Knowles’ complaint asserts, “hun- dreds, and possibly thousands” of persons in Arkansas have similar claims, App. to Pet. for Cert. 66, and if each of those claims places a significant sum in controversy, the state court might certify the class and permit the case to proceed, but only on the condition that the stipulation be excised. Or a court might find that Knowles is an inade- quate representative due to the artificial cap he purports to impose on the class’ recovery. E.g., Back Doctors Ltd. v. Metropolitan Property & Cas. Ins. Co., 830– 831 (CA7 2011) (noting a class representative’s fiduciary duty not to “throw away what could be a major component of the class’s recovery”). Similarly, another class mem- ber could intervene with an amended complaint (without a stipulation), and the District Court might permit the action to proceed with a new representative. See 5 A. Conte & H. Newberg, Class Actions p. 154 (4th ed. 2002) (“[M]embers of a class have a right to intervene if their interests are not adequately represented by existing parties”). Even were these possibilities remote in Knowles’ own case, there is no reason to think them farfetched in other cases where similar stipulations could have more dramatic amount-lowering effects. The strongest counterargument, we believe, takes a syl- logistic form: First, this complaint contains a presently nonbinding stipulation that the class will seek damages that amount to less than $5 million. Second, if the state court eventually certifies that class, the stipulation will bind those who choose to remain as class members. Third, if the state court eventually insists upon modification of the stipulation (thereby permitting class members to obtain more than $5 million), it will have in effect created 6 STANDARD FIRE INS. CO. v. KNOWLES Opinion of the Court a new, different case. Fourth, CAFA, however, permits the federal court to consider only the complaint that the plain- tiff has filed, i.e., this complaint, not a new, modified (or amended) complaint that might eventually emerge. Our problem with this argument lies in its conclusion. We do not agree that CAFA forbids the federal court to consider, for purposes of determining the amount in con- troversy, the very real possibility that a nonbinding, amount-limiting, stipulation may not survive the class certification process. This potential outcome does not re- sult in the creation of a new case not now before the federal court. To hold otherwise would, for CAFA jurisdic- tional purposes, treat a nonbinding stipulation as if it were binding, exalt form over substance, and run directly counter to CAFA’s primary objective: ensuring “Federal court consideration of interstate cases of national impor- tance.” It would also have the ef- fect of allowing the subdivision of a $100 million action into 21 just-below-$5-million state-court actions simply by including nonbinding stipulations; such an outcome would squarely conflict with the statute’s objective. We agree with Knowles that a federal district court might find it simpler to value the amount in controversy on the basis of a stipulation than to aggregate the value of the individual claims of all who meet the class description. We also agree that, when judges must decide jurisdictional matters, simplicity is a virtue. See Hertz But to ignore a nonbinding stipu- lation does no more than require the federal judge to do what she must do in cases without a stipulation and what the statute requires, namely “aggregat[e]” the “claims of the individual class members.” 28 U.S. C. Knowles also points out that federal courts permit indi- vidual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand Cite as: 568 U. S. (2013) 7 Opinion of the Court to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement. That is so. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 2 (1938) (“If [a plaintiff] does not desire to try his case in the federal court he may resort to the expedi- ent of suing for less than the jurisdictional amount, and though he would be justly entitled to more, the defendant cannot remove”). But the key characteristic about those stipulations is that they are legally binding on all plain- tiffs. See 14AA C. Wright, A. Miller, & E. Cooper, Fed- eral Practice and Procedure p. 335 (4th ed. 2011) (federal court, as condition for remand, can insist on a “binding affidavit or stipulation that the plaintiff will continue to claim less than the jurisdictional amount” (em- phasis added)). That essential feature is missing here, as Knowles cannot yet bind the absent class. Knowles argues in the alternative that a stipulation is binding to the extent it limits attorney’s fees so that the amount in controversy remains below the CAFA thresh- old. We do not consider this issue because Knowles’ stipu- lation did not provide for that option. In sum, the stipulation at issue here can tie Knowles’ hands, but it does not resolve the amount-in-controversy question in light of his inability to bind the rest of the class. For this reason, we believe the District Court, when following the statute to aggregate the proposed class members’ claims, should have ignored that stipulation. Because it did not, we vacate the judgment below and remand the case for further proceedings consistent with this opinion. It is so ordered

Justice Thomas

majority

Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls

2002-06-27

https://www.courtlistener.com/opinion/121171/board-of-ed-of-independent-school-dist-no-92-of-pottawatomie-cty-v/

https://www.courtlistener.com/api/rest/v3/clusters/121171/

2001-083

The Student Activities Drug Testing Policy implemented by the Board of Education of Independent School District No. 92 of Pottawatomie County (School District) requires all students who participate in competitive extracurricular activities to submit to drug testing. Because this Policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, we hold that it is constitutional. *826 I The city of Tecumseh, Oklahoma, is a rural community located approximately 40 miles southeast of Oklahoma City. The School District administers all Tecumseh public schools. In the fall of 1998, the School District adopted the Student Activities Drug Testing Policy (Policy), which requires all middle and high school students to consent to drug testing in order to participate in any extracurricular activity. In practice, the Policy has been applied only to competitive extracurricular activities sanctioned by the Oklahoma Secondary Schools Activities Association, such as the Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, pom pon, cheerleading, and athletics. Under the Policy, students are required to take a drug test before participating in an extracurricular activity, must submit to random drug testing while participating in that activity, and must agree to be tested at any time upon reasonable suspicion. The urinalysis tests are designed to detect only the use of illegal drugs, including amphetamines, marijuana, cocaine, opiates, and barbituates, not medical conditions or the presence of authorized prescription medications. At the time of their suit, both respondents attended Tecumseh High School. Respondent Lindsay Earls was a member of the show choir, the marching band, the Academic Team, and the National Honor Society. Respondent Daniel James sought to participate in the Academic Team.[1] Together with their parents, Earls and James brought a Rev. *827 Stat. § 1979, 42 U.S. C. § 1983, action against the School District, challenging the Policy both on its face and as applied to their participation in extracurricular activities.[2] They alleged that the Policy violates the Fourth Amendment as incorporated by the Fourteenth Amendment and requested injunctive and declarative relief. They also argued that the School District failed to identify a special need for testing students who participate in extracurricular activities, and that the "Drug Testing Policy neither addresses a proven problem nor promises to bring any benefit to students or the school." App. 9. Applying the principles articulated in Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), in which we upheld the suspicionless drug testing of school athletes, the United States District Court for the Western District of Oklahoma rejected respondents' claim that the Policy was unconstitutional and granted summary judgment to the School District. The court noted that "special needs" exist in the public school context and that, although the School District did "not show a drug problem of epidemic proportions," there was a history of drug abuse starting in 1970 that presented "legitimate cause for concern." 115 F. Supp. 2d 1281, 1287 (2000). The District Court also held that the Policy was effective because "[i]t can scarcely be disputed that the drug problem among the student body is effectively addressed by making sure that the large number of students participating in competitive, extracurricular activities do not use drugs." Id., at 1295. The United States Court of Appeals for the Tenth Circuit reversed, holding that the Policy violated the Fourth Amendment. The Court of Appeals agreed with the District Court that the Policy must be evaluated in the "unique environment of the school setting," but reached a different conclusion *828 as to the Policy's constitutionality. 242 F.3d 1264, 1270 (2001). Before imposing a suspicionless drug testing program, the Court of Appeals concluded that a school "must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem." Id., at 1278. The Court of Appeals then held that because the School District failed to demonstrate such a problem existed among Tecumseh students participating in competitive extracurricular activities, the Policy was unconstitutional. We granted certiorari, 534 U.S. 1015 (2001), and now reverse. II The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Searches by public school officials, such as the collection of urine samples, implicate Fourth Amendment interests. See Vernonia, supra, at 652; cf. New Jersey v. T. L. O., 469 U.S. 325, 334 (1985). We must therefore review the School District's Policy for "reasonableness," which is the touchstone of the constitutionality of a governmental search. In the criminal context, reasonableness usually requires a showing of probable cause. See, e. g., Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 619 (1989). The probable-cause standard, however, "is peculiarly related to criminal investigations" and may be unsuited to determining the reasonableness of administrative searches where the "Government seeks to prevent the development of hazardous conditions." Treasury Employees v. Von Raab, 489 U.S. 656, 667-668 (1989) (internal quotation marks and citations omitted) (collecting cases). The Court has also held that a warrant and finding of probable cause are unnecessary in the public school context because such requirements "`would unduly interfere with the maintenance of the swift and informal *829 disciplinary procedures [that are] needed.' " Vernonia, supra, at 653 (quoting T. L. O., supra, at 340-341). Given that the School District's Policy is not in any way related to the conduct of criminal investigations, see Part II—B, infra, respondents do not contend that the School District requires probable cause before testing students for drug use. Respondents instead argue that drug testing must be based at least on some level of individualized suspicion. See Brief for Respondents 12-14. It is true that we generally determine the reasonableness of a search by balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests. See Delaware v. Prouse, 440 U.S. 648, 654 (1979). But we have long held that "the Fourth Amendment imposes no irreducible requirement of [individualized] suspicion." United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976). "[I]n certain limited circumstances, the Government's need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion." Von Raab, supra, at 668; see also Skinner, supra, at 624. Therefore, in the context of safety and administrative regulations, a search unsupported by probable cause may be reasonable "when `special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.' " Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting T. L. O., supra, at 351 (Blackmun, J., concurring in judgment)); see also Vernonia, supra, at 653; Skinner, supra, at 619. Significantly, this Court has previously held that "special needs" inhere in the public school context. See Vernonia, supra, at 653; T. L. O., supra, at 339-340. While schoolchildren do not shed their constitutional rights when they enter the schoolhouse, see Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969), "Fourth *830 Amendment rights . . . are different in public schools than elsewhere; the `reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children." Vernonia, 515 U. S., at 656. In particular, a finding of individualized suspicion may not be necessary when a school conducts drug testing. In Vernonia, this Court held that the suspicionless drug testing of athletes was constitutional. The Court, however, did not simply authorize all school drug testing, but rather conducted a fact-specific balancing of the intrusion on the children's Fourth Amendment rights against the promotion of legitimate governmental interests. See id., at 652-653. Applying the principles of Vernonia to the somewhat different facts of this case, we conclude that Tecumseh's Policy is also constitutional. A We first consider the nature of the privacy interest allegedly compromised by the drug testing. See id., at 654. As in Vernonia, the context of the public school environment serves as the backdrop for the analysis of the privacy interest at stake and the reasonableness of the drug testing policy in general. See ibid. ("Central . . . is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster"); see also id., at 665 ("The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care"); ibid. ("[W]hen the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake"). A student's privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety. Schoolchildren are routinely required to submit to physical examinations and vaccinations *831 against disease. See id., at 656. Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults. See T. L. O., 469 U. S., at 350 (Powell, J., concurring) ("Without first establishing discipline and maintaining order, teachers cannot begin to educate their students. And apart from education, the school has the obligation to protect pupils from mistreatment by other children, and also to protect teachers themselves from violence by the few students whose conduct in recent years has prompted national concern"). Respondents argue that because children participating in nonathletic extracurricular activities are not subject to regular physicals and communal undress, they have a stronger expectation of privacy than the athletes tested in Vernonia. See Brief for Respondents 18-20. This distinction, however, was not essential to our decision in Vernonia, which depended primarily upon the school's custodial responsibility and authority.[3] In any event, students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes.[4]*832 Some of these clubs and activities require occasional offcampus travel and communal undress. All of them have their own rules and requirements for participating students that do not apply to the student body as a whole. 115 F. Supp. 2d, at 1289-1290. For example, each of the competitive extracurricular activities governed by the Policy must abide by the rules of the Oklahoma Secondary Schools Activities Association, and a faculty sponsor monitors the students for compliance with the various rules dictated by the clubs and activities. See id., at 1290. This regulation of extracurricular activities further diminishes the expectation of privacy among schoolchildren. Cf. Vernonia, supra, at 657 ("Somewhat like adults who choose to participate in a closely regulated industry, students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy" (internal quotation marks omitted)). We therefore conclude that the students affected by this Policy have a limited expectation of privacy. B Next, we consider the character of the intrusion imposed by the Policy. See Vernonia, supra, at 658. Urination is "an excretory function traditionally shielded by great privacy." Skinner, 489 U. S., at 626. But the "degree of intrusion" on one's privacy caused by collecting a urine sample "depends upon the manner in which production of the urine sample is monitored." Vernonia, supra, at 658. Under the Policy, a faculty monitor waits outside the closed restroom stall for the student to produce a sample and must "listen for the normal sounds of urination in order to guard against tampered specimens and to insure an accurate chain of custody." App. 199. The monitor then pours the sample into two bottles that are sealed and placed into a mailing pouch along with a consent form signed by the student. This procedure is virtually identical to that reviewed in Vernonia, except that it additionally protects privacy by *833 allowing male students to produce their samples behind a closed stall. Given that we considered the method of collection in Vernonia a "negligible" intrusion, 515 U.S., at 658, the method here is even less problematic. In addition, the Policy clearly requires that the test results be kept in confidential files separate from a student's other educational records and released to school personnel only on a "need to know" basis. Respondents nonetheless contend that the intrusion on students' privacy is significant because the Policy fails to protect effectively against the disclosure of confidential information and, specifically, that the school "has been careless in protecting that information: for example, the Choir teacher looked at students' prescription drug lists and left them where other students could see them." Brief for Respondents 24. But the choir teacher is someone with a "need to know," because during off-campus trips she needs to know what medications are taken by her students. Even before the Policy was enacted the choir teacher had access to this information. See App. 132. In any event, there is no allegation that any other student did see such information. This one example of alleged carelessness hardly increases the character of the intrusion. Moreover, the test results are not turned over to any law enforcement authority. Nor do the test results here lead to the imposition of discipline or have any academic consequences. Cf. Vernonia, supra, at 658, and n. 2. Rather, the only consequence of a failed drug test is to limit the student's privilege of participating in extracurricular activities. Indeed, a student may test positive for drugs twice and still be allowed to participate in extracurricular activities. After the first positive test, the school contacts the student's parent or guardian for a meeting. The student may continue to participate in the activity if within five days of the meeting the student shows proof of receiving drug counseling and submits to a second drug test in two weeks. For the second positive test, the student is suspended from participation in *834 all extracurricular activities for 14 days, must complete four hours of substance abuse counseling, and must submit to monthly drug tests. Only after a third positive test will the student be suspended from participating in any extracurricular activity for the remainder of the school year, or 88 school days, whichever is longer. See App. 201-202. Given the minimally intrusive nature of the sample collection and the limited uses to which the test results are put, we conclude that the invasion of students' privacy is not significant. C Finally, this Court must consider the nature and immediacy of the government's concerns and the efficacy of the Policy in meeting them. See Vernonia, 515 U. S., at 660. This Court has already articulated in detail the importance of the governmental concern in preventing drug use by schoolchildren. See id., at 661-662. The drug abuse problem among our Nation's youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse.[5] As in Vernonia, "the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction." Id., at 662. The health and safety risks identified in Vernonia apply with equal force to Tecumseh's children. Indeed, the nationwide drug epidemic makes the war against drugs a pressing concern in every school. Additionally, the School District in this case has presented specific evidence of drug use at Tecumseh schools. Teachers testified that they had seen students who appeared to be *835 under the influence of drugs and that they had heard students speaking openly about using drugs. See, e. g., App. 72 (deposition of Dean Rogers); id., at 115 (deposition of Sheila Evans). A drug dog found marijuana cigarettes near the school parking lot. Police officers once found drugs or drug paraphernalia in a car driven by a Future Farmers of America member. And the school board president reported that people in the community were calling the board to discuss the "drug situation." See 115 F. Supp. 2d, at 1285— 1286. We decline to second-guess the finding of the District Court that "[v]iewing the evidence as a whole, it cannot be reasonably disputed that the [School District] was faced with a `drug problem' when it adopted the Policy." Id., at 1287. Respondents consider the proffered evidence insufficient and argue that there is no "real and immediate interest" to justify a policy of drug testing nonathletes. Brief for Respondents 32. We have recognized, however, that "[a] demonstrated problem of drug abuse . . . [is] notin all cases necessary to the validity of a testing regime," but that some showing does "shore up an assertion of special need for a suspicionless general search program." Chandler v. Miller, 520 U.S. 305, 319 (1997). The School District has provided sufficient evidence to shore up the need for its drug testing program. Furthermore, this Court has not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing. For instance, in Von Raab the Court upheld the drug testing of customs officials on a purely preventive basis, without any documented history of drug use by such officials. See 489 U.S., at 673. In response to the lack of evidence relating to drug use, the Court noted generally that "drug abuse is one of the most serious problems confronting our society today," and that programs to prevent and detect drug use among customs officials could not be deemed unreasonable. Id., at 674; cf. Skinner, 489 U. S., at 607, and n. 1 (noting nationwide *836 studies that identified on-the-job alcohol and drug use by railroad employees). Likewise, the need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Indeed, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use. Given the nationwide epidemic of drug use, and the evidence of increased drug use in Tecumseh schools, it was entirely reasonable for the School District to enact this particular drug testing policy. We reject the Court of Appeals' novel test that "any district seeking to impose a random suspicionless drug testing policy as a condition to participation in a school activity must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem." 242 F.3d, at 1278. Among other problems, it would be difficult to administer such a test. As we cannot articulate a threshold level of drug use that would suffice to justify a drug testing program for schoolchildren, we refuse to fashion what would in effect be a constitutional quantum of drug use necessary to show a "drug problem." Respondents also argue that the testing of nonathletes does not implicate any safety concerns, and that safety is a "crucial factor" in applying the special needs framework. Brief for Respondents 25-27. They contend that there must be "surpassing safety interests," Skinner, supra, at 634, or "extraordinary safety and national security hazards," Von Raab, supra, at 674, in order to override the usual protections of the Fourth Amendment. See Brief for Respondents 25-26. Respondents are correct that safety factors into the special needs analysis, but the safety interest furthered by drug testing is undoubtedly substantial for all children, athletes and nonathletes alike. We know all too well that drug *837 use carries a variety of health risks for children, including death from overdose. We also reject respondents' argument that drug testing must presumptively be based upon an individualized reasonable suspicion of wrongdoing because such a testing regime would be less intrusive. See id., at 12-16. In this context, the Fourth Amendment does not require a finding of individualized suspicion, see supra, at 829, and we decline to impose such a requirement on schools attempting to prevent and detect drug use by students. Moreover, we question whether testing based on individualized suspicion in fact would be less intrusive. Such a regime would place an additional burden on public school teachers who are already tasked with the difficult job of maintaining order and discipline. A program of individualized suspicion might unfairly target members of unpopular groups. The fear of lawsuits resulting from such targeted searches may chill enforcement of the program, rendering it ineffective in combating drug use. See Vernonia, 515 U. S., at 663-664 (offering similar reasons for why "testing based on `suspicion' of drug use would not be better, but worse"). In any case, this Court has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means, because "[t]he logic of such elaborate less-restrictivealternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers." Martinez-Fuerte, 428 U. S., at 556-557, n. 12; see also Skinner, supra, at 624 ("[A] showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable"). Finally, we find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the School District's legitimate concerns in preventing, deterring, and detecting drug use. While in Vernonia there might have been a closer fit between the testing of athletes and the trial court's finding that the drug problem *838 was "fueled by the `role model' effect of athletes' drug use," such a finding was not essential to the holding. 515 U.S., at 663; cf. id., at 684-685 (O'Connor, J., dissenting) (questioning the extent of the drug problem, especially as applied to athletes). Vernonia did not require the school to test the group of students most likely to use drugs, but rather considered the constitutionality of the program in the context of the public school's custodial responsibilities. Evaluating the Policy in this context, we conclude that the drug testing of Tecumseh students who participate in extracurricular activities effectively serves the School District's interest in protecting the safety and health of its students. III Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh's Policy is a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren. Accordingly, we reverse the judgment of the Court of Appeals. It is so ordered.

The Student Activities Drug Testing Policy implemented by the Board of Education of Independent School District No. 92 of Pottawatomie County (School District) requires all students who participate in competitive extracurricular activities to submit to drug testing. Because this Policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, we hold that it is constitutional. *826 I The city of Tecumseh, Oklahoma, is a rural community located approximately 40 miles southeast of Oklahoma City. The School District administers all Tecumseh public schools. In the fall of 1998, the School District adopted the Student Activities Drug Testing Policy (Policy), which requires all middle and high school students to consent to drug testing in order to participate in any extracurricular activity. In practice, the Policy has been applied only to competitive extracurricular activities sanctioned by the Oklahoma Secondary Schools Activities Association, such as the Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, pom pon, cheerleading, and athletics. Under the Policy, students are required to take a drug test before participating in an extracurricular activity, must submit to random drug testing while participating in that activity, and must agree to be tested at any time upon reasonable suspicion. The urinalysis tests are designed to detect only the use of illegal drugs, including amphetamines, marijuana, cocaine, opiates, and barbituates, not medical conditions or the presence of authorized prescription medications. At the time of their suit, both respondents attended Tecumseh High School. Respondent Lindsay Earls was a member of the show choir, the marching band, the Academic Team, and the National Honor Society. Respondent Daniel James sought to participate in the Academic Team.[1] Together with their parents, Earls and James brought a Rev. *827 Stat. 1979, 42 U.S. C. 1983, action against the School District, challenging the Policy both on its face and as applied to their participation in extracurricular activities.[2] They alleged that the Policy violates the Fourth Amendment as incorporated by the Fourteenth Amendment and requested injunctive and declarative relief. They also argued that the School District failed to identify a special need for testing students who participate in extracurricular activities, and that the "Drug Testing Policy neither addresses a proven problem nor promises to bring any benefit to students or the school." App. 9. Applying the principles articulated in School Dist. in which we upheld the suspicionless drug testing of school athletes, the United States District Court for the Western District of Oklahoma rejected respondents' claim that the Policy was unconstitutional and granted summary judgment to the School District. The court noted that "special needs" exist in the public school context and that, although the School District did "not show a drug problem of epidemic proportions," there was a history of drug abuse starting in 1970 that presented "legitimate cause for concern." The District Court also held that the Policy was effective because "[i]t can scarcely be disputed that the drug problem among the student body is effectively addressed by making sure that the large number of students participating in competitive, extracurricular activities do not use drugs." The United States Court of Appeals for the Tenth Circuit reversed, holding that the Policy violated the Fourth Amendment. The Court of Appeals agreed with the District Court that the Policy must be evaluated in the "unique environment of the school setting," but reached a different conclusion *828 as to the Policy's constitutionality. Before imposing a suspicionless drug testing program, the Court of Appeals concluded that a school "must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem." The Court of Appeals then held that because the School District failed to demonstrate such a problem existed among Tecumseh students participating in competitive extracurricular activities, the Policy was unconstitutional. We granted certiorari, and now reverse. II The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Searches by public school officials, such as the collection of urine samples, implicate Fourth Amendment interests. See ; cf. New We must therefore review the School District's Policy for "reasonableness," which is the touchstone of the constitutionality of a governmental search. In the criminal context, reasonableness usually requires a showing of probable cause. See, e. g., The probable-cause standard, however, "is peculiarly related to criminal investigations" and may be unsuited to determining the reasonableness of administrative searches where the "Government seeks to prevent the development of hazardous conditions." Treasury (collecting cases). The Court has also held that a warrant and finding of probable cause are unnecessary in the public school context because such requirements "`would unduly interfere with the maintenance of the swift and informal *829 disciplinary procedures [that are] needed.' " (quoting T. L. ). Given that the School District's Policy is not in any way related to the conduct of criminal investigations, see Part II—B, infra, respondents do not contend that the School District requires probable cause before testing students for drug use. Respondents instead argue that drug testing must be based at least on some level of individualized suspicion. See Brief for Respondents 12-14. It is true that we generally determine the reasonableness of a search by balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests. See But we have long held that "the Fourth Amendment imposes no irreducible requirement of [individualized] suspicion." United "[I]n certain limited circumstances, the Government's need to discover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on privacy entailed by conducting such searches without any measure of individualized suspicion." ; see also Therefore, in the context of safety and administrative regulations, a search unsupported by probable cause may be reasonable "when `special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.' " (quoting T. L. ); see also ; at Significantly, this Court has previously held that "special needs" inhere in the public school context. See ; T. L. While schoolchildren do not shed their constitutional rights when they enter the schoolhouse, see "Fourth *830 Amendment rights are different in public schools than elsewhere; the `reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children." In particular, a finding of individualized suspicion may not be necessary when a school conducts drug testing. In this Court held that the suspicionless drug testing of athletes was constitutional. The Court, however, did not simply authorize all school drug testing, but rather conducted a fact-specific balancing of the intrusion on the children's Fourth Amendment rights against the promotion of legitimate governmental interests. See -653. Applying the principles of to the somewhat different facts of this case, we conclude that Tecumseh's Policy is also constitutional. A We first consider the nature of the privacy interest allegedly compromised by the drug testing. See at As in the context of the public school environment serves as the backdrop for the analysis of the privacy interest at stake and the reasonableness of the drug testing policy in general. See ; see also ; A student's privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety. Schoolchildren are routinely required to submit to physical examinations and vaccinations *831 against disease. See Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults. See T. L. ("Without first establishing discipline and maintaining order, teachers cannot begin to educate their students. And apart from education, the school has the obligation to protect pupils from mistreatment by other children, and also to protect teachers themselves from violence by the few students whose conduct in recent years has prompted national concern"). Respondents argue that because children participating in nonathletic extracurricular activities are not subject to regular physicals and communal undress, they have a stronger expectation of privacy than the athletes tested in See Brief for Respondents 18-20. This distinction, however, was not essential to our decision in which depended primarily upon the school's custodial responsibility and authority.[3] In any event, students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions on their privacy as do athletes.[4]*832 Some of these clubs and activities require occasional offcampus travel and communal undress. All of them have their own rules and requirements for participating students that do not apply to the student body as a whole. -1290. For example, each of the competitive extracurricular activities governed by the Policy must abide by the rules of the Oklahoma Secondary Schools Activities Association, and a faculty sponsor monitors the students for compliance with the various rules dictated by the clubs and activities. See This regulation of extracurricular activities further diminishes the expectation of privacy among schoolchildren. Cf. We therefore conclude that the students affected by this Policy have a limited expectation of privacy. B Next, we consider the character of the intrusion imposed by the Policy. See Urination is "an excretory function traditionally shielded by great privacy." But the "degree of intrusion" on one's privacy caused by collecting a urine sample "depends upon the manner in which production of the urine sample is monitored." Under the Policy, a faculty monitor waits outside the closed restroom stall for the student to produce a sample and must "listen for the normal sounds of urination in order to guard against tampered specimens and to insure an accurate chain of custody." App. 199. The monitor then pours the sample into two bottles that are sealed and placed into a mailing pouch along with a consent form signed by the student. This procedure is virtually identical to that reviewed in except that it additionally protects privacy by *833 allowing male students to produce their samples behind a closed stall. Given that we considered the method of collection in a "negligible" intrusion, 515 U.S., the method here is even less problematic. In addition, the Policy clearly requires that the test results be kept in confidential files separate from a student's other educational records and released to school personnel only on a "need to know" basis. Respondents nonetheless contend that the intrusion on students' privacy is significant because the Policy fails to protect effectively against the disclosure of confidential information and, specifically, that the school "has been careless in protecting that information: for example, the Choir teacher looked at students' prescription drug lists and left them where other students could see them." Brief for Respondents 24. But the choir teacher is someone with a "need to know," because during off-campus trips she needs to know what medications are taken by her students. Even before the Policy was enacted the choir teacher had access to this information. See App. 132. In any event, there is no allegation that any other student did see such information. This one example of alleged carelessness hardly increases the character of the intrusion. Moreover, the test results are not turned over to any law enforcement authority. Nor do the test results here lead to the imposition of discipline or have any academic consequences. Cf. and n. 2. Rather, the only consequence of a failed drug test is to limit the student's privilege of participating in extracurricular activities. Indeed, a student may test positive for drugs twice and still be allowed to participate in extracurricular activities. After the first positive test, the school contacts the student's parent or guardian for a meeting. The student may continue to participate in the activity if within five days of the meeting the student shows proof of receiving drug counseling and submits to a second drug test in two weeks. For the second positive test, the student is suspended from participation in *834 all extracurricular activities for 14 days, must complete four hours of substance abuse counseling, and must submit to monthly drug tests. Only after a third positive test will the student be suspended from participating in any extracurricular activity for the remainder of the school year, or 88 school days, whichever is longer. See App. 201-202. Given the minimally intrusive nature of the sample collection and the limited uses to which the test results are put, we conclude that the invasion of students' privacy is not significant. C Finally, this Court must consider the nature and immediacy of the government's concerns and the efficacy of the Policy in meeting them. See This Court has already articulated in detail the importance of the governmental concern in preventing drug use by schoolchildren. See The drug abuse problem among our Nation's youth has hardly abated since was decided in 1995. In fact, evidence suggests that it has only grown worse.[5] As in "the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction." The health and safety risks identified in apply with equal force to Tecumseh's children. Indeed, the nationwide drug epidemic makes the war against drugs a pressing concern in every school. Additionally, the School District in this case has presented specific evidence of drug use at Tecumseh schools. Teachers testified that they had seen students who appeared to be *835 under the influence of drugs and that they had heard students speaking openly about using drugs. See, e. g., App. 72 (deposition of Dean Rogers); A drug dog found marijuana cigarettes near the school parking lot. Police officers once found drugs or drug paraphernalia in a car driven by a Future Farmers of America member. And the school board president reported that people in the community were calling the board to discuss the "drug situation." See — 1286. We decline to second-guess the finding of the District Court that "[v]iewing the evidence as a whole, it cannot be reasonably disputed that the [School District] was faced with a `drug problem' when it adopted the Policy." at Respondents consider the proffered evidence insufficient and argue that there is no "real and immediate interest" to justify a policy of drug testing nonathletes. Brief for Respondents 32. We have recognized, however, that "[a] demonstrated problem of drug abuse [is] notin all cases necessary to the validity of a testing regime," but that some showing does "shore up an assertion of special need for a suspicionless general search program." The School District has provided sufficient evidence to shore up the need for its drug testing program. Furthermore, this Court has not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing. For instance, in the Court upheld the drug testing of customs officials on a purely preventive basis, without any documented history of drug use by such officials. See In response to the lack of evidence relating to drug use, the Court noted generally that "drug abuse is one of the most serious problems confronting our society today," and that programs to prevent and detect drug use among customs officials could not be deemed unreasonable. ; cf. and n. 1 (noting nationwide *836 studies that identified on-the-job alcohol and drug use by railroad employees). Likewise, the need to prevent and deter the substantial harm of childhood drug use provides the necessary immediacy for a school testing policy. Indeed, it would make little sense to require a school district to wait for a substantial portion of its students to begin using drugs before it was allowed to institute a drug testing program designed to deter drug use. Given the nationwide epidemic of drug use, and the evidence of increased drug use in Tecumseh schools, it was entirely reasonable for the School District to enact this particular drug testing policy. We reject the Court of Appeals' novel test that "any district seeking to impose a random suspicionless drug testing policy as a condition to participation in a school activity must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem." 242 F.3d, Among other problems, it would be difficult to administer such a test. As we cannot articulate a threshold level of drug use that would suffice to justify a drug testing program for schoolchildren, we refuse to fashion what would in effect be a constitutional quantum of drug use necessary to show a "drug problem." Respondents also argue that the testing of nonathletes does not implicate any safety concerns, and that safety is a "crucial factor" in applying the special needs framework. Brief for Respondents 25-27. They contend that there must be "surpassing safety interests," or "extraordinary safety and national security hazards," in order to override the usual protections of the Fourth Amendment. See Brief for Respondents 25-26. Respondents are correct that safety factors into the special needs analysis, but the safety interest furthered by drug testing is undoubtedly substantial for all children, athletes and nonathletes alike. We know all too well that drug *837 use carries a variety of health risks for children, including death from overdose. We also reject respondents' argument that drug testing must presumptively be based upon an individualized reasonable suspicion of wrongdoing because such a testing regime would be less intrusive. See In this context, the Fourth Amendment does not require a finding of individualized suspicion, see and we decline to impose such a requirement on schools attempting to prevent and detect drug use by students. Moreover, we question whether testing based on individualized suspicion in fact would be less intrusive. Such a regime would place an additional burden on public school teachers who are already tasked with the difficult job of maintaining order and discipline. A program of individualized suspicion might unfairly target members of unpopular groups. The fear of lawsuits resulting from such targeted searches may chill enforcement of the program, rendering it ineffective in combating drug use. See -664 In any case, this Court has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means, because "[t]he logic of such elaborate less-restrictivealternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers." Martinez-Fuerte, -557, n. 12; see also Finally, we find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the School District's legitimate concerns in preventing, deterring, and detecting drug use. While in there might have been a closer fit between the testing of athletes and the trial court's finding that the drug problem *838 was "fueled by the `role model' effect of athletes' drug use," such a finding was not essential to the holding. ; cf. (questioning the extent of the drug problem, especially as applied to athletes). did not require the school to test the group of students most likely to use drugs, but rather considered the constitutionality of the program in the context of the public school's custodial responsibilities. Evaluating the Policy in this context, we conclude that the drug testing of Tecumseh students who participate in extracurricular activities effectively serves the School District's interest in protecting the safety and health of its students. III Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh's Policy is a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren. Accordingly, we reverse the judgment of the Court of Appeals. It is so ordered.

Justice Breyer

concurring

Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls

2002-06-27

https://www.courtlistener.com/opinion/121171/board-of-ed-of-independent-school-dist-no-92-of-pottawatomie-cty-v/

https://www.courtlistener.com/api/rest/v3/clusters/121171/

2001-083

I agree with the Court that Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), governs this case and requires reversal of the Tenth Circuit's decision. The school's drug testing program addresses a serious national problem by focusing upon demand, avoiding the use of criminal or disciplinary sanctions, and relying upon professional counseling and treatment. See App. 201-202. In my view, this program does not violate the Fourth Amendment's prohibition of "unreasonable searches and seizures." I reach this conclusion primarily for the reasons given by the Court, but I would *839 emphasize several underlying considerations, which I understand to be consistent with the Court's opinion. I In respect to the school's need for the drug testing program, I would emphasize the following: First, the drug problem in our Nation's schools is serious in terms of size, the kinds of drugs being used, and the consequences of that use both for our children and the rest of us. See, e. g., White House Nat. Drug Control Strategy 25 (Feb. 2002) (drug abuse leads annually to about 20,000 deaths, $160 billion in economic costs); Department of Health and Human Services, L. Johnston et al., Monitoring the Future: National Results on Adolescent Drug Use, Overview of Key Findings 5 (2001) (Monitoring the Future) (more than one-third of all students have used illegal drugs before completing the eighth grade; more than half before completing high school); ibid. (about 30% of all students use drugs other than marijuana prior to completing high school (emphasis added)); National Center on Addiction and Substance Abuse, Malignant Neglect: Substance Abuse and America's Schools 15 (Sept. 2001) (Malignant Neglect) (early use leads to later drug dependence); Nat. Drug Control Strategy, supra, at 1 (same). Second, the government's emphasis upon supply side interdiction apparently has not reduced teenage use in recent years. Compare R. Perl, CRS Issue Brief for Congress, Drug Control: International Policy and Options CRS-1 (Dec. 12, 2001) (supply side programs account for 66% of the federal drug control budget), with Partnership for a Drug-Free America, 2001 Partnership Attitude Tracking Study: Key Findings 1 (showing increase in teenage drug use in early 1990's, peak in 1997, holding steady thereafter); 2000-2001 PRIDE National Summary: Alcohol, Tobacco, Illicit Drugs, Violence and Related Behaviors, Grades 6 thru 12 (Jul. 16, 2002), http://www.pridesurveys.com/main/supportfiles/ natsum00.pdf, p. 15 (slight rise in high school drug use in *840 2000-2001); Monitoring the Future, Table 1 (lifetime prevalence of drug use increasing over last 10 years). Third, public school systems must find effective ways to deal with this problem. Today's public expects its schools not simply to teach the fundamentals, but "to shoulder the burden of feeding students breakfast and lunch, offering before and after school child care services, and providing medical and psychological services," all in a school environment that is safe and encourages learning. Brief for National School Boards Association et al. as Amici Curiae 3-4. See also Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (Schools "`prepare pupils for citizenship in the Republic [and] inculcate the habits and manners of civility as values in themselves conductive to happiness and as indispensable to the practice of self-government in the community and the nation' ") (quoting C. Beard & M. Beard, New Basic History of the United States 228 (1968)). The law itself recognizes these responsibilities with the phrase in loco parentis —a phrase that draws its legal force primarily from the needs of younger students (who here are necessarily grouped together with older high school students) and which reflects, not that a child or adolescent lacks an interest in privacy, but that a child's or adolescent's school-related privacy interest, when compared to the privacy interests of an adult, has different dimensions. Cf. Vernonia, supra, at 654-655. A public school system that fails adequately to carry out its responsibilities may well see parents send their children to private or parochial school instead—with help from the State. See Zelman v. Simmons-Harris, ante, p. 639. Fourth, the program at issue here seeks to discourage demand for drugs by changing the school's environment in order to combat the single most important factor leading schoolchildren to take drugs, namely, peer pressure. Malignant Neglect 4 (students "whose friends use illicit drugs are more than 10 times likelier to use illicit drugs than those whose friends do not"). It offers the adolescent a nonthreatening *841 reason to decline his friend's drug-use invitations, namely, that he intends to play baseball, participate in debate, join the band, or engage in any one of half a dozen useful, interesting, and important activities. II In respect to the privacy-related burden that the drug testing program imposes upon students, I would emphasize the following: First, not everyone would agree with this Court's characterization of the privacy-related significance of urine sampling as "`negligible.' " Ante, at 833 (quoting Vernonia, 515 U. S., at 658). Some find the procedure no more intrusive than a routine medical examination, but others are seriously embarrassed by the need to provide a urine sample with someone listening "outside the closed restroom stall," ante, at 832. When trying to resolve this kind of close question involving the interpretation of constitutional values, I believe it important that the school board provided an opportunity for the airing of these differences at public meetings designed to give the entire community "the opportunity to be able to participate" in developing the drug policy. App. 87. The board used this democratic, participatory process to uncover and to resolve differences, giving weight to the fact that the process, in this instance, revealed little, if any, objection to the proposed testing program. Second, the testing program avoids subjecting the entire school to testing. And it preserves an option for a conscientious objector. He can refuse testing while paying a price (nonparticipation) that is serious, but less severe than expulsion from the school. Third, a contrary reading of the Constitution, as requiring "individualized suspicion" in this public school context, could well lead schools to push the boundaries of "individualized suspicion" to its outer limits, using subjective criteria that may "unfairly target members of unpopular groups," ante, at 837, or leave those whose behavior is slightly abnormal *842 stigmatized in the minds of others. See Belsky, Random vs. Suspicion-Based Drug Testing in the Public Schools—A Surprising Civil Liberties Dilemma, 27 Okla. City U. L. Rev. 1, 20-21 (forthcoming 2002) (listing court-approved factors justifying suspicion-based drug testing, including tiredness, overactivity, quietness, boisterousness, sloppiness, excessive meticulousness, and tardiness). If so, direct application of the Fourth Amendment's prohibition against "unreasonable searches and seizures" will further that Amendment's liberty-protecting objectives at least to the same extent as application of the mediating "individualized suspicion" test, where, as here, the testing program is neither criminal nor disciplinary in nature. * * * I cannot know whether the school's drug testing program will work. But, in my view, the Constitution does not prohibit the effort. Emphasizing the considerations I have mentioned, along with others to which the Court refers, I conclude that the school's drug testing program, constitutionally speaking, is not "unreasonable." And I join the Court's opinion.

I agree with the Court that School Dist. governs this case and requires reversal of the Tenth Circuit's decision. The school's drug testing program addresses a serious national problem by focusing upon demand, avoiding the use of criminal or disciplinary sanctions, and relying upon professional counseling and treatment. See App. 201-202. In my view, this program does not violate the Fourth Amendment's prohibition of "unreasonable searches and seizures." I reach this conclusion primarily for the reasons given by the Court, but I would *839 emphasize several underlying considerations, which I understand to be consistent with the Court's opinion. I In respect to the school's need for the drug testing program, I would emphasize the following: First, the drug problem in our Nation's schools is serious in terms of size, the kinds of drugs being used, and the consequences of that use both for our children and the rest of us. See, e. g., White House Nat. Drug Control Strategy 25 (Feb. 2002) (drug abuse leads annually to about 20,000 deaths, $160 billion in economic costs); Department of Health and Human Services, L. Johnston et al., Monitoring the Future: National Results on Adolescent Drug Use, Overview of Key Findings 5 (2001) (Monitoring the Future) (more than one-third of all students have used illegal drugs before completing the eighth grade; more than half before completing high school); ; National Center on Addiction and Substance Abuse, Malignant Neglect: Substance Abuse and America's Schools 15 (Sept. 2001) (Malignant Neglect) (early use leads to later drug dependence); Nat. Drug Control Strategy, Second, the government's emphasis upon supply side interdiction apparently has not reduced teenage use in recent years. Compare R. Perl, CRS Issue Brief for Congress, Drug Control: International Policy and Options CRS-1 (Dec. 12, 2001) (supply side programs account for 66% of the federal drug control budget), with Partnership for a Drug-Free America, 2001 Partnership Attitude Tracking Study: Key Findings 1 (showing increase in teenage drug use in early 1990's, peak in 1997, holding steady thereafter); 2000-2001 PRIDE National Summary: Alcohol, Tobacco, Illicit Drugs, Violence and Related Behaviors, Grades 6 thru 12 (Jul. 16, 2002), http://www.pridesurveys.com/main/supportfiles/ natsum00.pdf, p. 15 (slight rise in high school drug use in *840 2000-2001); Monitoring the Future, Table 1 (lifetime prevalence of drug use increasing over last 10 years). Third, public school systems must find effective ways to deal with this problem. Today's public expects its schools not simply to teach the fundamentals, but "to shoulder the burden of feeding students breakfast and lunch, offering before and after school child care services, and providing medical and psychological services," all in a school environment that is safe and encourages learning. Brief for National School Boards Association et al. as Amici Curiae 3-4. See also Bethel School Dist. No. (quoting C. Beard & M. Beard, New Basic History of the United States 228 (1968)). The law itself recognizes these responsibilities with the phrase in loco parentis —a phrase that draws its legal force primarily from the needs of younger students (who here are necessarily grouped together with older high school students) and which reflects, not that a child or adolescent lacks an interest in privacy, but that a child's or adolescent's school-related privacy interest, when compared to the privacy interests of an adult, has different dimensions. Cf. A public school system that fails adequately to carry out its responsibilities may well see parents send their children to private or parochial school instead—with help from the State. See Zelman v. Simmons-Harris, ante, p. 639. Fourth, the program at issue here seeks to discourage demand for drugs by changing the school's environment in order to combat the single most important factor leading schoolchildren to take drugs, namely, peer pressure. Malignant Neglect 4 (students "whose friends use illicit drugs are more than 10 times likelier to use illicit drugs than those whose friends do not"). It offers the adolescent a nonthreatening *841 reason to decline his friend's drug-use invitations, namely, that he intends to play baseball, participate in debate, join the band, or engage in any one of half a dozen useful, interesting, and important activities. II In respect to the privacy-related burden that the drug testing program imposes upon students, I would emphasize the following: First, not everyone would agree with this Court's characterization of the privacy-related significance of urine sampling as "`negligible.' " Ante, at 833 (quoting ). Some find the procedure no more intrusive than a routine medical examination, but others are seriously embarrassed by the need to provide a urine sample with someone listening "outside the closed restroom stall," ante, at 832. When trying to resolve this kind of close question involving the interpretation of constitutional values, I believe it important that the school board provided an opportunity for the airing of these differences at public meetings designed to give the entire community "the opportunity to be able to participate" in developing the drug policy. App. 87. The board used this democratic, participatory process to uncover and to resolve differences, giving weight to the fact that the process, in this instance, revealed little, if any, objection to the proposed testing program. Second, the testing program avoids subjecting the entire school to testing. And it preserves an option for a conscientious objector. He can refuse testing while paying a price (nonparticipation) that is serious, but less severe than expulsion from the school. Third, a contrary reading of the Constitution, as requiring "individualized suspicion" in this public school context, could well lead schools to push the boundaries of "individualized suspicion" to its outer limits, using subjective criteria that may "unfairly target members of unpopular groups," ante, at 837, or leave those whose behavior is slightly abnormal *842 stigmatized in the minds of others. See Belsky, Random vs. Suspicion-Based Drug Testing in the Public Schools—A Surprising Civil Liberties Dilemma, (listing court-approved factors justifying suspicion-based drug testing, including tiredness, overactivity, quietness, boisterousness, sloppiness, excessive meticulousness, and tardiness). If so, direct application of the Fourth Amendment's prohibition against "unreasonable searches and seizures" will further that Amendment's liberty-protecting objectives at least to the same extent as application of the mediating "individualized suspicion" test, where, as here, the testing program is neither criminal nor disciplinary in nature. * * * I cannot know whether the school's drug testing program will work. But, in my view, the Constitution does not prohibit the effort. Emphasizing the considerations I have mentioned, along with others to which the Court refers, I conclude that the school's drug testing program, constitutionally speaking, is not "unreasonable." And I join the Court's opinion.

Justice O'Connor

dissenting

Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls

2002-06-27

https://www.courtlistener.com/opinion/121171/board-of-ed-of-independent-school-dist-no-92-of-pottawatomie-cty-v/

https://www.courtlistener.com/api/rest/v3/clusters/121171/

2001-083

I dissented in Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), and continue to believe that case was wrongly decided. Because Vernonia is now this Court's precedent, and because I agree that petitioners' program fails even under the balancing approach adopted in that case, I join Justice Ginsburg's dissent.

I dissented in Vernonia School Dist. and continue to believe that case was wrongly decided. Because Vernonia is now this Court's precedent, and because I agree that petitioners' program fails even under the balancing approach adopted in that case, I join Justice Ginsburg's dissent.

Justice Ginsburg

second_dissenting

Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls

2002-06-27

https://www.courtlistener.com/opinion/121171/board-of-ed-of-independent-school-dist-no-92-of-pottawatomie-cty-v/

https://www.courtlistener.com/api/rest/v3/clusters/121171/

2001-083

Seven years ago, in Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (1995), this Court determined that a school *843 district's policy of randomly testing the urine of its student athletes for illicit drugs did not violate the Fourth Amendment. In so ruling, the Court emphasized that drug use "increase[d] the risk of sports-related injury" and that Vernonia's athletes were the "leaders" of an aggressive local "drug culture" that had reached "`epidemic proportions.' " Id., at 649. Today, the Court relies upon Vernonia to permit a school district with a drug problem its superintendent repeatedly described as "not . . . major," see App. 180, 186, 191, to test the urine of an academic team member solely by reason of her participation in a nonathletic, competitive extracurricular activity—participation associated with neither special dangers from, nor particular predilections for, drug use. "[T]he legality of a search of a student," this Court has instructed, "should depend simply on the reasonableness, under all the circumstances, of the search." New Jersey v. T. L. O., 469 U.S. 325, 341 (1985). Although "`special needs' inhere in the public school context," see ante, at 829 (quoting Vernonia, 515 U. S., at 653), those needs are not so expansive or malleable as to render reasonable any program of student drug testing a school district elects to install. The particular testing program upheld today is not reasonable; it is capricious, even perverse: Petitioners' policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects. I therefore dissent. I A A search unsupported by probable cause nevertheless may be consistent with the Fourth Amendment "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks omitted). In Vernonia, this Court made clear that "such `special needs' .. . exist in the public school context." *844 515 U. S., at 653 (quoting Griffin, 483 U. S., at 873). The Court observed: "[W]hile children assuredly do not `shed their constitutional rights . . . at the schoolhouse gate,' Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969), the nature of those rights is what is appropriate for children in school. . . . Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the `reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children." 515 U.S., at 655-656 (other citations omitted). The Vernonia Court concluded that a public school district facing a disruptive and explosive drug abuse problem sparked by members of its athletic teams had "special needs" that justified suspicionless testing of district athletes as a condition of their athletic participation. This case presents circumstances dispositively different from those of Vernonia. True, as the Court stresses, Tecumseh students participating in competitive extracurricular activities other than athletics share two relevant characteristics with the athletes of Vernonia. First, both groups attend public schools. "[O]ur decision in Vernonia, " the Court states, "depended primarily upon the school's custodial responsibility and authority." Ante, at 831; see also ante, at 840 (Breyer, J., concurring) (school districts act in loco parentis ). Concern for student health and safety is basic to the school's caretaking, and it is undeniable that "drug use carries a variety of health risks for children, including death from overdose." Ante, at 836-837 (majority opinion). Those risks, however, are present for all schoolchildren. Vernonia cannot be read to endorse invasive and suspicionless drug testing of all students upon any evidence of drug use, solely because drugs jeopardize the life and health of those who use them. Many children, like many adults, engage *845 in dangerous activities on their own time; that the children are enrolled in school scarcely allows government to monitor all such activities. If a student has a reasonable subjective expectation of privacy in the personal items she brings to school, see T. L. O., 469 U. S., at 338-339, surely she has a similar expectation regarding the chemical composition of her urine. Had the Vernonia Court agreed that public school attendance, in and of itself, permitted the State to test each student's blood or urine for drugs, the opinion in Vernonia could have saved many words. See, e. g., 515 U. S., at 662 ("[I]t must not be lost sight of that [the Vernonia School District] program is directed . . . to drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high."). The second commonality to which the Court points is the voluntary character of both interscholastic athletics and other competitive extracurricular activities. "By choosing to `go out for the team,' [school athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally." Id., at 657. Comparably, the Court today observes, "students who participate in competitive extracurricular activities voluntarily subject themselves to" additional rules not applicable to other students. Ante, at 831. The comparison is enlightening. While extracurricular activities are "voluntary" in the sense that they are not required for graduation, they are part of the school's educational program; for that reason, the petitioner (hereinafter School District) is justified in expending public resources to make them available. Participation in such activities is a key component of school life, essential in reality for students applying to college, and, for all participants, a significant contributor to the breadth and quality of the educational experience. See Brief for Respondents 6; Brief for American Academy of Pediatrics et al. as Amici Curiae 8-9. Students *846 "volunteer" for extracurricular pursuits in the same way they might volunteer for honors classes: They subject themselves to additional requirements, but they do so in order to take full advantage of the education offered them. Cf. Lee v. Weisman, 505 U.S. 577, 595 (1992) ("Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term `voluntary,' for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years."). Voluntary participation in athletics has a distinctly different dimension: Schools regulate student athletes discretely because competitive school sports by their nature require communal undress and, more important, expose students to physical risks that schools have a duty to mitigate. For the very reason that schools cannot offer a program of competitive athletics without intimately affecting the privacy of students, Vernonia reasonably analogized school athletes to "adults who choose to participate in a closely regulated industry." 515 U.S., at 657 (internal quotation marks omitted). Industries fall within the closely regulated category when the nature of their activities requires substantial government oversight. See, e. g., United States v. Biswell, 406 U.S. 311, 315-316 (1972). Interscholastic athletics similarly require close safety and health regulation; a school's choir, band, and academic team do not. In short, Vernonia applied, it did not repudiate, the principle that "the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." T. L. O., 469 U. S., at 341 (emphasis added). Enrollment in a public school, and election to participate in school activities beyond the bare minimum that the curriculum requires, are indeed factors relevant to reasonableness, but they do not on their own justify intrusive, suspicionless searches. Vernonia, accordingly, did not rest upon these *847 factors; instead, the Court performed what today's majority aptly describes as a "fact-specific balancing," ante, at 830. Balancing of that order, applied to the facts now before the Court, should yield a result other than the one the Court announces today. B Vernonia initially considered "the nature of the privacy interest upon which the search [there] at issue intrude[d]." 515 U.S., at 654. The Court emphasized that student athletes' expectations of privacy are necessarily attenuated: "Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require `suiting up' before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford. The locker rooms in Vernonia are typical: No individual dressing rooms are provided; shower heads are lined up along a wall, unseparated by any sort of partition or curtain; not even all the toilet stalls have doors. . . . [T]here is an element of communal undress inherent in athletic participation." Id., at 657 (internal quotation marks omitted). Competitive extracurricular activities other than athletics, however, serve students of all manner: the modest and shy along with the bold and uninhibited. Activities of the kind plaintiff-respondent Lindsay Earls pursued—choir, show choir, marching band, and academic team—afford opportunities to gain self-assurance, to "come to know faculty members in a less formal setting than the typical classroom," and to acquire "positive social supports and networks [that] play a critical role in periods of heightened stress." Brief for American Academy of Pediatrics et al. as Amici Curiae 13. On "occasional out-of-town trips," students like Lindsay Earls "must sleep together in communal settings and use *848 communal bathrooms." 242 F.3d 1264, 1275 (CA10 2001). But those situations are hardly equivalent to the routine communal undress associated with athletics; the School District itself admits that when such trips occur, "public-like restroom facilities," which presumably include enclosed stalls, are ordinarily available for changing, and that "more modest students" find other ways to maintain their privacy. Brief for Petitioners 34.[1] After describing school athletes' reduced expectation of privacy, the Vernonia Court turned to "the character of the intrusion . . . complained of." 515 U.S., at 658. Observing that students produce urine samples in a bathroom stall with a coach or teacher outside, Vernonia typed the privacy interests compromised by the process of obtaining samples "negligible." Ibid. As to the required pretest disclosure of prescription medications taken, the Court assumed that "the School District would have permitted [a student] to provide the requested information in a confidential manner—for example, in a sealed envelope delivered to the testing lab." Id., at 660. On that assumption, the Court concluded that Vernonia's athletes faced no significant invasion of privacy. In this case, however, Lindsay Earls and her parents allege that the School District handled personal information collected under the policy carelessly, with little regard for its confidentiality. Information about students' prescription drug use, they assert, was routinely viewed by Lindsay's choir teacher, who left files containing the information unlocked and unsealed, where others, including students, could see them; and test results were given out to all activity sponsors whether or not they had a clear "need to know." See *849 Brief for Respondents 6, 24; App. 105-106, 131. But see id., at 199 (policy requires that "[t]he medication list shall be submitted to the lab in a sealed and confidential envelope and shall not be viewed by district employees"). In granting summary judgment to the School District, the District Court observed that the District's "[p]olicy expressly provides for confidentiality of test results, and the Court must assume that the confidentiality provisions will be honored." 115 F. Supp. 2d 1281, 1293 (WD Okla. 2000). The assumption is unwarranted. Unlike Vernonia, where the District Court held a bench trial before ruling in the School District's favor, this case was decided by the District Court on summary judgment. At that stage, doubtful matters should not have been resolved in favor of the judgment seeker. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam) ("On summary judgment the inferences to be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to the party opposing the motion."); see also 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2716, pp. 274-277 (3d ed. 1998). Finally, the "nature and immediacy of the governmental concern," Vernonia, 515 U. S., at 660, faced by the Vernonia School District dwarfed that confronting Tecumseh administrators. Vernonia initiated its drug testing policy in response to an alarming situation: "[A] large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion . . . fueled by alcohol and drug abuse as well as the student[s'] misperceptions about the drug culture." Id., at 649 (internal quotation marks omitted). Tecumseh, by contrast, repeatedly reported to the Federal Government during the period leading up to the adoption of the policy that "types of drugs [other than alcohol and tobacco] including controlled dangerous substances, are present [in the schools] but have not identified themselves as major problems at this time." 1998-1999 Tecumseh *850 School's Application for Funds under the Safe and DrugFree Schools and Communities Program, reprinted at App. 191; accord, 1996-1997 Application, reprinted at App. 186; 1995-1996 Application, reprinted at App. 180.[2] As the Tenth Circuit observed, "without a demonstrated drug abuse problem among the group being tested, the efficacy of the District's solution to its perceived problem is . . . greatly diminished." 242 F.3d, at 1277. The School District cites Treasury Employees v. Von Raab, 489 U.S. 656, 673-674 (1989), in which this Court permitted random drug testing of customs agents absent "any perceived drug problem among Customs employees," given that "drug abuse is one of the most serious problems confronting our society today." See also Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 607, and n. 1 (1989) (upholding random drug and alcohol testing of railway employees based upon industry-wide, rather than railwayspecific, evidence of drug and alcohol problems). The tests in Von Raab and Railway Labor Executives, however, were installed to avoid enormous risks to the lives and limbs of others, not dominantly in response to the health risks to users invariably present in any case of drug use. See Von Raab, 489 U. S., at 674 (drug use by customs agents involved in drug interdiction creates "extraordinary safety and national security hazards"); Railway Labor Executives, 489 U. S., at 628 (railway operators "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences"); see *851 also Chandler v. Miller, 520 U.S. 305, 321 (1997) ("Von Raab must be read in its unique context"). Not only did the Vernonia and Tecumseh districts confront drug problems of distinctly different magnitudes, they also chose different solutions: Vernonia limited its policy to athletes; Tecumseh indiscriminately subjected to testing all participants in competitive extracurricular activities. Urging that "the safety interest furthered by drug testing is undoubtedly substantial for all children, athletes and nonathletes alike," ante, at 836, the Court cuts out an element essential to the Vernonia judgment. Citing medical literature on the effects of combining illicit drug use with physical exertion, the Vernonia Court emphasized that "the particular drugs screened by [Vernonia's] Policy have been demonstrated to pose substantial physical risks to athletes." 515 U.S., at 662; see also id. , at 666 (Ginsburg, J., concurring) (Vernonia limited to "those seeking to engage with others in team sports"). We have since confirmed that these special risks were necessary to our decision in Vernonia. See Chandler, 520 U. S., at 317 (Vernonia "emphasized the importance of deterring drug use by schoolchildren and the risk of injury a drug-using student athlete cast on himself and those engaged with him on the playing field"); see also Ferguson v. Charleston, 532 U.S. 67, 87 (2001) (Kennedy, J., concurring) (Vernonia's policy had goal of "`[d]eterring drug use by our Nation's schoolchildren,' and particularly by student-athletes, because `the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high' ") (quoting Vernonia, 515 U. S., at 661-662). At the margins, of course, no policy of random drug testing is perfectly tailored to the harms it seeks to address. The School District cites the dangers faced by members of the band, who must "perform extremely precise routines with heavy equipment and instruments in close proximity to other students," and by Future Farmers of America, who *852 "are required to individually control and restrain animals as large as 1500 pounds." Brief for Petitioners 43. For its part, the United States acknowledges that "the linebacker faces a greater risk of serious injury if he takes the field under the influence of drugs than the drummer in the halftime band," but parries that "the risk of injury to a student who is under the influence of drugs while playing golf, cross country, or volleyball (sports covered by the policy in Vernonia ) is scarcely any greater than the risk of injury to a student . . . handling a 1500-pound steer (as [Future Farmers of America] members do) or working with cutlery or other sharp instruments (as [Future Homemakers of America] members do)." Brief for United States as Amicus Curiae 18. One can demur to the Government's view of the risks drug use poses to golfers, cf. PGA TOUR, Inc. v. Martin, 532 U.S. 661, 687 (2001) ("golf is a low intensity activity"), for golfers were surely as marginal among the linebackers, sprinters, and basketball players targeted for testing in Vernonia as steer-handlers are among the choristers, musicians, and academic-team members subject to urinalysis in Tecumseh.[3] Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree. There is a difference between imperfect tailoring and no tailoring at all. The Vernonia district, in sum, had two good reasons for testing athletes: Sports team members faced special health risks and they "were the leaders of the drug culture." Vernonia, 515 U. S., at 649. No similar reason, and no other tenable justification, explains Tecumseh's decision to target *853 for testing all participants in every competitive extracurricular activity. See Chandler, 520 U. S., at 319 (drug testing candidates for office held incompatible with Fourth Amendment because program was "not well designed to identify candidates who violate antidrug laws"). Nationwide, students who participate in extracurricular activities are significantly less likely to develop substance abuse problems than are their less-involved peers. See, e. g., N. Zill, C. Nord, & L. Loomis, Adolescent Time Use, Risky Behavior, and Outcomes 52 (1995) (tenth graders "who reported spending no time in school-sponsored activities were . . . 49 percent more likely to have used drugs" than those who spent 1-4 hours per week in such activities). Even if students might be deterred from drug use in order to preserve their extracurricular eligibility, it is at least as likely that other students might forgo their extracurricular involvement in order to avoid detection of their drug use. Tecumseh's policy thus falls short doubly if deterrence is its aim: It invades the privacy of students who need deterrence least, and risks steering students at greatest risk for substance abuse away from extracurricular involvement that potentially may palliate drug problems.[4] To summarize, this case resembles Vernonia only in that the School Districts in both cases conditioned engagement in activities outside the obligatory curriculum on random subjection to urinalysis. The defining characteristics of the two programs, however, are entirely dissimilar. The Vernonia district sought to test a subpopulation of students distinguished by their reduced expectation of privacy, their special *854 susceptibility to drug-related injury, and their heavy involvement with drug use. The Tecumseh district seeks to test a much larger population associated with none of these factors. It does so, moreover, without carefully safeguarding student confidentiality and without regard to the program's untoward effects. A program so sweeping is not sheltered by Vernonia; its unreasonable reach renders it impermissible under the Fourth Amendment. II In Chandler, this Court inspected "Georgia's requirement that candidates for state office pass a drug test"; we held that the requirement "d[id] not fit within the closely guarded category of constitutionally permissible suspicionless searches." 520 U.S., at 309. Georgia's testing prescription, the record showed, responded to no "concrete danger," id., at 319, was supported by no evidence of a particular problem, and targeted a group not involved in "high-risk, safety-sensitive tasks," id., at 321-322. We concluded: "What is left, after close review of Georgia's scheme, is the image the State seeks to project. By requiring candidates for public office to submit to drug testing, Georgia displays its commitment to the struggle against drug abuse. . . . The need revealed, in short, is symbolic, not `special,' as that term draws meaning from our case law." Ibid. Close review of Tecumseh's policy compels a similar conclusion. That policy was not shown to advance the "`special needs' [existing] in the public school context [to maintain] . . . swift and informal disciplinary procedures . . . [and] order in the schools," Vernonia, 515 U. S., at 653 (internal quotation marks omitted). See supra, at 846-848, 849— 853. What is left is the School District's undoubted purpose to heighten awareness of its abhorrence of, and strong stand against, drug abuse. But the desire to augment communication *855 of this message does not trump the right of persons— even of children within the schoolhouse gate—to be "secure in their persons . . . against unreasonable searches and seizures." U. S. Const., Amdt. 4. In Chandler, the Court referred to a pathmarking dissenting opinion in which "Justice Brandeis recognized the importance of teaching by example: `Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.' " 520 U.S., at 322 (quoting Olmstead v. United States, 277 U.S. 438, 485 (1928)). That wisdom should guide decisionmakers in the instant case: The government is nowhere more a teacher than when it runs a public school. It is a sad irony that the petitioning School District seeks to justify its edict here by trumpeting "the schools' custodial and tutelary responsibility for children." Vernonia, 515 U. S., at 656. In regulating an athletic program or endeavoring to combat an exploding drug epidemic, a school's custodial obligations may permit searches that would otherwise unacceptably abridge students' rights. When custodial duties are not ascendant, however, schools' tutelary obligations to their students require them to "teach by example" by avoiding symbolic measures that diminish constitutional protections. "That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 637 (1943). * * * For the reasons stated, I would affirm the judgment of the Tenth Circuit declaring the testing policy at issue unconstitutional.

Seven years ago, in School Dist. this Court determined that a school *843 district's policy of randomly testing the urine of its student athletes for illicit drugs did not violate the Fourth Amendment. In so ruling, the Court emphasized that drug use "increase[d] the risk of sports-related injury" and that 's athletes were the "leaders" of an aggressive local "drug culture" that had reached "`epidemic proportions.' " Today, the Court relies upon to permit a school district with a drug problem its superintendent repeatedly described as "not major," see App. 180, 186, 191, to test the urine of an academic team member solely by reason of her participation in a nonathletic, competitive extracurricular activity—participation associated with neither special dangers from, nor particular predilections for, drug use. "[T]he legality of a search of a student," this Court has instructed, "should depend simply on the reasonableness, under all the circumstances, of the search." New Although "`special needs' inhere in the public school context," see ante, at 829 (quoting ), those needs are not so expansive or malleable as to render reasonable any program of student drug testing a school district elects to install. The particular testing program upheld today is not reasonable; it is capricious, even perverse: Petitioners' policy targets for testing a student population least likely to be at risk from illicit drugs and their damaging effects. I therefore dissent. I A A search unsupported by probable cause nevertheless may be consistent with the Fourth Amendment "when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." In this Court made clear that "such `special needs' exist in the public school context." * (quoting 483 U. S., at ). The Court observed: "[W]hile children assuredly do not `shed their constitutional rights at the schoolhouse gate,' the nature of those rights is what is appropriate for children in school. Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the `reasonableness' inquiry cannot disregard the schools' custodial and tutelary responsibility for children." -656 The Court concluded that a public school district facing a disruptive and explosive drug abuse problem sparked by members of its athletic teams had "special needs" that justified suspicionless testing of district athletes as a condition of their athletic participation. This case presents circumstances dispositively different from those of True, as the Court stresses, Tecumseh students participating in competitive extracurricular activities other than athletics share two relevant characteristics with the athletes of First, both groups attend public schools. "[O]ur decision in " the Court states, "depended primarily upon the school's custodial responsibility and authority." Ante, at 831; see also ante, at 840 (Breyer, J., concurring) (school districts act in loco parentis ). Concern for student health and safety is basic to the school's caretaking, and it is undeniable that "drug use carries a variety of health risks for children, including death from overdose." Ante, at 836-837 (majority opinion). Those risks, however, are present for all schoolchildren. cannot be read to endorse invasive and suspicionless drug testing of all students upon any evidence of drug use, solely because drugs jeopardize the life and health of those who use them. Many children, like many adults, engage *845 in dangerous activities on their own time; that the children are enrolled in school scarcely allows government to monitor all such activities. If a student has a reasonable subjective expectation of privacy in the personal items she brings to school, see T. L. -339, surely she has a similar expectation regarding the chemical composition of her urine. Had the Court agreed that public school attendance, in and of itself, permitted the State to test each student's blood or urine for drugs, the opinion in could have saved many words. See, e. ("[I]t must not be lost sight of that [the School District] program is directed to drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high."). The second commonality to which the Court points is the voluntary character of both interscholastic athletics and other competitive extracurricular activities. "By choosing to `go out for the team,' [school athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally." Comparably, the Court today observes, "students who participate in competitive extracurricular activities voluntarily subject themselves to" additional rules not applicable to other students. Ante, at 831. The comparison is enlightenin While extracurricular activities are "voluntary" in the sense that they are not required for graduation, they are part of the school's educational program; for that reason, the petitioner (hereinafter School District) is justified in expending public resources to make them available. Participation in such activities is a key component of school life, essential in reality for students applying to college, and, for all participants, a significant contributor to the breadth and quality of the educational experience. See Brief for Respondents 6; Brief for American Academy of Pediatrics et al. as Amici Curiae 8-9. Students *846 "volunteer" for extracurricular pursuits in the same way they might volunteer for honors classes: They subject themselves to additional requirements, but they do so in order to take full advantage of the education offered them. Cf. ("Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term `voluntary,' for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years."). Voluntary participation in athletics has a distinctly different dimension: Schools regulate student athletes discretely because competitive school sports by their nature require communal undress and, more important, expose students to physical risks that schools have a duty to mitigate. For the very reason that schools cannot offer a program of competitive athletics without intimately affecting the privacy of students, reasonably analogized school athletes to "adults who choose to participate in a closely regulated industry." 515 U.S., Industries fall within the closely regulated category when the nature of their activities requires substantial government oversight. See, e. United Interscholastic athletics similarly require close safety and health regulation; a school's choir, band, and academic team do not. In short, applied, it did not repudiate, the principle that "the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search." T. L. 469 U. S., at Enrollment in a public school, and election to participate in school activities beyond the bare minimum that the curriculum requires, are indeed factors relevant to reasonableness, but they do not on their own justify intrusive, suspicionless searches. accordingly, did not rest upon these *847 factors; instead, the Court performed what today's majority aptly describes as a "fact-specific balancing," ante, at 830. Balancing of that order, applied to the facts now before the Court, should yield a result other than the one the Court announces today. B initially considered "the nature of the privacy interest upon which the search [there] at issue intrude[d]." The Court emphasized that student athletes' expectations of privacy are necessarily attenuated: "Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require `suiting up' before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford. The locker rooms in are typical: No individual dressing rooms are provided; shower heads are lined up along a wall, unseparated by any sort of partition or curtain; not even all the toilet stalls have doors. [T]here is an element of communal undress inherent in athletic participation." Competitive extracurricular activities other than athletics, however, serve students of all manner: the modest and shy along with the bold and uninhibited. Activities of the kind plaintiff-respondent Lindsay Earls pursued—choir, show choir, marching band, and academic team—afford opportunities to gain self-assurance, to "come to know faculty members in a less formal setting than the typical classroom," and to acquire "positive social supports and networks [that] play a critical role in periods of heightened stress." Brief for American Academy of Pediatrics et al. as Amici Curiae 13. On "occasional out-of-town trips," students like Lindsay Earls "must sleep together in communal settings and use *848 communal bathrooms." But those situations are hardly equivalent to the routine communal undress associated with athletics; the School District itself admits that when such trips occur, "public-like restroom facilities," which presumably include enclosed stalls, are ordinarily available for changing, and that "more modest students" find other ways to maintain their privacy. Brief for Petitioners 34.[1] After describing school athletes' reduced expectation of privacy, the Court turned to "the character of the intrusion complained of." Observing that students produce urine samples in a bathroom stall with a coach or teacher outside, typed the privacy interests compromised by the process of obtaining samples "negligible." As to the required pretest disclosure of prescription medications taken, the Court assumed that "the School District would have permitted [a student] to provide the requested information in a confidential manner—for example, in a sealed envelope delivered to the testing lab." On that assumption, the Court concluded that 's athletes faced no significant invasion of privacy. In this case, however, Lindsay Earls and her parents allege that the School District handled personal information collected under the policy carelessly, with little regard for its confidentiality. Information about students' prescription drug use, they assert, was routinely viewed by Lindsay's choir teacher, who left files containing the information unlocked and unsealed, where others, including students, could see them; and test results were given out to all activity sponsors whether or not they had a clear "need to know." See *849 Brief for Respondents 6, 24; App. 105-106, 131. But see In granting summary judgment to the School District, the District Court observed that the District's "[p]olicy expressly provides for confidentiality of test results, and the Court must assume that the confidentiality provisions will be honored." The assumption is unwarranted. Unlike where the District Court held a bench trial before ruling in the School District's favor, this case was decided by the District Court on summary judgment. At that stage, doubtful matters should not have been resolved in favor of the judgment seeker. See United ("On summary judgment the inferences to be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to the party opposing the motion."); see also 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2716, pp. 274-277 (3d ed. 1998). Finally, the "nature and immediacy of the governmental concern," 515 U. S., faced by the School District dwarfed that confronting Tecumseh administrators. initiated its drug testing policy in response to an alarming situation: "[A] large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion fueled by alcohol and drug abuse as well as the student[s'] misperceptions about the drug culture." Tecumseh, by contrast, repeatedly reported to the Federal Government during the period leading up to the adoption of the policy that "types of drugs [other than alcohol and tobacco] including controlled dangerous substances, are present [in the schools] but have not identified themselves as major problems at this time." 1998-1999 Tecumseh *850 School's Application for Funds under the Safe and DrugFree Schools and Communities Program, reprinted at App. 191; accord, 1996-1997 Application, reprinted at App. 186; 1995-1996 Application, reprinted at App. 180.[2] As the Tenth Circuit observed, "without a demonstrated drug abuse problem among the group being tested, the efficacy of the District's solution to its perceived problem is greatly diminished." The School District cites Treasury in which this Court permitted random drug testing of customs agents absent "any perceived drug problem among Customs employees," given that "drug abuse is one of the most serious problems confronting our society today." See also The tests in Von and Railway Labor however, were installed to avoid enormous risks to the lives and limbs of others, not dominantly in response to the health risks to users invariably present in any case of drug use. See Von ; Railway Labor ; see *851 also ("Von must be read in its unique context"). Not only did the and Tecumseh districts confront drug problems of distinctly different magnitudes, they also chose different solutions: limited its policy to athletes; Tecumseh indiscriminately subjected to testing all participants in competitive extracurricular activities. Urging that "the safety interest furthered by drug testing is undoubtedly substantial for all children, athletes and nonathletes alike," ante, at 836, the Court cuts out an element essential to the judgment. Citing medical literature on the effects of combining illicit drug use with physical exertion, the Court emphasized that "the particular drugs screened by ['s] Policy have been demonstrated to pose substantial physical risks to athletes." ; see also at 666 (Ginsburg, J., concurring) ( limited to "those seeking to engage with others in team sports"). We have since confirmed that these special risks were necessary to our decision in See ( "emphasized the importance of deterring drug use by schoolchildren and the risk of injury a drug-using student athlete cast on himself and those engaged with him on the playing field"); see also ('s policy had goal of "`[d]eterring drug use by our Nation's schoolchildren,' and particularly by student-athletes, because `the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high' ") (quoting -662). At the margins, of course, no policy of random drug testing is perfectly tailored to the harms it seeks to address. The School District cites the dangers faced by members of the band, who must "perform extremely precise routines with heavy equipment and instruments in close proximity to other students," and by Future Farmers of America, who *852 "are required to individually control and restrain animals as large as 1500 pounds." Brief for Petitioners 43. For its part, the United States acknowledges that "the linebacker faces a greater risk of serious injury if he takes the field under the influence of drugs than the drummer in the halftime band," but parries that "the risk of injury to a student who is under the influence of drugs while playing golf, cross country, or volleyball (sports covered by the policy in ) is scarcely any greater than the risk of injury to a student handling a 1500-pound steer (as [Future Farmers of America] members do) or working with cutlery or other sharp instruments (as [Future Homemakers of America] members do)." Brief for United States as Amicus Curiae 18. One can demur to the Government's view of the risks drug use poses to golfers, cf. PGA TOUR, 6 for golfers were surely as marginal among the linebackers, sprinters, and basketball players targeted for testing in as steer-handlers are among the choristers, musicians, and academic-team members subject to urinalysis in Tecumseh.[3] Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree. There is a difference between imperfect tailoring and no tailoring at all. The district, in sum, had two good reasons for testing athletes: Sports team members faced special health risks and they "were the leaders of the drug culture." 515 U. S., No similar reason, and no other tenable justification, explains Tecumseh's decision to target *853 for testing all participants in every competitive extracurricular activity. See Nationwide, students who participate in extracurricular activities are significantly less likely to develop substance abuse problems than are their less-involved peers. See, e. N. Zill, C. Nord, & L. Loomis, Adolescent Time Use, Risky Behavior, and Outcomes 52 (tenth graders "who reported spending no time in school-sponsored activities were 49 percent more likely to have used drugs" than those who spent 1-4 hours per week in such activities). Even if students might be deterred from drug use in order to preserve their extracurricular eligibility, it is at least as likely that other students might forgo their extracurricular involvement in order to avoid detection of their drug use. Tecumseh's policy thus falls short doubly if deterrence is its aim: It invades the privacy of students who need deterrence least, and risks steering students at greatest risk for substance abuse away from extracurricular involvement that potentially may palliate drug problems.[4] To summarize, this case resembles only in that the School Districts in both cases conditioned engagement in activities outside the obligatory curriculum on random subjection to urinalysis. The defining characteristics of the two programs, however, are entirely dissimilar. The district sought to test a subpopulation of students distinguished by their reduced expectation of privacy, their special *854 susceptibility to drug-related injury, and their heavy involvement with drug use. The Tecumseh district seeks to test a much larger population associated with none of these factors. It does so, moreover, without carefully safeguarding student confidentiality and without regard to the program's untoward effects. A program so sweeping is not sheltered by ; its unreasonable reach renders it impermissible under the Fourth Amendment. II In this Court inspected "Georgia's requirement that candidates for state office pass a drug test"; we held that the requirement "d[id] not fit within the closely guarded category of constitutionally permissible suspicionless searches." Georgia's testing prescription, the record showed, responded to no "concrete danger," was supported by no evidence of a particular problem, and targeted a group not involved in "high-risk, safety-sensitive tasks," at -322. We concluded: "What is left, after close review of Georgia's scheme, is the image the State seeks to project. By requiring candidates for public office to submit to drug testing, Georgia displays its commitment to the struggle against drug abuse. The need revealed, in short, is symbolic, not `special,' as that term draws meaning from our case law." Close review of Tecumseh's policy compels a similar conclusion. That policy was not shown to advance the "`special needs' [existing] in the public school context [to maintain] swift and informal disciplinary procedures [and] order in the schools," See 849— 853. What is left is the School District's undoubted purpose to heighten awareness of its abhorrence of, and strong stand against, drug abuse. But the desire to augment communication *855 of this message does not trump the right of persons— even of children within the schoolhouse gate—to be "secure in their persons against unreasonable searches and seizures." U. S. Const., Amdt. 4. In the Court referred to a pathmarking dissenting opinion in which "Justice Brandeis recognized the importance of teaching by example: `Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.' " ). That wisdom should guide decisionmakers in the instant case: The government is nowhere more a teacher than when it runs a public school. It is a sad irony that the petitioning School District seeks to justify its edict here by trumpeting "the schools' custodial and tutelary responsibility for children." In regulating an athletic program or endeavoring to combat an exploding drug epidemic, a school's custodial obligations may permit searches that would otherwise unacceptably abridge students' rights. When custodial duties are not ascendant, however, schools' tutelary obligations to their students require them to "teach by example" by avoiding symbolic measures that diminish constitutional protections. "That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." West Virginia Bd. of * * * For the reasons stated, I would affirm the judgment of the Tenth Circuit declaring the testing policy at issue unconstitutional.

Justice Breyer

majority

Baldwin v. Reese

2004-03-02

https://www.courtlistener.com/opinion/134723/baldwin-v-reese/

https://www.courtlistener.com/api/rest/v3/clusters/134723/

2003-039

Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S. C. § 2254(b)(1), thereby giving the State the "`"opportunity to pass upon and correct" alleged violations of its prisoners' federal rights.'" Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). To provide the State with the necessary "opportunity," the prisoner must "fairly present" his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim. Duncan, supra, at 365-366; O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This case focuses upon the requirement of "fair presentation." I Michael Reese, the respondent, appealed his state-court kidnaping and attempted sodomy convictions and sentences through Oregon's state court system. He then brought collateral relief proceedings in the state courts (where he was represented by appointed counsel). After the lower courts denied him collateral relief, Reese filed a petition for discretionary review in the Oregon Supreme Court. The petition made several different legal claims. In relevant part, the petition asserted that Reese had received "ineffective assistance of both trial court and appellate court counsel." App. 47. The petition added that "his imprisonment *30 is in violation of [Oregon state law]." Id., at 48. It said that his trial counsel's conduct violated several provisions of the Federal Constitution. Ibid. But it did not say that his separate appellate "ineffective assistance" claim violated federal law. The Oregon Supreme Court denied review. Reese ultimately sought a federal writ of habeas corpus, raising, among other claims, a federal constitutional claim that his appellate counsel did not effectively represent him during one of his direct state-court appeals. The Federal District Court held that Reese had not "fairly presented" his federal "ineffective assistance of appellate counsel" claim to the higher state courts because his brief in the state appeals court had not indicated that he was complaining about a violation of federal law. A divided panel of the Ninth Circuit reversed the District Court. 282 F.3d 1184 (2002). Although the majority apparently believed that Reese's petition itself did not alert the Oregon Supreme Court to the federal nature of the appellate "ineffective assistance" claim, it did not find that fact determinative. Id., at 1193-1194. Rather, it found that Reese had satisfied the "fair presentation" requirement because the justices of the Oregon Supreme Court had had "the opportunity to read . . . the lower [Oregon] court decision claimed to be in error before deciding whether to grant discretionary review." Id., at 1194 (emphasis added). Had they read the opinion of the lower state trial court, the majority added, the justices would have, or should have, realized that Reese's claim rested upon federal law. Ibid. We granted certiorari to determine whether the Ninth Circuit has correctly interpreted the "fair presentation" requirement. II We begin by assuming that Reese's petition by itself did not properly alert the Oregon Supreme Court to the federal nature of Reese's claim. On that assumption, Reese failed *31 to meet the "fair presentation" standard, and the Ninth Circuit was wrong to hold the contrary. We recognize that the justices of the Oregon Supreme Court did have an "opportunity" to read the lower court opinions in Reese's case. That opportunity means that the judges could have read them. But to say that a petitioner "fairly presents" a federal claim when an appellate judge can discover that claim only by reading lower court opinions in the case is to say that those judges must read the lower court opinions — for otherwise they would forfeit the State's opportunity to decide that federal claim in the first instance. In our view, federal habeas corpus law does not impose such a requirement. For one thing, the requirement would force state appellate judges to alter their ordinary review practices. Appellate judges, of course, will often read lower court opinions, but they do not necessarily do so in every case. Sometimes an appellate court can decide a legal question on the basis of the briefs alone. That is particularly so where the question at issue is whether to exercise a discretionary power of review, i. e., whether to review the merits of a lower court decision. In such instances, the nature of the issue may matter more than does the legal validity of the lower court decision. And the nature of the issue alone may lead the court to decide not to hear the case. Indeed, the Oregon Supreme Court is a court with a discretionary power of review. And Oregon Rule of Appellate Procedure 9.05(7) (2003) instructs litigants seeking discretionary review to identify clearly in the petition itself the legal questions presented, why those questions have special importance, a short statement of relevant facts, and the reasons for reversal, "including appropriate authorities." For another thing, the opinion-reading requirement would impose a serious burden upon judges of state appellate courts, particularly those with discretionary review powers. Those courts have heavy workloads, which would be significantly *32 increased if their judges had to read through lower court opinions or briefs in every instance. See National Center for State Courts, State Court Caseload Statistics 2002, pp. 106-110 (Table 2) (for example, in 2001, Oregon appellate courts received a total of 5,341 appeals, including 908 petitions for discretionary review to its Supreme Court; California appellate courts received 32,273, including 8,860 discretionary Supreme Court petitions; Louisiana appellate courts received 13,117, including 3,230 discretionary Supreme Court petitions; Illinois appellate courts received 12,411, including 2,325 discretionary Supreme Court petitions). Finally, we do not find such a requirement necessary to avoid imposing unreasonable procedural burdens upon state prisoners who may eventually seek habeas corpus. A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim "federal." For these reasons, we believe that the requirement imposed by the Ninth Circuit would unjustifiably undercut the considerations of federal-state comity that the exhaustion requirement seeks to promote. We consequently hold that ordinarily a state prisoner does not "fairly present" a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so. III Reese argues in the alternative that it is wrong to assume that his petition by itself failed to alert the Oregon Supreme Court to the federal nature of his "ineffective assistance of appellate counsel" claim. We do not agree. *33 Reese must concede that his petition does not explicitly say that the words "ineffective assistance of appellate counsel" refer to a federal claim. The petition refers to provisions of the Federal Constitution in respect to other claims but not in respect to this one. The petition provides no citation of any case that might have alerted the court to the alleged federal nature of the claim. And the petition does not even contain a factual description supporting the claim. Cf. Gray v. Netherland, 518 U.S. 152, 163 (1996); Duncan, 513 U. S., at 366. Reese asserts that the petition nonetheless "fairly presents" a federal "ineffective assistance of appellate counsel" claim for two reasons. First, he says that the word "ineffective" is a term of art in Oregon that refers only to federal-law claims and not to similar state-law claims, which, he adds, in Oregon are solely referred to as "inadequate assistance" claims. And thus the Oregon Supreme Court should have known, from his use of the word "ineffective," that his claim was federal. Reese, however, has not demonstrated that Oregon law uses the words "ineffective assistance" in the manner he suggests, that is, as referring only to a federal-law claim. See, e. g., Lichau v. Baldwin, 166 Ore. App. 411, 415, 417, 999 P.2d 1207, 1210, 1211 (2000) (using "ineffective assistance" to refer to violations of the Oregon Constitution), rev'd in part, 333 Ore. 350, 39 P.3d 851 (2002). Indeed, Reese's own petition uses both phrases — "ineffective assistance" and "inadequate assistance" — at different points to refer to what is apparently a single claim. Second, Reese says that in Oregon the standards for adjudicating state and federal "inadequate/ineffective appellate assistance" claims are identical. He adds that, where that identity exists, a petitioner need not indicate a claim's federal nature, because, by raising a state-law claim, he would necessarily "fairly present" the corresponding federal claim. *34 However, the Ninth Circuit did not address this argument, and our reading of the briefs filed in the Ninth Circuit leads us to conclude that Reese did not there seek consideration of the argument in that court. Indeed, the argument first made its appearance in this Court in Reese's brief on the merits. Under this Court's Rule 15.2, "a nonjurisdictional argument not raised in a respondent's brief in opposition to a petition for a writ of certiorari may be deemed waived." Caterpillar Inc. v. Lewis, 519 U.S. 61, 75, n. 13 (1996) (internal quotation marks omitted). This argument falls squarely within the rule. The complex nature of Reese's claim and its broad implications suggest that its consideration by the lower courts would help in its resolution. Hence, without expressing any view on the merits of the issue, we exercise our Rule 15.2 discretion and deem the argument waived in this Court. See, e. g., Roberts v. Galen of Va., Inc., 525 U.S. 249, 253-254 (1999) (per curiam); South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 171 (1999); cf. Sprietsma v. Mercury Marine, 537 U.S. 51, 56, n. 4 (2002). For these reasons, the judgment of the Ninth Circuit is Reversed.

Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S. C. 2254(b)(1), thereby giving the State the "`"opportunity to pass upon and correct" alleged violations of its prisoners' federal rights.'" ). To provide the State with the necessary "opportunity," the prisoner must "fairly present" his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim. at -366; This case focuses upon the requirement of "fair presentation." I Michael Reese, the respondent, appealed his state-court kidnaping and attempted sodomy convictions and sentences through Oregon's state court system. He then brought collateral relief proceedings in the state courts (where he was represented by appointed counsel). After the lower courts denied him collateral relief, Reese filed a petition for discretionary review in the Oregon Supreme Court. The petition made several different legal claims. In relevant part, the petition asserted that Reese had received "ineffective assistance of both trial court and appellate court counsel." App. 47. The petition added that "his imprisonment *30 is in violation of [Oregon state law]." It said that his trial counsel's conduct violated several provisions of the Federal Constitution. But it did not say that his separate appellate "ineffective assistance" claim violated federal law. The Oregon Supreme Court denied review. Reese ultimately sought a federal writ of habeas corpus, raising, among other claims, a federal constitutional claim that his appellate counsel did not effectively represent him during one of his direct state-court appeals. The Federal District Court held that Reese had not "fairly presented" his federal "ineffective assistance of appellate counsel" claim to the higher state courts because his brief in the state appeals court had not indicated that he was complaining about a violation of federal law. A divided panel of the Ninth Circuit reversed the District Court. Although the majority apparently believed that Reese's petition itself did not alert the Oregon Supreme Court to the federal nature of the appellate "ineffective assistance" claim, it did not find that fact determinative. Rather, it found that Reese had satisfied the "fair presentation" requirement because the justices of the Oregon Supreme Court had had "the opportunity to read the lower [Oregon] court decision claimed to be in error before deciding whether to grant discretionary review." Had they read the opinion of the lower state trial court, the majority added, the justices would have, or should have, realized that Reese's claim rested upon federal law. We granted certiorari to determine whether the Ninth Circuit has correctly interpreted the "fair presentation" requirement. II We begin by assuming that Reese's petition by itself did not properly alert the Oregon Supreme Court to the federal nature of Reese's claim. On that assumption, Reese failed *31 to meet the "fair presentation" standard, and the Ninth Circuit was wrong to hold the contrary. We recognize that the justices of the Oregon Supreme Court did have an "opportunity" to read the lower court opinions in Reese's case. That opportunity means that the judges could have read them. But to say that a petitioner "fairly presents" a federal claim when an appellate judge can discover that claim only by reading lower court opinions in the case is to say that those judges must read the lower court opinions — for otherwise they would forfeit the State's opportunity to decide that federal claim in the first instance. In our view, federal habeas corpus law does not impose such a requirement. For one thing, the requirement would force state appellate judges to alter their ordinary review practices. Appellate judges, of course, will often read lower court opinions, but they do not necessarily do so in every case. Sometimes an appellate court can decide a legal question on the basis of the briefs alone. That is particularly so where the question at issue is whether to exercise a discretionary power of review, i. e., whether to review the merits of a lower court decision. In such instances, the nature of the issue may matter more than does the legal validity of the lower court decision. And the nature of the issue alone may lead the court to decide not to hear the case. Indeed, the Oregon Supreme Court is a court with a discretionary power of review. And Oregon Rule of Appellate Procedure 9.05(7) (2003) instructs litigants seeking discretionary review to identify clearly in the petition itself the legal questions presented, why those questions have special importance, a short statement of relevant facts, and the reasons for reversal, "including appropriate authorities." For another thing, the opinion-reading requirement would impose a serious burden upon judges of state appellate courts, particularly those with discretionary review powers. Those courts have heavy workloads, which would be significantly *32 increased if their judges had to read through lower court opinions or briefs in every instance. See National Center for State Courts, State Court Caseload Statistics pp. 106-110 (Table 2) (for example, in 2001, Oregon appellate courts received a total of 5,341 appeals, including 908 petitions for discretionary review to its Supreme Court; California appellate courts received 32,273, including 8,860 discretionary Supreme Court petitions; Louisiana appellate courts received 13,117, including 3,230 discretionary Supreme Court petitions; Illinois appellate courts received 12,411, including 2,325 discretionary Supreme Court petitions). Finally, we do not find such a requirement necessary to avoid imposing unreasonable procedural burdens upon state prisoners who may eventually seek habeas corpus. A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim "federal." For these reasons, we believe that the requirement imposed by the Ninth Circuit would unjustifiably undercut the considerations of federal-state comity that the exhaustion requirement seeks to promote. We consequently hold that ordinarily a state prisoner does not "fairly present" a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so. III Reese argues in the alternative that it is wrong to assume that his petition by itself failed to alert the Oregon Supreme Court to the federal nature of his "ineffective assistance of appellate counsel" claim. We do not agree. *33 Reese must concede that his petition does not explicitly say that the words "ineffective assistance of appellate counsel" refer to a federal claim. The petition refers to provisions of the Federal Constitution in respect to other claims but not in respect to this one. The petition provides no citation of any case that might have alerted the court to the alleged federal nature of the claim. And the petition does not even contain a factual description supporting the claim. Cf. ; Reese asserts that the petition nonetheless "fairly presents" a federal "ineffective assistance of appellate counsel" claim for two reasons. First, he says that the word "ineffective" is a term of art in Oregon that refers only to federal-law claims and not to similar state-law claims, which, he adds, in Oregon are solely referred to as "inadequate assistance" claims. And thus the Oregon Supreme Court should have known, from his use of the word "ineffective," that his claim was federal. Reese, however, has not demonstrated that Oregon law uses the words "ineffective assistance" in the manner he suggests, that is, as referring only to a federal-law claim. See, e. g., rev'd in part, Indeed, Reese's own petition uses both phrases — "ineffective assistance" and "inadequate assistance" — at different points to refer to what is apparently a single claim. Second, Reese says that in Oregon the standards for adjudicating state and federal "inadequate/ineffective appellate assistance" claims are identical. He adds that, where that identity exists, a petitioner need not indicate a claim's federal nature, because, by raising a state-law claim, he would necessarily "fairly present" the corresponding federal claim. *34 However, the Ninth Circuit did not address this argument, and our reading of the briefs filed in the Ninth Circuit leads us to conclude that Reese did not there seek consideration of the argument in that court. Indeed, the argument first made its appearance in this Court in Reese's brief on the merits. Under this Court's Rule 15.2, "a nonjurisdictional argument not raised in a respondent's brief in opposition to a petition for a writ of certiorari may be deemed waived." Caterpillar This argument falls squarely within the rule. The complex nature of Reese's claim and its broad implications suggest that its consideration by the lower courts would help in its resolution. Hence, without expressing any view on the merits of the issue, we exercise our Rule 15.2 discretion and deem the argument waived in this Court. See, e. g., ; South Central Bell Telephone ; cf. For these reasons, the judgment of the Ninth Circuit is Reversed.

Justice Stevens

dissenting

Baldwin v. Reese

2004-03-02

https://www.courtlistener.com/opinion/134723/baldwin-v-reese/

https://www.courtlistener.com/api/rest/v3/clusters/134723/

2003-039

It is appropriate to disregard this Court's Rule 15.2 and permit respondents to defend a judgment on grounds not raised in the brief in opposition when the omitted issue is "predicate to an intelligent resolution of the question presented." Ohio v. Robinette, 519 U.S. 33, 38 (1996) (internal quotation marks omitted). I would do so in this case. Respondent satisfactorily demonstrates that there is no significant difference between an ineffective-assistance-of-appellate-counsel claim predicated on the Oregon Constitution and one based on federal law. Brief for Respondent 29-35; see also Guinn v. Cupp, 304 Ore. 488, 495-496, 747 P.2d 984, 988-989 (1988) (in banc). It is therefore clear that *35 the state courts did have a fair opportunity to assess respondent's federal claim. Accordingly, I would affirm the judgment of the Court of Appeals.

It is appropriate to disregard this Court's Rule 15.2 and permit respondents to defend a judgment on grounds not raised in the brief in opposition when the omitted issue is "predicate to an intelligent resolution of the question presented." I would do so in this case. Respondent satisfactorily demonstrates that there is no significant difference between an ineffective-assistance-of-appellate-counsel claim predicated on the Oregon Constitution and one based on federal law. Brief for Respondent 29-35; see also It is therefore clear that *35 the state courts did have a fair opportunity to assess respondent's federal claim. Accordingly, I would affirm the judgment of the Court of Appeals.

Justice Sotomayor

majority

Roberts v. Sea-Land Services, Inc.

2012-03-20

https://www.courtlistener.com/opinion/625709/roberts-v-sea-land-services-inc/

https://www.courtlistener.com/api/rest/v3/clusters/625709/

2011-033

The Longshore and Harbor Workers’ Compensation Act (LHWCA or Act), ch. 509, 44 Stat. 1424, as amended, 33 U.S. C. §901 et seq., caps benefits for most types of dis- ability at twice the national average weekly wage for the fiscal year in which an injured employee is “newly award­ ed compensation.” §906(c). We hold that an employee is “newly awarded compensation” when he first becomes disabled and thereby becomes statutorily entitled to bene­ fits, no matter whether, or when, a compensation order issues on his behalf. I A The LHWCA “is a comprehensive scheme to provide compensation ‘in respect of disability or death of an em­ ployee . . . if the disability or death results from an in- jury occurring upon the navigable waters of the United States.’ ” Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 294 (1995) (quoting §903(a)). An employee’s compen­ sation depends on the severity of his disability and his preinjury pay. A totally disabled employee, for example, is 2 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court entitled to two-thirds of his preinjury average weekly wage as long as he remains disabled. §§908(a)–(b), 910. Section 906, however, sets a cap on compensation.1 Disability benefits “shall not exceed” twice “the applicable national average weekly wage.” §906(b)(1). The national average weekly wage—“the national average weekly earn­ ings of production or nonsupervisory workers on private nonagricultural payrolls,” §902(19)—is recalculated by the Secretary of Labor each fiscal year. §906(b)(3). For most types of disability, the “applicable” national average week­ ly wage is the figure for the fiscal year in which a benefi­ ciary is “newly awarded compensation,” and the cap re­ mains constant as long as benefits continue. §906(c).2 —————— 1 Section 906 provides, in pertinent part: “(b) Maximum rate of compensation “(1) Compensation for disability or death (other than compensation for death required . . . to be paid in a lump sum) shall not exceed an amount equal to 200 per centum of the applicable national average weekly wage, as determined by the Secretary under paragraph (3). . . . . . “(3) As soon as practicable after June 30 of each year, and in any event prior to October 1 of such year, the Secretary shall determine the national average weekly wage for the three consecutive calendar quarters ending June 30. Such determination shall be the applicable national average weekly wage for the period beginning with October 1 of that year and ending with September 30 of the next year. . . . “(c) Applicability of determinations “Determinations under subsection (b)(3) . . . with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.” 2 For those “currently receiving compensation for permanent total disability or death benefits,” §906(c), the cap is adjusted each fiscal year—and typically increases, in step with the usual inflation-driven rise in the national average weekly wage. See Dept. of Labor, Division of Longshore and Harbor Workers’ Compensation (DLHWC), NAWW Information, online at http://www.dol.gov/owcp/dlhwc/NAWWinfo.htm (all Internet materials as visited Mar. 16, 2012, and available in Clerk of Court’s case file). Section 906(c)’s “currently receiving compensation” clause is not at issue here. Cite as: 566 U. S. ____ (2012) 3 Opinion of the Court Consistent with the central bargain of workers’ compen­ sation regimes—limited liability for employers; certain, prompt recovery for employees—the LHWCA requires that employers pay benefits voluntarily, without formal admin­ istrative proceedings. Once an employee provides notice of a disabling injury, his employer must pay compensation “periodically, promptly, and directly . . . without an award, except where liability to pay compensation is controvert­ ed.” §914(a). In general, employers pay benefits without contesting liability. See Pallas Shipping Agency, Ltd. v. Duris, 461 U.S. 529, 532 (1983). In the mine run of cases, therefore, no compensation orders issue. If an employer controverts, or if an employee contests his employer’s actions with respect to his benefits, the dispute advances to the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). See 20 CFR §§702.251–702.262 (2011). The OWCP district directors “are empowered to amicably and promptly resolve such problems by informal procedures.” §702.301. A district director’s informal disposition may result in a compen- sation order. §702.315(a). In practice, however, “many pending claims are amicably settled through voluntary payments without the necessity of a formal order.” Inter- county Constr. Corp. v. Walter, 422 U.S. 1, 4, n. 4 (1975). If informal resolution fails, the district director refers the dispute to an administrative law judge (ALJ). See 20 CFR §§702.316, 702.331–702.351. An ALJ’s decision after a hearing culminates in the entry of a compensation order. 33 U.S. C. §§919(c)–(e).3 —————— 3 In fiscal year 1971, only 209 cases out of the 17,784 in which com­ pensation was paid resulted in orders. Hearings on S. 2318 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 757–758 (1972). Congress enacted §906’s predecessor provision, which included the “newly awarded compensation” clause, in 1972. Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, §5, 86 Stat. 1253. 4 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court B In fiscal year 2002, petitioner Dana Roberts slipped and fell on a patch of ice while employed at respondent Sea- Land Services’ marine terminal in Dutch Harbor, Alaska. Roberts injured his neck and shoulder and did not return to work. On receiving notice of his disability, Sea-Land (except for a six-week period in 2003) voluntarily paid Roberts benefits absent a compensation order until fiscal year 2005. When Sea-Land discontinued voluntary pay­ ments, Roberts filed an LHWCA claim, and Sea-Land controverted. In fiscal year 2007, after a hearing, an ALJ awarded Roberts benefits at the statutory maximum rate of $966.08 per week. This was twice the national average weekly wage for fiscal year 2002, the fiscal year when Roberts became disabled. Roberts moved for reconsideration, arguing that the “ap­ plicable” national average weekly wage was the figure for fiscal year 2007, the fiscal year when he was “newly awarded compensation” by the ALJ’s order. The latter figure would have entitled Roberts to $1,114.44 per week. The ALJ denied reconsideration, and the Department of Labor’s Benefits Review Board (or BRB) affirmed, conclud­ ing that “the pertinent maximum rate is determined by the date the disability commences.” App. to Pet. for Cert. 20. The Ninth Circuit affirmed in relevant part, holding that an employee “is ‘newly awarded compensation’ within the meaning of [§906(c)] when he first becomes entitled to compensation.” Roberts v. Director, OWCP, 625 F.3d 1204, 1208 (2010) (per curiam). We granted certiorari, 564 U. S. ___ (2011), to resolve a conflict among the Circuits with respect to the time when a beneficiary is “newly awarded compensation,” and now affirm.4 —————— 4 Compare 625 F.3d 1204 (time of entitlement), with Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904 (CA5 1997) (time of order), and Boroski v. DynCorp Int’l, 662 F.3d 1197 (CA11 2011) (same). Cite as: 566 U. S. ____ (2012) 5 Opinion of the Court II Roberts contends that “awarded compensation” means “awarded compensation in a formal order.” Sea-Land, supported by the Director, OWCP, responds that “awarded compensation” means “statutorily entitled to compensa­ tion because of disability.” The text of §906(c), standing alone, admits of either interpretation. But “our task is to fit, if possible, all parts into an harmonious whole.” FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959). Only the interpretation advanced by Sea-Land and the Director makes §906 a working part of the statutory scheme; sup­ plies an administrable rule that results in equal treatment of similarly situated beneficiaries; and avoids gamesman­ ship in the claims process. In light of these contextual and structural considerations, we hold that an employee is “newly awarded compensation” when he first becomes disabled and thereby becomes statutorily entitled to bene­ fits under the Act, no matter whether, or when, a compen­ sation order issues on his behalf. A We first consider “whether the language at issue has a plain and unambiguous meaning with regard to the par- ticular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). The LHWCA does not define “awarded,” but in construing the Act, as with any statute, “ ‘we look first to its language, giving the words used their ordinary meaning.’ ” Ingalls Shipbuilding, Inc. v. Director, Office of Workers’ Compensation Programs, 519 U.S. 248, 255 (1997) (quoting Moskal v. United States, 498 U.S. 103, 108 (1990)). At first blush, Roberts’ position is ap­ pealing. In ordinary usage, “award” most often means “give by judicial decree” or “assign after careful judgment.” Webster’s Third New International Dictionary 152 (2002); see also, e.g., Black’s Law Dictionary 157 (9th ed. 2009) (“grant by formal process or by judicial decree”). 6 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court But “award” can also mean “grant,” or “confer or bestow upon.” Webster’s Third New International Dictionary, at 152; see also ibid. (1971 ed.) (same). The LHWCA “grants” benefits to disabled employees, and so can be said to “award” compensation by force of its entitlement-creating provisions. Indeed, this Court has often said that statutes “award” entitlements. See, e.g., Astrue v. Ratliff, 560 U. S. ___, ___ (2010) (slip op., at 4) (referring to “statutes that award attorney’s fees to a prevailing party”); Barber v. Thomas, 560 U. S. ___, ___ (2010) (appendix to majority opinion) (slip op., at 19) (statute “awards” good-time cred­ its to federal prisoners); New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 271 (1988) (Ohio statute “awards a tax credit”); Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493, 500 (1939) (California workers’ compensation statute “award[s] compensation for injuries to an employee”); see also, e.g., Connecticut v. Doehr, 501 U.S. 1, 28 (1991) (Rehnquist, C. J., concurring in part and concurring in judgment) (“Materialman’s and mechanic’s lien statutes award an interest in real property to workers”). Similarly, this Court has described an em­ ployee’s survivors as “having been ‘newly awarded’ death benefits” by virtue of the employee’s death, without any reference to a formal order. Director, Office of Workers’ Compensation Programs v. Rasmussen, 440 U.S. 29, 44, n. 16 (1979) (quoting §906(c)’s predecessor provision, 33 U.S. C. §906(d) (1976 ed.)). In short, the text of §906(c), in isolation, is indetermi­ nate. B Statutory language, however, “cannot be construed in a vacuum. It is a fundamental canon of statutory construc­ tion that the words of a statute must be read in their context and with a view to their place in the overall statu­ tory scheme.” Davis v. Michigan Dept. of Treasury, 489 Cite as: 566 U. S. ____ (2012) 7 Opinion of the Court U. S. 803, 809 (1989). In the context of the LHWCA’s comprehensive, reticulated regime for worker benefits—in which §906 plays a pivotal role—“awarded compensation” is much more sensibly interpreted to mean “statutorily entitled to compensation because of disability.”5 1 Section 906 governs compensation in all LHWCA cases. As explained above, see supra, at 3, the LHWCA requires employers to pay benefits voluntarily, and in the vast majority of cases, that is just what occurs. Under Roberts’ —————— 5 JUSTICE GINSBURG’s view, not advanced by any party, is that an employee is “awarded compensation” when his employer “voluntarily pays compensation or is officially ordered to do so.” Post, at 3 (opinion concurring in part and dissenting in part). But reading “awarded compensation” as synonymous with “receiving compensation” is farther from the ordinary meaning of “award” than the Court’s approach: A person who slipped and fell on a negligently maintained sidewalk would not say that she had been “awarded money damages” if the business responsible for the sidewalk voluntarily paid her hospital bills. Cf. post, at 3–4. Moreover, if Congress had intended “awarded compensation” to mean “receiving compensation,” it could have said so—as, in fact, it did in §906(c)’s parallel clause, which pertains to beneficiaries “currently receiving compensation for permanent total disability or death.” See nn. 1–2, supra. JUSTICE GINSBURG’s reading denies effect to Congress’ textual shift, and therefore “runs afoul of the usual rule that ‘when the legislature uses certain language in one part of the statute and differ­ ent language in another, the court assumes different meanings were intended.’ ” Sosa v. Alvarez-Machain, 542 U.S. 692, 711, n. 9 (2004). Nor is JUSTICE GINSBURG’s reliance on a single sentence of legislative history persuasive. See post, at 4–5. True, a Senate committee report described those “newly awarded compensation” as those “who begin receiving compensation.” S. Rep. No. 92–1125, p. 18 (1972). But a subsequent House committee report did not. Cf. H. R. Rep. No. 92– 1441, p. 15 (1972) (statute provides a “method for determining maxi­ mum and minimum compensation (to be applicable to persons currently receiving compensation as well as those newly awarded compensa­ tion)”). The legislative materials are a push. 8 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court interpretation of §906(c), no employee receiving voluntary payments has been “awarded compensation,” so none is subject to an identifiable maximum rate of compensation. That result is incompatible with the Act’s design. Sec- tion 906(b)(1) caps “[c]ompensation for disability or death (other than compensation for death required . . . to be paid in a lump sum)” at twice “the applicable national average weekly wage, as determined by the Secretary under para­ graph (3).” Section 906(b)(3), in turn, directs the Secretary to “determine” the national average weekly wage before each fiscal year begins on October 1 and provides that “[s]uch determination shall be the applicable national average weekly wage” for the coming fiscal year. And §906(c), in its turn, provides that “[d]eterminations under subsection (b)(3) . . . with respect to” a fiscal year “shall apply to . . . those newly awarded compensation during such” fiscal year. Through a series of cross-references, the three provisions work together to cap disability benefits. By its terms, and subject to one express exception, §906(b)(1) specifies that the cap applies globally, to all disability claims. But all three provisions interlock, so the cap functions as Congress intended only if §906(c) also applies globally, to all such cases. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“A court must . . . interpret the statute ‘as a symmetrical and coherent regulatory scheme’ ” (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995))). If Roberts’ interpretation were correct, §906(c) would have no application at all in the many cases in which no formal orders issue, because employers make voluntary payments or the parties reach informal settlements. We will not construe §906(c) in a manner that renders it “entirely superfluous in all but the most unusual circumstances.” TRW Inc. v. Andrews, 534 U.S. 19, 29 (2001). Recognizing this deficiency in his reading of §906(c), Roberts proposes that orders issue in every case, so that Cite as: 566 U. S. ____ (2012) 9 Opinion of the Court employers can lock in the caps in effect at the time their employees become disabled. This is a solution in search of a problem. Under settled LHWCA practice, orders are rare. Roberts’ interpretation would set needless adminis­ trative machinery in motion and would disrupt the con­ gressionally preferred system of voluntary compensation and informal dispute resolution. The incongruity of Rob­ erts’ proposal is highlighted by his inability to identify a vehicle for the entry of an order in an uncontested case. Section 919(c), on which Roberts relies, applies only if an employee has filed a claim. Likewise, 20 CFR §702.315(a) applies only in the case of a claim or an employer’s no- tice of controversion. See §702.301. We doubt that an em- ployee will file a claim for the sole purpose of assisting his employer in securing a lower cap. And we will not read §906(c) to compel an employer to file a baseless notice of controversion. Cf. 33 U.S. C. §§928(a), (d) (providing for assessment of attorney’s fees and costs against employers who controvert unsuccessfully). Roberts suggests that employers could threaten to terminate benefits in order to induce their employees to file claims, and thus initiate the administrative process. Construing any workers’ compen­ sation regime to encourage gratuitous confrontation be­ tween employers and employees strikes us as unsound. 2 Using the national average weekly wage for the fiscal year in which an employee becomes disabled coheres with the LHWCA’s administrative structure. Section 914(b) requires an employer to pay benefits within 14 days of notice of an employee’s disability. To do so, an employer must be able to calculate the cap. An employer must also notify the Department of Labor of voluntary payments by filing a form that indicates, inter alia, whether the “maxi­ mum rate is being paid.” Dept. of Labor, Form LS–206, Payment of Compensation Without Award (2011), online 10 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court at http://www.dol.gov/owcp/dlhwc/ls-206.pdf. On receipt of this form, an OWCP claims examiner must verify the rate of compensation in light of the applicable cap. See Dept. of Labor, Longshore (DLHWC) Procedure Manual §2–201(3)(b)(3) (hereinafter Longshore Procedure Man- ual), online at http://www.dol.gov/owcp/dlhwc/lspm/lspm2­ 201.htm. It is difficult to see how an employer can apply or certify a national average weekly wage other than the one in effect at the time an employee becomes disabled. An employer is powerless to predict when an employee might file a claim, when a compensation order might issue, or what the national average weekly wage will be at that later time. Likewise for a claims examiner.6 Moreover, applying the national average weekly wage for the fiscal year in which an employee becomes disabled advances the LHWCA’s purpose to compensate disability, defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury.” 33 U.S. C. §902(10) (emphasis added). Just as the LHWCA takes “the average weekly wage of the injured employee at the time of the injury” as the “basis upon —————— 6 JUSTICE GINSBURG’s approach is either easily circumvented or un­ workable. For example, JUSTICE GINSBURG determines that Roberts is entitled to the fiscal year 2002 maximum rate from March 11, 2002, to July 15, 2003, because Sea-Land was making voluntary payments during that time. Post, at 6. But Sea-Land was paying Roberts $933.82 per week, less than the $966.08 that the ALJ found Roberts was entitled to receive. Compare App. to Pet. for Cert. 101 with id., at 107, Order ¶1. If any voluntary payment suffices, regardless of an employee’s actual entitlement, then an employer can hedge against a later finding of liability by paying the smallest amount to which the Act might entitle an employee but controverting liability as to the remain­ der. See, e.g., R. M. v. Sabre Personnel Assocs., Inc., 41 BRBS 727, 730 (2007). An employer who controverts is not subject to the Act’s delin­ quency penalty. See 33 U.S. C. §914(e). Perhaps JUSTICE GINSBURG gives Sea-Land the benefit of the doubt because its voluntary payments were close to Roberts’ actual entitlement. But if that is so, then how close is close enough? Cite as: 566 U. S. ____ (2012) 11 Opinion of the Court which to compute compensation,” §910, it is logical to apply the national average weekly wage for the same point in time. Administrative practice has long treated the time of injury as the relevant date. See, e.g., Dept. of Labor, Pamphlet LS–560, Workers’ Compensation Under the Longshoremen’s Act (rev. Dec. 2003) (“Compensation payable under the Act may not exceed 200% of the nation­ al average weekly wage, applicable at the time of injury”), online at http://www.dol.gov/owcp/dlhwc/LS-560pam.htm; Dept. of Labor, Workers’ Compensation Under the Long­ shoremen’s Act, Pamphlet LS–560 (rev. Nov. 1979) (same); see also, e.g., Dept. of Labor, LHWCA Bulletin No. 11–01, p. 2 (2010) (national average weekly wage for particular fiscal year applies to “disability incurred during” that fiscal year).7 Applying the national average weekly wage at the time of onset of disability avoids disparate treatment of simi- larly situated employees. Under Roberts’ reading, two em- ployees who earn the same salary and suffer the same injury on the same day could be entitled to different rates —————— 7 Roberts accurately notes that in some cases, the time of injury and the time of onset of disability differ. We have observed that “the LHWCA does not compensate physical injury alone but the disability produced by that injury.” Metropolitan Stevedore Co. v. Rambo, 515 U.S. 291, 297 (1995). From that principle, lower courts have rightly concluded that when dates of injury and onset of disability diverge, the latter is the relevant date for determining the applicable national average weekly wage. See, e.g., Service Employees International, Inc. v. Director, OWCP, 595 F.3d 447, 456 (CA2 2010); Kubin v. Pro-Football, Inc., 29 BRBS 117 (1995) (per curiam). Likewise, in a small group of cases—those in which disability lasts more than 3 but less than 15 days—the time of onset of disability and the time of entitlement will differ. See §906(a) (“No compensation shall be allowed for the first three days of the disability . . . Provided, how- ever, That in case the injury results in disability of more than fourteen days the compensation shall be allowed from the date of the disability”). In these cases, the relevant date is that on which disability and enti­ tlement coincide: the fourth day after the onset of disability. 12 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court of compensation based on the happenstance of their ob­ taining orders in different fiscal years. We can imagine no reason why Congress would have intended, by choosing the words “newly awarded compensation,” to differentiate between employees based on such an arbitrary criterion. 3 Finally, using the national average weekly wage for the fiscal year in which disability commences discourages gamesmanship in the claims process. If the fiscal year in which an order issues were to determine the cap, the fact that the national average weekly wage typically rises every year with inflation, see n. 2, supra, would become unduly significant. Every employee affected by the cap would seek the entry of a compensation order in a later fiscal year. Even an employee who has been receiving compensation at the proper rate for years would be well advised to file a claim for greater benefits in order to obtain an order at a later time. Likewise, an employee might delay the adjudicatory process to defer the entry of an order. And even in an adjudicated case where an em­ ployer is found to have paid benefits at the proper rate, an ALJ would adopt the later fiscal year’s national average weekly wage, making the increased cap retroactively applicable to all of the employer’s payments. Roberts candidly acknowledges that his position gives rise to such perverse incentives. See Tr. of Oral Arg. 58–59. We de­ cline to adopt a rule that would reward employees with windfalls for initiating unnecessary administrative pro­ ceedings, while simultaneously punishing employers who have complied fully with their statutory obligations. III We find Roberts’ counterarguments unconvincing. A First, Roberts observes that some provisions of the Cite as: 566 U. S. ____ (2012) 13 Opinion of the Court LHWCA clearly use “award” to mean “award in a formal order,” and contends that the same must be true of “awarded compensation” in §906(c). We agree that the Act sometimes uses “award” as Roberts urges. Section 914(a), for example, refers to the payment of compensation “to the person entitled thereto, without an award,” foreclosing the equation of “entitlement” and “award” that we adopt with respect to §906(c) today.8 But the presumption that “iden­ tical words used in different parts of the same act are intended to have the same meaning . . . readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 595 (2004) (internal quotation marks and citation omitted); see also, e.g., United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 213 (2001). Here, we find the presumption overcome because several provisions of the Act would make no sense if “award” were read as Roberts proposes. Those provi­ sions confirm today’s holding because they too, in context, use “award” to denote a statutory entitlement to compen­ sation because of disability. For example, §908(c)(20) provides that “[p]roper and equitable compensation not to exceed $7,500 shall be awarded for serious disfigurement.” Roberts argues that §908(c)(20) “necessarily contemplates administrative action to fix the amount of the liability and direct its —————— 8 Other LHWCA provisions, read in context, also use award to mean “award in a formal order.” For example, §§913(a) and 928(b), like §914(a), refer to the payment of compensation “without an award.” And the LHWCA distinguishes between voluntary payments and those due under an order for purposes of punishing employer delinquency. Compare §914(e) (10 percent penalty for late payment of “compensation payable without an award”) with §914(f) (20 percent penalty for late payment of “compensation, payable under the terms of an award”). 14 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court payment.” Reply Brief for Petitioner 11. In Roberts’ view, no disfigured employee may receive benefits without in- voking the administrative claims process. That argu- ment, however, runs counter to §908’s preface, which directs that “[c]ompensation for disability shall be paid to the employee,” and to §914(a), which requires the payment of compensation “without an award.” It is also belied by employers’ practice of paying §908(c)(20) benefits volun­ tarily. See, e.g., Williams-McDowell v. Newport News Shipbuilding & Dry Dock Co., No. 99–0627 etc., 2000 WL 35928576, *1 (BRB, Mar. 15, 2000) (per curiam); Evans v. Bergeron Barges, Inc., No. 98–1641, 1999 WL 35135283, *1 (BRB, Sept. 3, 1999) (per curiam). In light of the LHWCA’s interest in prompt payment and settled prac­ tice, “awarded” in §908(c)(20) can only be better read, as in §906(c), to refer to a disfigured employee’s entitlement to benefits. Likewise, §908(d)(1) provides that if an employee who is receiving compensation for a scheduled disability9 dies before receiving the full amount of compensation to which the schedule entitles him, “the total amount of the award unpaid at the time of death shall be payable to or for the benefit of his survivors.” See also §908(d)(2). Roberts’ interpretation of “award” would introduce an odd gap: Only survivors of those employees who were receiving schedule benefits pursuant to orders—not survivors of employees who were receiving voluntary payments— would be entitled to the unpaid balances due their dece­ dents. There is no reason why Congress would have cho­ —————— 9 Sections 908(c)(1) to (20) set forth a “schedule” of particular injuries that entitle an employee “to receive two-thirds of his average weekly wages for a specific number of weeks, regardless of whether his earning capacity has actually been impaired.” Potomac Elec. Power Co. v. Director, Office of Workers’ Compensation Programs, 449 U.S. 268, 269 (1980). For example, an employee who loses an arm is entitled to two­ thirds of his average weekly wage for 312 weeks. §908(c)(1). Cite as: 566 U. S. ____ (2012) 15 Opinion of the Court sen to distinguish between survivors in this manner. And the Benefits Review Board has quite sensibly interpreted §908(d) to mean that “an employee has a vested interest in benefits which accrue during his lifetime, and, after he dies, his estate is entitled to those benefits, regardless of when an award is made.” Wood v. Ingalls Shipbuilding, Inc., 28 BRBS 27, 36 (1994) (per curiam).10 Finally, §933(b) provides: “For the purpose of this sub­ section, the term ‘award’ with respect to a compensation order means a formal order issued by the deputy commis­ sioner, an administrative law judge, or Board.” Unless award may mean something other than “award in a com­ —————— 10 Roberts’ interpretation also would afford unwarranted significance to the entry of an order in other circumstances, resulting in arbi- trary distinctions within other classes of beneficiaries. For example, §908(c)(22) provides that if an employee suffers from more than one scheduled disability, the “awards” for each “shall run consecutively.” Under Roberts’ interpretation, §908(c)(22) would require consecutive payments only for employees who were receiving scheduled disability benefits pursuant to orders; those receiving voluntary payments pre­ sumably would be entitled to concurrent payments. See §§914(a)–(b). That result would conflict with §908(c)(22)’s text, which states that consecutive payments must be made “[i]n any case” involving multiple scheduled disabilities. See, e.g., Thornton v. Northrop Grumman Shipbuilding, Inc., 44 BRBS 111 (2010) (per curiam). Similarly, §910(h)(1) sets out two formulas for increasing benefits for pre-1972 disability or death in light of the higher rates Congress provided in the 1972 LHWCA amendments. The first applies to those receiving compensation at the then-applicable maximum rate; the second applies to those “awarded compensation . . . at less than the maximum rate.” See Dept. of Labor, OWCP Bulletin No. 10–73, Ad­ justment of Compensation for Total Permanent Disability or Death Prior to LS/HW Amendments of 1972, pp. 2–4 (1973). Roberts’ inter­ pretation would make the second formula applicable only to beneficiar­ ies receiving less than the maximum rate pursuant to orders, not to all such beneficiaries. Again, there is no reason to believe that Congress intended this distinction, nor has OWCP applied it. See ibid. (prescrib­ ing a “uniform” method for computing the increase in all “[c]ases being compensated at less than the maximum rate,” with no reference to the existence of an order). 16 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court pensation order,” this specific definition would be unnec­ essary. Roberts contends that this provision, enacted in 1984, “was indeed ‘unnecessary’ ” in light of Pallas Ship- ping. Brief for Petitioner 29; see 461 U.S., at 534 (“The term ‘compensation order’ in the LHWCA refers specifi­ cally to an administrative award of compensation following proceedings with respect to the claim”). Roberts’ argu­ ment offends the canon against superfluity and neglects that §933(b) defines the term “award,” whereas Pallas Shipping defines the term “compensation order.” Moreo­ ver, Congress’ definition of “award,” which tracks Roberts’ preferred interpretation, was carefully limited to §933(b). Had Congress intended to adopt a universal definition of “award,” it could have done so in §902, the LHWCA’s glossary. Read in light of the “duty to give effect, if possi­ ble, to every clause and word of a statute,” Duncan v. Walker, 533 U.S. 167, 174 (2001) (internal quotation marks omitted), §933(b) debunks Roberts’ argument that the Act always uses “award” to mean “award in a formal order” and confirms that “award” has other meanings. B Next, Roberts notes that this Court has refused to read the statutory phrase “person entitled to compensation” in §933(g) to mean “person awarded compensation.” See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477 (1992) (“[A] person entitled to compensation need not be receiving compensation or have had an adjudication in his favor”). In Roberts’ view, the converse must also be true: “awarded compensation” in §906(c) cannot mean “entitled to compensation.” But Cowart’s reasoning does not work in reverse. Cowart did not construe §906(c) or the term “award,” but relied on the uniform meaning of the phrase “person entitled to compensation” in the LHWCA. See id., at 478–479. As just explained, the LHWCA contains no uniform meaning of the term “award.” Moreover, Cowart Cite as: 566 U. S. ____ (2012) 17 Opinion of the Court did not hold that the groups of “employees entitled to compensation” and “employees awarded compensation” were mutually exclusive. The former group includes the latter: The entry of a compensation order is a sufficient but not necessary condition for membership in the former. See id., at 477. C Finally, Roberts contends that his interpretation fur­ thers the LHWCA’s purpose of providing employees with prompt compensation by encouraging employers to avoid delay and expedite administrative proceedings. But Rob­ erts’ remedy would also punish employers who voluntarily pay benefits at the proper rate from the time of their employees’ injuries. These employers would owe benefits under the higher cap applicable in any future fiscal year when their employees chose to file claims. And Roberts’ remedy would offer no relief at all to the many beneficiar­ ies entitled to less than the statutory maximum rate. The more measured deterrent to employer tardiness is interest that “accrues from the date a benefit came due, rather than from the date of the ALJ’s award.” Matulic v. Director, OWCP, 154 F.3d 1052, 1059 (CA9 1998). The Director has long taken the position that “interest is a necessary and inherent component of ‘compensation’ because it ensures that the delay in payment of compensa­ tion does not diminish the amount of compensation to which the employee is entitled.” Sproull v. Director, OWCP, 86 F.3d 895, 900 (CA9 1996); see also, e.g., Stra- chan Shipping Co. v. Wedemeyer, 452 F.2d 1225, 1229 (CA5 1971). Moreover, “[t]imely controversion does not relieve the responsible party from paying interest on unpaid compensation.” Longshore Procedure Manual §8­ 201, online at http://www.dol.gov/owcp/dlhwc/lspm/lspm8­ 201.htm. Indeed, the ALJ awarded Roberts interest “on each unpaid installment of compensation from the date the compensation became due.” App. to Pet. for Cert. 108, 18 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court Order ¶5.11 * * * We hold that an employee is “newly awarded compensa­ tion” when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.12 The judgment of the Court of Appeals for the Ninth Circuit is affirmed. It is so ordered. —————— 11 Thus, as under JUSTICE GINSBURG’s approach, an employer who controverts still “runs the risk” of greater liability if an ALJ awards an employee compensation at some point subsequent to the onset of disability. See post, at 5. 12 Because “newly awarded compensation,” read in context, is unam­ biguous, we do not reach respondents’ argument that the Director’s interpretation of §906(c) is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Cite as: 566 U. S. ____ (2012) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES _________________ No. 10–1399 _________________ DANA ROBERTS, PETITIONER v. SEA-LAND SERVICES, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [March 20, 2012] JUSTICE GINSBURG, concurring in part and dissenting in part. Section 906 of the Longshore and Harbor Workers’ Compensation Act (LHWCA or the Act) defines the maxi- mum disability benefit an injured worker may receive under the Act. Specifically, §906 states that an injured employee may receive, at most, twice the national average weekly wage for the fiscal year in which the employee is “newly awarded compensation.” 33 U.S. C. §906(c). The Court granted review in this case to answer the following question: When is an employee “newly awarded compensation”? Petitioner Dana Roberts contends that an employee is “newly awarded compensation” in the year she receives a formal compensation award. For the reasons cogently explained by the majority, that argument is untenable. See ante, at 5–17. Unlike the Court, however, I do not regard as reasonable respondent Sea-Land Services’ view that an employee is “newly awarded compensation” in the year she becomes “statutorily entitled to compensation.” Ante, at 5–6. Applying the common meaning of the verb “award” and recognizing the Act’s distinction between benefits paid voluntarily, and those paid pursuant to a compensation order, see ante, at 2–3, I would hold that an injured worker is “newly awarded compensation” when (1) 2 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of GINSBURG, J. the employer voluntarily undertakes to pay benefits to the employee, or (2) an administrative law judge (ALJ), the Benefits Review Board (BRB), or a reviewing court orders the employer to pay such benefits. I In determining the meaning of a statutory phrase, “we look first to its language, giving the words used their ordinary meaning.” Moskal v. United States, 498 U.S. 103, 108 (1990) (internal quotation marks and citations omitted). As the Court acknowledges, ante, at 5, the verb “award” ordinarily means “to give by judicial decree” or “[to] assign after careful judgment.” Webster’s Third New International Dictionary 152 (2002). See also Black’s Law Dictionary 157 (9th ed. 2009) (defining the verb “award” as “[t]o grant by formal process or by judicial decree”). Giving “award” this usual meaning, an employee is “newly awarded compensation,” if not voluntarily paid, in the fis- cal year in which payment is directed by administrative order or judicial decree. Under the LHWCA, the Court recognizes, an employee is provided compensation voluntarily or in contested pro- ceedings. See ante, at 3. Most commonly, an employer pays compensation voluntarily after receiving an employ- ee’s notice of disabling injury. See Pallas Shipping Agen- cy, Ltd. v. Duris, 461 U.S. 529, 532 (1983); 33 U.S. C. §912 (describing the form, content, and timing of the necessary notice and requiring employers to designate a representative to receive the notice); §914(b). If an em- ployer declines to pay compensation voluntarily, an in- jured employee can file a claim with the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). For employees with valid claims, OWCP pro- ceedings culminate with an administrative or court deci- sion ordering the employer to pay benefits. §919(c). Thus, an injured worker is given—or “awarded”—compensation Cite as: 566 U. S. ____ (2012) 3 Opinion of GINSBURG, J. through one of two means contemplated by the Act: either the employer voluntarily pays compensation or is officially ordered to do so. Logically, then, the worker is “newly awarded compensation” when one of those two events occurs. The Court does not take this approach. After acknowl- edging that it is not relying on the typical meaning of the word “award,” see ante, at 5, the Court adopts Sea-Land’s view that “awarded compensation” is synonymous with “[became] statutorily entitled to benefits,” ante, at 18. As a result, a person is “newly awarded compensation” in the year in which she becomes entitled to benefits—i.e., in the year the employee “first becomes disabled.” Ibid. Such a reading is plausible, the Court asserts, because “this Court has often said that statutes ‘award’ entitlements.” Ante, at 6 (citing cases). I do not dispute that statutes are often characterized as “awarding” relief to persons falling within their compass. But “a statute must be read in [its] context.” Ante, at 7 (quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989)). Section 906 does not address whether the LHWCA, as a general matter, “awards” disability ben- efits to injured longshore workers. Rather, it concerns a more specific question: when has a particular employee been “newly awarded compensation.” In that context, equating “awarded compensation” with “statutorily enti- tled to compensation” is not plausible. A person covered by the Act would not likely say he was “awarded com- pensation” the moment he became disabled, if, in fact, his employer contests liability. Only after some entity—the employer, an ALJ, the BRB, or a reviewing court— recognizes the employee’s right to compensation would he comprehend that he had been “awarded compensation.” To borrow THE CHIEF JUSTICE’s example: No person who slips and injures herself on a negligently maintained sidewalk would tell her friends the next day, “Guess what, 4 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of GINSBURG, J. I was newly awarded money damages yesterday.” See Tr. of Oral Arg. 28. The inconsistency between the Court’s interpretation of “newly awarded compensation” and my reading of the phrase is best illustrated by contextual example. Assume an employee is injured in 2002 and the employer refuses to pay compensation voluntarily. Then, five years later, an ALJ finds in favor of the employee and orders the employer to pay benefits to the employee. Under the Court’s view, the employee was “newly awarded compen- sation” in 2002, even though the employee did not receive a penny—and the employer was not obligated to pay a penny—until 2007. Only the most strained interpretation of “newly awarded” could demand that result.1 The Court’s view, moreover, does not fit the Act’s design. As explained supra, at 2–3, the Act envisions that an eligible employee will begin receiving benefits in either of two ways. The Court’s interpretation disregards this design, assuming instead that all employees are awarded benefits in the same way: by the Act at the time they become disabled. Section 906(c)’s legislative history further confirms that Congress intended “newly awarded compensation” to have its commonsense meaning. In describing §906, the Senate Committee on Labor and Public Welfare reported: —————— 1 As the Court notes, the maximum rate for a given fiscal year applies to two groups of injured workers: those who are “newly awarded com- pensation during such [year],” and those who are “currently receiving compensation for permanent total disability or death benefits during such [year].” 33 U.S. C. §906(c). Ante, at 7, n. 5. Contrary to the Court’s charge, I do not read “newly awarded compensation” as synon- ymous with “currently receiving compensation.” See ibid. An injured worker who is “currently receiving compensation” in a given fiscal year was “newly awarded compensation” in a previous year. My interpreta- tion therefore gives “effect to Congress’ textual shift,” ibid.: It identifies two distinct groups of workers who are entitled to a given year’s maxi- mum rate. Cite as: 566 U. S. ____ (2012) 5 Opinion of GINSBURG, J. “[Section 906(c)] states that determinations of nation- al average weekly wage made with respect to a [fiscal year] apply to employees or survivors currently receiv- ing compensation for permanent total disability or death benefits, as well as those who begin receiving compensation for the first time during the [fiscal year].” S. Rep. No. 92–1125, p. 18 (1972) (emphasis added). Congress therefore believed an injured worker is “newly awarded compensation” in the year in which she “begin[s] receiving compensation for the first time.” Ibid. Again, an employee begins receiving compensation either when an employer voluntarily agrees to pay the employee benefits or when an ALJ, the BRB, or a court orders the employer to do so. See supra, at 2–3. When the employer resists payment, the employee will not necessarily begin receiving compensation in the year in which she becomes disabled. Finally, interpreting “newly awarded compensation” to mean awarded through an employer’s voluntary decision or an official order is consistent with the Act’s goal of encouraging employers to pay legitimate claims promptly. See 33 U.S. C. §914(a) (requiring employers to pay com- pensation “periodically, promptly, and directly”); Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 498 (1992) (Blackmun, J., dissenting) (“[T]he Act presumes that em- ployers, as a rule, will promptly recognize their LHWCA obligations and commence payments immediately.”). Under my interpretation, an employer who chooses to contest a valid claim, rather than to pay the claim voluntarily, runs the risk that it may ultimately have to pay the injured employee a higher maximum benefit. For example, if an employer refuses to pay benefits to a work- er injured in 2012, and an ALJ issues an order awarding compensation to the employee in 2015, the fiscal year 2015 maximum rate would apply to the employee’s claim. Had 6 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of GINSBURG, J. the employer voluntarily begun paying benefits in 2012, on the other hand, the 2012 maximum rate would apply. Under the Court’s reading, by contrast, an employer pays the prevailing rate for the year the employee became disabled, regardless of whether the employer in fact pays benefits immediately or years down the road.2 II In this case, Roberts was injured on February 24, 2002 and stopped working two weeks later. App. to Pet. for Cert. 4. Sea-Land and its insurer paid benefits to Roberts from March 11, 2002 until July 15, 2003. Id., at 101. Sea- Land then resumed paying benefits on September 1, 2003 and continued to pay Roberts compensation until May 17, 2005, when it ceased making payments for good. Ibid. After Roberts filed a complaint with the OWCP, an ALJ, in October 2006, concluded that Roberts was entitled to compensation from March 11, 2002 onwards. Id., at 107– 108. Applying my interpretation of §906, Roberts was newly awarded compensation three times: in March 2002 when Sea-Land voluntarily began paying benefits; in September 2003 when Sea-Land resumed making payments after it had stopped in July 2003; and in October 2006 when an ALJ ordered Sea-Land to pay benefits to Roberts for the uncompensated weeks in 2003 and from May 2005 on- wards. Roberts was therefore entitled to the fiscal year 2002 maximum rate from March 11, 2002 until July 15, 2003; the fiscal year 2003 maximum rate from September 1, 2003 until May 17, 2005; and the fiscal year 2007 rate3 —————— 2 Employers may have a particularly strong financial incentive to postpone paying claims that implicate §906. That section applies only to injured workers who qualify for the maximum rate of compensation under the Act—i.e., to those claimants who are owed the largest possi- ble benefit. 3 For §906 purposes, a year runs from October 1 to September 30. See Cite as: 566 U. S. ____ (2012) 7 Opinion of GINSBURG, J. going forward and for all uncompensated weeks covered by the ALJ’s order.4 * * * For the foregoing reasons, I would reverse the Ninth Circuit’s judgment and hold that an employee is “newly awarded compensation” when her employer either volun- —————— 33 U.S. C. §906(b)(3). The 2007 maximum rate therefore applies to all employees “newly awarded compensation” between October 1, 2006 and September 30, 2007. 4 The Court asserts that an employer could “easily circumven[t]” my approach by making voluntary payments to an injured worker that are substantially below the employee’s “actual entitlement.” Ante, at 10, n. 6. The prospect that an employer could successfully execute, or would even attempt, such a strategy is imaginary. Employers who make voluntary payments to employees are required to file a report with the Department of Labor describing the nature of the employee’s injury and stating the amount of the payments made. See ante, at 9– 10; 33 U.S. C. §930(a). The employer must also submit the results of a medical evaluation of the employee’s condition. Dept. of Labor, Longshore (DLHWC) Procedure Manual §2–201(2)(b) (hereinafter Long- shore Procedure Manual), online at http://www.dol.gov/owcp/dlhwc/ lspm/lspm2-201.htm (as visited Mar. 14, 2012, and in Clerk of Court’s case file). Upon receiving the employer’s report, a DOL claims examin- er verifies “the compensation rate for accuracy” and must follow- up with the employer “[i]f the compensation rate appears low.” Long- shore Procedure Manual §2–201(3)(b)(1). The chances are slim that a claims examiner would validate a substantial underpayment. Employ- ers who underpay benefits, moreover, are subject to a penalty equal to 10% of the amount of the underpayment. See 33 U.S. C. §914(e); Longshore Procedure Manual §8–202(3)(c) (“If partial payments are made by the employer, the [10% penalty] appl[ies] . . . to the difference between the amount owed and the amount paid.”). Employers would thus risk paying more, not less, were they to attempt to “circumven[t]” my approach by deliberately undercompensating injured workers. And while it is true that an employer who controverts an employee’s right to compensation does not have to pay the 10% penalty, see ante, at 10, n. 6, the Act does not permit an employer to pay any amount it likes and controvert the remainder. See 33 U.S. C. §914(a) (requiring employers either to pay benefits in full or to controvert “liability to pay compensation” at all). 8 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of GINSBURG, J. tarily agrees to pay compensation to her or is officially ordered to do so

The Longshore and Harbor Workers’ Compensation Act (LHWCA or Act), ch. 509, as amended, 33 U.S. C. et seq., caps benefits for most types of dis- ability at twice the national average weekly wage for the fiscal year in which an injured employee is “newly award­ ed compensation.” We hold that an employee is “newly awarded compensation” when he first becomes disabled and thereby becomes statutorily entitled to bene­ fits, no matter whether, or when, a compensation order issues on his behalf. I A The LHWCA “is a comprehensive scheme to provide compensation ‘in respect of disability or death of an em­ ployee if the disability or death results from an in- jury occurring upon the navigable waters of the United States.’ ” Metropolitan Stevedore Co. v. Rambo, 515 U.S. 91, 94 (quoting An employee’s compen­ sation depends on the severity of his disability and his preinjury pay. A totally disabled employee, for example, is ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court entitled to two-thirds of his preinjury average weekly wage as long as he remains disabled. 910. Section 906, however, sets a cap on compensation.1 Disability benefits “shall not exceed” twice “the applicable national average weekly wage.” The national average weekly wage—“the national average weekly earn­ ings of production or nonsupervisory workers on private nonagricultural payrolls,” recalculated by the Secretary of Labor each fiscal year. For most types of disability, the “applicable” national average week­ ly wage is the figure for the fiscal year in which a benefi­ ciary is “newly awarded compensation,” and the cap re­ mains constant as long as benefits continue. —————— 1 Section 906 provides, in pertinent part: “(b) Maximum rate of compensation “(1) Compensation for disability or death (other than compensation for death required to be paid in a lump sum) shall not exceed an amount equal to 00 per centum of the applicable national average weekly wage, as determined by the Secretary under paragraph (3). “(3) As soon as practicable after June 30 of each year, and in any event prior to October 1 of such year, the Secretary shall determine the national average weekly wage for the three consecutive calendar quarters ending June 30. Such determination shall be the applicable national average weekly wage for the period beginning with October 1 of that year and ending with September 30 of the next year. “(c) Applicability of determinations “Determinations under subsection (b)(3) with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.” For those “currently receiving compensation for permanent total disability or death benefits,” the cap is adjusted each fiscal year—and typically increases, in step with the usual inflation-driven rise in the national average weekly wage. See Dept. of Labor, Division of Longshore and Harbor Workers’ Compensation (DLHWC), NAWW Information, online at http://www.dol.gov/owcp/dlhwc/NAWWinfo.htm (all Internet materials as visited Mar. 16, 01, and available in Clerk of Court’s case file). Section 906(c)’s “currently receiving compensation” clause is not at issue here. Cite as: 566 U. S. (01) 3 Opinion of the Court Consistent with the central bargain of workers’ compen­ sation regimes—limited liability for employers; certain, prompt recovery for employees—the LHWCA requires that employers pay benefits voluntarily, without formal admin­ istrative proceedings. Once an employee provides notice of a disabling injury, his employer must pay compensation “periodically, promptly, and directly without an award, except where liability to pay compensation is controvert­ ed.” In general, employers pay benefits without contesting liability. See Pallas Shipping Agency, Ltd. v. Duris, In the mine run of cases, therefore, no compensation orders issue. If an employer controverts, or if an employee contests his employer’s actions with respect to his benefits, the dispute advances to the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). See 0 CFR The OWCP district directors “are empowered to amicably and promptly resolve such problems by informal procedures.” A district director’s informal disposition may result in a compen- sation order. In practice, however, “many pending claims are amicably settled through voluntary payments without the necessity of a formal order.” Inter- county Constr. If informal resolution fails, the district director refers the dispute to an administrative law judge (ALJ). See 0 CFR 70.331–70.351. An ALJ’s decision after a hearing culminates in the entry of a compensation order. 33 U.S. C. —————— 3 In fiscal year 1971, only 09 cases out of the 17,784 in which com­ pensation was paid resulted in orders. Hearings on S. 318 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 9d Cong., d Sess., 757–758 (197). Congress enacted predecessor provision, which included the “newly awarded compensation” clause, in 197. Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 197, 4 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court B In fiscal year 00, petitioner Dana Roberts slipped and fell on a patch of ice while employed at respondent Sea- Land Services’ marine terminal in Dutch Harbor, Alaska. Roberts injured his neck and shoulder and did not return to work. On receiving notice of his disability, Sea-Land (except for a six-week period in 003) voluntarily paid Roberts benefits absent a compensation order until fiscal year 005. When Sea-Land discontinued voluntary pay­ ments, Roberts filed an LHWCA claim, and Sea-Land controverted. In fiscal year 007, after a hearing, an ALJ awarded Roberts benefits at the statutory maximum rate of $966.08 per week. This was twice the national average weekly wage for fiscal year 00, the fiscal year when Roberts became disabled. Roberts moved for reconsideration, arguing that the “ap­ plicable” national average weekly wage was the figure for fiscal year 007, the fiscal year when he was “newly awarded compensation” by the ALJ’s order. The latter figure would have entitled Roberts to $1,114. per week. The ALJ denied reconsideration, and the Department of Labor’s Benefits Review Board (or BRB) affirmed, conclud­ ing that “the pertinent maximum rate is determined by the date the disability commences.” App. to Pet. for Cert. 0. The Ninth Circuit affirmed in relevant part, holding that an employee “is ‘newly awarded compensation’ within the meaning of when he first becomes entitled to compensation.” Roberts v. Director, OWCP, 65 F.3d 104, 108 (010) (per curiam). We granted certiorari, 564 U. S. to resolve a conflict among the Circuits with respect to the time when a beneficiary is “newly awarded compensation,” and now affirm.4 —————— 4 Compare (time of entitlement), with Wilkerson v. Ingalls Shipbuilding, Inc., and Cite as: 566 U. S. (01) 5 Opinion of the Court II Roberts contends that “awarded compensation” means “awarded compensation in a formal order.” Sea-Land, supported by the Director, OWCP, responds that “awarded compensation” means “statutorily entitled to compensa­ tion because of disability.” The text of standing alone, admits of either interpretation. But “our task is to fit, if possible, all parts into an harmonious whole.” FTC v. Mandel Brothers, Inc., Only the interpretation advanced by Sea-Land and the Director makes a working part of the statutory scheme; sup­ plies an administrable rule that results in equal treatment of similarly situated beneficiaries; and avoids gamesman­ ship in the claims process. In light of these contextual and structural considerations, we hold that an employee is “newly awarded compensation” when he first becomes disabled and thereby becomes statutorily entitled to bene­ fits under the Act, no matter whether, or when, a compen­ sation order issues on his behalf. A We first consider “whether the language at issue has a plain and unambiguous meaning with regard to the par- ticular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 The LHWCA does not define “awarded,” but in construing the Act, as with any statute, “ ‘we look first to its language, giving the words used their ordinary meaning.’ ” Ingalls Shipbuilding, 55 (quoting Moskal v. United States, U.S. 103, 108 (1990)). At first blush, Roberts’ position is ap­ pealing. In ordinary usage, “award” most often means “give by judicial decree” or “assign after careful judgment.” Webster’s Third New International Dictionary 15 (00); see also, e.g., Black’s Law Dictionary 157 (9th ed. 009) (“grant by formal process or by judicial decree”). 6 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court But “award” can also mean “grant,” or “confer or bestow upon.” Webster’s Third New International Dictionary, at 15; see also The LHWCA “grants” benefits to disabled employees, and so can be said to “award” compensation by force of its entitlement-creating provisions. Indeed, this Court has often said that statutes “award” entitlements. See, e.g., Astrue v. Ratliff, 560 U. S. (010) (slip op., at 4) (referring to “statutes that award attorney’s fees to a prevailing party”); Barber v. Thomas, 560 U. S. (010) (appendix to majority opinion) (slip op., at 19) (statute “awards” good-time cred­ its to federal prisoners); New Energy Co. of Ind. v. Limbach, (Ohio statute “awards a tax credit”); Pacific Employers Ins. (California workers’ compensation statute “award[s] compensation for injuries to an employee”); see also, e.g., Connecticut v. Doehr, (Rehnquist, C. J., concurring in part and concurring in judgment) (“Materialman’s and mechanic’s lien statutes award an interest in real property to workers”). Similarly, this Court has described an em­ ployee’s survivors as “having been ‘newly awarded’ death benefits” by virtue of the employee’s death, without any reference to a formal order. Director, Office of Workers’ Compensation n. 16 (1979) (quoting (c)’s predecessor provision, 33 U.S. C. (d) (1976 ed.)). In short, the text of in isolation, is indetermi­ nate. B Statutory language, however, “cannot be construed in a vacuum. It is a fundamental canon of statutory construc­ tion that the words of a statute must be read in their context and with a view to their place in the overall statu­ tory scheme.” Davis v. Michigan Dept. of Treasury, 489 Cite as: 566 U. S. (01) 7 Opinion of the Court U. S. 803, 809 (1989). In the context of the LHWCA’s comprehensive, reticulated regime for worker benefits—in which plays a pivotal role—“awarded compensation” is much more sensibly interpreted to mean “statutorily entitled to compensation because of disability.”5 1 Section 906 governs compensation in all LHWCA cases. As above, see the LHWCA requires employers to pay benefits voluntarily, and in the vast majority of cases, that is just what occurs. Under Roberts’ —————— 5 JUSTICE GINSBURG’s view, not advanced by any party, is that an employee is “awarded compensation” when his employer “voluntarily pays compensation or is officially ordered to do so.” Post, (opinion concurring in part and dissenting in part). But reading “awarded compensation” as synonymous with “receiving compensation” is farther from the ordinary meaning of “award” than the Court’s approach: A person who slipped and fell on a negligently maintained sidewalk would not say that she had been “awarded money damages” if the business responsible for the sidewalk voluntarily paid her hospital bills. Cf. post, –4. Moreover, if Congress had intended “awarded compensation” to mean “receiving compensation,” it could have said so—as, in fact, it did in (c)’s parallel clause, which pertains to beneficiaries “currently receiving compensation for permanent total disability or death.” See nn. 1–, JUSTICE GINSBURG’s reading denies effect to Congress’ textual shift, and therefore “runs afoul of the usual rule that ‘when the legislature uses certain language in one part of the statute and differ­ ent language in another, the court assumes different meanings were intended.’ ” 54 U.S. 69, (004). Nor is JUSTICE GINSBURG’s reliance on a single sentence of legislative history persuasive. See post, at 4–5. True, a Senate committee report described those “newly awarded compensation” as those “who begin receiving compensation.” S. Rep. No. 9–115, p. 18 (197). But a subsequent House committee report did not. Cf. H. R. Rep. No. 9– 11, p. 15 (197) (statute provides a “method for determining maxi­ mum and minimum compensation (to be applicable to persons currently receiving compensation as well as those newly awarded compensa­ tion)”). The legislative materials are a push. 8 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court interpretation of no employee receiving voluntary payments has been “awarded compensation,” so none is subject to an identifiable maximum rate of compensation. That result is incompatible with the Act’s design. Sec- tion 906(b)(1) caps “[c]ompensation for disability or death (other than compensation for death required to be paid in a lump sum)” at twice “the applicable national average weekly wage, as determined by the Secretary under para­ graph (3).” Section 906(b)(3), in turn, directs the Secretary to “determine” the national average weekly wage before each fiscal year begins on October 1 and provides that “[s]uch determination shall be the applicable national average weekly wage” for the coming fiscal year. And in its turn, provides that “[d]eterminations under subsection (b)(3) with respect to” a fiscal year “shall apply to those newly awarded compensation during such” fiscal year. Through a series of cross-references, the three provisions work together to cap disability benefits. By its terms, and subject to one express exception, (b)(1) specifies that the cap applies globally, to all disability claims. But all three provisions interlock, so the cap functions as Congress intended only if (c) also applies globally, to all such cases. See, e.g., 59 U.S. 10, (000) )). If Roberts’ interpretation were correct, (c) would have no application at all in the many cases in which no formal orders issue, because employers make voluntary payments or the parties reach informal settlements. We will not construe (c) in a manner that renders it “entirely superfluous in all but the most unusual circumstances.” TRW Inc. v. Andrews, 534 U.S. 19, 9 (001). Recognizing this deficiency in his reading of Roberts proposes that orders issue in every case, so that Cite as: 566 U. S. (01) 9 Opinion of the Court employers can lock in the caps in effect at the time their employees become disabled. This is a solution in search of a problem. Under settled LHWCA practice, orders are rare. Roberts’ interpretation would set needless adminis­ trative machinery in motion and would disrupt the con­ gressionally preferred system of voluntary compensation and informal dispute resolution. The incongruity of Rob­ erts’ proposal is highlighted by his inability to identify a vehicle for the entry of an order in an uncontested case. Section 919(c), on which Roberts relies, applies only if an employee has filed a claim. Likewise, 0 CFR §70.315(a) applies only in the case of a claim or an employer’s no- tice of controversion. See We doubt that an em- ployee will file a claim for the sole purpose of assisting his employer in securing a lower cap. And we will not read (c) to compel an employer to file a baseless notice of controversion. Cf. 33 U.S. C. §§9(a), (d) (providing for assessment of attorney’s fees and costs against employers who controvert unsuccessfully). Roberts suggests that employers could threaten to terminate benefits in order to induce their employees to file claims, and thus initiate the administrative process. Construing any workers’ compen­ sation regime to encourage gratuitous confrontation be­ tween employers and employees strikes us as unsound. Using the national average weekly wage for the fiscal year in which an employee becomes disabled coheres with the LHWCA’s administrative structure. Section 914(b) requires an employer to pay benefits within 14 days of notice of an employee’s disability. To do so, an employer must be able to calculate the cap. An employer must also notify the Department of Labor of voluntary payments by filing a form that indicates, inter alia, whether the “maxi­ mum rate is being paid.” Dept. of Labor, Form LS–06, Payment of Compensation Without Award online 10 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court at http://www.dol.gov/owcp/dlhwc/ls-06.pdf. On receipt of this form, an OWCP claims examiner must verify the rate of compensation in light of the applicable cap. See Dept. of Labor, Longshore (DLHWC) Procedure Manual §–01(3)(b)(3) (hereinafter Longshore Procedure Man- ual), online at http://www.dol.gov/owcp/dlhwc/lspm/lspm­ 01.htm. It is difficult to see how an employer can apply or certify a national average weekly wage other than the one in effect at the time an employee becomes disabled. An employer is powerless to predict when an employee might file a claim, when a compensation order might issue, or what the national average weekly wage will be at that later time. Likewise for a claims examiner.6 Moreover, applying the national average weekly wage for the fiscal year in which an employee becomes disabled advances the LHWCA’s purpose to compensate disability, defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury.” 33 U.S. C. §90(10) (emphasis added). Just as the LHWCA takes “the average weekly wage of the injured employee at the time of the injury” as the “basis upon —————— 6 JUSTICE GINSBURG’s approach is either easily circumvented or un­ workable. For example, JUSTICE GINSBURG determines that Roberts is entitled to the fiscal year 00 maximum rate from March 11, 00, to July 15, 003, because Sea-Land was making voluntary payments during that time. Post, at 6. But Sea-Land was paying Roberts $933.8 per week, less than the $966.08 that the ALJ found Roberts was entitled to receive. Compare App. to Pet. for Cert. 101 with at 107, Order ¶1. If any voluntary payment suffices, regardless of an employee’s actual entitlement, then an employer can hedge against a later finding of liability by paying the smallest amount to which the Act might entitle an employee but controverting liability as to the remain­ der. See, e.g., R. M. v. Sabre Personnel Assocs., Inc., 41 BRBS 77, 730 (007). An employer who controverts is not subject to the Act’s delin­ quency penalty. See 33 U.S. C. Perhaps JUSTICE GINSBURG gives Sea-Land the benefit of the doubt because its voluntary payments were close to Roberts’ actual entitlement. But if that is so, then how close is close enough? Cite as: 566 U. S. (01) 11 Opinion of the Court which to compute compensation,” it is logical to apply the national average weekly wage for the same point in time. Administrative practice has long treated the time of injury as the relevant date. See, e.g., Dept. of Labor, Pamphlet LS–560, Workers’ Compensation Under the Longshoremen’s Act (rev. Dec. 003) (“Compensation payable under the Act may not exceed 00% of the nation­ al average weekly wage, applicable at the time of injury”), online at http://www.dol.gov/owcp/dlhwc/LS-560pam.htm; Dept. of Labor, Workers’ Compensation Under the Long­ shoremen’s Act, Pamphlet LS–560 (rev. Nov. 1979) ; see also, e.g., Dept. of Labor, LHWCA Bulletin No. 11–01, p. (010) (national average weekly wage for particular fiscal year applies to “disability incurred during” that fiscal year).7 Applying the national average weekly wage at the time of onset of disability avoids disparate treatment of simi- larly situated employees. Under Roberts’ reading, two em- ployees who earn the same salary and suffer the same injury on the same day could be entitled to different rates —————— 7 Roberts accurately notes that in some cases, the time of injury and the time of onset of disability differ. We have observed that “the LHWCA does not compensate physical injury alone but the disability produced by that injury.” Metropolitan Stevedore Co. v. Rambo, 515 U.S. 91, 97 From that principle, lower courts have rightly concluded that when dates of injury and onset of disability diverge, the latter is the relevant date for determining the applicable national average weekly wage. See, e.g., Service Employees International, Inc. v. Director, OWCP, F.3d 7, (CA 010); Kubin v. Pro-Football, Inc., 9 BRBS 117 (per curiam). Likewise, in a small group of cases—those in which disability lasts more than 3 but less than 15 days—the time of onset of disability and the time of entitlement will differ. See (a) (“No compensation shall be allowed for the first three days of the disability Provided, how- ever, That in case the injury results in disability of more than fourteen days the compensation shall be allowed from the date of the disability”). In these cases, the relevant date is that on which disability and enti­ tlement coincide: the fourth day after the onset of disability. 1 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court of compensation based on the happenstance of their ob­ taining orders in different fiscal years. We can imagine no reason why Congress would have intended, by choosing the words “newly awarded compensation,” to differentiate between employees based on such an arbitrary criterion. 3 Finally, using the national average weekly wage for the fiscal year in which disability commences discourages gamesmanship in the claims process. If the fiscal year in which an order issues were to determine the cap, the fact that the national average weekly wage typically rises every year with inflation, see n. would become unduly significant. Every employee affected by the cap would seek the entry of a compensation order in a later fiscal year. Even an employee who has been receiving compensation at the proper rate for years would be well advised to file a claim for greater benefits in order to obtain an order at a later time. Likewise, an employee might delay the adjudicatory process to defer the entry of an order. And even in an adjudicated case where an em­ ployer is found to have paid benefits at the proper rate, an ALJ would adopt the later fiscal year’s national average weekly wage, making the increased cap retroactively applicable to all of the employer’s payments. Roberts candidly acknowledges that his position gives rise to such perverse incentives. See Tr. of Oral Arg. 58–59. We de­ cline to adopt a rule that would reward employees with windfalls for initiating unnecessary administrative pro­ ceedings, while simultaneously punishing employers who have complied fully with their statutory obligations. III We find Roberts’ counterarguments unconvincing. A First, Roberts observes that some provisions of the Cite as: 566 U. S. (01) 13 Opinion of the Court LHWCA clearly use “award” to mean “award in a formal order,” and contends that the same must be true of “awarded compensation” in We agree that the Act sometimes uses “award” as Roberts urges. Section 914(a), for example, refers to the payment of compensation “to the person entitled thereto, without an award,” foreclosing the equation of “entitlement” and “award” that we adopt with respect to (c) today.8 But the presumption that “iden­ tical words used in different parts of the same act are intended to have the same meaning readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” General Dynamics Land Systems, (004) (internal quotation marks and citation omitted); see also, e.g., United States v. Cleveland Indians Baseball Co., U.S. 00, 13 (001). Here, we find the presumption overcome because several provisions of the Act would make no sense if “award” were read as Roberts proposes. Those provi­ sions confirm today’s holding because they too, in context, use “award” to denote a statutory entitlement to compen­ sation because of disability. For example, §908(c)(0) provides that “[p]roper and equitable compensation not to exceed $7, shall be awarded for serious disfigurement.” Roberts argues that §908(c)(0) “necessarily contemplates administrative action to fix the amount of the liability and direct its —————— 8 Other LHWCA provisions, read in context, also use award to mean “award in a formal order.” For example, and 9(b), like refer to the payment of compensation “without an award.” And the LHWCA distinguishes between voluntary payments and those due under an order for purposes of punishing employer delinquency. Compare (10 percent penalty for late payment of “compensation payable without an award”) with (0 percent penalty for late payment of “compensation, payable under the terms of an award”). 14 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court payment.” Reply Brief for Petitioner 11. In Roberts’ view, no disfigured employee may receive benefits without in- voking the administrative claims process. That argu- ment, however, runs counter to preface, which directs that “[c]ompensation for disability shall be paid to the employee,” and to which requires the payment of compensation “without an award.” It is also belied by employers’ practice of paying §908(c)(0) benefits volun­ tarily. See, e.g., Williams-McDowell v. Newport News Shipbuilding & Dry Dock Co., No. 99–067 etc., 000 WL 376, *1 (BRB, Mar. 15, 000) (per curiam); Evans v. Bergeron Barges, Inc., No. 98–1641, 1999 WL 351353, *1 (BRB, Sept. 3, 1999) (per curiam). In light of the LHWCA’s interest in prompt payment and settled prac­ tice, “awarded” in §908(c)(0) can only be better read, as in to refer to a disfigured employee’s entitlement to benefits. Likewise, provides that if an employee who is receiving compensation for a scheduled disability9 dies before receiving the full amount of compensation to which the schedule entitles him, “the total amount of the award unpaid at the time of death shall be payable to or for the benefit of his survivors.” See also (). Roberts’ interpretation of “award” would introduce an odd gap: Only survivors of those employees who were receiving schedule benefits pursuant to orders—not survivors of employees who were receiving voluntary payments— would be entitled to the unpaid balances due their dece­ dents. There is no reason why Congress would have cho­ —————— 9 Sections 908(c)(1) to (0) set forth a “schedule” of particular injuries that entitle an employee “to receive two-thirds of his average weekly wages for a specific number of weeks, regardless of whether his earning capacity has actually been impaired.” Potomac Elec. Power Co. v. Director, Office of Workers’ Compensation Programs, 9 U.S. 68, 69 (1980). For example, an employee who loses an arm is entitled to two­ thirds of his average weekly wage for 31 weeks. Cite as: 566 U. S. (01) 15 Opinion of the Court sen to distinguish between survivors in this manner. And the Benefits Review Board has quite sensibly interpreted to mean that “an employee has a vested interest in benefits which accrue during his lifetime, and, after he dies, his estate is entitled to those benefits, regardless of when an award is made.” Wood v. Ingalls Shipbuilding, Inc., BRBS 7, 36 (1994) (per curiam).10 Finally, provides: “For the purpose of this sub­ section, the term ‘award’ with respect to a compensation order means a formal order issued by the deputy commis­ sioner, an administrative law judge, or Board.” Unless award may mean something other than “award in a com­ —————— 10 Roberts’ interpretation also would afford unwarranted significance to the entry of an order in other circumstances, resulting in arbi- trary distinctions within other classes of beneficiaries. For example, §908(c)() provides that if an employee suffers from more than one scheduled disability, the “awards” for each “shall run consecutively.” Under Roberts’ interpretation, §908(c)() would require consecutive payments only for employees who were receiving scheduled disability benefits pursuant to orders; those receiving voluntary payments pre­ sumably would be entitled to concurrent payments. See That result would conflict with §908(c)()’s text, which states that consecutive payments must be made “[i]n any case” involving multiple scheduled disabilities. See, e.g., Thornton v. Northrop Grumman Shipbuilding, Inc., BRBS 111 (010) (per curiam). Similarly, sets out two formulas for increasing benefits for pre-197 disability or death in light of the higher rates Congress provided in the 197 LHWCA amendments. The first applies to those receiving compensation at the then-applicable maximum rate; the second applies to those “awarded compensation at less than the maximum rate.” See Dept. of Labor, OWCP Bulletin No. 10–73, Ad­ justment of Compensation for Total Permanent Disability or Death Prior to LS/HW Amendments of 197, pp. –4 (1973). Roberts’ inter­ pretation would make the second formula applicable only to beneficiar­ ies receiving less than the maximum rate pursuant to orders, not to all such beneficiaries. Again, there is no reason to believe that Congress intended this distinction, nor has OWCP applied it. See (prescrib­ ing a “uniform” method for computing the increase in all “[c]ases being compensated at less than the maximum rate,” with no reference to the existence of an order). 16 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court pensation order,” this specific definition would be unnec­ essary. Roberts contends that this provision, enacted in 1984, “was indeed ‘unnecessary’ ” in light of Pallas Ship- ping. Brief for Petitioner 9; see (“The term ‘compensation order’ in the LHWCA refers specifi­ cally to an administrative award of compensation following proceedings with respect to the claim”). Roberts’ argu­ ment offends the canon against superfluity and neglects that defines the term “award,” whereas Pallas Shipping defines the term “compensation order.” Moreo­ ver, Congress’ definition of “award,” which tracks Roberts’ preferred interpretation, was carefully limited to Had Congress intended to adopt a universal definition of “award,” it could have done so in §90, the LHWCA’s glossary. Read in light of the “duty to give effect, if possi­ ble, to every clause and word of a statute,” Duncan v. Walker, (001) (internal quotation marks omitted), debunks Roberts’ argument that the Act always uses “award” to mean “award in a formal order” and confirms that “award” has other meanings. B Next, Roberts notes that this Court has refused to read the statutory phrase “person entitled to compensation” in to mean “person awarded compensation.” See Estate of (199) (“[A] person entitled to compensation need not be receiving compensation or have had an adjudication in his favor”). In Roberts’ view, the converse must also be true: “awarded compensation” in (c) cannot mean “entitled to compensation.” But Cowart’s reasoning does not work in reverse. Cowart did not construe (c) or the term “award,” but relied on the uniform meaning of the phrase “person entitled to compensation” in the LHWCA. See at 478–479. As just the LHWCA contains no uniform meaning of the term “award.” Moreover, Cowart Cite as: 566 U. S. (01) 17 Opinion of the Court did not hold that the groups of “employees entitled to compensation” and “employees awarded compensation” were mutually exclusive. The former group includes the latter: The entry of a compensation order is a sufficient but not necessary condition for membership in the former. See at C Finally, Roberts contends that his interpretation fur­ thers the LHWCA’s purpose of providing employees with prompt compensation by encouraging employers to avoid delay and expedite administrative proceedings. But Rob­ erts’ remedy would also punish employers who voluntarily pay benefits at the proper rate from the time of their employees’ injuries. These employers would owe benefits under the higher cap applicable in any future fiscal year when their employees chose to file claims. And Roberts’ remedy would offer no relief at all to the many beneficiar­ ies entitled to less than the statutory maximum rate. The more measured deterrent to employer tardiness is interest that “accrues from the date a benefit came due, rather than from the date of the ALJ’s award.” Matulic v. Director, OWCP, 154 F.3d 105, The Director has long taken the position that “interest is a necessary and inherent component of ‘compensation’ because it ensures that the delay in payment of compensa­ tion does not diminish the amount of compensation to which the employee is entitled.” ; see also, e.g., Stra- chan Shipping 45 F.d 15, 19 (CA5 1971). Moreover, “[t]imely controversion does not relieve the responsible party from paying interest on unpaid compensation.” Longshore Procedure Manual 01, online at http://www.dol.gov/owcp/dlhwc/lspm/lspm8­ 01.htm. Indeed, the ALJ awarded Roberts interest “on each unpaid installment of compensation from the date the compensation became due.” App. to Pet. for Cert. 108, 18 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of the Court Order ¶5.11 * * * We hold that an employee is “newly awarded compensa­ tion” when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.1 The judgment of the Court of Appeals for the Ninth Circuit is affirmed. It is so ordered. —————— 11 Thus, as under JUSTICE GINSBURG’s approach, an employer who controverts still “runs the risk” of greater liability if an ALJ awards an employee compensation at some point subsequent to the onset of disability. See post, at 5. 1 Because “newly awarded compensation,” read in context, is unam­ biguous, we do not reach respondents’ argument that the Director’s interpretation of (c) is entitled to deference under Chevron U. S. A. Cite as: 566 U. S. (01) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES No. 10–1399 DANA ROBERTS, PETITIONER v. SEA-LAND SERVICES, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [March 0, 01] JUSTICE GINSBURG, concurring in part and dissenting in part. Section 906 of the Longshore and Harbor Workers’ Compensation Act (LHWCA or the Act) defines the maxi- mum disability benefit an injured worker may receive under the Act. Specifically, states that an injured employee may receive, at most, twice the national average weekly wage for the fiscal year in which the employee is “newly awarded compensation.” 33 U.S. C. The Court granted review in this case to answer the following question: When is an employee “newly awarded compensation”? Petitioner Dana Roberts contends that an employee is “newly awarded compensation” in the year she receives a formal compensation award. For the reasons cogently by the majority, that argument is untenable. See ante, at 5–17. Unlike the Court, however, I do not regard as reasonable respondent Sea-Land Services’ view that an employee is “newly awarded compensation” in the year she becomes “statutorily entitled to compensation.” Ante, at 5–6. Applying the common meaning of the verb “award” and recognizing the Act’s distinction between benefits paid voluntarily, and those paid pursuant to a compensation order, see ante, at –3, I would hold that an injured worker is “newly awarded compensation” when (1) ROBERTS v. SEA-LAND SERVICES, INC. Opinion of GINSBURG, J. the employer voluntarily undertakes to pay benefits to the employee, or () an administrative law judge (ALJ), the Benefits Review Board (BRB), or a reviewing court orders the employer to pay such benefits. I In determining the meaning of a statutory phrase, “we look first to its language, giving the words used their ordinary meaning.” Moskal v. United States, U.S. 103, 108 (1990) (internal quotation marks and citations omitted). As the Court acknowledges, ante, at 5, the verb “award” ordinarily means “to give by judicial decree” or “[to] assign after careful judgment.” Webster’s Third New International Dictionary 15 (00). See also Black’s Law Dictionary 157 (9th ed. 009) (defining the verb “award” as “[t]o grant by formal process or by judicial decree”). Giving “award” this usual meaning, an employee is “newly awarded compensation,” if not voluntarily paid, in the fis- cal year in which payment is directed by administrative order or judicial decree. Under the LHWCA, the Court recognizes, an employee is provided compensation voluntarily or in contested pro- ceedings. See ante, Most commonly, an employer pays compensation voluntarily after receiving an employ- ee’s notice of disabling injury. See Pallas Shipping Agen- cy, ; 33 U.S. C. §91 (describing the form, content, and timing of the necessary notice and requiring employers to designate a representative to receive the notice); If an em- ployer declines to pay compensation voluntarily, an in- jured employee can file a claim with the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). For employees with valid claims, OWCP pro- ceedings culminate with an administrative or court deci- sion ordering the employer to pay benefits. Thus, an injured worker is given—or “awarded”—compensation Cite as: 566 U. S. (01) 3 Opinion of GINSBURG, J. through one of two means contemplated by the Act: either the employer voluntarily pays compensation or is officially ordered to do so. Logically, then, the worker is “newly awarded compensation” when one of those two events occurs. The Court does not take this approach. After acknowl- edging that it is not relying on the typical meaning of the word “award,” see ante, at 5, the Court adopts Sea-Land’s view that “awarded compensation” is synonymous with “[became] statutorily entitled to benefits,” ante, at 18. As a result, a person is “newly awarded compensation” in the year in which she becomes entitled to benefits—i.e., in the year the employee “first becomes disabled.” Such a reading is plausible, the Court asserts, because “this Court has often said that statutes ‘award’ entitlements.” Ante, at 6 (citing cases). I do not dispute that statutes are often characterized as “awarding” relief to persons falling within their compass. But “a statute must be read in [its] context.” Ante, at 7 (quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989)). Section 906 does not address whether the LHWCA, as a general matter, “awards” disability ben- efits to injured longshore workers. Rather, it concerns a more specific question: when has a particular employee been “newly awarded compensation.” In that context, equating “awarded compensation” with “statutorily enti- tled to compensation” is not plausible. A person covered by the Act would not likely say he was “awarded com- pensation” the moment he became disabled, if, in fact, his employer contests liability. Only after some entity—the employer, an ALJ, the BRB, or a reviewing court— recognizes the employee’s right to compensation would he comprehend that he had been “awarded compensation.” To borrow THE CHIEF JUSTICE’s example: No person who slips and injures herself on a negligently maintained sidewalk would tell her friends the next day, “Guess what, 4 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of GINSBURG, J. I was newly awarded money damages yesterday.” See Tr. of Oral Arg. The inconsistency between the Court’s interpretation of “newly awarded compensation” and my reading of the phrase is best illustrated by contextual example. Assume an employee is injured in 00 and the employer refuses to pay compensation voluntarily. Then, five years later, an ALJ finds in favor of the employee and orders the employer to pay benefits to the employee. Under the Court’s view, the employee was “newly awarded compen- sation” in 00, even though the employee did not receive a penny—and the employer was not obligated to pay a penny—until 007. Only the most strained interpretation of “newly awarded” could demand that result.1 The Court’s view, moreover, does not fit the Act’s design. As at –3, the Act envisions that an eligible employee will begin receiving benefits in either of two ways. The Court’s interpretation disregards this design, assuming instead that all employees are awarded benefits in the same way: by the Act at the time they become disabled. Section 906(c)’s legislative history further confirms that Congress intended “newly awarded compensation” to have its commonsense meaning. In describing the Senate Committee on Labor and Public Welfare reported: —————— 1 As the Court notes, the maximum rate for a given fiscal year applies to two groups of injured workers: those who are “newly awarded com- pensation during such [year],” and those who are “currently receiving compensation for permanent total disability or death benefits during such [year].” 33 U.S. C. Ante, at 7, n. 5. Contrary to the Court’s charge, I do not read “newly awarded compensation” as synon- ymous with “currently receiving compensation.” See An injured worker who is “currently receiving compensation” in a given fiscal year was “newly awarded compensation” in a previous year. My interpreta- tion therefore gives “effect to Congress’ textual shift,” : It identifies two distinct groups of workers who are entitled to a given year’s maxi- mum rate. Cite as: 566 U. S. (01) 5 Opinion of GINSBURG, J. “[Section 906(c)] states that determinations of nation- al average weekly wage made with respect to a [fiscal year] apply to employees or survivors currently receiv- ing compensation for permanent total disability or death benefits, as well as those who begin receiving compensation for the first time during the [fiscal year].” S. Rep. No. 9–115, p. 18 (197) (emphasis added). Congress therefore believed an injured worker is “newly awarded compensation” in the year in which she “begin[s] receiving compensation for the first time.” Again, an employee begins receiving compensation either when an employer voluntarily agrees to pay the employee benefits or when an ALJ, the BRB, or a court orders the employer to do so. See at –3. When the employer resists payment, the employee will not necessarily begin receiving compensation in the year in which she becomes disabled. Finally, interpreting “newly awarded compensation” to mean awarded through an employer’s voluntary decision or an official order is consistent with the Act’s goal of encouraging employers to pay legitimate claims promptly. See 33 U.S. C. (requiring employers to pay com- pensation “periodically, promptly, and directly”); Estate of (199) (Blackmun, J., dissenting) (“[T]he Act presumes that em- ployers, as a rule, will promptly recognize their LHWCA obligations and commence payments immediately.”). Under my interpretation, an employer who chooses to contest a valid claim, rather than to pay the claim voluntarily, runs the risk that it may ultimately have to pay the injured employee a higher maximum benefit. For example, if an employer refuses to pay benefits to a work- er injured in 01, and an ALJ issues an order awarding compensation to the employee in 015, the fiscal year 015 maximum rate would apply to the employee’s claim. Had 6 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of GINSBURG, J. the employer voluntarily begun paying benefits in 01, on the other hand, the 01 maximum rate would apply. Under the Court’s reading, by contrast, an employer pays the prevailing rate for the year the employee became disabled, regardless of whether the employer in fact pays benefits immediately or years down the road. II In this case, Roberts was injured on February 4, 00 and stopped working two weeks later. App. to Pet. for Cert. 4. Sea-Land and its insurer paid benefits to Roberts from March 11, 00 until July 15, 003. Sea- Land then resumed paying benefits on September 1, 003 and continued to pay Roberts compensation until May 17, 005, when it ceased making payments for good. After Roberts filed a complaint with the OWCP, an ALJ, in October 006, concluded that Roberts was entitled to compensation from March 11, 00 onwards. at 107– 108. Applying my interpretation of Roberts was newly awarded compensation three times: in March 00 when Sea-Land voluntarily began paying benefits; in September 003 when Sea-Land resumed making payments after it had stopped in July 003; and in October 006 when an ALJ ordered Sea-Land to pay benefits to Roberts for the uncompensated weeks in 003 and from May 005 on- wards. Roberts was therefore entitled to the fiscal year 00 maximum rate from March 11, 00 until July 15, 003; the fiscal year 003 maximum rate from September 1, 003 until May 17, 005; and the fiscal year 007 rate3 —————— Employers may have a particularly strong financial incentive to postpone paying claims that implicate That section applies only to injured workers who qualify for the maximum rate of compensation under the Act—i.e., to those claimants who are owed the largest possi- ble benefit. 3 For purposes, a year runs from October 1 to September 30. See Cite as: 566 U. S. (01) 7 Opinion of GINSBURG, J. going forward and for all uncompensated weeks covered by the ALJ’s order.4 * * * For the foregoing reasons, I would reverse the Ninth Circuit’s judgment and hold that an employee is “newly awarded compensation” when her employer either volun- —————— 33 U.S. C. The 007 maximum rate therefore applies to all employees “newly awarded compensation” between October 1, 006 and September 30, 007. 4 The Court asserts that an employer could “easily circumven[t]” my approach by making voluntary payments to an injured worker that are substantially below the employee’s “actual entitlement.” Ante, at 10, n. 6. The prospect that an employer could successfully execute, or would even attempt, such a strategy is imaginary. Employers who make voluntary payments to employees are required to file a report with the Department of Labor describing the nature of the employee’s injury and stating the amount of the payments made. See ante, at 9– 10; 33 U.S. C. The employer must also submit the results of a medical evaluation of the employee’s condition. Dept. of Labor, Longshore (DLHWC) Procedure Manual §–01()(b) (hereinafter Long- shore Procedure Manual), online at http://www.dol.gov/owcp/dlhwc/ lspm/lspm-01.htm (as visited Mar. 14, 01, and in Clerk of Court’s case file). Upon receiving the employer’s report, a DOL claims examin- er verifies “the compensation rate for accuracy” and must follow- up with the employer “[i]f the compensation rate appears low.” Long- shore Procedure Manual §–01(3)(b)(1). The chances are slim that a claims examiner would validate a substantial underpayment. Employ- ers who underpay benefits, moreover, are subject to a penalty equal to 10% of the amount of the underpayment. See 33 U.S. C. ; Longshore Procedure Manual §8–0(3)(c) (“If partial payments are made by the employer, the [10% penalty] appl[ies] to the difference between the amount owed and the amount paid.”). Employers would thus risk paying more, not less, were they to attempt to “circumven[t]” my approach by deliberately undercompensating injured workers. And while it is true that an employer who controverts an employee’s right to compensation does not have to pay the 10% penalty, see ante, at 10, n. 6, the Act does not permit an employer to pay any amount it likes and controvert the remainder. See 33 U.S. C. (requiring employers either to pay benefits in full or to controvert “liability to pay compensation” at all). 8 ROBERTS v. SEA-LAND SERVICES, INC. Opinion of GINSBURG, J. tarily agrees to pay compensation to her or is officially ordered to do so

Justice Breyer

majority

Howsam v. Dean Witter Reynolds, Inc.

2002-12-10

https://www.courtlistener.com/opinion/122248/howsam-v-dean-witter-reynolds-inc/

https://www.courtlistener.com/api/rest/v3/clusters/122248/

2002-009

This case focuses upon an arbitration rule of the National Association of Securities Dealers (NASD). The rule states that no dispute "shall be eligible for submission to arbitration . . . where six (6) years have elapsed from the occurrence or event giving rise to the ... dispute." NASD Code of Arbitration Procedure § 10304 (1984) (NASD Code or Code). We must decide whether a court or an NASD arbitrator should apply the rule to the underlying controversy. We conclude that the matter is for the arbitrator. I The underlying controversy arises out of investment advice that Dean Witter Reynolds, Inc. (Dean Witter), provided its client, Karen Howsam, when, some time between 1986 and 1994, it recommended that she buy and hold interests in four limited partnerships. Howsam says that Dean Witter misrepresented the virtues of the partnerships. The resulting controversy falls within their standard Client Service Agreement's arbitration clause, which provides: "[A]ll controversies ... concerning or arising from . . . any account . . . , any transaction . . . , or ... the construction, performance or breach of ... any ... agreement between us ... shall be determined by arbitration before any self-regulatory organization or exchange of which Dean Witter is a member." App. 6-7. *82 The agreement also provides that Howsam can select the arbitration forum. And Howsam chose arbitration before the NASD. To obtain NASD arbitration, Howsam signed the NASD's Uniform Submission Agreement. That agreement specified that the "present matter in controversy" was submitted for arbitration "in accordance with" the NASD's "Code of Arbitration Procedure." Id., at 24. And that Code contains the provision at issue here, a provision stating that no dispute "shall be eligible for submission ... where six (6) years have elapsed from the occurrence or event giving rise to the ... dispute." NASD Code § 10304. After the Uniform Submission Agreement was executed, Dean Witter filed this lawsuit in Federal District Court. It asked the court to declare that the dispute was "ineligible for arbitration" because it was more than six years old. App. 45. And it sought an injunction that would prohibit Howsam from proceeding in arbitration. The District Court dismissed the action on the ground that the NASD arbitrator, not the court, should interpret and apply the NASD rule. The Court of Appeals for the Tenth Circuit, however, reversed. 261 F.3d 956 (2001). In its view, application of the NASD rule presented a question of the underlying dispute's "arbitrability"; and the presumption is that a court, not an arbitrator, will ordinarily decide an "arbitrability" question. See, e. g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995). The Courts of Appeals have reached different conclusions about whether a court or an arbitrator primarily should interpret and apply this particular NASD rule. Compare, e. g., 261 F.3d 956 (CA10 2001) (case below) (holding that the question is for the court); J. E. Liss & Co. v. Levin, 201 F.3d 848, 851 (CA7 2000) (same), with PaineWebber Inc. v. Elahi, 87 F.3d 589 (CA1 1996) (holding that NASD § 15, currently § 10304, is presumptively for the arbitrator); Smith Barney Shearson, Inc. v. Boone, 47 F.3d 750 (CA5 1995) (same). We *83 granted Howsam's petition for certiorari to resolve this disagreement. And we now hold that the matter is for the arbitrator. II This Court has determined that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960); see also First Options, supra, at 942-943. Although the Court has also long recognized and enforced a "liberal federal policy favoring arbitration agreements," Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), it has made clear that there is an exception to this policy: The question whether the parties have submitted a particular dispute to arbitration, i. e., the "question of arbitrability," is "an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise." AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986) (emphasis added); First Options, supra, at 944. We must decide here whether application of the NASD time limit provision falls into the scope of this last-mentioned interpretive rule. Linguistically speaking, one might call any potentially dispositive gateway question a "question of arbitrability," for its answer will determine whether the underlying controversy will proceed to arbitration on the merits. The Court's case law, however, makes clear that, for purposes of applying the interpretive rule, the phrase "question of arbitrability" has a far more limited scope. See 514 U.S., at 942. The Court has found the phrase applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to the court avoids the risk of *84 forcing parties to arbitrate a matter that they may well not have agreed to arbitrate. Thus, a gateway dispute about whether the parties are bound by a given arbitration clause raises a "question of arbitrability" for a court to decide. See id., at 943-946 (holding that a court should decide whether the arbitration contract bound parties who did not sign the agreement); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-547 (1964) (holding that a court should decide whether an arbitration agreement survived a corporate merger and bound the resulting corporation). Similarly, a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy is for the court. See, e. g., AT&T Technologies, supra, at 651-652 (holding that a court should decide whether a labor-management layoff controversy falls within the arbitration clause of a collective-bargaining agreement); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241-243 (1962) (holding that a court should decide whether a clause providing for arbitration of various "grievances" covers claims for damages for breach of a no-strike agreement). At the same time the Court has found the phrase "question of arbitrability" not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter. Thus "`procedural' questions which grow out of the dispute and bear on its final disposition" are presumptively not for the judge, but for an arbitrator, to decide. John Wiley, supra, at 557 (holding that an arbitrator should decide whether the first two steps of a grievance procedure were completed, where these steps are prerequisites to arbitration). So, too, the presumption is that the arbitrator should decide "allegation[s] of waiver, delay, or a like defense to arbitrability." Moses H. Cone Memorial Hospital, supra, at 24-25. Indeed, the Revised Uniform Arbitration Act of 2000 (RUAA), seeking to "incorporate *85 the holdings of the vast majority of state courts and the law that has developed under the [Federal Arbitration Act]," states that an "arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled." RUAA § 6(c), and comment 2, 7 U. L. A. 12-13 (Supp. 2002). And the comments add that "in the absence of an agreement to the contrary, issues of substantive arbitrability ... are for a court to decide and issues of procedural arbitrability, i. e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide." Id., § 6, comment 2, 7 U. L. A., at 13 (emphasis added). Following this precedent, we find that the applicability of the NASD time limit rule is a matter presumptively for the arbitrator, not for the judge. The time limit rule closely resembles the gateway questions that this Court has found not to be "questions of arbitrability." E. g., Moses H. Cone Memorial Hospital, supra, at 24-25 (referring to "waiver, delay, or a like defense"). Such a dispute seems an "aspec[t] of the [controversy] which called the grievance procedures into play." John Wiley, supra, at 559. Moreover, the NASD arbitrators, comparatively more expert about the meaning of their own rule, are comparatively better able to interpret and to apply it. In the absence of any statement to the contrary in the arbitration agreement, it is reasonable to infer that the parties intended the agreement to reflect that understanding. Cf. First Options, 514 U. S., at 944-945. And for the law to assume an expectation that aligns (1) decisionmaker with (2) comparative expertise will help better to secure a fair and expeditious resolution of the underlying controversy—a goal of arbitration systems and judicial systems alike. We consequently conclude that the NASD's time limit rule falls within the class of gateway procedural disputes that do not present what our cases have called "questions of arbitrability." *86 And the strong pro-court presumption as to the parties' likely intent does not apply. III Dean Witter argues that, in any event, i. e., even without an antiarbitration presumption, we should interpret the contracts between the parties here as calling for judicial determination of the time limit matter. Howsam's execution of a Uniform Submission Agreement with the NASD in 1997 effectively incorporated the NASD Code into the parties' agreement. Dean Witter notes the Code's time limit rule uses the word "eligible." That word, in Dean Witter's view, indicates the parties' intent for the time limit rule to be resolved by the court prior to arbitration. We do not see how that is so. For the reasons stated in Part II, supra, parties to an arbitration contract would normally expect a forum-based decisionmaker to decide forum-specific procedural gateway matters. And any temptation here to place special antiarbitration weight on the appearance of the word "eligible" in the NASD Code rule is counterbalanced by a different NASD rule; that rule states that "arbitrators shall be empowered to interpret and determine the applicability of all provisions under this Code." NASD Code § 10324. Consequently, without the help of a special arbitration-disfavoring presumption, we cannot conclude that the parties intended to have a court, rather than an arbitrator, interpret and apply the NASD time limit rule. And as we held in Part II, supra, that presumption does not apply. IV For these reasons, the judgment of the Tenth Circuit is Reversed. JUSTICE O'CONNOR took no part in the consideration or decision of this case. *87 JUSTICE THOMAS, concurring in the judgment.

This case focuses upon an arbitration rule of the National Association of Securities Dealers (NASD). The rule states that no dispute "shall be eligible for submission to arbitration where six (6) years have elapsed from the occurrence or event giving rise to the dispute." NASD Code of Arbitration Procedure 10304 (1984) (NASD Code or Code). We must decide whether a court or an NASD arbitrator should apply the rule to the underlying controversy. We conclude that the matter is for the arbitrator. I The underlying controversy arises out of investment advice that Dean Witter Reynolds, Inc. (Dean Witter), provided its client, Karen Howsam, when, some time between 1986 and 1994, it recommended that she buy and hold interests in four limited partnerships. Howsam says that Dean Witter misrepresented the virtues of the partnerships. The resulting controversy falls within their standard Client Service Agreement's arbitration clause, which provides: "[A]ll controversies concerning or arising from any account any transaction or the construction, performance or breach of any agreement between us shall be determined by arbitration before any self-regulatory organization or exchange of which Dean Witter is a member." App. 6-7. *82 The agreement also provides that Howsam can select the arbitration forum. And Howsam chose arbitration before the NASD. To obtain NASD arbitration, Howsam signed the NASD's Uniform Submission Agreement. That agreement specified that the "present matter in controversy" was submitted for arbitration "in accordance with" the NASD's "Code of Arbitration Procedure." And that Code contains the provision at issue here, a provision stating that no dispute "shall be eligible for submission where six (6) years have elapsed from the occurrence or event giving rise to the dispute." NASD Code 10304. After the Uniform Submission Agreement was executed, Dean Witter filed this lawsuit in Federal District Court. It asked the court to declare that the dispute was "ineligible for arbitration" because it was more than six years old. App. 45. And it sought an injunction that would prohibit Howsam from proceeding in arbitration. The District Court dismissed the action on the ground that the NASD arbitrator, not the court, should interpret and apply the NASD rule. The Court of Appeals for the Tenth Circuit, however, reversed. In its view, application of the NASD rule presented a question of the underlying dispute's "arbitrability"; and the presumption is that a court, not an arbitrator, will ordinarily decide an "arbitrability" question. See, e. g., First of Chicago, The Courts of Appeals have reached different conclusions about whether a court or an arbitrator primarily should interpret and apply this particular NASD rule. Compare, e. g., (holding that the question is for the court); J. E. Liss & with PaineWebber (holding that NASD 15, currently 10304, is presumptively for the arbitrator); Smith Barney Shearson, We *83 granted Howsam's petition for certiorari to resolve this disagreement. And we now hold that the matter is for the arbitrator. This Court has determined that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." ; see also First Although the Court has also long recognized and enforced a "liberal federal policy favoring arbitration agreements," Moses H. Cone Memorial it has made clear that there is an exception to this policy: The question whether the parties have submitted a particular dispute to arbitration, i. e., the "question of arbitrability," is "an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise." AT&T ; First We must decide here whether application of the NASD time limit provision falls into the scope of this last-mentioned interpretive rule. Linguistically speaking, one might call any potentially dispositive gateway question a "question of arbitrability," for its answer will determine whether the underlying controversy will proceed to arbitration on the merits. The Court's case law, however, makes clear that, for purposes of applying the interpretive rule, the phrase "question of arbitrability" has a far more limited scope. See The Court has found the phrase applicable in the kind of narrow circumstance where contracting parties would likely have expected a court to have decided the gateway matter, where they are not likely to have thought that they had agreed that an arbitrator would do so, and, consequently, where reference of the gateway dispute to the court avoids the risk of *84 forcing parties to arbitrate a matter that they may well not have agreed to arbitrate. Thus, a gateway dispute about whether the parties are bound by a given arbitration clause raises a "question of arbitrability" for a court to decide. See ; John & Sons, Similarly, a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy is for the court. See, e. g., AT&T ; At the same time the Court has found the phrase "question of arbitrability" not applicable in other kinds of general circumstance where parties would likely expect that an arbitrator would decide the gateway matter. Thus "`procedural' questions which grow out of the dispute and bear on its final disposition" are presumptively not for the judge, but for an arbitrator, to decide. John So, too, the presumption is that the arbitrator should decide "allegation[s] of waiver, delay, or a like defense to arbitrability." Moses H. Cone Memorial Hospital, -25. Indeed, the Revised Uniform Arbitration Act of (RUAA), seeking to "incorporate *85 the holdings of the vast majority of state courts and the law that has developed under the [Federal Arbitration Act]," states that an "arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled." RUAA 6(c), and comment 2, 7 U. L. A. 12-13 (Supp. 2002). And the comments add that "in the absence of an agreement to the contrary, issues of substantive arbitrability are for a court to decide and issues of procedural arbitrability, i. e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide." 6, comment 2, 7 U. L. A., at 13 Following this precedent, we find that the applicability of the NASD time limit rule is a matter presumptively for the arbitrator, not for the judge. The time limit rule closely resembles the gateway questions that this Court has found not to be "questions of arbitrability." E. g., Moses H. Cone Memorial Hospital, -25 Such a dispute seems an "aspec[t] of the [controversy] which called the grievance procedures into play." John Moreover, the NASD arbitrators, comparatively more expert about the meaning of their own rule, are comparatively better able to interpret and to apply it. In the absence of any statement to the contrary in the arbitration agreement, it is reasonable to infer that the parties intended the agreement to reflect that understanding. Cf. First 514 U. S., -945. And for the law to assume an expectation that aligns (1) decisionmaker with (2) comparative expertise will help better to secure a fair and expeditious resolution of the underlying controversy—a goal of arbitration systems and judicial systems alike. We consequently conclude that the NASD's time limit rule falls within the class of gateway procedural disputes that do not present what our cases have called "questions of arbitrability." *86 And the strong pro-court presumption as to the parties' likely intent does not apply. I Dean Witter argues that, in any event, i. e., even without an antiarbitration presumption, we should interpret the contracts between the parties here as calling for judicial determination of the time limit matter. Howsam's execution of a Uniform Submission Agreement with the NASD in 1997 effectively incorporated the NASD Code into the parties' agreement. Dean Witter notes the Code's time limit rule uses the word "eligible." That word, in Dean Witter's view, indicates the parties' intent for the time limit rule to be resolved by the court prior to arbitration. We do not see how that is so. For the reasons stated in Part parties to an arbitration contract would normally expect a forum-based decisionmaker to decide forum-specific procedural gateway matters. And any temptation here to place special antiarbitration weight on the appearance of the word "eligible" in the NASD Code rule is counterbalanced by a different NASD rule; that rule states that "arbitrators shall be empowered to interpret and determine the applicability of all provisions under this Code." NASD Code 10324. Consequently, without the help of a special arbitration-disfavoring presumption, we cannot conclude that the parties intended to have a court, rather than an arbitrator, interpret and apply the NASD time limit rule. And as we held in Part that presumption does not apply. IV For these reasons, the judgment of the Tenth Circuit is Reversed. JUSTICE O'CONNOR took no part in the consideration or decision of this case. *87 JUSTICE THOMAS, concurring in the judgment.

Justice Thomas

concurring

Howsam v. Dean Witter Reynolds, Inc.

2002-12-10

https://www.courtlistener.com/opinion/122248/howsam-v-dean-witter-reynolds-inc/

https://www.courtlistener.com/api/rest/v3/clusters/122248/

2002-009

As our precedents make clear and as the Court notes, arbitration is a matter of contract. Ante, at 83. In Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468 (1989), we held that under the Federal Arbitration Act courts must enforce private agreements to arbitrate just as they would ordinary contracts: in accordance with their terms. Under Volt, when an arbitration agreement contains a choice-of-law provision, that provision must be honored, and a court interpreting the agreement must follow the law of the jurisdiction selected by the parties. See id., at 478-479 (enforcing a choice-of-law provision that incorporated a state procedural rule concerning arbitration proceedings); see also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 67 (1995) (THOMAS, J., dissenting) (concluding that the choice-of-law provision in question was indistinguishable from the one in Volt and, thus, should have been given effect). A straightforward application of these principles easily resolves the question presented in this case. The agreement now before us provides that it "shall be construed and enforced in accordance with the laws of the State of New York." App. 6. Interpreting two agreements containing provisions virtually identical to the ones in dispute here, the New York Court of Appeals held that issues implicating § 15 (now § 10304) of the National Association of Securities Dealers Code of Arbitration Procedure are for arbitrators to decide. See Smith Barney Shearson Inc. v. Sacharow, 91 N.Y. 2d 39, 689 N.E.2d 884 (1997). Because the parties agreed to be bound by New York law and because Volt requires us to enforce their agreement, I would permit arbitrators to resolve the § 10304 issues that have arisen in this case, just as New York case law provides. The Court follows a different route to reach the same conclusion; accordingly, I concur only in the judgment.

As our precedents make clear and as the Court notes, arbitration is a matter of contract. Ante, at 83. In Volt Information Sciences, we held that under the Federal Arbitration Act courts must enforce private agreements to arbitrate just as they would ordinary contracts: in accordance with their terms. Under Volt, when an arbitration agreement contains a choice-of-law provision, that provision must be honored, and a court interpreting the agreement must follow the law of the jurisdiction selected by the parties. See ; see also (concluding that the choice-of-law provision in question was indistinguishable from the one in Volt and, thus, should have been given effect). A straightforward application of these principles easily resolves the question presented in this case. The agreement now before us provides that it "shall be construed and enforced in accordance with the laws of the State of New York." App. 6. Interpreting two agreements containing provisions virtually identical to the ones in dispute here, the New York Court of Appeals held that issues implicating 15 (now 10304) of the National Association of Securities Dealers Code of Arbitration Procedure are for arbitrators to decide. See Smith Barney Shearson Because the parties agreed to be bound by New York law and because Volt requires us to enforce their agreement, I would permit arbitrators to resolve the 10304 issues that have arisen in this case, just as New York case law provides. The Court follows a different route to reach the same conclusion; accordingly, I concur only in the judgment.

Justice Thomas

majority

Rotkiske v. Klemm

2019-12-10

https://www.courtlistener.com/opinion/4685522/rotkiske-v-klemm/

https://www.courtlistener.com/api/rest/v3/clusters/4685522/

The Fair Debt Collection Practices Act (FDCPA) author- izes private civil actions against debt collectors who engage in certain prohibited practices. 91 Stat. 881, 15 U.S. C. §1692k(a). An action under the FDCPA may be brought “within one year from the date on which the violation oc- curs.” §1692k(d). This case requires us to determine when the FDCPA’s limitations period begins to run. We hold that, absent the application of an equitable doctrine, the statute of limitations in §1692k(d) begins to run on the date on which the alleged FDCPA violation occurs, not the date on which the violation is discovered. I A In 1977, Congress enacted the FDCPA “to eliminate abu- sive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvan- taged, and to promote consistent State action to protect con- sumers against debt collection abuses.” §1692(e). The 2 ROTKISKE v. KLEMM Opinion of the Court FDCPA pursues these stated purposes by imposing affirm- ative requirements on debt collectors and prohibiting a range of debt-collection practices. §§1692b–1692j. The FDCPA authorizes the Federal Trade Commission, the Bureau of Consumer Financial Protection, and other federal agencies to enforce its provisions. §1692l. The FDCPA also authorizes private civil actions against debt collectors. §1692k(a). These private civil actions “may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.” §1692k(d). B Petitioner Kevin Rotkiske failed to pay approximately $1,200 in credit card debt.1 His credit card company re- ferred the debt to respondent Klemm & Associates (Klemm) for collection.2 In March 2008, Klemm sued Rotkiske, seek- ing to collect the unpaid debt. Klemm attempted service at an address where Rotkiske no longer lived, and a person whose description did not match Rotkiske’s accepted service of the complaint. Klemm later withdrew the suit. Klemm refiled suit in January 2009, and a process server attempted service at the same address. Once again, some- one other than Rotkiske accepted service. Rotkiske failed to respond to the summons, and Klemm obtained a default —————— 1 Because this case comes to us from a decision granting a motion to dismiss, we assume the truth of the facts alleged in Rotkiske’s operative complaint. See, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1 (2002). 2 Paul Klemm, the managing partner of Klemm & Associates, moved to a new firm named Nudelman, Nudelman & Ziering, which was later renamed Nudelman, Klemm & Golub. Rotkiske has sued Paul Klemm, Klemm & Associates, Nudelman, Klemm & Golub, and Nudelman, Nudelman & Ziering. For the sake of simplicity, we refer to the respond- ents as Klemm. Cite as: 589 U. S. ____ (2019) 3 Opinion of the Court judgment. Rotkiske claims that he was not aware of Klemm’s 2009 debt-collection lawsuit until September 2014, when he was denied a mortgage because of the default judgment against him. On June 29, 2015, more than six years after the default judgment, Rotkiske brought suit against Klemm under the FDCPA. Rotkiske’s amended complaint alleged that equi- table tolling excused his otherwise untimely filing because Klemm purposely served process in a manner that ensured he would not receive service. The sole FDCPA claim in the complaint asserted that Klemm commenced the 2009 debt- collection lawsuit after the state-law limitations period ex- pired and therefore “violated the FDCPA by contacting [Rotkiske] without lawful ability to collect.” First Amended Complaint in No. 2:15–cv–03638 (ED Pa.), Doc. 15, p. 4. Klemm moved to dismiss the action as barred by the FDCPA’s one-year statute of limitations, 15 U.S. C. §1692k(d). Rotkiske argued that the court should apply a “discovery rule” to delay the beginning of the limitations pe- riod until the date he knew or should have known of the alleged FDCPA violation. To support this contention, Rot- kiske relied on the Ninth Circuit’s decision in Mangum v. Action Collection Serv., Inc., 575 F.3d 935 (2009). That case held that, under the “discovery rule,” limitations peri- ods in federal litigation generally begin to run when plain- tiffs know or have reason to know of their injury. Id., at 940–941. The District Court dismissed the action. It held that the Ninth Circuit’s general rule does not apply to §1692k(d), re- lying on the statute’s plain language. The court also con- cluded that Rotkiske was not entitled to equitable tolling because, even accepting the truth of the allegations in the complaint, he was not misled by Klemm’s conduct. On appeal, the Third Circuit sua sponte reviewed the case en banc and unanimously affirmed. 890 F.3d 422 (2018). The court held that, under the text of §1692k(d), the 4 ROTKISKE v. KLEMM Opinion of the Court FDCPA’s one-year limitations period runs from the “date on which the violation occurs,” not the date a potential plaintiff discovers or should have discovered the violation. Id., at 425–426. The court expressly rejected the Ninth Circuit’s approach, stating that there is no default presumption that all federal limitations periods run from the date of discov- ery. Id., at 427. Rotkiske failed to raise the application of equitable doctrines on appeal, so the court did not address that issue. Id., at 428–429. Given the conflict between the Courts of Appeals, see id., at 427, we granted certiorari. 586 U. S. ___ (2019). II The question before us is whether the “discovery rule” ap- plies to the FDCPA’s limitations period. The phrase “dis- covery rule,” however, has no generally accepted meaning. Rotkiske’s arguments invoking the discovery rule implicate two distinct concepts—the application of a general discov- ery rule as a principle of statutory interpretation and the application of a fraud-specific discovery rule as an equitable doctrine. We address each in turn. A When interpreting limitations provisions, as always, “we begin by analyzing the statutory language.” Hardt v. Reli- ance Standard Life Ins. Co., 560 U.S. 242, 251 (2010). If the words of a statute are unambiguous, this first step of the interpretive inquiry is our last. Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 (1992). If “there are two plausible constructions of a statute of limitations,” we gen- erally “adopt the construction that starts the time limit run- ning when the cause of action . . . accrues” because “Con- gress legislates against the ‘standard rule that the limitations period commences when the plaintiff has a com- plete and present cause of action.’ ” Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 Cite as: 589 U. S. ____ (2019) 5 Opinion of the Court U. S. 409, 418–419 (2005) (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). Here, the text of §1692k(d) clearly states that an FDCPA action “may be brought . . . within one year from the date on which the violation occurs.” That language unambigu- ously sets the date of the violation as the event that starts the one-year limitations period. At the time of the FDCPA’s enactment, the term “violation” referred to the “[a]ct or in- stance of violating, or state of being violated.” Webster’s New International Dictionary 2846 (2d ed. 1949) (Webster’s Second). The term “occur” meant “to happen,” and, as Web- ster’s Second explains, “occur” described “that which is thought of as definitely taking place as an event.” Id., at 1684. Read together, these dictionary definitions confirm what is clear from the face of §1692k(d)’s text: The FDCPA limitations period begins to run on the date the alleged FDCPA violation actually happened. We must presume that Congress “says in a statute what it means and means in a statute what it says there.” Connecticut Nat. Bank, 503 U.S., at 254. Rotkiske does not contest the plain meaning of §1692k(d)’s text or claim that he brought suit within one year of the alleged FDCPA violation. Instead, he suggests that we should interpret §1692k(d) to include a general “discovery rule” that applies to all FDCPA actions. In ef- fect, Rotkiske asks the Court to read in a provision stating that §1692k(d)’s limitations period begins to run on the date an alleged FDCPA violation is discovered. This expansive approach to the discovery rule is a “bad wine of recent vintage.” TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001) (Scalia, J., concurring in judgment). It is a fun- damental principle of statutory interpretation that “absent provision[s] cannot be supplied by the courts.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 94 (2012). To do so “ ‘is not a construction of a statute, but, 6 ROTKISKE v. KLEMM Opinion of the Court in effect, an enlargement of it by the court.’ ” Nichols v. United States, 578 U. S. ___, ___ (2016) (slip op., at 6) (quot- ing Iselin v. United States, 270 U.S. 245, 251 (1926)). Atextual judicial supplementation is particularly inap- propriate when, as here, Congress has shown that it knows how to adopt the omitted language or provision. Congress has enacted statutes that expressly include the language Rotkiske asks us to read in, setting limitations periods to run from the date on which the violation occurs or the date of discovery of such violation. See, e.g., 12 U.S. C. §3416; 15 U.S. C. §1679i. In fact, at the time Congress enacted the FDCPA, many statutes included provisions that, in cer- tain circumstances, would begin the running of a limita- tions period upon the discovery of a violation, injury, or some other event. See, e.g., 15 U.S. C. §77m (1976 ed.); 19 U.S. C. §1621 (1976 ed.); 26 U.S. C. §7217(c) (1976 ed.); 29 U.S. C. §1113 (1976 ed.). It is not our role to second-guess Congress’ decision to in- clude a “violation occurs” provision, rather than a discovery provision, in §1692k(d). The length of a limitations period “reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are out- weighed by the interests in prohibiting the prosecution of stale ones.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463–464 (1975). It is Congress, not this Court, that balances those interests. We simply enforce the value judgments made by Congress. B Narrowing his initial assertion and moving away from the question on which we granted certiorari, Rotkiske also contends that his filing should be treated as timely under an equitable, fraud-specific discovery rule, relying on a line of decisions beginning with Bailey v. Glover, 21 Wall. 342 (1875). Rotkiske claims that Bailey and its progeny apply an equitable doctrine that delays the commencement of the Cite as: 589 U. S. ____ (2019) 7 Opinion of the Court statute of limitations in fraud actions, and that he has pleaded (or could plead) a claim within the scope of this doc- trine. This Court has noted the existence of decisions ap- plying a discovery rule in “fraud cases” that is distinct from the traditional equitable tolling doctrine. Merck & Co. v. Reynolds, 559 U.S. 633, 644 (2010); Gabelli v. SEC, 568 U.S. 442, 450 (2013) (referring to the “fraud discovery rule”). And it has repeatedly characterized these decisions as applying an equity-based doctrine. California Public Employees’ Retirement System v. ANZ Securities, Inc., 582 U. S. ___, ___–___ (2017) (slip op., at 10–11); Lozano v. Mon- toya Alvarez, 572 U.S. 1, 10–11 (2014); Credit Suisse Secu- rities (USA) LLC v. Simmonds, 566 U.S. 221, 226–227 (2012); Young v. United States, 535 U.S. 43, 49–50 (2002). Rotkiske failed to preserve this issue before the Third Cir- cuit, 890 F.3d, at 428, and failed to raise this issue in his petition for certiorari. Accordingly, Rotkiske cannot rely on this doctrine to excuse his otherwise untimely filing.3 * * * For the foregoing reasons, the judgment of the Court of Appeals is affirmed. It is so ordered. —————— 3 We do not decide whether the text of 15 U.S. C. §1692k(d) permits the application of equitable doctrines or whether the claim raised in this case falls within the scope of the doctrine applied in Bailey and its prog- eny. Cite as: 589 U. S. ____ (2019) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 18–328 _________________ KEVIN C. ROTKISKE, PETITIONER v. PAUL KLEMM, ET AL.

The Fair Debt Collection Practices Act (FDCPA) author- izes private civil actions against debt collectors who engage in certain prohibited practices. 15 U.S. C. An action under the FDCPA may be brought “within one year from the date on which the violation oc- curs.” This case requires us to determine when the FDCPA’s limitations period begins to run. We hold that, absent the application of an equitable doctrine, the statute of limitations in begins to run on the date on which the alleged FDCPA violation occurs, not the date on which the violation is discovered. I A In 1977, Congress enacted the FDCPA “to eliminate abu- sive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvan- taged, and to promote consistent State action to protect con- sumers against debt collection abuses.” The 2 ROTKISKE v. KLEMM Opinion of the Court FDCPA pursues these stated purposes by imposing affirm- ative requirements on debt collectors and prohibiting a range of debt-collection practices. The FDCPA authorizes the Federal Trade Commission, the Bureau of Consumer Financial Protection, and other federal agencies to enforce its provisions. The FDCPA also authorizes private civil actions against debt collectors. These private civil actions “may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.” B Petitioner Kevin Rotkiske failed to pay approximately $1,200 in credit card debt.1 His credit card company re- ferred the debt to respondent Klemm & Associates (Klemm) for collection.2 In March 2008, Klemm sued Rotkiske, seek- ing to collect the unpaid debt. Klemm attempted service at an address where Rotkiske no longer lived, and a person whose description did not match Rotkiske’s accepted service of the complaint. Klemm later withdrew the suit. Klemm refiled suit in January and a process server attempted service at the same address. Once again, some- one other than Rotkiske accepted service. Rotkiske failed to respond to the summons, and Klemm obtained a default —————— 1 Because this case comes to us from a decision granting a motion to dismiss, we assume the truth of the facts alleged in Rotkiske’s operative complaint. See, e.g., n. 1 2 Paul Klemm, the managing partner of Klemm & Associates, moved to a new firm named Nudelman, Nudelman & Ziering, which was later renamed Nudelman, Klemm & Golub. Rotkiske has sued Paul Klemm, Klemm & Associates, Nudelman, Klemm & Golub, and Nudelman, Nudelman & Ziering. For the sake of simplicity, we refer to the respond- ents as Klemm. Cite as: 589 U. S. (9) 3 Opinion of the Court judgment. Rotkiske claims that he was not aware of Klemm’s debt-collection lawsuit until September 4, when he was denied a mortgage because of the default judgment against him. On June 29, 5, more than six years after the default judgment, Rotkiske brought suit against Klemm under the FDCPA. Rotkiske’s amended complaint alleged that equi- table tolling excused his otherwise untimely filing because Klemm purposely served process in a manner that ensured he would not receive service. The sole FDCPA claim in the complaint asserted that Klemm commenced the debt- collection lawsuit after the state-law limitations period ex- pired and therefore “violated the FDCPA by contacting [Rotkiske] without lawful ability to collect.” First Amended Complaint in No. 2:15–cv–03638 (ED Pa.), Doc. 15, p. 4. Klemm moved to dismiss the action as barred by the FDCPA’s one-year statute of limitations, 15 U.S. C. Rotkiske argued that the court should apply a “discovery rule” to delay the beginning of the limitations pe- riod until the date he knew or should have known of the alleged FDCPA violation. To support this contention, Rot- kiske relied on the Ninth Cir’s decision in Mangum v. Action Collection Serv., Inc., That case held that, under the “discovery rule,” limitations peri- ods in federal litigation generally begin to run when plain- tiffs know or have reason to know of their injury. at 940–941. The District Court dismissed the action. It held that the Ninth Cir’s general rule does not apply to re- lying on the statute’s plain language. The court also con- cluded that Rotkiske was not entitled to equitable tolling because, even accepting the truth of the allegations in the complaint, he was not misled by Klemm’s conduct. On appeal, the Third Cir sua sponte reviewed the case en banc and unanimously affirmed. The court held that, under the text of the 4 ROTKISKE v. KLEMM Opinion of the Court FDCPA’s one-year limitations period runs from the “date on which the violation occurs,” not the date a potential plaintiff discovers or should have discovered the violation. at 425–426. The court expressly rejected the Ninth Cir’s approach, stating that there is no default presumption that all federal limitations periods run from the date of discov- ery. Rotkiske failed to raise the application of equitable doctrines on appeal, so the court did not address that issue. at 428–429. Given the conflict between the Courts of Appeals, see we granted certiorari. 586 U. S. (9). II The question before us is whether the “discovery rule” ap- plies to the FDCPA’s limitations period. The phrase “dis- covery rule,” however, has no generally accepted meaning. Rotkiske’s arguments invoking the discovery rule implicate two distinct concepts—the application of a general discov- ery rule as a principle of statutory interpretation and the application of a fraud-specific discovery rule as an equitable doctrine. We address each in turn. A When interpreting limitations provisions, as always, “we begin by analyzing the statutory language.” If the words of a statute are unambiguous, this first step of the interpretive inquiry is our last. Connecticut Nat. Bank v. Germain, If “there are two plausible constructions of a statute of limitations,” we gen- erally “adopt the construction that starts the time limit run- ning when the cause of action accrues” because “Con- gress legislates against the ‘standard rule that the limitations period commences when the plaintiff has a com- plete and present cause of action.’ ” Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 Cite as: 589 U. S. (9) 5 Opinion of the Court U. S. 409, 418–419 (2005) ). Here, the text of clearly states that an FDCPA action “may be brought within one year from the date on which the violation occurs.” That language unambigu- ously sets the date of the violation as the event that starts the one-year limitations period. At the time of the FDCPA’s enactment, the term “violation” referred to the “[a]ct or in- stance of violating, or state of being violated.” Webster’s New International Dictionary 2846 (2d ed. 1949) (Webster’s Second). The term “occur” meant “to happen,” and, as Web- ster’s Second explains, “occur” described “that which is thought of as definitely taking place as an event.” at 1684. Read together, these dictionary definitions confirm what is clear from the face of ’s text: The FDCPA limitations period begins to run on the date the alleged FDCPA violation actually happened. We must presume that Congress “says in a statute what it means and means in a statute what it says there.” Connecticut Nat. Bank, 503 U.S., at Rotkiske does not contest the plain meaning of ’s text or claim that he brought suit within one year of the alleged FDCPA violation. Instead, he suggests that we should interpret to include a general “discovery rule” that applies to all FDCPA actions. In ef- fect, Rotkiske asks the Court to read in a provision stating that ’s limitations period begins to run on the date an alleged FDCPA violation is discovered. This expansive approach to the discovery rule is a “bad wine of recent vintage.” TRW 37 (2001) (Scalia, J., concurring in judgment). It is a fun- damental principle of statutory interpretation that “absent provision[s] cannot be supplied by the courts.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 94 (2). To do so “ ‘is not a construction of a statute, but, 6 ROTKISKE v. KLEMM Opinion of the Court in effect, an enlargement of it by the court.’ ” Nichols v. United States, 578 U. S. (6) (slip op., at 6) ). Atextual judicial supplementation is particularly inap- propriate when, as here, Congress has shown that it knows how to adopt the omitted language or provision. Congress has enacted statutes that expressly include the language Rotkiske asks us to read in, setting limitations periods to run from the date on which the violation occurs or the date of discovery of such violation. See, e.g., 12 U.S. C. 15 U.S. C. In fact, at the time Congress enacted the FDCPA, many statutes included provisions that, in cer- tain circumstances, would begin the running of a limita- tions period upon the discovery of a violation, injury, or some other event. See, e.g., 15 U.S. C. (1976 ed.); 19 U.S. C. (1976 ed.); 26 U.S. C. (1976 ed.); 29 U.S. C. (1976 ed.). It is not our role to second-guess Congress’ decision to in- clude a “violation occurs” provision, rather than a discovery provision, in The length of a limitations period “reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are out- weighed by the interests in prohibiting the prosecution of stale ones.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463–464 (1975). It is Congress, not this Court, that balances those interests. We simply enforce the value judgments made by Congress. B Narrowing his initial assertion and moving away from the question on which we granted certiorari, Rotkiske also contends that his filing should be treated as timely under an equitable, fraud-specific discovery rule, relying on a line of decisions beginning with (1875). Rotkiske claims that Bailey and its progeny apply an equitable doctrine that delays the commencement of the Cite as: 589 U. S. (9) 7 Opinion of the Court statute of limitations in fraud actions, and that he has pleaded (or could plead) a claim within the scope of this doc- trine. This Court has noted the existence of decisions ap- plying a discovery rule in “fraud cases” that is distinct from the traditional equitable tolling doctrine. Merck & Co. v. Reynolds, ; Gabelli v. SEC, 568 U.S. 442, 450 (3) (referring to the “fraud discovery rule”). And it has repeatedly characterized these decisions as applying an equity-based doctrine. California Public Employees’ Retirement System v. ANZ Securities, Inc., 582 U. S. – (7) (slip op., at ); (4); Credit Suisse Secu- rities (USA) 226–227 (2); Rotkiske failed to preserve this issue before the Third Cir- and failed to raise this issue in his petition for certiorari. Accordingly, Rotkiske cannot rely on this doctrine to excuse his otherwise untimely filing.3 * * * For the foregoing reasons, the judgment of the Court of Appeals is affirmed. It is so ordered. —————— 3 We do not decide whether the text of 15 U.S. C. permits the application of equitable doctrines or whether the claim raised in this case falls within the scope of the doctrine applied in Bailey and its prog- eny. Cite as: 589 U. S. (9) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES No. 18–328 KEVIN C. ROTKISKE, PETITIONER v. PAUL KLEMM, ET AL.

Justice Sotomayor

concurring

Rotkiske v. Klemm

2019-12-10

https://www.courtlistener.com/opinion/4685522/rotkiske-v-klemm/

https://www.courtlistener.com/api/rest/v3/clusters/4685522/

Like my colleagues in both the majority and the partial dissent, I agree that 15 U.S. C. §1692k(d) is a one-year statute of limitations that typically begins to run when the alleged violation “occurs,” not when the plaintiff discovers it. Compare ante, at 1, with post, at 1 (GINSBURG, J., dis- senting in part and from judgment). The only daylight be- tween the majority and dissenting opinions is whether petitioner Rotkiske forfeited reliance on an “equitable, fraud- specific discovery rule” that forgives otherwise untimely fil- ings. Ante, at 6–7; cf. post, at 4–5. Because I believe the Court of Appeals fairly found that Rotkiske failed to pre- serve an equitable argument of this sort, see 890 F.3d 422, 429, and n. 5 (CA3 2018), and because the Court did not grant certiorari on that doctrine, I join the majority opinion. I write separately to emphasize that this fraud-specific equitable principle is not the “ ‘bad wine of recent vintage’ ” of which my colleagues speak. Ante, at 5 (quoting TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001) (Scalia, J., concurring in judgment)). Rather, the Court has long “recogni[zed]” and applied this “historical exception for suits based on fraud.” Id., at 37; see also id., at 27 (majority opinion) (not- ing equitable discovery rule “in cases of fraud or conceal- ment”); Holmberg v. Armbrecht, 327 U.S. 392 (1946); Ex- ploration Co. v. United States, 247 U.S. 435 (1918); Bailey 2 ROTKISKE v. KLEMM SOTOMAYOR, J., concurring v. Glover, 21 Wall. 342 (1875); Sherwood v. Sutton, 21 F. Cas. 1303 (No. 12,782) (CC NH 1828) (Story, J.). Nothing in today’s decision prevents parties from invoking that well- settled doctrine. Cite as: 589 U. S. ____ (2019) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES _________________ No. 18–328 _________________ KEVIN C. ROTKISKE, PETITIONER v. PAUL KLEMM, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [December 10, 2019] JUSTICE GINSBURG, dissenting from the opinion in part and from the judgment. Generally, I agree with the Court, the “discovery rule” does not apply to the one-year statute of limitations con- tained in the Fair Debt Collection Practices Act (FDCPA), 15 U.S. C. §1692k(d). That limitations period ordinarily commences to run on the date “the violation occurs,” ibid. See TRW Inc. v. Andrews, 534 U.S. 19, 28–33 (2001). But the ordinarily applicable time trigger does not apply when fraud on the creditor’s part accounts for the debtor’s failure to sue within one year of the creditor’s violation. Id., at 37 (Scalia, J., concurring in judgment). See also id., at 27 (ma- jority opinion). True, in the case at hand, debtor Rotkiske’s FDCPA claim does not rest on any fraud inhering in the claim creditor Klemm stated in his debt-collection suit. Rather, debtor Rotkiske alleges that creditor Klemm commenced the debt- collection suit too late. But Rotkiske was disarmed from asserting that defense in Klemm’s suit, for he never re- ceived notice of the suit and therefore had no opportunity to defend against it. For the same reason, he was stopped 2 ROTKISKE v. KLEMM Opinion of GINSBURG, J. from raising an FDCPA claim challenging Klemm’s suit within the one-year limitations period. By knowingly ar- ranging for service of the complaint against Rotkiske at an address where Rotkiske no longer lived, and filing a false affidavit of service, Rotkiske alleges, Klemm engaged in fraud. Such fraud, I would hold, warrants application of the discovery rule to time Rotkiske’s FDCPA suit from the date he learned of the default judgment against him. As today’s decision recognizes, see ante, at 6–7, this Court long ago “adopted as its own the old chancery rule that where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute [of limitations] does not begin to run until the fraud is discovered.” Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946) (internal quotation marks omitted). See also Bailey v. Glover, 21 Wall. 342, 347 (1875) (“[W]hen the object of the suit is to obtain relief against a fraud, the bar of the statute does not commence to run until the fraud is discovered or becomes known to the party injured by it.”). Like the general discovery rule that lower courts have “appl[ied] . . . when a statute is silent on the issue” of a claim’s accrual, TRW Inc., 534 U.S., at 27 (quoting Rotella v. Wood, 528 U.S. 549, 555 (2000)), the fraud-based discovery rule operates as a statutory pre- sumption “read into every federal statute of limitation,” Holmberg, 327 U.S., at 397. This circumscribed rule is dis- tinct from the general discovery rule in that it governs only “case[s] of fraud.” Merck & Co. v. Reynolds, 559 U.S. 633, 644 (2010). Unlike the general discovery rule, there is no reason to believe the FDCPA displaced the fraud-based dis- covery rule. The Court does not hold otherwise. The fraud-based discovery rule has a thrust different from equitable tolling.* “Equitable tolling” describes a doc- trine that pauses, or “tolls,” a statutory limitations period —————— *The two doctrines are often blended or confused. See Klehr v. A. O. Cite as: 589 U. S. ____ (2019) 3 Opinion of GINSBURG, J. after it has commenced. Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014). A litigant qualifies for equitable tolling only if he establishes “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circum- stance stood in his way and prevented timely filing.” Me- nominee Tribe of Wis. v. United States, 577 U. S. __, __ (2016) (slip op., at 5) (internal quotation marks omitted). For example, in Burnett v. New York Central R. Co., 380 U.S. 424 (1965), a plaintiff filed an action under the Fed- eral Employers’ Liability Act (FELA) in Ohio state court, alleging that he sustained a workplace injury just under three years earlier. Ibid. Several months later, the state court dismissed the suit for improper venue under state law. Id., at 425. The plaintiff promptly brought an identi- cal action in federal district court. That court dismissed the action on the ground that the FELA’s three-year statute of limitations began to run when the plaintiff was injured and had expired while his state-court action was pending. Ibid. This Court reversed. Id., at 436. Yes, the limitations period began to run on the date of the plaintiff’s injury. But, the Court held, the clock tolled during the pendency of the plaintiff’s state-court suit. Ibid. Subtracting the time con- sumed by the state-court suit, the plaintiff’s federal action was timely. Id., at 426, 434–436. By contrast, the fraud-based discovery rule sets the time —————— Smith Corp., 521 U.S. 179, 192 (1997). The Court has sometimes re- ferred to Bailey v. Glover, 21 Wall. 342 (1875), and Holmberg v. Arm- brecht, 327 U.S. 392 (1946), as equitable tolling decisions. See Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363 (1991); Lozano v. Montoya Alvarez, 572 U.S. 1, 10–11 (2014). And it has described Holmberg as “stand[ing] for the proposition that equity tolls the statute of limitations in cases of fraud or concealment.” TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001). But as this Court recently clarified, each doctrine has an independent office. See Gabelli v. SEC, 568 U.S. 442, 447, n. 2, 449 (2013) (addressing whether application of the fraud- based discovery rule was appropriate after acknowledging that the plain- tiff had expressly waived equitable tolling). 4 ROTKISKE v. KLEMM Opinion of GINSBURG, J. at which a claim accrues, i.e., the time when the statute of limitations commences to run. See Merck & Co., 559 U.S., at 644–645. It is “an exception to the standard rule” that “a claim accrues when the plaintiff has a complete and present cause of action.” Gabelli v. SEC, 568 U.S. 442, 448–449 (2013) (internal quotation marks omitted). Accordingly, when a plaintiff is “injured by fraud . . . ‘the bar of the stat- ute does not begin to run until the fraud is discovered.’ ” Holmberg, 327 U.S., at 397 (quoting Bailey, 21 Wall., at 348). For example, in Exploration Co. v. United States, 247 U.S. 435 (1918), a company had unlawfully procured land from the United States through a series of fraudulent trans- actions in 1902. Id., at 437, 438. The parties involved in the transactions successfully concealed the scheme until 1909. Ibid. When the Government brought suit to void the transactions, the company raised the six-year statute of limitations as a defense. Id., at 445. Applying the fraud- based discovery rule, the Court held that the limitations pe- riod began to run only upon the Government’s discovery of the fraud. Id., at 449. The suit was filed within six years of that date and was therefore timely. Ibid. I do not agree that Rotkiske failed to preserve a fraud- based discovery rule argument in the Court of Appeals. See ante, at 7. Rotkiske did raise the issue; he argued that “[a]t the very least, . . . the discovery rule applies to [FDCPA] claims based on false or misleading misrepresentations or other self-concealing conduct.” Supp. Brief for Appellant in No. 16–1668 (CA3), p.13 (citing Bailey, 21 Wall., at 350). The Court of Appeals apparently declined to address that argument because Rotkiske had failed to raise “equitable tolling” in his appellate briefs. 890 F.3d 422, 428–429, and n. 5 (CA3 2018). But failure to raise “equitable tolling” should pose no obstacle to determining whether the discrete fraud-based discovery rule applies to Rotkiske’s claim. Nor do I agree that Rotkiske forfeited the issue by not Cite as: 589 U. S. ____ (2019) 5 Opinion of GINSBURG, J. raising it in his petition for certiorari. See ante, at 7. Gen- erously read, Rotkiske asked whether a discovery rule of any kind applies to the FDCPA’s one-year statute of limita- tions. While hardly a model of the deft pleader’s art, the petition for certiorari stated that Rotkiske did not learn of Klemm’s debt-collection suit and default judgment until long after their occurrence because of the “intended re- service [of Klemm’s complaint] at a known incorrect address.” Pet. for Cert. 8. His brief on the merits in this Court noted: “Petitioner is not advocating that the Court adopt a gener- ally applicable discovery rule.” Brief for Petitioner 16, n.16. His reply brief was more precise: “The default judgment ob- tained by [Klemm] at issue in [Rotkiske’s FDCPA com- plaint] was made possible by the filing of a fraudulent Affi- davit of Service.” Reply Brief 15. Indeed, the Court recognizes that Rotkiske’s arguments included “a fraud- specific discovery rule as an equitable doctrine.” Ante, at 4. Rotkiske’s FDCPA complaint, in my view, falls comfort- ably within the fraud-based discovery rule’s scope. See Brief for Samuel L. Bray et al. as Amici Curiae 12–14. Rotkiske alleged that Klemm engaged in “sewer service”—intention- ally serving process in a manner designed to prevent Rot- kiske from learning of the collection suit. Klemm did so, according to Rotkiske, in order to ensure that Klemm’s un- timely suit would result in a default judgment that would remain undiscovered until time to oppose that judgment, and to commence an FDCPA suit, ran out. Though Rot- kiske did not allege that “sewer service” is itself a practice independently proscribed by the FDCPA, such service is nonetheless a fraudulent abuse that should trigger the fraud-based discovery rule. See Reply Brief 15–17. The Government urges that the fraud-based discovery rule applies only when the fraudulent conduct is itself the basis for the plaintiff’s claim for relief. Brief for United States as Amicus Curiae 31–32. That is not so of Rotkiske’s 6 ROTKISKE v. KLEMM Opinion of GINSBURG, J. complaint, the Government observes, for his claim is prem- ised on the assertion that Klemm’s debt-collection suit was time barred. I do not view the fraud-based discovery rule as so con- fined and would hold that the rule governs if either the con- duct giving rise to the claim is fraudulent, or if fraud infects the manner in which the claim is presented. That under- standing of the rule is consistent with its equitable roots and historic rationale. Nearly two centuries ago, Justice Story explained the rule this way: “[E]very statute is to be expounded reasonably, so as to suppress, and not to extend, the mischief[s ] which it was designed to cure.” Sherwood v. Sutton, 21 F. Cas. 1303, 1307 (No. 12,782) (CC NH 1828). Because statutes of limitations “preven[t] fraudulent and unjust claims from starting up at great distances of time,” a limitations provision “ought not . . . be so construed, as to become an instrument to encourage fraud, if it admits of any other reasonable interpretation.” Ibid. “[C]ases of fraud, therefore, form an implied exception [to a limitations prescription],” so as not to “permi[t] the defendant to avail himself of his own fraud.” Ibid. This Court expressed the same understanding of the fraud-based discovery rule in Bailey. There, the Court stated: “To hold that by concealing a fraud, or by committing a fraud in a manner that it con- cealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful and secure.” 21 Wall., at 349. Klemm allegedly employed fraudulent service to obtain and conceal the default judgment that precipitated Rot- kiske’s FDCPA claim. That allegation, if proved, should suffice, under the fraud-based discovery rule, to permit ad- judication of Rotkiske’s claim on its merits. * * * Cite as: 589 U. S. ____ (2019) 7 Opinion of GINSBURG, J. For the reasons stated, I would vacate the judgment of the Court of Appeals for the Third Circuit and remand the case for further proceedings

Like my colleagues in both the majority and the partial dissent, I agree that 15 U.S. C. is a one-year statute of limitations that typically begins to run when the alleged violation “occurs,” not when the plaintiff discovers it. Compare ante, at 1, with post, at 1 (GINSBURG, J., dis- senting in part and from judgment). The only daylight be- tween the majority and dissenting opinions is whether petitioner Rotkiske forfeited reliance on an “equitable, fraud- specific discovery rule” that forgives otherwise untimely fil- ings. Ante, at 6–7; cf. post, at 4–5. Because I believe the Court of Appeals fairly found that Rotkiske failed to pre- serve an equitable argument of this sort, see 429, and n. 5 (CA3 2018), and because the Court did not grant certiorari on that doctrine, I join the majority opinion. I write separately to emphasize that this fraud-specific equitable principle is not the “ ‘bad wine of recent vintage’ ” of which my colleagues speak. Ante, at 5 (Scalia, J., concurring in judgment)). Rather, the Court has long “recogni[zed]” and applied this “historical exception for suits based on fraud.” at ; see also (not- ing equitable discovery rule “in cases of fraud or conceal- ment”); ; Ex- ploration ; 2 ROTKISKE v. KLEMM SOTOMAYOR, J., concurring v. Glover, ; 21 F. Cas. 1303 (No. 12,782) (CC NH 1828) (Story, J.). Nothing in today’s decision prevents parties from invoking that well- settled doctrine. Cite as: 589 U. S. (2019) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES No. 18–328 KEVIN C. ROTKISKE, PETITIONER v. PAUL KLEMM, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [December 10, 2019] JUSTICE GINSBURG, dissenting from the opinion in part and from the judgment. Generally, I agree with the Court, the “discovery rule” does not apply to the one-year statute of limitations con- tained in the Fair Debt Collection Practices Act (FDCPA), 15 U.S. C. That limitations period ordinarily commences to run on the date “the violation occurs,” See TRW But the ordinarily applicable time trigger does not apply when fraud on the creditor’s part accounts for the debtor’s failure to sue within one year of the creditor’s violation. at (Scalia, J., concurring in judgment). See also (ma- jority opinion). True, in the case at hand, debtor Rotkiske’s FDCPA claim does not rest on any fraud inhering in the claim creditor Klemm stated in his debt-collection suit. Rather, debtor Rotkiske alleges that creditor Klemm commenced the debt- collection suit too late. But Rotkiske was disarmed from asserting that defense in Klemm’s suit, for he never re- ceived notice of the suit and therefore had no opportunity to defend against it. For the same reason, he was stopped 2 ROTKISKE v. KLEMM Opinion of GINSBURG, J. from raising an FDCPA claim challenging Klemm’s suit within the one-year limitations period. By knowingly ar- ranging for service of the complaint against Rotkiske at an address where Rotkiske no longer lived, and filing a false affidavit of service, Rotkiske alleges, Klemm engaged in fraud. Such fraud, I would hold, warrants application of the discovery rule to time Rotkiske’s FDCPA suit from the date he learned of the default judgment against him. As today’s decision recognizes, see ante, at 6–7, this Court long ago “adopted as its own the old chancery rule that where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute [of limitations] does not begin to run until the fraud is discovered.” v. Armbrecht, (internal quotation marks omitted). See also (“[W]hen the object of the suit is to obtain relief against a fraud, the bar of the statute does not commence to run until the fraud is discovered or becomes known to the party injured by it.”). Like the general discovery rule that lower courts have “appl[ied] when a statute is silent on the issue” of a claim’s accrual, TRW 534 U.S., ), the fraud-based discovery rule operates as a statutory pre- sumption “read into every federal statute of limitation,” 3 U.S., at This circumscribed rule is dis- tinct from the general discovery rule in that it governs only “case[s] of fraud.” Merck & 644 (2010). Unlike the general discovery rule, there is no reason to believe the FDCPA displaced the fraud-based dis- covery rule. The Court does not hold otherwise. The fraud-based discovery rule has a thrust different from equitable tolling.* “Equitable tolling” describes a doc- trine that pauses, or “tolls,” a statutory limitations period —————— *The two doctrines are often blended or confused. See Klehr v. A. O. Cite as: 589 U. S. (2019) 3 Opinion of GINSBURG, J. after it has commenced. 572 U.S. 1, 10 A litigant qualifies for equitable tolling only if he establishes “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circum- stance stood in his way and prevented timely filing.” Me- nominee Tribe of Wis. v. United States, 577 U. S. (2016) (slip op., at 5) (internal quotation marks omitted). For example, in Burnett v. New York Central R. Co., 380 U.S. 424 (1965), a plaintiff filed an action under the Fed- eral Employers’ Liability Act (FELA) in Ohio state court, alleging that he sustained a workplace injury just under three years earlier. Several months later, the state court dismissed the suit for improper venue under state law. The plaintiff promptly brought an identi- cal action in federal district court. That court dismissed the action on the ground that the FELA’s three-year statute of limitations began to run when the plaintiff was injured and had expired while his state-court action was pending. This Court reversed. Yes, the limitations period began to run on the date of the plaintiff’s injury. But, the Court held, the clock tolled during the pendency of the plaintiff’s state-court suit. Subtracting the time con- sumed by the state-court suit, the plaintiff’s federal action was timely. 434–436. By contrast, the fraud-based discovery rule sets the time —————— Smith Corp., The Court has sometimes re- ferred to and v. Arm- brecht, as equitable tolling decisions. See Lampf, Pleva, Lipkind, Prupis & (1991); And it has described as “stand[ing] for the proposition that equity tolls the statute of limitations in cases of fraud or concealment.” TRW v. Andrews, But as this Court recently clarified, each doctrine has an independent office. See 568 U.S. 442, 447, n. 2, 449 (2013) (addressing whether application of the fraud- based discovery rule was appropriate after acknowledging that the plain- tiff had expressly waived equitable tolling). 4 ROTKISKE v. KLEMM Opinion of GINSBURG, J. at which a claim accrues, i.e., the time when the statute of limitations commences to run. See Merck & Co., 559 U.S., at 644–645. It is “an exception to the standard rule” that “a claim accrues when the plaintiff has a complete and present cause of action.” 448–449 (2013) (internal quotation marks omitted). Accordingly, when a plaintiff is “injured by fraud ‘the bar of the stat- ute does not begin to run until the fraud is discovered.’ ” 3 U.S., at (quoting 21 Wall., at 348). For example, in Exploration 247 U.S. 435 a company had unlawfully procured land from the United States through a series of fraudulent trans- actions in 1902. at 4, 438. The parties involved in the transactions successfully concealed the scheme until 1909. When the Government brought suit to void the transactions, the company raised the six-year statute of limitations as a defense. Applying the fraud- based discovery rule, the Court held that the limitations pe- riod began to run only upon the Government’s discovery of the fraud. The suit was filed within six years of that date and was therefore timely. I do not agree that Rotkiske failed to preserve a fraud- based discovery rule argument in the Court of Appeals. See ante, at 7. Rotkiske did raise the issue; he argued that “[a]t the very least, the discovery rule applies to [FDCPA] claims based on false or misleading misrepresentations or other self-concealing conduct.” Supp. Brief for Appellant in No. 16–1668 (CA3), p.13 (citing ). The Court of Appeals apparently declined to address that argument because Rotkiske had failed to raise “equitable tolling” in his appellate briefs. 428–429, and n. 5 (CA3 2018). But failure to raise “equitable tolling” should pose no obstacle to determining whether the discrete fraud-based discovery rule applies to Rotkiske’s claim. Nor do I agree that Rotkiske forfeited the issue by not Cite as: 589 U. S. (2019) 5 Opinion of GINSBURG, J. raising it in his petition for certiorari. See ante, at 7. Gen- erously read, Rotkiske asked whether a discovery rule of any kind applies to the FDCPA’s one-year statute of limita- tions. While hardly a model of the deft pleader’s art, the petition for certiorari stated that Rotkiske did not learn of Klemm’s debt-collection suit and default judgment until long after their occurrence because of the “intended re- service [of Klemm’s complaint] at a known incorrect address.” Pet. for Cert. 8. His brief on the merits in this Court noted: “Petitioner is not advocating that the Court adopt a gener- ally applicable discovery rule.” Brief for Petitioner 16, n.16. His reply brief was more precise: “The default judgment ob- tained by [Klemm] at issue in [Rotkiske’s FDCPA com- plaint] was made possible by the filing of a fraudulent Affi- davit of Service.” Reply Brief 15. Indeed, the Court recognizes that Rotkiske’s arguments included “a fraud- specific discovery rule as an equitable doctrine.” Ante, at 4. Rotkiske’s FDCPA complaint, in my view, falls comfort- ably within the fraud-based discovery rule’s scope. See Brief for Samuel L. Bray et al. as Amici Curiae 12–14. Rotkiske alleged that Klemm engaged in “sewer service”—intention- ally serving process in a manner designed to prevent Rot- kiske from learning of the collection suit. Klemm did so, according to Rotkiske, in order to ensure that Klemm’s un- timely suit would result in a default judgment that would remain undiscovered until time to oppose that judgment, and to commence an FDCPA suit, ran out. Though Rot- kiske did not allege that “sewer service” is itself a practice independently proscribed by the FDCPA, such service is nonetheless a fraudulent abuse that should trigger the fraud-based discovery rule. See Reply Brief 15–17. The Government urges that the fraud-based discovery rule applies only when the fraudulent conduct is itself the basis for the plaintiff’s claim for relief. Brief for United States as Amicus Curiae 31–32. That is not so of Rotkiske’s 6 ROTKISKE v. KLEMM Opinion of GINSBURG, J. complaint, the Government observes, for his claim is prem- ised on the assertion that Klemm’s debt-collection suit was time barred. I do not view the fraud-based discovery rule as so con- fined and would hold that the rule governs if either the con- duct giving rise to the claim is fraudulent, or if fraud infects the manner in which the claim is presented. That under- standing of the rule is consistent with its equitable roots and historic rationale. Nearly two centuries ago, Justice Story explained the rule this way: “[E]very statute is to be expounded reasonably, so as to suppress, and not to extend, the mischief[s ] which it was designed to cure.” Sherwood v. Sutton, (No. 12,782) (CC NH 1828). Because statutes of limitations “preven[t] fraudulent and unjust claims from starting up at great distances of time,” a limitations provision “ought not be so construed, as to become an instrument to encourage fraud, if it admits of any other reasonable interpretation.” “[C]ases of fraud, therefore, form an implied exception [to a limitations prescription],” so as not to “permi[t] the defendant to avail himself of his own fraud.” This Court expressed the same understanding of the fraud-based discovery rule in There, the Court stated: “To hold that by concealing a fraud, or by committing a fraud in a manner that it con- cealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it, is to make the law which was designed to prevent fraud the means by which it is made successful and secure.” 21 Wall., at 349. Klemm allegedly employed fraudulent service to obtain and conceal the default judgment that precipitated Rot- kiske’s FDCPA claim. That allegation, if proved, should suffice, under the fraud-based discovery rule, to permit ad- judication of Rotkiske’s claim on its merits. * * * Cite as: 589 U. S. (2019) 7 Opinion of GINSBURG, J. For the reasons stated, I would vacate the judgment of the Court of Appeals for the Third Circuit and remand the case for further proceedings

Justice Kennedy

majority

Slack v. McDaniel

2000-04-26

https://www.courtlistener.com/opinion/118359/slack-v-mcdaniel/

https://www.courtlistener.com/api/rest/v3/clusters/118359/

1999-053

We are called upon to resolve a series of issues regarding the law of habeas corpus, including questions of the proper application of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). We hold as follows: *478 First, when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U.S. C. § 2253(c) (1994 ed., Supp. III). This is true whether the habeas corpus petition was filed in the district court before or after AEDPA's effective date. Second, when the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue (and an appeal of the district court's order may be taken) if the prisoner shows, at least, 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. Third, a habeas petition which is filed after an initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a "second or successive" petition as that term is understood in the habeas corpus context. Federal courts do, however, retain broad powers to prevent duplicative or unnecessary litigation. I Petitioner Antonio Slack was convicted of second-degree murder in Nevada state court in 1990. His direct appeal was unsuccessful. On November 27, 1991, Slack filed a petition for writ of habeas corpus in federal court under 28 U.S. C. § 2254. Early in the federal proceeding, Slack decided to litigate claims he had not yet presented to the Nevada courts. He could not raise the claims in federal court because, under the exhaustion of remedies rule explained in Rose v. Lundy, 455 U.S. 509 (1982), a federal court was required to dismiss a petition presenting claims not yet litigated *479 in state court. Accordingly, Slack filed a motion seeking to hold his federal petition in abeyance while he returned to state court to exhaust the new claims. Without objection by the State, the District Court ordered the habeas petition dismissed "without prejudice." The order, dated February 19, 1992, further stated, "Petitioner is granted leave to file an application to renew upon exhaustion of all State remedies." Slack v. Director, Nev. Dept. of Prisons, No. CV—N-91-561 (D. Nev.), App. 22. After an unsuccessful round of state postconviction proceedings, Slack filed a new federal habeas petition on May 30, 1995. The District Court later appointed counsel, directing him to file an amended petition or a notice of intention to proceed with the current petition. On December 24, 1997, counsel filed an amended petition presenting 14 claims for relief. The State moved to dismiss the petition. As its first ground, the State argued that Slack's petition must be dismissed because it was a mixed petition, that is to say a petition raising some claims which had been presented to the state courts and some which had not. As its second ground, the State cited Farmer v. McDaniel, 98 F.3d 1548 (CA9 1996), and contended that, under the established rule in the Ninth Circuit, claims Slack had not raised in his 1991 federal habeas petition must be dismissed as an abuse of the writ. The District Court granted the State's motion. First, the court relied on Farmer to hold that Slack's 1995 petition was "[a] second or successive petition," even though his 1991 petition had been dismissed without prejudice for a failure to exhaust state remedies. The court then invoked the abuse of the writ doctrine to dismiss with prejudice the claims Slack had not raised in the 1991 petition. This left Slack with four claims, each having been raised in the 1991 petition; but one of these, the court concluded, had not yet been presented to the state courts. The court therefore dismissed Slack's remaining claims because they were in a *480 mixed petition. Here, Slack seeks to challenge the dismissal of claims as abusive; he does not contend that all claims presented in the amended petition were exhausted. The District Court's dismissal order was filed March 30, 1998. On April 29, 1998, Slack filed in the District Court a pleading captioned "Notice of Appeal." Consistent with Circuit practice, the court treated the notice as an application for a certificate of probable cause (CPC) under the preAEDPA version of 28 U.S. C. § 2253; and it denied a CPC, concluding the appeal would raise no substantial issue. The Court of Appeals likewise denied a CPC. No. CV-95-194 (CA9, July 7, 1998), App. 197. As a result, Slack was not permitted to take an appeal of the order dismissing his petition. We granted certiorari. 525 U.S. 1138 (1999). Slack contends that he is entitled to an appeal of the dismissal of his petition, arguing that the District Court was wrong to hold that his 1995 petition was "second or successive." We agree that Slack's 1995 petition was not second or successive, but first we must resolve two preliminary questions. II Before AEDPA, appellate review of the dismissal of a habeas petition was governed by a version of 28 U.S. C. § 2253 enacted in 1948. Act of June 25, 1948, 62 Stat. 967. The statute provided no appeal could be taken from the final order in a habeas corpus proceeding "unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause." Ibid. The statute did not explain the standards for the issuance of a CPC, but the Court established what a prisoner must show to obtain a CPC in Barefoot v. Estelle, 463 U.S. 880 (1983): "a substantial showing of the denial of a federal right." Id., at 893 (citation and brackets omitted). Effective April 24, 1996, AEDPA amended § 2253. As relevant here, AEDPA added subsection (c), which provides: *481 "(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— "(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or "(B) the final order in a proceeding under section 2255. "(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. "(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2)." 28 U.S. C. § 2253(c) (1994 ed., Supp. III). The issue we consider at the outset is whether the pre- or post-AEDPA version of § 2253 controls Slack's right to appeal. In Lindh v. Murphy, 521 U.S. 320 (1997), the Court held that AEDPA's amendments to 28 U.S. C. § 2254, the statute governing entitlement to habeas relief in the district court, applied to cases filed after AEDPA's effective date. 521 U.S., at 327. Slack contends that Lindh means § 2253(c) does not apply to him because his case was commenced in the District Court pre-AEDPA. That position is incorrect. For purposes of implementing the holding in Lindh, it must be recognized that § 2254 is directed to proceedings in the district courts while § 2253 is directed to proceedings in the appellate courts. Just as § 2254 applies to cases filed in the trial court post-AEDPA, § 2253 applies to appellate proceedings initiated post-AEDPA. True, Lindh requires a court of appeals to apply pre-AEDPA law in reviewing the trial court's ruling, for cases commenced there pre-AEDPA; but post-AEDPA law governs the right to appeal in cases such as the one now before us. While an appeal is a continuation of the litigation started in the trial court, it is a distinct step. Hohn v. United *482 States, 524 U.S. 236, 241 (1998); Mackenzie v. A. Engelhard & Sons Co., 266 U.S. 131 (1924). We have described proceedings in the courts of appeals as "appellate cases." E. g., Order of Apr. 30, 1991, 500 U.S. 1009 (amendments to Federal Rules of Appellate Procedure "shall govern all proceedings in appellate cases thereafter commenced"). Under AEDPA, an appellate case is commenced when the application for a COA is filed. Hohn, supra, at 241. When Congress instructs us (as Lindh says it has) that application of a statute is triggered by the commencement of a case, the relevant case for a statute directed to appeals is the one initiated in the appellate court. Thus, § 2253(c) governs appellate court proceedings filed after AEDPA's effective date. We see no indication that Congress intended to tie application of the provisions to the date a petition was filed in the district court. The COA statute establishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal. Hohn, supra, at 248; cf. Lindh, supra, at 327. Because Slack sought appellate review two years after AEDPA's effective date, § 2253(c) governs his right to appeal. We further note that we applied § 2253 in our post-Lindh decision in Hohn, a case which arrived in the same posture as this case. Like Slack, Hohn argued § 2253(c) did not apply because his petition had been filed in the District Court before AEDPA's effective date. Brief for Petitioner in Hohn v. United States, O. T. 1997, No. 96-8986, pp. 40-44. Though our opinion did not discuss whether § 2253(c) applied to Hohn, we would have had no reason to reach the issue we did resolve, that we had statutory certiorari jurisdiction to review the denial of a COA, if AEDPA did not apply at all. Our disposition today is consistent with Hohn. AEDPA governs the conditions of Slack's appeal, and so he was required to seek a COA to obtain appellate review of the dismissal of his habeas petition. *483 III As AEDPA applied, the Court of Appeals should have treated the notice of appeal as an application for a COA. Fed. Rule App. Proc. 22(b); Fed. Rule Civ. Proc. 8(f); see also Hohn, supra, at 240. To evaluate whether the Court of Appeals should have granted a COA, we must determine what the habeas applicant must show to satisfy the requirements of § 2253(c). Citing § 2253(c)'s requirement that a COA may issue only upon the "substantial showing of the denial of a constitutional right," the State contends that no appeal can be taken if the District Court relies on procedural grounds to dismiss the petition. According to the State, only constitutional rulings may be appealed. Under this view, a state prisoner who can demonstrate he was convicted in violation of the Constitution and who can demonstrate that the district court was wrong to dismiss the petition on procedural grounds would be denied relief. We reject this interpretation. The writ of habeas corpus plays a vital role in protecting constitutional rights. In setting forth the preconditions for issuance of a COA under § 2253(c), Congress expressed no intention to allow trial court procedural error to bar vindication of substantial constitutional rights on appeal. Our conclusion follows from AEDPA's present provisions, which incorporate earlier habeas corpus principles. Under AEDPA, a COA may not issue unless "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S. C. § 2253(c) (1994 ed., Supp. III). Except for substituting the word "constitutional" for the word "federal," § 2253 is a codification of the CPC standard announced in Barefoot v. Estelle, 463 U. S., at 894. Congress had before it the meaning Barefoot had given to the words it selected; and we give the language found in § 2253(c) the meaning ascribed it in Barefoot, with due note for the substitution of the word "constitutional." See Williams v. Taylor, ante, at 434. To obtain a COA under § 2253(c), a habeas prisoner *484 must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "`adequate to deserve encouragement to proceed further.' " Barefoot, supra, at 893, and n. 4 ("sum[ming] up" the "`substantial showing' " standard). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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. This construction gives meaning to Congress' requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the "substantial showing" standard provided in Barefoot, supra, at 893, and n. 4, and adopted by Congress in AEDPA. Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Determining whether a COA should issue where the petition was dismissed on procedural grounds has two components, *485 one directed at the underlying constitutional claims and one directed at the district court's procedural holding. Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal. Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments. The recognition that 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," Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring), allows and encourages the court to first resolve procedural issues. The Ashwander rule should inform the court's discretion in this regard. In this case, Slack did not attempt to make a substantial showing of the denial of a constitutional right, instead arguing only that the District Court's procedural rulings were wrong. We will not attempt to determine whether Slack could make the required showing of constitutional error, for the issue was neither briefed nor presented below because of the view that the CPC, rather than COA, standards applied. It will be necessary to consider the matter upon any remand for further proceedings. We will, however, address the second component of the § 2253(c) inquiry, whether jurists of reason could conclude that the District Court's dismissal on procedural grounds was debatable or incorrect. The issue has been discussed in the briefs presented to us; it is the question upon which we granted certiorari; and its resolution would end the case, were we to decide the matter in the State's favor. The District Court dismissed claims Slack failed to raise in his 1991 petition based on its conclusion that Slack's 1995 petition was a second or successive habeas petition. This conclusion was wrong. A habeas petition filed in the district *486 court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition. Slack commenced this habeas proceeding in the District Court in 1995, before AEDPA's effective date. Because the question whether Slack's petition was second or successive implicates his right to relief in the trial court, pre-AEDPA law governs, see Lindh v. Murphy, 521 U.S. 320 (1997), though we do not suggest the definition of second or successive would be different under AEDPA. See Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (using pre-AEDPA law to interpret AEDPA's provision governing "second or successive habeas applications"). The parties point us to Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts as controlling the issue. The Rule incorporates our prior decisions regarding successive petitions and abuse of the writ, McCleskey v. Zant, 499 U.S. 467, 487 (1991), and states: "A second or successive petition [alleging new and different grounds] may be dismissed if . . . the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." As the text demonstrates, Rule 9(b) applies only to "a second or successive petition." The phrase "second or successive petition" is a term of art given substance in our prior habeas corpus cases. The Court's decision in Rose v. Lundy, 455 U. S., at 510, instructs us in reaching our understanding of the term. Rose v. Lundy held that a federal district court must dismiss habeas corpus petitions containing both exhausted and unexhausted claims. The opinion, however, contemplated that the prisoner could return to federal court after the requisite exhaustion. Id., at 520 ("Those prisoners who . . . submit mixed petitions nevertheless are entitled to resubmit a petition with only exhausted claims or to exhaust the remainder of their claims"). It was only if a prisoner declined to return to state court and decided to proceed with his exhausted *487 claims in federal court that the possibility arose that a subsequent petition would be considered second or successive and subject to dismissal as an abuse of the writ. Id., at 520-521 (plurality opinion) ("[A] prisoner who decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions"). This understanding of the second or successive rule was confirmed two Terms ago when we wrote as follows: "[N]one of our cases . . . have ever suggested that a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition. A court where such a petition was filed could adjudicate these claims under the same standard as would govern those made in any other first petition." Stewart v. Martinez-Villareal, supra, at 644. We adhere to this analysis. A petition filed after a mixed petition has been dismissed under Rose v. Lundy before the district court adjudicated any claims is to be treated as "any other first petition" and is not a second or successive petition. The State contends that the prisoner, upon his return to federal court, should be restricted to the claims made in his initial petition. Neither Rose v. Lundy nor MartinezVillareal requires this result, which would limit a prisoner to claims made in a pleading that is often uncounseled, handwritten, and pending in federal court only until the State identifies one unexhausted claim. The proposed rule would bar the prisoner from raising nonfrivolous claims developed in the subsequent state exhaustion proceedings contemplated by the Rose dismissal, even though a federal court had yet to review a single constitutional claim. This result would be contrary to our admonition that the complete exhaustion rule is not to "trap the unwary pro se prisoner." Rose supra, at 520 (internal quotation marks omitted). It is instead more appropriate to treat the initial mixed petition *488 as though it had not been filed, subject to whatever conditions the court attaches to the dismissal. Rose v. Lundy dictated that, whatever particular claims the petition contained, none could be considered by the federal court. Slack's 1991 petition was dismissed under the procedure established in Rose v. Lundy. No claim made in Slack's 1991 petition was adjudicated during the three months it was pending in federal court. As such, the 1995 petition should not have been dismissed on the grounds that it was second or successive. Reasoning to the contrary found in the Court of Appeals' Farmer decision, rendered before MartinezVillareal, is incorrect. See also In re Turner, 101 F.3d 1323 (CA9 1997) (refusing to apply rules governing second or successive petitions to a petitioner whose prior habeas petition had been dismissed for failure to exhaust). Our view that established practice demonstrates that Slack's 1995 petition is not second or successive is confirmed as well by opinions of the Courts of Appeals which have addressed the point under similar circumstances. E. g., Carlson v. Pitcher, 137 F.3d 416, 420 (CA6 1998) ("We join with every other court to consider the question, and hold that a habeas petition filed after a previous petition has been dismissed on exhaustion grounds is not a `second or successive' petition"); Turner, supra; Christy v. Horn, 115 F.3d 201, 208 (CA3 1997); Dickinson v. Maine, 101 F.3d 791 (CA1 1996); Camarano v. Irvin, 98 F.3d 44, 45-46 (CA2 1996). The State complains that this rule is unfair. The filing of a mixed petition in federal court requires it to appear and to plead failure to exhaust. The petition is then dismissed without prejudice, allowing the prisoner to make a return trip through the state courts to exhaust new claims. The State expresses concern that, upon exhaustion, the prisoner would return to federal court but again file a mixed petition, causing the process to repeat itself. In this manner, the State contends, a vexatious litigant could inject undue delay into the collateral review process. To the extent the tactic *489 would become a problem, however, it can be countered without upsetting the established meaning of a second or successive petition. First, the State remains free to impose proper procedural bars to restrict repeated returns to state court for postconviction proceedings. Second, provisions of AEDPA may bear upon the question in cases to which the Act applies. AEDPA itself demonstrates that Congress may address matters relating to exhaustion and mixed petitions through means other than rules governing "second or successive" petitions. E. g., 28 U.S. C. § 2254(b)(2) (1994 ed., Supp. III). Third, the Federal Rules of Civil Procedure, applicable as a general matter to habeas cases, vest the federal courts with due flexibility to prevent vexatious litigation. As Slack concedes, in the habeas corpus context it would be appropriate for an order dismissing a mixed petition to instruct an applicant that upon his return to federal court he is to bring only exhausted claims. See Fed. Rules Civ. Proc. 41(a) and (b). Once the petitioner is made aware of the exhaustion requirement, no reason exists for him not to exhaust all potential claims before returning to federal court. The failure to comply with an order of the court is grounds for dismissal with prejudice. Fed. Rule Civ. Proc. 41(b). In this case, however, the initial petition was dismissed without condition and without prejudice. We reject the State's argument that refusing to give a new meaning to the established term "second or successive" opens the door to the abuses described. IV Slack has demonstrated that reasonable jurists could conclude that the District Court's abuse of the writ holding was wrong, for we have determined that a habeas petition filed after an initial petition was dismissed under Rose v. Lundy without an adjudication on the merits is not a "second or successive" petition. Whether Slack is otherwise entitled to the issuance of a COA is a question to be resolved first upon *490 remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Stevens, with whom Justice Souter and Justice Breyer join, concurring in part and concurring in the judgment.

We are called upon to resolve a series of issues regarding the law of habeas corpus, including questions of the proper application of the Antiterrorism and Effective Death Penalty Act of (AEDPA). We hold as follows: *478 First, when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, (the effective date of AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U.S. C. 2253(c) (1994 ed., Supp. III). This is true whether the habeas corpus petition was filed in the district court before or after AEDPA's effective Second, when the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue (and an appeal of the district court's order may be taken) if the prisoner shows, at least, 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. Third, a habeas petition which is filed after an initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a "second or successive" petition as that term is understood in the habeas corpus context. Federal courts do, however, retain broad powers to prevent duplicative or unnecessary litigation. I Petitioner Antonio Slack was convicted of second-degree murder in Nevada state court in 1990. His direct appeal was unsuccessful. On November 27, 1991, Slack filed a petition for writ of habeas corpus in federal court under 28 U.S. C. 2254. Early in the federal proceeding, Slack decided to litigate claims he had not yet presented to the Nevada courts. He could not raise the claims in federal court because, under the exhaustion of remedies rule explained in a federal court was required to dismiss a petition presenting claims not yet litigated *479 in state court. Accordingly, Slack filed a motion seeking to hold his federal petition in abeyance while he returned to state court to exhaust the new claims. Without objection by the State, the District Court ordered the habeas petition dismissed "without prejudice." The order, dated February 19, 1992, further stated, "Petitioner is granted leave to file an application to renew upon exhaustion of all State remedies." Slack v. Director, Nev. Dept. of Prisons, No. CV—N-91-561 (D. Nev.), App. 22. After an unsuccessful round of state postconviction proceedings, Slack filed a new federal habeas petition on May 30, 1995. The District Court later appointed counsel, directing him to file an amended petition or a notice of intention to proceed with the current petition. On December 24, counsel filed an amended petition presenting 14 claims for relief. The State moved to dismiss the petition. As its first ground, the State argued that Slack's petition must be dismissed because it was a mixed petition, that is to say a petition raising some claims which had been presented to the state courts and some which had not. As its second ground, the State cited and contended that, under the established rule in the Ninth Circuit, claims Slack had not raised in his 1991 federal habeas petition must be dismissed as an abuse of the writ. The District Court granted the State's motion. First, the court relied on Farmer to hold that Slack's 1995 petition was "[a] second or successive petition," even though his 1991 petition had been dismissed without prejudice for a failure to exhaust state remedies. The court then invoked the abuse of the writ doctrine to dismiss with prejudice the claims Slack had not raised in the 1991 petition. This left Slack with four claims, each having been raised in the 1991 petition; but one of these, the court concluded, had not yet been presented to the state courts. The court therefore dismissed Slack's remaining claims because they were in a *480 mixed petition. Here, Slack seeks to challenge the dismissal of claims as abusive; he does not contend that all claims presented in the amended petition were exhausted. The District Court's dismissal order was filed March 30, On April 29, Slack filed in the District Court a pleading captioned "Notice of Appeal." Consistent with Circuit practice, the court treated the notice as an application for a certificate of probable cause (CPC) under the preAEDPA version of 28 U.S. C. 2253; and it denied a CPC, concluding the appeal would raise no substantial issue. The Court of Appeals likewise denied a CPC. No. CV-95-194 App. 197. As a result, Slack was not permitted to take an appeal of the order dismissing his petition. We granted certiorari. Slack contends that he is entitled to an appeal of the dismissal of his petition, arguing that the District Court was wrong to hold that his 1995 petition was "second or successive." We agree that Slack's 1995 petition was not second or successive, but first we must resolve two preliminary questions. II Before AEDPA, appellate review of the dismissal of a habeas petition was governed by a version of 28 U.S. C. 2253 enacted in 1948. Act of June 25, 1948, The statute provided no appeal could be taken from the final order in a habeas corpus proceeding "unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause." The statute did not explain the standards for the issuance of a CPC, but the Court established what a prisoner must show to obtain a CPC in : "a substantial showing of the denial of a federal right." Effective April 24, AEDPA amended 2253. As relevant here, AEDPA added subsection (c), which provides: *481 "(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— "(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or "(B) the final order in a proceeding under section 2255. "(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. "(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2)." 28 U.S. C. 2253(c) (1994 ed., Supp. III). The issue we consider at the outset is whether the pre- or post-AEDPA version of 2253 controls Slack's right to appeal. In the Court held that AEDPA's amendments to 28 U.S. C. 2254, the statute governing entitlement to habeas relief in the district court, applied to cases filed after AEDPA's effective Slack contends that means 2253(c) does not apply to him because his case was commenced in the District Court pre-AEDPA. That position is incorrect. For purposes of implementing the holding in it must be recognized that 2254 is directed to proceedings in the district courts while 2253 is directed to proceedings in the appellate courts. Just as 2254 applies to cases filed in the trial court post-AEDPA, 2253 applies to appellate proceedings initiated post-AEDPA. True, requires a court of appeals to apply pre-AEDPA law in reviewing the trial court's ruling, for cases commenced there pre-AEDPA; but post-AEDPA law governs the right to appeal in cases such as the one now before us. While an appeal is a continuation of the litigation started in the trial court, it is a distinct step. ; We have described proceedings in the courts of appeals as "appellate cases." E. g., Order of Apr. 30, 1991, (amendments to Federal Rules of Appellate Procedure "shall govern all proceedings in appellate cases thereafter commenced"). Under AEDPA, an appellate case is commenced when the application for a COA is filed. at When Congress instructs us (as says it has) that application of a statute is triggered by the commencement of a case, the relevant case for a statute directed to appeals is the one initiated in the appellate court. Thus, 2253(c) governs appellate court proceedings filed after AEDPA's effective We see no indication that Congress intended to tie application of the provisions to the date a petition was filed in the district court. The COA statute establishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal. ; cf. Because Slack sought appellate review two years after AEDPA's effective date, 2253(c) governs his right to appeal. We further note that we applied 2253 in our post- decision in a case which arrived in the same posture as this case. Like Slack, argued 2253(c) did not apply because his petition had been filed in the District Court before AEDPA's effective Brief for Petitioner in v. United States, O. T. No. 96-8986, pp. 40-44. Though our opinion did not discuss whether 2253(c) applied to we would have had no reason to reach the issue we did resolve, that we had statutory certiorari jurisdiction to review the denial of a COA, if AEDPA did not apply at all. Our disposition today is consistent with AEDPA governs the conditions of Slack's appeal, and so he was required to seek a COA to obtain appellate review of the dismissal of his habeas petition. *483 III As AEDPA applied, the Court of Appeals should have treated the notice of appeal as an application for a COA. Fed. Rule App. Proc. 22(b); Fed. Rule Civ. Proc. 8(f); see also To evaluate whether the Court of Appeals should have granted a COA, we must determine what the habeas applicant must show to satisfy the requirements of 2253(c). Citing 2253(c)'s requirement that a COA may issue only upon the "substantial showing of the denial of a constitutional right," the State contends that no appeal can be taken if the District Court relies on procedural grounds to dismiss the petition. According to the State, only constitutional rulings may be appealed. Under this view, a state prisoner who can demonstrate he was convicted in violation of the Constitution and who can demonstrate that the district court was wrong to dismiss the petition on procedural grounds would be denied relief. We reject this interpretation. The writ of habeas corpus plays a vital role in protecting constitutional rights. In setting forth the preconditions for issuance of a COA under 2253(c), Congress expressed no intention to allow trial court procedural error to bar vindication of substantial constitutional rights on appeal. Our conclusion follows from AEDPA's present provisions, which incorporate earlier habeas corpus principles. Under AEDPA, a COA may not issue unless "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S. C. 2253(c) (1994 ed., Supp. III). Except for substituting the word "constitutional" for the word "federal," 2253 is a codification of the CPC standard announced in Congress had before it the meaning Barefoot had given to the words it selected; and we give the language found in 2253(c) the meaning ascribed it in Barefoot, with due note for the substitution of the word "constitutional." See Williams v. Taylor, ante, at 434. To obtain a COA under 2253(c), a habeas prisoner *484 must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "`adequate to deserve encouragement to proceed further.' " Barefoot, and n. 4 ("sum[ming] up" the "`substantial showing' " standard). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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. This construction gives meaning to Congress' requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the "substantial showing" standard provided in Barefoot, and n. 4, and adopted by Congress in AEDPA. Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Determining whether a COA should issue where the petition was dismissed on procedural grounds has two components, *485 one directed at the underlying constitutional claims and one directed at the district court's procedural holding. Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal. Each component of the 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments. The recognition that 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," allows and encourages the court to first resolve procedural issues. The Ashwander rule should inform the court's discretion in this regard. In this case, Slack did not attempt to make a substantial showing of the denial of a constitutional right, instead arguing only that the District Court's procedural rulings were wrong. We will not attempt to determine whether Slack could make the required showing of constitutional error, for the issue was neither briefed nor presented below because of the view that the CPC, rather than COA, standards applied. It will be necessary to consider the matter upon any remand for further proceedings. We will, however, address the second component of the 2253(c) inquiry, whether jurists of reason could conclude that the District Court's dismissal on procedural grounds was debatable or incorrect. The issue has been discussed in the briefs presented to us; it is the question upon which we granted certiorari; and its resolution would end the case, were we to decide the matter in the State's favor. The District Court dismissed claims Slack failed to raise in his 1991 petition based on its conclusion that Slack's 1995 petition was a second or successive habeas petition. This conclusion was wrong. A habeas petition filed in the district *486 court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition. Slack commenced this habeas proceeding in the District Court in 1995, before AEDPA's effective Because the question whether Slack's petition was second or successive implicates his right to relief in the trial court, pre-AEDPA law governs, see though we do not suggest the definition of second or successive would be different under AEDPA. See The parties point us to Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts as controlling the issue. The Rule incorporates our prior decisions regarding successive petitions and abuse of the writ, and states: "A second or successive petition [alleging new and different grounds] may be dismissed if the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." As the text demonstrates, Rule 9(b) applies only to "a second or successive petition." The phrase "second or successive petition" is a term of art given substance in our prior habeas corpus cases. The Court's decision in instructs us in reaching our understanding of the term. held that a federal district court must dismiss habeas corpus petitions containing both exhausted and unexhausted claims. The opinion, however, contemplated that the prisoner could return to federal court after the requisite exhaustion. It was only if a prisoner declined to return to state court and decided to proceed with his exhausted * claims in federal court that the possibility arose that a subsequent petition would be considered second or successive and subject to dismissal as an abuse of the writ. -521 ("[A] prisoner who decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions"). This understanding of the second or successive rule was confirmed two Terms ago when we wrote as follows: "[N]one of our cases have ever suggested that a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition. A court where such a petition was filed could adjudicate these claims under the same standard as would govern those made in any other first petition." We adhere to this analysis. A petition filed after a mixed petition has been dismissed under before the district court adjudicated any claims is to be treated as "any other first petition" and is not a second or successive petition. The State contends that the prisoner, upon his return to federal court, should be restricted to the claims made in his initial petition. Neither nor MartinezVillareal requires this result, which would limit a prisoner to claims made in a pleading that is often uncounseled, handwritten, and pending in federal court only until the State identifies one unexhausted claim. The proposed rule would bar the prisoner from raising nonfrivolous claims developed in the subsequent state exhaustion proceedings contemplated by the Rose dismissal, even though a federal court had yet to review a single constitutional claim. This result would be contrary to our admonition that the complete exhaustion rule is not to "trap the unwary pro se prisoner." Rose It is instead more appropriate to treat the initial mixed petition *488 as though it had not been filed, subject to whatever conditions the court attaches to the dismissal. dictated that, whatever particular claims the petition contained, none could be considered by the federal court. Slack's 1991 petition was dismissed under the procedure established in No claim made in Slack's 1991 petition was adjudicated during the three months it was pending in federal court. As such, the 1995 petition should not have been dismissed on the grounds that it was second or successive. Reasoning to the contrary found in the Court of Appeals' Farmer decision, rendered before MartinezVillareal, is incorrect. See also In re Our view that established practice demonstrates that Slack's 1995 petition is not second or successive is confirmed as well by opinions of the Courts of Appeals which have addressed the point under similar circumstances. E. g., ; ; ; The State complains that this rule is unfair. The filing of a mixed petition in federal court requires it to appear and to plead failure to exhaust. The petition is then dismissed without prejudice, allowing the prisoner to make a return trip through the state courts to exhaust new claims. The State expresses concern that, upon exhaustion, the prisoner would return to federal court but again file a mixed petition, causing the process to repeat itself. In this manner, the State contends, a vexatious litigant could inject undue delay into the collateral review process. To the extent the tactic *489 would become a problem, however, it can be countered without upsetting the established meaning of a second or successive petition. First, the State remains free to impose proper procedural bars to restrict repeated returns to state court for postconviction proceedings. Second, provisions of AEDPA may bear upon the question in cases to which the Act applies. AEDPA itself demonstrates that Congress may address matters relating to exhaustion and mixed petitions through means other than rules governing "second or successive" petitions. E. g., 28 U.S. C. 2254(b)(2) (1994 ed., Supp. III). Third, the Federal Rules of Civil Procedure, applicable as a general matter to habeas cases, vest the federal courts with due flexibility to prevent vexatious litigation. As Slack concedes, in the habeas corpus context it would be appropriate for an order dismissing a mixed petition to instruct an applicant that upon his return to federal court he is to bring only exhausted claims. See Fed. Rules Civ. Proc. 41(a) and (b). Once the petitioner is made aware of the exhaustion requirement, no reason exists for him not to exhaust all potential claims before returning to federal court. The failure to comply with an order of the court is grounds for dismissal with prejudice. Fed. Rule Civ. Proc. 41(b). In this case, however, the initial petition was dismissed without condition and without prejudice. We reject the State's argument that refusing to give a new meaning to the established term "second or successive" opens the door to the abuses described. IV Slack has demonstrated that reasonable jurists could conclude that the District Court's abuse of the writ holding was wrong, for we have determined that a habeas petition filed after an initial petition was dismissed under without an adjudication on the merits is not a "second or successive" petition. Whether Slack is otherwise entitled to the issuance of a COA is a question to be resolved first upon *490 remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Stevens, with whom Justice Souter and Justice Breyer join, concurring in part and concurring in the judgment.

Justice Stevens

concurring

Slack v. McDaniel

2000-04-26

https://www.courtlistener.com/opinion/118359/slack-v-mcdaniel/

https://www.courtlistener.com/api/rest/v3/clusters/118359/

1999-053

With respect to the issue resolved in Part II of the Court's opinion, I agree with the Courts of Appeals that have held that the pre-AEDPA version of 28 U.S. C. § 2253 governs the right to appeal with respect to an appeal noticed after the effective date of AEDPA in a habeas corpus proceeding commenced prior to that date. See Fuller v. Roe, 182 F.3d 699, 702 (CA9 1999) (per curiam); Crowell v. Walsh, 151 F.3d 1050, 1051-1052 (CADC 1998); Tejeda v. Dubois, 142 F.3d 18, 22, n. 4 (CA1 1998); Berrios v. United States, 126 F.3d 430, 431, n. 2 (CA2 1997); United States v. Kunzman, 125 F.3d 1363, 1364, n. 2 (CA10 1997); United States v. Skandier, 125 F.3d 178, 179-182 (CA3 1997); Hardwick v. Singletary, 122 F.3d 935, 936 (per curiam), vacated in part on other grounds, 126 F.3d 1312 (CA11 1997) (per curiam); Arredondo v. United States, 120 F.3d 639, 640 (CA6 1997); United States v. Carter, 117 F.3d 262, 264 (CA5 1997) (per curiam); but see Tiedeman v. Benson, 122 F.3d 518, 520-521 (CA8 1997). I do, however, join the balance of the Court's opinion and its judgment. Justice Scalia, with whom Justice Thomas joins, concurring in part and dissenting in part. I join the opinion of the Court, except for its discussion in Parts III and IV of whether Slack's postexhaustion petition was second or successive. I believe that the Court produces here, as it produced in a different respect in Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), see id., at 646 *491 (Scalia, J., dissenting), a distortion of the natural meaning of the term "second or successive." The opinion relies on Martinez-Villareal, together with Rose v. Lundy, 455 U.S. 509 (1982), to conclude that a prisoner whose federal petition is dismissed to allow exhaustion may return to federal court without having his later petition treated as second or successive, regardless of what claims it contains. Neither the holdings nor even the language of those opinions suggest that proposition. As for holdings: Martinez-Villareal did not even involve the issue of exhaustion, and so has no bearing upon the present case. The narrow holding of Rose v. Lundy was that a habeas petition containing both exhausted and unexhausted claims must be dismissed, but it can be fairly said to have embraced the proposition that the petitioner could return with the same claims after they all had been exhausted. This latter proposition could be thought to rest upon the theory that a petition dismissed for lack of exhaustion is a petition that never existed, so that any other later petition would not be second or successive. Or it could be thought to rest upon the theory that the later refiling of the original claims, all of them now exhausted, is just a renewal of the first petition, implicitly authorized by the dismissal to permit exhaustion. The former theory is counterfactual; the latter is quite plausible. The language the Court quotes from Rose and MartinezVillareal also does not justify the Court's mixed-petitionsdon't-count theory. The quotation from Rose says only that "`prisoners who . . . submit mixed petitions . . . are entitled to . . . exhaust the remainder of their claims. ` " Ante, at 486 (quoting Rose, supra, at 520 (emphasis added)). This does not suggest that they are entitled to add new claims, or to return, once again, without accomplishing the exhaustion that the court dismissed the petition to allow. And the quotation from Martinez-Villareal indicates only that when a prisoner whose habeas petition was dismissed for failure to exhaust state remedies "`then did exhaust those remedies' *492 " and refile in federal court, the court "`could adjudicate these claims under the same standard as would govern those made in any other first petition.' " Ante, at 487 (quoting Martinez-Villareal, 523 U. S., at 644 (emphasis added)). This does not require treating the later filed petition as a "first" petition regardless of whether it bears any resemblance to the petition initially filed. In fact, MartinezVillareal clearly recognized the potential significance of raising a new claim rather than merely renewing an old one: It held that a petition raising a claim of incompetence to be executed previously dismissed as premature was not second or successive, but expressly distinguished, and left open, the situation where the claim had not been raised in the earlier petition. See id., at 645, n. The State understandably fears the consequences of the Court's approach, which would allow federal petitions to be repeatedly filed and dismissed for lack of exhaustion, requiring the State repeatedly to appear and expend its resources, with no help in sight from supposed limitations on "second or successive" petitions. The Court reassuringly observes that this problem can be countered in other ways, without "upsetting the established meaning of a second or successive petition." Ante, at 489. But as discussed above, it is not "established" that a first petition ceases to be a first petition when it is dismissed to permit exhaustion. And though the problem of repetitive filings after dismissals for lack of exhaustion can of course be countered in other ways, so can the problem of repetitive filings for all other reasons. It happens to be the whole purpose of the "second or successive" provision to solve precisely that problem —directly checking the "vexatious litigant," ante, at 488, rather than hoping that the courts will use a patchwork of other provisions to achieve the same end. I do not disagree with the Court that district courts may be able to limit repeated filings through appropriate orders pursuant to Federal Rules of Civil Procedure 41(a) and (b). This burden on district courts would not be *493 necessary, however—and the States would not be remanded to reliance upon the discretion of district judges—if the limitation on "second or successive" petitions were given its natural meaning. Because I believe petitioner's inclusion of new and unexhausted claims in his postexhaustion petition rendered it second or successive, he is not entitled to a certificate of appealability, and I would affirm the decision of the Court of Appeals.

With respect to the issue resolved in Part II of the Court's opinion, I agree with the Courts of Appeals that have held that the pre-AEDPA version of 28 U.S. C. 2253 governs the right to appeal with respect to an appeal noticed after the effective date of AEDPA in a habeas corpus proceeding commenced prior to that date. See ; ; ; ; United ; United ; vacated in part on other grounds, ; ; United ; but see I do, however, join the balance of the Court's opinion and its judgment. Justice Scalia, with whom Justice Thomas joins, concurring in part and dissenting in part. I join the opinion of the Court, except for its discussion in Parts III and IV of whether Slack's postexhaustion petition was second or successive. I believe that the Court produces here, as it produced in a different respect in see at 646 *491 (Scalia, J., dissenting), a distortion of the natural meaning of the term "second or successive." The opinion relies on together with to conclude that a prisoner whose federal petition is dismissed to allow exhaustion may return to federal court without having his later petition treated as second or successive, regardless of what claims it contains. Neither the holdings nor even the language of those opinions suggest that proposition. As for holdings: did not even involve the issue of exhaustion, and so has no bearing upon the present case. The narrow holding of was that a habeas petition containing both exhausted and unexhausted claims must be dismissed, but it can be fairly said to have embraced the proposition that the petitioner could return with the same claims after they all had been exhausted. This latter proposition could be thought to rest upon the theory that a petition dismissed for lack of exhaustion is a petition that never existed, so that any other later petition would not be second or successive. Or it could be thought to rest upon the theory that the later refiling of the original claims, all of them now exhausted, is just a renewal of the first petition, implicitly authorized by the dismissal to permit exhaustion. The former theory is counterfactual; the latter is quite plausible. The language the Court quotes from Rose and MartinezVillareal also does not justify the Court's mixed-petitionsdon't-count theory. The quotation from Rose says only that "`prisoners who submit mixed petitions are entitled to exhaust the remainder of their claims. ` " Ante, at 486 (quoting Rose, ). This does not suggest that they are entitled to add new claims, or to return, once again, without accomplishing the exhaustion that the court dismissed the petition to allow. And the quotation from indicates only that when a prisoner whose habeas petition was dismissed for failure to exhaust state remedies "`then did exhaust those remedies' *492 " and refile in federal court, the court "`could adjudicate these claims under the same standard as would govern those made in any other first petition.' " Ante, at 487 (quoting ). This does not require treating the later filed petition as a "first" petition regardless of whether it bears any resemblance to the petition initially filed. In fact, MartinezVillareal clearly recognized the potential significance of raising a new claim rather than merely renewing an old one: It held that a petition raising a claim of incompetence to be executed previously dismissed as premature was not second or successive, but expressly distinguished, and left open, the situation where the claim had not been raised in the earlier petition. See n. The State understandably fears the consequences of the Court's approach, which would allow federal petitions to be repeatedly filed and dismissed for lack of exhaustion, requiring the State repeatedly to appear and expend its resources, with no help in sight from supposed limitations on "second or successive" petitions. The Court reassuringly observes that this problem can be countered in other ways, without "upsetting the established meaning of a second or successive petition." Ante, at 489. But as discussed above, it is not "established" that a first petition ceases to be a first petition when it is dismissed to permit exhaustion. And though the problem of repetitive filings after dismissals for lack of exhaustion can of course be countered in other ways, so can the problem of repetitive filings for all other reasons. It happens to be the whole purpose of the "second or successive" provision to solve precisely that problem —directly checking the "vexatious litigant," ante, at 488, rather than hoping that the courts will use a patchwork of other provisions to achieve the same end. I do not disagree with the Court that district courts may be able to limit repeated filings through appropriate orders pursuant to Federal Rules of Civil Procedure 41(a) and (b). This burden on district courts would not be *493 necessary, however—and the States would not be remanded to reliance upon the discretion of district judges—if the limitation on "second or successive" petitions were given its natural meaning. Because I believe petitioner's inclusion of new and unexhausted claims in his postexhaustion petition rendered it second or successive, he is not entitled to a certificate of appealability, and I would affirm the decision of the Court of Appeals.

Justice Souter

majority

Safeco Ins. Co. of America v. Burr

2007-06-04

https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/

https://www.courtlistener.com/api/rest/v3/clusters/145725/

2006-050

[*] The Fair Credit Reporting Act (FCRA or Act) requires notice to any consumer subjected to "adverse action ... based in whole or in part on any information contained in a consumer [credit] report." 15 U.S.C. § 1681m(a). Anyone who "willfully fails" to provide notice is civilly liable to the consumer. § 1681n(a). The questions in these consolidated cases are whether willful failure covers a violation committed in reckless disregard of the notice obligation, and, if so, whether petitioners Safeco and GEICO committed reckless violations. We hold that reckless action is covered, that GEICO did not violate the statute, and that while Safeco might have, it did not act recklessly. I A Congress enacted FCRA in 1970 to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy. See 84 *2206 Stat. 1128, 15 U.S.C. § 1681; TRW Inc. v. Andrews, 534 U.S. 19, 23, 122 S. Ct. 441, 151 L. Ed. 2d 339 (2001). The Act requires, among other things, that "any person [who] takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer report" must notify the affected consumer.[1] 15 U.S.C. § 1681m(a). The notice must point out the adverse action, explain how to reach the agency that reported on the consumer's credit, and tell the consumer that he can get a free copy of the report and dispute its accuracy with the agency. Ibid. As it applies to an insurance company, "adverse action" is "a denial or cancellation of, an increase in any charge for, or a reduction or other adverse or unfavorable change in the terms of coverage or amount of, any insurance, existing or applied for." § 1681a(k)(1)(B)(i). FCRA provides a private right of action against businesses that use consumer reports but fail to comply. If a violation is negligent, the affected consumer is entitled to actual damages. § 1681o(a) (2000 ed., Supp. IV). If willful, however, the consumer may have actual damages, or statutory damages ranging from $100 to $1,000, and even punitive damages. § 1681n(a) (2000 ed.). B Petitioner GEICO[2] writes auto insurance through four subsidiaries: GEICO General, which sells "preferred" policies at low rates to low-risk customers; Government Employees, which also sells "preferred" policies, but only to government employees; GEICO Indemnity, which sells standard policies to moderate-risk customers; and GEICO Casualty, which sells nonstandard policies at higher rates to high-risk customers. Potential customers call a toll-free number answered by an agent of the four affiliates, who takes information and, with permission, gets the applicant's credit score.[3] This information goes into GEICO's computer system, which selects any appropriate company and the particular rate at which a policy may be issued. For some time after FCRA went into effect, GEICO sent adverse action notices to all applicants who were not offered "preferred" policies from GEICO General or Government Employees. GEICO changed its practice, however, after a method to "neutralize" an applicant's credit score was devised: the applicant's company and tier placement is compared with the company and tier placement he would have been assigned with a "neutral" credit score, that is, one calculated without reliance *2207 on credit history.[4] Under this new scheme, it is only if using a neutral credit score would have put the applicant in a lower priced tier or company that GEICO sends an adverse action notice; the applicant is not otherwise told if he would have gotten better terms with a better credit score. Respondent Ajene Edo applied for auto insurance with GEICO. After obtaining Edo's credit score, GEICO offered him a standard policy with GEICO Indemnity (at rates higher than the most favorable), which he accepted. Because Edo's company and tier placement would have been the same with a neutral score, GEICO did not give Edo an adverse action notice. Edo later filed this proposed class action against GEICO, alleging willful failure to give notice in violation of § 1681m(a); he claimed no actual harm, but sought statutory and punitive damages under § 1681n(a). The District Court granted summary judgment for GEICO, finding there was no adverse action when "the premium charged to [Edo] ... would have been the same even if GEICO Indemnity did not consider information in [his] consumer credit history." Edo v. GEICO Casualty Co., CV 02-678-BR, 2004 WL 3639689, *4, 2004 U.S. Dist. LEXIS 28522, *12 (D.Ore., Feb. 23, 2004), App. to Pet. for Cert. in No. 06-100, p. 46a. Like GEICO, petitioner Safeco[5] relies on credit reports to set initial insurance premiums,[6] as it did for respondents Charles Burr and Shannon Massey, who were offered higher rates than the best rates possible. Safeco sent them no adverse action notices, and they later joined a proposed class action against the company, alleging willful violation of § 1681m(a) and seeking statutory and punitive damages under § 1681n(a). The District Court ordered summary judgment for Safeco, on the understanding that offering a single, initial rate for insurance cannot be "adverse action." The Court of Appeals for the Ninth Circuit reversed both judgments. In GEICO's case, it held that whenever a consumer "would have received a lower rate for his insurance had the information in his consumer report been more favorable, an adverse action has been taken against him." Reynolds v. Hartford Financial Servs. Group, Inc., 435 F.3d 1081, 1093 (2006). Since a better credit score would have placed Edo with GEICO General, not GEICO Indemnity, the appeals court held that GEICO's failure to give notice was an adverse action. The Ninth Circuit also held that an insurer "willfully" fails to comply with FCRA if it acts with "reckless disregard" of a consumer's rights under the Act. Id., at 1099. It explained that a company would not be acting recklessly if it "diligently and in good faith attempted to fulfill its statutory obligations" and came to a "tenable, albeit erroneous, interpretation of the statute." Ibid. The court went on to say that "a deliberate failure to determine *2208 the extent of its obligations" would not ordinarily escape liability under § 1681n, any more than "reliance on creative lawyering that provides indefensible answers." Ibid. Because the court believed that the enquiry into GEICO's reckless disregard might turn on undisclosed circumstances surrounding GEICO's revision of its notification policy, the Court of Appeals remanded the company's case for further proceedings.[7] In the action against Safeco, the Court of Appeals rejected the District Court's position, relying on its reasoning in GEICO's case (where it had held that the notice requirement applies to a single statement of an initial charge for a new policy). Spano v. Safeco Corp., 140 Fed. Appx. 746 (2005). The Court of Appeals also rejected Safeco's argument that its conduct was not willful, again citing the GEICO case, and remanded for further proceedings. We consolidated the two matters and granted certiorari to resolve a conflict in the Circuits as to whether § 1681n(a) reaches reckless disregard of FCRA's obligations,[8] and to clarify the notice requirement in § 1681m(a). 548 U.S. ___, 127 S. Ct. 36, 165 L. Ed. 2d 1014 (2006). We now reverse in both cases. II GEICO and Safeco argue that liability under § 1681n(a) for "willfully fail[ing] to comply" with FCRA goes only to acts known to violate the Act, not to reckless disregard of statutory duty, but we think they are wrong. We have said before that "willfully" is a "word of many meanings whose construction is often dependent on the context in which it appears," Bryan v. United States, 524 U.S. 184, 191, 118 S. Ct. 1939, 141 L. Ed. 2d 197 (1998) (internal quotation marks omitted); and where willfulness is a statutory condition of civil liability, we have generally taken it to cover not only knowing violations of a standard, but reckless ones as well, see McLaughlin v. Richland Shoe Co., 486 U.S. 128, 132-133, 108 S. Ct. 1677, 100 L. Ed. 2d 115 (1988) ("willful," as used in a limitation provision for actions under the Fair Labor Standards Act, covers claims of reckless violation); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-126, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985) (same, as to a liquidated damages provision of the Age Discrimination in Employment Act of 1967); cf. United States v. Illinois Central R. Co., 303 U.S. 239, 242-243, 58 S. Ct. 533, 82 L. Ed. 773 (1938) ("willfully," as used in a civil penalty provision, includes "`conduct marked by careless disregard whether or not one has the right so to act'" (quoting United States v. Murdock, 290 U.S. 389, 395, 54 S. Ct. 223, 78 L. Ed. 381 (1933))). This construction reflects common law usage, which treated actions in "reckless disregard" of the law as "willful" violations. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 34, p. 212 (5th ed.1984) (hereinafter Prosser and Keeton) ("Although efforts have been *2209 made to distinguish" the terms "willful," "wanton," and "reckless," "such distinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least as coming out at the same legal exit"). The standard civil usage thus counsels reading the phrase "willfully fails to comply" in § 1681n(a) as reaching reckless FCRA violations,[9] and this is so both on the interpretive assumption that Congress knows how we construe statutes and expects us to run true to form, see Commissioner v. Keystone Consol. Industries, Inc., 508 U.S. 152, 159, 113 S. Ct. 2006, 124 L. Ed. 2d 71 (1993), and under the general rule that a common law term in a statute comes with a common law meaning, absent anything pointing another way, Beck v. Prupis, 529 U.S. 494, 500-501, 120 S. Ct. 1608, 146 L. Ed. 2d 561 (2000). GEICO and Safeco argue that Congress did point to something different in FCRA, by a drafting history of § 1681n(a) said to show that liability was supposed to attach only to knowing violations. The original version of the Senate bill that turned out as FCRA had two standards of liability to victims: grossly negligent violation (supporting actual damages) and willful violation (supporting actual, statutory, and punitive damages). S. 823, 91st Cong., 1st Sess., § 1 (1969). GEICO and Safeco argue that since a "gross negligence" standard is effectively the same as a "reckless disregard" standard, the original bill's "willfulness" standard must have meant a level of culpability higher than "reckless disregard," or there would have been no requirement to show a different state of mind as a condition of the potentially much greater liability; thus, "willfully fails to comply" must have referred to a knowing violation. Although the gross negligence standard was reduced later in the legislative process to simple negligence (as it now appears in § 1681o), the provision for willful liability remains unchanged and so must require knowing action, just as it did originally in the draft of § 1681n. Perhaps. But Congress may have scaled the standard for actual damages down to simple negligence because it thought gross negligence, being like reckless action, was covered by willfulness. Because this alternative reading is possible, any inference from the drafting sequence is shaky, and certainly no match for the following clue in the text as finally adopted, which points to the traditional understanding of willfulness in the civil sphere. The phrase in question appears in the preamble sentence of § 1681n(a): "Any person who willfully fails to comply with any requirement imposed under this subchapter *2210 with respect to any consumer is liable to that consumer ... ." Then come the details, in paragraphs (1)(A) and (1)(B), spelling out two distinct measures of damages chargeable against the willful violator. As a general matter, the consumer may get either actual damages or "damages of not less than $100 and not more than $1,000." § 1681n(a)(1)(A). But where the offender is liable "for obtaining a consumer report under false pretenses or knowingly without a permissible purpose," the statute sets liability higher: "actual damages ... or $1,000, whichever is greater." § 1681n(a)(1)(B). If the companies were right that "willfully" limits liability under § 1681n(a) to knowing violations, the modifier "knowingly" in § 1681n(a)(1)(B) would be superfluous and incongruous; it would have made no sense for Congress to condition the higher damages under § 1681n(a) on knowingly obtaining a report without a permissible purpose if the general threshold of any liability under the section were knowing misconduct. If, on the other hand, "willfully" covers both knowing and reckless disregard of the law, knowing violations are sensibly understood as a more serious subcategory of willful ones, and both the preamble and the subsection have distinct jobs to do. See United States v. Menasche, 348 U.S. 528, 538-539, 75 S. Ct. 513, 99 L. Ed. 615 (1955) ("`[G]ive effect, if possible, to every clause and word of a statute'" (quoting Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S. Ct. 391, 27 L. Ed. 431 (1883))). The companies make other textual and structural arguments for their view, but none is persuasive. Safeco thinks our reading would lead to the absurd result that one could, with reckless disregard, knowingly obtain a consumer report without a permissible purpose. But this is not so; action falling within the knowing subcategory does not simultaneously fall within the reckless alternative. Then both GEICO and Safeco argue that the reference to acting "knowingly and willfully" in FCRA's criminal enforcement provisions, § 1681q and § 1681r, indicates that "willfully" cannot include recklessness. But we are now on the criminal side of the law, where the paired modifiers are often found, see, e.g., 18 U.S.C. § 1001 (2000 ed. and Supp. IV) (false statements to federal investigators); 20 U.S.C. § 1097(a) (embezzlement of student loan funds); 18 U.S.C. § 1542 (2000 ed. and Supp. IV) (false statements in a passport application). As we said before, in the criminal law "willfully" typically narrows the otherwise sufficient intent, making the government prove something extra, in contrast to its civil-law usage, giving a plaintiff a choice of mental states to show in making a case for liability, see n. 9, supra. The vocabulary of the criminal side of FCRA is consequently beside the point in construing the civil side. III A Before getting to the claims that the companies acted recklessly, we have the antecedent question whether either company violated the adverse action notice requirement at all. In both cases, respondent-plaintiffs' claims are premised on initial rates charged for new insurance policies, which are not "adverse" actions unless quoting or charging a first-time premium is "an increase in any charge for... any insurance, existing or applied for." 15 U.S.C. § 1681a(k)(1)(B)(i). In Safeco's case, the District Court held that the initial rate for a new insurance policy cannot be an "increase" because there is no prior dealing. The phrase "increase in any charge for ... insurance" is readily understood to mean a change in *2211 treatment for an insured, which assumes a previous charge for comparison. See Webster's New International Dictionary 1260 (2d ed.1957) (defining "increase" as "[a]ddition or enlargement in size, extent, quantity, number, intensity, value, substance, etc.; augmentation; growth; multiplication"). Since the District Court understood "increase" to speak of change just as much as of comparative size or quantity, it reasoned that the statute's "increase" never touches the initial rate offer, where there is no change. The Government takes the part of the Court of Appeals in construing "increase" to reach a first-time rate. It says that regular usage of the term is not as narrow as the District Court thought: the point from which to measure difference can just as easily be understood without referring to prior individual dealing. The Government gives the example of a gas station owner who charges more than the posted price for gas to customers he doesn't like; it makes sense to say that the owner increases the price and that the driver pays an increased price, even if he never pulled in there for gas before. See Brief for United States as Amicus Curiae 26.[10] The Government implies, then, that reading "increase" requires a choice, and the chosen reading should be the broad one in order to conform to what Congress had in mind. We think the Government's reading has the better fit with the ambitious objective set out in the Act's statement of purpose, which uses expansive terms to describe the adverse effects of unfair and inaccurate credit reporting and the responsibilities of consumer reporting agencies. See § 1681(a) (inaccurate reports "directly impair the efficiency of the banking system"; unfair reporting methods undermine public confidence "essential to the continued functioning of the banking system"; need to "insure" that reporting agencies "exercise their grave responsibilities" fairly, impartially, and with respect for privacy). The descriptions of systemic problem and systemic need as Congress saw them do nothing to suggest that remedies for consumers placed at a disadvantage by unsound credit ratings should be denied to first-time victims, and the legislative histories of FCRA's original enactment and of the 1996 amendment reveal no reason to confine attention to customers and businesses with prior dealings. Quite the contrary.[11] Finally, there is nothing about insurance contracts to suggest that Congress might have meant to differentiate applicants from existing customers when it set the notice requirement; the newly insured who gets charged more owing to an erroneous report is in the same boat with the renewal applicant.[12] We therefore *2212 hold that the "increase" required for "adverse action," 15 U.S.C. § 1681a(k)(1)(B)(i), speaks to a disadvantageous rate even with no prior dealing; the term reaches initial rates for new applicants. B Although offering the initial rate for new insurance can be an "adverse action," respondent-plaintiffs have another hurdle to clear, for § 1681m(a) calls for notice only when the adverse action is "based in whole or in part on" a credit report. GEICO argues that in order to have adverse action "based on" a credit report, consideration of the report must be a necessary condition for the increased rate. The Government and respondent-plaintiffs do not explicitly take a position on this point. To the extent there is any disagreement on the issue, we accept GEICO's reading. In common talk, the phrase "based on" indicates a but-for causal relationship and thus a necessary logical condition. Under this most natural reading of § 1681m(a), then, an increased rate is not "based in whole or in part on" the credit report unless the report was a necessary condition of the increase. As before, there are textual arguments pointing another way. The statute speaks in terms of basing the action "in part" as well as wholly on the credit report, and this phrasing could mean that adverse action is "based on" a credit report whenever the report was considered in the rate-setting process, even without being a necessary condition for the rate increase. But there are good reasons to think Congress preferred GEICO's necessary-condition reading. If the statute has any claim to lucidity, not all "adverse actions" require notice, only those "based ... on" information in a credit report. Since the statute does not explicitly call for notice when a business acts adversely merely after consulting a report, conditioning the requirement on action "based ... on" a report suggests that the duty to report arises from some practical consequence of reading the report, not merely some subsequent adverse occurrence that would have happened anyway. If the credit report has no identifiable effect on the rate, the consumer has no immediately practical reason to worry about it (unless he has the power to change every other fact that stands between himself and the best possible deal); both the company and the consumer are just where they would have been if the company had never seen the report.[13] And if examining reports that make no difference was supposed to trigger a reporting requirement, it would be hard to find any practical point in imposing the "based ... on" restriction. So it makes more sense to suspect that Congress meant to require notice and prompt a challenge by the consumer only when the consumer would gain something if the challenge succeeded.[14] *2213 C To sum up, the difference required for an increase can be understood without reference to prior dealing (allowing a first-time applicant to sue), and considering the credit report must be a necessary condition for the difference. The remaining step in determining a duty to notify in cases like these is identifying the benchmark for determining whether a first-time rate is a disadvantageous increase. And in dealing with this issue, the pragmatic reading of "based ... on" as a condition necessary to make a practical difference carries a helpful suggestion. The Government and respondent-plaintiffs argue that the baseline should be the rate that the applicant would have received with the best possible credit score, while GEICO contends it is what the applicant would have had if the company had not taken his credit score into account (the "neutral score" rate GEICO used in Edo's case). We think GEICO has the better position, primarily because its "increase" baseline is more comfortable with the understanding of causation just discussed, which requires notice under § 1681m(a) only when the effect of the credit report on the initial rate offered is necessary to put the consumer in a worse position than other relevant facts would have decreed anyway. If Congress was this concerned with practical consequences when it adopted a "based ... on" causation standard, it presumably thought in equally practical terms when it spoke of an "increase" that must be defined by a baseline to measure from. Congress was therefore more likely concerned with the practical question whether the consumer's rate actually suffered when the company took his credit report into account than the theoretical question whether the consumer would have gotten a better rate with perfect credit.[15] The Government objects that this reading leaves a loophole, since it keeps first-time applicants who actually deserve better-than-neutral credit scores from getting notice, even when errors in credit reports saddle them with unfair rates. This is true; the neutral-score baseline will leave some consumers without a notice that *2214 might lead to discovering errors. But we do not know how often these cases will occur, whereas we see a more demonstrable and serious disadvantage inhering in the Government's position. Since the best rates (the Government's preferred baseline) presumably go only to a minority of consumers, adopting the Government's view would require insurers to send slews of adverse action notices; every young applicant who had yet to establish a gilt-edged credit report, for example, would get a notice that his charge had been "increased" based on his credit report. We think that the consequence of sending out notices on this scale would undercut the obvious policy behind the notice requirement, for notices as common as these would take on the character of formalities, and formalities tend to be ignored. It would get around that new insurance usually comes with an adverse action notice, owing to some legal quirk, and instead of piquing an applicant's interest about the accuracy of his credit record, the commonplace notices would mean just about nothing and go the way of junk mail. Assuming that Congress meant a notice of adverse action to get some attention, we think the cost of closing the loophole would be too high. While on the subject of hypernotification, we should add a word on another point of practical significance. Although the rate initially offered for new insurance is an "increase" calling for notice if it exceeds the neutral rate, did Congress intend the same baseline to apply if the quoted rate remains the same over a course of dealing, being repeated at each renewal date? We cannot believe so. Once a consumer has learned that his credit report led the insurer to charge more, he has no need to be told over again with each renewal if his rate has not changed. For that matter, any other construction would probably stretch the word "increase" more than it could bear. Once the gas station owner had charged the customer the above-market price, it would be strange to speak of the same price as an increase every time the customer pulled in. Once buyer and seller have begun a course of dealing, customary usage does demand a change for "increase" to make sense.[16] Thus, after initial dealing between the consumer and the insurer, the baseline for "increase" is the previous rate or charge, not the "neutral" baseline that applies at the start. IV A In GEICO's case, the initial rate offered to Edo was the one he would have received if his credit score had not been taken into account, and GEICO owed him no adverse action notice under § 1681m(a).[17] *2215 B Safeco did not give Burr and Massey any notice because it thought § 1681m(a) did not apply to initial applications, a mistake that left the company in violation of the statute if Burr and Massey received higher rates "based in whole or in part" on their credit reports; if they did, Safeco would be liable to them on a showing of reckless conduct (or worse). The first issue we can forget, however, for although the record does not reliably indicate what rates they would have obtained if their credit reports had not been considered, it is clear enough that if Safeco did violate the statute, the company was not reckless in falling down in its duty. While "the term recklessness is not self-defining," the common law has generally understood it in the sphere of civil liability as conduct violating an objective standard: action entailing "an unjustifiably high risk of harm that is either known or so obvious that it should be known."[18]Farmer v. Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994); see Prosser and Keeton § 34, at 213-214. The Restatement, for example, defines reckless disregard of a person's physical safety this way: "The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Restatement (Second) of Torts § 500, p. 587 (1963-1964). It is this high risk of harm, objectively assessed, that is the essence of recklessness at common law. See Prosser and Keeton § 34, at 213 (recklessness requires "a known or obvious risk that was so great as to make it highly probable that harm would follow"). There being no indication that Congress had something different in mind, we have no reason to deviate from the common law understanding in applying the statute. See Prupis, 529 U.S., at 500-501, 120 S. Ct. 1608. Thus, a company subject to FCRA does not act in reckless disregard of it unless the action is not only a violation under a reasonable reading of the statute's terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless. Here, there is no need to pinpoint the negligence/recklessness line, for Safeco's reading of the statute, albeit erroneous, was not objectively unreasonable. As we said, § 1681a(k)(1)(B)(i) is silent on the point from which to measure "increase." On the rationale that "increase" presupposes prior dealing, Safeco took the definition as excluding initial rate offers for new insurance, and so sent no adverse action notices to Burr and Massey. While we disagree with Safeco's analysis, we recognize *2216 that its reading has a foundation in the statutory text, see supra, at ___ 11, and a sufficiently convincing justification to have persuaded the District Court to adopt it and rule in Safeco's favor. This is not a case in which the business subject to the Act had the benefit of guidance from the courts of appeals or the Federal Trade Commission (FTC) that might have warned it away from the view it took. Before these cases, no court of appeals had spoken on the issue, and no authoritative guidance has yet come from the FTC[19] (which in any case has only enforcement responsibility, not substantive rulemaking authority, for the provisions in question, see 15 U.S.C. §§ 1681s(a)(1), (e)). Cf. Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) (assessing, for qualified immunity purposes, whether an action was reasonable in light of legal rules that were "clearly established" at the time). Given this dearth of guidance and the less-than-pellucid statutory text, Safeco's reading was not objectively unreasonable, and so falls well short of raising the "unjustifiably high risk" of violating the statute necessary for reckless liability.[20] * * * The Court of Appeals correctly held that reckless disregard of a requirement of FCRA would qualify as a willful violation within the meaning of § 1681n(a). But there was no need for that court to remand the cases for factual development. GEICO's decision to issue no adverse action notice to Edo was not a violation of § 1681m(a), and Safeco's misreading of the statute was not reckless. The judgments of the Court of Appeals are therefore reversed in both cases, which are remanded for further proceedings consistent with this opinion. It is so ordered. Justice STEVENS, with whom Justice GINSBURG joins, concurring in part and concurring in the judgment.

[*] The Fair Credit Reporting Act (FCRA or Act) requires notice to any consumer subjected to "adverse action based in whole or in part on any information contained in a consumer [credit] report." 15 U.S.C. 1681m(a). Anyone who "willfully fails" to provide notice is civilly liable to the consumer. 1681n(a). The questions in these consolidated cases are whether willful failure covers a violation committed in reckless disregard of the notice obligation, and, if so, whether petitioners Safeco and GEICO committed reckless violations. We hold that reckless action is covered, that GEICO did not violate the statute, and that while Safeco might have, it did not act recklessly. I A Congress enacted FCRA in 170 to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy. See 84 *, 15 U.S.C. 1681; TRW The Act requires, among other things, that "any person [who] takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer report" must notify the affected consumer.[1] 15 U.S.C. 1681m(a). The notice must point out the adverse action, explain how to reach the agency that reported on the consumer's credit, and tell the consumer that he can get a free copy of the report and dispute its accuracy with the agency. As it applies to an insurance company, "adverse action" is "a denial or cancellation of, an increase in any charge for, or a reduction or other adverse or unfavorable change in the terms of coverage or amount of, any insurance, existing or applied for." 1681a(k)(1)(B)(i). FCRA provides a private right of action against businesses that use consumer reports but fail to comply. If a violation is negligent, the affected consumer is entitled to actual damages. 1681o(a) ( ed., Supp. IV). If willful, however, the consumer may have actual damages, or statutory damages ranging from $100 to $1,000, and even punitive damages. 1681n(a) ( ed.). B Petitioner GEICO[2] writes auto insurance through four subsidiaries: GEICO General, which sells "preferred" policies at low rates to low-risk customers; Government Employees, which also sells "preferred" policies, but only to government employees; GEICO Indemnity, which sells standard policies to moderate-risk customers; and GEICO Casualty, which sells nonstandard policies at higher rates to high-risk customers. Potential customers call a toll-free number answered by an agent of the four affiliates, who takes information and, with permission, gets the applicant's credit score.[3] This information goes into GEICO's computer system, which selects any appropriate company and the particular rate at which a policy may be issued. For some time after FCRA went into effect, GEICO sent adverse action notices to all applicants who were not offered "preferred" policies from GEICO General or Government Employees. GEICO changed its practice, however, after a method to "neutralize" an applicant's credit score was devised: the applicant's company and tier placement is compared with the company and tier placement he would have been assigned with a "neutral" credit score, that is, one calculated without reliance *2207 on credit history.[4] Under this new scheme, it is only if using a neutral credit score would have put the applicant in a lower priced tier or company that GEICO sends an adverse action notice; the applicant is not otherwise told if he would have gotten better terms with a better credit score. Respondent Ajene Edo applied for auto insurance with GEICO. After obtaining Edo's credit score, GEICO offered him a standard policy with GEICO Indemnity (at rates higher than the most favorable), which he accepted. Because Edo's company and tier placement would have been the same with a neutral score, GEICO did not give Edo an adverse action notice. Edo later filed this proposed class action against GEICO, alleging willful failure to give notice in violation of 1681m(a); he claimed no actual harm, but sought statutory and punitive damages under 1681n(a). The District Court granted summary judgment for GEICO, finding there was no adverse action when "the premium charged to [Edo] would have been the same even if GEICO Indemnity did not consider information in [his] consumer credit history." U.S. Dist. LEXIS 28522, App. to Pet. for Cert. in No. 06-100, p. 46a. Like GEICO, petitioner Safeco[5] relies on credit reports to set initial insurance premiums,[6] as it did for respondents Charles Burr and Shannon Massey, who were offered higher rates than the best rates possible. Safeco sent them no adverse action notices, and they later joined a proposed class action against the company, alleging willful violation of 1681m(a) and seeking statutory and punitive damages under 1681n(a). The District Court ordered summary judgment for Safeco, on the understanding that offering a single, initial rate for insurance cannot be "adverse action." The Court of Appeals for the Ninth Circuit reversed both judgments. In GEICO's case, it held that whenever a consumer "would have received a lower rate for his insurance had the information in his consumer report been more favorable, an adverse action has been taken against him." Since a better credit score would have placed Edo with GEICO General, not GEICO Indemnity, the appeals court held that GEICO's failure to give notice was an adverse action. The Ninth Circuit also held that an insurer "willfully" fails to comply with FCRA if it acts with "reckless disregard" of a consumer's rights under the Act. It explained that a company would not be acting recklessly if it "diligently and in good faith attempted to fulfill its statutory obligations" and came to a "tenable, albeit erroneous, interpretation of the statute." The court went on to say that "a deliberate failure to determine *2208 the extent of its obligations" would not ordinarily escape liability under 1681n, any more than "reliance on creative lawyering that provides indefensible answers." Because the court believed that the enquiry into GEICO's reckless disregard might turn on undisclosed circumstances surrounding GEICO's revision of its notification policy, the Court of Appeals remanded the company's case for further proceedings.[7] In the action against Safeco, the Court of Appeals rejected the District Court's position, relying on its reasoning in GEICO's case (where it had held that the notice requirement applies to a single statement of an initial charge for a new policy). The Court of Appeals also rejected Safeco's argument that its conduct was not willful, again citing the GEICO case, and remanded for further proceedings. We consolidated the two matters and granted certiorari to resolve a conflict in the Circuits as to whether 1681n(a) reaches reckless disregard of FCRA's obligations,[8] and to clarify the notice requirement in 1681m(a). 548 U.S. We now reverse in both cases. II GEICO and Safeco argue that liability under 1681n(a) for "willfully fail[ing] to comply" with FCRA goes only to acts known to violate the Act, not to reckless disregard of statutory duty, but we think they are wrong. We have said before that "willfully" is a "word of many meanings whose construction is often dependent on the context in which it appears," ; and where willfulness is a statutory condition of civil liability, we have generally taken it to cover not only knowing violations of a standard, but reckless ones as well, see ; Trans World Airlines, 83 L. Ed. 2d 5 ; cf. United 303 U.S. )). This construction reflects common law usage, which treated actions in "reckless disregard" of the law as "willful" violations. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 34, p. 212 (5th ed.184) (hereinafter Prosser and Keeton) ("Although efforts have been *220 made to distinguish" the terms "willful," "wanton," and "reckless," "such distinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least as coming out at the same legal exit"). The standard civil usage thus counsels reading the phrase "willfully fails to comply" in 1681n(a) as reaching reckless FCRA violations,[] and this is so both on the interpretive assumption that Congress knows how we construe statutes and expects us to run true to form, see 113 S. Ct. and under the general rule that a common law term in a statute comes with a common law meaning, absent anything pointing another way, GEICO and Safeco argue that Congress did point to something different in FCRA, by a drafting history of 1681n(a) said to show that liability was supposed to attach only to knowing violations. The original version of the Senate bill that turned out as FCRA had two standards of liability to victims: grossly negligent violation (supporting actual damages) and willful violation (supporting actual, statutory, and punitive damages). S. 8, 1st Cong., 1st Sess., 1 (16). GEICO and Safeco argue that since a "gross negligence" standard is effectively the same as a "reckless disregard" standard, the original bill's "willfulness" standard must have meant a level of culpability higher than "reckless disregard," or there would have been no requirement to show a different state of mind as a condition of the potentially much greater liability; thus, "willfully fails to comply" must have referred to a knowing violation. Although the gross negligence standard was reduced later in the legislative process to simple negligence (as it now appears in 1681o), the provision for willful liability remains unchanged and so must require knowing action, just as it did originally in the draft of 1681n. Perhaps. But Congress may have scaled the standard for actual damages down to simple negligence because it thought gross negligence, being like reckless action, was covered by willfulness. Because this alternative reading is possible, any inference from the drafting sequence is shaky, and certainly no match for the following clue in the text as finally adopted, which points to the traditional understanding of willfulness in the civil sphere. The phrase in question appears in the preamble sentence of 1681n(a): "Any person who willfully fails to comply with any requirement imposed under this subchapter *2210 with respect to any consumer is liable to that consumer" Then come the details, in paragraphs (1)(A) and (1)(B), spelling out two distinct measures of damages chargeable against the willful violator. As a general matter, the consumer may get either actual damages or "damages of not less than $100 and not more than $1,000." 1681n(a)(1)(A). But where the offender is liable "for obtaining a consumer report under false pretenses or knowingly without a permissible purpose," the statute sets liability higher: "actual damages or $1,000, whichever is greater." 1681n(a)(1)(B). If the companies were right that "willfully" limits liability under 1681n(a) to knowing violations, the modifier "knowingly" in 1681n(a)(1)(B) would be superfluous and incongruous; it would have made no sense for Congress to condition the higher damages under 1681n(a) on knowingly obtaining a report without a permissible purpose if the general threshold of any liability under the section were knowing misconduct. If, on the other hand, "willfully" covers both knowing and reckless disregard of the law, knowing violations are sensibly understood as a more serious subcategory of willful ones, and both the preamble and the subsection have distinct jobs to do. See United The companies make other textual and structural arguments for their view, but none is persuasive. Safeco thinks our reading would lead to the absurd result that one could, with reckless disregard, knowingly obtain a consumer report without a permissible purpose. But this is not so; action falling within the knowing subcategory does not simultaneously fall within the reckless alternative. Then both GEICO and Safeco argue that the reference to acting "knowingly and willfully" in FCRA's criminal enforcement provisions, 1681q and 1681r, indicates that "willfully" cannot include recklessness. But we are now on the criminal side of the law, where the paired modifiers are often found, see, e.g., 18 U.S.C. 1001 ( ed. and Supp. IV) (false statements to federal investigators); 20 U.S.C. 107(a) ; 18 U.S.C. 1542 ( ed. and Supp. IV) (false statements in a passport application). As we said before, in the criminal law "willfully" typically narrows the otherwise sufficient intent, making the government prove something extra, in contrast to its civil-law usage, giving a plaintiff a choice of mental states to show in making a case for liability, see n. The vocabulary of the criminal side of FCRA is consequently beside the point in construing the civil side. III A Before getting to the claims that the companies acted recklessly, we have the antecedent question whether either company violated the adverse action notice requirement at all. In both cases, respondent-plaintiffs' claims are premised on initial rates charged for new insurance policies, which are not "adverse" actions unless quoting or charging a first-time premium is "an increase in any charge for. any insurance, existing or applied for." 15 U.S.C. 1681a(k)(1)(B)(i). In Safeco's case, the District Court held that the initial rate for a new insurance policy cannot be an "increase" because there is no prior dealing. The phrase "increase in any charge for insurance" is readily understood to mean a change in *2211 treatment for an insured, which assumes a previous charge for comparison. See Webster's New International Dictionary 1260 (2d ed.157) (defining "increase" as "[a]ddition or enlargement in size, extent, quantity, number, intensity, value, substance, etc.; augmentation; growth; multiplication"). Since the District Court understood "increase" to speak of change just as much as of comparative size or quantity, it reasoned that the statute's "increase" never touches the initial rate offer, where there is no change. The Government takes the part of the Court of Appeals in construing "increase" to reach a first-time rate. It says that regular usage of the term is not as narrow as the District Court thought: the point from which to measure difference can just as easily be understood without referring to prior individual dealing. The Government gives the example of a gas station owner who charges more than the posted price for gas to customers he doesn't like; it makes sense to say that the owner increases the price and that the driver pays an increased price, even if he never pulled in there for gas before. See Brief for United States as Amicus Curiae 26.[10] The Government implies, then, that reading "increase" requires a choice, and the chosen reading should be the broad one in order to conform to what Congress had in mind. We think the Government's reading has the better fit with the ambitious objective set out in the Act's statement of purpose, which uses expansive terms to describe the adverse effects of unfair and inaccurate credit reporting and the responsibilities of consumer reporting agencies. See 1681(a) (inaccurate reports "directly impair the efficiency of the banking system"; unfair reporting methods undermine public confidence "essential to the continued functioning of the banking system"; need to "insure" that reporting agencies "exercise their grave responsibilities" fairly, impartially, and with respect for privacy). The descriptions of systemic problem and systemic need as Congress saw them do nothing to suggest that remedies for consumers placed at a disadvantage by unsound credit ratings should be denied to first-time victims, and the legislative histories of FCRA's original enactment and of the 16 amendment reveal no reason to confine attention to customers and businesses with prior dealings. Quite the contrary.[11] Finally, there is nothing about insurance contracts to suggest that Congress might have meant to differentiate applicants from existing customers when it set the notice requirement; the newly insured who gets charged more owing to an erroneous report is in the same boat with the renewal applicant.[12] We therefore *2212 hold that the "increase" required for "adverse action," 15 U.S.C. 1681a(k)(1)(B)(i), speaks to a disadvantageous rate even with no prior dealing; the term reaches initial rates for new applicants. B Although offering the initial rate for new insurance can be an "adverse action," respondent-plaintiffs have another hurdle to clear, for 1681m(a) calls for notice only when the adverse action is "based in whole or in part on" a credit report. GEICO argues that in order to have adverse action "based on" a credit report, consideration of the report must be a necessary condition for the increased rate. The Government and respondent-plaintiffs do not explicitly take a position on this point. To the extent there is any disagreement on the issue, we accept GEICO's reading. In common talk, the phrase "based on" indicates a but-for causal relationship and thus a necessary logical condition. Under this most natural reading of 1681m(a), then, an increased rate is not "based in whole or in part on" the credit report unless the report was a necessary condition of the increase. As before, there are textual arguments pointing another way. The statute speaks in terms of basing the action "in part" as well as wholly on the credit report, and this phrasing could mean that adverse action is "based on" a credit report whenever the report was considered in the rate-setting process, even without being a necessary condition for the rate increase. But there are good reasons to think Congress preferred GEICO's necessary-condition reading. If the statute has any claim to lucidity, not all "adverse actions" require notice, only those "based on" information in a credit report. Since the statute does not explicitly call for notice when a business acts adversely merely after consulting a report, conditioning the requirement on action "based on" a report suggests that the duty to report arises from some practical consequence of reading the report, not merely some subsequent adverse occurrence that would have happened anyway. If the credit report has no identifiable effect on the rate, the consumer has no immediately practical reason to worry about it (unless he has the power to change every other fact that stands between himself and the best possible deal); both the company and the consumer are just where they would have been if the company had never seen the report.[13] And if examining reports that make no difference was supposed to trigger a reporting requirement, it would be hard to find any practical point in imposing the "based on" restriction. So it makes more sense to suspect that Congress meant to require notice and prompt a challenge by the consumer only when the consumer would gain something if the challenge succeeded.[14] *2213 C To sum up, the difference required for an increase can be understood without reference to prior dealing (allowing a first-time applicant to sue), and considering the credit report must be a necessary condition for the difference. The remaining step in determining a duty to notify in cases like these is identifying the benchmark for determining whether a first-time rate is a disadvantageous increase. And in dealing with this issue, the pragmatic reading of "based on" as a condition necessary to make a practical difference carries a helpful suggestion. The Government and respondent-plaintiffs argue that the baseline should be the rate that the applicant would have received with the best possible credit score, while GEICO contends it is what the applicant would have had if the company had not taken his credit score into account (the "neutral score" rate GEICO used in Edo's case). We think GEICO has the better position, primarily because its "increase" baseline is more comfortable with the understanding of causation just discussed, which requires notice under 1681m(a) only when the effect of the credit report on the initial rate offered is necessary to put the consumer in a worse position than other relevant facts would have decreed anyway. If Congress was this concerned with practical consequences when it adopted a "based on" causation standard, it presumably thought in equally practical terms when it spoke of an "increase" that must be defined by a baseline to measure from. Congress was therefore more likely concerned with the practical question whether the consumer's rate actually suffered when the company took his credit report into account than the theoretical question whether the consumer would have gotten a better rate with perfect credit.[15] The Government objects that this reading leaves a loophole, since it keeps first-time applicants who actually deserve better-than-neutral credit scores from getting notice, even when errors in credit reports saddle them with unfair rates. This is true; the neutral-score baseline will leave some consumers without a notice that *2214 might lead to discovering errors. But we do not know how often these cases will occur, whereas we see a more demonstrable and serious disadvantage inhering in the Government's position. Since the best rates (the Government's preferred baseline) presumably go only to a minority of consumers, adopting the Government's view would require insurers to send slews of adverse action notices; every young applicant who had yet to establish a gilt-edged credit report, for example, would get a notice that his charge had been "increased" based on his credit report. We think that the consequence of sending out notices on this scale would undercut the obvious policy behind the notice requirement, for notices as common as these would take on the character of formalities, and formalities tend to be ignored. It would get around that new insurance usually comes with an adverse action notice, owing to some legal quirk, and instead of piquing an applicant's interest about the accuracy of his credit record, the commonplace notices would mean just about nothing and go the way of junk mail. Assuming that Congress meant a notice of adverse action to get some attention, we think the cost of closing the loophole would be too high. While on the subject of hypernotification, we should add a word on another point of practical significance. Although the rate initially offered for new insurance is an "increase" calling for notice if it exceeds the neutral rate, did Congress intend the same baseline to apply if the quoted rate remains the same over a course of dealing, being repeated at each renewal date? We cannot believe so. Once a consumer has learned that his credit report led the insurer to charge more, he has no need to be told over again with each renewal if his rate has not changed. For that matter, any other construction would probably stretch the word "increase" more than it could bear. Once the gas station owner had charged the customer the above-market price, it would be strange to speak of the same price as an increase every time the customer pulled in. Once buyer and seller have begun a course of dealing, customary usage does demand a change for "increase" to make sense.[16] Thus, after initial dealing between the consumer and the insurer, the baseline for "increase" is the previous rate or charge, not the "neutral" baseline that applies at the start. IV A In GEICO's case, the initial rate offered to Edo was the one he would have received if his credit score had not been taken into account, and GEICO owed him no adverse action notice under 1681m(a).[17] *2215 B Safeco did not give Burr and Massey any notice because it thought 1681m(a) did not apply to initial applications, a mistake that left the company in violation of the statute if Burr and Massey received higher rates "based in whole or in part" on their credit reports; if they did, Safeco would be liable to them on a showing of reckless conduct (or worse). The first issue we can forget, however, for although the record does not reliably indicate what rates they would have obtained if their credit reports had not been considered, it is clear enough that if Safeco did violate the statute, the company was not reckless in falling down in its duty. While "the term recklessness is not self-defining," the common law has generally understood it in the sphere of civil liability as conduct violating an objective standard: action entailing "an unjustifiably high risk of harm that is either known or so obvious that it should be 114 S. Ct. 170, (14); see Prosser and Keeton 34, at 213-214. The Restatement, for example, defines reckless disregard of a person's physical safety this way: "The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Restatement (Second) of Torts 500, p. 587 (163-164). It is this high risk of harm, objectively assessed, that is the essence of recklessness at common law. See Prosser and Keeton 34, at 213 (recklessness requires "a known or obvious risk that was so great as to make it highly probable that harm would follow"). There being no indication that Congress had something different in mind, we have no reason to deviate from the common law understanding in applying the statute. See 52 U.S., at Thus, a company subject to FCRA does not act in reckless disregard of it unless the action is not only a violation under a reasonable reading of the statute's terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless. Here, there is no need to pinpoint the negligence/recklessness line, for Safeco's reading of the statute, albeit erroneous, was not objectively unreasonable. As we said, 1681a(k)(1)(B)(i) is silent on the point from which to measure "increase." On the rationale that "increase" presupposes prior dealing, Safeco took the definition as excluding initial rate offers for new insurance, and so sent no adverse action notices to Burr and Massey. While we disagree with Safeco's analysis, we recognize *2216 that its reading has a foundation in the statutory text, see at 11, and a sufficiently convincing justification to have persuaded the District Court to adopt it and rule in Safeco's favor. This is not a case in which the business subject to the Act had the benefit of guidance from the courts of appeals or the Federal Trade Commission (FTC) that might have warned it away from the view it took. Before these cases, no court of appeals had spoken on the issue, and no authoritative guidance has yet come from the FTC[1] (which in any case has only enforcement responsibility, not substantive rulemaking authority, for the provisions in question, see 15 U.S.C. 1681s(a)(1), (e)). Cf. 533 U.S. 14, Given this dearth of guidance and the less-than-pellucid statutory text, Safeco's reading was not objectively unreasonable, and so falls well short of raising the "unjustifiably high risk" of violating the statute necessary for reckless liability.[20] * * * The Court of Appeals correctly held that reckless disregard of a requirement of FCRA would qualify as a willful violation within the meaning of 1681n(a). But there was no need for that court to remand the cases for factual development. GEICO's decision to issue no adverse action notice to Edo was not a violation of 1681m(a), and Safeco's misreading of the statute was not reckless. The judgments of the Court of Appeals are therefore reversed in both cases, which are remanded for further proceedings consistent with this opinion. It is so ordered. Justice STEVENS, with whom Justice GINSBURG joins, concurring in part and concurring in the judgment.

Justice Stevens

concurring

Safeco Ins. Co. of America v. Burr

2007-06-04

https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/

https://www.courtlistener.com/api/rest/v3/clusters/145725/

2006-050

While I join the Court's judgment and Parts I, II, III-A, and IV-B of the Court's opinion, I disagree with the reasoning in Parts III-B and III-C, as well as with Part IV-A, which relies on that reasoning. *2217 An adverse action taken after reviewing a credit report "is based in whole or in part on" that report within the meaning of 15 U.S.C. § 1681m(a). That is true even if the company would have made the same decision without looking at the report, because what the company actually did is more relevant than what it might have done. I find nothing in the statute making the examination of a credit report a "necessary condition" of any resulting increase. Ante, at 2211. The more natural reading is that reviewing a report is only a sufficient condition. The Court's contrary position leads to a serious anomaly. As a matter of federal law, companies are free to adopt whatever "neutral" credit scores they want. That score need not (and probably will not) reflect the median consumer credit score. More likely, it will reflect a company's assessment of the creditworthiness of a run-of-the-mill applicant who lacks a credit report. Because those who have yet to develop a credit history are unlikely to be good credit risks, "neutral" credit scores will in many cases be quite low. Yet under the Court's reasoning, only those consumers with credit scores even lower than what may already be a very low "neutral" score will ever receive adverse action notices.[1] While the Court acknowledges that "the neutral-score baseline will leave some consumers without a notice that might lead to discovering errors," ante, at 2213-2214, it finds this unobjectionable because Congress was likely uninterested in "the theoretical question of whether the consumer would have gotten a better rate with perfect credit." Ante, at 2213.[2] The Court's decision, however, disserves not only those consumers with "gilt-edged credit report[s]," ante, at 2214, but also the much larger category of consumers with better-than-"neutral" scores. I find it difficult to believe that Congress could have intended for a company's unrestrained adoption of a "neutral" score to keep many (if not most) consumers from ever hearing that their credit reports are costing them money. In my view, the statute's text is amenable to a more sensible interpretation. Justice THOMAS, with whom Justice ALITO joins, concurring in part. I agree with the Court's disposition and most of its reasoning. Safeco did not send notices to new customers because it took the position that the initial insurance rate it offered a customer could not be an "increase in any charge for ... insurance" under 15 U.S.C. § 1681a(k)(1)(B)(i). The Court properly holds that regardless of the merits of this interpretation, it is not an unreasonable one, and Safeco therefore did not act willfully. Ante, at 2214-2216. I *2218 do not join Part III-A of the Court's opinion, however, because it resolves the merits of Safeco's interpretation of § 1681a(k)(1)(B)(i)—an issue not necessary to the Court's conclusion and not briefed or argued by the parties.

While I join the Court's judgment and Parts I, II, III-A, and IV-B of the Court's opinion, I disagree with the reasoning in Parts III-B and III-C, as well as with Part IV-A, which relies on that reasoning. *2217 An adverse action taken after reviewing a credit report "is based in whole or in part on" that report within the meaning of 15 U.S.C. 1681m(a). That is true even if the company would have made the same decision without looking at the report, because what the company actually did is more relevant than what it might have done. I find nothing in the statute making the examination of a credit report a "necessary condition" of any resulting increase. Ante, at 2211. The more natural reading is that reviewing a report is only a sufficient condition. The Court's contrary position leads to a serious anomaly. As a matter of federal law, companies are free to adopt whatever "neutral" credit scores they want. That score need not (and probably will not) reflect the median consumer credit score. More likely, it will reflect a company's assessment of the creditworthiness of a run-of-the-mill applicant who lacks a credit report. Because those who have yet to develop a credit history are unlikely to be good credit risks, "neutral" credit scores will in many cases be quite low. Yet under the Court's reasoning, only those consumers with credit scores even lower than what may already be a very low "neutral" score will ever receive adverse action notices.[1] While the Court acknowledges that "the neutral-score baseline will leave some consumers without a notice that might lead to discovering errors," ante, at 2213-2214, it finds this unobjectionable because Congress was likely uninterested in "the theoretical question of whether the consumer would have gotten a better rate with perfect credit." Ante, at 2213.[2] The Court's decision, however, disserves not only those consumers with "gilt-edged credit report[s]," ante, at 2214, but also the much larger category of consumers with better-than-"neutral" scores. I find it difficult to believe that Congress could have intended for a company's unrestrained adoption of a "neutral" score to keep many (if not most) consumers from ever hearing that their credit reports are costing them money. In my view, the statute's text is amenable to a more sensible interpretation. Justice THOMAS, with whom Justice ALITO joins, concurring in part. I agree with the Court's disposition and most of its reasoning. Safeco did not send notices to new customers because it took the position that the initial insurance rate it offered a customer could not be an "increase in any charge for insurance" under 15 U.S.C. 1681a(k)(1)(B)(i). The Court properly holds that regardless of the merits of this interpretation, it is not an unreasonable one, and Safeco therefore did not act willfully. Ante, at 2214-2216. I *2218 do not join Part III-A of the Court's opinion, however, because it resolves the merits of Safeco's interpretation of 1681a(k)(1)(B)(i)—an issue not necessary to the Court's conclusion and not briefed or argued by the parties.

Justice Breyer

majority

O'Gilvie v. United States

1996-12-10

https://www.courtlistener.com/opinion/118070/ogilvie-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118070/

1996-009

Internal Revenue Code § 104(a)(2), as it read in 1988, excluded from "gross income" the "amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness. " 26 U.S. C. § 104(a)(2) (emphasis added). The issue before us is whether this provision applies to (and thereby makes nontaxable) punitive damages received by a plaintiff in a tort suit for personal injuries. We conclude that the punitive damages received here were not received "on account of " personal injuries; hence the provision does not apply, and the damages are taxable. I Petitioners in this litigation are the husband and two children of Betty O'Gilvie, who died in 1983 of toxic shock syndrome. Her husband, Kelly, brought a tort suit (on his own behalf and that of her estate) based on Kansas law against the maker of the product that caused Betty O'Gilvie's death. Eventually, he and the two children received the net proceeds of a jury award of $1,525,000 actual damages and $10 million punitive damages. Insofar as the proceeds represented punitive damages, petitioners paid income tax on the proceeds but immediately sought a refund. The litigation before us concerns petitioners' legal entitlement to that refund. Procedurally speaking, the litigation represents the consolidation of two cases brought in the same Federal District Court: Kelly's suit against the Government for a refund, and the Government's suit against the children to recover the refund that the Government had made to the children earlier. 26 U.S. C. § 7405(b) (authorizing *82 suits by the United States to recover refunds erroneously made). The Federal District Court held on the merits that the statutory phrase "damages . . . On account of personal injury or sickness" includes punitive damages, thereby excluding punitive damages from gross income and entitling Kelly to obtain, and the children to keep, their refund. The Court of Appeals for the Tenth Circuit, however, reversed the District Court. Along with the Fourth, Ninth, and Federal Circuits, it held that the exclusionary provision does not cover punitive damages. 66 F.3d 1550 (1995). Because the Sixth Circuit has held the contrary, the Circuits are divided about the proper interpretation of the provision. We granted certiorari to resolve this conflict. II Petitioners received the punitive damages at issue here "by suit"—indeed "by" an ordinary "suit" for "personal injuries." Contrast United States v. Burke, 504 U.S. 229 (1992) (§ 104(a)(2) exclusion not applicable to backpay awarded under Title VII of the Civil Rights Act of 1964 because the claim was not based upon "`tort or tort type rights,' " id., at 233); Commissioner v. Schleier, 515 U.S. 323 (1995) (alternative holding) (Age Discrimination in Employment Act of 1967 (ADEA) claim is similar to Title VII claim in Burke in this respect). These legal circumstances bring those damages within the gross-income-exclusion provision, however, only if petitioners also "received" those damages "on account of" the "personal injuries." And the phrase "on account of" does not unambiguously define itself. On one linguistic interpretation of those words, that of petitioners, they require no more than a "but-for" connection between "any" damages and a lawsuit for personal injuries. They would thereby bring virtually all personal injury lawsuit damages within the scope of the provision, since: "but for the personal injury, there would be no lawsuit, and but for the lawsuit, there would be no damages." *83 On the Government's alternative interpretation, however, those words impose a stronger causal connection, making the provision applicable only to those personal injury lawsuit damages that were awarded by reason of, or because of, the personal injuries. To put the matter more specifically, they would make the section inapplicable to punitive damages, where those damages "`are not compensation for injury [but] [i]nstead . . . are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.' " Elec- trical Workers v. Foust, 442 U.S. 42, 48 (1979), quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) (footnote omitted). The Government says that such damages were not "received. . . on account of" the personal injuries, but rather were awarded "on account of" a defendant's reprehensible conduct and the jury's need to punish and to deter it. Hence, despite some historical uncertainty about the matter, see Rev. Rul. 75-45, 1975-1 Cum. Bull. 47, revoked by Rev. Rul. 84-108, 1984-2 Cum. Bull. 32, the Government now concludes that these punitive damages fall outside the statute's coverage. We agree with the Government's interpretation of the statute. For one thing, its interpretation gives the phrase "on account of" a meaning consistent with the dictionary definition. See, e. g., Webster's Third New International Dictionary 13 (1981) ("for the sake of: by reason of: because of"). More important, in Schleier, supra, we came close to resolving the statute's ambiguity in the Government's favor. That case did not involve damages received in an ordinary tort suit; it involved liquidated damages and backpay received in a settlement of a lawsuit charging a violation of the ADEA. Nonetheless, in deciding one of the issues there presented (whether the provision now before us covered ADEA liquidated damages), we contrasted the elements of *84 an ordinary tort recovery with ADEA liquidated damages. We said that pain and suffering damages, medical expenses, and lost wages in an ordinary tort case are covered by the statute and hence excluded from income "not simply because the taxpayer received a tort settlement, but rather because each element . . . satisfies the requirement . . . that the damages were received `on account of personal injuries or sickness.' " Id., at 330. In holding that ADEA liquidated damages are not covered, we said that they are not "designed to compensate ADEA victims," id., at 332, n. 5; instead, they are "`punitive in nature,' " id., at 332, quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125 (1985). Applying the same reasoning here would lead to the conclusion that the punitive damages are not covered because they are an element of damages not "designed to compensate. . . victims," Schleier, 515 U. S., at 332; rather they are "`punitive in nature,' " ibid. Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an "independent" ground in support of our decision, id., at 334. We cannot accept petitioners' claim that it was simply a dictum. We also find the Government's reading more faithful to the history of the statutory provision as well as the basic tax-related purpose that the history reveals. That history begins in approximately 1918. At that time, this Court had recently decided several cases based on the principle that a restoration of capital was not income; hence it fell outside the definition of "income" upon which the law imposed a tax. E. g., Doyle v. Mitchell Brothers Co., 247 U.S. 179, 187 (1918); Southern Pacific Co. v. Lowe, 247 U.S. 330, 335 (1918). The Attorney General then advised the Secretary of the Treasury that proceeds of an accident insurance policy should be treated as nontaxable because they primarily *85 "substitute . . . capital which is the source of future periodical income . . . merely tak[ing] the place of capital in human ability which was destroyed by the accident. They are therefore [nontaxable] `capital' as distinguished from `income' receipts." 31 Op. Atty. Gen. 304, 308 (1918). The Treasury Department added that "upon similar principles . . . an amount received by an individual as the result of a suit or compromise for personal injuries sustained by him through accident is not income [that is] taxable. . . ." T. D. 2747, 20 Treas. Dec. Int. Rev. 457 (1918). Soon thereafter, Congress enacted the first predecessor of the provision before us. That provision excluded from income "[a]mounts received, through accident or health insurance or under workmen's compensation acts, as compensation for personal injuries or sickness, plus the amount of any damages received whether by suit or agreement on account of such injuries or sickness." Revenue Act of 1918, ch. 18, § 213(b)(6), 40 Stat. 1066. The provision is similar to the cited materials from the Attorney General and the Secretary of the Treasury in language and structure, all of which suggests that Congress sought, in enacting the statute, to codify the Treasury's basic approach. A contemporaneous House Report, insofar as relevant, confirms this similarity of approach, for it says: "Under the present law it is doubtful whether amounts received through accident or health insurance, or under workmen's compensation acts, as compensation for personal injury or sickness, and damages received on account of such injuries or sickness, are required to be included in gross income. The proposed bill provides *86 that such amounts shall not be included in gross income." H. R. Rep. No. 767, pp. 9-10 (1918). This history and the approach it reflects suggest there is no strong reason for trying to interpret the statute's language to reach beyond those damages that, making up for a loss, seek to make a victim whole, or, speaking very loosely, "return the victim's personal or financial capital." We concede that the original provision's language does go beyond what one might expect a purely tax-policy-related "human capital" rationale to justify. That is because the language excludes from taxation not only those damages that aim to substitute for a victim's physical or personal wellbeing—personal assets that the Government does not tax and would not have taxed had the victim not lost them. It also excludes from taxation those damages that substitute, say, for lost wages, which would have been taxed had the victim earned them. To that extent, the provision can make the compensated taxpayer better off from a tax perspective than had the personal injury not taken place. But to say this is not to support cutting the statute totally free from its original moorings in victim loss. The statute's failure to separate those compensatory elements of damages (or accident insurance proceeds) one from the other does not change its original focus upon damages that restore a loss, that seek to make a victim whole, with a tax-equality objective providing an important part of, even if not the entirety of, the statute's rationale. All this is to say that the Government's interpretation of the current provision (the wording of which has not changed significantly from the original) is more consistent than is petitioners' with the statute's original focus. Finally, we have asked why Congress might have wanted the exclusion to have covered these punitive damages, and we have found no very good answer. Those damages are not a substitute for any normally untaxed personal (or financial) quality, good, or "asset." They do not compensate for *87 any kind of loss. The statute's language does not require, or strongly suggest, their exclusion from income. And we can find no evidence that congressional generosity or concern for administrative convenience stretched beyond the bounds of an interpretation that would distinguish compensatory from noncompensatory damages. Of course, as we have just said, from the perspective of tax policy one might argue that noncompensatory punitive damages and, for example, compensatory lost wages are much the same thing. That is, in both instances, exclusion from gross income provides the taxpayer with a windfall. This circumstance alone, however, does not argue strongly for an interpretation that covers punitive damages, for coverage of compensatory damages has both language and history in its favor to a degree that coverage of noncompensatory punitive damages does not. Moreover, this policy argument assumes that coverage of lost wages is something of an anomaly; if so, that circumstance would not justify the extension of the anomaly or the creation of another. See Wolfman, Current Issues of Federal Tax Policy, 16 U. Ark. Little Rock L. J. 543, 549-550 (1994) ("[T]o build upon" what is, from a tax policy perspective, the less easily explained portion "of the otherwise rational exemption for personal injury," simply "does not make sense"). Petitioners make three sorts of arguments to the contrary. First, they emphasize certain words or phrases in the original, or current, provision that work in their favor. For example, they stress the word "any" in the phrase "any damages." And they note that in both original and current versions Congress referred to certain amounts of money received (from workmen's compensation, for example) as "amounts received . . . as compensation," while here they refer only to "damages received" without adding the limiting phrase "as compensation." 26 U.S. C. § 104(a); Revenue Act of 1918, § 213(b)(6), 40 Stat. 1066. They add that in the original version, the words "on account of personal injuries" *88 might have referred to, and modified, the kind of lawsuit, not the kind of damages. And they find support for this view in the second sentence of the Treasury Regulation first adopted in 1958 which says: "The term `damages received (whether by suit or agreement)' means an amount received (other than workmen's compensation) through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution." 26 CFR § 1.104-1(c) (1996). These arguments, however, show only that one can reasonably read the statute's language in different ways—the very assumption upon which our analysis rests. They do not overcome our interpretation of the provision in Schleier, nor do they change the provision's history. The help that the Treasury Regulation's second sentence gives the petitioners is offset by its first sentence, which says that the exclusion applies to damages received "on account of personal injuries or sickness," and which we have held sets forth an independent requirement. Schleier, 515 U. S., at 336. See Appendix, infra, at 92. Second, petitioners argue that to some extent the purposes that might have led Congress to exclude, say, lost wages from income would also have led Congress to exclude punitive damages, for doing so is both generous to victims and avoids such administrative problems as separating punitive from compensatory portions of a global settlement or determining the extent to which a punitive damages award is itself intended to compensate. Our problem with these arguments is one of degree. Tax generosity presumably has its limits. The administrative problem of distinguishing punitive from compensatory elements is likely to be less serious than, say, distinguishing among the compensatory elements of a settlement (which difficulty might account for the statute's treatment of, say, lost *89 wages). And, of course, the problem of identifying the elements of an ostensibly punitive award does not exist where, as here, relevant state law makes clear that the damages at issue are not at all compensatory, but entirely punitive. Brewer v. Home-Stake Production Co., 200 Kan. 96, 100, 434 P.2d 828, 831 (1967) ("[E]xemplary damages are not regarded as compensatory in any degree"); accord, Smith v. Printup, 254 Kan. 315, 866 P.2d 985 (1993); Folks v. Kansas Power & Light Co., 243 Kan. 57, 755 P.2d 1319 (1988); Nordstrom v. Miller, 227 Kan. 59, 605 P.2d 545 (1980). Third, petitioners rely upon a later enacted law. In 1989, Congress amended the law so that it now specifically says the personal injury exclusion from gross income "shall not apply to any punitive damages in connection with a case not involving physical injury or physical sickness." 26 U.S. C. § 104(a). Why, petitioners ask, would Congress have enacted this amendment removing punitive damages (in nonphysical injury cases) unless Congress believed that, in the amendment's absence, punitive damages did fall within the provision's coverage? The short answer to this question is that Congress might simply have thought that the then-current law about the provision's treatment of punitive damages—in cases of physical and nonphysical injuries—was unclear, that it wanted to clarify the matter in respect to nonphysical injuries, but it wanted to leave the law where it found it in respect to physical injuries. The fact that the law was indeed uncertain at the time supports this view. Compare Rev. Rul. 84-108, 1984-2 Cum. Bull. 32, with, e. g., Roemer v. Commissioner, 716 F.2d 693 (CA9 1983); Miller v. Commissioner, 93 T.C. 330 (1989), rev'd 914 F.2d 586 (CA4 1990). The 1989 amendment's legislative history, insofar as relevant, offers further support. The amendment grew out of the Senate's refusal to agree to a House bill that would have *90 made all damages in nonphysical personal injury cases taxable. The Senate was willing to specify only that the Government could tax punitive damages in such cases. Compare H. R. Rep. No. 101-247, p. 1355 (1989), with H. R. Conf. Rep. No. 101-386, pp. 622-623 (1989). Congress' primary focus, in other words, was upon what to do about nonphysical personal injuries, not upon the provision's coverage of punitive damages under pre-existing law. We add that, in any event, the view of a later Congress cannot control the interpretation of an earlier enacted statute. United States v. Price, 361 U.S. 304 (1960); Higgins v. Smith, 308 U.S. 473 (1940). But cf. Burke, 504 U. S., at 235, n. 6 (including a passing reference to the 1989 amendment, in dicta, as support for a view somewhat like that of petitioners). (Although neither party has argued that it is relevant, we note in passing that § 1605 of the Small Business Job Protection Act of 1996, Pub. L. 104-188, 110 Stat. 1838, explicitly excepts most punitive damages from the exclusion provided by § 104(a)(2). Because it is of prospective application, the section does not apply here. The Conference Report on the new law says that "[n]o inference is intended" as to the proper interpretation of § 104(a)(2) prior to amendment. H. R. Conf. Rep. No. 104-737, p. 301 (1996).) The upshot is that we do not find petitioners' arguments sufficiently persuasive. And, for the reasons set out supra, at 83-87, we agree with the Government's interpretation of the statute. III Petitioners have raised two further issues, specific to the procedural posture of this litigation. First, the O'Gilvie children point out that the Government had initially accepted their claim for a refund and wrote those checks on July 6, 1990. The Government later changed its mind and, on July 9, 1992, two years plus three days later, filed suit against them seeking the return of a refund erroneously made. 26 U.S. C. § 7405(b) (authorizing a "civil action brought in the *91 name of the United States" to recover any "portion of a tax. . . which has been erroneously refunded"). They add that the relevant statute of limitations specifies that recovery of the refund "shall be allowed only if such suit is begun within 2 years after the making of such refund." § 6532(b). The children concede that they received the refund checks on July 9, 1990, and they agree that if the limitation period runs from the date of receipt—if, as the Government argues, that is the date of the "making of" the refund—the Government's suit was timely. But the children say that the refund was made on, and the limitations period runs from, the date the Government mailed the checks (presumably July 6, 7, or 8), in which case the Government brought this suit one or two or three days too late. In our view, the Government is correct in its claim that its lawsuit was timely. The language of the statute admits of both interpretations. But the law ordinarily provides that an action to recover mistaken payments of money "accrues upon the receipt of payment," New Bedford v. Lloyd Investment Associates, Inc., 363 Mass. 112, 119, 292 N.E.2d 688, 692 (1973); accord, Sizemore v. E. T. Barwick Industries, Inc., 225 Tenn. 226, 233, 465 S.W.2d 873, 876 (1971) ("`[T]he time of making the . . . payment . . . was the date of actual receipt' "), unless, as in some States and in some cases, it accrues upon the still later date of the mistake's discovery, see Allen & Lamkin, When Statute of Limitations Begins to Run Against Action to Recover Money Paid By Mistake, 79 A. L. R. 3d 754, 766-769 (1977). We are not aware of any good reason why Congress would have intended a different result where the nature of the claim is so similar to a traditional action for money paid by mistake—an action the roots of which can be found in the old common-law claim of "assumpsit" or "money had and received." New Bedford, supra, at 118, 292 N.E.2d, at 691-692. The lower courts and commentators have reached a similar conclusion. United States v. Carter, 906 F.2d 1375 (CA9 1990); Akers v. United States, 541 F. Supp. 65, 67 (MD Tenn. 1981); United *92 States v. Woodmansee, 388 F. Supp. 36, 46 (ND Cal. 1975), rev'd on other grounds, 578 F.2d 1302 (CA9 1978); 14 J. Mertens Law of Federal Income Taxation § 54A.69 (1995); Kafka & Cavanagh, Litigation of Federal Civil Tax Controversies § 20.03, p. 20-15 (2d ed. 1995). That conclusion is consistent with dicta in an earlier case from this Court, United States v. Wurts, 303 U.S. 414, 417-418 (1938), as well as with this Court's normal practice of construing ambiguous statutes of limitations in Government action in the Government's favor. E. g., Badaracco v. Commissioner, 464 U.S. 386, 391 (1984). We concede the children's argument that a "date of mailing" interpretation produces marginally greater certainty, for such a rule normally would refer the court to the postmark to establish the date. But there is no indication that a "date of receipt" rule has proved difficult to administer in ordinary state or common-law actions for money paid erroneously. The date the check clears, after all, sets an outer bound. Second, Kelly O'Gilvie says that the Court of Appeals should not have considered the Government's original appeal from the District Court's judgment in his favor because, in his view, the Government filed its notice of appeal a few days too late. The Court of Appeals describes the circumstances underlying this case-specific issue in its opinion. We agree with its determination of the matter for the reasons it has there set forth. The judgment of the Court of Appeals is Affirmed. APPENDIX TO OPINION OF THE COURT Section 104(a), in 1988, read as follows: "Compensation for injuries or sickness "(a) In general.—Except in the case of amounts attributable to (and not in excess of) deductions allowed under *93 section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include— "(1) amounts received under workmen's compensation acts as compensation for personal injuries or sickness; "(2) the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness; "(3) amounts received through accident or health insurance for personal injuries or sickness (other than amounts received by an employee, to the extent such amounts (A) are attributable to contributions by the employer which were not includible in the gross income of the employee, or (B) are paid by the employer); "(4) amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the Coast and Geodetic Survey or the Public Health Service, or as a disability annuity payable under the provisions of section 808 of the Foreign Service Act of 1980; and "(5) amounts received by an individual as disability income attributable to injuries incurred as a direct result of a violent attack which the Secretary of State determines to be a terrorist attack and which occurred while such individual was an employee of the United States engaged in the performance of his official duties outside the United States." 26 U.S. C. § 104 (1988 ed.). In 1989, § 104(a) was amended, adding, among other things, the following language: "Paragraph (2) shall not apply to any punitive damages in connection with a case not involving physical injury or physical sickness." 26 U.S. C. § 104(a). *94 Treasury Regulation § 1.104-1(c) provides: "Section 104(a)(2) excludes from gross income the amount of any damages received (whether by suit or agreement) on account of personal injuries or sickness. The term `damages received (whether by suit or agreement)' means an amount received (other than workmen's compensation) through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution." 26 CFR § 1.104-1(c) (1996).

Internal Revenue Code 104(a)(2), as it read in excluded from "gross income" the "amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness. " 26 U.S. C. 104(a)(2) (emphasis added). The issue before us is whether this provision applies to (and thereby makes nontaxable) punitive damages received by a plaintiff in a tort suit for personal injuries. We conclude that the punitive damages received here were not received "on account of " personal injuries; hence the provision does not apply, and the damages are taxable. I Petitioners in this litigation are the husband and two children of Betty O'Gilvie, who died in of toxic shock syndrome. Her husband, Kelly, brought a tort suit (on his own behalf and that of her estate) based on Kansas law against the maker of the product that caused Betty O'Gilvie's death. Eventually, he and the two children received the net proceeds of a jury award of $1,525,000 actual damages and $10 million punitive damages. Insofar as the proceeds represented punitive damages, petitioners paid income tax on the proceeds but immediately sought a refund. The litigation before us concerns petitioners' legal entitlement to that refund. Procedurally speaking, the litigation represents the consolidation of two cases brought in the same Federal District Court: Kelly's suit against the Government for a refund, and the Government's suit against the children to recover the refund that the Government had made to the children earlier. 26 U.S. C. 7405(b) (authorizing *82 suits by the United States to recover refunds erroneously made). The Federal District Court held on the merits that the statutory phrase "damages On account of personal injury or sickness" includes punitive damages, thereby excluding punitive damages from gross income and entitling Kelly to obtain, and the children to keep, their refund. The Court of Appeals for the Tenth Circuit, however, reversed the District Court. Along with the Fourth, Ninth, and Federal Circuits, it held that the exclusionary provision does not cover punitive damages. Because the Sixth Circuit has held the contrary, the Circuits are divided ab the proper interpretation of the provision. We granted certiorari to resolve this conflict. II Petitioners received the punitive damages at issue here "by suit"—indeed "by" an ordinary "suit" for "personal injuries." Contrast United ( 104(a)(2) exclusion not applicable to backpay awarded under Title VII of the Civil Rights Act of 1964 because the claim was not based upon "`tort or tort type rights,' " ); (Age Discrimination in Employment Act of (ADEA) claim is similar to Title VII claim in in this respect). These legal circumstances bring those damages within the gross-income-exclusion provision, however, only if petitioners also "received" those damages "on account of" the "personal injuries." And the phrase "on account of" does not unambiguously define itself. On one linguistic interpretation of those words, that of petitioners, they require no more than a "but-for" connection between "any" damages and a lawsuit for personal injuries. They would thereby bring virtually all personal injury lawsuit damages within the scope of the provision, since: "but for the personal injury, there would be no lawsuit, and but for the lawsuit, there would be no damages." *83 On the Government's alternative interpretation, however, those words impose a stronger causal connection, making the provision applicable only to those personal injury lawsuit damages that were awarded by reason of, or because of, the personal injuries. To put the matter more specifically, they would make the section inapplicable to punitive damages, where those damages "`are not compensation for injury [but] [i]nstead are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.' " Elec- trical quoting The Government says that such damages were not "received. on account of" the personal injuries, but rather were awarded "on account of" a defendant's reprehensible conduct and the jury's need to punish and to deter it. Hence, despite some historical uncertainty ab the matter, see Rev. Rul. 75-45, -1 Cum. Bull. 47, revoked by Rev. Rul. 84-108, 1984-2 Cum. Bull. 32, the Government now concludes that these punitive damages fall side the statute's coverage. We agree with the Government's interpretation of the statute. For one thing, its interpretation gives the phrase "on account of" a meaning consistent with the dictionary definition. See, e. g., Webster's Third New International Dictionary 13 ("for the sake of: by reason of: because of"). More important, in we came close to resolving the statute's ambiguity in the Government's favor. That case did not involve damages received in an ordinary tort suit; it involved liquidated damages and backpay received in a settlement of a lawsuit charging a violation of the ADEA. Nonetheless, in deciding one of the issues there presented (whether the provision now before us covered ADEA liquidated damages), we contrasted the elements of *84 an ordinary tort recovery with ADEA liquidated damages. We said that pain and suffering damages, medical expenses, and lost wages in an ordinary tort case are covered by the statute and hence excluded from income "not simply because the taxpayer received a tort settlement, but rather because each element satisfies the requirement that the damages were received `on account of personal injuries or sickness.' " In holding that ADEA liquidated damages are not covered, we said that they are not "designed to compensate ADEA victims," ; instead, they are "`punitive in nature,' " quoting Trans World Airlines, Applying the same reasoning here would lead to the conclusion that the punitive damages are not covered because they are an element of damages not "designed to compensate. victims," 515 U. S., ; rather they are "`punitive in nature,' " Although we gave other reasons for our holding in as well, we explicitly labeled this reason an "independent" ground in support of our decision, We cannot accept petitioners' claim that it was simply a dictum. We also find the Government's reading more faithful to the history of the statutory provision as well as the basic tax-related purpose that the history reveals. That history begins in approximately At that time, this Court had recently decided several cases based on the principle that a restoration of capital was not income; hence it fell side the definition of "income" upon which the law imposed a tax. E. g., ; Shern Pacific The Attorney General then advised the Secretary of the Treasury that proceeds of an accident insurance policy should be treated as nontaxable because they primarily *85 "substitute capital which is the source of future periodical income merely tak[ing] the place of capital in human ability which was destroyed by the accident. They are therefore [nontaxable] `capital' as distinguished from `income' receipts." 31 Op. Atty. Gen. 304, 308 The Treasury Department added that "upon similar principles an amount received by an individual as the result of a suit or compromise for personal injuries sustained by him through accident is not income [that is] taxable." T. D. 2747, Soon thereafter, Congress enacted the first predecessor of the provision before us. That provision excluded from income "[a]mounts received, through accident or health insurance or under workmen's compensation acts, as compensation for personal injuries or sickness, plus the amount of any damages received whether by suit or agreement on account of such injuries or sickness." Revenue Act of ch. 18, 213(b)(6), The provision is similar to the cited materials from the Attorney General and the Secretary of the Treasury in language and structure, all of which suggests that Congress sought, in enacting the statute, to codify the Treasury's basic approach. A contemporaneous House Report, insofar as relevant, confirms this similarity of approach, for it says: "Under the present law it is doubtful whether amounts received through accident or health insurance, or under workmen's compensation acts, as compensation for personal injury or sickness, and damages received on account of such injuries or sickness, are required to be included in gross income. The proposed bill provides *86 that such amounts shall not be included in gross income." H. R. Rep. No. 7, pp. 9-10 This history and the approach it reflects suggest there is no strong reason for trying to interpret the statute's language to reach beyond those damages that, making up for a loss, seek to make a victim whole, or, speaking very loosely, "return the victim's personal or financial capital." We concede that the original provision's language does go beyond what one might expect a purely tax-policy-related "human capital" rationale to justify. That is because the language excludes from taxation not only those damages that aim to substitute for a victim's physical or personal wellbeing—personal assets that the Government does not tax and would not have taxed had the victim not lost them. It also excludes from taxation those damages that substitute, say, for lost wages, which would have been taxed had the victim earned them. To that extent, the provision can make the compensated taxpayer better off from a tax perspective than had the personal injury not taken place. But to say this is not to support cutting the statute totally free from its original moorings in victim loss. The statute's failure to separate those compensatory elements of damages (or accident insurance proceeds) one from the other does not change its original focus upon damages that restore a loss, that seek to make a victim whole, with a tax-equality objective providing an important part of, even if not the entirety of, the statute's rationale. All this is to say that the Government's interpretation of the current provision (the wording of which has not changed significantly from the original) is more consistent than is petitioners' with the statute's original focus. Finally, we have asked why Congress might have wanted the exclusion to have covered these punitive damages, and we have found no very good answer. Those damages are not a substitute for any normally untaxed personal (or financial) quality, good, or "asset." They do not compensate for *87 any kind of loss. The statute's language does not require, or strongly suggest, their exclusion from income. And we can find no evidence that congressional generosity or concern for administrative convenience stretched beyond the bounds of an interpretation that would distinguish compensatory from noncompensatory damages. Of course, as we have just said, from the perspective of tax policy one might argue that noncompensatory punitive damages and, for example, compensatory lost wages are much the same thing. That is, in both instances, exclusion from gross income provides the taxpayer with a windfall. This circumstance alone, however, does not argue strongly for an interpretation that covers punitive damages, for coverage of compensatory damages has both language and history in its favor to a degree that coverage of noncompensatory punitive damages does not. Moreover, this policy argument assumes that coverage of lost wages is something of an anomaly; if so, that circumstance would not justify the extension of the anomaly or the creation of another. See Wolfman, Current Issues of Federal Tax Policy, 16 U. Ark. Little Rock L. J. 543, 549-550 (1994) ("[T]o build upon" what is, from a tax policy perspective, the less easily explained portion "of the otherwise rational exemption for personal injury," simply "does not make sense"). Petitioners make three sorts of arguments to the contrary. First, they emphasize certain words or phrases in the original, or current, provision that work in their favor. For example, they stress the word "any" in the phrase "any damages." And they note that in both original and current versions Congress referred to certain amounts of money received (from workmen's compensation, for example) as "amounts received as compensation," while here they refer only to "damages received" with adding the limiting phrase "as compensation." 26 U.S. C. 104(a); Revenue Act of 213(b)(6), They add that in the original version, the words "on account of personal injuries" *88 might have referred to, and modified, the kind of lawsuit, not the kind of damages. And they find support for this view in the second sentence of the Treasury Regulation first adopted in 1958 which says: "The term `damages received (whether by suit or agreement)' means an amount received (other than workmen's compensation) through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution." 26 CFR 1.104-1(c) (1996). These arguments, however, show only that one can reasonably read the statute's language in different ways—the very assumption upon which our analysis rests. They do not overcome our interpretation of the provision in nor do they change the provision's history. The help that the Treasury Regulation's second sentence gives the petitioners is offset by its first sentence, which says that the exclusion applies to damages received "on account of personal injuries or sickness," and which we have held sets forth an independent requirement. See Appendix, infra, at 92. Second, petitioners argue that to some extent the purposes that might have led Congress to exclude, say, lost wages from income would also have led Congress to exclude punitive damages, for doing so is both generous to victims and avoids such administrative problems as separating punitive from compensatory portions of a global settlement or determining the extent to which a punitive damages award is itself intended to compensate. Our problem with these arguments is one of degree. Tax generosity presumably has its limits. The administrative problem of distinguishing punitive from compensatory elements is likely to be less serious than, say, distinguishing among the compensatory elements of a settlement (which difficulty might account for the statute's treatment of, say, lost *89 wages). And, of course, the problem of identifying the elements of an ostensibly punitive award does not exist where, as here, relevant state law makes clear that the damages at issue are not at all compensatory, but entirely punitive. ; accord, ; ; Third, petitioners rely upon a later enacted law. In Congress amended the law so that it now specifically says the personal injury exclusion from gross income "shall not apply to any punitive damages in connection with a case not involving physical injury or physical sickness." 26 U.S. C. 104(a). Why, petitioners ask, would Congress have enacted this amendment removing punitive damages (in nonphysical injury cases) unless Congress believed that, in the amendment's absence, punitive damages did fall within the provision's coverage? The short answer to this question is that Congress might simply have thought that the then-current law ab the provision's treatment of punitive damages—in cases of physical and nonphysical injuries—was unclear, that it wanted to clarify the matter in respect to nonphysical injuries, but it wanted to leave the law where it found it in respect to physical injuries. The fact that the law was indeed uncertain at the time supports this view. Compare Rev. Rul. 84-108, 1984-2 Cum. Bull. 32, with, e. g., ; rev'd The amendment's legislative history, insofar as relevant, offers further support. The amendment grew of the Senate's refusal to agree to a House bill that would have *90 made all damages in nonphysical personal injury cases taxable. The Senate was willing to specify only that the Government could tax punitive damages in such cases. Compare H. R. Rep. No. 101-247, p. 1355 with H. R. Conf. Rep. No. 101-386, pp. 622-623 Congress' primary focus, in other words, was upon what to do ab nonphysical personal injuries, not upon the provision's coverage of punitive damages under pre-existing law. We add that, in any event, the view of a later Congress cannot control the interpretation of an earlier enacted statute. United ; But cf. n. 6 (including a passing reference to the amendment, in dicta, as support for a view somewhat like that of petitioners). (Although neither party has argued that it is relevant, we note in passing that 1605 of the Small Business Job Protection Act of 1996, Stat. 1838, explicitly excepts most punitive damages from the exclusion provided by 104(a)(2). Because it is of prospective application, the section does not apply here. The Conference Report on the new law says that "[n]o inference is intended" as to the proper interpretation of 104(a)(2) prior to amendment. H. R. Conf. Rep. No. 104-737, p. 301 (1996).) The upshot is that we do not find petitioners' arguments sufficiently persuasive. And, for the reasons set we agree with the Government's interpretation of the statute. III Petitioners have raised two further issues, specific to the procedural posture of this litigation. First, the O'Gilvie children point that the Government had initially accepted their claim for a refund and wrote those checks on July 6, The Government later changed its mind and, on July 9, 1992, two years plus three days later, filed suit against them seeking the return of a refund erroneously made. 26 U.S. C. 7405(b) (authorizing a "civil action brought in the *91 name of the United States" to recover any "portion of a tax. which has been erroneously refunded"). They add that the relevant statute of limitations specifies that recovery of the refund "shall be allowed only if such suit is begun within 2 years after the making of such refund." 6532(b). The children concede that they received the refund checks on July 9, and they agree that if the limitation period runs from the date of receipt—if, as the Government argues, that is the date of the "making of" the refund—the Government's suit was timely. But the children say that the refund was made on, and the limitations period runs from, the date the Government mailed the checks (presumably July 6, 7, or 8), in which case the Government brought this suit one or two or three days too late. In our view, the Government is correct in its claim that its lawsuit was timely. The language of the statute admits of both interpretations. But the law ordinarily provides that an action to recover mistaken payments of money "accrues upon the receipt of payment," New ; accord, unless, as in some States and in some cases, it accrues upon the still later date of the mistake's discovery, see Allen & Lamkin, When Statute of Limitations Begins to Run Against Action to Recover Money Paid By Mistake, 79 A. L. R. 3d 754, 766-769 (1977). We are not aware of any good reason why Congress would have intended a different result where the nature of the claim is so similar to a traditional action for money paid by mistake—an action the roots of which can be found in the old common-law claim of "assumpsit" or "money had and received." New Bedford, -. The lower courts and commentators have reached a similar conclusion. United ; ; United *92 rev'd on other grounds, ; 14 J. Mertens Law of Federal Income Taxation 54A.69 ; Kafka & Cavanagh, Litigation of Federal Civil Tax Controversies 20.03, p. 20-15 That conclusion is consistent with dicta in an earlier case from this Court, United as well as with this Court's normal practice of construing ambiguous statutes of limitations in Government action in the Government's favor. E. g., 4 U.S. 386, We concede the children's argument that a "date of mailing" interpretation produces marginally greater certainty, for such a rule normally would refer the court to the postmark to establish the date. But there is no indication that a "date of receipt" rule has proved difficult to administer in ordinary state or common-law actions for money paid erroneously. The date the check clears, after all, sets an er bound. Second, Kelly O'Gilvie says that the Court of Appeals should not have considered the Government's original appeal from the District Court's judgment in his favor because, in his view, the Government filed its notice of appeal a few days too late. The Court of Appeals describes the circumstances underlying this case-specific issue in its opinion. We agree with its determination of the matter for the reasons it has there set forth. The judgment of the Court of Appeals is Affirmed. APPENDIX TO OPINION OF THE COURT Section 104(a), in read as follows: "Compensation for injuries or sickness "(a) In general.—Except in the case of amounts attributable to (and not in excess of) deductions allowed under *93 section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include— "(1) amounts received under workmen's compensation acts as compensation for personal injuries or sickness; "(2) the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness; "(3) amounts received through accident or health insurance for personal injuries or sickness (other than amounts received by an employee, to the extent such amounts (A) are attributable to contributions by the employer which were not includible in the gross income of the employee, or (B) are paid by the employer); "(4) amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the Coast and Geodetic Survey or the Public Health Service, or as a disability annuity payable under the provisions of section 808 of the Foreign Service Act of ; and "(5) amounts received by an individual as disability income attributable to injuries incurred as a direct result of a violent attack which the Secretary of State determines to be a terrorist attack and which occurred while such individual was an employee of the United States engaged in the performance of his official duties side the United States." 26 U.S. C. 104 ( ed.). In 104(a) was amended, adding, among other things, the following language: "Paragraph (2) shall not apply to any punitive damages in connection with a case not involving physical injury or physical sickness." 26 U.S. C. 104(a). *94 Treasury Regulation 1.104-1(c) provides: "Section 104(a)(2) excludes from gross income the amount of any damages received (whether by suit or agreement) on account of personal injuries or sickness. The term `damages received (whether by suit or agreement)' means an amount received (other than workmen's compensation) through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution." 26 CFR 1.104-1(c) (1996).

Justice Scalia

dissenting

O'Gilvie v. United States

1996-12-10

https://www.courtlistener.com/opinion/118070/ogilvie-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118070/

1996-009

Section 104(a)(2), as it stood at the time relevant to these cases, provided an exclusion from income for "any damages received . . . on account of personal injuries or sickness." 26 U.S. C. § 104(a)(2) (1988 ed.). The Court is of the view that this phrase, in isolation, is just as susceptible of a meaning that includes only compensatory damages as it is of a broader meaning that includes punitive damages as well. Ante, at 82-83. I do not agree. The Court greatly understates the connection between an award of punitive damages and the personal injury complained of, describing it as nothing more than "but-for" causality, ante, at 82. It seems to me that the personal injury is as proximate a cause of the punitive damages as it is of the compensatory damages; in both cases it is the reason the damages are awarded. That is why punitive damages are called damages. To be sure, punitive damages require intentional, blameworthy conduct, which can be said to be a coequal reason they are awarded. But negligent (or intentional) conduct occupies the same role of coequal causality with regard to compensatory damages. Both types of damages are "received on account of" the personal injury. The nub of the matter, it seems to me, is this: If one were to be asked, by a lawyer from another legal system, "What damages can be received on account of personal injuries in *95 the United States?" surely the correct answer would be "Compensatory damages and punitive damages—the former to compensate for the inflicting of the personal injuries, and the latter to punish for the inflicting of them." If, as the Court asserts, the phrase "damages received on account of personal injuries" can be used to refer only to the former category, that is only because people sometimes can be imprecise. The notion that Congress carefully and precisely used the phrase "damages received on account of personal injuries" to segregate out compensatory damages seems to me entirely fanciful. That is neither the exact nor the ordinary meaning of the phrase, and hence not the one that the statute should be understood to intend. What I think to be the fair meaning of the phrase in isolation becomes even clearer when the phrase is considered in its statutory context. The Court proceeds too quickly from its erroneous premise of ambiguity to analysis of the history and policy behind § 104(a)(2). Ante, at 84-87. Ambiguity in isolation, even if it existed, would not end the textual inquiry. Statutory construction, we have said, is a "holistic endeavor." United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988). "A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme." Ibid. Section 104(a)(2) appears immediately after another provision, § 104(a)(1), which parallels § 104(a)(2) in several respects but does not use the critical phrase "on account of": "(a) [G]ross income does not include— "(1) amounts received under workmen's compensation acts as compensation for personal injuries or sickness; "(2) the amount of any damages received . . . on account of personal injuries or sickness." (Emphasis added.) Although § 104(a)(1) excludes amounts received "as compensation for" personal injuries or sickness, while § 104(a)(2) excludes amounts received "on account of" personal injuries or *96 sickness, the Court reads the two phrases to mean precisely the same thing. That is not sound textual interpretation. "[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended." 2A N. Singer, Sutherland on Statutory Construction § 46.07 (5th ed. 1992 and Supp. 1996). See, e. g., Russello v. United States, 464 U.S. 16, 23 (1983). This principle of construction has its limits, of course: Use of different terminology in differing contexts might have little significance. But here the contrasting phrases appear in adjoining provisions that address precisely the same subject matter and that even have identical grammatical structure. The contrast between the two usages is even more striking in the original statute that enacted them. The Revenue Act of 1918 combined subsections (a)(1) and (a)(2) of § 104, together with (a)(3) (which provides an exclusion from income for amounts received through accident or health insurance for personal injuries or sickness), into a single subsection, which provided: "`Gross income' . . . [d]oes not include . . . : "(6) Amounts received, through accident or health insurance or under workmen's compensation acts, as compen- sation for personal injuries or sickness, plus the amount of any damages received . . . on account of such injuries or sickness." § 213(b)(6) of the Revenue Act of 1918, 40 Stat. 1065-1066 (emphasis added). The contrast between the first exclusion and the second could not be more clear. Had Congress intended the latter provision to cover only damages received "as compensation for" personal injuries or sickness, it could have written "amounts received, through accident or health insurance, under workmen's compensation acts, or in damages, as compensation for personal injuries or sickness." Instead, it tacked on an additional phrase "plus the amount of[, etc.]" *97 with no apparent purpose except to make clear that not only compensatory damages were covered by the exclusion. The Court maintains, however, that the Government's reading of § 104(a)(2) is "more faithful to [its] history." Ante, at 84. The "history" to which the Court refers is not statutory history of the sort just discussed—prior enactments approved by earlier Congresses and revised or amended by later ones to produce the current text. Indeed, it is not "history" from within even a small portion of Congress, since the House Committee Report the Court cites, standing by itself, is uninformative, saying only that "[u]nder the present law it is doubtful whether . . . damages received on account of [personal] injuries or sickness are required to be included in gross income." H. R. Rep. No. 767, 65th Cong., 2d Sess., 9-10 (1918). The Court makes this snippet of legislative history relevant by citing as pertinent an antecedent Treasury Department decision, which concludes on the basis of recent judicial decisions that amounts received from prosecution or compromise of a personal-injury suit are not taxable because they are a return of capital. Ante, at 85 (citing T. D. 2747, 20 Treas. Dec. Int. Rev. 457 (1918)). One might expect the Court to conclude from this that the Members of Congress (on the unrealistic assumption that they knew about the Executive Branch opinion) meant the statutory language to cover only return of capital, the source of the "doubt" to which the Committee Report referred. But of course the Court cannot draw that logical conclusion, since even if it is applied only to compensatory damages the statute obviously and undeniably covers more than mere return of "human capital," namely, reimbursement for lost income, which would be a large proportion (indeed perhaps the majority) of any damages award. The Court concedes this is so, but asserts that this inconsistency is not enough "to support cutting the statute totally free from its original moorings," ante, at 86, by which I assume it means the Treasury Decision, however erroneous it might have been as *98 to the "capital" nature of compensatory damages. But the Treasury Decision was no more explicitly limited to compensatory damages than is the statute before us. It exempted from taxation "an amount received by an individual as the result of a suit or compromise for personal injuries." T. D. 2747, supra, at 457. The Court's entire thesis of taxability rests upon the proposition that this Treasury Decision, which overlooked the obvious fact that "an amount received . . . as the result of a suit or compromise for personal injuries" almost always includes compensation for lost future income, did not overlook the obvious fact that such an amount sometimes includes "smart money." So, to trace the Court's reasoning: The statute must exclude punitive damages because the Committee Report must have had in mind a 1918 Treasury Decision, whose text no more supports exclusion of punitive damages than does the text of the statute itself, but which must have meant to exclude punitive damages since it was based on the "return-ofcapital" theory, though, inconsistently with that theory, it did not exclude the much more common category of compensation for lost income. Congress supposedly knew all of this, and a reasonably diligent lawyer could figure it out by mistrusting the inclusive language of the statute, consulting the Committee Report, surmising that the Treasury Decision of 1918 underlay that Report, mistrusting the inclusive language of the Treasury Decision, and discerning that Treasury could have overlooked lost-income compensatories, but could not have overlooked punitives. I think not. The sure and proper guide, it seems to me, is the language of the statute, inclusive by nature and doubly inclusive by contrast with surrounding provisions. The Court poses the question, ante, at 86, "why Congress might have wanted the exclusion [in § 104(a)(2)] to have covered . . .punitive damages." If an answer is needed (and the text being as clear as it is, I think it is not), surely it suffices to surmise that Congress was following the Treasury *99 Decision, which had inadvertently embraced punitive damages just as it had inadvertently embraced future-income compensatory damages. Or if some reason free of human error must be found, I see nothing wrong with what the Court itself suggests but rejects out of hand: Excluding punitive as well as compensatory damages from gross income "avoids such administrative problems as separating punitive from compensatory portions of a global settlement." Ante, at 88. How substantial that particular problem is is suggested by the statistics which show that 73 percent of tort cases in state court are disposed of by settlement, and between 92 and 99 percent of tort cases in federal court are disposed of by either settlement or some other means (such as summary judgment) prior to trial. See B. Ostrom & N. Kauder, Examining the Work of State Courts, 1994, p. 34 (1996); Administrative Office of the United States Courts, L. Mecham, Judicial Business of the United States Courts: 1995 Report of the Director 162-164. What is at issue, of course, is not just imposing on the parties the necessity of allocating the settlement between compensatory and punitive damages (with the concomitant suggestion of intentional wrongdoing that any allocation to punitive damages entails), but also imposing on the Internal Revenue Service the necessity of reviewing that allocation, since there would always be strong incentive to inflate the tax-free compensatory portion. The Court's only response to the suggestion that this is an adequate reason (if one is required) for including punitive damages in the exemption is that "[t]he administrative problem of distinguishing punitive from compensatory elements is likely to be less serious than, say, distinguishing among the compensatory elements of a settlement." Ante, at 88. Perhaps so; and it may also be more simple than splitting the atom; but that in no way refutes the point that it is complicated enough to explain the inclusion of punitive damages in an exemption that has already abandoned the purity of a "return-of-capital" rationale. *100 The remaining argument offered by the Court is that our decision in Commissioner v. Schleier, 515 U.S. 323 (1995), came "close to resolving"—in the Government's favor—the question whether § 104(a)(2) permits the exclusion of punitive damages. Ante, at 83. I disagree. In Schleier we were faced with the question whether backpay and liquidated damages under the Age Discrimination in Employment Act of 1967 (ADEA) were "damages received . . . on account of personal injuries or sickness" for purposes of § 104(a)(2)'s exclusion. As the dissent accurately observed, 515 U.S., at 342 (opinion of O'Connor, J.),"the key to the Court's analysis" was the determination that an ADEA cause of action did not necessarily entail "personal injury or sickness," so that the damages awarded for that cause of action could hardly be awarded "on account of personal injuries or sickness." See id., at 330. In the case at hand, we said, "respondent's unlawful termination may have caused some psychological or `personal' injury comparable to the intangible pain and suffering caused by an automobile accident," but "it is clear that no part of respondent's recovery of back wages is attributable to that injury." Ibid. The respondent countered that at least "the liquidated damages portion of his settlement" could be linked to that psychological injury. Id., at 331. And it was in response to that argument that we made the statement which the Court seeks to press into service for today's opinion. ADEA liquidated damages, we said, were punitive in nature, rather than compensatory. Id., at 331-332, and n. 5. The Court recites this statement as though the point of it was that punitive damages could not be received "on account of" personal injuries, whereas in fact the point was quite different: Since the damages were punishment for the conduct that gave rise to the (non-personal-injury) cause of action, they could not be "linked to" the incidental psychological injury. In the present cases, of course, there is no question that a personal injury occurred and that this personal *101 injury is what entitled petitioners to compensatory and punitive damages. We neither decided nor intimated in Schleier whether punitive damages that are indisputably "linked to" personal injuries or sickness are received "on account of" such injuries or sickness. Indeed, it would have been odd for us to resolve that question (or even come "close to resolving" it) without any discussion of the numerous considerations of text, history, and policy highlighted by today's opinion. If one were to search our opinions for a dictum bearing upon the present issue, much closer is the statement in United States v. Burke, 504 U.S. 229 (1992), that a statute confers "tort or tort type rights" (qualifying a plaintiff's recovery for the § 104(a)(2) exemption) if it entitles the plaintiff to "a jury trial at which `both equitable and legal relief, including compensatory and, under certain circumstances, punitive damages' may be awarded." Id., at 240 (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460 (1975)). But all of this is really by the way. Because the statutory text unambiguously covers punitive damages that are awarded on account of personal injuries, I conclude that petitioners were entitled to deduct the amounts at issue here. This makes it unnecessary for me to reach the question, discussed ante, at 90-92, whether the Government's refund action against the O'Gilvie children was commenced within the 2-year period specified by 26 U.S. C. § 6532(b). I note, however, that the Court's resolution of these cases also does not demand that this issue be addressed, except to the extent of rejecting the proposition that the statutory period begins to run with the mailing of a refund check. So long as that is not the trigger, there is no need to decide whether the proper trigger is receipt of the check or some later event, such as the check's clearance. For the reasons stated, I respectfully dissent from the judgment of the Court.

Section 104(a)(2), as it stood at the time relevant to these cases, provided an exclusion from income for "any damages received on account of personal injuries or sickness." 26 U.S. C. 104(a)(2) (1988 ed.). The Court is of the view that this phrase, in isolation, is just as susceptible of a meaning that includes only compensatory damages as it is of a broader meaning that includes punitive damages as well. Ante, at 82-83. I do not agree. The Court greatly understates the connection between an award of punitive damages and the personal injury complained of, describing it as nothing more than "but-for" causality, ante, at 82. It seems to me that the personal injury is as proximate a cause of the punitive damages as it is of the compensatory damages; in both cases it is the reason the damages are awarded. That is why punitive damages are called damages. To be sure, punitive damages require intentional, blameworthy conduct, which can be said to be a coequal reason they are awarded. But negligent (or intentional) conduct occupies the same role of coequal causality with regard to compensatory damages. Both types of damages are "received on account of" the personal injury. The nub of the matter, it seems to me, is this: If one were to be asked, by a lawyer from another legal system, "What damages can be received on account of personal injuries in *95 the United States?" surely the correct answer would be "Compensatory damages and punitive damages—the former to compensate for the inflicting of the personal injuries, and the latter to punish for the inflicting of them." If, as the Court asserts, the phrase "damages received on account of personal injuries" can be used to refer only to the former category, that is only because people sometimes can be imprecise. The notion that Congress carefully and precisely used the phrase "damages received on account of personal injuries" to segregate out compensatory damages seems to me entirely fanciful. That is neither the exact nor the ordinary meaning of the phrase, and hence not the one that the statute should be understood to intend. What I think to be the fair meaning of the phrase in isolation becomes even clearer when the phrase is considered in its statutory context. The Court proceeds too quickly from its erroneous premise of ambiguity to analysis of the history and policy behind 104(a)(2). Ante, at 84-87. Ambiguity in isolation, even if it existed, would not end the textual inquiry. Statutory construction, we have said, is a "holistic endeavor." United Sav. Assn. of "A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme." Section 104(a)(2) appears immediately after another provision, 104(a)(1), which parallels 104(a)(2) in several respects but does not use the critical phrase "on account of": "(a) [G]ross income does not include— "(1) amounts received under workmen's compensation acts as compensation for personal injuries or sickness; "(2) the amount of any damages received on account of personal injuries or sickness." (Emphasis added.) Although 104(a)(1) excludes amounts received "as compensation for" personal injuries or sickness, while 104(a)(2) excludes amounts received "on account of" personal injuries or *96 sickness, the Court reads the two phrases to mean precisely the same thing. That is not sound textual interpretation. "[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended." 2A N. Singer, Sutherland on Statutory Construction 46.07 (5th ed. 1992 and Supp. 1996). See, e. g., This principle of construction has its limits, of course: Use of different terminology in differing contexts might have little significance. But here the contrasting phrases appear in adjoining provisions that address precisely the same subject matter and that even have identical grammatical structure. The contrast between the two usages is even more striking in the original statute that enacted them. The Revenue Act of combined subsections (a)(1) and (a)(2) of 104, together with (a)(3) (which provides an exclusion from income for amounts received through accident or health insurance for personal injuries or sickness), into a single subsection, which provided: "`Gross income' [d]oes not include : "(6) Amounts received, through accident or health insurance or under workmen's compensation acts, as compen- sation for personal injuries or sickness, plus the amount of any damages received on account of such injuries or sickness." 213(b)(6) of the Revenue Act of -1066 (emphasis added). The contrast between the first exclusion and the second could not be more clear. Had Congress intended the latter provision to cover only damages received "as compensation for" personal injuries or sickness, it could have written "amounts received, through accident or health insurance, under workmen's compensation acts, or in damages, as compensation for personal injuries or sickness." Instead, it tacked on an additional phrase "plus the amount of[, etc.]" *97 with no apparent purpose except to make clear that not only compensatory damages were covered by the exclusion. The Court maintains, however, that the Government's reading of 104(a)(2) is "more faithful to [its] history." Ante, at 84. The "history" to which the Court refers is not statutory history of the sort just discussed—prior enactments approved by earlier Congresses and revised or amended by later ones to produce the current text. Indeed, it is not "history" from within even a small portion of Congress, since the House Committee Report the Court cites, standing by itself, is uninformative, saying only that "[u]nder the present law it is doubtful whether damages received on account of [personal] injuries or sickness are required to be included in gross income." H. R. Rep. No. 767, 65th Cong., 2d Sess., 9-10 The Court makes this snippet of legislative history relevant by citing as pertinent an antecedent Treasury Department decision, which concludes on the basis of recent judicial decisions that amounts received from prosecution or compromise of a personal-injury suit are not taxable because they are a return of capital. Ante, at 85 ). One might expect the Court to conclude from this that the Members of Congress (on the unrealistic assumption that they knew about the Executive Branch opinion) meant the statutory language to cover only return of capital, the source of the "doubt" to which the Committee Report referred. But of course the Court cannot draw that logical conclusion, since even if it is applied only to compensatory damages the statute obviously and undeniably covers more than mere return of "human capital," namely, reimbursement for lost income, which would be a large proportion (indeed perhaps the majority) of any damages award. The Court concedes this is so, but asserts that this inconsistency is not enough "to support cutting the statute totally free from its original moorings," ante, at 86, by which I assume it means the Treasury Decision, however erroneous it might have been as *98 to the "capital" nature of compensatory damages. But the Treasury Decision was no more explicitly limited to compensatory damages than is the statute before us. It exempted from taxation "an amount received by an individual as the result of a suit or compromise for personal injuries." T. D. 2747, The Court's entire thesis of taxability rests upon the proposition that this Treasury Decision, which overlooked the obvious fact that "an amount received as the result of a suit or compromise for personal injuries" almost always includes compensation for lost future income, did not overlook the obvious fact that such an amount sometimes includes "smart money." So, to trace the Court's reasoning: The statute must exclude punitive damages because the Committee Report must have had in mind a Treasury Decision, whose text no more supports exclusion of punitive damages than does the text of the statute itself, but which must have meant to exclude punitive damages since it was based on the "return-ofcapital" theory, though, inconsistently with that theory, it did not exclude the much more common category of compensation for lost income. Congress supposedly knew all of this, and a reasonably diligent lawyer could figure it out by mistrusting the inclusive language of the statute, consulting the Committee Report, surmising that the Treasury Decision of underlay that Report, mistrusting the inclusive language of the Treasury Decision, and discerning that Treasury could have overlooked lost-income compensatories, but could not have overlooked punitives. I think not. The sure and proper guide, it seems to me, is the language of the statute, inclusive by nature and doubly inclusive by contrast with surrounding provisions. The Court poses the question, ante, at 86, "why Congress might have wanted the exclusion [in 104(a)(2)] to have coveredpunitive damages." If an answer is needed (and the text being as clear as it is, I think it is not), surely it suffices to surmise that Congress was following the Treasury *99 Decision, which had inadvertently embraced punitive damages just as it had inadvertently embraced future-income compensatory damages. Or if some reason free of human error must be found, I see nothing wrong with what the Court itself suggests but rejects out of hand: Excluding punitive as well as compensatory damages from gross income "avoids such administrative problems as separating punitive from compensatory portions of a global settlement." Ante, at 88. How substantial that particular problem is is suggested by the statistics which show that 73 percent of tort cases in state court are disposed of by settlement, and between 92 and 99 percent of tort cases in federal court are disposed of by either settlement or some other means (such as summary judgment) prior to trial. See B. Ostrom & N. Kauder, Examining the Work of State Courts, 1994, p. 34 (1996); Administrative Office of the United States Courts, L. Mecham, Judicial Business of the United States Courts: 1995 Report of the Director 162-164. What is at issue, of course, is not just imposing on the parties the necessity of allocating the settlement between compensatory and punitive damages (with the concomitant suggestion of intentional wrongdoing that any allocation to punitive damages entails), but also imposing on the Internal Revenue Service the necessity of reviewing that allocation, since there would always be strong incentive to inflate the tax-free compensatory portion. The Court's only response to the suggestion that this is an adequate reason (if one is required) for including punitive damages in the exemption is that "[t]he administrative problem of distinguishing punitive from compensatory elements is likely to be less serious than, say, distinguishing among the compensatory elements of a settlement." Ante, at 88. Perhaps so; and it may also be more simple than splitting the atom; but that in no way refutes the point that it is complicated enough to explain the inclusion of punitive damages in an exemption that has already abandoned the purity of a "return-of-capital" rationale. *100 The remaining argument offered by the Court is that our decision in 515 U.S. 3 came "close to resolving"—in the Government's favor—the question whether 104(a)(2) permits the exclusion of punitive damages. Ante, at 83. I disagree. In Schleier we were faced with the question whether backpay and liquidated damages under the Age Discrimination in Employment Act of 1967 (ADEA) were "damages received on account of personal injuries or sickness" for purposes of 104(a)(2)'s exclusion. As the dissent accurately"the key to the Court's analysis" was the determination that an ADEA cause of action did not necessarily entail "personal injury or sickness," so that the damages awarded for that cause of action could hardly be awarded "on account of personal injuries or sickness." See In the case at hand, we said, "respondent's unlawful termination may have caused some psychological or `personal' injury comparable to the intangible pain and suffering caused by an automobile accident," but "it is clear that no part of respondent's recovery of back wages is attributable to that injury." The respondent countered that at least "the liquidated damages portion of his settlement" could be linked to that psychological injury. And it was in response to that argument that we made the statement which the Court seeks to press into service for today's opinion. ADEA liquidated damages, we said, were punitive in nature, rather than compensatory. -332, and n. 5. The Court recites this statement as though the point of it was that punitive damages could not be received "on account of" personal injuries, whereas in fact the point was quite different: Since the damages were punishment for the conduct that gave rise to the (non-personal-injury) cause of action, they could not be "linked to" the incidental psychological injury. In the present cases, of course, there is no question that a personal injury occurred and that this personal *101 injury is what entitled petitioners to compensatory and punitive damages. We neither decided nor intimated in Schleier whether punitive damages that are indisputably "linked to" personal injuries or sickness are received "on account of" such injuries or sickness. Indeed, it would have been odd for us to resolve that question (or even come "close to resolving" it) without any discussion of the numerous considerations of text, history, and policy highlighted by today's opinion. If one were to search our opinions for a dictum bearing upon the present issue, much closer is the statement in United that a statute confers "tort or tort type rights" (qualifying a plaintiff's recovery for the 104(a)(2) exemption) if it entitles the plaintiff to "a jury trial at which `both equitable and legal relief, including compensatory and, under certain circumstances, punitive damages' may be awarded." ). But all of this is really by the way. Because the statutory text unambiguously covers punitive damages that are awarded on account of personal injuries, I conclude that petitioners were entitled to deduct the amounts at issue here. This makes it unnecessary for me to reach the question, discussed ante, at 90-92, whether the Government's refund action against the O'Gilvie children was commenced within the 2-year period specified by 26 U.S. C. 6532(b). I note, however, that the Court's resolution of these cases also does not demand that this issue be addressed, except to the extent of rejecting the proposition that the statutory period begins to run with the mailing of a refund check. So long as that is not the trigger, there is no need to decide whether the proper trigger is receipt of the check or some later event, such as the check's clearance. For the reasons stated, I respectfully dissent from the judgment of the Court.

Justice Thomas

majority

Hunt, Governor of North Carolina v. Cromartie

2001-04-24

532 U.S. 234

https://www.courtlistener.com/opinion/118420/hunt-governor-of-north-carolina-v-cromartie/

https://www.courtlistener.com/api/rest/v3/clusters/118420/

1 Under our decision in Turner v. Safley, 482 U.S. 78 (1987), restrictions on prisoners' communications to other inmates are constitutional if the restrictions are "reasonably related to legitimate penological interests." Id., at 89. In this case, we are asked to decide whether prisoners possess a First Amendment right to provide legal assistance that enhances the protections otherwise available under Turner. We hold that they do not. 2 * While respondent Kevin Murphy was incarcerated at the Montana State Prison, he served as an "inmate law clerk," providing legal assistance to fellow prisoners. Upon learning that inmate Pat Tracy had been charged with assaulting Correctional Officer Glen Galle, Murphy decided to assist Tracy with his defense. Prison rules prohibited Murphy's assignment to the case,1 but he nonetheless investigated the assault. After discovering that other inmates had complained about Officer Galle's conduct, Murphy sent Tracy a letter, which included the following: 3 "I do want to help you with your case against Galle. It wasn't your fault and I know he provoked whatever happened! Don't plead guilty because we can get at least 100 witnesses to testify that Galle is an over zealous guard who has a personal agenda to punish and harrass [sic] inmates. He has made homo-sexual [sic] advances towards certain inmates and that can be brought up into the record. There are petitions against him and I have tried to get the Unit Manager to do something about what he does in Close II, but all that happened is that I received two writeups from him myself as retaliation. So we must pursue this out of the prison system. I am filing a suit with everyone in Close I and II named against him. So you can use that too! 4 "Another poiont [sic] is that he grabbed you from behind. You tell your lawyer to get ahold of me on this. Don't take a plea bargain unless it's for no more time." App. 50. 5 In accordance with prison policy, prison officials intercepted the letter, and petitioner Robert Shaw, an officer in the maximum-security unit, reviewed it. Based on the accusations against Officer Galle, Shaw cited Murphy for violations of the prison's rules prohibiting insolence, interference with due process hearings, and conduct that disrupts or interferes with the security and orderly operation of the institution. After a hearing, Murphy was found guilty of violating the first two prohibitions. The hearings officer sanctioned him by imposing a suspended sentence of 10 days' detention and issuing demerits that could affect his custody level. 6 In response, Murphy brought this action, seeking declaratory and injunctive relief under Rev. Stat. 1979, 42 U.S.C. 1983. The case was styled as a class action, brought on behalf of himself, other inmate law clerks, and other prisoners. The complaint alleged that the disciplining of Murphy violated due process, the rights of inmates to access the courts, and, as relevant here, Murphy's First Amendment rights, including the right to provide legal assistance to other inmates. 7 After discovery, the District Court granted petitioners' motion for summary judgment on all of Murphy's claims. On the First Amendment claim, the court found that Murphy was not formally acting as an inmate law clerk when he wrote the letter, and that Murphy's claims should therefore "be analyzed without consideration of any privilege that law clerk status might provide." App. to Pet. for Cert. 24. The District Court then applied our decision in Turner v. Safley, 482 U.S. 78 (1987), which held that a prison regulation impinging on inmates' constitutional rights is valid "if it is reasonably related to legitimate penological interests," id., at 89. Finding a "valid, rational connection between the prison inmate correspondence policy and the objectives of prison order, security, and inmate rehabilitation," the District Court rejected Murphy's First Amendment claim. App. to Pet. for Cert. 25. 8 The Court of Appeals for the Ninth Circuit reversed. It premised its analysis on the proposition that "inmates have a First Amendment right to assist other inmates with their legal claims." 195 F.3d 1121, 1124 (1999). Murphy enjoyed this right of association, the court concluded, because he was providing legal advice that potentially was relevant to Tracy's defense. The Court of Appeals then applied our decision in Turner, but it did so only against the backdrop of this First Amendment right, which, the court held, affected the balance of the prisoner's interests against the government's interests. Concluding that the balance tipped in favor of Murphy, the Court of Appeals upheld Murphy's First Amendment claim. 9 Other Courts of Appeals have rejected similar claims. See, e.g., Gibbs v. Hopkins, 10 F.3d 373, 378 (CA6 1993) (no constitutional right to assist other inmates with legal claims); Smith v. Maschner, 899 F.2d 940, 950 (CA10 1990) (same); Gassler v. Rayl, 862 F.2d 706, 707-708 (CA8 1988) (same). To resolve the conflict, we granted certiorari. 530 U.S. 1303 (2000). II 10 In this case, we are not asked to decide whether prisoners have any First Amendment rights when they send legal correspondence to one another. In Turner, we held that restrictions on inmate-to-inmate communications pass constitutional muster only if the restrictions are reasonably related to legitimate and neutral governmental objectives. 482 U.S., at 89. We did not limit our holding to nonlegal correspondence, and petitioners do not ask us to construe it that way. Instead, the question presented here simply asks whether Murphy possesses a First Amendment right to provide legal advice that enhances the protections otherwise available under Turner. The effect of such a right, as the Court of Appeals described it, 195 F.3d, at 1127, would be that inmate-to-inmate correspondence that includes legal assistance would receive more First Amendment protection than correspondence without any legal assistance. We conclude that there is no such special right. 11 Traditionally, federal courts did not intervene in the internal affairs of prisons and instead "adopted a broad hands-off attitude toward problems of prison administration." Procunier v. Martinez, 416 U.S. 396, 404 (1974). Indeed, for much of this country's history, the prevailing view was that a prisoner was a mere "slave of the State," who "not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords him." Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 139 (1977) (Marshall, J., dissenting) (quoting Ruffin v. Commonwealth, 62 Va. 790, 796 (1871)) (alterations and internal quotation marks omitted). In recent decades, however, this Court has determined that incarceration does not divest prisoners of all constitutional protections. Inmates retain, for example, the right to be free from racial discrimination, Lee v. Washington, 390 U.S. 333 (1968) (per curiam), the right to due process, Wolff v. McDonnell, 418 U.S. 539 (1974), and, as relevant here, certain protections of the First Amendment, Turner, supra. 12 We nonetheless have maintained that the constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large. In the First Amendment context, for instance, some rights are simply inconsistent with the status of a prisoner or "with the legitimate penological objectives of the corrections system," Pell v. Procunier, 417 U.S. 817, 822 (1974). We have thus sustained proscriptions of media interviews with individual inmates, see id., at 833-835, prohibitions on the activities of a prisoners' labor union, see North Carolina Prisoners' Labor Union, Inc., supra, at 133, and restrictions on inmate-to-inmate written correspondence, see Turner, supra, at 93. Moreover, because the "problems of prisons in America are complex and intractable," and because courts are particularly "ill equipped" to deal with these problems, Martinez, supra, at 404-405, we generally have deferred to the judgments of prison officials in upholding these regulations against constitutional challenge. 13 Reflecting this understanding, in Turner we adopted a unitary, deferential standard for reviewing prisoners' constitutional claims: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S., at 89. Under this standard, four factors are relevant. First and foremost, "there must be a 'valid, rational connection' between the prison regulation and the legitimate [and neutral] governmental interest put forward to justify it." Ibid. (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). If the connection between the regulation and the asserted goal is "arbitrary or irrational," then the regulation fails, irrespective of whether the other factors tilt in its favor. 482 U.S., at 89-90. In addition, courts should consider three other factors: the existence of "alternative means of exercising the right" available to inmates; "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;" and "the absence of ready alternatives" available to the prison for achieving the governmental objectives. Id., at 90. 14 Because Turner provides the test for evaluating prisoners' First Amendment challenges, the issue before us is whether Turner permits an increase in constitutional protection whenever a prisoner's communication includes legal advice. We conclude that it does not. To increase the constitutional protection based upon the content of a communication first requires an assessment of the value of that content.2 But the Turner test, by its terms, simply does not accommodate valuations of content. On the contrary, the Turner factors concern only the relationship between the asserted penological interests and the prison regulation. Id., at 89. 15 Moreover, under Turner and its predecessors, prison officials are to remain the primary arbiters of the problems that arise in prison management. Ibid.; see also Martinez, 416 U.S., at 405 ("[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform"). If courts were permitted to enhance constitutional protection based on their assessments of the content of the particular communications, courts would be in a position to assume a greater role in decisions affecting prison administration. Seeking to avoid " 'unnecessarily perpetuat[ing] the involvement of the federal courts in affairs of prison administration,' " Turner, 482 U.S., at 89 (quoting Martinez, supra, at 407) (alteration in original), we reject an alteration of the Turner analysis that would entail additional federal-court oversight. 16 Finally, even if we were to consider giving special protection to particular kinds of speech based upon content, we would not do so for speech that includes legal advice.3 Augmenting First Amendment protection for inmate legal advice would undermine prison officials' ability to address the "complex and intractable" problems of prison administration. Turner, supra, at 84. Although supervised inmate legal assistance programs may serve valuable ends, it is "indisputable" that inmate law clerks "are sometimes a menace to prison discipline" and that prisoners have an "acknowledged propensity ... to abuse both the giving and the seeking of [legal] assistance." Johnson v. Avery, 393 U.S. 483, 488, 490 (1969). Prisoners have used legal correspondence as a means for passing contraband and communicating instructions on how to manufacture drugs or weapons. See Brief for State of Florida et al. as Amici Curiae 6-8; see also Turner, supra, at 93 ("[P]risoners could easily write in jargon or codes to prevent detection of their real messages"). The legal text also could be an excuse for making clearly inappropriate comments, which "may be expected to circulate among prisoners," Thornburgh v. Abbott, 490 U.S. 401, 412 (1989), despite prison measures to screen individual inmates or officers from the remarks. 17 We thus decline to cloak the provision of legal assistance with any First Amendment protection above and beyond the protection normally accorded prisoners' speech. Instead, the proper constitutional test is the one we set forth in Turner. Irrespective of whether the correspondence contains legal advice, the constitutional analysis is the same. III 18 Under Turner, the question remains whether the prison regulations, as applied to Murphy, are "reasonably related to legitimate penological interests." Turner, supra, at 89. To prevail, Murphy must overcome the presumption that the prison officials acted within their "broad discretion." Abbott, supra, at 413. Petitioners ask us to answer, rather than remand, the question whether Murphy has satisfied this heavy burden. We decline petitioners' request, however, because we granted certiorari only to decide whether inmates possess a special First Amendment right to provide legal assistance to fellow inmates. 19 * * * 20 The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 21 It is so ordered. Ginsburg, J., concurring NOTES: 1 Tracy had requested that Murphy be assigned to his case. App. 84. Prison officials, however, denied that request because prison policy forbade high-security inmates, such as Murphy, from meeting with maximum-security inmates, including Tracy. App. to Pet. for Cert. 19. Prison officials offered Tracy another law clerk to assist him. App. 84. 2 The Court of Appeals made such an assessment when it "balance[d] the importance of the prisoner's infringed right against the importance of the penological interest served by the rule." See 195 F.3d, 1121, 1127 (CA9 1999) (quoting Bradley v. Hall, 64 F.3d 1276, 1280 (CA9 1995)). 3 Murphy suggests that the right to provide legal advice follows from a right to receive legal advice. However, even if one right followed from the other, Murphy is incorrect in his assumption that there is a freestanding right to receive legal advice. Under our right-of-access precedents, inmates have a right to receive legal advice from other inmates only when it is a necessary "means for ensuring a 'reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.' " Lewis v. Casey, 518 U.S. 343, 350-351 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 825 (1977)).

1 Under our decision in restrictions on prisoners' communications to other inmates are constitutional if the restrictions are "reasonably related to legitimate penological interests." In this case, we are asked to decide whether prisoners possess a First Amendment right to provide legal assistance that enhances the protections otherwise available under We hold that they do not. 2 * While respondent Kevin Murphy was incarcerated at the Montana State Prison, he served as an "inmate law clerk," providing legal assistance to fellow prisoners. Upon learning that inmate Pat Tracy had been charged with assaulting Correctional Officer Glen Galle, Murphy decided to assist Tracy with his defense. Prison rules prohibited Murphy's assignment to the case,1 but he nonetheless investigated the assault. After discovering that other inmates had complained about Officer Galle's conduct, Murphy sent Tracy a letter, which included the following: 3 "I do want to help you with your case against Galle. It wasn't your fault and I know he provoked whatever happened! Don't plead guilty because we can get at least 100 witnesses to testify that Galle is an over zealous guard who has a personal agenda to punish and harrass [sic] inmates. He has made homo-sexual [sic] advances towards certain inmates and that can be brought up into the record. There are petitions against him and I have tried to get the Unit Manager to do something about what he does in Close II, but all that happened is that I received two writeups from him myself as retaliation. So we must pursue this out of the prison system. I am filing a suit with everyone in Close I and II named against him. So you can use that too! 4 "Another poiont [sic] is that he grabbed you from behind. You tell your lawyer to get ahold of me on this. Don't take a plea bargain unless it's for no more time." App. 50. 5 In accordance with prison policy, prison officials intercepted the letter, and petitioner Robert Shaw, an officer in the maximum-security unit, reviewed it. Based on the accusations against Officer Galle, Shaw cited Murphy for violations of the prison's rules prohibiting insolence, interference with due process hearings, and conduct that disrupts or interferes with the security and orderly operation of the institution. After a hearing, Murphy was found guilty of violating the first two prohibitions. The hearings officer sanctioned him by imposing a suspended sentence of 10 days' detention and issuing demerits that could affect his custody level. 6 In response, Murphy brought this action, seeking declaratory and injunctive relief under Rev. Stat. 1979, 42 U.S.C. 1983. The case was styled as a class action, brought on behalf of himself, other inmate law clerks, and other prisoners. The complaint alleged that the disciplining of Murphy violated due process, the rights of inmates to access the courts, and, as relevant here, Murphy's First Amendment rights, including the right to provide legal assistance to other inmates. 7 After discovery, the District Court granted petitioners' motion for summary judgment on all of Murphy's claims. On the First Amendment claim, the court found that Murphy was not formally acting as an inmate law clerk when he wrote the letter, and that Murphy's claims should therefore "be analyzed without consideration of any privilege that law clerk status might provide." App. to Pet. for Cert. 24. The District Court then applied our decision in which held that a prison regulation impinging on inmates' constitutional rights is valid "if it is reasonably related to legitimate penological interests," Finding a "valid, rational connection between the prison inmate correspondence policy and the objectives of prison order, security, and inmate rehabilitation," the District Court rejected Murphy's First Amendment claim. App. to Pet. for Cert. 25. 8 The Court of Appeals for the Ninth Circuit reversed. It premised its analysis on the proposition that "inmates have a First Amendment right to assist other inmates with their legal claims." Murphy enjoyed this right of association, the court concluded, because he was providing legal advice that potentially was relevant to Tracy's defense. The Court of Appeals then applied our decision in but it did so only against the backdrop of this First Amendment right, which, the court held, affected the balance of the prisoner's interests against the government's interests. Concluding that the balance tipped in favor of Murphy, the Court of Appeals upheld Murphy's First Amendment claim. 9 Other Courts of Appeals have rejected similar claims. See, e.g., ; ; To resolve the conflict, we granted certiorari. II 10 In this case, we are not asked to decide whether prisoners have any First Amendment rights when they send legal correspondence to one another. In we held that restrictions on inmate-to-inmate communications pass constitutional muster only if the restrictions are reasonably related to legitimate and neutral governmental 482 U.S., We did not limit our holding to nonlegal correspondence, and petitioners do not ask us to construe it that way. Instead, the question presented here simply asks whether Murphy possesses a First Amendment right to provide legal advice that enhances the protections otherwise available under The effect of such a right, as the Court of Appeals described it, would be that inmate-to-inmate correspondence that includes legal assistance would receive more First Amendment protection than correspondence without any legal assistance. We conclude that there is no such special right. 11 Traditionally, federal courts did not intervene in the internal affairs of prisons and instead "adopted a broad hands-off attitude toward problems of prison " Indeed, for much of this country's history, the prevailing view was that a prisoner was a mere "slave of the State," who "not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords him." ) (alterations and internal quotation marks omitted). In recent decades, however, this Court has determined that incarceration does not divest prisoners of all constitutional protections. Inmates retain, for example, the right to be free from racial discrimination, the right to due process, and, as relevant here, certain protections of the First Amendment, 12 We nonetheless have maintained that the constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large. In the First Amendment context, for instance, some rights are simply inconsistent with the status of a prisoner or "with the legitimate penological objectives of the corrections system," We have thus sustained proscriptions of media interviews with individual inmates, see prohibitions on the activities of a prisoners' labor union, see North Carolina Prisoners' Labor Union, and restrictions on inmate-to-inmate written correspondence, see Moreover, because the "problems of prisons in America are complex and intractable," and because courts are particularly "ill equipped" to deal with these problems, at -405, we generally have deferred to the judgments of prison officials in upholding these regulations against constitutional challenge. 13 Reflecting this understanding, in we adopted a unitary, deferential standard for reviewing prisoners' constitutional claims: "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S., Under this standard, four factors are relevant. First and foremost, "there must be a 'valid, rational connection' between the prison regulation and the legitimate [and neutral] governmental interest put forward to justify it." ). If the connection between the regulation and the asserted goal is "arbitrary or irrational," then the regulation fails, irrespective of whether the other factors tilt in its 482 U.S., -90. In addition, courts should consider three other factors: the existence of "alternative means of exercising the right" available to inmates; "the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;" and "the absence of ready alternatives" available to the prison for achieving the governmental 14 Because provides the test for evaluating prisoners' First Amendment challenges, the issue before us is whether permits an increase in constitutional protection whenever a prisoner's communication includes legal advice. We conclude that it does not. To increase the constitutional protection based upon the content of a communication first requires an assessment of the value of that content.2 But the test, by its terms, simply does not accommodate valuations of content. On the contrary, the factors concern only the relationship between the asserted penological interests and the prison regulation. 15 Moreover, under and its predecessors, prison officials are to remain the primary arbiters of the problems that arise in prison management. ; see also If courts were permitted to enhance constitutional protection based on their assessments of the content of the particular communications, courts would be in a position to assume a greater role in decisions affecting prison Seeking to avoid " 'unnecessarily perpetuat[ing] the involvement of the federal courts in affairs of prison administration,' " 482 U.S., (quoting ) (alteration in original), we reject an alteration of the analysis that would entail additional federal-court oversight. 16 Finally, even if we were to consider giving special protection to particular kinds of speech based upon content, we would not do so for speech that includes legal advice.3 Augmenting First Amendment protection for inmate legal advice would undermine prison officials' ability to address the "complex and intractable" problems of prison Although supervised inmate legal assistance programs may serve valuable ends, it is "indisputable" that inmate law clerks "are sometimes a menace to prison discipline" and that prisoners have an "acknowledged propensity to abuse both the giving and the seeking of [legal] assistance." Prisoners have used legal correspondence as a means for passing contraband and communicating instructions on how to manufacture drugs or weapons. See Brief for State of Florida et al. as Amici Curiae 6-8; see also The legal text also could be an excuse for making clearly inappropriate comments, which "may be expected to circulate among prisoners," despite prison measures to screen individual inmates or officers from the remarks. 17 We thus decline to cloak the provision of legal assistance with any First Amendment protection above and beyond the protection normally accorded prisoners' speech. Instead, the proper constitutional test is the one we set forth in Irrespective of whether the correspondence contains legal advice, the constitutional analysis is the same. III 18 Under the question remains whether the prison regulations, as applied to Murphy, are "reasonably related to legitimate penological interests." To prevail, Murphy must overcome the presumption that the prison officials acted within their "broad discretion." Petitioners ask us to answer, rather than remand, the question whether Murphy has satisfied this heavy burden. We decline petitioners' request, however, because we granted certiorari only to decide whether inmates possess a special First Amendment right to provide legal assistance to fellow inmates. 19 * * * 20 The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. 21 It is so ordered. Ginsburg, J., concurring NOTES: 1 Tracy had requested that Murphy be assigned to his case. App. 84. Prison officials, however, denied that request because prison policy forbade high-security inmates, such as Murphy, from meeting with maximum-security inmates, including Tracy. App. to Pet. for Cert. 19. Prison officials offered Tracy another law clerk to assist him. App. 84. 2 The Court of Appeals made such an assessment when it "balance[d] the importance of the prisoner's infringed right against the importance of the penological interest served by the rule." See 3 Murphy suggests that the right to provide legal advice follows from a right to receive legal advice. However, even if one right followed from the other, Murphy is incorrect in his assumption that there is a freestanding right to receive legal advice. Under our right-of-access precedents, inmates have a right to receive legal advice from other inmates only when it is a necessary "means for ensuring a 'reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.' " ).

Justice Ginsburg

concurring

Hunt, Governor of North Carolina v. Cromartie

2001-04-24

532 U.S. 234

https://www.courtlistener.com/opinion/118420/hunt-governor-of-north-carolina-v-cromartie/

https://www.courtlistener.com/api/rest/v3/clusters/118420/

I agree with the Court that the Ninth Circuit erred in holding that the First Amendment secures to prisoners a freestanding right to provide legal assistance to other inmates. I note, furthermore, that Murphy does not contest the prison's right to intercept prisoner-to-prisoner correspondence. But Murphy's 1983 complaint does allege that the prison rules under which he was disciplined-rules forbidding insolence and interference with due process hearings-are vague and overbroad as applied to him in this case*. The Ninth Circuit passed over that charge when it ruled, erroneously, that an inmate's provision of legal assistance to another inmate is an activity specially protected by the First Amendment. 195 F.3d 1121, 1128 (1999). The remand for which the Court provides should not impede Murphy from reasserting claims that the Court of Appeals so far has left untouched.

I agree with the Court that the Ninth Circuit erred in holding that the First Amendment secures to prisoners a freestanding right to provide legal assistance to other inmates. I note, furthermore, that Murphy does not contest the prison's right to intercept prisoner-to-prisoner correspondence. But Murphy's 1983 complaint does allege that the prison rules under which he was disciplined-rules forbidding insolence and interference with due process hearings-are vague and overbroad as applied to him in this case*. The Ninth Circuit passed over that charge when it ruled, erroneously, that an inmate's provision of legal assistance to another inmate is an activity specially protected by the First Amendment. The remand for which the Court provides should not impede Murphy from reasserting claims that the Court of Appeals so far has left untouched.

Justice Scalia

majority

Devenpeck v. Alford

2004-12-13

https://www.courtlistener.com/opinion/137733/devenpeck-v-alford/

https://www.courtlistener.com/api/rest/v3/clusters/137733/

2004-009

This case presents the question whether an arrest is lawful under the Fourth Amendment when the criminal offense for which there is probable cause to arrest is not "closely related" to the offense stated by the arresting officer at the time of arrest. I A On the night of November 22, 1997, a disabled automobile and its passengers were stranded on the shoulder of State Route 16, a divided highway, in Pierce County, Washington. Alford v. Haner, 333 F.3d 972, 974 (CA9 2003); App. 94, 98. Respondent Jerome Alford pulled his car off the road behind the disabled vehicle, activating his "wig-wag" headlights (which flash the left and right lights alternately). As he pulled off the road, Officer Joi Haner of the Washington State Patrol, one of the two petitioners here, passed the disabled car from the opposite direction. 333 F.3d, at 974. He turned around to check on the motorists at the first opportunity, and when he arrived, respondent, who had begun helping the motorists change a flat tire, hurried back to his car and drove away. Ibid. The stranded motorists asked Haner if respondent was a "cop"; they said that respondent's statements, and his flashing, wig-wag headlights, had given them that impression. Ibid.; App. 96. They also informed Haner that as respondent hurried off he left his flashlight behind. Id., at 97. On the basis of this information, Haner radioed his supervisor, Sergeant Gerald Devenpeck, the other petitioner here, that he was concerned respondent was an "impersonator" *149 or "wannabe cop." Id., at 97-98. He pursued respondent's vehicle and pulled it over. 333 F.3d, at 975. Through the passenger-side window, Haner observed that respondent was listening to the Kitsap County Sheriff's Office police frequency on a special radio, and that handcuffs and a hand-held police scanner were in the car. Ibid. These facts bolstered Haner's suspicion that respondent was impersonating a police officer. App. 106, 107. Haner thought, moreover, that respondent seemed untruthful and evasive: He told Haner that he had worked previously for the "State Patrol," but under further questioning, claimed instead to have worked in law enforcement in Texas and at a shipyard. Ibid. He claimed that his flashing headlights were part of a recently installed car-alarm system, and acted as though he was unable to trigger the system; but during these feigned efforts Haner noticed that respondent avoided pushing a button near his knee, which Haner suspected (correctly) to be the switch for the lights. 333 F.3d, at 975; App. 108. Sergeant Devenpeck arrived on the scene a short time later. After Haner informed Devenpeck of the basis for his belief that respondent had been impersonating a police officer, id., at 110, Devenpeck approached respondent's vehicle and inquired about the wig-wag headlights, 333 F.3d, at 975. As before, respondent said that the headlights were part of his alarm system and that he did not know how to activate them. App. 52, 138-139. Like Haner, Devenpeck was skeptical of respondent's answers. In the course of his questioning, Devenpeck noticed a tape recorder on the passenger seat of respondent's car, with the play and record buttons depressed. 333 F.3d, at 975. He ordered Haner to remove respondent from the car, played the recorded tape, and found that respondent had been recording his conversations with the officers. Devenpeck informed respondent that he was under arrest for a violation of the Washington Privacy Act, Wash. Rev. Code § 9.73.030 (1994). 333 F.3d, at 975; App. 144-145. Respondent protested that a State Court-of-Appeals *150 decision, a copy of which he claimed was in his glove compartment, permitted him to record roadside conversations with police officers. 333 F.3d, at 975; App. 42, 67-68. Devenpeck returned to his car, reviewed the language of the Privacy Act, and attempted unsuccessfully to reach a prosecutor to confirm that the arrest was lawful. Id., at 151-154. Believing that the text of the Privacy Act confirmed that respondent's recording was unlawful,[1] he directed Officer Haner to take respondent to jail. Id., at 154. A short time later, Devenpeck reached by phone Mark Lindquist, a deputy county prosecutor, to whom he recounted the events leading to respondent's arrest. 333 F.3d, at 975. The two discussed a series of possible criminal offenses, including violation of the Privacy Act, impersonating a police officer, and making a false representation to an officer. App. 177-178. Lindquist advised that there was "clearly probable cause," id., at 179, and suggested that respondent also be charged with "obstructing a public servant" "based on the runaround [he] gave [Devenpeck]," id., at 157. Devenpeck rejected this suggestion, explaining that the State Patrol does not, as a matter of policy, "stack charges" against an arrestee. Id., at 157-158. At booking, Haner charged respondent with violating the State Privacy Act, id., at 32-33, and issued a ticket to respondent for his flashing headlights under Wash. Rev. Code § 46.37.280(3) (1994), App. 24-25. Under state law, respondent could be detained on the latter offense only for the period of time "reasonably necessary" to issue a citation. *151 § 46.64.015. The state trial court subsequently dismissed both charges. App. 10, 29. B Respondent filed suit against petitioners in Federal District Court. He asserted a federal cause of action under Rev. Stat. § 1979, 42 U.S. C. § 1983, and a state cause of action for unlawful arrest and imprisonment, both claims resting upon the allegation that petitioners arrested him without probable cause in violation of the Fourth and Fourteenth Amendments. 333 F.3d, at 975. The District Court denied petitioners' motion for summary judgment on grounds of qualified immunity, and the case proceeded to trial. Alford v. Washington State Police, Case No. C99-5586RJB (WD Wash., Nov. 30, 2000), App. to Pet. for Cert. 40a. The jury was instructed that, for respondent to prevail on either his federal- or state-law claim, he must demonstrate that petitioners arrested him without probable cause, App. 199-201; and that probable cause exists "if the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent person to conclude that the suspect has committed, is committing, or was about to commit a crime," id., at 201. The jury was also instructed that, at the time of respondent's arrest, a State Court-of-Appeals decision, State v. Flora, 68 Wash. App. 802, 845 P.2d 1355 (1992), had clearly established that respondent's taping of petitioners was not a crime, App. 202. And the jury was directed that it must find for petitioners if a reasonable officer in the same circumstances would have believed respondent's detention was lawful. Id., at 200. Respondent did not object to any of these instructions. The jury returned a unanimous verdict in favor of petitioners. 333 F.3d, at 975. The District Court denied respondent's motion for judgment as a matter of law or, in the alternative, a new trial, and respondent appealed. Ibid.; App. to Pet. for Cert. 25a. *152 A divided panel of the Court of Appeals for the Ninth Circuit reversed, finding "no evidence to support the jury's verdict," 333 F.3d, at 975. The majority concluded that petitioners could not have had probable cause to arrest because they cited only the Privacy Act charge and "[t]ape recording officers conducting a traffic stop is not a crime in Washington." Id., at 976. The majority rejected petitioners' claim that probable cause existed to arrest respondent for the offenses of impersonating a law-enforcement officer, Wash. Rev. Code § 9A.60.040(3) (1994), and obstructing a law-enforcement officer, § 9A.76.020, because, it said, those offenses were not "closely related" to the offense invoked by Devenpeck as he took respondent into custody, 333 F.3d, at 976-977. The majority also held that there was no evidence to support petitioners' claim of qualified immunity, since, given the Washington Court of Appeals' decision in Flora, "no objectively reasonable officer could have concluded that arresting [respondent] for taping the traffic stop was permissible," 333 F.3d, at 979. Judge Gould dissented on the ground that it was objectively reasonable for petitioners to believe that respondent had violated the Privacy Act. See id., at 980. We granted certiorari. 541 U.S. 987 (2004). II 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." In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed. See United States v. Watson, 423 U.S. 411, 417-424 (1976); Brinegar v. United States, 338 U.S. 160, 175-176 (1949). Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest. Maryland v. Pringle, 540 U.S. 366, 371 (2003). In *153 this case, the Court of Appeals held that the probable-cause inquiry is further confined to the known facts bearing upon the offense actually invoked at the time of arrest, and that (in addition) the offense supported by these known facts must be "closely related" to the offense that the officer invoked. 333 F.3d, at 976. We find no basis in precedent or reason for this limitation. Our cases make clear that an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. See Whren v. United States, 517 U.S. 806, 812-813 (1996) (reviewing cases); Arkansas v. Sullivan, 532 U.S. 769 (2001) (per curiam). That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, "`the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.'" Whren, supra, at 813 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). "[T]he Fourth Amendment's concern with `reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." Whren, supra, at 814. "[E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer." Horton v. California, 496 U.S. 128, 138 (1990). The rule that the offense establishing probable cause must be "closely related" to, and based on the same conduct as, the offense identified by the arresting officer at the time of arrest is inconsistent with this precedent.[2] Such a rule *154 makes the lawfulness of an arrest turn upon the motivation of the arresting officer—eliminating, as validating probable cause, facts that played no part in the officer's expressed subjective reason for making the arrest, and offenses that are not "closely related" to that subjective reason. See, e. g., Sheehy v. Plymouth, 191 F.3d 15, 20 (CA1 1999); Trejo v. Perez, 693 F.2d 482, 485-486 (CA5 1982). This means that the constitutionality of an arrest under a given set of known facts will "vary from place to place and from time to time," Whren, supra, at 815, depending on whether the arresting officer states the reason for the detention and, if so, whether he correctly identifies a general class of offense for which probable cause exists. An arrest made by a knowledgeable, veteran officer would be valid, whereas an arrest made by a rookie in precisely the same circumstances would not. We see no reason to ascribe to the Fourth Amendment such arbitrarily variable protection. Those who support the "closely related offense" rule say that, although it is aimed at rooting out the subjective vice of arrests made for the wrong reason, it does so by objective means—that is, by reference to the arresting officer's statement of his reason. The same argument was made in Whren, supra, in defense of the proposed rule that a traffic stop can be declared invalid for malicious motivation when it is justified only by an offense which standard police practice does not make the basis for a stop. That rule, it was said, "attempt[s] to root out subjective vices through objective means," id., at 814. We rejected the argument there, and we reject it again here. Subjective intent of the arresting officer, however it is determined (and of course subjective intent is always determined by objective means), is simply *155 no basis for invalidating an arrest. Those are lawfully arrested whom the facts known to the arresting officers give probable cause to arrest. Finally, the "closely related offense" rule is condemned by its perverse consequences. While it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required.[3] Hence, the predictable consequence of a rule limiting the probable-cause inquiry to offenses closely related to (and supported by the same facts as) those identified by the arresting officer is not, as respondent contends, that officers will cease making sham arrests on the hope that such arrests will later be validated, but rather that officers will cease providing reasons for arrest. And even if this option were to be foreclosed by adoption of a statutory or constitutional requirement, officers would simply give every reason for which probable cause could conceivably exist. The facts of this case exemplify the arbitrary consequences of a "closely related offense" rule. Officer Haner's initial stop of respondent was motivated entirely by the suspicion that he was impersonating a police officer. App. 106. Before pulling respondent over, Haner indicated by radio that this was his concern; during the stop, Haner asked respondent whether he was actively employed in law enforcement and why his car had wig-wag headlights; and when Sergeant Devenpeck arrived, Haner told him why he thought respondent was a "wannabe cop," id., at 98. In addition, in the course of interrogating respondent, both officers became convinced that he was not answering their questions truthfully and, with respect to the wig-wag headlights, that he *156 was affirmatively trying to mislead them. Only after these suspicions had developed did Devenpeck discover the taping, place respondent under arrest, and offer the Privacy Act as the reason. Because of the "closely related offense" rule, Devenpeck's actions render irrelevant both Haner's developed suspicions that respondent was impersonating a police officer and the officers' shared belief that respondent obstructed their investigation. The outcome under the "closely related offense" rule might well have been different if Haner, rather than Devenpeck, had made the arrest, on the stated basis of his suspicions; if Devenpeck had not abided the county's policy against stacking charges; or if either officer had made the arrest without stating the grounds. We have consistently rejected a conception of the Fourth Amendment that would produce such haphazard results. See Whren, 517 U. S., at 815. * * * Respondent contended below that petitioners lacked probable cause to arrest him for obstructing a law-enforcement officer or for impersonating a law-enforcement officer. Because the Court of Appeals held that those offenses were legally irrelevant, it did not decide the question. We decline to engage in this inquiry for the first time here. Accordingly, we reverse the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE took no part in the decision of this case.

This case presents the question whether an arrest is lawful under the Fourth Amendment when the criminal offense for which there is probable cause to arrest is not "closely related" to the offense stated by the arresting officer at the time of arrest I A On the night of November 22, 1997, a disabled automobile and its passengers were stranded on the shoulder of State Route 16, a divided highway, in Pierce County, Washington ; App 94, 98 Respondent Jerome Alford pulled his car off the road behind the disabled vehicle, activating his "wig-wag" (which flash the left and right lights alternately) As he pulled off the road, Officer Joi Haner of the Washington State Patrol, one of the two petitioners here, passed the disabled car from the opposite direction 333 F3d, at He turned around to check on the motorists at the first opportunity, and when he arrived, respondent, who had begun helping the motorists change a flat tire, hurried back to his car and drove away The stranded motorists asked Haner if respondent was a "cop"; they said that respondent's statements, and his flashing, wig-wag had given them that impression ; App 96 They also informed Haner that as respondent hurried off he left his flashlight behind On the basis of this information, Haner radioed his supervisor, Sergeant Gerald Devenpeck, the other petitioner here, that he was concerned respondent was an "impersonator" *149 or "wannabe cop" -98 He pursued respondent's vehicle and pulled it 333 F3d, 5 Through the passenger-side window, Haner observed that respondent was listening to the Kitsap County Sheriff's Office police frequency on a special radio, and that handcuffs and a hand-held police scanner were in the car These facts bolstered Haner's suspicion that respondent was impersonating a police officer App 106, 107 Haner thought, moreover, that respondent seemed untruthful and evasive: He told Haner that he had worked previously for the "State Patrol," but under further questioning, claimed instead to have worked in law enforcement in Texas and at a shipyard He claimed that his flashing were part of a recently installed car-alarm system, and acted as though he was unable to trigger the system; but during these feigned efforts Haner noticed that respondent avoided pushing a button near his knee, which Haner suspected (correctly) to be the switch for the 333 F3d, 5; App 108 Sergeant Devenpeck arrived on the scene a short time later After Haner informed Devenpeck of the basis for his belief that respondent had been impersonating a police officer, Devenpeck approached respondent's vehicle and inquired about the wig-wag 333 F3d, 5 As before, respondent said that the were part of his alarm system and that he did not know how to activate them App 52, -139 Like Haner, Devenpeck was skeptical of respondent's answers In the course of his questioning, Devenpeck noticed a tape recorder on the passenger seat of respondent's car, with the play and record buttons depressed 333 F3d, 5 He ordered Haner to remove respondent from the car, played the recorded tape, and found that respondent had been recording his conversations with the officers Devenpeck informed respondent that he was under arrest for a violation of the Washington Privacy Act, (1994) 333 F3d, 5; App 144-145 Respondent protested that a State Court-of-Appeals *150 decision, a copy of which he claimed was in his glove compartment, permitted him to record roadside conversations with police officers 333 F3d, 5; App 42, 67-68 Devenpeck returned to his car, reviewed the language of the Privacy Act, and attempted unsuccessfully to reach a prosecutor to confirm that the arrest was lawful Believing that the text of the Privacy Act confirmed that respondent's recording was unlawful,[1] he directed Officer Haner to take respondent to jail A short time later, Devenpeck reached by phone Mark Lindquist, a deputy county prosecutor, to whom he recounted the events leading to respondent's arrest 333 F3d, 5 The two discussed a series of possible criminal offenses, including violation of the Privacy Act, impersonating a police officer, and making a false representation to an officer App 177-178 Lindquist advised that there was "clearly probable cause," and suggested that respondent also be charged with "obstructing a public servant" "based on the runaround [he] gave [Devenpeck]," Devenpeck rejected this suggestion, explaining that the State Patrol does not, as a matter of policy, "stack charges" against an arrestee -158 At booking, Haner charged respondent with violating the State Privacy Act, and issued a ticket to respondent for his flashing under Wash Rev Code 4637280(3) (1994), App 24-25 Under state law, respondent could be detained on the latter offense only for the period of time "reasonably necessary" to issue a citation *151 4664015 The state trial court subsequently dismissed both charges App 10, 29 B Respondent filed suit against petitioners in Federal District Court He asserted a federal cause of action under Rev Stat 1979, 42 US C 1983, and a state cause of action for unlawful arrest and imprisonment, both claims resting upon the allegation that petitioners arrested him without probable cause in violation of the Fourth and Fourteenth Amendments 333 F3d, 5 The District Court denied petitioners' motion for summary judgment on grounds of qualified immunity, and the case proceeded to trial Alford v Washington State Police, Case No C99-5586RJB (WD Wash, Nov 30, 00), App to Pet for Cert 40a The jury was instructed that, for respondent to prevail on either his federal- or state-law claim, he must demonstrate that petitioners arrested him without probable cause, App 199-1; and that probable cause exists "if the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent person to conclude that the suspect has committed, is committing, or was about to commit a crime," The jury was also instructed that, at the time of respondent's arrest, a State Court-of-Appeals decision, State v Flora, 68 Wash App 802, 845 P2d 1355 had clearly established that respondent's taping of petitioners was not a crime, App 2 And the jury was directed that it must find for petitioners if a reasonable officer in the same circumstances would have believed respondent's detention was lawful Respondent did not object to any of these instructions The jury returned a unanimous verdict in favor of petitioners 333 F3d, 5 The District Court denied respondent's motion for judgment as a matter of law or, in the alternative, a new trial, and respondent appealed ; App to Pet for Cert 25a *152 A divided panel of the Court of Appeals for the Ninth Circuit reversed, finding "no evidence to support the jury's verdict," 333 F3d, 5 The majority concluded that petitioners could not have had probable cause to arrest because they cited only the Privacy Act charge and "[t]ape recording officers conducting a traffic stop is not a crime in Washington" 6 The majority rejected petitioners' claim that probable cause existed to arrest respondent for the offenses of impersonating a law-enforcement officer, Wash Rev Code 9A60040(3) (1994), and obstructing a law-enforcement officer, 9A760, because, it said, those offenses were not "closely related" to the offense invoked by Devenpeck as he took respondent into 333 F3d, 6-977 The majority also held that there was no evidence to support petitioners' claim of qualified immunity, since, given the Washington Court of Appeals' decision in Flora, "no objectively reasonable officer could have concluded that arresting [respondent] for taping the traffic stop was permissible," 333 F3d, 9 Judge Gould dissented on the ground that it was objectively reasonable for petitioners to believe that respondent had violated the Privacy Act See We granted certiorari 541 US 987 II 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" In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed See United States v Watson, 423 US 411, ; Brinegar v United States, 338 US 160, Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest Maryland v Pringle, 540 US 366, In *153 this case, the Court of Appeals held that the probable-cause inquiry is further confined to the known facts bearing upon the offense actually invoked at the time of arrest, and that (in addition) the offense supported by these known facts must be "closely related" to the offense that the officer invoked 333 F3d, 6 We find no basis in precedent or reason for this limitation Our cases make clear that an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause See v United States, 517 US 806, ; Arkansas v Sullivan, 532 US 769 That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause As we have repeatedly explained, "`the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action'" ) "[T]he Fourth Amendment's concern with `reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent" "[E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer" Horton v California, 496 US 128, The rule that the offense establishing probable cause must be "closely related" to, and based on the same conduct as, the offense identified by the arresting officer at the time of arrest is inconsistent with this precedent[2] Such a rule *154 makes the lawfulness of an arrest turn upon the motivation of the arresting officer—eliminating, as validating probable cause, facts that played no part in the officer's expressed subjective reason for making the arrest, and offenses that are not "closely related" to that subjective reason See, e g, Sheehy v Plymouth, 191 F3d 15, ; Trejo v Perez, 693 F2d 482, This means that the constitutionality of an arrest under a given set of known facts will "vary from place to place and from time to time," depending on whether the arresting officer states the reason for the detention and, if so, whether he correctly identifies a general class of offense for which probable cause exists An arrest made by a knowledgeable, veteran officer would be valid, whereas an arrest made by a rookie in precisely the same circumstances would not We see no reason to ascribe to the Fourth Amendment such arbitrarily variable protection Those who support the "closely related offense" rule say that, although it is aimed at rooting out the subjective vice of arrests made for the wrong reason, it does so by objective means—that is, by reference to the arresting officer's statement of his reason The same argument was made in in defense of the proposed rule that a traffic stop can be declared invalid for malicious motivation when it is justified only by an offense which standard police practice does not make the basis for a stop That rule, it was said, "attempt[s] to root out subjective vices through objective means," We rejected the argument there, and we reject it again here Subjective intent of the arresting officer, however it is determined (and of course subjective intent is always determined by objective means), is simply *155 no basis for invalidating an arrest Those are lawfully arrested whom the facts known to the arresting officers give probable cause to arrest Finally, the "closely related offense" rule is condemned by its perverse consequences While it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into we have never held that to be constitutionally required[3] Hence, the predictable consequence of a rule limiting the probable-cause inquiry to offenses closely related to (and supported by the same facts as) those identified by the arresting officer is not, as respondent contends, that officers will cease making sham arrests on the hope that such arrests will later be validated, but rather that officers will cease providing reasons for arrest And even if this option were to be foreclosed by adoption of a statutory or constitutional requirement, officers would simply give every reason for which probable cause could conceivably exist The facts of this case exemplify the arbitrary consequences of a "closely related offense" rule Officer Haner's initial stop of respondent was motivated entirely by the suspicion that he was impersonating a police officer App 106 Before pulling respondent over, Haner indicated by radio that this was his concern; during the stop, Haner asked respondent whether he was actively employed in law enforcement and why his car had wig-wag ; and when Sergeant Devenpeck arrived, Haner told him why he thought respondent was a "wannabe cop," In addition, in the course of interrogating respondent, both officers became convinced that he was not answering their questions truthfully and, with respect to the wig-wag that he *156 was affirmatively trying to mislead them Only after these suspicions had developed did Devenpeck discover the taping, place respondent under arrest, and offer the Privacy Act as the reason Because of the "closely related offense" rule, Devenpeck's actions render irrelevant both Haner's developed suspicions that respondent was impersonating a police officer and the officers' shared belief that respondent obstructed their investigation The outcome under the "closely related offense" rule might well have been different if Haner, rather than Devenpeck, had made the arrest, on the stated basis of his suspicions; if Devenpeck had not abided the county's policy against stacking charges; or if either officer had made the arrest without stating the grounds We have consistently rejected a conception of the Fourth Amendment that would produce such haphazard results See 517 U S, * * * Respondent contended below that petitioners lacked probable cause to arrest him for obstructing a law-enforcement officer or for impersonating a law-enforcement officer Because the Court of Appeals held that those offenses were legally irrelevant, it did not decide the question We decline to engage in this inquiry for the first time here Accordingly, we reverse the judgment of the Ninth Circuit and remand the case for further proceedings consistent with this opinion It is so ordered THE CHIEF JUSTICE took no part in the decision of this case

Justice Alito

majority

Davis v. United States

2011-06-16

https://www.courtlistener.com/opinion/218926/davis-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/218926/

2010-066

The Fourth Amendment protects the right to be free from “unreasonable searches and seizures,” but it is silent about how this right is to be enforced. To supplement the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the prosecution from intro ducing evidence obtained by way of a Fourth Amendment violation. The question here is whether to apply this sanction when the police conduct a search in compliance with binding precedent that is later overruled. Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. I The question presented arises in this case as a result of a shift in our Fourth Amendment jurisprudence on searches of automobiles incident to arrests of recent occupants. 2 DAVIS v. UNITED STATES Opinion of the Court A Under this Court’s decision in Chimel v. California, 395 U.S. 752 (1969), a police officer who makes a lawful arrest may conduct a warrantless search of the arrestee’s person and the area “within his immediate control.” Id., at 763 (internal quotation marks omitted). This rule “may be stated clearly enough,” but in the early going after Chimel it proved difficult to apply, particularly in cases that in volved searches “inside [of] automobile[s] after the arrest ees [we]re no longer in [them].” See New York v. Belton, 453 U.S. 454, 458–459 (1981). A number of courts up held the constitutionality of vehicle searches that were “substantially contemporaneous” with occupants’ arrests.1 Other courts disapproved of automobile searches incident to arrests, at least absent some continuing threat that the arrestee might gain access to the vehicle and “destroy evidence or grab a weapon.”2 In New York v. Belton, this Court granted certiorari to resolve the conflict. See id., at 459–460. In Belton, a police officer conducting a traffic stop law fully arrested four occupants of a vehicle and ordered the arrestees to line up, un-handcuffed, along the side of the thruway. Id., at 456; see Brief for Petitioner in New York v. Belton, O. T. 1980, No. 80–328, p. 3. The officer then searched the vehicle’s passenger compartment and found cocaine inside a jacket that lay on the backseat. Belton, 453 U.S., at 456. This Court upheld the search as rea sonable incident to the occupants’ arrests. In an opinion that repeatedly stressed the need for a “straightforward,” —————— 1 See e.g., United States v. Sanders, 631 F.2d 1309, 1313–1314 (CA8 1980); United States v. Dixon, 558 F.2d 919, 922 (CA9 1977); United States v. Frick, 490 F.2d 666, 668–669 (CA5 1973); Hinkel v. Anchor age, 618 P.2d 1069, 1069–1071 (Alaska 1980). 2 See e.g., United States v. Benson, 631 F.2d 1336, 1340 (CA8 1980); see also United States v. Rigales, 630 F.2d 364, 366–367 (CA5 1980); Ulesky v. State, 379 So. 2d 121, 125–126 (Fla. App. 1979). Cite as: 564 U. S. ____ (2011) 3 Opinion of the Court “workable rule” to guide police conduct, the Court an nounced “that when a policeman has made a lawful custo dial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the pas senger compartment of that automobile.” Id., at 459–460 (footnote omitted). For years, Belton was widely understood to have set down a simple, bright-line rule. Numerous courts read the decision to authorize automobile searches incident to arrests of recent occupants, regardless of whether the arrestee in any particular case was within reaching dis tance of the vehicle at the time of the search. See Thorn ton v. United States, 541 U.S. 615, 628 (2004) (SCALIA, J., concurring in judgment) (collecting cases). Even after the arrestee had stepped out of the vehicle and had been subdued by police, the prevailing understanding was that Belton still authorized a substantially contemporaneous search of the automobile’s passenger compartment.3 Not every court, however, agreed with this reading of Belton. In State v. Gant, 216 Ariz. 1, 162 P.3d 640 (2007), the Arizona Supreme Court considered an automobile search conducted after the vehicle’s occupant had been arrested, handcuffed, and locked in a patrol car. The court distinguished Belton as a case in which “four unsecured” arrestees “presented an immediate risk of loss of evidence and an obvious threat to [a] lone officer’s safety.” 216 Ariz., at 4, 162 P. 3d, at 643. The court held that where no such “exigencies exis[t]”—where the arrestee has been subdued and the scene secured—the rule of Belton does not apply. 216 Ariz., at 4, 162 P.3d, at 643. This Court granted certiorari in Gant, see 552 U. S. —————— 3 See,e.g., United States v. Dorsey, 418 F.3d 1038, 1041, 1043–1044 (CA9 2005) (upholding automobile search conducted after the officer had “handcuffed [the arrestee] and put him in the back of [the] patrol car”); United States v. Barnes, 374 F.3d 601, 604 (CA8 2004) (same). 4 DAVIS v. UNITED STATES Opinion of the Court 1230 (2008), and affirmed in a 5-to-4 decision. Arizona v. Gant, 556 U. S. ___ (2009). Four of the Justices in the majority agreed with the Arizona Supreme Court that Belton’s holding applies only where “the arrestee is unse cured and within reaching distance of the passenger com partment at the time of the search.” 556 U. S., at ___ (slip op., at 10). The four dissenting Justices, by contrast, understood Belton to have explicitly adopted the simple, bright-line rule stated in the Belton Court’s opinion. 556 U. S., at ___ (opinion of ALITO, J.) (slip op., at 3); see Bel ton, 453 U.S., at 460 (“[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automo bile” (footnote omitted)). To limit Belton to cases involving unsecured arrestees, the dissenters thought, was to over rule the decision’s clear holding. Gant, supra, at ___ (slip op., at 2–3). JUSTICE SCALIA, who provided the fifth vote to affirm in Gant, agreed with the dissenters’ understand ing of Belton’s holding. 556 U. S., at ___ (slip op., at 1–2) (concurring opinion). JUSTICE SCALIA favored a more ex plicit and complete overruling of Belton, but he joined what became the majority opinion to avoid “a 4-to-1-to-4” disposition. 556 U. S., at ___ (slip op., at 2–4). As a result, the Court adopted a new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching dis tance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.” Id., at ___ (slip op., at 9– 10) (citing Thornton, supra, at 632 (SCALIA, J., concurring in judgment); internal quotation marks omitted). B The search at issue in this case took place a full two years before this Court announced its new rule in Gant. Cite as: 564 U. S. ____ (2011) 5 Opinion of the Court On an April evening in 2007, police officers in Greenville, Alabama, conducted a routine traffic stop that eventually resulted in the arrests of driver Stella Owens (for driving while intoxicated) and passenger Willie Davis (for giving a false name to police). The police handcuffed both Owens and Davis, and they placed the arrestees in the back of separate patrol cars. The police then searched the pas senger compartment of Owens’s vehicle and found a re volver inside Davis’s jacket pocket. Davis was indicted in the Middle District of Alabama on one count of possession of a firearm by a convicted felon. See 18 U.S. C. §922(g)(1). In his motion to suppress the revolver, Davis acknowledged that the officers’ search fully complied with “existing Eleventh Circuit precedent.” App. 13–15. Like most courts, the Eleventh Circuit had long read Belton to establish a bright-line rule authorizing substantially contemporaneous vehicle searches incident to arrests of recent occupants. See United States v. Gon zalez, 71 F.3d 819, 822, 824–827 (CA11 1996) (upholding automobile search conducted after the defendant had been “pulled from the vehicle, handcuffed, laid on the ground, and placed under arrest”). Davis recognized that the Dis trict Court was obligated to follow this precedent, but he raised a Fourth Amendment challenge to preserve “the issue for review” on appeal. App. 15. The District Court denied the motion, and Davis was convicted on the fire arms charge. While Davis’s appeal was pending, this Court decided Gant. The Eleventh Circuit, in the opinion below, applied Gant’s new rule and held that the vehicle search incident to Davis’s arrest “violated [his] Fourth Amendment rights.” 598 F.3d 1259, 1263 (CA11 2010). As for whether this constitutional violation warranted suppres sion, the Eleventh Circuit viewed that as a separate issue that turned on “the potential of exclusion to deter wrong ful police conduct.” Id., at 1265 (quoting Herring v. United 6 DAVIS v. UNITED STATES Opinion of the Court States, 555 U.S. 135, 137 (2009); internal quotation marks omitted). The court concluded that “penalizing the [ar resting] officer” for following binding appellate precedent would do nothing to “dete[r] . . . Fourth Amendment viola tions.” 598 F.3d, at 1265–1266 (bracketing and internal quotation marks omitted). It therefore declined to apply the exclusionary rule and affirmed Davis’s conviction. We granted certiorari. 562 U. S. ___ (2010). II The Fourth Amendment protects the “right of the peo ple to be secure in their persons, houses, papers, and ef fects, against unreasonable searches and seizures.” The Amendment says nothing about suppressing evidence ob tained in violation of this command. That rule—the exclusionary rule—is a “prudential” doctrine, Pennsyl vania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363 (1998), created by this Court to “compel respect for the constitutional guaranty.” Elkins v. United States, 364 U.S. 206, 217 (1960); see Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961). Exclusion is “not a personal constitutional right,” nor is it designed to “redress the injury” occasioned by an unconstitutional search. Stone v. Powell, 428 U.S. 465, 486 (1976); see United States v. Janis, 428 U.S. 433, 454, n. 29 (1976) (exclusionary rule “unsupportable as reparation or com pensatory dispensation to the injured criminal” (internal quotation marks omitted)). The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amend ment violations. E.g., Herring, supra, at 141, and n. 2; United States v. Leon, 468 U.S. 897, 909, 921, n. 22 (1984); Elkins, supra, at 217 (“calculated to prevent, not to repair”). Our cases have thus limited the rule’s operation to situations in which this purpose is “thought most effica ciously served.” United States v. Calandra, 414 U.S. 338, 348 (1974). Where suppression fails to yield “appreciable Cite as: 564 U. S. ____ (2011) 7 Opinion of the Court deterrence,” exclusion is “clearly . . . unwarranted.” Janis, supra, at 454. Real deterrent value is a “necessary condition for exclu sion,” but it is not “a sufficient” one. Hudson v. Michigan, 547 U.S. 586, 596 (2006). The analysis must also account for the “substantial social costs” generated by the rule. Leon, supra, at 907. Exclusion exacts a heavy toll on both the judicial system and society at large. Stone, 428 U.S., at 490–491. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or inno cence. Ibid. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. See Herring, supra, at 141. Our cases hold that society must swallow this bitter pill when necessary, but only as a “last resort.” Hudson, supra, at 591. For exclusion to be appropriate, the deter rence benefits of suppression must outweigh its heavy costs. See Herring, supra, at 141; Leon, supra, at 910. Admittedly, there was a time when our exclusionary rule cases were not nearly so discriminating in their approach to the doctrine. “Expansive dicta” in several deci sions, see Hudson, supra, at 591, suggested that the rule was a self-executing mandate implicit in the Fourth Amendment itself. See Olmstead v. United States, 277 U.S. 438, 462 (1928) (remarking on the “striking outcome of the Weeks case” that “the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction”); Mapp, supra, at 655 (“[A]ll evidence obtained by searches and seizures in viola tion of the Constitution is, by that same authority, inad missible in a state court”). As late as our 1971 decision in Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568–569, the Court “treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule.” Arizona v. Evans, 514 U.S. 1, 13 (1995). In time, however, we came to acknowledge the 8 DAVIS v. UNITED STATES Opinion of the Court exclusionary rule for what it undoubtedly is—a “judicially created remedy” of this Court’s own making. Calandra, supra, at 348. We abandoned the old, “reflexive” applica tion of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits. Evans, supra, at 13; see, e.g., Calandra, supra; Janis, supra; Stone, supra; INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); United States v. Havens, 446 U.S. 620 (1980). In a line of cases beginning with United States v. Leon, 468 U.S. 897, we also recali brated our cost-benefit analysis in exclusion cases to focus the inquiry on the “flagrancy of the police misconduct” at issue. Id., at 909, 911. The basic insight of the Leon line of cases is that the deterrence benefits of exclusion “var[y] with the culpabil ity of the law enforcement conduct” at issue. Herring, 555 U.S., at 143. When the police exhibit “deliberate,” “reck less,” or “grossly negligent” disregard for Fourth Amend ment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Id., at 144. But when the police act with an objectively “reasonable good faith belief” that their conduct is lawful, Leon, supra, at 909 (internal quotation marks omitted), or when their conduct involves only simple, “isolated” negligence, Her ring, supra, at 137, the “ ‘deterrence rationale loses much of its force,’ ” and exclusion cannot “pay its way.” See Leon, supra, at 919, 908, n. 6 (quoting United States v. Peltier, 422 U.S. 531, 539 (1975)). The Court has over time applied this “good-faith” excep tion across a range of cases. Leon itself, for example, held that the exclusionary rule does not apply when the police conduct a search in “objectively reasonable reliance” on a warrant later held invalid. 468 U.S., at 922. The error in such a case rests with the issuing magistrate, not the police officer, and “punish[ing] the errors of judges” is not the office of the exclusionary rule. Id., at 916; see also Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984) Cite as: 564 U. S. ____ (2011) 9 Opinion of the Court (companion case declining to apply exclusionary rule where warrant held invalid as a result of judge’s clerical error). Other good-faith cases have sounded a similar theme. Illinois v. Krull, 480 U.S. 340 (1987), extended the good faith exception to searches conducted in reasonable reli ance on subsequently invalidated statutes. Id., at 349– 350 (“legislators, like judicial officers, are not the focus of the rule”). In Arizona v. Evans, supra, the Court applied the good-faith exception in a case where the police rea sonably relied on erroneous information concerning an arrest warrant in a database maintained by judicial em ployees. Id., at 14. Most recently, in Herring v. United States, 555 U.S. 135, we extended Evans in a case where police employees erred in maintaining records in a war rant database. “[I]solated,” “nonrecurring” police negli gence, we determined, lacks the culpability required to justify the harsh sanction of exclusion. 555 U.S., at 137, 144. III The question in this case is whether to apply the exclu sionary rule when the police conduct a search in objec tively reasonable reliance on binding judicial precedent. At the time of the search at issue here, we had not yet decided Arizona v. Gant, 556 U. S. ___, and the Eleventh Circuit had interpreted our decision in New York v. Belton, 453 U.S. 454, to establish a bright-line rule authorizing the search of a vehicle’s passenger compartment incident to a recent occupant’s arrest. Gonzalez, 71 F.3d, at 825. The search incident to Davis’s arrest in this case followed the Eleventh Circuit’s Gonzalez precedent to the letter. Although the search turned out to be unconstitutional under Gant, all agree that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way. See Brief for Petitioner 49 (“sup 10 DAVIS v. UNITED STATES Opinion of the Court pression” in this case would “impl[y] no assignment of blame”). Under our exclusionary-rule precedents, this acknowl edged absence of police culpability dooms Davis’s claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield “mean ingfu[l]” deterrence, and culpable enough to be “worth the price paid by the justice system.” Herring, 555 U.S., at 144. The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis’s Fourth Amendment rights deliberately, recklessly, or with gross negligence. See ibid. Nor does this case involve any “recurring or systemic negligence” on the part of law enforcement. Ibid. The police acted in strict compliance with binding precedent, and their behav ior was not wrongful. Unless the exclusionary rule is to become a strict-liability regime, it can have no application in this case. Indeed, in 27 years of practice under Leon’s good-faith exception, we have “never applied” the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police conduct. Herring, supra, at 144. If the police in this case had reasonably relied on a warrant in conducting their search, see Leon, supra, or on an errone ous warrant record in a government database, Herring, supra, the exclusionary rule would not apply. And if Congress or the Alabama Legislature had enacted a stat ute codifying the precise holding of the Eleventh Circuit’s decision in Gonzalez,4 we would swiftly conclude that —————— 4 Cf. Kan. Stat. Ann. §22–2501(c) (2007) (“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of . . . [d]iscovering the fruits, instrumentalities, or evidence of a crime”). The Kansas Supreme Court recently struck this provision down in light of Arizona v. Gant, 556 U. S. ___ (2009). State v. Hen ning, 289 Kan. 136, 137, 209 P.3d 711, 714 (2009). But it has applied Cite as: 564 U. S. ____ (2011) 11 Opinion of the Court “ ‘[p]enalizing the officer for the legislature’s error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.’ ” See Krull, 480 U.S., at 350. The same should be true of Davis’s attempt here to “ ‘[p]enaliz[e] the officer for the [appellate judges’] error.’ ” See ibid. About all that exclusion would deter in this case is conscientious police work. Responsible law-enforcement officers will take care to learn “what is required of them” under Fourth Amendment precedent and will conform their conduct to these rules. Hudson, 547 U.S., at 599. But by the same token, when binding appellate precedent specifically authorizes a particular police practice, well trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An of ficer who conducts a search in reliance on binding appel late precedent does no more than “ ‘ac[t] as a reasonable officer would and should act’ ” under the circumstances. Leon, 468 U.S., at 920 (quoting Stone, 428 U.S., at 539– 540 (White, J., dissenting)). The deterrent effect of exclu sion in such a case can only be to discourage the officer from “ ‘do[ing] his duty.’ ” 468 U.S., at 920. That is not the kind of deterrence the exclusionary rule seeks to foster. We have stated before, and we reaffirm today, that the harsh sanction of exclusion “should not be applied to deter objectively reasonable law enforcement activity.” Id., at 919. Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule. IV JUSTICE BREYER’s dissent and Davis argue that, al though the police conduct in this case was in no way cul —————— Illinois v. Krull, 480 U.S. 340 (1987), and the good-faith exception to searches conducted in reasonable reliance on the statute. See State v. Daniel, 291 Kan. 490, 497–504, 242 P.3d 1186, 1191–1195 (2010). 12 DAVIS v. UNITED STATES Opinion of the Court pable, other considerations should prevent the good-faith exception from applying. We are not persuaded. A 1 The principal argument of both the dissent and Davis is that the exclusionary rule’s availability to enforce new Fourth Amendment precedent is a retroactivity issue, see Griffith v. Kentucky, 479 U.S. 314 (1987), not a good-faith issue. They contend that applying the good-faith excep tion where police have relied on overruled precedent effec tively revives the discarded retroactivity regime of Linklet ter v. Walker, 381 U.S. 618 (1965). See post, at 2–5. In Linkletter, we held that the retroactive effect of a new constitutional rule of criminal procedure should be deter mined on a case-by-case weighing of interests. For each new rule, Linkletter required courts to consider a three factor balancing test that looked to the “purpose” of the new rule, “reliance” on the old rule by law enforcement and others, and the effect retroactivity would have “on the administration of justice.” 381 U.S., at 636. After “weigh[ing] the merits and demerits in each case,” courts decided whether and to what extent a new rule should be given retroactive effect. Id., at 629. In Linkletter itself, the balance of interests prompted this Court to conclude that Mapp v. Ohio, 367 U.S. 643—which incorporated the exclusionary rule against the States—should not apply retroactively to cases already final on direct review. 381 U.S., at 639–640. The next year, we extended Linkletter to retroactivity determinations in cases on direct review. See Johnson v. New Jersey, 384 U.S. 719, 733 (1966) (holding that Miranda v. Arizona, 384 U.S. 436 (1966), and Escobedo v. Illinois, 378 U.S. 478 (1964), applied retroactively only to trials commenced after the decisions were released). Over time, Linkletter proved difficult to apply in a con Cite as: 564 U. S. ____ (2011) 13 Opinion of the Court sistent, coherent way. Individual applications of the standard “produced strikingly divergent results,” see Dan forth v. Minnesota, 552 U.S. 264, 273 (2008), that many saw as “incompatible” and “inconsistent.” Desist v. United States, 394 U.S. 244, 258 (1969) (Harlan, J., dis senting). Justice Harlan in particular, who had endorsed the Linkletter standard early on, offered a strong critique in which he argued that “basic judicial” norms required full retroactive application of new rules to all cases still subject to direct review. 394 U.S., at 258–259; see also Mackey v. United States, 401 U.S. 667, 675–702 (1971) (Harlan, J., concurring in part and dissenting in part). Eventually, and after more than 20 years of toil under Linkletter, the Court adopted Justice Harlan’s view and held that newly announced rules of constitutional criminal procedure must apply “retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.” Griffith, supra, at 328. 2 The dissent and Davis argue that applying the good faith exception in this case is “incompatible” with our retroactivity precedent under Griffith. See post, at 2; Reply Brief for Petitioner 3–7. We think this argument conflates what are two distinct doctrines. Our retroactivity jurisprudence is concerned with whether, as a categorical matter, a new rule is available on direct review as a potential ground for relief. Retroac tive application under Griffith lifts what would otherwise be a categorical bar to obtaining redress for the govern ment’s violation of a newly announced constitutional rule. See Danforth, supra, at 271, n. 5 (noting that it may “make more sense to speak in terms of the ‘redressability’ of violations of new rules, rather than the ‘retroactivity’ of such new rules”). Retroactive application does not, how ever, determine what “appropriate remedy” (if any) the 14 DAVIS v. UNITED STATES Opinion of the Court defendant should obtain. See Powell v. Nevada, 511 U.S. 79, 84 (1994) (noting that it “does not necessarily follow” from retroactive application of a new rule that the defen dant will “gain . . . relief”). Remedy is a separate, analyti cally distinct issue. Cf. American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 189 (1990) (plurality opinion) (“[T]he Court has never equated its retroactivity principles with remedial principles”). As a result, the retroactive applica tion of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question. See Leon, 468 U.S., at 906 (“Whether the exclusionary sanction is appropriately imposed in a particular case . . . is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct’ ”). When this Court announced its decision in Gant, Davis’s conviction had not yet become final on direct review. Gant therefore applies retroactively to this case. Davis may invoke its newly announced rule of substantive Fourth Amendment law as a basis for seeking relief. See Griffith, supra, at 326, 328. The question, then, becomes one of remedy, and on that issue Davis seeks application of the exclusionary rule. But exclusion of evidence does not automatically follow from the fact that a Fourth Amend ment violation occurred. See Evans, 514 U.S., at 13–14. The remedy is subject to exceptions and applies only where its “purpose is effectively advanced.” Krull, 480 U.S., at 347. The dissent and Davis recognize that at least some of the established exceptions to the exclusionary rule limit its availability in cases involving new Fourth Amendment rules. Suppression would thus be inappropriate, the dissent and Davis acknowledge, if the inevitable-discovery exception were applicable in this case. See post, at 3; Reply Brief for Petitioner 22 (“Doctrines such as inevitable Cite as: 564 U. S. ____ (2011) 15 Opinion of the Court discovery, independent source, attenuated basis, [and] standing . . . sharply limit the impact of newly-announced rules”). The good-faith exception, however, is no less an established limit on the remedy of exclusion than is inevi table discovery. Its application here neither contravenes Griffith nor denies retroactive effect to Gant.5 It is true that, under the old retroactivity regime of Linkletter, the Court’s decisions on the “retroactivity prob lem in the context of the exclusionary rule” did take into account whether “law enforcement officers reasonably believed in good faith” that their conduct was in compli ance with governing law. Peltier, 422 U.S., at 535–537. As a matter of retroactivity analysis, that approach is no longer applicable. See Griffith, 479 U.S. 314. It does not follow, however, that reliance on binding precedent is irrelevant in applying the good-faith exception to the exclusionary rule. When this Court adopted the good-faith exception in Leon, the Court’s opinion explicitly relied on Peltier and imported its reasoning into the good-faith inquiry. See 468 U.S., at 918–919. That reasonable reliance by police was once a factor in our retroactivity cases does not make it any less relevant under our Leon —————— 5 The dissent argues that the good-faith exception is “unlike . . . inevi table discovery” because the former applies in all cases where the police reasonably rely on binding precedent, while the latter “applies only upon occasion.” Post, at 3. We fail to see how this distinction makes any difference. The same could be said—indeed, the same was said—of searches conducted in reasonable reliance on statutes. See Krull, 480 U.S., at 368–369 (O’Connor, J., dissenting) (arguing that result in Krull was inconsistent with Griffith). When this Court strikes down a statute on Fourth Amendment grounds, the good-faith exception may prevent the exclusionary rule from applying “in every case pending when [the statute] is overturned.” Post, at 3. This result does not make the Court’s newly announced rule of Fourth Amendment law any less retroactive. It simply limits the applicability of a suppression remedy. See Krull, supra, at 354–355, n. 11. 16 DAVIS v. UNITED STATES Opinion of the Court line of cases.6 B Davis also contends that applying the good-faith ex ception to searches conducted in reliance on binding pre cedent will stunt the development of Fourth Amendment law. With no possibility of suppression, criminal defen dants will have no incentive, Davis maintains, to request that courts overrule precedent.7 1 This argument is difficult to reconcile with our modern understanding of the role of the exclusionary rule. We have never held that facilitating the overruling of prece dent is a relevant consideration in an exclusionary-rule case. Rather, we have said time and again that the sole purpose of the exclusionary rule is to deter misconduct by law enforcement. See, e.g., Sheppard, 468 U.S., at 990 (“ ‘adopted to deter unlawful searches by police’ ”); Evans, supra, at 14 (“historically designed as a means of deterring police misconduct”). We have also repeatedly rejected efforts to expand the focus of the exclusionary rule beyond deterrence of culpa ble police conduct. In Leon, for example, we made clear —————— 6 Nor does United States v. Johnson, 457 U.S. 537 (1982), foreclose application of the good-faith exception in cases involving changing law. Johnson distinguished Peltier and held that all Fourth Amendment cases should be retroactive on direct review so long as the new decision is not a “clear break” from prior precedent. 457 U.S., at 562. Johnson had no occasion to opine on the good-faith exception to the exclusionary rule, which we adopted two years later in Leon. 7 Davis also asserts that a good-faith rule would permit “new Fourth Amendment decisions to be applied only prospectively,” thus amounting to “a regime of rule-creation by advisory opinion.” Brief for Petitioner 23, 25. For reasons discussed in connection with Davis’s argument that application of the good-faith exception here would revive the Linkletter regime, this argument conflates the question of retroactivity with the question of remedy. Cite as: 564 U. S. ____ (2011) 17 Opinion of the Court that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges.” 468 U.S., at 916; see id., at 918 (“If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect . . . it must alter the behav ior of individual law enforcement officers or the policies of their departments”). Krull too noted that “legislators, like judicial officers, are not the focus” of the exclusionary rule. 480 U.S., at 350. And in Evans, we said that the exclu sionary rule was aimed at deterring “police misconduct, not mistakes by court employees.” 514 U.S., at 14. These cases do not suggest that the exclusionary rule should be modified to serve a purpose other than deterrence of cul pable law-enforcement conduct. 2 And in any event, applying the good-faith exception in this context will not prevent judicial reconsideration of prior Fourth Amendment precedents. In most instances, as in this case, the precedent sought to be challenged will be a decision of a Federal Court of Appeals or State Su preme Court. But a good-faith exception for objectively reasonable reliance on binding precedent will not prevent review and correction of such decisions. This Court re views criminal convictions from 12 Federal Courts of Appeals, 50 state courts of last resort, and the District of Columbia Court of Appeals. If one or even many of these courts uphold a particular type of search or seizure, defen dants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue. This Court can then grant certiorari, and the de velopment of Fourth Amendment law will in no way be stunted.8 —————— 8 The dissent does not dispute this point, but it claims that the good faith exception will prevent us from “rely[ing] upon lower courts to work out Fourth Amendment differences among themselves.” Post, at 18 DAVIS v. UNITED STATES Opinion of the Court Davis argues that Fourth Amendment precedents of this Court will be effectively insulated from challenge under a good-faith exception for reliance on appellate precedent. But this argument is overblown. For one thing, it is im portant to keep in mind that this argument applies to an exceedingly small set of cases. Decisions overruling this Court’s Fourth Amendment precedents are rare. Indeed, it has been more than 40 years since the Court last handed down a decision of the type to which Davis refers. Chimel v. California, 395 U.S. 752 (overruling United States v. Rabinowitz, 339 U.S. 56 (1950), and Harris v. United States, 331 U.S. 145 (1947)). And even in those cases, Davis points out that no fewer than eight separate doctrines may preclude a defendant who successfully challenges an existing precedent from getting any relief. Brief for Petitioner 50. Moreover, as a practical matter, defense counsel in many cases will test this Court’s Fourth Amendment precedents in the same way that Belton was tested in Gant—by arguing that the precedent is distin guishable. See Brief for Respondent in Arizona v. Gant, O. T. 2008, No. 07–542, pp. 22–29.9 At most, Davis’s argument might suggest that—to prevent Fourth Amendment law from becoming ossified— the petitioner in a case that results in the overruling of one of this Court’s Fourth Amendment precedents should —————— 5. If that is correct, then today’s holding may well lead to more circuit splits in Fourth Amendment cases and a fuller docket of Fourth Amendment cases in this Court. See this Court’s Rule 10. Such a state of affairs is unlikely to result in ossification of Fourth Amendment doctrine. 9 Where the search at issue is conducted in accordance with a munici pal “policy” or “custom,” Fourth Amendment precedents may also be challenged, without the obstacle of the good-faith exception or qualified immunity, in civil suits against municipalities. See 42 U.S. C. §1983; Los Angeles County v. Humphries, 562 U. S. ___, ___ (2010) (slip op., at 7) (citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690–691 (1978)). Cite as: 564 U. S. ____ (2011) 19 Opinion of the Court be given the benefit of the victory by permitting the sup pression of evidence in that one case. Such a result would undoubtedly be a windfall to this one random litigant. But the exclusionary rule is “not a personal constitutional right.” Stone, 428 U.S., at 486. It is a “judicially created” sanction, Calandra, 414 U.S., at 348, specifically designed as a “windfall” remedy to deter future Fourth Amendment violations. See Stone, supra, at 490. The good-faith excep tion is a judicially created exception to this judicially created rule. Therefore, in a future case, we could, if necessary, recognize a limited exception to the good-faith exception for a defendant who obtains a judgment over ruling one of our Fourth Amendment prece- dents. Cf. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929, 952–953 (1965) (“[T]he same authority that empowered the Court to sup plement the amendment by the exclusionary rule a hun dred and twenty-five years after its adoption, likewise allows it to modify that rule as the lessons of experience may teach” (internal quotation marks and footnotes omitted)).10 —————— 10 Davis contends that a criminal defendant will lack Article III standing to challenge an existing Fourth Amendment precedent if the good-faith exception to the exclusionary rule precludes the defendant from obtaining relief based on police conduct that conformed to that precedent. This argument confuses weakness on the merits with absence of Article III standing. See ASARCO Inc. v. Kadish, 490 U.S. 605, 624 (1989) (standing does not “ ‘depen[d] on the merits of [a claim]’ ”). And as a practical matter, the argument is also overstated. In many instances, as in Gant, see 556 U. S., at __ (slip op., at 8), defendants will not simply concede that the police conduct conformed to the precedent; they will argue instead that the police conduct did not fall within the scope of the precedent. In any event, even if some criminal defendants will be unable to challenge some precedents for the reason that Davis suggests, that provides no good reason for refusing to apply the good-faith exception. As noted, the exclusionary rule is not a personal right, see Stone, 428 U.S., at 486, 490, and therefore the rights of these defendants will not 20 DAVIS v. UNITED STATES Opinion of the Court But this is not such a case. Davis did not secure a deci sion overturning a Supreme Court precedent; the police in his case reasonably relied on binding Circuit precedent. See United States v. Gonzalez, 71 F.3d 819. That sort of blameless police conduct, we hold, comes within the good faith exception and is not properly subject to the exclu sionary rule. * * * It is one thing for the criminal “to go free because the constable has blundered.” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (Cardozo, J.). It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evi dence in such cases deters no police misconduct and im poses substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. The judgment of the Court of Appeals for the Eleventh Circuit is Affirmed. —————— be impaired. And because (at least in almost all instances) the prece dent can be challenged by others, Fourth Amendment case law will not be insulated from reconsideration. Cite as: 564 U. S. ____ (2011) 1 SOTOMAYOR, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 09–11328 _________________ WILLIE GENE DAVIS, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [June 16, 2011] JUSTICE SOTOMAYOR, concurring in the judgment.

The Fourth Amendment protects the right to be free from “unreasonable searches and seizures,” but it is silent about how this right is to be enforced. To supplement the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the prosecution from intro ducing evidence obtained by way of a Fourth Amendment violation. The question here is whether to apply this sanction when the police conduct a search in compliance with binding precedent that is later overruled. Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. I The question presented arises in this case as a result of a shift in our Fourth Amendment jurisprudence on searches of automobiles incident to arrests of recent occupants. 2 DAVIS v. UNITED STATES Opinion of the Court A Under this Court’s decision in 395 U.S. 752 a police officer who makes a lawful arrest may conduct a warrantless search of the arrestee’s person and the area “within his immediate control.” (internal quotation marks omitted). This rule “may be stated clearly enough,” but in the early going after Chimel it proved difficult to apply, particularly in cases that in volved searches “inside [of] automobile[s] after the arrest ees [we]re no longer in [them].” See New A number of courts up held the constitutionality of vehicle searches that were “substantially contemporaneous” with occupants’ arrests.1 Other courts disapproved of automobile searches incident to arrests, at least absent some continuing threat that the arrestee might gain access to the vehicle and “destroy evidence or grab a weapon.”2 In New York v. Bel, this Court granted certiorari to resolve the conflict. See at 59–60. In Bel, a police officer conducting a traffic stop law fully arrested four occupants of a vehicle and ordered the arrestees to line up, un-handcuffed, along the side of the thruway. ; see Brief for Petitioner in New York v. Bel, O. T. No. 80–328, p. 3. The officer then searched the vehicle’s passenger compartment and found cocaine inside a jacket that lay on the backseat. Bel, 53 U.S., This Court upheld the search as rea sonable incident to the occupants’ arrests. In an opinion that repeatedly stressed the need for a “straightforward,” —————— 1 See e.g., United –1 ; United ; United ; 2 See e.g., United ; see also United ; Cite as: 56 U. S. (2011) 3 Opinion of the Court “workable rule” to guide police conduct, the Court an nounced “that when a policeman has made a lawful custo dial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the pas senger compartment of that automobile.” at 59–60 (footnote omitted). For years, Bel was widely understood to have set down a simple, bright-line rule. Numerous courts read the decision to authorize automobile searches incident to arrests of recent occupants, regardless of whether the arrestee in any particular case was within reaching dis tance of the vehicle at the time of the search. See Thorn (SCALIA, J., concur in judgment) (collecting cases). Even after the arrestee had stepped out of the vehicle and had been subdued by police, the prevailing understanding was that Bel still authorized a substantially contemporaneous search of the automobile’s passenger compartment.3 Not every court, however, agreed with this reading of Bel. In the Arizona Supreme Court considered an automobile search conducted after the vehicle’s occupant had been arrested, handcuffed, and locked in a patrol car. The court distinguished Bel as a case in which “four unsecured” arrestees “presented an immediate risk of loss of evidence and an obvious threat to [a] lone officer’s safety.” 216 Ariz., at The court held that where no such “exigencies exis[t]”—where the arrestee has been subdued and the scene secured—the rule of Bel does not 216 Ariz., at 162 P.3d, at 63. This Court granted certiorari in see 552 U. S. —————— 3 See,e.g., United 18 F.3d 1038, 101, 103–10 (CA9 2005) (upholding automobile search conducted after the officer had “handcuffed [the arrestee] and put him in the back of [the] patrol car”); United 37 F.3d 601, 60 DAVIS v. UNITED STATES Opinion of the Court 1230 and affirmed in a 5-to- decision. Arizona v. 556 U. S. Four of the Justices in the majority agreed with the Arizona Supreme Court that Bel’s holding applies only where “the arrestee is unse cured and within reaching distance of the passenger com partment at the time of the search.” 556 U. S., at (slip op., at 10). The four dissenting Justices, by contrast, understood Bel to have explicitly adopted the simple, bright-line rule stated in the Bel Court’s opinion. 556 U. S., at (opinion of ALITO, J.) (slip op., at 3); see Bel 53 U.S., at 60 (“[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automo bile” (footnote omitted)). To limit Bel to cases involving unsecured arrestees, the dissenters thought, was to over rule the decision’s clear holding. at (slip op., at 2–3). JUSTICE SCALIA, who provided the fifth vote to affirm in agreed with the dissenters’ understand ing of Bel’s holding. 556 U. S., at (slip op., at 1–2) (concur opinion). JUSTICE SCALIA favored a more ex plicit and complete overruling of Bel, but he joined what became the majority opinion to avoid “a -to-1-to-” disposition. 556 U. S., at (slip op., at 2–). As a result, the Court adopted a new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching dis tance of the vehicle du the search, or (2) if the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.” at (slip op., at 9– 10) (citing Thorn, (SCALIA, J., concur in judgment); internal quotation marks omitted). B The search at issue in this case took place a full two years before this Court announced its new rule in Cite as: 56 U. S. (2011) 5 Opinion of the Court On an April evening in police officers in Greenville, Alabama, conducted a routine traffic stop that eventually resulted in the arrests of driver Stella Owens (for driving while intoxicated) and passenger Willie Davis (for giving a false name to police). The police handcuffed both Owens and Davis, and they placed the arrestees in the back of separate patrol cars. The police then searched the pas senger compartment of Owens’s vehicle and found a re volver inside Davis’s jacket pocket. Davis was indicted in the Middle District of Alabama on one count of possession of a firearm by a convicted felon. See 18 U.S. C. §(g)(1). In his motion to suppress the revolver, Davis acknowledged that the officers’ search fully complied with “existing Eleventh Circuit ” App. –15. Like most courts, the Eleventh Circuit had long read Bel to establish a bright-line rule authorizing substantially contemporaneous vehicle searches incident to arrests of recent occupants. See United 82–827 (upholding automobile search conducted after the defendant had been “pulled from the vehicle, handcuffed, laid on the ground, and placed under arrest”). Davis recognized that the Dis trict Court was obligated to follow this precedent, but he raised a Fourth Amendment challenge to preserve “the issue for review” on appeal. App. 15. The District Court denied the motion, and Davis was convicted on the fire arms charge. While Davis’s appeal was pending, this Court decided The Eleventh Circuit, in the opinion below, applied ’s new rule and held that the vehicle search incident to Davis’s arrest “violated [his] Fourth Amendment rights.” As for whether this constitutional violation warranted suppres sion, the Eleventh Circuit viewed that as a separate issue that turned on “the potential of exclusion to deter wrong ful police conduct.” ; internal quotation marks omitted). The court concluded that “penalizing the [ar resting] officer” for following binding appellate precedent would do nothing to “dete[r] Fourth Amendment viola tions.” 598 F.3d, –1266 (bracketing and internal quotation marks omitted). It therefore declined to apply the exclusionary rule and affirmed Davis’s conviction. We granted certiorari. 562 U. S. II The Fourth Amendment protects the “right of the peo ple to be secure in their persons, houses, papers, and ef fects, against unreasonable searches and seizures.” The Amendment says nothing about suppressing evidence ob tained in violation of this command. That rule—the exclusionary rule—is a “prudential” doctrine, Pennsyl vania Bd. of Probation and 52 U.S. 357, 363 (1998), created by this Court to “compel respect for the constitutional guaranty.” v. United States, 36 U.S. 206, 217 (1960); see Weeks v. United States, 232 U.S. 383 (191); 367 U.S. 63 Exclusion is “not a personal constitutional right,” nor is it designed to “redress the injury” occasioned by an unconstitutional search. Se v. Powell, 28 U.S. 65, 86 ; see United 28 U.S. 33, 5, n. 29 (exclusionary rule “unsupportable as reparation or com pensatory dispensation to the injured criminal” (internal quotation marks omitted)). The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amend ment violations. E.g., at 11, and n. 2; United 68 U.S. 897, (198); (“calculated to prevent, not to repair”). Our cases have thus limited the rule’s operation to situations in which this purpose is “thought most effica ciously served.” United 1 U.S. 338, 38 (197). Where suppression fails to yield “appreciable Cite as: 56 U. S. (2011) 7 Opinion of the Court deterrence,” exclusion is “clearly unwarranted.” at 5. Real deterrent value is a “necessary condition for exclu sion,” but it is not “a sufficient” one. 57 U.S. 586, The analysis must also account for the “substantial social costs” generated by the rule. Exclusion exacts a heavy toll on both the judicial system and society at large. Se, 28 U.S., at 90–91. It almost always requires courts to ignore reliable, trustworthy evidence bea on guilt or inno cence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. See at 11. Our cases hold that society must swallow this bitter pill when necessary, but only as a “last resort.” For exclusion to be appropriate, the deter rence benefits of suppression must outweigh its heavy costs. See at 11; Admittedly, there was a time when our exclusionary rule cases were not nearly so discriminating in their approach to the doctrine. “Expansive dicta” in several deci sions, see suggested that the rule was a self-executing mandate implicit in the Fourth Amendment itself. See Olmstead v. United States, 277 U.S. 38, 62 (1928) (remarking on the “striking outcome of the Weeks case” that “the Fourth Amendment, although not refer to or limiting the use of evidence in courts, really forbade its introduction”); (“[A]ll evidence obtained by searches and seizures in viola tion of the Constitution is, by that same authority, inad missible in a state court”). As late as our 1971 decision in Whiteley v. Warden, Wyo. State Penitentiary, 01 U.S. 560, 568–569, the Court “treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule.” 51 U.S. 1, (1995). In time, however, we came to acknowledge the 8 DAVIS v. UNITED STATES Opinion of the Court exclusionary rule for what it undoubtedly is—a “judicially created remedy” of this Court’s own making. at 38. We abandoned the old, “reflexive” applica tion of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits. at ; see, e.g., Se, INS v. Lopez-Mendoza, 68 U.S. 1032 (198); United States v. Havens, 6 U.S. 620 In a line of cases beginning with United 68 U.S. 897, we also recali brated our cost-benefit analysis in exclusion cases to focus the inquiry on the “flagrancy of the police misconduct” at issue. The basic insight of the line of cases is that the deterrence benefits of exclusion “var[y] with the culpabil ity of the law enforcement conduct” at issue. 555 U.S., at When the police exhibit “deliberate,” “reck less,” or “grossly negligent” disregard for Fourth Amend ment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. at 1. But when the police act with an objectively “reasonable good faith belief” that their conduct is lawful, at 909 (internal quotation marks omitted), or when their conduct involves only simple, “isolated” negligence, Her at the “ ‘deterrence rationale loses much of its force,’ ” and exclusion cannot “pay its way.” See ). The Court has over time applied this “good-faith” excep tion across a range of cases. itself, for example, held that the exclusionary rule does not apply when the police conduct a search in “objectively reasonable reliance” on a warrant later held 68 U.S., at The error in such a case rests with the issuing magistrate, not the police officer, and “punish[ing] the errors of judges” is not the office of the exclusionary rule. ; see also 68 U.S. 981, (198) Cite as: 56 U. S. (2011) 9 Opinion of the Court (companion case declining to apply exclusionary rule where warrant held invalid as a result of judge’s clerical error). Other good-faith cases have sounded a similar theme. 80 U.S. 30 extended the good faith exception to searches conducted in reasonable reli ance on subsequently invalidated statutes. at 39– 350 (“legislators, like judicial officers, are not the focus of the rule”). In the Court applied the good-faith exception in a case where the police rea sonably relied on erroneous information concerning an arrest warrant in a database maintained by judicial em ployees. at 1. Most recently, in v. United States, we extended in a case where police employees erred in maintaining records in a war rant database. “[I]solated,” “nonrecur” police negli gence, we determined, lacks the culpability required to justify the harsh sanction of 555 U.S., at 1. III The question in this case is whether to apply the exclu sionary rule when the police conduct a search in objec tively reasonable reliance on binding judicial At the time of the search at issue here, we had not yet decided Arizona v. 556 U. S. and the Eleventh Circuit had interpreted our decision in New to establish a bright-line rule authorizing the search of a vehicle’s passenger compartment incident to a recent occupant’s arrest. The search incident to Davis’s arrest in this case followed the Eleventh Circuit’s precedent to the letter. Although the search turned out to be unconstitutional under all agree that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way. See Brief for Petitioner 9 (“sup 10 DAVIS v. UNITED STATES Opinion of the Court pression” in this case would “impl[y] no assignment of blame”). Under our exclusionary-rule precedents, this acknowl edged absence of police culpability dooms Davis’s claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield “mean ingfu[l]” deterrence, and culpable enough to be “worth the price paid by the justice system.” 555 U.S., at 1. The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis’s Fourth Amendment rights deliberately, recklessly, or with gross negligence. See Nor does this case involve any “recur or systemic negligence” on the part of law enforcement. The police acted in strict compliance with binding precedent, and their behav ior was not wrongful. Unless the exclusionary rule is to become a strict-liability regime, it can have no application in this case. Indeed, in 27 years of practice under ’s good-faith exception, we have “never applied” the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police conduct. at 1. If the police in this case had reasonably relied on a warrant in conducting their search, see or on an errone ous warrant record in a government database, the exclusionary rule would not And if Congress or the Alabama Legislature had enacted a stat ute codifying the precise holding of the Eleventh Circuit’s decision in we would swiftly conclude that —————— Cf. –2501(c) (“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of [d]iscove the fruits, instrumentalities, or evidence of a crime”). The Kansas Supreme Court recently struck this provision down in light of Arizona v. 556 U. S. 289 Kan. 6, 71 But it has applied Cite as: 56 U. S. (2011) 11 Opinion of the Court “ ‘[p]enalizing the officer for the legislature’s error cannot logically contribute to the deterrence of Fourth Amendment violations.’ ” See 80 U.S., at 350. The same should be true of Davis’s attempt here to “ ‘[p]enaliz[e] the officer for the [appellate judges’] error.’ ” See About all that exclusion would deter in this case is conscientious police work. Responsible law-enforcement officers will take care to learn “what is required of them” under Fourth Amendment precedent and will conform their conduct to these rules. 57 U.S., at 599. But by the same token, when binding appellate precedent specifically authorizes a particular police practice, well trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An of ficer who conducts a search in reliance on binding appel late precedent does no more than “ ‘ac[t] as a reasonable officer would and should act’ ” under the circumstances. 68 U.S., at 920 (quoting Se, 28 U.S., at – 50 (White, J., dissenting)). The deterrent effect of exclu sion in such a case can only be to discourage the officer from “ ‘do[ing] his duty.’ ” 68 U.S., at 920. That is not the kind of deterrence the exclusionary rule seeks to foster. We have stated before, and we reaffirm today, that the harsh sanction of exclusion “should not be applied to deter objectively reasonable law enforcement activity.” Evidence obtained du a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule. IV JUSTICE BREYER’s dissent and Davis argue that, al though the police conduct in this case was in no way cul —————— 80 U.S. 30 and the good-faith exception to searches conducted in reasonable reliance on the statute. See State v. Daniel, 291 Kan. 90, 97–50, 22 P.3d 1186, 12 DAVIS v. UNITED STATES Opinion of the Court pable, other considerations should prevent the good-faith exception from applying. We are not persuaded. A 1 The principal argument of both the dissent and Davis is that the exclusionary rule’s availability to enforce new Fourth Amendment precedent is a retroactivity issue, see 79 U.S. 31 not a good-faith issue. They contend that applying the good-faith excep tion where police have relied on overruled precedent effec tively revives the discarded retroactivity regime of Linklet See post, at 2–5. In Linkletter, we held that the retroactive effect of a new constitutional rule of criminal procedure should be deter mined on a case-by-case weighing of interests. For each new rule, Linkletter required courts to consider a three factor balancing test that looked to the “purpose” of the new rule, “reliance” on the old rule by law enforcement and others, and the effect retroactivity would have “on the administration of justice.” After “weigh[ing] the merits and demerits in each case,” courts decided whether and to what extent a new rule should be given retroactive effect. In Linkletter itself, the balance of interests prompted this Court to conclude that 367 U.S. 63—which incorporated the exclusionary rule against the States—should not apply retroactively to cases already final on direct 381 U.S., at 639–60. The next year, we extended Linkletter to retroactivity determinations in cases on direct See 38 U.S. 719, and 378 U.S. 78 (196), applied retroactively only to trials commenced after the decisions were released). Over time, Linkletter proved difficult to apply in a con Cite as: 56 U. S. (2011) Opinion of the Court sistent, coherent way. Individual applications of the standard “produced strikingly divergent results,” see Dan 552 U.S. 26, that many saw as “incompatible” and “inconsistent.” Desist v. United States, 39 U.S. 2, (Harlan, J., dis senting). Justice Harlan in particular, who had endorsed the Linkletter standard early on, offered a strong critique in which he argued that “basic judicial” norms required full retroactive application of new rules to all cases still subject to direct 39 U.S., at –259; see also 01 U.S. 667, (Harlan, J., concur in part and dissenting in part). Eventually, and after more than 20 years of toil under Linkletter, the Court adopted Justice Harlan’s view and held that newly announced rules of constitutional criminal procedure must apply “retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.” 2 The dissent and Davis argue that applying the good faith exception in this case is “incompatible” with our retroactivity precedent under See post, at 2; Reply Brief for Petitioner 3–7. We think this argument conflates what are two distinct doctrines. Our retroactivity jurisprudence is concerned with whether, as a categorical matter, a new rule is available on direct review as a potential ground for relief. Retroac tive application under lifts what would otherwise be a categorical bar to obtaining redress for the govern ment’s violation of a newly announced constitutional rule. See (noting that it may “make more sense to speak in terms of the ‘redressability’ of violations of new rules, rather than the ‘retroactivity’ of such new rules”). Retroactive application does not, how ever, determine what “appropriate remedy” (if any) the 1 DAVIS v. UNITED STATES Opinion of the Court defendant should obtain. See Powell v. Nevada, 511 U.S. 79, 8 (199) (noting that it “does not necessarily follow” from retroactive application of a new rule that the defen dant will “gain relief”). Remedy is a separate, analyti cally distinct issue. Cf. American Trucking Assns., Inc. v. Smith, 96 U.S. 167, (1) (“[T]he Court has never equated its retroactivity principles with remedial principles”). As a result, the retroactive applica tion of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question. See 68 U.S., at 906 (“Whether the exclusionary sanction is appropriately imposed in a particular case is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct’ ”). When this Court announced its decision in Davis’s conviction had not yet become final on direct therefore applies retroactively to this case. Davis may invoke its newly announced rule of substantive Fourth Amendment law as a basis for seeking relief. See The question, then, becomes one of remedy, and on that issue Davis seeks application of the exclusionary rule. But exclusion of evidence does not automatically follow from the fact that a Fourth Amend ment violation occurred. See 51 U.S., at –1. The remedy is subject to exceptions and applies only where its “purpose is effectively advanced.” 80 U.S., at 37. The dissent and Davis recognize that at least some of the established exceptions to the exclusionary rule limit its availability in cases involving new Fourth Amendment rules. Suppression would thus be inappropriate, the dissent and Davis acknowledge, if the inevitable-discovery exception were applicable in this case. See post, at 3; Reply Brief for Petitioner 22 (“Doctrines such as inevitable Cite as: 56 U. S. (2011) 15 Opinion of the Court discovery, independent source, attenuated basis, [and] standing sharply limit the impact of newly-announced rules”). The good-faith exception, however, is no less an established limit on the remedy of exclusion than is inevi table discovery. Its application here neither contravenes nor denies retroactive effect to5 It is true that, under the old retroactivity regime of Linkletter, the Court’s decisions on the “retroactivity prob lem in the context of the exclusionary rule” did take into account whether “law enforcement officers reasonably believed in good faith” that their conduct was in compli ance with governing law. 22 U.S., at 535–537. As a matter of retroactivity analysis, that approach is no longer applicable. See 79 U.S. 31. It does not follow, however, that reliance on binding precedent is irrelevant in applying the good-faith exception to the exclusionary rule. When this Court adopted the good-faith exception in the Court’s opinion explicitly relied on and imported its reasoning into the good-faith inquiry. See 68 U.S., –919. That reasonable reliance by police was once a factor in our retroactivity cases does not make it any less relevant under our —————— 5 The dissent argues that the good-faith exception is “unlike inevi table discovery” because the former applies in all cases where the police reasonably rely on binding precedent, while the latter “applies only upon occasion.” Post, at 3. We fail to see how this distinction makes any difference. The same could be said—indeed, the same was said—of searches conducted in reasonable reliance on statutes. See 80 U.S., at 368–369 (O’Connor, J., dissenting) (arguing that result in was inconsistent with ). When this Court strikes down a statute on Fourth Amendment grounds, the good-faith exception may prevent the exclusionary rule from applying “in every case pending when [the statute] is overturned.” Post, at 3. This result does not make the Court’s newly announced rule of Fourth Amendment law any less retroactive. It simply limits the applicability of a suppression remedy. See at 35–355, n. 11. 16 DAVIS v. UNITED STATES Opinion of the Court line of cases.6 B Davis also contends that applying the good-faith ex ception to searches conducted in reliance on binding pre cedent will stunt the development of Fourth Amendment law. With no possibility of suppression, criminal defen dants will have no incentive, Davis maintains, to request that courts overrule 7 1 This argument is difficult to reconcile with our modern understanding of the role of the exclusionary rule. We have never held that facilitating the overruling of prece dent is a relevant consideration in an exclusionary-rule case. Rather, we have said time and again that the sole purpose of the exclusionary rule is to deter misconduct by law enforcement. See, e.g., 68 U.S., at (“ ‘adopted to deter unlawful searches by police’ ”); at 1 (“historically designed as a means of deter police misconduct”). We have also repeatedly rejected efforts to expand the focus of the exclusionary rule beyond deterrence of culpa ble police conduct. In for example, we made clear —————— 6 Nor does United 57 U.S. 537 foreclose application of the good-faith exception in cases involving changing law. Johnson distinguished and held that all Fourth Amendment cases should be retroactive on direct review so long as the new decision is not a “clear break” from prior 57 U.S., at 562. Johnson had no occasion to opine on the good-faith exception to the exclusionary rule, which we adopted two years later in 7 Davis also asserts that a good-faith rule would permit “new Fourth Amendment decisions to be applied only prospectively,” thus amounting to “a regime of rule-creation by advisory opinion.” Brief for Petitioner 23, 25. For reasons discussed in connection with Davis’s argument that application of the good-faith exception here would revive the Linkletter regime, this argument conflates the question of retroactivity with the question of remedy. Cite as: 56 U. S. (2011) 17 Opinion of the Court that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges.” 68 U.S., ; see (“If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect it must alter the behav ior of individual law enforcement officers or the policies of their departments”). too noted that “legislators, like judicial officers, are not the focus” of the exclusionary rule. 80 U.S., at 350. And in we said that the exclu sionary rule was aimed at deter “police misconduct, not mistakes by court employees.” 51 U.S., at 1. These cases do not suggest that the exclusionary rule should be modified to serve a purpose other than deterrence of cul pable law-enforcement conduct. 2 And in any event, applying the good-faith exception in this context will not prevent judicial reconsideration of prior Fourth Amendment precedents. In most instances, as in this case, the precedent sought to be challenged will be a decision of a Federal Court of Appeals or State Su preme Court. But a good-faith exception for objectively reasonable reliance on binding precedent will not prevent review and correction of such decisions. This Court re views criminal convictions from 12 Federal Courts of Appeals, 50 state courts of last resort, and the District of Columbia Court of Appeals. If one or even many of these courts uphold a particular type of search or seizure, defen dants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue. This Court can then grant certiorari, and the de velopment of Fourth Amendment law will in no way be stunted.8 —————— 8 The dissent does not dispute this point, but it claims that the good faith exception will prevent us from “rely[ing] upon lower courts to work out Fourth Amendment differences among themselves.” Post, at 18 DAVIS v. UNITED STATES Opinion of the Court Davis argues that Fourth Amendment precedents of this Court will be effectively insulated from challenge under a good-faith exception for reliance on appellate But this argument is overblown. For one thing, it is im portant to keep in mind that this argument applies to an exceedingly small set of cases. Decisions overruling this Court’s Fourth Amendment precedents are rare. Indeed, it has been more than 0 years since the Court last handed down a decision of the type to which Davis refers. and Harris v. United States, 331 U.S. 15 (197)). And even in those cases, Davis points out that no fewer than eight separate doctrines may preclude a defendant who successfully challenges an existing precedent from getting any relief. Brief for Petitioner 50. Moreover, as a practical matter, defense counsel in many cases will test this Court’s Fourth Amendment precedents in the same way that Bel was tested in —by arguing that the precedent is distin guishable. See Brief for Respondent in Arizona v. O. T. 2008, No. 07–52, pp. 22–29.9 At most, Davis’s argument might suggest that—to prevent Fourth Amendment law from becoming ossified— the petitioner in a case that results in the overruling of one of this Court’s Fourth Amendment precedents should —————— 5. If that is correct, then today’s holding may well lead to more circuit splits in Fourth Amendment cases and a fuller docket of Fourth Amendment cases in this Court. See this Court’s Rule 10. Such a state of affairs is unlikely to result in ossification of Fourth Amendment doctrine. 9 Where the search at issue is conducted in accordance with a munici pal “policy” or “custom,” Fourth Amendment precedents may also be challenged, without the obstacle of the good-faith exception or qualified immunity, in civil suits against municipalities. See 2 U.S. C. Los Angeles County v. Humphries, 562 U. S. (slip op., at 7) (citing 36 U.S. 658, 690–691 (1978)). Cite as: 56 U. S. (2011) 19 Opinion of the Court be given the benefit of the victory by permitting the sup pression of evidence in that one case. Such a result would undoubtedly be a windfall to this one random litigant. But the exclusionary rule is “not a personal constitutional right.” Se, 28 U.S., at 86. It is a “judicially created” sanction, 1 U.S., at 38, specifically designed as a “windfall” remedy to deter future Fourth Amendment violations. See Se, at 90. The good-faith excep tion is a judicially created exception to this judicially created rule. Therefore, in a future case, we could, if necessary, recognize a limited exception to the good-faith exception for a defendant who obtains a judgment over ruling one of our Fourth Amendment prece- dents. Cf. Friendly, The Bill of Rights as a Code of Criminal Procedure, 952–953 (“[T]he same authority that empowered the Court to sup plement the amendment by the exclusionary rule a hun dred and twenty-five years after its adoption, likewise allows it to modify that rule as the lessons of experience may teach” (internal quotation marks and footnotes omitted)).10 —————— 10 Davis contends that a criminal defendant will lack Article III standing to challenge an existing Fourth Amendment precedent if the good-faith exception to the exclusionary rule precludes the defendant from obtaining relief based on police conduct that conformed to that This argument confuses weakness on the merits with absence of Article III standing. See ASARCO Inc. v. Kadish, 90 U.S. 605, 62 (1989) (standing does not “ ‘depen[d] on the merits of [a claim]’ ”). And as a practical matter, the argument is also overstated. In many instances, as in see 556 U. S., at (slip op., at 8), defendants will not simply concede that the police conduct conformed to the precedent; they will argue instead that the police conduct did not fall within the scope of the In any event, even if some criminal defendants will be unable to challenge some precedents for the reason that Davis suggests, that provides no good reason for refusing to apply the good-faith exception. As noted, the exclusionary rule is not a personal right, see Se, 28 U.S., at 86, 90, and therefore the rights of these defendants will not 20 DAVIS v. UNITED STATES Opinion of the Court But this is not such a case. Davis did not secure a deci sion overturning a Supreme Court precedent; the police in his case reasonably relied on binding Circuit See United States v. That sort of blameless police conduct, we hold, comes within the good faith exception and is not properly subject to the exclu sionary rule. * * * It is one thing for the criminal “to go free because the constable has blundered.” 22 N.Y. 21, It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evi dence in such cases deters no police misconduct and im poses substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not The judgment of the Court of Appeals for the Eleventh Circuit is Affirmed. —————— be impaired. And because (at least in almost all instances) the prece dent can be challenged by others, Fourth Amendment case law will not be insulated from reconsideration. Cite as: 56 U. S. (2011) 1 SOTOMAYOR, J., concur in judgment SUPREME COURT OF THE UNITED STATES No. 09–128 WILLIE GENE DAVIS, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT [June 16, 2011] JUSTICE SOTOMAYOR, concur in the judgment.

Justice Sotomayor

concurring

Davis v. United States

2011-06-16

https://www.courtlistener.com/opinion/218926/davis-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/218926/

2010-066

Under our precedents, the primary purpose of the exclu sionary rule is “to deter future Fourth Amendment viola tions.” Ante, at 6; see, e.g., Herring v. United States, 555 U.S. 135, 141 (2009); Illinois v. Krull, 480 U.S. 340, 347– 348 (1987). Accordingly, we have held, application of the exclusionary rule is unwarranted when it “ ‘does not result in appreciable deterrence.’ ” Arizona v. Evans, 514 U.S. 1, 11 (1995) (quoting United States v. Janis, 428 U.S. 433, 454 (1976)). In the circumstances of this case, where “binding appellate precedent specifically authorize[d] a particular police practice,” ante, at 11—in accord with the holdings of nearly every other court in the country— application of the exclusionary rule cannot reasonably be expected to yield appreciable deterrence. I am thus compelled to conclude that the exclusionary rule does not apply in this case and to agree with the Court’s disposition. This case does not present the markedly different ques tion whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled. As we previously recognized in deciding whether to apply a Fourth Amendment holding retroac tively, when police decide to conduct a search or seizure in the absence of case law (or other authority) specifically 2 DAVIS v. UNITED STATES SOTOMAYOR, J., concurring in judgment sanctioning such action, exclusion of the evidence obtained may deter Fourth Amendment violations: “If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be coun terbalanced by official certainty that, so long as the Fourth Amendment law in the area remained un settled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question.” United States v. Johnson, 457 U.S. 537, 561 (1982) (footnote omitted). The Court of Appeals recognized as much in limiting its application of the good-faith exception it articulated in this case to situations where its “precedent on a given point [is] unequivocal.” 598 F.3d 1259, 1266 (CA11 2010); see id., at 1266–1267 (“[W]e do not mean to encourage police to adopt a ‘ “let’s-wait-until-it’s-decided approach” ’ to ‘unset tled’ questions of Fourth Amendment law” (quoting John son, 457 U.S., at 561)). Whether exclusion would deter Fourth Amendment violations where appellate precedent does not specifically authorize a certain practice and, if so, whether the benefits of exclusion would outweigh its costs are questions unanswered by our previous decisions. The dissent suggests that today’s decision essentially answers those questions, noting that an officer who con ducts a search in the face of unsettled precedent “is no more culpable than an officer who follows erroneous ‘bind ing precedent.’ ” Post, at 7 (opinion of BREYER, J.). The Court does not address this issue. In my view, whether an officer’s conduct can be characterized as “culpable” is not itself dispositive. We have never refused to apply the Cite as: 564 U. S. ____ (2011) 3 SOTOMAYOR, J., concurring in judgment exclusionary rule where its application would appreciably deter Fourth Amendment violations on the mere ground that the officer’s conduct could be characterized as noncul pable. Rather, an officer’s culpability is relevant because it may inform the overarching inquiry whether exclusion would result in appreciable deterrence. See ante, at 8 (“The basic insight of the Leon line of cases is that the deterrence benefits of exclusion var[y] with the culpability of the law enforcement conduct at issue” (internal quota tion marks omitted; alteration in original)); see also, e.g., Herring, 555 U.S., at 143 (“The extent to which the exclu sionary rule is justified by these deterrence principles varies with the culpability of the law enforcement con duct”); United States v. Leon, 468 U.S. 897, 919 (1984) (“ ‘Where the official action was pursued in complete good faith, . . . the deterrence rationale loses much of its force’ ” (quoting Michigan v. Tucker, 417 U.S. 433, 447 (1974))). Whatever we have said about culpability, the ultimate ques tions have always been, one, whether exclusion would result in appreciable deterrence and, two, whether the benefits of exclusion outweigh its costs. See, e.g., ante, at 6–7; Herring, 555 U.S., at 141; Krull, 480 U.S., at 347. As stated, whether exclusion would result in appreciable deterrence in the circumstances of this case is a different question from whether exclusion would appreciably deter Fourth Amendment violations when the governing law is unsettled. The Court’s answer to the former question in this case thus does not resolve the latter one. Cite as: 564 U. S. ____ (2011) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 09–11328 _________________ WILLIE GENE DAVIS, PETITIONER v.

Under our precedents, the primary purpose of the exclu sionary rule is “to deter future Fourth Amendment viola tions.” Ante, at 6; see, e.g., v. United States, 555 U.S. 135, 141 (2009); 347– 348 (1987). Accordingly, we have held, application of the exclusionary rule is unwarranted when it “ ‘does not result in appreciable deterrence.’ ” 11 (1995) (quoting United 454 (1976)). In the circumstances of this case, where “binding appellate precedent specifically authorize[d] a particular police practice,” ante, at 11—in accord with the holdings of nearly every other court in the country— application of the exclusionary rule cannot reaably be expected to yield appreciable deterrence. I am thus compelled to conclude that the exclusionary rule does not apply in this case and to agree with the Court’s disposition. This case does not present the markedly different ques tion whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled. As we previously recognized in deciding whether to apply a Fourth Amendment holding retroac tively, when police decide to conduct a search or seizure in the absence of case law (or other authority) specifically 2 DAVIS v. UNITED STATES SOTOMAYOR, J., concurring in judgment sanctioning such action, exclusion of the evidence obtained may deter Fourth Amendment violations: “If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be coun terbalanced by official certainty that, so long as the Fourth Amendment law in the area remained un settled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question.” United (footnote omitted). The Court of Appeals recognized as much in limiting its application of the good-faith exception it articulated in this case to situations where its “precedent on a given point [is] unequivocal.” ; see at –1267 (“[W]e do not mean to encourage police to adopt a ‘ “let’s-wait-until-it’s-decided approach” ’ to ‘unset tled’ questions of Fourth Amendment law” (quoting John 457 U.S., at )). Whether exclusion would deter Fourth Amendment violations where appellate precedent does not specifically authorize a certain practice and, if so, whether the benefits of exclusion would outweigh its costs are questions unanswered by our previous decisions. The dissent suggests that today’s decision essentially answers those questions, noting that an officer who con ducts a search in the face of unsettled precedent “is no more culpable than an officer who follows erroneous ‘bind ing precedent.’ ” Post, at 7 (opinion of BREYER, J.). The Court does not address this issue. In my view, whether an officer’s conduct can be characterized as “culpable” is not itself dispositive. We have never refused to apply the Cite as: 564 U. S. (2011) 3 SOTOMAYOR, J., concurring in judgment exclusionary rule where its application would appreciably deter Fourth Amendment violations on the mere ground that the officer’s conduct could be characterized as noncul pable. Rather, an officer’s culpability is relevant because it may inform the overarching inquiry whether exclusion would result in appreciable deterrence. See ante, at 8 (“The basic insight of the Leon line of cases is that the deterrence benefits of exclusion var[y] with the culpability of the law enforcement conduct at issue” (internal quota tion marks omitted; alteration in original)); see also, e.g., (“The extent to which the exclu sionary rule is justified by these deterrence principles varies with the culpability of the law enforcement con duct”); United )). Whatever we have said about culpability, the ultimate ques tions have always been, one, whether exclusion would result in appreciable deterrence and, two, whether the benefits of exclusion outweigh its costs. See, e.g., ante, at 6–7; ; As stated, whether exclusion would result in appreciable deterrence in the circumstances of this case is a different question from whether exclusion would appreciably deter Fourth Amendment violations when the governing law is unsettled. The Court’s answer to the former question in this case thus does not resolve the latter one. Cite as: 564 U. S. (2011) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–11328 WILLIE GENE DAVIS, PETITIONER v.

Justice Breyer

dissenting

Davis v. United States

2011-06-16

https://www.courtlistener.com/opinion/218926/davis-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/218926/

2010-066

In 2009, in Arizona v. Gant, 556 U. S. ___, this Court held that a police search of an automobile without a war rant violates the Fourth Amendment if the police have pre viously removed the automobile’s occupants and placed them securely in a squad car. The present case involves these same circumstances, and it was pending on appeal when this Court decided Gant. Because Gant represents a “shift” in the Court’s Fourth Amendment jurisprudence, ante, at 1, we must decide whether and how Gant’s new rule applies here. I I agree with the Court about whether Gant’s new rule applies. It does apply. Between 1965, when the Court decided Linkletter v. Walker, 381 U.S. 618, and 1987, when it decided Griffith v. Kentucky, 479 U.S. 314, that conclusion would have been more difficult to reach. Under Linkletter, the Court determined a new rule’s retroactivity by looking to several different factors, including whether the new rule represented a “clear break” with the past and the degree of “reliance by law enforcement authorities on the old standards.” Desist v. United States, 394 U.S. 244, 248–249 (1969) (internal quotation marks omitted) (also 2 DAVIS v. UNITED STATES BREYER, J., dissenting citing “the purpose to be served by the new standards” and “the effect on the administration of justice” as factors (internal quotation marks omitted)). And the Court would often not apply the new rule to identical cases still pend ing on appeal. See ibid. After 22 years of struggling with its Linkletter approach, however, the Court decided in Griffith that Linkletter had proved unfair and unworkable. It then substituted a clearer approach, stating that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” 479 U.S., at 328. The Court today, following Griffith, concludes that Gant’s new rule applies here. And to that extent I agree with its decision. II The Court goes on, however, to decide how Gant’s new rule will apply. And here it adds a fatal twist. While conceding that, like the search in Gant, this search vio lated the Fourth Amendment, it holds that, unlike Gant, this defendant is not entitled to a remedy. That is be cause the Court finds a new “good faith” exception which prevents application of the normal remedy for a Fourth Amendment violation, namely, suppression of the illegally seized evidence. Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961). Leaving Davis with a right but not a remedy, the Court “keep[s] the word of promise to our ear” but “break[s] it to our hope.” A At this point I can no longer agree with the Court. A new “good faith” exception and this Court’s retroactivity decisions are incompatible. For one thing, the Court’s distinction between (1) retroactive application of a new Cite as: 564 U. S. ____ (2011) 3 BREYER, J., dissenting rule and (2) availability of a remedy is highly artificial and runs counter to precedent. To determine that a new rule is retroactive is to determine that, at least in the normal case, there is a remedy. As we have previously said, the “source of a ‘new rule’ is the Constitution itself, not any judicial power to create new rules of law”; hence, “[w]hat we are actually determining when we assess the ‘retroac tivity’ of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.” Dan forth v. Minnesota, 552 U.S. 264, 271 (2008). The Court’s “good faith” exception (unlike, say, inevitable discovery, a remedial doctrine that applies only upon occasion) creates “a categorical bar to obtaining redress” in every case pend ing when a precedent is overturned. Ante, at 13–14. For another thing, the Court’s holding re-creates the very problems that led the Court to abandon Linkletter’s approach to retroactivity in favor of Griffith’s. One such problem concerns workability. The Court says that its exception applies where there is “objectively reasonable” police “reliance on binding appellate precedent.” Ante, at 1, 19. But to apply the term “binding appellate precedent” often requires resolution of complex questions of degree. Davis conceded that he faced binding anti-Gant precedent in the Eleventh Circuit. But future litigants will be less forthcoming. Ante, at 18. Indeed, those litigants will now have to create distinctions to show that previous Circuit precedent was not “binding” lest they find relief foreclosed even if they win their constitutional claim. At the same time, Fourth Amendment precedents fre quently require courts to “slosh” their “way through the factbound morass of ‘reasonableness.’ ” Scott v. Harris, 550 U.S. 372, 383 (2007). Suppose an officer’s conduct is consistent with the language of a Fourth Amendment rule that a court of appeals announced in a case with clearly 4 DAVIS v. UNITED STATES BREYER, J., dissenting distinguishable facts? Suppose the case creating the rele vant precedent did not directly announce any general rule but involved highly analogous facts? What about a rule that all other jurisdictions, but not the defendant’s jurisdiction, had previously accepted? What rules can be developed for determining when, where, and how these different kinds of precedents do, or do not, count as rele vant “binding precedent”? The Linkletter-like result is likely complex legal argument and police force confusion. See Williams v. United States, 401 U.S. 646, 676 (1971) (opinion of Harlan, J.) (describing trying to follow Linklet ter decisions as “almost as difficult” as trying to follow “the tracks made by a beast of prey in search of its intended victim”). Another such problem concerns fairness. Today’s hold ing, like that in Linkletter, “violates basic norms of con stitutional adjudication.” Griffith, supra, at 322. It treats the defendant in a case announcing a new rule one way while treating similarly situated defendants whose cases are pending on appeal in a different way. See ante, at 18– 19. Justice Harlan explained why this approach is wrong when he said: “We cannot release criminals from jail merely because we think one case is a particularly appropriate one [to announce a constitutional doctrine] . . . . Simply fish ing one case from the stream of appellate review, us ing it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute an indefensible departure from [our ordinary] model of judicial review.” Williams, supra, at 679. And in Griffith, the Court “embraced to a significant ex tent the comprehensive analysis presented by Justice Harlan.” 479 U.S., at 322. Cite as: 564 U. S. ____ (2011) 5 BREYER, J., dissenting Of course, the Court may, as it suggests, avoid this un fairness by refusing to apply the exclusionary rule even to the defendant in the very case in which it announces a “new rule.” But that approach would make matters worse. What would then happen in the lower courts? How would courts of appeals, for example, come to reconsider their prior decisions when other circuits’ cases lead them to believe those decisions may be wrong? Why would a de fendant seek to overturn any such decision? After all, if the (incorrect) circuit precedent is clear, then even if the defendant wins (on the constitutional question), he loses (on relief). See Stovall v. Denno, 388 U.S. 293, 301 (1967). To what extent then could this Court rely upon lower courts to work out Fourth Amendment differences among themselves—through circuit reconsideration of a precedent that other circuits have criticized? See Ari- zona v. Evans, 514 U.S. 1, 23, n. 1 (1995) (GINSBURG, J., dissenting). B Perhaps more important, the Court’s rationale for creat ing its new “good faith” exception threatens to undermine well-settled Fourth Amendment law. The Court correctly says that pre-Gant Eleventh Circuit precedent had held that a Gant-type search was constitutional; hence the police conduct in this case, consistent with that precedent, was “innocent.” Ante, at 10. But the Court then finds this fact sufficient to create a new “good faith” exception to the exclusionary rule. It reasons that the “sole purpose” of the exclusionary rule “is to deter future Fourth Amendment violations,” ante, at 6. The “deterrence benefits of exclu sion vary with the culpability of the law enforcement conduct at issue,” ante, at 8 (internal quotation marks and brackets omitted). Those benefits are sufficient to jus tify exclusion where “police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment 6 DAVIS v. UNITED STATES BREYER, J., dissenting rights,” ibid. (internal quotation marks omitted). But those benefits do not justify exclusion where, as here, the police act with “simple, isolated negligence” or an “objec tively reasonable good-faith belief that their conduct is lawful,” ibid. (internal quotation marks omitted). If the Court means what it says, what will happen to the exclusionary rule, a rule that the Court adopted nearly a century ago for federal courts, Weeks v. United States, 232 U.S. 383, and made applicable to state courts a half cen tury ago through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643? The Court has thought of that rule not as punishment for the individual officer or as repara tion for the individual defendant but more generally as an effective way to secure enforcement of the Fourth Amendment’s commands. Weeks, supra, at 393 (without the exclusionary rule, the Fourth Amendment would be “of no value,” and “might as well be stricken from the Consti tution”). This Court has deviated from the “suppression” norm in the name of “good faith” only a handful of times and in limited, atypical circumstances: where a magistrate has erroneously issued a warrant, United States v. Leon, 468 U.S. 897 (1984); where a database has erroneously informed police that they have a warrant, Arizona v. Evans, 514 U.S. 1 (1995), Herring v. United States, 555 U.S. 135 (2009); and where an unconstitutional statute purported to authorize the search, Illinois v. Krull, 480 U.S. 340 (1987). See Herring, supra, at 142 (“good faith” exception inaptly named). The fact that such exceptions are few and far between is understandable. Defendants frequently move to suppress evidence on Fourth Amendment grounds. In many, per haps most, of these instances the police, uncertain of how the Fourth Amendment applied to the particular factual circumstances they faced, will have acted in objective good faith. Yet, in a significant percentage of these instances, courts will find that the police were wrong. And, unless Cite as: 564 U. S. ____ (2011) 7 BREYER, J., dissenting the police conduct falls into one of the exceptions previ ously noted, courts have required the suppression of the evidence seized. 1 W. LaFave, Search and Seizure §1.3, pp. 103–104 (4th ed. 2004) (“good faith” exception has not yet been applied to warrantless searches and seizures beyond the “rather special situations” of Evans, Herring, and Krull). See Valdes, Frequency and Success: An Em pirical Study of Criminal Law Defenses, Federal Constitu tional Evidentiary Claims, and Plea Negotiations, 153 U. Pa. L. Rev. 1709, 1728 (2005) (suppression motions are filed in approximately 7% of criminal cases; approximately 12% of suppression motions are successful); LaFave, su pra, at 64 (“Surely many more Fourth Amendment viola tions result from carelessness than from intentional con stitutional violations”); Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1389 (1983) (“[T]he vast majority of fourth amendment violations . . . [are] motivated by com mendable zeal, not condemnable malice”). But an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment viola tion was “deliberate, reckless, or grossly negligent,” then the “good faith” exception will swallow the exclusionary rule. Indeed, our broad dicta in Herring—dicta the Court repeats and expands upon today—may already be leading 8 DAVIS v. UNITED STATES BREYER, J., dissenting lower courts in this direction. See United States v. Julius, 610 F.3d 60, 66–67 (CA2 2010) (assuming warrantless search was unconstitutional and remanding for District Court to “perform the cost/benefit analysis required by Herring” and to consider “whether the degree of police culpability in this case rose beyond mere . . . negligence” before ordering suppression); United States v. Master, 614 F.3d 236, 243 (CA6 2010) (“[T]he Herring Court’s empha sis seems weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized . . . unless the officers engage in ‘deliberate, reckless, or grossly negligent conduct’ ” (quoting Herring, supra, at 144)). Today’s decision will doubtless accelerate this trend. Any such change (which may already be underway) would affect not “an exceedingly small set of cases,” ante, at 18, but a very large number of cases, potentially many thousands each year. See Valdes, supra, at 1728. And since the exclusionary rule is often the only sanction avail able for a Fourth Amendment violation, the Fourth Amendment would no longer protect ordinary Americans from “unreasonable searches and seizures.” See Wolf v. Colorado, 338 U.S. 25, 41 (1949) (Murphy, J., dissenting) (overruled by Mapp v. Ohio, 367 U.S. 643 (1961)) (In many circumstances, “there is but one alternative to the rule of exclusion. That is no sanction at all”); Herring, supra, at 152 (GINSBURG, J., dissenting) (the exclusionary rule is “an essential auxiliary” to the Fourth Amendment). It would become a watered-down Fourth Amendment, offering its protection against only those searches and sei zures that are egregiously unreasonable. III In sum, I fear that the Court’s opinion will undermine the exclusionary rule. And I believe that the Court wrongly departs from Griffith regardless. Instead I would Cite as: 564 U. S. ____ (2011) 9 BREYER, J., dissenting follow Griffith, apply Gant’s rule retroactively to this case, and require suppression of the evidence. Such an ap proach is consistent with our precedent, and it would indeed affect no more than “an exceedingly small set of cases.” Ante, at 18. For these reasons, with respect, I dissent

In 2009, in Arizona v. Gant, 556 U. S. this Court held that a police search of an automobile without a war rant violates the Fourth Amendment if the police have pre viously removed the automobile’s occupants and placed them securely in a squad car. The present case involves these same circumstances, and it was pending on appeal when this Court decided Gant. Because Gant represents a “shift” in the Court’s Fourth Amendment jurisprudence, ante, at 1, we must decide whether and how Gant’s new rule applies here. I I agree with the Court about whether Gant’s new rule applies. It does apply. Between 1965, when the Court decided and 1987, when it decided that conclusion would have been more difficult to reach. Under Linkletter, the Court determined a new rule’s retroactivity by looking to several different factors, including whether the new rule represented a “clear break” with the past and the degree of “reliance by law enforcement authorities on the old standards.” 248–249 (1969) (also 2 DAVIS v. UNITED STATES BREYER, J., dissenting citing “the purpose to be served by the new standards” and “the effect on the administration of justice” as factors ). And the Court would often not apply the new rule to identical cases still pend ing on appeal. See After 22 years of struggling with its Linkletter approach, however, the Court decided in that Linkletter had proved unfair and unworkable. It then substituted a clearer approach, stating that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” 479 U.S., at 328. The Court today, following concludes that Gant’s new rule applies here. And to that extent I agree with its decision. II The Court goes on, however, to decide how Gant’s new rule will apply. And here it adds a fatal twist. While conceding that, like the search in Gant, this search vio lated the Fourth Amendment, it holds that, unlike Gant, this defendant is not entitled to a remedy. That is be cause the Court finds a new “good faith” exception which prevents application of the normal remedy for a Fourth Amendment violation, namely, suppression of the illegally seized evidence. (1914); Leaving Davis with a right but not a remedy, the Court “keep[s] the word of promise to our ear” but “break[s] it to our hope.” A At this point I can no longer agree with the Court. A new “good faith” exception and this Court’s retroactivity decisions are incompatible. For one thing, the Court’s distinction between (1) retroactive application of a new Cite as: 564 U. S. (2011) 3 BREYER, J., dissenting rule and (2) availability of a remedy is highly artificial and runs counter to precedent. To determine that a new rule is retroactive is to determine that, at least in the normal case, there is a remedy. As we have previously said, the “source of a ‘new rule’ is the Constitution itself, not any judicial power to create new rules of law”; hence, “[w]hat we are actually determining when we assess the ‘retroac tivity’ of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.” Dan The Court’s “good faith” exception (unlike, say, inevitable discovery, a remedial doctrine that applies only upon occasion) creates “a categorical bar to obtaining redress” in every case pend ing when a precedent is overturned. Ante, at 13–14. For another thing, the Court’s holding re-creates the very problems that led the Court to abandon Linkletter’s approach to retroactivity in favor of ’s. One such problem concerns workability. The Court says that its exception applies where there is “objectively reasonable” police “reliance on binding appellate precedent.” Ante, at 1, 19. But to apply the term “binding appellate precedent” often requires resolution of complex questions of degree. Davis conceded that he faced binding anti-Gant precedent in the Eleventh Circuit. But future litigants will be less forthcoming. Ante, at 18. Indeed, those litigants will now have to create distinctions to show that previous Circuit precedent was not “binding” lest they find relief foreclosed even if they win their constitutional claim. At the same time, Fourth Amendment precedents fre quently require courts to “slosh” their “way through the factbound morass of ‘reasonableness.’ ” Suppose an officer’s conduct is consistent with the language of a Fourth Amendment rule that a court of appeals announced in a case with clearly 4 DAVIS v. UNITED STATES BREYER, J., dissenting distinguishable facts? Suppose the case creating the rele vant precedent did not directly announce any general rule but involved highly analogous facts? What about a rule that all other jurisdictions, but not the defendant’s jurisdiction, had previously accepted? What rules can be developed for determining when, where, and how these different kinds of precedents do, or do not, count as rele vant “binding precedent”? The Linkletter-like result is likely complex legal argument and police force confusion. See (opinion of Harlan, J.) (describing trying to follow Linklet ter decisions as “almost as difficult” as trying to follow “the tracks made by a beast of prey in search of its intended victim”). Another such problem concerns fairness. Today’s hold ing, like that in Linkletter, “violates basic norms of con stitutional adjudication.” It treats the defendant in a case announcing a new rule one way while treating similarly situated defendants whose cases are pending on appeal in a different way. See ante, at 18– 19. Justice Harlan explained why this approach is wrong when he said: “We cannot release criminals from jail merely because we think one case is a particularly appropriate one [to announce a constitutional doctrine] Simply fish ing one case from the stream of appellate review, us ing it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute an indefensible departure from [our ordinary] model of judicial review.” at 679. And in the Court “embraced to a significant ex tent the comprehensive analysis presented by Justice Harlan.” 479 U.S., Cite as: 564 U. S. (2011) 5 BREYER, J., dissenting Of course, the Court may, as it suggests, avoid this un fairness by refusing to apply the exclusionary rule even to the defendant in the very case in which it announces a “new rule.” But that approach would make matters worse. What would then happen in the lower courts? How would courts of appeals, for example, come to reconsider their prior decisions when other circuits’ cases lead them to believe those decisions may be wrong? Why would a de fendant seek to overturn any such decision? After all, if the (incorrect) circuit precedent is clear, then even if the defendant wins (on the constitutional question), he loses (on relief). See (1967). To what extent then could this Court rely upon lower courts to work out Fourth Amendment differences among themselves—through circuit reconsideration of a precedent that other circuits have criticized? See Ari- (GINSBURG, J., dissenting). B Perhaps more important, the Court’s rationale for creat ing its new “good faith” exception threatens to undermine well-settled Fourth Amendment law. The Court correctly says that pre-Gant Eleventh Circuit precedent had held that a Gant-type search was constitutional; hence the police conduct in this case, consistent with that precedent, was “innocent.” Ante, at 10. But the Court then finds this fact sufficient to create a new “good faith” exception to the exclusionary rule. It reasons that the “sole purpose” of the exclusionary rule “is to deter future Fourth Amendment violations,” ante, at 6. The “deterrence benefits of exclu sion vary with the culpability of the law enforcement conduct at issue,” ante, at 8 (internal quotation marks and brackets omitted). Those benefits are sufficient to jus tify exclusion where “police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment 6 DAVIS v. UNITED STATES BREYER, J., dissenting rights,” But those benefits do not justify exclusion where, as here, the police act with “simple, isolated negligence” or an “objec tively reasonable good-faith belief that their conduct is lawful,” If the Court means what it says, what will happen to the exclusionary rule, a rule that the Court adopted nearly a century ago for federal courts, 232 U.S. and made applicable to state courts a half cen tury ago through the Fourteenth Amendment, Mapp v. Ohio, ? The Court has thought of that rule not as punishment for the individual officer or as repara tion for the individual defendant but more generally as an effective way to secure enforcement of the Fourth Amendment’s commands. (without the exclusionary rule, the Fourth Amendment would be “of no value,” and “might as well be stricken from the Consti tution”). This Court has deviated from the “suppression” norm in the name of “good faith” only a handful of times and in limited, atypical circumstances: where a magistrate has erroneously issued a warrant, United ; where a database has erroneously informed police that they have a warrant, Arizona v. Evans, v. United States, 555 U.S. 135 (2009); and where an unconstitutional statute purported to authorize the search, Illinois v. Krull, 480 U.S. 340 (1987). See (“good faith” exception inaptly named). The fact that such exceptions are few and far between is understandable. Defendants frequently move to suppress evidence on Fourth Amendment grounds. In many, per haps most, of these instances the police, uncertain of how the Fourth Amendment applied to the particular factual circumstances they faced, will have acted in objective good faith. Yet, in a significant percentage of these instances, courts will find that the police were wrong. And, unless Cite as: 564 U. S. (2011) 7 BREYER, J., dissenting the police conduct falls into one of the exceptions previ ously noted, courts have required the suppression of the evidence seized. 1 W. LaFave, Search and Seizure pp. 103–104 (4th ed. 2004) (“good faith” exception has not yet been applied to warrantless searches and seizures beyond the “rather special situations” of Evans, and Krull). See Frequency and Success: An Em pirical Study of Criminal Law Defenses, Federal Constitu tional Evidentiary Claims, and Plea Negotiations, 153 U. Pa. L. Rev. 1709, 1728 (2005) (suppression motions are filed in approximately 7% of criminal cases; approximately 12% of suppression motions are successful); LaFave, su pra, at 64 (“Surely many more Fourth Amendment viola tions result from carelessness than from intentional con stitutional violations”); Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1389 (1983) (“[T]he vast majority of fourth amendment violations [are] motivated by com mendable zeal, not condemnable malice”). But an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment viola tion was “deliberate, reckless, or grossly negligent,” then the “good faith” exception will swallow the exclusionary rule. Indeed, our broad dicta in —dicta the Court repeats and expands upon today—may already be leading 8 DAVIS v. UNITED STATES BREYER, J., dissenting lower courts in this direction. See United (assuming warrantless search was unconstitutional and remanding for District Court to “perform the cost/benefit analysis required by ” and to consider “whether the degree of police culpability in this case rose beyond mere negligence” before ordering suppression); United States v. Master, 614 F.3d 236, 243 (“[T]he Court’s empha sis seems weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized unless the officers engage in ‘deliberate, reckless, or grossly negligent conduct’ ” (quoting at 144)). Today’s decision will doubtless accelerate this trend. Any such change (which may already be underway) would affect not “an exceedingly small set of cases,” ante, at 18, but a very large number of cases, potentially many thousands each year. See And since the exclusionary rule is often the only sanction avail able for a Fourth Amendment violation, the Fourth Amendment would no longer protect ordinary Americans from “unreasonable searches and seizures.” See Wolf v. Colorado, ) (In many circumstances, “there is but one alternative to the rule of exclusion. That is no sanction at all”); (the exclusionary rule is “an essential auxiliary” to the Fourth Amendment). It would become a watered-down Fourth Amendment, offering its protection against only those searches and sei zures that are egregiously unreasonable. III In sum, I fear that the Court’s opinion will undermine the exclusionary rule. And I believe that the Court wrongly departs from regardless. Instead I would Cite as: 564 U. S. (2011) 9 BREYER, J., dissenting follow apply Gant’s rule retroactively to this case, and require suppression of the evidence. Such an ap proach is consistent with our precedent, and it would indeed affect no more than “an exceedingly small set of cases.” Ante, at 18. For these reasons, with respect, I dissent

Justice Ginsburg

majority

BNSF R. Co. v. Tyrrell

2017-05-30

https://www.courtlistener.com/opinion/4395247/bnsf-r-co-v-tyrrell/

https://www.courtlistener.com/api/rest/v3/clusters/4395247/

2016-073

The two cases we decide today arise under the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U.S. C. §51 et seq., which makes railroads liable in money damages to their employees for on-the-job injuries. Both suits were pursued in Montana state courts although the injured workers did not reside in Montana, nor were they injured there. The defendant railroad, BNSF Rail- way Company (BNSF), although “doing business” in Mon- tana when the litigation commenced, was not incorporated in Montana, nor did it maintain its principal place of business in that State. To justify the exercise of personal jurisdiction over BNSF, the Montana Supreme Court relied on §56, which provides in relevant part: “Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be do- ing business at the time of commencing such action. The jurisdiction of the courts of the United States un- 2 BNSF R. CO. v. TYRRELL Opinion of the Court der this chapter shall be concurrent with that of the courts of the several States.” We hold that §56 does not address personal jurisdiction over railroads. Its first relevant sentence is a venue pre- scription governing proper locations for FELA suits filed in federal court. The provision’s second relevant sentence, using the term “concurrent” jurisdiction, refers to subject- matter jurisdiction, not personal jurisdiction. It simply clarifies that the federal courts do not have exclusive subject-matter jurisdiction over FELA suits; state courts can hear them, too. Montana’s Supreme Court, in the alternative, relied on state law, under which personal jurisdiction could be asserted over “persons found within . . . Montana.” Mont. Rule Civ. Proc. 4(b)(1) (2015). BNSF fit that bill, the court stated, because it has over 2,000 miles of railroad track and employs more than 2,000 workers in Montana. Our precedent, however, explains that the Fourteenth Amendment’s Due Process Clause does not permit a State to hale an out-of-state corporation before its courts when the corporation is not “at home” in the State and the episode-in-suit occurred elsewhere. Daimler AG v. Bau- man, 571 U. S. ___, ___ (2014) (slip op., at 8) (internal quotation marks omitted). We therefore reverse the judgment of the Montana Supreme Court. I In March 2011, respondent Robert Nelson, a North Dakota resident, brought a FELA suit against BNSF in a Montana state court to recover damages for knee injuries Nelson allegedly sustained while working for BNSF as a fuel-truck driver. 383 Mont. 417, 419, 373 P.3d 1, 3 (2016). In May 2014, respondent Kelli Tyrrell, appointed in South Dakota as the administrator of her husband Brent Tyrrell’s estate, similarly sued BNSF under FELA in a Montana state court. Id., at 419–420, 373 P. 3d, at 3. Cite as: 581 U. S. ____ (2017) 3 Opinion of the Court Brent Tyrrell, his widow alleged, had developed a fatal kidney cancer from his exposure to carcinogenic chemicals while working for BNSF. Id., at 420, 373 P. 3d, at 3. Neither plaintiff alleged injuries arising from or related to work performed in Montana; indeed, neither Nelson nor Brent Tyrrell appears ever to have worked for BNSF in Montana. Id., at 419–420, 373 P. 3d, at 3. BNSF is incorporated in Delaware and has its principal place of business in Texas. Id., at 419, 373 P. 3d, at 3. It operates railroad lines in 28 States. No. DV 14–699 (13th Jud. Dist., Yellowstone Cty., Mont., Oct. 7, 2014), App. to Pet. for Cert. 63a. BNSF has 2,061 miles of railroad track in Montana (about 6% of its total track mileage of 32,500), employs some 2,100 workers there (less than 5% of its total work force of 43,000), generates less than 10% of its total revenue in the State, and maintains only one of its 24 automotive facilities in Montana (4%). Ibid. Contending that it is not “at home” in Montana, as required for the exercise of general personal jurisdiction under Daimler AG v. Bauman, 571 U. S. ___, ___ (2014) (slip op., at 8) (inter- nal quotation marks omitted), BNSF moved to dismiss both suits for lack of personal jurisdiction. Its motion was granted in Nelson’s case and denied in Tyrrell’s. 383 Mont., at 419, 373 P. 3d, at 2. After consolidating the two cases, the Montana Supreme Court held that Montana courts could exercise general personal jurisdiction over BNSF. Id., at 429, 373 P. 3d, at 9. Section 56, the court determined, authorizes state courts to exercise personal jurisdiction over railroads “doing business” in the State. Id., at 426, 373 P. 3d, at 7 (internal quotation marks omitted). In addition, the court observed, Montana law provides for the exercise of general jurisdiction over “[a]ll persons found within” the State. Id., at 427, 373 P. 3d, at 8 (quoting Mont. Rule Civ. Proc. 4(b)(1) (2015)). In view of the railroad’s many employees and miles of track in Montana, the court concluded, BNSF 4 BNSF R. CO. v. TYRRELL Opinion of the Court is both “doing business” and “found within” the State, such that both FELA and Montana law authorized the exercise of personal jurisdiction. 383 Mont., at 426, 428, 373 P.3d, at 7–8 (internal quotation marks omitted). The due pro- cess limits articulated in Daimler, the court added, did not control, because Daimler did not involve a FELA claim or a railroad defendant. 383 Mont., at 424, 373 P. 3d, at 6. Justice McKinnon dissented. Section 56, she wrote, is a federal-court venue prescription, and also confers subject- matter jurisdiction on state courts in FELA cases, concur- rent with federal courts. Id., at 435–437, 373 P. 3d, at 13. But §56, she maintained, does not touch or concern per- sonal jurisdiction. Ibid. Furthermore, she concluded, Daimler controls, rendering the Montana courts’ exercise of personal jurisdiction impermissible because BNSF is not “at home” in Montana. 383 Mont., at 433–434, 373 P. 3d, at 11–12. We granted certiorari, 580 U. S. ___ (2017), to resolve whether §56 authorizes state courts to exercise personal jurisdiction over railroads doing business in their States but not incorporated or headquartered there, and whether the Montana courts’ exercise of personal jurisdiction in these cases comports with due process. II Nelson and Tyrrell contend that §56’s first relevant sentence confers personal jurisdiction on federal courts, and that the section’s second relevant sentence extends that grant of jurisdiction to state courts. Neither contention is tenable. Section 56’s first relevant sentence concerns venue; its next sentence speaks to subject-matter jurisdiction.1 —————— 1 Section 56’s first sentence, which provides a time bar for FELA claims, is not relevant to the issue at hand. For ease of reference, we hereinafter refer to the first relevant sentence, describing where suit “may be brought,” as the provision’s “first” sentence, and the sentence that immediately follows, referring to “concurrent” jurisdiction, as the “second.” Cite as: 581 U. S. ____ (2017) 5 Opinion of the Court A The first sentence of §56 states that “an action may be brought in a district court of the United States,” in, among other places, the district “in which the defendant shall be doing business at the time of commencing such action.” In Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44 (1941), we comprehended this clause as “establish[ing] venue” for a federal-court action. Id., at 52. Congress, we explained, designed §56 to expand venue beyond the limits of the 1888 Judiciary Act’s general venue provision, which al- lowed suit only “in districts of which the defendant was an inhabitant.” Id., at 49; see Act of Aug. 13, 1888, §1, 25 Stat. 434. Nowhere in Kepner or in any other decision did we intimate that §56 might affect personal jurisdiction. Congress generally uses the expression, where suit “may be brought,” to indicate the federal districts in which venue is proper. See, e.g., 28 U.S. C. §1391(b) (general venue statute specifying where “[a] civil action may be brought”); J. Oakley, ALI, Fed. Judicial Code Rev. Project 253–290 (2004) (listing special venue statutes, many with similar language). See also Kepner, 314 U.S., at 56 (Frankfurter, J., dissenting) (“The phrasing of [§56] fol- lows the familiar pattern generally employed by Congress in framing venue provisions.”). In contrast, Congress’ typical mode of providing for the exercise of personal jurisdiction has been to authorize service of process. See, e.g., 15 U.S. C. §22 (Clayton Act provision stating that “all process in [cases against a corporation arising under federal antitrust laws] may be served in the district of which [the defendant] is an inhab- itant, or wherever [the defendant] may be found”); §53(a) (under Federal Trade Commission Act, “process may be served on any person, partnership, or corporation wherever it may be found”). See also Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 106–107 (1987) (discuss- ing statutes that authorize (or fail to authorize) nation- 6 BNSF R. CO. v. TYRRELL Opinion of the Court wide service of process). But cf. Schlanger v. Seamans, 401 U.S. 487, 490, n. 4 (1971) (though “Congress has provided for nationwide service of process” in 28 U.S. C. §1391(e) (1964 ed., Supp. V), that statute was meant to expand venue, not personal jurisdiction). Congress uses this terminology because, absent consent, a basis for service of a summons on the defendant is prerequisite to the exercise of personal jurisdiction. See Omni Capital, 484 U.S., at 104. Nelson and Tyrrell, however, argue that §56 relates to personal jurisdiction. In their view, the 1888 Judiciary Act provision that prompted §56’s enactment, 25 Stat. 434, concerned both personal jurisdiction and venue. According to House and Senate Reports, they contend, two cases had brought to Congress’ attention the problem with the prior provision—namely, that in federal-question cases it au- thorized suit only in the district of the defendant’s resi- dence. Brief for Respondents 16–18. See H. R. Rep. No. 513, 61st Cong., 2d Sess., 6 (1910) (citing Macon Grocery Co. v. Atlantic Coast Line R. Co., 215 U.S. 501 (1910); Cound v. Atchison, T. & S. F. R. Co., 173 F. 527 (WD Tex. 1909)); S. Rep. No. 432, 61st Cong., 2d Sess., 4 (1910) (same). In both cases, the courts had dismissed FELA suits for “want of jurisdiction.” Macon Grocery, 215 U.S., at 510; Cound, 173 F., at 534. To avert such jurisdictional dismissals, they urge, Congress enacted §56. Legislative history “throws little light” here. Kepner, 314 U.S., at 50.2 Driving today’s decision, we have long read the 1888 Judiciary Act provision to concern venue only. See Green v. Chicago, B. & Q. R. Co., 205 U.S. 530, 532–533 (1907) (analyzing personal jurisdiction separately, —————— 2 We note, moreover, that Nelson and Tyrrell overlooked the Senate Report’s explicit reference to the first sentence of §56 as a venue provi- sion, with no mention of personal jurisdiction. S. Rep. No. 432, 61st Cong., 2d Sess., 3 (1910). Cite as: 581 U. S. ____ (2017) 7 Opinion of the Court after concluding that venue was proper under 1888 Judi- ciary Act provision). See also Lee v. Chesapeake & Ohio R. Co., 260 U.S. 653, 655 (1923) (noting that materially identical successor to 1888 Judiciary Act provision, Act of Mar. 3, 1911, §51, 36 Stat. 1101, “relates to the venue of suits”). Indeed, reading the 1888 Judiciary Act provision to authorize the exercise of personal jurisdiction would have yielded an anomalous result: In diversity cases, the provision allowed for suit “in the district of the residence of either the plaintiff or the defendant.” 25 Stat. 434. Interpreting that clause to provide for jurisdiction would have allowed a plaintiff to hale a defendant into court in the plaintiff ’s home district, even if the district was one with which the defendant had no affiliation, and the episode-in-suit, no connection. B The second §56 sentence in point provides that “[t]he jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.” Nelson and Tyrrell argue that this sen- tence extends to state courts the first sentence’s alleged conferral of personal jurisdiction on federal courts. But, as just discussed, the first sentence concerns federal-court venue and confers no personal jurisdiction on any court. We have understood §56’s second sentence to provide for the concurrent subject-matter jurisdiction of state and federal courts over actions under FELA. See Second Employers’ Liability Cases, 223 U.S. 1, 55–56 (1912). As Nelson and Tyrrell acknowledge, Congress added the provision to confirm concurrent subject-matter jurisdiction after the Connecticut Supreme Court held that Congress intended to confine FELA litigation to federal courts, and that state courts had no obligation to entertain FELA claims. See Brief for Respondents 23 (citing Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352, 73 A. 754 (1909)). 8 BNSF R. CO. v. TYRRELL Opinion of the Court As Justice McKinnon recognized in her dissent from the Montana Supreme Court’s decision in Nelson’s and Tyr- rell’s cases, “[t]he phrase ‘concurrent jurisdiction’ is a well- known term of art long employed by Congress and courts to refer to subject-matter jurisdiction, not personal juris- diction.” 383 Mont., at 436, 373 P. 3d, at 13. See, e.g., Mims v. Arrow Financial Services, LLC, 565 U.S. 368, 372 (2012) (“federal and state courts have concurrent jurisdic- tion over private suits arising under the [Telephone Con- sumer Protection Act of 1991, 47 U.S. C. §227]”); Claflin v. Houseman, 93 U.S. 130, 133–134 (1876) (State courts retain “concurrent jurisdiction” over “suits in which a bankrupt” party is involved, notwithstanding exclusive federal jurisdiction over bankruptcy matters). C Pointing to a quartet of cases, the Montana Supreme Court observed that this Court “consistently has inter- preted [§]56 to allow state courts to hear cases brought under FELA even where the only basis for jurisdiction is the railroad doing business in the forum [S]tate.” 383 Mont., at 421–423, 425–426, 373 P.3d, at 4–7 (citing Pope v. Atlantic Coast Line R. Co., 345 U.S. 379 (1953); Miles v. Illinois Central R. Co., 315 U.S. 698 (1942); Kepner, 314 U.S. 44; Denver & Rio Grande Western R. Co. v. Terte, 284 U.S. 284 (1932)). None of the decisions featured by the Montana Supreme Court resolved a question of personal jurisdiction. Terte held that a FELA plaintiff, injured in Colorado, could bring suit in Missouri state court against a railroad incor- porated elsewhere. 284 U.S., at 286–287. The dispute, however, was over the Dormant Commerce Clause, not personal jurisdiction; the railroad defendants argued that the suit would unduly burden interstate commerce, and the decision rested on two Commerce Clause decisions, Michigan Central R. Co. v. Mix, 278 U.S. 492 (1929), and Cite as: 581 U. S. ____ (2017) 9 Opinion of the Court Hoffman v. Missouri ex rel. Foraker, 274 U.S. 21 (1927), not on an interpretation of §56. See Terte, 284 U.S., at 285, 287. In Kepner and Miles, this Court held that a state court may not, based on inconvenience to a railroad defendant, enjoin its residents from bringing a FELA suit in another State’s federal (Kepner) or state (Miles) courts. Kepner, 314 U.S., at 54; Miles, 315 U.S., at 699–700, 704. Pope held that 28 U.S. C. §1404(a)’s provision for transfer from one federal court to another did not bear on the question decided in Miles: A state court still could not enjoin a FELA action brought in another State’s courts. 345 U.S., at 383–384. Moreover, all these cases, save Pope, were decided be- fore this Court’s transformative decision on personal jurisdiction in International Shoe Co. v. Washington, 326 U.S. 310 (1945). See Daimler, 571 U. S., at ___, n. 18 (slip op., at 20, n. 18) (cautioning against reliance on cases “decided in the era dominated by” the “territorial think- ing” of Pennoyer v. Neff, 95 U.S. 714 (1878)). III Because FELA does not authorize state courts to exer- cise personal jurisdiction over a railroad solely on the ground that the railroad does some business in their States, the Montana courts’ assertion of personal jurisdic- tion over BNSF here must rest on Mont. Rule Civ. Proc. 4(b)(1), the State’s provision for the exercise of personal jurisdiction over “persons found” in Montana. See supra, at 2–3. BNSF does not contest that it is “found within” Montana as the State’s courts comprehend that rule. We therefore inquire whether the Montana courts’ exercise of personal jurisdiction under Montana law comports with the Due Process Clause of the Fourteenth Amendment. In International Shoe, this Court explained that a state court may exercise personal jurisdiction over an out-of- state defendant who has “certain minimum contacts with 10 BNSF R. CO. v. TYRRELL Opinion of the Court [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” 326 U.S., at 316. Elaborating on this guide, we have distinguished between specific or case-linked juris- diction and general or all-purpose jurisdiction. See, e.g., Daimler, 571 U. S., at ___ (slip op., at 8); Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915, 919 (2011); Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408, 414, nn. 8, 9 (1984). Because neither Nel- son nor Tyrrell alleges any injury from work in or related to Montana, only the propriety of general jurisdiction is at issue here. Goodyear and Daimler clarified that “[a] court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Daimler, 571 U. S., at ___ (slip op., at 8) (quoting Goodyear, 564 U.S., at 919). The “paradigm” forums in which a corporate defendant is “at home,” we explained, are the corporation’s place of incor- poration and its principal place of business. Daimler, 571 U. S., at ___ (slip op., at 18–19); Goodyear, 564 U.S., at 924. The exercise of general jurisdiction is not limited to these forums; in an “exceptional case,” a corporate defend- ant’s operations in another forum “may be so substantial and of such a nature as to render the corporation at home in that State.” Daimler, 571 U. S., at ___, n. 19 (slip op., at 20, n. 19). We suggested that Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952), exemplified such a case. Daimler, 571 U. S., at ___, n. 19 (slip op., at 20, n. 19). In Perkins, war had forced the defendant corporation’s owner to temporarily relocate the enterprise from the Philippines to Ohio. 342 U.S., at 447–448. Because Ohio then be- came “the center of the corporation’s wartime activities,” Daimler, 571 U. S., at ___, n. 8 (slip op., at 12, n. 8), suit Cite as: 581 U. S. ____ (2017) 11 Opinion of the Court was proper there, Perkins, 342 U.S., at 448. The Montana Supreme Court distinguished Daimler on the ground that we did not there confront “a FELA claim or a railroad defendant.” 383 Mont., at 424, 373 P.3d, at 6. The Fourteenth Amendment due process constraint described in Daimler, however, applies to all state-court assertions of general jurisdiction over nonresident defend- ants; the constraint does not vary with the type of claim asserted or business enterprise sued.3 BNSF, we repeat, is not incorporated in Montana and does not maintain its principal place of business there. Nor is BNSF so heavily engaged in activity in Montana “as to render [it] essentially at home” in that State. See Daimler, 571 U. S., at ___ (slip op., at 8) (internal quota- tion marks omitted). As earlier noted, BNSF has over 2,000 miles of railroad track and more than 2,000 employ- ees in Montana. But, as we observed in Daimler, “the general jurisdiction inquiry does not focus solely on the magnitude of the defendant’s in-state contacts.” Id., at ___, n. 20 (slip op., at 21, n. 20) (internal quotation marks and alterations omitted). Rather, the inquiry “calls for an appraisal of a corporation’s activities in their entirety”; “[a] corporation that operates in many places can scarcely be deemed at home in all of them.” Ibid. In short, the business BNSF does in Montana is sufficient to subject the railroad to specific personal jurisdiction in that State on claims related to the business it does in Montana. But in- state business, we clarified in Daimler and Goodyear, does not suffice to permit the assertion of general jurisdiction over claims like Nelson’s and Tyrrell’s that are unrelated —————— 3 The Montana Supreme Court also erred in asserting that “Congress drafted the FELA to make a railroad ‘at home’ for jurisdictional pur- poses wherever it is ‘doing business.’ ” 383 Mont. 417, 425, 373 P.3d 1, 6 (2016). As discussed, supra, at 5–7, in §56’s first sentence, Congress dealt with venue only, not personal jurisdiction. 12 BNSF R. CO. v. TYRRELL Opinion of the Court to any activity occurring in Montana.4 IV Nelson and Tyrrell present a further argument—that BNSF has consented to personal jurisdiction in Montana. See Brief for Respondents 50–51. The Montana Supreme Court did not address this contention, see 383 Mont., at 429, n. 3, 373 P.3d, at 9, n. 3, so we do not reach it. See Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005) (“[W]e are a court of review, not of first view.”). * * * For the reasons stated, the judgment of the Montana Supreme Court is reversed, and the cases are remanded —————— 4 JUSTICE SOTOMAYOR, dissenting in part, renews a debate compre- hensively aired in Daimler AG v. Bauman, 571 U. S. ___ (2014). There, as again here, JUSTICE SOTOMAYOR treats the assertion of jurisdiction by the State of Washington courts in International Shoe Co. v. Wash- ington, 326 U.S. 310 (1945), as an exercise of general, dispute-blind, jurisdiction, post, at 3, thereby overlooking the fundamental difference between International Shoe and these cases. In International Shoe, the defendant corporation’s in-state activities had “not only been continu- ous and systematic, but also g[a]ve rise to the liabilities sued on.” 326 U.S., at 317. The state courts there asserted jurisdiction not over claims that had nothing to do with the State; instead, they exercised adjudicatory authority to hold the defendant corporation accountable for activity pursued within the State of Washington. Daimler, 571 U. S., at ___, ___, n. 10 (slip op., at 7, 14, n. 10). This Court, therefore, had no occasion in International Shoe to “engage in a comparison between International Shoe’s contacts within the State of Washington and the other States in which it operated.” Post, at 3. In marked contrast to International Shoe, Nelson’s and Tyrrell’s claims have no relationship to anything that occurred or had its principal impact in Montana. This Court’s opinion is not limited to §56 because the Montana Supreme Court went on to address and decide the question: Do “Mon- tana courts have personal jurisdiction over BNSF under Montana law?” 383 Mont., at 426, 373 P.3d, at 7. See also id., at 429, 373 P.3d, at 9 (“Under Montana law, Montana courts have general personal jurisdic- tion over BNSF.”). Cite as: 581 U. S. ____ (2017) 13 Opinion of the Court for further proceedings not inconsistent with this opinion. It is so ordered. Cite as: 581 U. S. ____ (2017) 1 Opinion OpinionofofofSS , J. , J. OTOMAYOR OTOMAYOR SUPREME COURT OF THE UNITED STATES _________________ No. 16–405 _________________ BNSF RAILWAY CO., PETITIONER v. KELLI TYRRELL, SPECIAL ADMINISTRATOR FOR THE ESTATE OF BRENT T. TYRRELL, DECEASED, ET AL. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA [May 30, 2017] JUSTICE SOTOMAYOR, concurring in part and dissenting in part. I concur in the Court’s conclusion that the Federal Employers’ Liability Act (FELA), 45 U.S. C. §51 et seq., does not confer personal jurisdiction over railroads on state courts. I also agree that the Montana Supreme Court erred when it concluded that the nature of the claim here—a FELA claim against a railroad—answers the question whether the Due Process Clause allows the exer- cise of personal jurisdiction over BNSF. But my agree- ment with the majority ends there. I continue to disagree with the path the Court struck in Daimler AG v. Bauman, 571 U. S. ___ (2014), which limits general jurisdiction over a corporate defendant only to those States where it is “ ‘essentially at home,’ ” id., at ___ (slip op., at 8). And even if the Court insists on adhering to that standard, I dissent from its decision to apply it here in the first instance rather than remanding to the Montana Supreme Court for it to conduct what should be a fact-intensive analysis under the proper legal framework. Accordingly, I join Parts I and II of the Court’s opinion, but dissent from Part III and the judgment. The Court would do well to adhere more faithfully to the direction from International Shoe Co. v. Washington, 326 2 BNSF R. CO. v. TYRRELL SOTOMAYOR, J., Opinion concurring of SinOTOMAYOR part and,dissenting J. in part U. S. 310 (1945), which instructed that general jurisdic- tion is proper when a corporation’s “continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activi- ties.” Id., at 318. Under International Shoe, in other words, courts were to ask whether the benefits a defend- ant attained in the forum State warranted the burdens associated with general personal jurisdiction. See id., at 317–318. The majority itself acknowledges that Interna- tional Shoe should govern, describing the question as whether a defendant’s affiliations with a State are suffi- ciently “ ‘continuous and systematic’ ” to warrant the exer- cise of general jurisdiction there. Ante, at 10. If only its analysis today reflected that directive. Instead, the major- ity opinion goes on to reaffirm the restrictive “at home” test set out in Daimler—a test that, as I have explained, has no home in our precedents and creates serious inequi- ties. See 571 U. S., at ___–___ (SOTOMAYOR, J., concurring in judgment) (slip op., at 8–19). The majority’s approach grants a jurisdictional windfall to large multistate or multinational corporations that operate across many jurisdictions. Under its reasoning, it is virtually inconceivable that such corporations will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation. Foreign businesses with principal places of business out- side the United States may never be subject to general jurisdiction in this country even though they have contin- uous and systematic contacts within the United States. See id., at ___–___ (slip op., at 17–18). What was once a holistic, nuanced contacts analysis backed by considera- tions of fairness and reasonableness has now effectively been replaced by the rote identification of a corporation’s Cite as: 581 U. S. ____ (2017) 3 SOTOMAYOR, J., Opinion concurring of SinOTOMAYOR part and,dissenting J. in part principal place of business or place of incorporation.1 The result? It is individual plaintiffs, harmed by the actions of a farflung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in dis- tant jurisdictions with which they have no contacts or connection. Moreover, the comparative contacts analysis invented in Daimler resurfaces here and proves all but dispositive. The majority makes much of the fact that BNSF’s contacts in Montana are only a percentage of its contacts with other jurisdictions. Ante, at 3, 11. But International Shoe, which the majority agrees is the springboard for our mod- ern personal jurisdiction jurisprudence, ante, at 9, applied no comparative contacts test. There the Court analyzed whether the Delaware corporation had “by its activities in the State of Washington rendered itself amenable to pro- ceedings” in the State. 326 U.S., at 311. The Court eval- uated whether the corporation had offices in the forum State, made contracts there, delivered goods there, or employed salesmen there. See id., at 313. Despite ac- knowledging that the corporation maintained places of business in several States, ibid., the Court did not engage in a comparison between International Shoe’s contacts within the State of Washington and the other States in which it operated.2 The Court noted that the corporation —————— 1 As many commentators have observed, lower courts adhered to the continuous-and-systematic standard for decades before Daimler, and its predecessor Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U.S. 915 (2011), wrought the present sea change. See, e.g., Cornett & Hoffheimer, Good-Bye Significant Contacts: General Personal Jurisdic- tion after Daimler AG v. Bauman, 76 Ohio St. L. J. 101 (2015); Parry, Rethinking Personal Jurisdiction after Bauman and Walden, 19 Lewis & Clark L. Rev. 607 (2015); Doernberg, Resoling International Shoe, 2 Tex. A&M L. Rev. 247 (2014); Feder, Goodyear, “Home,” and the Uncertain Future of Doing Business Jurisdiction, 63 S. C. L. Rev. 671 (2012). 2 The majority responds that the language from International Shoe 4 BNSF R. CO. v. TYRRELL SOTOMAYOR, J., Opinion concurring of SinOTOMAYOR part and,dissenting J. in part employed 11 to 13 salesmen in Washington but did not query how that number compared to the number of sales- men in other States. Ibid. As well it should not have; the relative percentage of contacts is irrelevant. The focus should be on the quality and quantity of the defendant’s contacts in the forum State.3 The majority does even Daimler itself a disservice, paying only lipservice to the question the Court purported to reserve there—the possibility of an “exceptional case” in which general jurisdiction would be proper in a forum State that is neither a corporate defendant’s place of incorporation nor its principal place of business. See 571 U. S., at ___, n. 19 (slip op., at 20, n. 19). Its opinion here could be understood to limit that exception to the exact facts of Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952). See ante, at 10–11. That reading is so narrow as to read the exception out of existence entirely; certainly a defendant with significant contacts with more than one State falls outside its ambit. And so it is inevitable under its own reasoning that the majority would conclude that BNSF’s contacts with Montana are insufficient to justify the exercise of personal jurisdiction here. This result is perverse. Despite having reserved the possibility of an “exceptional case” in Daimler, the majority here has re- —————— informs only a specific jurisdiction case. Ante, at 12, n. 4. But the majority’s view of International Shoe is overly restrictive. The terms “specific jurisdiction” and “general jurisdiction” are nowhere to be found in that opinion. And I continue to believe, as I noted in Daimler, that there is no material difference between the “continuous and systematic” terminology International Shoe used for what we now call specific jurisdiction and the “continuous” and “substantial” terminology it used for what we now call general jurisdiction. See Daimler, 571 U. S., at ___, n. 6 (SOTOMAYOR, J., concurring in judgment) (slip op., at 8, n. 6). 3 Indeed, in neither Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952), nor Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408 (1984), did the Court engage in a comparative-contacts analysis. Cite as: 581 U. S. ____ (2017) 5 SOTOMAYOR, J., Opinion concurring of SinOTOMAYOR part and,dissenting J. in part jected that possibility out of hand. Worse, the majority reaches its conclusion only by de- parting from the Court’s normal practice.4 Had it re- manded to the Montana Supreme Court to reevaluate the due process question under the correct legal standard, that court could have examined whether this is such an “exceptional case.” Instead, with its ruling today, the Court unnecessarily sends a signal to the lower courts that the exceptional-circumstances inquiry is all form, no substance. I respectfully concur in part and dissent in part. —————— 4 The Montana Supreme Court reached this question only by wrongly assuming that 45 U.S. C. §56 is a jurisdictional statute and that a defendant’s unique status as a railroad company is dispositive of the jurisdictional question. A remand rather than an outright reversal is this Court’s traditional practice where a lower court applies the incor- rect legal standard; we have done it repeatedly just this Term. See, e.g., Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. ___ (2017); Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., ante, p. ___; McLane Co. v. EEOC, ante, p. ___; Moore v. Texas, ante, p. ___

The two cases we decide today arise under the Federal Employers’ Liability Act (FELA), as amended, 45 U.S. C. et seq., which makes railroads liable in money damages to their employees for on-the-job injuries. Both suits were pursued in Montana state courts although the injured workers did not reside in Montana, nor were they injured there. The defendant railroad, BNSF Rail- way Company (BNSF), although “doing business” in Mon- tana when the litigation commenced, was not incorporated in Montana, nor did it maintain its principal place of business in that To justify the exercise of personal jurisdiction over BNSF, the Montana Supreme Court relied on which provides in relevant part: “Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be do- ing business at the time of commencing such action. The jurisdiction of the courts of the United States un- 2 BNSF R. CO. v. TYRRELL Opinion of the Court der this chapter shall be concurrent with that of the courts of the several States.” We hold that does not address personal jurisdiction over railroads. Its first relevant sentence is a venue pre- scription governing proper locations for FELA suits filed in federal court. The provision’s second relevant sentence, using the term “concurrent” jurisdiction, refers to subject- matter jurisdiction, not personal It simply clarifies that the federal courts do not have exclusive subject-matter jurisdiction over FELA suits; state courts can hear them, too. Montana’s Supreme Court, in the alternative, relied on state law, under which personal jurisdiction could be asserted over “persons found within ” Mont. Rule Civ. Proc. 4(b)(1) (2015). BNSF fit that bill, the court stated, because it has over 2,000 miles of railroad track and employs more than 2,000 workers in Our precedent, however, explains that the Fourteenth Amendment’s Due Process Clause does not permit a State to hale an out-of-state corporation before its courts when the corporation is not “at home” in the State and the episode-in-suit occurred Daimler AG v. Bau- man, 571 U. S. (2014) (slip op., at 8) (internal quotation marks omitted). We therefore reverse the judgment of the Montana Supreme Court. I In March 2011, respondent Robert Nelson, a North Dakota resident, brought a FELA suit against BNSF in a Montana state court to recover damages for knee injuries Nelson allegedly sustained while working for BNSF as a fuel-truck driver. (2016). In May 2014, respondent Kelli Tyrrell, appointed in South Dakota as the administrator of her husband Brent Tyrrell’s estate, similarly sued BNSF under FELA in a Montana state court. at –, 7 P. d, at Cite as: 581 U. S. (2017) Opinion of the Court Brent Tyrrell, his widow alleged, had developed a fatal kidney cancer from his exposure to carcinogenic chemicals while working for BNSF. at 7 P. d, at Neither plaintiff alleged injuries arising from or related to work performed in Montana; indeed, neither Nelson nor Brent Tyrrell appears ever to have worked for BNSF in at –, 7 P. d, at BNSF is incorporated in Delaware and has its principal place of business in Texas. at 7 P. d, at It operates railroad lines in 28 States. No. DV 14–699 (1th Jud. Dist., Yellowstone Cty., Mont., Oct. 7, 2014), App. to Pet. for Cert. 6a. BNSF has 2,061 miles of railroad track in Montana (about 6% of its total track mileage of 2,500), employs some 2,100 workers there (less than 5% of its total work force of 4,000), generates less than 10% of its total revenue in the State, and maintains only one of its 24 automotive facilities in Montana (4%). Contending that it is not “at home” in Montana, as required for the exercise of general personal jurisdiction under Daimler AG v. Bauman, 571 U. S. (2014) (slip op., at 8) (inter- nal quotation marks omitted), BNSF moved to dismiss both suits for lack of personal Its motion was granted in Nelson’s case and denied in Tyrrell’s. 8 Mont., at 7 P. d, at 2. After consolidating the two cases, the Montana Supreme Court held that Montana courts could exercise general personal jurisdiction over BNSF. 7 P. d, at 9. Section 56, the court determined, authorizes state courts to exercise personal jurisdiction over railroads “doing business” in the 7 P. d, at 7 (internal quotation marks omitted). In addition, the court observed, Montana law provides for the exercise of general jurisdiction over “[a]ll persons found within” the 7 P. d, at 8 (quoting Mont. Rule Civ. Proc. 4(b)(1) (2015)). In view of the railroad’s many employees and miles of track in Montana, the court concluded, BNSF 4 BNSF R. CO. v. TYRRELL Opinion of the Court is both “doing business” and “found within” the State, such that both FELA and Montana law authorized the exercise of personal 8 Mont., 428, 7 P.d, at 7–8 (internal quotation marks omitted). The due pro- cess limits articulated in Daimler, the court added, did not control, because Daimler did not involve a FELA claim or a railroad 8 Mont., at 424, 7 P. d, at 6. Justice McKinnon dissented. Section 56, she wrote, is a federal-court venue prescription, and also confers subject- matter jurisdiction on state courts in FELA cases, concur- rent with federal courts. at 45–47, 7 P. d, at 1. But she maintained, does not touch or concern per- sonal Furthermore, she concluded, Daimler controls, rendering the Montana courts’ exercise of personal jurisdiction impermissible because BNSF is not “at home” in 8 Mont., at 4–44, 7 P. d, at 11–12. We granted certiorari, 580 U. S. (2017), to resolve whether authorizes state courts to exercise personal jurisdiction over railroads doing business in their States but not incorporated or headquartered there, and whether the Montana courts’ exercise of personal jurisdiction in these cases comports with due process. II Nelson and Tyrrell contend that ’s first relevant sentence confers personal jurisdiction on federal courts, and that the section’s second relevant sentence extends that grant of jurisdiction to state courts. Neither contention is tenable. Section 56’s first relevant sentence concerns venue; its next sentence speaks to subject-matter 1 —————— 1 Section 56’s first sentence, which provides a time bar for FELA claims, is not relevant to the issue at hand. For ease of reference, we hereinafter refer to the first relevant sentence, describing where suit “may be brought,” as the provision’s “first” sentence, and the sentence that immediately follows, referring to “concurrent” jurisdiction, as the “second.” Cite as: 581 U. S. (2017) 5 Opinion of the Court A The first sentence of states that “an action may be brought in a district court of the United States,” in, among other places, the district “in which the defendant shall be doing business at the time of commencing such action.” In Baltimore & Ohio R. 14 U.S. 44 we comprehended this clause as “establish[ing] venue” for a federal-court action. Congress, we explained, designed to expand venue beyond the limits of the 1888 Judiciary Act’s general venue provision, which al- lowed suit only “in districts of which the defendant was an inhabitant.” ; see Act of Aug. 1, 1888, 25 Stat. 44. Nowhere in or in any other decision did we intimate that might affect personal Congress generally uses the expression, where suit “may be brought,” to indicate the federal districts in which venue is proper. See, e.g., 28 U.S. C. §191(b) (general venue statute specifying where “[a] civil action may be brought”); J. Oakley, ALI, Fed. Judicial Code Rev. Project 25–290 (2004) (listing special venue statutes, many with similar language). See also 14 U.S., at 56 (Frankfurter, J., dissenting) (“The phrasing of [] fol- lows the familiar pattern generally employed by Congress in framing venue provisions.”). In contrast, Congress’ typical mode of providing for the exercise of personal jurisdiction has been to authorize service of process. See, e.g., 15 U.S. C. (Clayton Act provision stating that “all process in [cases against a corporation arising under federal antitrust laws] may be served in the district of which [the defendant] is an inhab- itant, or wherever [the defendant] may be found”); §5(a) (under Federal Trade Commission Act, “process may be served on any person, partnership, or corporation wherever it may be found”). See also Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., (discuss- ing statutes that authorize (or fail to authorize) nation- 6 BNSF R. CO. v. TYRRELL Opinion of the Court wide service of process). But cf. (though “Congress has provided for nationwide service of process” in 28 U.S. C. §191(e) (1964 ed., Supp. V), that statute was meant to expand venue, not personal jurisdiction). Congress uses this terminology because, absent consent, a basis for service of a summons on the defendant is prerequisite to the exercise of personal See Omni Capital, Nelson and Tyrrell, however, argue that relates to personal In their view, the 1888 Judiciary Act provision that prompted ’s enactment, 25 Stat. 44, concerned both personal jurisdiction and venue. According to House and Senate Reports, they contend, two cases had brought to Congress’ attention the problem with the prior provision—namely, that in federal-question cases it au- thorized suit only in the district of the defendant’s resi- dence. Brief for Respondents 16–18. See H. R. Rep. No. 51, 61st Cong., 2d Sess., 6 ; 17 F. 527 ); S. Rep. No. 42, 61st Cong., 2d Sess., 4 (same). In both cases, the courts had dismissed FELA suits for “want of ” Macon Grocery, 215 U.S., at 510; 17 F., at 54. To avert such jurisdictional dismissals, they urge, Congress enacted Legislative history “throws little light” here. 14 U.S., at 50.2 Driving today’s decision, we have long read the 1888 Judiciary Act provision to concern venue only. See 205 U.S. 50, 52–5 (1907) Cite as: 581 U. S. (2017) 7 Opinion of the Court after concluding that venue was proper under 1888 Judi- ciary Act provision). See also 260 U.S. 65, (192) (noting that materially identical successor to 1888 Judiciary Act provision, Act of Mar. 1911, 6 Stat. 1101, “relates to the venue of suits”). Indeed, reading the 1888 Judiciary Act provision to authorize the exercise of personal jurisdiction would have yielded an anomalous result: In diversity cases, the provision allowed for suit “in the district of the residence of either the plaintiff or the ” 25 Stat. 44. Interpreting that clause to provide for jurisdiction would have allowed a plaintiff to hale a defendant into court in the plaintiff ’s home district, even if the district was one with which the defendant had no affiliation, and the episode-in-suit, no connection. B The second sentence in point provides that “[t]he jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.” Nelson and Tyrrell argue that this sen- tence extends to state courts the first sentence’s alleged conferral of personal jurisdiction on federal courts. But, as just the first sentence concerns federal-court venue and confers no personal jurisdiction on any court. We have understood ’s second sentence to provide for the concurrent subject-matter jurisdiction of state and federal courts over actions under FELA. See Second Employers’ Liability Cases, 22 U.S. 1, As Nelson and Tyrrell acknowledge, Congress added the provision to confirm concurrent subject-matter jurisdiction after the Connecticut Supreme Court held that Congress intended to confine FELA litigation to federal courts, and that state courts had no obligation to entertain FELA claims. See Brief for Respondents 2 ). 8 BNSF R. CO. v. TYRRELL Opinion of the Court As Justice McKinnon recognized in her dissent from the Montana Supreme Court’s decision in Nelson’s and Tyr- rell’s cases, “[t]he phrase ‘concurrent jurisdiction’ is a well- known term of art long employed by Congress and courts to refer to subject-matter jurisdiction, not personal juris- diction.” 8 Mont., at 46, 7 P. d, at 1. See, e.g., 565 U.S. 68, 72 (2012) (“federal and state courts have concurrent jurisdic- tion over private suits arising under the [Telephone Con- sumer Protection Act of 1991, 47 U.S. C. 7]”); Claflin v. Houseman, 9 U.S. 10, 1–14 (State courts retain “concurrent jurisdiction” over “suits in which a bankrupt” party is involved, notwithstanding exclusive federal jurisdiction over bankruptcy matters). C Pointing to a quartet of cases, the Montana Supreme Court observed that this Court “consistently has inter- preted to allow state courts to hear cases brought under FELA even where the only basis for jurisdiction is the railroad doing business in the forum [S]tate.” 8 Mont., at 421–42, –, 7 P.d, at 4–7 (citing Pope v. Atlantic Coast Line R. Co., 45 U.S. 79 (195); v. Illinois Central R. Co., 15 U.S. 698 ; 14 U.S. 44; Denver & Rio Grande Western R. Co. v. Terte, 284 U.S. 284 (192)). None of the decisions featured by the Montana Supreme Court resolved a question of personal Terte held that a FELA plaintiff, injured in Colorado, could bring suit in Missouri state court against a railroad incor- porated –287. The dispute, however, was over the Dormant Commerce Clause, not personal jurisdiction; the railroad defendants argued that the suit would unduly burden interstate commerce, and the decision rested on two Commerce Clause decisions, Michigan Central R. and Cite as: 581 U. S. (2017) 9 Opinion of the Court not on an interpretation of See Terte, 284 U.S., at 285, 287. In and this Court held that a state court may not, based on inconvenience to a railroad defendant, enjoin its residents from bringing a FELA suit in another State’s federal () or state () courts. 14 U.S., at 54; 15 U.S., at 699–700, 704. Pope held that 28 U.S. C. provision for transfer from one federal court to another did not bear on the question decided in : A state court still could not enjoin a FELA action brought in another State’s courts. 45 U.S., at 8–84. Moreover, all these cases, save Pope, were decided be- fore this Court’s transformative decision on personal jurisdiction in International Shoe Co. v. Washington, 26 U.S. 10 See Daimler, 571 U. S., at n. 18 (slip op., at 20, n. 18) ). III Because FELA does not authorize state courts to exer- cise personal jurisdiction over a railroad solely on the ground that the railroad does some business in their States, the Montana courts’ assertion of personal jurisdic- tion over BNSF here must rest on Mont. Rule Civ. Proc. 4(b)(1), the State’s provision for the exercise of personal jurisdiction over “persons found” in See at 2–. BNSF does not contest that it is “found within” Montana as the State’s courts comprehend that rule. We therefore inquire whether the Montana courts’ exercise of personal jurisdiction under Montana law comports with the Due Process Clause of the Fourteenth Amendment. In International Shoe, this Court explained that a state court may exercise personal jurisdiction over an out-of- state defendant who has “certain minimum contacts with 10 BNSF R. CO. v. TYRRELL Opinion of the Court [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” 26 U.S., at 16. Elaborating on this guide, we have distinguished between specific or case-linked juris- diction and general or all-purpose See, e.g., Daimler, 571 U. S., at (slip op., at 8); Dunlop Tires Operations, S. (2011); Helicopteros Nacionales de Colombia, S. Because neither Nel- son nor Tyrrell alleges any injury from work in or related to Montana, only the propriety of general jurisdiction is at issue here. and Daimler clarified that “[a] court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum ” Daimler, 571 U. S., at (slip op., at 8) (quoting 564 U.S., at ). The “paradigm” forums in which a corporate defendant is “at home,” we explained, are the corporation’s place of incor- poration and its principal place of business. Daimler, 571 U. S., at (slip op., at 18–19); 564 U.S., at 924. The exercise of general jurisdiction is not limited to these forums; in an “exceptional case,” a corporate defend- ant’s operations in another forum “may be so substantial and of such a nature as to render the corporation at home in that ” Daimler, 571 U. S., at n. 19 (slip op., at 20, n. 19). We suggested that 42 U.S. 47 exemplified such a case. Daimler, 571 U. S., at n. 19 (slip op., at 20, n. 19). In war had forced the defendant corporation’s owner to temporarily relocate the enterprise from the Philippines to 42 U.S., at 447–448. Because Ohio then be- came “the center of the corporation’s wartime activities,” Daimler, 571 U. S., at n. 8 (slip op., at 12, n. 8), suit Cite as: 581 U. S. (2017) 11 Opinion of the Court was proper there, 42 U.S., at 448. The Montana Supreme Court distinguished Daimler on the ground that we did not there confront “a FELA claim or a railroad ” 8 Mont., at 424, 7 P.d, at 6. The Fourteenth Amendment due process constraint described in Daimler, however, applies to all state-court assertions of general jurisdiction over nonresident defend- ants; the constraint does not vary with the type of claim asserted or business enterprise sued. BNSF, we repeat, is not incorporated in Montana and does not maintain its principal place of business there. Nor is BNSF so heavily engaged in activity in Montana “as to render [it] essentially at home” in that See Daimler, 571 U. S., at (slip op., at 8) (internal quota- tion marks omitted). As earlier noted, BNSF has over 2,000 miles of railroad track and more than 2,000 employ- ees in But, as we observed in Daimler, “the general jurisdiction inquiry does not focus solely on the magnitude of the defendant’s in-state contacts.” at n. 20 (slip op., at 21, n. 20) (internal quotation marks and alterations omitted). Rather, the inquiry “calls for an appraisal of a corporation’s activities in their entirety”; “[a] corporation that operates in many places can scarcely be deemed at home in all of them.” In short, the business BNSF does in Montana is sufficient to subject the railroad to specific personal jurisdiction in that State on claims related to the business it does in But in- state business, we clarified in Daimler and does not suffice to permit the assertion of general jurisdiction over claims like Nelson’s and Tyrrell’s that are unrelated —————— The Montana Supreme Court also erred in asserting that “Congress drafted the FELA to make a railroad ‘at home’ for jurisdictional pur- poses wherever it is ‘doing business.’ ” 6 (2016). As at 5–7, in ’s first sentence, Congress dealt with venue only, not personal 12 BNSF R. CO. v. TYRRELL Opinion of the Court to any activity occurring in 4 IV Nelson and Tyrrell present a further argument—that BNSF has consented to personal jurisdiction in See Brief for Respondents 50–51. The Montana Supreme Court did not address this contention, see 8 Mont., at n. 7 P.d, at 9, n. so we do not reach it. See (“[W]e are a court of review, not of first view.”). * * * For the reasons stated, the judgment of the Montana Supreme Court is reversed, and the cases are remanded —————— 4 JUSTICE SOTOMAYOR, dissenting in part, renews a debate compre- hensively aired in Daimler AG v. Bauman, 571 U. S. (2014). There, as again here, JUSTICE SOTOMAYOR treats the assertion of jurisdiction by the State of Washington courts in International Shoe 26 U.S. 10 as an exercise of general, dispute-blind, jurisdiction, post, at thereby overlooking the fundamental difference between International Shoe and these cases. In International Shoe, the defendant corporation’s in-state activities had “not only been continu- ous and systematic, but also g[a]ve rise to the liabilities sued on.” 26 U.S., at 17. The state courts there asserted jurisdiction not over claims that had nothing to do with the State; instead, they exercised adjudicatory authority to hold the defendant corporation accountable for activity pursued within the State of Washington. Daimler, 571 U. S., at n. 10 (slip op., at 7, 14, n. 10). This Court, therefore, had no occasion in International Shoe to “engage in a comparison between International Shoe’s contacts within the State of Washington and the other States in which it operated.” Post, at In marked contrast to International Shoe, Nelson’s and Tyrrell’s claims have no relationship to anything that occurred or had its principal impact in This Court’s opinion is not limited to because the Montana Supreme Court went on to address and decide the question: Do “Mon- tana courts have personal jurisdiction over BNSF under Montana law?” 8 Mont., 7 P.d, at 7. See also 7 P.d, at 9 (“Under Montana law, Montana courts have general personal jurisdic- tion over BNSF.”). Cite as: 581 U. S. (2017) 1 Opinion of the Court for further proceedings not inconsistent with this opinion. It is so ordered. Cite as: 581 U. S. (2017) 1 Opinion OpinionofofofSS J. J. OTOMAYOR OTOMAYOR SUPREME COURT OF THE UNITED STATES No. 16–405 BNSF RAILWAY CO., PETITIONER v. KELLI TYRRELL, SPECIAL ADMINISTRATOR FOR THE ESTATE OF BRENT T. TYRRELL, DECEASED, ET AL. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA [May 0, 2017] JUSTICE SOTOMAYOR, concurring in part and dissenting in part. I concur in the Court’s conclusion that the Federal Employers’ Liability Act (FELA), 45 U.S. C. et seq., does not confer personal jurisdiction over railroads on state courts. I also agree that the Montana Supreme Court erred when it concluded that the nature of the claim here—a FELA claim against a railroad—answers the question whether the Due Process Clause allows the exer- cise of personal jurisdiction over BNSF. But my agree- ment with the majority ends there. I continue to disagree with the path the Court struck in Daimler AG v. Bauman, 571 U. S. (2014), which limits general jurisdiction over a corporate defendant only to those States where it is “ ‘essentially at home,’ ” at (slip op., at 8). And even if the Court insists on adhering to that standard, I dissent from its decision to apply it here in the first instance rather than remanding to the Montana Supreme Court for it to conduct what should be a fact-intensive analysis under the proper legal framework. Accordingly, I join Parts I and II of the Court’s opinion, but dissent from Part III and the judgment. The Court would do well to adhere more faithfully to the direction from International Shoe Co. v. Washington, 26 2 BNSF R. CO. v. TYRRELL SOTOMAYOR, J., Opinion concurring of SinOTOMAYOR part and,dissenting J. in part U. S. 10 which instructed that general jurisdic- tion is proper when a corporation’s “continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activi- ties.” at 18. Under International Shoe, in other words, courts were to ask whether the benefits a defend- ant attained in the forum State warranted the burdens associated with general personal See at 17–18. The majority itself acknowledges that Interna- tional Shoe should govern, describing the question as whether a defendant’s affiliations with a State are suffi- ciently “ ‘continuous and systematic’ ” to warrant the exer- cise of general jurisdiction there. Ante, at 10. If only its analysis today reflected that directive. Instead, the major- ity opinion goes on to reaffirm the restrictive “at home” test set out in Daimler—a test that, as I have explained, has no home in our precedents and creates serious inequi- ties. See 571 U. S., at – (SOTOMAYOR, J., concurring in judgment) (slip op., at 8–19). The majority’s approach grants a jurisdictional windfall to large multistate or multinational corporations that operate across many jurisdictions. Under its reasoning, it is virtually inconceivable that such corporations will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation. Foreign businesses with principal places of business out- side the United States may never be subject to general jurisdiction in this country even though they have contin- uous and systematic contacts within the United States. See at – (slip op., at 17–18). What was once a holistic, nuanced contacts analysis backed by considera- tions of fairness and reasonableness has now effectively been replaced by the rote identification of a corporation’s Cite as: 581 U. S. (2017) SOTOMAYOR, J., Opinion concurring of SinOTOMAYOR part and,dissenting J. in part principal place of business or place of incorporation.1 The result? It is individual plaintiffs, harmed by the actions of a farflung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in dis- tant jurisdictions with which they have no contacts or connection. Moreover, the comparative contacts analysis invented in Daimler resurfaces here and proves all but dispositive. The majority makes much of the fact that BNSF’s contacts in Montana are only a percentage of its contacts with other jurisdictions. Ante, at 11. But International Shoe, which the majority agrees is the springboard for our mod- ern personal jurisdiction jurisprudence, ante, at 9, applied no comparative contacts test. There the Court analyzed whether the Delaware corporation had “by its activities in the State of Washington rendered itself amenable to pro- ceedings” in the 26 U.S., at 11. The Court eval- uated whether the corporation had offices in the forum State, made contracts there, delivered goods there, or employed salesmen there. See at 1. Despite ac- knowledging that the corporation maintained places of business in several States, ib the Court did not engage in a comparison between International Shoe’s contacts within the State of Washington and the other States in which it operated.2 The Court noted that the corporation —————— 1 As many commentators have observed, lower courts adhered to the continuous-and-systematic standard for decades before Daimler, and its predecessor Dunlop Tires Operations, S. 564 U.S. 915 (2011), wrought the present sea change. See, e.g., Cornett & Hoffheimer, Good-Bye Significant Contacts: General Personal Jurisdic- tion after Daimler AG v. Bauman, 76 Ohio St. L. J. 101 (2015); Parry, Rethinking Personal Jurisdiction after Bauman and Walden, 19 Lewis & Clark L. Rev. 607 (2015); Doernberg, Resoling International Shoe, 2 Tex. A&M L. Rev. 247 (2014); Feder, “Home,” and the Uncertain Future of Doing Business Jurisdiction, 6 S. C. L. Rev. 671 (2012). 2 The majority responds that the language from International Shoe 4 BNSF R. CO. v. TYRRELL SOTOMAYOR, J., Opinion concurring of SinOTOMAYOR part and,dissenting J. in part employed 11 to 1 salesmen in Washington but did not query how that number compared to the number of sales- men in other States. As well it should not have; the relative percentage of contacts is irrelevant. The focus should be on the quality and quantity of the defendant’s contacts in the forum The majority does even Daimler itself a disservice, paying only lipservice to the question the Court purported to reserve there—the possibility of an “exceptional case” in which general jurisdiction would be proper in a forum State that is neither a corporate defendant’s place of incorporation nor its principal place of business. See 571 U. S., at n. 19 (slip op., at 20, n. 19). Its opinion here could be understood to limit that exception to the exact facts of v. Benguet Consol. Mining Co., 42 U.S. 47 See ante, at 10–11. That reading is so narrow as to read the exception out of existence entirely; certainly a defendant with significant contacts with more than one State falls outside its ambit. And so it is inevitable under its own reasoning that the majority would conclude that BNSF’s contacts with Montana are insufficient to justify the exercise of personal jurisdiction here. This result is perverse. Despite having reserved the possibility of an “exceptional case” in Daimler, the majority here has re- —————— informs only a specific jurisdiction case. Ante, at 12, n. 4. But the majority’s view of International Shoe is overly restrictive. The terms “specific jurisdiction” and “general jurisdiction” are nowhere to be found in that opinion. And I continue to believe, as I noted in Daimler, that there is no material difference between the “continuous and systematic” terminology International Shoe used for what we now call specific jurisdiction and the “continuous” and “substantial” terminology it used for what we now call general See Daimler, 571 U. S., at n. 6 (SOTOMAYOR, J., concurring in judgment) (slip op., at 8, n. 6). Indeed, in neither v. Benguet Consol. Mining Co., 42 U.S. 47 nor Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U.S. 408 did the Court engage in a comparative-contacts analysis. Cite as: 581 U. S. (2017) 5 SOTOMAYOR, J., Opinion concurring of SinOTOMAYOR part and,dissenting J. in part jected that possibility out of hand. Worse, the majority reaches its conclusion only by de- parting from the Court’s normal practice.4 Had it re- manded to the Montana Supreme Court to reevaluate the due process question under the correct legal standard, that court could have examined whether this is such an “exceptional case.” Instead, with its ruling today, the Court unnecessarily sends a signal to the lower courts that the exceptional-circumstances inquiry is all form, no substance. I respectfully concur in part and dissent in part. —————— 4 The Montana Supreme Court reached this question only by wrongly assuming that 45 U.S. C. is a jurisdictional statute and that a defendant’s unique status as a railroad company is dispositive of the jurisdictional question. A remand rather than an outright reversal is this Court’s traditional practice where a lower court applies the incor- rect legal standard; we have done it repeatedly just this Term. See, e.g., Bethune-Hill v. Virginia State Bd. of Elections, 580 U. S. (2017); Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., ante, p. ; McLane Co. v. EEOC, ante, p. ; Moore v. Texas, ante, p.

per_curiam

per_curiam

Eberhart v. United States

2005-10-31

https://www.courtlistener.com/opinion/145119/eberhart-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145119/

2005-004

Federal Rule of Criminal Procedure 33(a) allows a district court to "vacate any judgment and grant a new trial if the interest of justice so requires." But "[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period." Rule 33(b)(2). This deadline is rigid. The Rules provide that courts "may not extend the time to take any action under [Rule 33], except as stated" in Rule 33 itself. Rule 45(b)(2). The Court of Appeals for the Seventh Circuit has construed Rule 33's time limitations as "jurisdictional," permitting the Government to raise non-compliance with those limitations for the first time on appeal. 388 F.3d 1043, 1049 (2004). However, there is "a critical difference between a rule governing subject-matter jurisdiction and an inflexible claim-processing rule." Kontrick v. Ryan, 540 U.S. 443, 456 (2004). Rule 33 is an example of the latter. We grant the petition for certiorari and the motion for leave to proceed in forma pauperis, and reverse the judgment of the Seventh Circuit. I Petitioner Ivan Eberhart was convicted of one count of conspiring to distribute cocaine. On the last day available for post-trial motions, he moved for judgment of acquittal or, in the alternative, for a new trial. That motion raised a single ground for relief—an alleged flaw in a transcript that had been published to the jury. Nearly six months later, petitioner filed a "supplemental memorandum" supporting his motion. Two additional grounds appeared in that filing—admission of potential hearsay testimony into evidence, and the District Court's failure to give a so-called "buyerseller instruction" to the jury. 388 F.3d, at 1047-1048. Rather than arguing, however, that the untimeliness of the supplemental memorandum barred the District Court from *14 considering the issues it raised, the Government opposed it on the merits. The District Court granted the motion for a new trial, citing all three grounds raised by petitioner. The judge concluded that "`none of these concerns standing alone or in pairing would cause me to grant a new trial,'" but that taken together, they "`persuade me that the interests of justice require a new trial.'" Id., at 1048. The judge also predicted that "`a new trial will quite likely lead to another conviction.'" Ibid. On appeal, the Government pointed to the untimeliness of petitioner's supplemental memorandum, and argued that the District Court had abused its discretion in granting a new trial based on the arguments that the memorandum had raised. The Court of Appeals reversed the grant of a new trial, finding that the District Court had lacked jurisdiction to grant one. The Seventh Circuit observed: "The Supreme Court has held that Rule 45(b)'s prohibition on extensions of time is `mandatory and jurisdictional.'" Id., at 1049 (quoting United States v. Robinson, 361 U.S. 220, 229 (1960), and citing United States v. Smith, 331 U.S. 469, 474, n. 2 (1947)). Based on Robinson and Smith, the Seventh Circuit explained, "`[w]e have previously emphasized that [Rule 33's] 7-day period is jurisdictional, and that the court is without jurisdiction to consider even an amendment to a timely new trial motion if it is filed outside the seven day period, absent a timely extension by the court or new evidence.'" 388 F.3d, at 1049 (quoting United States v. Washington, 184 F.3d 653, 659 (CA7 1999)). The Court of Appeals did, however, express some misgiving. After describing the holding of Kontrick, it commented that "[t]he reasoning of Kontrick may suggest that Rule 33's time limits are merely inflexible claim-processing rules that could be forfeited if not timely asserted." 388 F.3d, at 1049. It concluded, however, that even if Kontrick had undermined Robinson and Smith, "we are bound to follow *15 them until expressly overruled by the Supreme Court." 388 F.3d, at 1049 (citing Agostini v. Felton, 521 U.S. 203, 237 (1997)). II In Kontrick, we determined that defenses made available by the time limitations of Federal Rules of Bankruptcy Procedure 4004 and 9006 may be forfeited. 540 U.S., at 458-460. They are not "jurisdiction[al]," but are instead "claim-processing rules," that may be "unalterable on a party's application" but "can nonetheless be forfeited if the party asserting the rule waits too long to raise the point." Id., at 456. In Kontrick, the debtor responded on the merits to a creditor's untimely objection to his discharge. He did not raise the untimeliness issue, and the court resolved the merits in favor of the creditor. On motion for reconsideration and on appeal, the debtor raised the argument that Rules 4004 and 9006 "have the same import as provisions governing subject-matter jurisdiction." Id., at 455. We rejected this assertion and found that the debtor had forfeited the timeliness argument. The Rules we construed in Kontrick closely parallel those at issue here. Like a defendant wishing to move for a new trial under Federal Rule of Criminal Procedure 33, a creditor wishing to object to a debtor's discharge in Chapter 7 liquidation proceedings has a set period of time to file with the court (measured, in the latter context, from "the first date set for the meeting of creditors"). Fed. Rule Bkrtcy. Proc. 4004(a). If a creditor so moves, "the court may for cause extend the time to file a complaint objecting to discharge." Rule 4004(b). And using language almost identical to Federal Rule of Criminal Procedure 45(b)(2)'s admonition that "[t]he court may not extend the time to take any action under Rules 29, 33, 34, and 35, except as stated in those rules," Bankruptcy Rule 9006(b)(3) states that "[t]he court may enlarge the time for taking action under Rules 1006(b)(2), *16 1017(e), 3002(c), 4003(b), 4004(a), 4007(c), 8002, and 9033, only to the extent and under the conditions stated in those rules." It is implausible that the Rules considered in Kontrick can be nonjurisdictional claim-processing rules, while virtually identical provisions of the Rules of Criminal Procedure can deprive federal courts of subject-matter jurisdiction. Nothing in Rules 33 or 45 or our cases requires such a dissonance. Moreover, our most recent decisions have attempted to brush away confusion introduced by our earlier opinions. "Clarity would be facilitated," we have said, "if courts and litigants used the label `jurisdictional' not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority." Kontrick, 540 U.S., at 455. We break no new ground in firmly classifying Rules 33 and 45 as claim-processing rules, despite the confusion generated by the "less than meticulous" uses of the term "jurisdictional" in our earlier cases. Id., at 454. The Seventh Circuit correctly identified our decisions in Smith and Robinson as the source of the confusion. 388 F.3d, at 1049. Since we have not "expressly overruled" them, it held, petitioner's appeal had to be dismissed. Ibid. Those cases, however, do not hold the limits of the Rules to be jurisdictional in the proper sense that Kontrick describes. See 540 U.S., at 455. We need not overrule Robinson or Smith to characterize Rules 33 and 45 as claim-processing rules. In Smith, the District Judge rejected a Rule 33 motion for a new trial, and the conviction was affirmed on appeal. 331 U.S., at 470. After the defendant was taken into custody, the District Judge changed his mind. Purporting to act under the authority of Rule 33, he issued an order vacating his earlier judgment and granting a new trial. Id., at 471. Although we observed in a footnote that "[t]he policy of the Rules was not to extend power indefinitely but to confine *17 it within constant time periods," id., at 473-474, n. 2, that observation hardly transforms the Rules into the keys to the kingdom of subject-matter jurisdiction. Rather, as we emphasized in the text, the District Judge could not use Rule 33 to sidestep a pre-existing basic principle of judicial process—that once a final judgment is issued and the court of appeals considers a case, a district court has no power to act on it further. This was a consequence, however, not of the Rule, but of the Rule's failure to alter prior law. Smith does not address the effect of untimely arguments in support of a motion for new trial when, as here, the district court is still considering post-trial motions and the case has not yet been appealed. Nor does Robinson address that circumstance. Defendants were 11 days late in filing their notices of appeal under (what was then) Rule 37. The Government responded not by contesting the merits of the appeal, but by moving to dismiss on the basis of untimeliness. 361 U.S., at 221. The Court of Appeals determined that if the District Court found that the untimely notices of appeal sprang from "excusable neglect," it could allow the appeals. On remand, the District Court so found. Id., at 222. We held that the Court of Appeals was wrong in having failed to dismiss under Rule 45(b). Id., at 229-230. Robinson is correct not because the District Court lacked subject-matter jurisdiction, but because district courts must observe the clear limits of the Rules of Criminal Procedure when they are properly invoked. This does not mean that limits like those in Rule 33 are not forfeitable when they are not properly invoked. Despite its narrow and unremarkable holding, Robinson has created some confusion because of its observation that "courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional." Id., at 229 (emphasis added). Indeed, we used the phrase "mandatory and jurisdictional" four times in the opinion. And subsequent opinions have repeated this phrase, *18 attributing it directly or indirectly to Robinson. See, e. g., Hohn v. United States, 524 U.S. 236, 247 (1998); Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam); Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257, 264, 271-272 (1978). But see Houston v. Lack, 487 U.S. 266, 269 (1988) (reversing an order dismissing an appeal as jurisdictionally out of time when "[n]either the District Court nor respondent suggested that the notice of appeal might be untimely"); Thompson v. INS, 375 U.S. 384, 386 (1964) (per curiam) (permitting appeal, when petitioner conceded that post-trial motions were served late, in part because petitioner "relied on the Government's failure to raise a claim of untimeliness when the motions were filed"). As we recognized in Kontrick, courts "have more than occasionally used the term `jurisdictional' to describe emphatic time prescriptions in rules of court." 540 U.S., at 454. See also ibid. (citing Robinson as an example of when we have been "less than meticulous" in our use of the word "jurisdictional"). The resulting imprecision has obscured the central point of the Robinson case—that when the Government objected to a filing untimely under Rule 37, the court's duty to dismiss the appeal was mandatory. The net effect of Robinson, viewed through the clarifying lens of Kontrick, is to admonish the Government that failure to object to untimely submissions entails forfeiture of the objection, and to admonish defendants that timeliness is of the essence, since the Government is unlikely to miss timeliness defects very often. Our more recent cases have done much to clarify this point. For instance, in Carlisle v. United States, 517 U.S. 416 (1996), we held that a court may not grant a postverdict motion for a judgment of acquittal that is untimely under Federal Rule of Criminal Procedure 29(c) when the prosecutor objects. As we pointedly noted in Kontrick, our holding in Carlisle did not "characterize [Rule 29] as `jurisdictional.'" *19 540 U.S., at 454-455. See also Scarborough v. Principi, 541 U.S. 401, 413-414 (2004) (relying on Kontrick to hold that time limitations on applications for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1), did not implicate subject-matter jurisdiction). After Kontrick, it is difficult to escape the conclusion that Rule 33 motions are similarly nonjurisdictional. By its terms, Rule 45(b)(2) has precisely the same effect on extensions of time under Rule 29 as it does under Rule 33, and as we noted in Kontrick, Federal Rule of Criminal Procedure 45(b) and Bankruptcy Rule 9006(b) are both "modeled on Federal Rule of Civil Procedure 6(b)." 540 U.S., at 456, n. 10. Rule 33, like Rule 29 and Bankruptcy Rule 4004, is a claim-processing rule—one that is admittedly inflexible because of Rule 45(b)'s insistent demand for a definite end to proceedings. These claim-processing rules thus assure relief to a party properly raising them, but do not compel the same result if the party forfeits them. Here, where the Government failed to raise a defense of untimeliness until after the District Court had reached the merits, it forfeited that defense. The Court of Appeals should therefore have proceeded to the merits. We finally add a word about the approach taken by the Court of Appeals. Although we find its disposition to have been in error, we fully appreciate that it is an error shared among the circuits, and that it was caused in large part by imprecision in our prior cases. Our repetition of the phrase "mandatory and jurisdictional" has understandably led the lower courts to err on the side of caution by giving the limitations in Rules 33 and 45 the force of subject-matter jurisdiction. Convinced, therefore, that Robinson and Smith governed this case, the Seventh Circuit felt bound to apply them, even though it expressed grave doubts in light of Kontrick. This was a prudent course. It neither forced the issue by upsetting what the Court of Appeals took to be our settled precedents, nor buried the issue by proceeding *20 in a summary fashion. By adhering to its understanding of precedent, yet plainly expressing its doubts, it facilitated our review. * * * The judgment of the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered

Federal Rule of Criminal 33(a) allows a district court to "vacate any judgment and grant a new trial if the interest of justice so requires." But "[a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty, or within such further time as the court sets during the 7-day period." Rule 33(b)(2). This deadline is rigid. The Rules provide that courts "may not extend the time to take any action under [Rule 33], except as stated" in Rule 33 itself. Rule 45(b)(2). The Court of Appeals for the Seventh Circuit has construed Rule 33's time limitations as "jurisdictional," permitting the Government to raise non-compliance with those limitations for the first time on However, there is "a critical difference between a rule governing subject-matter jurisdiction and an inflexible claim-processing rule." Rule 33 is an example of the latter. We grant the petition for certiorari and the motion for leave to proceed in forma pauperis, and reverse the judgment of the Seventh Circuit. I Petitioner Ivan Eberhart was convicted of one count of conspiring to distribute cocaine. On the last day available for post-trial motions, he moved for judgment of acquittal or, in the alternative, for a new trial. That motion raised a single ground for relief—an alleged flaw in a transcript that had been published to the jury. Nearly six months later, petitioner filed a "supplemental memorandum" supporting his motion. Two additional grounds appeared in that filing—admission of potential hearsay testimony into evidence, and the District Court's failure to give a so-called "buyerseller instruction" to the jury. -1048. Rather than arguing, however, that the untimeliness of the supplemental memorandum barred the District Court from *14 considering the issues it raised, the Government opposed it on the merits. The District Court granted the motion for a new trial, citing all three grounds raised by petitioner. The judge concluded that "`none of these concerns standing alone or in pairing would cause me to grant a new trial,'" but that taken together, they "`persuade me that the interests of justice require a new trial.'" The judge also predicted that "`a new trial will quite likely lead to another conviction.'" On appeal, the Government pointed to the untimeliness of petitioner's supplemental memorandum, and argued that the District Court had abused its discretion in granting a new trial based on the arguments that the memorandum had raised. The Court of Appeals reversed the grant of a new trial, finding that the District Court had lacked jurisdiction to grant one. The Seventh Circuit observed: "The Supreme Court has held that Rule 45(b)'s prohibition on extensions of time is `mandatory and jurisdictional.'" at and citing United ). Based on Robinson and Smith, the Seventh Circuit explained, "`[w]e have previously emphasized that [Rule 33's] 7-day period is jurisdictional, and that the court is without jurisdiction to consider even an amendment to a timely new trial motion if it is filed outside the seven day period, absent a timely extension by the court or new evidence.'" 388 F.3d, at ). The Court of Appeals did, however, express some misgiving. After describing the holding of Kontrick, it commented that "[t]he reasoning of Kontrick may suggest that Rule 33's time limits are merely inflexible claim-processing rules that could be forfeited if not timely asserted." 388 F.3d, at It concluded, however, that even if Kontrick had undermined Robinson and Smith, "we are bound to follow *15 them until expressly overruled by the Supreme Court." 388 F.3d, at ). II In Kontrick, we determined that defenses made available by the time limitations of Federal Rules of Bankruptcy 4004 and 9006 may be -460. They are not "jurisdiction[al]," but are instead "claim-processing rules," that may be "unalterable on a party's application" but "can nonetheless be forfeited if the party asserting the rule waits too long to raise the point." at In Kontrick, the debtor responded on the merits to a creditor's untimely objection to his discharge. He did not raise the untimeliness issue, and the court resolved the merits in favor of the creditor. On motion for reconsideration and on appeal, the debtor raised the argument that Rules 4004 and 9006 "have the same import as provisions governing subject-matter jurisdiction." We rejected this assertion and found that the debtor had forfeited the timeliness argument. The Rules we construed in Kontrick closely parallel those at issue here. Like a defendant wishing to move for a new trial under Federal Rule of Criminal 33, a creditor wishing to object to a debtor's discharge in Chapter 7 liquidation proceedings has a set period of time to file with the court (measured, in the latter context, from "the first date set for the meeting of creditors"). Fed. Rule Bkrtcy. Proc. 4004(a). If a creditor so moves, "the court may for cause extend the time to file a complaint objecting to discharge." Rule 4004(b). And using language almost identical to Federal Rule of Criminal 45(b)(2)'s admonition that "[t]he court may not extend the time to take any action under Rules 29, 33, 34, and 35, except as stated in those rules," Bankruptcy Rule 9006(b)(3) states that "[t]he court may enlarge the time for taking action under Rules 1006(b)(2), *16 1017(e), 3002(c), 4003(b), 4004(a), 4007(c), 8002, and 9033, only to the extent and under the conditions stated in those rules." It is implausible that the Rules considered in Kontrick can be nonjurisdictional claim-processing rules, while virtually identical provisions of the Rules of Criminal can deprive federal courts of subject-matter jurisdiction. Nothing in Rules 33 or 45 or our cases requires such a dissonance. Moreover, our most recent decisions have attempted to brush away confusion introduced by our earlier opinions. "Clarity would be facilitated," we have said, "if courts and litigants used the label `jurisdictional' not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority." Kontrick, 540 U.S., We break no new ground in firmly classifying Rules 33 and 45 as claim-processing rules, despite the confusion generated by the "less than meticulous" uses of the term "jurisdictional" in our earlier cases. The Seventh Circuit correctly identified our decisions in Smith and Robinson as the source of the 388 F.3d, at Since we have not "expressly overruled" them, it held, petitioner's appeal had to be dismissed. Those cases, however, do not hold the limits of the Rules to be jurisdictional in the proper sense that Kontrick describes. See 540 U.S., We need not overrule Robinson or Smith to characterize Rules 33 and 45 as claim-processing rules. In Smith, the District Judge rejected a Rule 33 motion for a new trial, and the conviction was affirmed on After the defendant was taken into custody, the District Judge changed his mind. Purporting to act under the authority of Rule 33, he issued an order vacating his earlier judgment and granting a new trial. Although we observed in a footnote that "[t]he policy of the Rules was not to extend power indefinitely but to confine *17 it within constant time periods," at 473-, that observation hardly transforms the Rules into the keys to the kingdom of subject-matter jurisdiction. Rather, as we emphasized in the text, the District Judge could not use Rule 33 to sidestep a pre-existing basic principle of judicial process—that once a final judgment is issued and the court of appeals considers a case, a district court has no power to act on it further. This was a consequence, however, not of the Rule, but of the Rule's failure to alter prior law. Smith does not address the effect of untimely arguments in support of a motion for new trial when, as here, the district court is still considering post-trial motions and the case has not yet been appealed. Nor does Robinson address that circumstance. Defendants were 11 days late in filing their notices of appeal under (what was then) Rule 37. The Government responded not by contesting the merits of the appeal, but by moving to dismiss on the basis of The Court of Appeals determined that if the District Court found that the untimely notices of appeal sprang from "excusable neglect," it could allow the appeals. On remand, the District Court so found. We held that the Court of Appeals was wrong in having failed to dismiss under Rule 45(b). at -230. Robinson is correct not because the District Court lacked subject-matter jurisdiction, but because district courts must observe the clear limits of the Rules of Criminal when they are properly invoked. This does not mean that limits like those in Rule 33 are not forfeitable when they are not properly invoked. Despite its narrow and unremarkable holding, Robinson has created some confusion because of its observation that "courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional." at Indeed, we used the phrase "mandatory and jurisdictional" four times in the opinion. And subsequent opinions have repeated this phrase, *18 attributing it directly or indirectly to Robinson. See, e. g., ; ; ; But see ; (permitting appeal, when petitioner conceded that post-trial motions were served late, in part because petitioner "relied on the Government's failure to raise a claim of untimeliness when the motions were filed"). As we recognized in Kontrick, courts "have more than occasionally used the term `jurisdictional' to describe emphatic time prescriptions in rules of court." 540 U.S., See also (citing Robinson as an example of when we have been "less than meticulous" in our use of the word "jurisdictional"). The resulting imprecision has obscured the central point of the Robinson case—that when the Government objected to a filing untimely under Rule 37, the court's duty to dismiss the appeal was mandatory. The net effect of Robinson, viewed through the clarifying lens of Kontrick, is to admonish the Government that failure to object to untimely submissions entails forfeiture of the objection, and to admonish defendants that timeliness is of the essence, since the Government is unlikely to miss timeliness defects very often. Our more recent cases have done much to clarify this point. For instance, in we held that a court may not grant a postverdict motion for a judgment of acquittal that is untimely under Federal Rule of Criminal 29(c) when the prosecutor objects. As we pointedly noted in Kontrick, our holding in Carlisle did not "characterize [Rule 29] as `jurisdictional.'" *19 540 U.S., -455. See also After Kontrick, it is difficult to escape the conclusion that Rule 33 motions are similarly nonjurisdictional. By its terms, Rule 45(b)(2) has precisely the same effect on extensions of time under Rule 29 as it does under Rule 33, and as we noted in Kontrick, Federal Rule of Criminal 45(b) and Bankruptcy Rule 9006(b) are both "modeled on Federal Rule of Civil 6(b)." 540 U.S., at n. 10. Rule 33, like Rule 29 and Bankruptcy Rule 4004, is a claim-processing rule—one that is admittedly inflexible because of Rule 45(b)'s insistent demand for a definite end to proceedings. These claim-processing rules thus assure relief to a party properly raising them, but do not compel the same result if the party forfeits them. Here, where the Government failed to raise a defense of untimeliness until after the District Court had reached the merits, it forfeited that defense. The Court of Appeals should therefore have proceeded to the merits. We finally add a word about the approach taken by the Court of Appeals. Although we find its disposition to have been in error, we fully appreciate that it is an error shared among the circuits, and that it was caused in large part by imprecision in our prior cases. Our repetition of the phrase "mandatory and jurisdictional" has understandably led the lower courts to err on the side of caution by giving the limitations in Rules 33 and 45 the force of subject-matter jurisdiction. Convinced, therefore, that Robinson and Smith governed this case, the Seventh Circuit felt bound to apply them, even though it expressed grave doubts in light of Kontrick. This was a prudent course. It neither forced the issue by upsetting what the Court of Appeals took to be our settled precedents, nor buried the issue by proceeding *20 in a summary fashion. By adhering to its understanding of precedent, yet plainly expressing its doubts, it facilitated our review. * * * The judgment of the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered

Justice Souter

majority

Lindh v. Murphy

1997-06-23

https://www.courtlistener.com/opinion/118135/lindh-v-murphy/

https://www.courtlistener.com/api/rest/v3/clusters/118135/

1996-082

The Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, signed into law on April 24, 1996, enacted the present 28 U.S. C. § 2254(d) (1994 ed., Supp. II). The issue in this case is whether that new section of the statute dealing with petitions for habeas corpus governs *323 applications in non capital cases that were already pending when the Act was passed. We hold that it does not. I Wisconsin tried Aaron Lindh on multiple charges of murder and attempted murder. In response to his insanity defense, the State called a psychiatrist who had spoken with Lindh immediately after the killings but had later, and before Lindh's trial, come under criminal investigation by the State for sexual exploitation of some of his patients. Although, at trial, Lindh tried to ask the psychiatrist about that investigation, hoping to suggest the witness's interest in currying favor with the State, the trial court barred the questioning. Lindh was convicted. On direct appeal, Lindh claimed a violation of the Confrontation Clause of the National Constitution, but despite the denial of relief, Lindh sought neither review in this Court nor state collateral review. Instead, on July 9, 1992, he filed a habeas corpus application in the United States District Court, in which he again argued his Confrontation Clause claim. When relief was denied in October 1995, Lindh promptly appealed to the Seventh Circuit. Shortly after oral argument there, however, the federal habeas statute was amended, and the Seventh Circuit ordered Lindh's case be reheard en banc to see whether the new statute applied to Lindh and, if so, how his case should be treated. The Court of Appeals held that the Act's amendments to chapter 153 of Title 28 generally did apply to cases pending on the date of enactment. 96 F.3d 856, 863 (1996). Since the court did not read the statute as itself answering the questions whether or how the newly amended version of § 2254(d) would apply to pending applications like Lindh's, id., at 861-863, it turned to this Court's recent decision in Landgraf v. USI Film Products, 511 U.S. 244 (1994). Landgraf held that, where a statute did not clearly mandate an application with retroactive effect, a court had to determine *324 whether applying it as its terms ostensibly indicated would have genuinely retroactive effect; if so, the judicial presumption against retroactivity would bar its application. The Seventh Circuit concluded that applying the new § 2254(d) to cases already pending would not have genuinely retroactive effect because it would not attach "new legal consequences" to events preceding enactment, and the court held the statute applicable to Lindh's case. 96 F.3d, at 863— 867 (citing Landgraf, supra, at 270). On the authority of the new statute, the court then denied relief on the merits. 96 F.3d, at 868-877. The Seventh Circuit's decision that the new version of § 2254(d) applies to pending, chapter 153 cases conflicts with the holdings of Edens v. Hannigan, 87 F.3d 1109, 1112, n. 1 (CA10 1996), Boria v. Keane, 90 F.3d 36, 37-38 (CA2 1996) (per curiam), and Jeffries v. Wood, 114 F.3d 1484 (CA9 1997). In accord with the Seventh Circuit is the § 2253(c) case of Hunter v. United States, 101 F.3d 1565, 1568-1573 (CA11 1996) (en banc) (relying on Lindh to hold certain amendments to chapter 153 applicable to pending cases). We granted certiorari limited to the question whether the new § 2254(d) applies to Lindh's case, 519 U.S. 1074 (1996), and we now reverse. II Before getting to the statute itself, we have to address Wisconsin's argument that whenever a new statute on its face could apply to the litigation of events that occurred before it was enacted, there are only two alternative sources of rules to determine its ultimate temporal reach: either an "express command" from Congress or application of our Landgraf default rule. In Landgraf, we said: "When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default *325 rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect . . . . If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." Landgraf, supra, at 280. Wisconsin insists that this language means that, in the absence of an express command regarding temporal reach, this Court must determine that temporal reach for itself by applying its judicial default rule governing retroactivity, to the exclusion of all other standards of statutory interpretation. Brief for Respondent 9-14; see also Hunter v. United States, supra, at 1569 (suggesting that Landgraf may have announced a general clear-statement rule regarding the temporal reach of statutes). Wisconsin's reading, however, ignores context. The language quoted disposed of the question whether the practice of applying the law as it stands at the time of decision represented a retreat from the occasionally conflicting position that retroactivity in the application of new statutes is disfavored. The answer given was no, and the presumption against retroactivity was reaffirmed in the traditional rule requiring retroactive application to be supported by a clear statement. Landgraf thus referred to "express command[s]," "unambiguous directive[s]," and the like where it sought to reaffirm that clear-statement rule, but only there. See Landgraf v. USI Film Products, 511 U. S., at 263 ("[U]nambiguous directive" is necessary to authorize "retroactive application"); id., at 264 (statutes "will not be construed to have retroactive effect unless their language requires this result" (internal quotation marks and citation omitted)); id., at 272-273 ("Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application"); id., at 286 (finding "no clear evidence of congressional intent" to rebut the "presumption *326 against statutory retroactivity"); id., at 286 (Scalia, J., concurring in judgment) (agreeing that "a legislative enactment affecting substantive rights does not apply retroactively absent clear statement to the contrary"). In determining whether a statute's terms would produce a retroactive effect, however, and in determining a statute's temporal reach generally, our normal rules of construction apply. Although Landgraf `s default rule would deny application when a retroactive effect would otherwise result, other construction rules may apply to remove even the possibility of retroactivity (as by rendering the statutory provision wholly inapplicable to a particular case), as Lindh argues the recognition of a negative implication would do here. In sum, if the application of a term would be retroactive as to Lindh, the term will not be applied, even if, in the absence of retroactive effect, we might find the term applicable; if it would be prospective, the particular degree of prospectivity intended in the Act will be identified in the normal course in order to determine whether the term does apply to Lindh. III The statute reveals Congress's intent to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment (except where chapter 154 otherwise makes select provisions of chapter 153 applicable to pending cases). Title I of the Act stands more or less independent of the Act's other titles[1] in providing for the revision of federal habeas practice and does two main things. First, in §§ 101-106, it amends § 2244 and §§ 2253-2255 of chapter 153 of Title 28 of the United States Code, governing all habeas corpus proceedings in the federal courts.[2] 110 Stat. 1217— *327 1221. Then, for habeas proceedings against a State in capital cases, § 107 creates an entirely new chapter 154 with special rules favorable to the state party, but applicable only if the State meets certain conditions, including provision for appointment of post conviction counsel in state proceedings.[3] 110 Stat. 1221-1226. In § 107(c), the Act provides that "Chapter 154 . . . shall apply to cases pending on or after the date of enactment of this Act." 110 Stat. 1226. We read this provision of § 107(c), expressly applying chapter 154 to all cases pending at enactment, as indicating implicitly that the amendments to chapter 153 were assumed and meant to apply to the general run of habeas cases only when those cases had been filed after the date of the Act. The significance of this provision for application to pending cases becomes apparent when one realizes that when chapter 154 is applicable, it will have substantive as well as purely procedural effects. If chapter 154 were merely procedural in a strict sense (say, setting deadlines for filing and disposition, see 28 U.S. C. §§ 2263, 2266 (1994 ed., Supp. II); 110 Stat. 1223, 1224-1226), the natural expectation would be that it would apply to pending cases. Landgraf, supra, at 275 (noting that procedural changes "may often be applied in suits arising before their enactment without raising concerns about retroactivity"). But chapter 154 does more, for in its revisions of prior law to change standards of proof and persuasion in a way favorable to a State, the statute goes beyond "mere" procedure to affect substantive entitlement to relief. See 28 U.S. C. § 2264(b) (1994 ed., Supp. II); 110 Stat. 1223 (incorporating revised legal standard of new § 2254(d)). Landgraf did not speak to the rules for determining the temporal reach of such a statute (having no need to do so). While the statute might not have a true retroactive effect, neither was it clearly "procedural" so as to fall within the *328 Court's express (albeit qualified) approval of applying such statutes to pending cases. Since Landgraf was the Court's latest word on the subject when the Act was passed, Congress could have taken the opinion's cautious statement about procedural statutes and its silence about the kind of provision exemplified by the new § 2254(d) as counseling the wisdom of being explicit if it wanted such a provision to be applied to cases already pending. While the terms of § 107(c) may not amount to the clear statement required for a mandate to apply a statute in the disfavored retroactive way,[4] they do serve to make it clear as a general matter that *329 chapter 154 applies to pending cases when its terms fit those cases at the particular procedural points they have reached. (As to that, of course, there may well be difficult issues, and it may be that application of Landgraf `s default rule will be necessary to settle some of them.) The next point that is significant for our purposes is that everything we have just observed about chapter 154 is true of changes made to chapter 153. As we have already noted, amended § 2254(d) (in chapter 153 but applicable to chapter 154 cases) governs standards affecting entitlement to relief. If, then, Congress was reasonably concerned to ensure that chapter 154 be applied to pending cases, it should have been just as concerned about chapter 153, unless it had the different intent that the latter chapter not be applied to the general run of pending cases. Nothing, indeed, but a different intent explains the different treatment. This might not be so if, for example, the two chapters had evolved separately in the congressional process, only to be passed together at the last minute, after chapter 154 had already acquired the mandate to apply it to pending cases. Under those circumstances, there might have been a real possibility that Congress would have intended the same rule of application for each chapter, but in the rough-andtumble no one had thought of being careful about chapter 153, whereas someone else happened to think of inserting a *330 provision in chapter 154. But those are not the circumstances here. Although chapters 153 and 154 may have begun life independently and in different Houses of Congress,[5] it was only after they had been joined together and introduced as a single bill in the Senate (S. 735) that what is now § 107(c) was added.[6] Both chapters, therefore, had to have been in mind when § 107(c) was added. Nor was there anything in chapter 154 prior to the addition that made the intent to apply it to pending cases less likely than a similar intent to apply chapter 153. If anything, the contrary is true, as the discussion of § 2264(b) will indicate. The insertion of § 107(c) with its different treatments of the two chapters thus illustrates the familiar rule that negative implications raised by disparate provisions are strongest when the portions of a statute treated differently had already been joined together and were being considered simultaneously when the language raising the implication was inserted. See Field v. Mans, 516 U.S. 59, 75 (1995) ("The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects . . ."). When § 107(c) was added, that is, a thoughtful Member of the Congress was most likely to have intended just what the later reader sees by inference. The strength of the implication is not diminished by the one competing explanation suggested, see Brief for Respondent 11-12, which goes as follows. Chapter 154 provides for expedited filing and adjudication of habeas *331 applications in capital cases when a State has met certain conditions. In general terms, applications will be expedited (for a State's benefit) when a State has made adequate provision for counsel to represent indigent habeas applicants at the State's expense. Thus, § 2261(b) provides that "[t]his chapter is applicable if a State establishes . . . a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent prisoners . . . ." 110 Stat. 1221-1222. There is an ambiguity in the provision just quoted, the argument runs, for it applies chapter 154 to capital cases only where "a State establishes . . . a mechanism," leaving a question whether the chapter would apply if a State had already established such a mechanism before chapter 154 was passed. The idea is that the present tense of the word "establishes" might be read to rule out a State that already had "established" a mechanism, suggesting that when § 107(c) was added to provide that the chapter would apply to "cases pending" it was meant to eliminate the ambiguity by showing that all pending cases would be treated alike. This explanation of the significance of § 107(c) is not, however, very plausible. First, one has to strain to find the ambiguity on which the alternative explanation is supposed to rest. Why would a Congress intent on expediting capital habeas cases have wanted to disfavor a State that already had done its part to promote sound resolution of prisoners' petitions in just the way Congress sought to encourage? It would make no sense to leave such States on the slower track, and it seems unlikely that federal courts would so have interpreted § 2261(b). Second, anyone who had seen such ambiguity lurking could have dispatched it in a far simpler and straightforward fashion than enacting § 107(c); all the drafter would have needed to do was to insert three words into § 2261(b), to make it refer to a State that "establishes or has established . . . a mechanism." It simply is not plausible *332 that anyone so sensitive as to find the unlikely ambiguity would be so delphic as to choose § 107(c) to fix it. Indeed, § 107(c) would (on the ambiguity hypothesis) be at least as uncertain as the language it was supposed to clarify, since "cases pending" could be read to refer to cases pending in States that set up their mechanisms only after the effective date of the Act. The hypothesis of fixing ambiguity, then, is too remote to displace the straightforward inference that chapter 153 was not meant to apply to pending cases. Finally, we should speak to the significance of the new § 2264(b), which Lindh cites as confirming his reading of § 107(c) of the Act. While § 2264(b) does not speak to the present issue with flawless clarity, we agree with Lindh that it tends to confirm the interpretation of § 107(c) that we adopt. Section 2264(b) is a part of the new chapter 154 and provides that "[f]ollowing review subject to subsections (a), (d), and (e) of § 2254, the court shall rule on the claims [subject to expedited consideration] before it." 110 Stat. 1223. As we have said before, § 2254 is part of chapter 153 applying to habeas cases generally, including cases under chapter 154. Its subsection (a) existed before the Act, simply providing for a habeas remedy for those held in violation of federal law. Although § 2254 previously had subsections lettered (d) and (e) (dealing with a presumption of correctness to be accorded state-court factual findings and the production of state-court records when evidentiary sufficiency is challenged, respectively) the Act eliminated the old (d) and relettered the old (e) as (f); in place of the old (d), it inserted a new (d) followed by a new (e), the two of them dealing with, among other things, the adequacy of state factual determinations as bearing on a right to federal relief, and the presumption of correctness to be given such state determinations. 110 Stat. 1219. It is to these new provisions (d) and (e), then, that § 2264(b) refers when it provides that chapter 154 determinations shall be made subject to them. *333 Leaving aside the reference to § 2254(a) for a moment, why would Congress have provided specifically in § 2264(b) that chapter 154 determinations shall be made subject to §§ 2254(d) and (e), given the fact that the latter are part of chapter 153 and thus independently apply to habeas generally? One argument is that the answer lies in § 2264(a), which (in expedited capital cases) specially provides an exhaustion requirement (subject to three exceptions), restricting federal habeas claims to those "raised and decided on the merits in the State courts. . . ." 110 Stat. 1223. See 96 F.3d, at 862-863. The argument assumes (and we will assume for the sake of the argument) that in expedited capital cases, this provision of § 2264(a) supersedes the requirements for exhaustion of state remedies imposed as a general matter by §§ 2254(b) and (c).[7] The argument then goes *334 on, that § 2264(b) is explicit in applying §§ 2254(d) and (e) to such capital cases in order to avoid any suggestion that when Congress enacted § 2264(a) to supersede §§ 2254(b) and (c) on exhaustion, Congress also meant to displace the neighboring provisions of §§ 2254(d) and (e) dealing with such things as the status of state factual determinations. But we find this unlikely. First, we find it hard to imagine why anyone would read a superseding exhaustion rule to address the applicability not just of the other exhaustion requirement but of provisions on the effect of state factual determinations. Anyone who did read the special provision for exhaustion in capital cases to supersede not only the general exhaustion provisions but evidentiary status and presumption provisions as well would have had to assume that Congress could reasonably have meant to leave the law on expedited capital cases (which is more favorable to the States that fulfill its conditions) without any presumption of the correctness of relevant state factual determinations. This would not, we think, be a reasonable reading and thus not a reading that Congress would have feared and addressed through § 2264(b). We therefore have to find a different function for the express requirement of § 2264(b) that chapter 154 determinations be made in accordance with §§ 2254(d) and (e). Continuing on the State's assumption that § 2264(a) replaces rather than complements § 2254's exhaustion provisions, we can see that the function of providing that §§ 2254(d) and (e) be applicable in chapter 154 cases is, in fact, *335 supportive of the negative implication apparent in § 107(c). There would have been no need to provide expressly that subsections (d) and (e) would apply with the same temporal reach as the entirely new provisions of chapter 154 if all the new provisions in both chapters 153 and 154 were potentially applicable to cases pending when the Act took effect, as well as to those filed later. If the special provision for applying §§ 2254(d) and (e) in cases under chapter 154 has any utility, then, it must be because subsections (d) and (e) might not apply to all chapter 154 cases; since chapter 154 and the new sections of chapter 153 unquestionably apply alike to cases filed after the Act took effect, the cases to which subsections (d) and (e) from chapter 153 would not apply without express provision must be those cases already pending when the Act took effect. The utility of § 2264(b), therefore, is in providing that when a pending case is also an expedited capital case subject to chapter 154, the new provisions of §§ 2254(d) and (e) will apply to that case. The provision thus confirms that Congress assumed that in the absence of such a provision, §§ 2254(d) and (e) (as new parts of chapter 153) would not apply to pending federal habeas cases. This analysis is itself consistent, in turn, with Congress's failure in § 2264(b) to make any express provision for applying §§ 2254(f), (g), (h), or (i). Subsections (f) and (g) deal with producing state-court evidentiary records and their admissibility as evidence. Congress would obviously have wanted these provisions to apply in chapter 154 pending cases, but because they were old provisions, which had already attached to "pending" capital habeas cases (only their letter designations had been amended), Congress had no need to make any special provision for their application to pending capital habeas cases that might immediately or later turn out to be covered by chapter 154. Subsections (h) and (i), however, are new; if Congress wanted them to apply to chapter 154 cases from the start it would on our hypotheses have had to make the same special provision that § 2264(b) *336 made for subsections (d) and (e). But there are reasons why Congress need not have made any special provisions for subsections (h) and (i) to apply to the "pending" chapter 154 cases. Subsections (h) and (i) deal, respectively, with the appointment of counsel for the indigent in the federal proceeding, and the irrelevance to habeas relief of the adequacy of counsel's performance in previous postconviction proceedings. See 110 Stat. 1219-1220. There was no need to make subsection (h) immediately available to pending cases, capital or not, because 21 U.S. C. § 848(q)(4)(B) already authorized appointment of counsel in such cases. And there was no reason to make subsection (i) immediately available for a State's benefit in expedited capital cases, for chapter 154 already dealt with the matter in § 2261(e), see 110 Stat. 1222. There is, therefore, a good fit of the § 2264(b) references with the inference that amendments to chapter 153 were meant to apply only to subsequently filed cases; where there was a good reason to apply a new chapter 153 provision in the litigation of a chapter 154 case pending when the Act took effect, § 2264(b) made it applicable, and when there was no such reason it did no such thing. There is only one loose end. Section 2254(a) was an old provision, without peculiar relevance to chapter 154 cases, but applicable to them without any need for a special provision; as an old provision it was just like the lettered subsections (f) and (g). Why did § 2264(b) make an express provision for applying it to chapter 154 cases? No answer leaps out at us. All we can say is that in a world of silk purses and pigs' ears, the Act is not a silk purse of the art of statutory drafting. The upshot is that our analysis accords more coherence to §§ 107(c) and 2264(b) than any rival we have examined. That is enough. We hold that the negative implication of § 107(c) is that the new provisions of chapter 153 generally apply only to cases filed after the Act became effective. Because Lindh's case is not one of these, we reverse the *337 judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

The Antiterrorism and Effective Death Penalty Act of signed into law on April 24, enacted the present 28 U.S. C. 2254(d) (1994 ed., Supp. II). The issue in this case is whether that new section of the statute dealing with petitions for habeas corpus governs *323 applications in non capital cases that were already pending when the Act was passed. We hold that it does not. I Wisconsin tried Aaron Lindh on multiple charges of murder and attempted murder. In response to his insanity defense, the State called a psychiatrist who had spoken with Lindh immediately after the killings but had later, and before Lindh's trial, come under criminal investigation by the State for sexual exploitation of some of his patients. Although, at trial, Lindh tried to ask the psychiatrist about that investigation, hoping to suggest the witness's interest in currying favor with the State, the trial court barred the questioning. Lindh was convicted. On direct appeal, Lindh claimed a violation of the Confrontation Clause of the National Constitution, but despite the denial of relief, Lindh sought neither review in this Court nor state collateral review. Instead, on July 9, 1992, he filed a habeas corpus application in the United District Court, in which he again argued his Confrontation Clause claim. When relief was denied in October 1995, Lindh promptly appealed to the Seventh Circuit. Shortly after oral argument there, however, the federal habeas statute was amended, and the Seventh Circuit ordered Lindh's case be reheard en banc to see whether the new statute applied to Lindh and, if so, how his case should be treated. The Court of Appeals held that the Act's amendments to chapter 153 of Title 28 generally did apply to cases pending on the date of enactment. Since the court did not read the statute as itself answering the questions whether or how the newly amended version of 2254(d) would apply to pending applications like Lindh's, at 861-, it turned to this Court's recent decision in held that, where a statute did not clearly mandate an application with retroactive effect, a court had to determine *324 whether applying it as its terms ostensibly indicated would have genuinely retroactive effect; if so, the judicial presumption against retroactivity would bar its application. The Seventh Circuit concluded that applying the new 2254(d) to cases already pending would not have genuinely retroactive effect because it would not attach "new legal consequences" to events preceding enactment, and the court held the statute applicable to Lindh's 96 F.3d, at — 867 (citing ). On the authority of the new statute, the court then denied relief on the -877. The Seventh Circuit's decision that the new version of 2254(d) applies to pending, chapter 153 cases conflicts with the holdings of and In accord with the Seventh Circuit is the 2253(c) case of (relying on Lindh to hold certain amendments to chapter 153 applicable to pending cases). We granted certiorari limited to the question whether the new 2254(d) applies to Lindh's case, and we now reverse. II Before getting to the statute itself, we have to address Wisconsin's argument that whenever a new statute on its face could apply to the litigation of events that occurred before it was enacted, there are only two alternative sources of rules to determine its ultimate temporal reach: either an "express command" from Congress or application of our default rule. In we said: "When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default *325 rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." Wisconsin insists that this language means that, in the absence of an express command regarding temporal reach, this Court must determine that temporal reach for itself by applying its judicial default rule governing retroactivity, to the exclusion of all other standards of statutory interpretation. Brief for Respondent 9-14; see also (suggesting that may have announced a general clear-statement rule regarding the temporal reach of statutes). Wisconsin's reading, however, ignores context. The language quoted disposed of the question whether the practice of applying the law as it stands at the time of decision represented a retreat from the occasionally conflicting position that retroactivity in the application of new statutes is disfavored. The answer given was no, and the presumption against retroactivity was reaffirmed in the traditional rule requiring retroactive application to be supported by a clear statement. thus referred to "express command[s]," "unambiguous directive[s]," and the like where it sought to reaffirm that clear-statement rule, but only there. See ; ; ; ; (agreeing that "a legislative enactment affecting substantive rights does not apply retroactively absent clear statement to the contrary"). In determining whether a statute's terms would produce a retroactive effect, however, and in determining a statute's temporal reach generally, our normal rules of construction apply. Although `s default rule would deny application when a retroactive effect would otherwise result, other construction rules may apply to remove even the possibility of retroactivity (as by rendering the statutory provision wholly inapplicable to a particular case), as Lindh argues the recognition of a negative implication would do here. In sum, if the application of a term would be retroactive as to Lindh, the term will not be applied, even if, in the absence of retroactive effect, we might find the term applicable; if it would be prospective, the particular degree of prospectivity intended in the Act will be identified in the normal course in order to determine whether the term does apply to Lindh. III The statute reveals Congress's intent to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment (except where chapter 154 otherwise makes select provisions of chapter 153 applicable to pending cases). Title I of the Act stands more or less independent of the Act's other titles[1] in providing for the revision of federal habeas practice and does two main things. First, in 101-106, it amends 2244 and 2253-2255 of chapter 153 of Title 28 of the United Code, governing all habeas corpus proceedings in the federal courts.[2] — *327 1221. Then, for habeas proceedings against a State in capital cases, 107 creates an entirely new chapter 154 with special rules favorable to the state party, but applicable only if the State meets certain conditions, including provision for appointment of post conviction counsel in state proceedings.[3] -1226. In 107(c), the Act provides that "Chapter 154 shall apply to cases pending on or after the date of enactment of this Act." We read this provision of 107(c), expressly applying chapter 154 to all cases pending at enactment, as indicating implicitly that the amendments to chapter 153 were assumed and meant to apply to the general run of habeas cases only when those cases had been filed after the date of the Act. The significance of this provision for application to pending cases becomes apparent when one realizes that when chapter 154 is applicable, it will have substantive as well as purely procedural effects. If chapter 154 were merely procedural in a strict sense (say, setting deadlines for filing and disposition, see 28 U.S. C. 2263, 2266 (1994 ed., Supp. II); 1224-1226), the natural expectation would be that it would apply to pending cases. But chapter 154 does more, for in its revisions of prior law to change standards of proof and persuasion in a way favorable to a State, the statute goes beyond "mere" procedure to affect substantive entitlement to relief. See 28 U.S. C. 2264(b) (1994 ed., Supp. II); (incorporating revised legal standard of new 2254(d)). did not speak to the rules for determining the temporal reach of such a statute (having no need to do so). While the statute might not have a true retroactive effect, neither was it clearly "procedural" so as to fall within the *328 Court's express (albeit qualified) approval of applying such statutes to pending cases. Since was the Court's latest word on the subject when the Act was passed, Congress could have taken the opinion's cautious statement about procedural statutes and its silence about the kind of provision exemplified by the new 2254(d) as counseling the wisdom of being explicit if it wanted such a provision to be applied to cases already pending. While the terms of 107(c) may not amount to the clear statement required for a mandate to apply a statute in the disfavored retroactive way,[4] they do serve to make it clear as a general matter that *329 chapter 154 applies to pending cases when its terms fit those cases at the particular procedural points they have reached. (As to that, of course, there may well be difficult issues, and it may be that application of `s default rule will be necessary to settle some of them.) The next point that is significant for our purposes is that everything we have just observed about chapter 154 is true of changes made to chapter 153. As we have already noted, amended 2254(d) (in chapter 153 but applicable to chapter 154 cases) governs standards affecting entitlement to relief. If, then, Congress was reasonably concerned to ensure that chapter 154 be applied to pending cases, it should have been just as concerned about chapter 153, unless it had the different intent that the latter chapter not be applied to the general run of pending cases. Nothing, indeed, but a different intent explains the different treatment. This might not be so if, for example, the two chapters had evolved separately in the congressional process, only to be passed together at the last minute, after chapter 154 had already acquired the mandate to apply it to pending cases. Under those circumstances, there might have been a real possibility that Congress would have intended the same rule of application for each chapter, but in the rough-andtumble no one had thought of being careful about chapter 153, whereas someone else happened to think of inserting a *330 provision in chapter 154. But those are not the circumstances here. Although chapters 153 and 154 may have begun life independently and in different Houses of Congress,[5] it was only after they had been joined together and introduced as a single bill in the Senate (S. 735) that what is now 107(c) was added.[6] Both chapters, therefore, had to have been in mind when 107(c) was added. Nor was there anything in chapter 154 prior to the addition that made the intent to apply it to pending cases less likely than a similar intent to apply chapter 153. If anything, the contrary is true, as the discussion of 2264(b) will indicate. The insertion of 107(c) with its different treatments of the two chapters thus illustrates the familiar rule that negative implications raised by disparate provisions are strongest when the portions of a statute treated differently had already been joined together and were being considered simultaneously when the language raising the implication was inserted. See When 107(c) was added, that is, a thoughtful Member of the Congress was most likely to have intended just what the later reader sees by inference. The strength of the implication is not diminished by the one competing explanation suggested, see Brief for Respondent 11-12, which goes as follows. Chapter 154 provides for expedited filing and adjudication of habeas *331 applications in capital cases when a State has met certain conditions. In general terms, applications will be expedited (for a State's benefit) when a State has made adequate provision for counsel to represent indigent habeas applicants at the State's expense. Thus, 2261(b) provides that "[t]his chapter is applicable if a State establishes a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent prisoners" -1222. There is an ambiguity in the provision just quoted, the argument runs, for it applies chapter 154 to capital cases only where "a State establishes a mechanism," leaving a question whether the chapter would apply if a State had already established such a mechanism before chapter 154 was passed. The idea is that the present tense of the word "establishes" might be read to rule out a State that already had "established" a mechanism, suggesting that when 107(c) was added to provide that the chapter would apply to "cases pending" it was meant to eliminate the ambiguity by showing that all pending cases would be treated alike. This explanation of the significance of 107(c) is not, however, very plausible. First, one has to strain to find the ambiguity on which the alternative explanation is supposed to rest. Why would a Congress intent on expediting capital habeas cases have wanted to disfavor a State that already had done its part to promote sound resolution of prisoners' petitions in just the way Congress sought to encourage? It would make no sense to leave such on the slower track, and it seems unlikely that federal courts would so have interpreted 2261(b). Second, anyone who had seen such ambiguity lurking could have dispatched it in a far simpler and straightforward fashion than enacting 107(c); all the drafter would have needed to do was to insert three words into 2261(b), to make it refer to a State that "establishes or has established a mechanism." It simply is not plausible *332 that anyone so sensitive as to find the unlikely ambiguity would be so delphic as to choose 107(c) to fix it. Indeed, 107(c) would (on the ambiguity hypothesis) be at least as uncertain as the language it was supposed to clarify, since "cases pending" could be read to refer to cases pending in that set up their mechanisms only after the effective date of the Act. The hypothesis of fixing ambiguity, then, is too remote to displace the straightforward inference that chapter 153 was not meant to apply to pending cases. Finally, we should speak to the significance of the new 2264(b), which Lindh cites as confirming his reading of 107(c) of the Act. While 2264(b) does not speak to the present issue with flawless clarity, we agree with Lindh that it tends to confirm the interpretation of 107(c) that we adopt. Section 2264(b) is a part of the new chapter 154 and provides that "[f]ollowing review subject to subsections (a), (d), and (e) of 2254, the court shall rule on the claims [subject to expedited consideration] before it." As we have said before, 2254 is part of chapter 153 applying to habeas cases generally, including cases under chapter 154. Its subsection (a) existed before the Act, simply providing for a habeas remedy for those held in violation of federal law. Although 2254 previously had subsections lettered (d) and (e) (dealing with a presumption of correctness to be accorded state-court factual findings and the production of state-court records when evidentiary sufficiency is challenged, respectively) the Act eliminated the old (d) and relettered the old (e) as (f); in place of the old (d), it inserted a new (d) followed by a new (e), the two of them dealing with, among other things, the adequacy of state factual determinations as bearing on a right to federal relief, and the presumption of correctness to be given such state determinations. It is to these new provisions (d) and (e), then, that 2264(b) refers when it provides that chapter 154 determinations shall be made subject to them. *333 Leaving aside the reference to 2254(a) for a moment, why would Congress have provided specifically in 2264(b) that chapter 154 determinations shall be made subject to 2254(d) and (e), given the fact that the latter are part of chapter 153 and thus independently apply to habeas generally? One argument is that the answer lies in 2264(a), which (in expedited capital cases) specially provides an exhaustion requirement (subject to three exceptions), restricting federal habeas claims to those "raised and decided on the merits in the State courts." See -. The argument assumes (and we will assume for the sake of the argument) that in expedited capital cases, this provision of 2264(a) supersedes the requirements for exhaustion of state remedies imposed as a general matter by 2254(b) and (c).[7] The argument then goes *334 on, that 2264(b) is explicit in applying 2254(d) and (e) to such capital cases in order to avoid any suggestion that when Congress enacted 2264(a) to supersede 2254(b) and (c) on exhaustion, Congress also meant to displace the neighboring provisions of 2254(d) and (e) dealing with such things as the status of state factual determinations. But we find this unlikely. First, we find it hard to imagine why anyone would read a superseding exhaustion rule to address the applicability not just of the other exhaustion requirement but of provisions on the effect of state factual determinations. Anyone who did read the special provision for exhaustion in capital cases to supersede not only the general exhaustion provisions but evidentiary status and presumption provisions as well would have had to assume that Congress could reasonably have meant to leave the law on expedited capital cases (which is more favorable to the that fulfill its conditions) without any presumption of the correctness of relevant state factual determinations. This would not, we think, be a reasonable reading and thus not a reading that Congress would have feared and addressed through 2264(b). We therefore have to find a different function for the express requirement of 2264(b) that chapter 154 determinations be made in accordance with 2254(d) and (e). Continuing on the State's assumption that 2264(a) replaces rather than complements 2254's exhaustion provisions, we can see that the function of providing that 2254(d) and (e) be applicable in chapter 154 cases is, in fact, *335 supportive of the negative implication apparent in 107(c). There would have been no need to provide expressly that subsections (d) and (e) would apply with the same temporal reach as the entirely new provisions of chapter 154 if all the new provisions in both chapters 153 and 154 were potentially applicable to cases pending when the Act took effect, as well as to those filed later. If the special provision for applying 2254(d) and (e) in cases under chapter 154 has any utility, then, it must be because subsections (d) and (e) might not apply to all chapter 154 cases; since chapter 154 and the new sections of chapter 153 unquestionably apply alike to cases filed after the Act took effect, the cases to which subsections (d) and (e) from chapter 153 would not apply without express provision must be those cases already pending when the Act took effect. The utility of 2264(b), therefore, is in providing that when a pending case is also an expedited capital case subject to chapter 154, the new provisions of 2254(d) and (e) will apply to that The provision thus confirms that Congress assumed that in the absence of such a provision, 2254(d) and (e) (as new parts of chapter 153) would not apply to pending federal habeas cases. This analysis is itself consistent, in turn, with Congress's failure in 2264(b) to make any express provision for applying 2254(f), (g), (h), or (i). Subsections (f) and (g) deal with producing state-court evidentiary records and their admissibility as evidence. Congress would obviously have wanted these provisions to apply in chapter 154 pending cases, but because they were old provisions, which had already attached to "pending" capital habeas cases (only their letter designations had been amended), Congress had no need to make any special provision for their application to pending capital habeas cases that might immediately or later turn out to be covered by chapter 154. Subsections (h) and (i), however, are new; if Congress wanted them to apply to chapter 154 cases from the start it would on our hypotheses have had to make the same special provision that 2264(b) *336 made for subsections (d) and (e). But there are reasons why Congress need not have made any special provisions for subsections (h) and (i) to apply to the "pending" chapter 154 cases. Subsections (h) and (i) deal, respectively, with the appointment of counsel for the indigent in the federal proceeding, and the irrelevance to habeas relief of the adequacy of counsel's performance in previous postconviction proceedings. See -1220. There was no need to make subsection (h) immediately available to pending cases, capital or not, because 21 U.S. C. 848(q)(4)(B) already authorized appointment of counsel in such cases. And there was no reason to make subsection (i) immediately available for a State's benefit in expedited capital cases, for chapter 154 already dealt with the matter in 2261(e), see There is, therefore, a good fit of the 2264(b) references with the inference that amendments to chapter 153 were meant to apply only to subsequently filed cases; where there was a good reason to apply a new chapter 153 provision in the litigation of a chapter 154 case pending when the Act took effect, 2264(b) made it applicable, and when there was no such reason it did no such thing. There is only one loose end. Section 2254(a) was an old provision, without peculiar relevance to chapter 154 cases, but applicable to them without any need for a special provision; as an old provision it was just like the lettered subsections (f) and (g). Why did 2264(b) make an express provision for applying it to chapter 154 cases? No answer leaps out at us. All we can say is that in a world of silk purses and pigs' ears, the Act is not a silk purse of the art of statutory drafting. The upshot is that our analysis accords more coherence to 107(c) and 2264(b) than any rival we have examined. That is enough. We hold that the negative implication of 107(c) is that the new provisions of chapter 153 generally apply only to cases filed after the Act became effective. Because Lindh's case is not one of these, we reverse the *337 judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

Justice Rehnquist

dissenting

Lindh v. Murphy

1997-06-23

https://www.courtlistener.com/opinion/118135/lindh-v-murphy/

https://www.courtlistener.com/api/rest/v3/clusters/118135/

1996-082

The Court in this case conducts a truncated inquiry into a question of congressional intent, and, I believe, reaches the wrong result. The Court begins, uncontroversially enough, by observing that application of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to pending cases depends upon congressional intent, and that our inquiry into that intent should rely upon the "normal rules" of statutory construction. Ante, at 326. The Court then proceeds, however, to disregard all of our retroactivity case law—which it rather oddly disparages as manifestations of "Landgraf `s default rule," ibid. —in favor of a permissible, but by no means controlling, negative inference that it draws from the statutory text. I would instead interpret the AEDPA in light of the whole of our long standing retroactivity jurisprudence, and accordingly find that the amended 28 U.S. C. § 2254(d) (1994 ed., Supp. II) applies to pending cases. The first question we must ask is whether Congress has expressly resolved whether the provision in question applies to pending cases. Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). Here, the answer is plainly no. The AEDPA does not clearly state, one way or the other, whether chapter 153 applies to pending cases. Given congressional silence, we must still interpret that statute, and that interpretation is in turn guided by the retroactivity principles we have developed over the years. The Court relies on one canon of statutory interpretation, expressio unius est exclusio alterius, to the exclusion of all others. The Court's opinion rests almost entirely on the negative inference that can be drawn from the fact that Congress expressly made chapter 154, pertaining to capital cases, applicable *338 to pending cases, but did not make the same express provision in regards to chapter 153. That inference, however, is by no means necessary, nor is it even clearly the best inference possible. Certainly, Congress might have intended that omission to signal its intent that chapter 153 not apply to pending cases. But there are other, equally plausible, alternatives. First, because chapter 154's applicability is conditioned upon antecedent events—namely, a State's establishing qualifying capital habeas representation procedures—Congress could have perceived a greater likelihood that, absent express provision otherwise, courts would fail to apply that chapter's provisions to pending capital cases. Second, because of the characteristically extended pendency of collateral attacks on capital convictions,[1] and because of Congress' concern with the perceived acquiescence in capital defendants' dilatory tactics by some federal courts (as evidenced by chapter 154's strict time limits for adjudication of capital cases and, indeed, by the very title of the statute, the "Antiterrorism and Effective Death Penalty Act of 1996"), Congress could very well have desired to speak with exacting clarity as to the applicability of the AEDPA to pending capital cases. Or third, Congress, while intending the AEDPA definitely to apply to pending capital cases, could have been uncertain or in disagreement as to which of the many portions of chapter 153 should or should not apply to pending cases. Congress could simply have assumed that the courts would sort out such questions, using our ordinary retroactivity presumptions. None of these competing inferences is clearly superior to the others. The Court rejects the first, ante, at 330-332, as an "implausible" solution to an "unlikely" ambiguity. But *339 the solution is not nearly as implausible as the Court's contention that, in order to show that it wished chapter 153 not to apply to pending cases, Congress chose to make chapter 154 expressly applicable to such cases. If Congress wanted to make chapter 153 inapplicable to pending cases, the simplest way to do so would be to say so. But, if Congress was instead concerned that courts would interpret chapter 154, because of its contingent nature, as not applying to pending cases, the most direct way to solve that concern would be the solution it adopted: expressly stating that chapter 154 did indeed apply to pending cases. The Court finds additional support for its inference in the new 28 U.S. C. § 2264(b) (1994 ed., Supp. II), which it believes "tends to confirm," ante, at 332, its analysis. Section 2264 is part of chapter 154 and forbids (subject to narrow exceptions) federal district courts to consider claims raised by state capital defendants unless those claims were first raised and decided on the merits in state court. Section 2264(b) provides, "[f]ollowing review subject to subsections (a), (d), and (e) of section 2254 [contained within chapter 153], the court shall rule on the claims properly before it." This section, I believe, is irrelevant to the question before us. The Court's somewhat tortured interpretation of this section, as a backhanded way of making §§ 2254(a), (d), and (e) (but not the rest of chapter 153) apply to pending cases, is not convincing. For one thing, § 2264(b) is not phrased at all as a timing provision; rather than containing temporal language applying select sections to pending cases, § 2264(b) speaks in present tense, about how review should be conducted under chapter 154. Even more tellingly, as the Court implicitly concedes when it blandly describes this provision as a "loose end," ante, at 336, the AEDPA did not alter § 2254(a), and so there is no need for an express provision making it applicable to pending cases. Chapter 154 establishes special procedures for capital prisoners. Section 2264(b), by its terms, makes clear that *340 §§ 2254(a), (d), and (e) apply to chapter 154 proceedings. That clarification makes sense in light of § 2264(a), which replaces the exhaustion requirement of §§ 2254(b) and (c) with a requirement that federal courts consider (subject to narrow exceptions) only those claims "raised and decided on the merits in the State courts." Without that clarification, doubt might exist as to whether the rest of § 2254 still applied in capital proceedings. Petitioner protests that to read § 2264(a) as supplanting §§ 2254(b) and (c) would produce "outlandish" results, Brief for Petitioner 26, a conclusion that the Court finds plausible, ante, at 333-334, and n. 7 (although it ultimately assumes otherwise). The result would have to be "outlandish," indeed, before a court should refuse to apply the language chosen by Congress, but no such result would obtain here. Petitioner and the Court both fail to appreciate the different litigating incentives facing capital and non capital defendants. Non capital defendants, serving criminal sentences in prison, file habeas petitions seeking to be released, presumably as soon as possible. They have no incentive to delay. In such circumstances, §§ 2254(b) and (c) quite reasonably require that their habeas claims be filed first in state courts, so that the state judicial apparatus may have the first opportunity to address those claims. In contrast, capital defendants, facing impending execution, seek to avoid being executed. Their incentive, therefore, is to utilize every means possible to delay the carrying out of their sentence. It is, therefore, not at all "outlandish" for Congress to have concluded that in such circumstances §§ 2254(b) and (c) exhaustion would needlessly prolong capital proceedings and that § 2264(a)'s requirement that a claim have been raised and decided on the merits in state court was a sufficient protection of States' interests in exhaustion.[2] *341 At this point the Court's analysis stops. Based on the weak inference from Congress' designation of chapter 154 as applying to pending cases and a strained reading of § 2264, the Court concludes that Congress impliedly intended for chapter 153 not to apply to pending cases. I would go on, and apply our ordinary retroactivity principles, as Congress no doubt assumed that we would. First, we have generally applied new procedural rules to pending cases. Landgraf, 511 U. S., at 275; see also Beazell v. Ohio, 269 U.S. 167, 170-171 (1925); Ex parte Collett, 337 U.S. 55, 71 (1949); Dobbert v. Florida, 432 U.S. 282, 293-294 (1977); Collins v. Youngblood, 497 U.S. 37, 45 (1990). This is because "rules of procedure regulate secondary rather than primary conduct." Landgraf, supra, at 275. Here, the primary conduct occurred when Lindh murdered two people in the sheriff's office of the City-County Building in Madison, Wisconsin. Obviously, the AEDPA in no way purports to regulate that past conduct. Lindh's state-court proceedings constituted secondary conduct. Under our retroactivity *342 precedents, were his state proceedings in federal court, we would have then applied existing procedural law, even though Lindh's primary conduct occurred some time earlier. The federal habeas proceeding at issue here is, in a sense, tertiary conduct. It is not the actual criminal conduct prohibited by law, nor is it the proceeding to determine whether the defendant in fact committed such conduct. Rather, it is a collateral proceeding that, in effect, attacks the judgment of the prior state proceeding. Section 2254(d), the precise section at issue here, simply alters the standard under which that prior judgment is evaluated, and is in that sense entirely procedural. Cf. Horning v. District of Columbia, 254 U.S. 135, 139 (1920) (applying newly enacted harmlesserror statute, which changed the standard under which prior judgments were evaluated, to pending case). Second, we have usually applied changes in law to prospective forms of relief. Landgraf, supra, at 273; see also Duplex Printing Press Co. v. Deering, 254 U.S. 443, 464 (1921); American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 201 (1921); Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam); Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 852 (1990) (Scalia, J., concurring). Unlike damages actions, which are "quintessentially backward looking," Landgraf, supra, at 282, the writ of habeas corpus is prospective in nature. Habeas does not compensate for past wrongful incarceration, nor does it punish the State for imposing it. See Lane v. Williams, 455 U.S. 624, 631 (1982). Instead, habeas is a challenge to unlawful custody, and when the writ issues it prevents further illegal custody. See Preiser v. Rodriguez, 411 U.S. 475, 489, 494 (1973). Finally, we have regularly applied statutes ousting jurisdiction to pending litigation.[3]Landgraf, supra, at 274; see *343 also Bruner v. United States, 343 U.S. 112, 116-117, and n. 8 (1952) ("Congress has not altered the nature or validity of petitioner's rights or the Government's liability but has simply reduced the number of tribunals authorized to hear and determine such rights and liabilities"); Hallowell v. Commons, 239 U.S. 506, 508 (1916); Sherman v. Grinnell, 123 U.S. 679, 680 (1887); Assessors v. Osbornes, 9 Wall. 567, 575 (1870); Ex parte McCardle, 7 Wall. 506, 514 (1869); Insurance Co. v. Ritchie, 5 Wall. 541, 544-545 (1867). This is because such statutes "`speak to the power of the court rather than to the rights or obligations of the parties.' " Landgraf, supra, at 274 (quoting Republic Nat. Bank of Miami v. United States, 506 U.S. 80, 100 (1992) (Thomas, J., concurring)); see also 511 U.S., at 293 (Scalia, J., concurring in judgment) ("Our jurisdiction cases are explained, I think, by the fact that the purpose of provisions conferring or eliminating jurisdiction is to permit or forbid the exercise of judicial power—so that the relevant event for retroactivity purposes is the moment at which that power is sought to be exercised"). This is the principle most relevant to the case at hand. There is a good argument that § 2254(d) is itself jurisdictional. See Brown v. Allen, 344 U.S. 443, 460 (1953) ("Jurisdiction over applications for federal habeas corpus is controlled by statute"); Sumner v. Mata, 449 U.S. 539, 547, n. 2 (1981) ("The present codification of the federal habeas statute is the successor to `the first congressional grant of jurisdiction to the federal courts,' and the 1966 amendments embodied in § 2254(d) [now codified, as amended by the AEDPA, at § 2254(e)] were intended by Congress as limitations on the exercise of that jurisdiction" (quoting Preiser v. Rodriguez, supra, at 485)); cf. Arkansas v. Farm Credit Servs. of Central Ark., 520 U.S. 821, 826 (1997) (explaining that the Tax Injunction Act—which has operative language similar to *344 § 2254(d) ("The district courts shall not enjoin . . .")—is "first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes" (internal quotation marks omitted)). But even if it is not jurisdictional, it shares the most salient characteristic of jurisdictional statutes: Its commands are addressed to courts rather than to individuals. Section 2254(d) does not address criminal defendants, or even state prosecutors; it prescribes or proscribes no private conduct. Instead, it is addressed directly to federal courts, providing, "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted . . . unless . . . ." (Emphasis added.) Whether the approach is framed in terms of "retroactive effect," as the Landgraf majority put it, 511 U.S., at 280, or in terms of "the relevant activity that the rule regulates," as Justice Scalia's concurrence put it, see id., at 291 (opinion concurring in judgment), our longstanding practice of applying procedural, prospective, and jurisdiction-ousting statutes to pending cases must play an important part in the decision. These principles all favor application of § 2254(d) to pending cases. It is a procedural statute, regulating prospective relief, and addressed directly to federal courts and removing their power to give such relief in specified circumstances. Our cases therefore strongly suggest that, absent congressional direction otherwise, we should apply § 2254(d) to pending cases. This is not because of any peculiar characteristic intrinsic to the writ of habeas corpus, but rather because modifications to federal courts' authority to issue the writ are necessarily of that stripe—procedural, prospective, and addressed to courts. It is therefore not surprising that the parties have not pointed us to a single case where we have found a modification in the scope of habeas corpus relief inapplicable to pending cases. To the contrary, respondent and *345 amici have pointed instead to the uniform body of our cases applying such changes to all pending cases. This has been true both of statutory changes in the scope of the writ, see, e. g., Gusik v. Schilder, 340 U.S. 128, 131-133, and n. 4 (1950) (applying 1948 habeas amendments to pending claims); Smith v. Yeager, 393 U.S. 122, 124-125 (1968) (per curiam) (applying 1966 habeas amendments to pending claims); Carafas v. LaVallee, 391 U.S. 234, 239 (1968) (same); Felker v. Turpin, 518 U.S. 651 (1996) (applying different section of the AEDPA to pending case), and of judicial changes, see, e. g., Stone v. Powell, 428 U.S. 465, 495, n. 38 (1976) (rejecting petitioner's contention that change in law should apply prospectively); Sumner v. Mata, supra, at 539, 549-551 (applying presumption of correctness of state-court findings of fact to pending case); Wainwright v. Sykes, 433 U.S. 72 (1977) (applying the cause and prejudice doctrine to pending case); Brecht v. Abrahamson, 507 U.S. 619, 638-639 (1993) (applying actual prejudice standard to pending case). Because the Court's inquiry is incomplete, I believe it has reached the wrong result in this case. I would affirm the judgment of the Court of Appeals.

The Court in this case conducts a truncated inquiry into a question of congressional intent, and, I believe, reaches the wrong result. The Court begins, uncontroversially enough, by observing that application of the Anterrorism and Effective Death Penalty Act of 1996 (AEDPA) to pending cases depends upon congressional intent, and that our inquiry into that intent should rely upon the "normal rules" of statutory construction. Ante, at 326. The Court then proceeds, however, to disregard all of our retroactivy case law—which rather oddly disparages as manifestations of " `s default rule," —in favor of a permissible, but by no means controlling, negative inference that draws from the statutory text. I would instead interpret the AEDPA in light of the whole of our long standing retroactivy jurisprudence, and accordingly find that the amended 28 U.S. C. 2254(d) (1994 ed., Supp. II) applies to pending cases. The first question we must ask is whether Congress has expressly resolved whether the provision in question applies to pending cases. Here, the answer is plainly no. The AEDPA does not clearly state, one way or the other, whether chapter 153 applies to pending cases. Given congressional silence, we must still interpret that statute, and that interpretation is in turn guided by the retroactivy principles we have developed over the years. The Court relies on one canon of statutory interpretation, expressio unius est exclusio alterius, to the exclusion of all others. The Court's opinion rests almost entirely on the negative inference that can be drawn from the fact that Congress expressly made chapter 154, pertaining to capal cases, applicable *338 to pending cases, but did not make the same express provision in regards to chapter 153. That inference, however, is by no means necessary, nor is even clearly the best inference possible. Certainly, Congress might have intended that omission to signal s intent that chapter 153 not apply to pending cases. But there are other, equally plausible, alternatives. First, because chapter 154's applicabily is condioned upon antecedent events—namely, a State's establishing qualifying capal habeas representation procedures—Congress could have perceived a greater likelihood that, absent express provision otherwise, courts would fail to apply that chapter's provisions to pending capal cases. Second, because of the characteristically extended pendency of collateral attacks on capal convictions,[1] and because of Congress' concern wh the perceived acquiescence in capal defendants' dilatory tactics by some federal courts (as evidenced by chapter 154's strict time lims for adjudication of capal cases and, indeed, by the very tle of the statute, the "Anterrorism and Effective Death Penalty Act of 1996"), Congress could very well have desired to speak wh exacting clary as to the applicabily of the AEDPA to pending capal cases. Or third, Congress, while intending the AEDPA definely to apply to pending capal cases, could have been uncertain or in disagreement as to which of the many portions of chapter 153 should or should not apply to pending cases. Congress could simply have assumed that the courts would sort out such questions, using our ordinary retroactivy presumptions. None of these competing inferences is clearly superior to the others. The Court rejects the first, ante, at 330-332, as an "implausible" solution to an "unlikely" ambiguy. But *339 the solution is not nearly as implausible as the Court's contention that, in order to show that wished chapter 153 not to apply to pending cases, Congress chose to make chapter 154 expressly applicable to such cases. If Congress wanted to make chapter 153 inapplicable to pending cases, the simplest way to do so would be to say so. But, if Congress was instead concerned that courts would interpret chapter 154, because of s contingent nature, as not applying to pending cases, the most direct way to solve that concern would be the solution adopted: expressly stating that chapter 154 did indeed apply to pending cases. The Court finds addional support for s inference in the new 28 U.S. C. 2264(b) (1994 ed., Supp. II), which believes "tends to confirm," ante, at 332, s analysis. Section 2264 is part of chapter 154 and forbids (subject to narrow exceptions) federal district courts to consider claims raised by state capal defendants unless those claims were first raised and decided on the mers in state court. Section 2264(b) provides, "[f]ollowing review subject to subsections (a), (d), and (e) of section 2254 [contained whin chapter 153], the court shall rule on the claims properly before" This section, I believe, is irrelevant to the question before us. The Court's somewhat tortured interpretation of this section, as a backhanded way of making 2254(a), (d), and (e) (but not the rest of chapter 153) apply to pending cases, is not convincing. For one thing, 2264(b) is not phrased at all as a timing provision; rather than containing temporal language applying select sections to pending cases, 2264(b) speaks in present tense, about how review should be conducted under chapter 154. Even more tellingly, as the Court implicly concedes when blandly describes this provision as a "loose end," ante, at 336, the AEDPA did not alter 2254(a), and so there is no need for an express provision making applicable to pending cases. Chapter 154 establishes special procedures for capal prisoners. Section 2264(b), by s terms, makes clear that *340 2254(a), (d), and (e) apply to chapter 154 proceedings. That clarification makes sense in light of 2264(a), which replaces the exhaustion requirement of 2254(b) and (c) wh a requirement that federal courts consider (subject to narrow exceptions) only those claims "raised and decided on the mers in the State courts." Whout that clarification, doubt might exist as to whether the rest of 2254 still applied in capal proceedings. Petioner protests that to read 2264(a) as supplanting 2254(b) and (c) would produce "outlandish" results, Brief for Petioner 26, a conclusion that the Court finds plausible, ante, at 333-334, and n. 7 (although ultimately assumes otherwise). The result would have to be "outlandish," indeed, before a court should refuse to apply the language chosen by Congress, but no such result would obtain here. Petioner and the Court both fail to appreciate the different ligating incentives facing capal and non capal defendants. Non capal defendants, serving criminal sentences in prison, file habeas petions seeking to be released, presumably as soon as possible. They have no incentive to delay. In such circumstances, 2254(b) and (c) que reasonably require that their habeas claims be filed first in state courts, so that the state judicial apparatus may have the first opportuny to address those claims. In contrast, capal defendants, facing impending execution, seek to avoid being executed. Their incentive, therefore, is to utilize every means possible to delay the carrying out of their sentence. It is, therefore, not at all "outlandish" for Congress to have concluded that in such circumstances 2254(b) and (c) exhaustion would needlessly prolong capal proceedings and that 2264(a)'s requirement that a claim have been raised and decided on the mers in state court was a sufficient protection of States' interests in exhaustion.[2] *341 At this point the Court's analysis stops. Based on the weak inference from Congress' designation of chapter 154 as applying to pending cases and a strained reading of 2264, the Court concludes that Congress impliedly intended for chapter 153 not to apply to pending cases. I would go on, and apply our ordinary retroactivy principles, as Congress no doubt assumed that we would. First, we have generally applied new procedural rules to pending cases. ; see ; Ex parte Collett, ; ; This is because "rules of procedure regulate secondary rather than primary conduct." Here, the primary conduct occurred when Lindh murdered two people in the sheriff's office of the Cy-County Building in Madison, Wisconsin. Obviously, the AEDPA in no way purports to regulate that past conduct. Lindh's state-court proceedings constuted secondary conduct. Under our retroactivy *342 precedents, were his state proceedings in federal court, we would have then applied existing procedural law, even though Lindh's primary conduct occurred some time earlier. The federal habeas proceeding at issue here is, in a sense, tertiary conduct. It is not the actual criminal conduct prohibed by law, nor is the proceeding to determine whether the defendant in fact commted such conduct. Rather, is a collateral proceeding that, in effect, attacks the judgment of the prior state proceeding. Section 2254(d), the precise section at issue here, simply alters the standard under which that prior judgment is evaluated, and is in that sense entirely procedural. Cf. Second, we have usually applied changes in law to prospective forms of relief. ; see Duplex Printing Press ; American Steel ; 396 U.S. ; Kaiser Aluminum & Chemical Unlike damages actions, which are "quintessentially backward looking," the wr of habeas corpus is prospective in nature. Habeas does not compensate for past wrongful incarceration, nor does punish the State for imposing See 5 U.S. 624, Instead, habeas is a challenge to unlawful custody, and when the wr issues prevents further illegal custody. See 9, 494 Finally, we have regularly applied statutes ousting jurisdiction to pending ligation.[3], ; see *343 ; ; ; ; Ex parte McCardle, ; Insurance 544-5 This is because such statutes "`speak to the power of the court rather than to the rights or obligations of the parties.' " ); see ("Our jurisdiction cases are explained, I think, by the fact that the purpose of provisions conferring or eliminating jurisdiction is to perm or forbid the exercise of judicial power—so that the relevant event for retroactivy purposes is the moment at which that power is sought to be exercised"). This is the principle most relevant to the case at hand. There is a good argument that 2254(d) is self jurisdictional. See ; ("The present codification of the federal habeas statute is the successor to `the first congressional grant of jurisdiction to the federal courts,' and the 1966 amendments embodied in 2254(d) [now codified, as amended by the AEDPA, at 2254(e)] were intended by Congress as limations on the exercise of that jurisdiction" (quoting at 5)); cf. (explaining that the Tax Injunction Act—which has operative language similar to *344 2254(d) ("The district courts shall not enjoin")—is "first and foremost a vehicle to lim drastically federal district court jurisdiction to interfere wh so important a local concern as the collection of taxes" (internal quotation marks omted)). But even if is not jurisdictional, shares the most salient characteristic of jurisdictional statutes: Its commands are addressed to courts rather than to individuals. Section 2254(d) does not address criminal defendants, or even state prosecutors; prescribes or proscribes no private conduct. Instead, is addressed directly to federal courts, providing, "[a]n application for a wr of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless" (Emphasis added.) Whether the approach is framed in terms of "retroactive effect," as the majory put 511 U.S., at or in terms of "the relevant activy that the rule regulates," as Justice Scalia's concurrence put see our longstanding practice of applying procedural, prospective, and jurisdiction-ousting statutes to pending cases must play an important part in the decision. These principles all favor application of 2254(d) to pending cases. It is a procedural statute, regulating prospective relief, and addressed directly to federal courts and removing their power to give such relief in specified circumstances. Our cases therefore strongly suggest that, absent congressional direction otherwise, we should apply 2254(d) to pending cases. This is not because of any peculiar characteristic intrinsic to the wr of habeas corpus, but rather because modifications to federal courts' authory to issue the wr are necessarily of that stripe—procedural, prospective, and addressed to courts. It is therefore not surprising that the parties have not pointed us to a single case where we have found a modification in the scope of habeas corpus relief inapplicable to pending cases. To the contrary, respondent and *3 amici have pointed instead to the uniform body of our cases applying such changes to all pending cases. This has been true both of statutory changes in the scope of the wr, see, e. g., (applying 19 habeas amendments to pending claims); Smh v. Yeager, (applying 1966 habeas amendments to pending claims); ; and of judicial changes, see, e. g., (rejecting petioner's contention that change in law should apply prospectively); ; ; Because the Court's inquiry is incomplete, I believe has reached the wrong result in this case. I would affirm the judgment of the Court of Appeals.

Justice Kennedy

majority

Postal Service v. Flamingo Industries (USA) Ltd.

2004-02-25

https://www.courtlistener.com/opinion/131167/postal-service-v-flamingo-industries-usa-ltd/

https://www.courtlistener.com/api/rest/v3/clusters/131167/

2003-036

This case requires us to consider whether the United States Postal Service is subject to liability under the federal antitrust laws. Flamingo Industries (USA) Ltd., a private corporation, and its owner and principal officer are the respondents here. Flamingo had been making mail sacks for the Postal Service, but then its contract was terminated. The respondents sued in United States District Court alleging that the Postal Service had sought to suppress competition and create a monopoly in mail sack production. (They also brought claims against the Postal Service under federal procurement law and state law, but those claims are not before us.) The District *739 Court dismissed the antitrust claims, concluding that the Postal Service is not subject to liability under federal antitrust law. The Court of Appeals reversed. It held that the Postal Service can be liable but that it has a limited immunity from antitrust liability for conduct undertaken at the command of Congress. 302 F.3d 985, 993 (CA9 2002). We granted certiorari to consider the question whether the United States Postal Service is a "person" amenable to suit under the controlling antitrust statute. 538 U.S. 1056 (2003). We hold it is not subject to antitrust liability, and we reverse. After the Revolution, both the Articles of Confederation and the Constitution explicitly empowered the National Government to provide and regulate postal services. Article of Confederation IX; U. S. Const., Art. I, § 8. The importance of the enterprise was prefigured by the Continental Congress' appointment of Benjamin Franklin to be the first Postmaster General, on July 26, 1775. G. Cullinan, The United States Postal Service 26 (1973) (hereinafter Cullinan). From those beginnings, the Postal Service has become "the nation's oldest and largest public business." J. Tierney, Postal Reorganization: Managing the Public's Business vii (1981) (hereinafter Tierney). During its history since Postmaster Franklin, the postal organization has been reorganized or restructured at various times. In the immediate period after ratification of the Constitution, it was called the General Post Office and was subordinate to the Treasury Department. Cullinan 35-36. In 1825, its name changed from the General Post Office to the Post Office Department, an alteration accomplished by somewhat informal means when Postmaster Joseph McLean simply changed the title on official letterhead. McLean also began the practice of reporting directly to the President rather than to the Secretary of the Treasury. Id., at 50-51. (McLean was a popular Postmaster who served from 1823 until 1829, when the incoming President Andrew Jackson *740 solved his worries about McLean's independence in matters of postal governance, especially patronage, by appointing him to this Court. Id., at 52.) In 1829, President Jackson acknowledged the enhanced status of the Postmaster General by making him a member of the Cabinet, though it was not until 1872 that Congress formally recognized the Post Office Department as an executive department of the Federal Government. Id., at 36. A more complete account of the origins and mission of the postal system is set forth in Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 120-126 (1981). Major change came with the Postal Reorganization Act of 1970 (PRA), 39 U.S. C. § 101 et seq. It was adopted to increase the efficiency of the Postal Service and reduce political influences on its operations. Tierney 1-26; Cullinan 5-10. The PRA renames the Post Office Department the United States Postal Service and removes it from the Cabinet to make it "an independent establishment of the executive branch of the Government of the United States." 39 U.S. C. § 201. Superintendence over the new Postal Service is the responsibility of a Board of Governors, consisting of 11 members. § 202. Nine governors are appointed by the President with the advice and consent of the Senate and are removable only for cause. Ibid. The other two governors are the Postmaster General, who also serves as the chief executive officer of the Postal Service, and who is appointed by the other nine, and the Deputy Postmaster General, who is appointed by the other nine together with the Postmaster General. Ibid. The PRA creates a second independent establishment, the Postal Rate Commission, to make recommendations on postal rate changes. § 3601. The Commission advises the Board of Governors on rates for all postal services, including both letter carriage and parcel delivery. § 3621. Rates are set by the Board of Governors based on the recommendations of the Commission, and those decisions are in certain *741 circumstances subject to judicial review. §§ 3625, 3628. In making rate recommendations the Commission must consider factors including making each class of mail bear the costs attributable to it, and the effect of rate increases on the mail-using public and on competitors in the parcel delivery business. § 3622(b). Under the PRA, the Postal Service retains its monopoly over the carriage of letters, and the power to authorize postal inspectors to search for, seize, and forfeit mail matter transported in violation of the monopoly. See §§ 601-606. It also retains the obligation to provide universal service to all parts of the country. §§ 101, 403. The Postal Service has the power of eminent domain, the power to make postal regulations, and the power to enter international postal agreements subject to the supervision of the Secretary of State. §§ 401, 407. It has, in addition, powers to contract, to acquire property, and to settle claims. § 401. As this brief summary indicates, the Postal Service has significant governmental powers, consistent with its status as an independent establishment of the Executive Branch. It was exempted from many, though not all, statutes governing federal agencies, and specifically subjected to some others. §§ 409-410. With respect to antitrust liability, however, the PRA neither exempts the Postal Service nor subjects it to liability by express mention. It is silent on the point. The PRA waives the immunity of the Postal Service from suit by giving it the power "to sue and be sued in its official name." § 401. The first question we address is whether that waiver suffices by its own terms to subject the Postal Service to liability under the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U.S. C. § 1 et seq. We begin with a discussion of our precedents bearing on the inquiry. This Court has held that when Congress passes enabling legislation allowing an agency or other entity of the Federal Government to be sued the waiver should be given a liberal — that is to say, expansive — construction. Federal *742 Housing Administration v. Burr, 309 U.S. 242 (1940). In support of its holding in Burr the Court, in a passage often cited in later cases involving the waiver of sovereign immunity, wrote as follows: "[I]t must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be." Id., at 245. This general proposition was cited in the first two cases in which the Court considered the extent of the waiver effected by the sue-and-be-sued clause of the PRA. In Franchise Tax Bd. of Cal. v. Postal Service, 467 U.S. 512 (1984), the underlying dispute concerned the obligation of the Postal Service to withhold unpaid state taxes from the wages of its employees. A unanimous Court held that the Postal Service was required to respond to an order to withhold the amounts, even though the process was a state administrative tax levy, not an order issued by a state court. Id., at 525. The sue-and-be-sued clause, the Court held, must be given broad effect, and the Postal Service was required to respond to the administrative order even though it had not been issued by a judicial body. Id., at 519-521. The second case in which the Court considered the scope of the waiver effected by the PRA's sue-and-be-sued clause was Loeffler v. Frank, 486 U.S. 549 (1988). After the Postal Service had been found liable for damages from employment discrimination in an action brought under Title VII of the Civil Rights Act of 1964, the question arose whether it was subject as well to prejudgment interest. Id., at 551. The Court allowed the interest, and in the course of its decision asserted, or repeated, formulations which indicate that the sue-and-be-sued clause effects a broad waiver of immunity. *743 Id., at 554-555. The Court also relied, however, upon the provisions of Title VII itself which, by specific amendment, extended the coverage under the Civil Rights Act to federal employees. Id., at 558-561. After Loeffler, this Court decided FDIC v. Meyer, 510 U.S. 471, 484 (1994). In Meyer, the question was whether the Federal Savings and Loan Insurance Corporation (FSLIC), an agency of the United States, could be held liable in a so-called "Bivens action." See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). A federal statute provided for a waiver of sovereign immunity in suits against the FSLIC, but the Court explained that the interpretation of the waiver statute was just the initial part of a two-part inquiry. Even though sovereign immunity had been waived, there was the further, separate question whether the agency was subject to the substantive liability recognized in Bivens. Meyer, supra, at 483. The Loeffler Court had not set forth the two-step analysis in the explicit terms Meyer used, but it did, as we have said, consult the statute as the source of the liability upon which the obligation to pay prejudgment interest depended. The two-step analysis in Meyer applies here. We ask first whether there is a waiver of sovereign immunity for actions against the Postal Service. If there is, we ask the second question, which is whether the substantive prohibitions of the Sherman Act apply to an independent establishment of the Executive Branch of the United States. When the Court of Appeals considered the instant case, it cited Meyer and seemed at the outset to follow Meyer's two-step analysis. In our view, however, the ensuing discussion in the Court of Appeals' opinion was not consistent with the Meyer framework; for, having found that the Postal Service's immunity from suit is waived to the extent provided by the statutory sue-and-be-sued clause, the Court of Appeals relied on the same waiver to conclude that the Sherman *744 Act applies to the Postal Service. This conflated the two steps and resulted in an erroneous conclusion. See Meyer, supra, at 484. As to the first step, as an "independent establishment of the executive branch of the Government of the United States," 39 U.S.C. § 201, the Postal Service is part of the Government and that status indicates immunity unless there is a waiver. The sue-and-be-sued clause waives immunity, and makes the Postal Service amenable to suit, as well as to the incidents of judicial process. § 401. See Meyer, supra, at 482; Loeffler, supra, at 565; Franchise Tax Bd., supra, at 525. While Congress waived the immunity of the Postal Service, Congress did not strip it of its governmental status. The distinction is important. An absence of immunity does not result in liability if the substantive law in question is not intended to reach the federal entity. So we proceed to Meyer's second step to determine if the substantive antitrust liability defined by the statute extends to the Postal Service. Under Meyer's second step, we must look to the statute. Some years before Meyer was decided, the Court of Appeals for the District of Columbia Circuit recognized the two distinct inquiries required when the question is whether the Government, or an entity it owns, is named as a defendant in a suit under the antitrust laws. Sea-Land Serv., Inc. v. Alaska R. Co., 659 F.2d 243, 245 (1981) (R. Ginsburg, J.). That is the correct approach. Upon examining the Sherman Act, our decisions interpreting it, and the statutes that create and organize the Postal Service, we conclude that the Postal Service is not subject to antitrust liability. The Sherman Act imposes liability on any "person." It defines the word. It provides that "`person' . . . shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States [or of States or foreign governments]." 15 U.S. C. § 7. It follows then, that corporate or governmental status in most instances is not a bar to the imposition of liability on an entity *745 as a "person" under the Act. The federal prohibition, for instance, binds state governmental bodies. See Georgia v. Evans, 316 U.S. 159 (1942); see also Pfizer Inc. v. Government of India, 434 U.S. 308 (1978). It is otherwise, however, when liability is pursued against the Federal Government. The Court made this proposition clear in United States v. Cooper Corp., 312 U.S. 600, 614 (1941). The question in Cooper was whether, under the Sherman Act, the United States was a person who could bring a treble-damages claim for its own alleged antitrust injury. The Court held the United States could not sue for antitrust damages because it is not a person under the antitrust statute. Id., at 606-607. Important to the present case is an explicit reason given by the Cooper Court for reaching its decision. The Court observed that if the definition of "person" included the United States, then the Government would be exposed to liability as an antitrust defendant, a result Congress could not have intended. Id., at 607, 609. After Cooper, Congress amended the antitrust statutes to allow the United States to bring antitrust suits. For our purposes, the means by which it did so is instructive. Congress did not change the definition of "person" in the statute, but added a new section allowing the United States to sue. See 15 U.S. C. § 15a. So, Cooper's conclusion that the United States is not an antitrust "person," in particular not a person who can be an antitrust defendant, was unaltered by Congress' action; indeed, the means Congress used to amend the antitrust law implicitly ratified Cooper's conclusion that the United States is not a proper antitrust defendant. See 312 U.S., at 609; Sea-Land, supra, at 245 ("Although Congress was well aware of the view the Court indicated in Cooper Corp., that Congress had not described the United States as a `person' for Sherman Act purposes, Congress addressed only the direct holding in that case — the ruling that the United States was not authorized to proceed *746 as a Sherman Act treble damage action plaintiff" (footnote omitted)). The remaining question, then, is whether for purposes of the antitrust laws the Postal Service is a person separate from the United States itself. It is not. The statutory designation of the Postal Service as an "independent establishment of the executive branch of the Government of the United States" is not consistent with the idea that it is an entity existing outside the Government. The statutory instruction that the Postal Service is an establishment "of the executive branch of the Government of the United States" indicates just the contrary. The PRA gives the Postal Service a high degree of independence from other offices of the Government, but it remains part of the Government. The Sherman Act defines "person" to include corporations, and had the Congress chosen to create the Postal Service as a federal corporation, we would have to ask whether the Sherman Act's definition extends to the federal entity under this part of the definitional text. Congress, however, declined to create the Postal Service as a Government corporation, opting instead for an independent establishment. The choice of words likely was more informed than unconsidered, because Congress debated proposals to make the Postal Service a Government corporation before it enacted the PRA. See H. R. Rep. No. 91-1104, p. 6 (1970). As we have noted, the PRA refers in explicit terms to various federal statutes and specifies that the Postal Service is exempt from some and subject to others. 39 U.S. C. §§ 409-410. It makes no mention of the Sherman Act or the antitrust laws, however. The silence leads to no helpful inference one way or the other on the issue before us; but the other considerations we have discussed lead us to say that absent an express statement from Congress that the Postal Service can be sued for antitrust violations despite its status as an independent establishment of the Government of the *747 United States, the PRA does not subject the Postal Service to antitrust liability. Our conclusion is consistent with the nationwide, public responsibilities of the Postal Service. The Postal Service has different goals, obligations, and powers from private corporations. Its goals are not those of private enterprise. The most important difference is that it does not seek profits, but only to break even, 39 U.S. C. § 3621, which is consistent with its public character. It also has broader obligations, including the provision of universal mail delivery, the provision of free mail delivery to certain classes of persons, §§ 3201-3405, and, most recently, increased public responsibilities related to national security. Finally, the Postal Service has many powers more characteristic of Government than of private enterprise, including its state-conferred monopoly on mail delivery, the power of eminent domain, and the power to conclude international postal agreements. On the other hand, but in ways still relevant to the non-applicability of the antitrust laws to the Postal Service, its powers are more limited than those of private businesses. It lacks the prototypical means of engaging in anti-competitive behavior: the power to set prices. This is true both as a matter of mechanics, because pricing decisions are made with the participation of the separate Postal Rate Commission, and as a matter of substance, because price decisions are governed by principles other than profitability. See supra, at 740-741. Similarly, before it can close a post office, it must provide written reasons, and its decision is subject to reversal by the Commission for arbitrariness, abuse of discretion, failure to follow procedures, or lack of evidence. § 404. The Postal Service's public characteristics and responsibilities indicate it should be treated under the antitrust laws as part of the Government of the United States, not a market participant separate from it. The Postal Service does operate nonpostal lines of business, for which it is free to set prices independent of the *748 Commission, and in which it may seek profits to offset losses in the postal business. § 403(a). The great majority of the organization's business, however, consists of postal services. See Revenue, Pieces, and Weight by Classes of Mail and Special Services for Government Fiscal Year 2003, available at http://www.usps.com/financials/_pdf/GFY03.pdf (as visited Jan. 23, 2004, and available in Clerk of Court's case file). Further, the Postal Service's predecessor, the Post Office Department, had nonpostal lines of business, such as money orders and postal savings accounts. Cullinan 84-85, 107. As a Cabinet agency, the old Post Office Department was not subject to the antitrust laws. The new Postal Service's lines of business beyond the scope of its mail monopoly and universal service obligation do not show it is separate from the Government under the antitrust laws. * * * The Postal Service, in both form and function, is not a separate antitrust person from the United States. It is part of the Government of the United States and so is not controlled by the antitrust laws. The judgment of the Court of Appeals is reversed. It is so ordered.

This case requires us to consider whether the United States Postal Service is subject to liability under the federal antitrust laws. Flamingo Industries (USA) Ltd., a private corporation, and its owner and principal officer are the respondents here. Flamingo had been making mail sacks for the Postal Service, but then its contract was terminated. The respondents sued in United States District Court alleging that the Postal Service had sought to suppress competition and create a monopoly in mail sack production. (They also brought claims against the Postal Service under federal procurement law and state law, but those claims are not before us.) The District *739 Court dismissed the antitrust claims, concluding that the Postal Service is not subject to liability under federal antitrust law. The Court of Appeals reversed. It held that the Postal Service can be liable but that it has a limited immunity from antitrust liability for conduct undertaken at the command of Congress. We granted certiorari to consider the question whether the United States Postal Service is a "person" amenable to suit under the controlling antitrust statute. We hold it is not subject to antitrust liability, and we reverse. After the Revolution, both the Articles of Confederation and the Constitution explicitly empowered the National Government to provide and regulate postal services. Article of Confederation IX; U. S. Const., Art. I, 8. The importance of the enterprise was prefigured by the Continental Congress' appointment of Benjamin Franklin to be the first Postmaster General, on July 26, 1775. G. Cullinan, The United States Postal Service 26 (1973) (hereinafter Cullinan). From those beginnings, the Postal Service has become "the nation's oldest and largest public business." J. Tierney, Postal Reorganization: Managing the Public's Business vii (hereinafter Tierney). During its history since Postmaster Franklin, the postal organization has been reorganized or restructured at various times. In the immediate period after ratification of the Constitution, it was called the General Post Office and was subordinate to the Treasury Department. Cullinan 35-36. In 1825, its name changed from the General Post Office to the Post Office Department, an alteration accomplished by somewhat informal means when Postmaster Joseph McLean simply changed the title on official letterhead. McLean also began the practice of reporting directly to the President rather than to the Secretary of the Treasury. (McLean was a popular Postmaster who served from 1823 until 1829, when the incoming President Andrew Jackson *740 solved his worries about McLean's independence in matters of postal governance, especially patronage, by appointing him to this Court.) In 1829, President Jackson acknowledged the enhanced status of the Postmaster General by making him a member of the Cabinet, though it was not until 1872 that Congress formally recognized the Post Office Department as an executive department of the Federal Government. A more complete account of the origins and mission of the postal system is set forth in Postal Major change came with the Postal Reorganization Act of 1970 (PRA), 39 U.S. C. 101 et seq. It was adopted to increase the efficiency of the Postal Service and reduce political influences on its operations. Tierney 1-26; Cullinan 5-10. The PRA renames the Post Office Department the United States Postal Service and removes it from the Cabinet to make it "an independent establishment of the executive branch of the Government of the United States." 39 U.S. C. 201. Superintendence over the new Postal Service is the responsibility of a Board of Governors, consisting of 11 members. 202. Nine governors are appointed by the President with the advice and consent of the Senate and are removable only for cause. The other two governors are the Postmaster General, who also serves as the chief executive officer of the Postal Service, and who is appointed by the other nine, and the Deputy Postmaster General, who is appointed by the other nine together with the Postmaster General. The PRA creates a second independent establishment, the Postal Rate Commission, to make recommendations on postal rate changes. 3601. The Commission advises the Board of Governors on rates for all postal services, including both letter carriage and parcel delivery. 3621. Rates are set by the Board of Governors based on the recommendations of the Commission, and those decisions are in certain *741 circumstances subject to judicial review. 3625, 3628. In making rate recommendations the Commission must consider factors including making each class of mail bear the costs attributable to it, and the effect of rate increases on the mail-using public and on competitors in the parcel delivery business. 3622(b). Under the PRA, the Postal Service retains its monopoly over the carriage of letters, and the power to authorize postal inspectors to search for, seize, and forfeit mail matter transported in violation of the monopoly. See 601-606. It also retains the obligation to provide universal service to all parts of the country. 101, 403. The Postal Service has the power of eminent domain, the power to make postal regulations, and the power to enter international postal agreements subject to the supervision of the Secretary of State. 401, 407. It has, in addition, powers to contract, to acquire property, and to settle claims. 401. As this brief summary indicates, the Postal Service has significant governmental powers, consistent with its status as an independent establishment of the Executive Branch. It was exempted from many, though not all, statutes governing federal agencies, and specifically subjected to some others. 409-410. With respect to antitrust liability, however, the PRA neither exempts the Postal Service nor subjects it to liability by express mention. It is silent on the point. The PRA waives the immunity of the Postal Service from suit by giving it the power "to sue and be sued in its official name." 401. The first question we address is whether that waiver suffices by its own terms to subject the Postal Service to liability under the Sherman Act, ch. 647, as amended, 15 U.S. C. 1 et seq. We begin with a discussion of our precedents bearing on the inquiry. This Court has held that when Congress passes enabling legislation allowing an agency or other entity of the Federal Government to be sued the waiver should be given a liberal — that is to say, expansive — construction. Federal *742 Housing In support of its holding in Burr the Court, in a passage often cited in later cases involving the waiver of sovereign immunity, wrote as follows: "[I]t must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to `sue or be sued,' that agency is not less amenable to judicial process than a private enterprise under like circumstances would be." This general proposition was cited in the first two cases in which the Court considered the extent of the waiver effected by the sue-and-be-sued clause of the PRA. In Franchise Tax of the underlying dispute concerned the obligation of the Postal Service to withhold unpaid state taxes from the wages of its employees. A unanimous Court held that the Postal Service was required to respond to an order to withhold the amounts, even though the process was a state administrative tax levy, not an order issued by a state court. 5. The sue-and-be-sued clause, the Court held, must be given broad effect, and the Postal Service was required to respond to the administrative order even though it had not been issued by a judicial body. The second case in which the Court considered the scope of the waiver effected by the PRA's sue-and-be-sued clause was After the Postal Service had been found liable for damages from employment discrimination in an action brought under Title VII of the Civil Rights Act of 1964, the question arose whether it was subject as well to prejudgment interest. The Court allowed the interest, and in the course of its decision asserted, or repeated, formulations which indicate that the sue-and-be-sued clause effects a broad waiver of immunity. *743 The Court also relied, however, upon the provisions of Title VII itself which, by specific amendment, extended the coverage under the Civil Rights Act to federal employees. After this Court decided In the question was whether the Federal Savings and Loan Insurance Corporation (FSLIC), an agency of the United States, could be held liable in a so-called "Bivens action." See A federal statute provided for a waiver of sovereign immunity in suits against the FSLIC, but the Court explained that the interpretation of the waiver statute was just the initial part of a two-part inquiry. Even though sovereign immunity had been waived, there was the further, separate question whether the agency was subject to the substantive liability recognized in Bivens. The Court had not set forth the two-step analysis in the explicit terms used, but it did, as we have said, consult the statute as the source of the liability upon which the obligation to pay prejudgment interest depended. The two-step analysis in applies here. We ask first whether there is a waiver of sovereign immunity for actions against the Postal Service. If there is, we ask the second question, which is whether the substantive prohibitions of the Sherman Act apply to an independent establishment of the Executive Branch of the United States. When the Court of Appeals considered the instant case, it cited and seemed at the outset to follow 's two-step analysis. In our view, however, the ensuing discussion in the Court of Appeals' opinion was not consistent with the framework; for, having found that the Postal Service's immunity from suit is waived to the extent provided by the statutory sue-and-be-sued clause, the Court of Appeals relied on the same waiver to conclude that the Sherman *744 Act applies to the Postal Service. This conflated the two steps and resulted in an erroneous conclusion. See at As to the first step, as an "independent establishment of the executive branch of the Government of the United States," 39 U.S.C. 201, the Postal Service is part of the Government and that status indicates immunity unless there is a waiver. The sue-and-be-sued clause waives immunity, and makes the Postal Service amenable to suit, as well as to the incidents of judicial process. 401. See ; ; Franchise Tax 5. While Congress waived the immunity of the Postal Service, Congress did not strip it of its governmental status. The distinction is important. An absence of immunity does not result in liability if the substantive law in question is not intended to reach the federal entity. So we proceed to 's second step to determine if the substantive antitrust liability defined by the statute extends to the Postal Service. Under 's second step, we must look to the statute. Some years before was decided, the Court of Appeals for the District of Columbia Circuit recognized the two distinct inquiries required when the question is whether the Government, or an entity it owns, is named as a defendant in a suit under the antitrust laws. Serv., That is the correct approach. Upon examining the Sherman Act, our decisions interpreting it, and the statutes that create and organize the Postal Service, we conclude that the Postal Service is not subject to antitrust liability. The Sherman Act imposes liability on any "person." It defines the word. It provides that "`person' shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States [or of States or foreign governments]." 15 U.S. C. 7. It follows then, that corporate or governmental status in most instances is not a bar to the imposition of liability on an entity *745 as a "person" under the Act. The federal prohibition, for instance, binds state governmental bodies. See ; see also Pfizer It is otherwise, however, when liability is pursued against the Federal Government. The Court made this proposition clear in United The question in Cooper was whether, under the Sherman Act, the United States was a person who could bring a treble-damages claim for its own alleged antitrust injury. The Court held the United States could not sue for antitrust damages because it is not a person under the antitrust statute. Important to the present case is an explicit reason given by the Cooper Court for reaching its decision. The Court observed that if the definition of "person" included the United States, then the Government would be exposed to liability as an antitrust defendant, a result Congress could not have intended. After Cooper, Congress amended the antitrust statutes to allow the United States to bring antitrust suits. For our purposes, the means by which it did so is instructive. Congress did not change the definition of "person" in the statute, but added a new section allowing the United States to sue. See 15 U.S. C. 15a. So, Cooper's conclusion that the United States is not an antitrust "person," in particular not a person who can be an antitrust defendant, was unaltered by Congress' action; indeed, the means Congress used to amend the antitrust law implicitly ratified Cooper's conclusion that the United States is not a proper antitrust defendant. See ; ("Although Congress was well aware of the view the Court indicated in Cooper Corp., that Congress had not described the United States as a `person' for Sherman Act purposes, Congress addressed only the direct holding in that case — the ruling that the United States was not authorized to proceed *746 as a Sherman Act treble damage action plaintiff" (footnote omitted)). The remaining question, then, is whether for purposes of the antitrust laws the Postal Service is a person separate from the United States itself. It is not. The statutory designation of the Postal Service as an "independent establishment of the executive branch of the Government of the United States" is not consistent with the idea that it is an entity existing outside the Government. The statutory instruction that the Postal Service is an establishment "of the executive branch of the Government of the United States" indicates just the contrary. The PRA gives the Postal Service a high degree of independence from other offices of the Government, but it remains part of the Government. The Sherman Act defines "person" to include corporations, and had the Congress chosen to create the Postal Service as a federal corporation, we would have to ask whether the Sherman Act's definition extends to the federal entity under this part of the definitional text. Congress, however, declined to create the Postal Service as a Government corporation, opting instead for an independent establishment. The choice of words likely was more informed than unconsidered, because Congress debated proposals to make the Postal Service a Government corporation before it enacted the PRA. See H. R. Rep. No. 91-1104, p. 6 (1970). As we have noted, the PRA refers in explicit terms to various federal statutes and specifies that the Postal Service is exempt from some and subject to others. 39 U.S. C. 409-410. It makes no mention of the Sherman Act or the antitrust laws, however. The silence leads to no helpful inference one way or the other on the issue before us; but the other considerations we have discussed lead us to say that absent an express statement from Congress that the Postal Service can be sued for antitrust violations despite its status as an independent establishment of the Government of the *747 United States, the PRA does not subject the Postal Service to antitrust liability. Our conclusion is consistent with the nationwide, public responsibilities of the Postal Service. The Postal Service has different goals, obligations, and powers from private corporations. Its goals are not those of private enterprise. The most important difference is that it does not seek profits, but only to break even, 39 U.S. C. 3621, which is consistent with its public character. It also has broader obligations, including the provision of universal mail delivery, the provision of free mail delivery to certain classes of persons, 3201-3405, and, most recently, increased public responsibilities related to national security. Finally, the Postal Service has many powers more characteristic of Government than of private enterprise, including its state-conferred monopoly on mail delivery, the power of eminent domain, and the power to conclude international postal agreements. On the other hand, but in ways still relevant to the non-applicability of the antitrust laws to the Postal Service, its powers are more limited than those of private businesses. It lacks the prototypical means of engaging in anti-competitive behavior: the power to set prices. This is true both as a matter of mechanics, because pricing decisions are made with the participation of the separate Postal Rate Commission, and as a matter of substance, because price decisions are governed by principles other than profitability. See Similarly, before it can close a post office, it must provide written reasons, and its decision is subject to reversal by the Commission for arbitrariness, abuse of discretion, failure to follow procedures, or lack of evidence. 404. The Postal Service's public characteristics and responsibilities indicate it should be treated under the antitrust laws as part of the Government of the United States, not a market participant separate from it. The Postal Service does operate nonpostal lines of business, for which it is free to set prices independent of the *748 Commission, and in which it may seek profits to offset losses in the postal business. 403(a). The great majority of the organization's business, however, consists of postal services. See Revenue, Pieces, and Weight by Classes of Mail and Special Services for Government Fiscal Year 2003, available at http://www.usps.com/financials/_pdf/GFY03.pdf (as visited Jan. 23, 2004, and available in Clerk of Court's case file). Further, the Postal Service's predecessor, the Post Office Department, had nonpostal lines of business, such as money orders and postal savings accounts. Cullinan 84-85, 107. As a Cabinet agency, the old Post Office Department was not subject to the antitrust laws. The new Postal Service's lines of business beyond the scope of its mail monopoly and universal service obligation do not show it is separate from the Government under the antitrust laws. * * * The Postal Service, in both form and function, is not a separate antitrust person from the United States. It is part of the Government of the United States and so is not controlled by the antitrust laws. The judgment of the Court of Appeals is reversed. It is so ordered.

Justice Scalia

majority

Vieth v. Jubelirer

2004-04-28

https://www.courtlistener.com/opinion/134735/vieth-v-jubelirer/

https://www.courtlistener.com/api/rest/v3/clusters/134735/

2003-051

Plaintiffs-appellants Richard Vieth, Norma Jean Vieth, and Susan Furey challenge a map drawn by the Pennsylvania General Assembly establishing districts for the election of congressional Representatives, on the ground that the districting constitutes an unconstitutional political gerrymander.[1] In Davis v. Bandemer, 478 U.S. 109 (1986), this Court held that political gerrymandering claims are justiciable, but *272 could not agree upon a standard to adjudicate them. The present appeal presents the questions whether our decision in Bandemer was in error, and, if not, what the standard should be. I The facts, as alleged by the plaintiffs, are as follows. The population figures derived from the 2000 census showed that Pennsylvania was entitled to only 19 Representatives in Congress, a decrease in 2 from the Commonwealth's previous delegation. Pennsylvania's General Assembly took up the task of drawing a new districting map. At the time, the Republican Party controlled a majority of both state Houses and held the Governor's office. Prominent national figures in the Republican Party pressured the General Assembly to adopt a partisan redistricting plan as a punitive measure against Democrats for having enacted pro-Democrat redistricting plans elsewhere. The Republican members of Pennsylvania's House and Senate worked together on such a plan. On January 3, 2002, the General Assembly passed its plan, which was signed into law by Governor Schweiker as Act 1. Plaintiffs, registered Democrats who vote in Pennsylvania, brought suit in the United States District Court for the Middle District of Pennsylvania, seeking to enjoin implementation of Act 1 under Rev. Stat. § 1979, 42 U.S. C. § 1983. Defendants-appellees were the Commonwealth of Pennsylvania and various executive and legislative officers responsible for enacting or implementing Act 1. The complaint alleged, among other things, that the legislation created malapportioned districts, in violation of the one-person, one-vote requirement of Article I, § 2, of the United States Constitution, and that it constituted a political gerrymander, in violation of Article I and the Equal Protection Clause of the Fourteenth Amendment. With regard to the latter contention, the complaint alleged that the districts created by Act 1 were "meandering and irregular," and "ignor[ed] all traditional redistricting criteria, including the preservation of *273 local government boundaries, solely for the sake of partisan advantage." Juris. Statement 136a, ¶ 22, 135a, ¶ 20. A three-judge panel was convened pursuant to 28 U.S. C. § 2284. The defendants moved to dismiss. The District Court granted the motion with respect to the political gerrymandering claim, and (on Eleventh Amendment grounds) all claims against the Commonwealth; but it declined to dismiss the apportionment claim as to other defendants. See Vieth v. Pennsylvania, 188 F. Supp. 2d 532 (MD Pa. 2002) (Vieth I). On trial of the apportionment claim, the District Court ruled in favor of plaintiffs. See Vieth v. Pennsylvania, 195 F. Supp. 2d 672 (MD Pa. 2002) (Vieth II). It retained jurisdiction over the case pending the court's review and approval of a remedial redistricting plan. On April 18, 2002, Governor Schweiker signed into law Act No. 2002-34, Pa. Stat. Ann., Tit. 25, § 3595.301 (Purdon Supp. 2003) (Act 34), a remedial plan that the Pennsylvania General Assembly had enacted to cure the apportionment problem of Act 1. Plaintiffs moved to impose remedial districts, arguing that the District Court should not consider Act 34 to be a proper remedial scheme, both because it was malapportioned, and because it constituted an unconstitutional political gerrymander like its predecessor. The District Court denied this motion, concluding that the new districts were not malapportioned, and rejecting the political gerrymandering claim for the reasons previously assigned in Vieth I. Vieth v. Pennsylvania, 241 F. Supp. 2d 478, 484-485 (MD Pa. 2003) (Vieth III). The plaintiffs appealed the dismissal of their Act 34 political gerrymandering claim.[2] We noted probable jurisdiction. 539 U.S. 957 (2003). *274 II Political gerrymanders are not new to the American scene. One scholar traces them back to the Colony of Pennsylvania at the beginning of the 18th century, where several counties conspired to minimize the political power of the city of Philadelphia by refusing to allow it to merge or expand into surrounding jurisdictions, and denying it additional representatives. See E. Griffith, The Rise and Development of the Gerrymander 26-28 (1974) (hereinafter Griffith). In 1732, two members of His Majesty's Council and the attorney general and deputy inspector and comptroller general of affairs of the Province of North Carolina reported that the Governor had proceeded to "divide old Precincts established by Law, & to enact new Ones in Places, whereby his Arts he has endeavoured to prepossess People in a future election according to his desire, his Designs herein being . . . either to endeavour by his means to get a Majority of his creatures in the Lower House" or to disrupt the assembly's proceedings. 3 Colonial Records of North Carolina 380-381 (W. Saunders ed. 1886); see also Griffith 29. The political gerrymander remained alive and well (though not yet known by that name) at the time of the framing. There were allegations that Patrick Henry attempted (unsuccessfully) to gerrymander James Madison out of the First Congress. See 2 W. Rives, Life and Times of James Madison 655, n. 1 (reprint 1970); Letter from Thomas Jefferson to William Short, Feb. 9, 1789, reprinted in 5 Works of Thomas Jefferson 451 (P. Ford ed. 1904). And in 1812, of course, there occurred the notoriously outrageous political districting in Massachusetts that gave the gerrymander its name — an amalgam of the names of Massachusetts Governor Elbridge Gerry and the creature ("salamander") which the outline of an election district he was credited with forming was thought to resemble. See Webster's New International Dictionary 1052 (2d ed. 1945). "By 1840 the gerrymander was a recognized force in party politics and was generally attempted in all legislation *275 enacted for the formation of election districts. It was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength." Griffith 123. It is significant that the Framers provided a remedy for such practices in the Constitution. Article I, § 4, while leaving in state legislatures the initial power to draw districts for federal elections, permitted Congress to "make or alter" those districts if it wished.[3] Many objected to the congressional oversight established by this provision. In the course of the debates in the Constitutional Convention, Charles Pinckney and John Rutledge moved to strike the relevant language. James Madison responded in defense of the provision that Congress must be given the power to check partisan manipulation of the election process by the States: "Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the Natl. Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter. What danger could there be in giving a controuling power to the Natl. Legislature?" 2 Records of the Federal Convention of 1787, pp. 240-241 (M. Farrand ed. 1911). Although the motion of Pinckney and Rutledge failed, opposition to the "make or alter" provision of Article I, § 4 — and the defense that it was needed to prevent political gerrymandering *276 — continued to be voiced in the state ratifying debates. A delegate to the Massachusetts convention warned that state legislatures "might make an unequal and partial division of the states into districts for the election of representatives, or they might even disqualify one third of the electors. Without these powers in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature, composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election." 2 Debates on the Federal Constitution 27 (J. Elliot 2d ed. 1876). The power bestowed on Congress to regulate elections, and in particular to restrain the practice of political gerrymandering, has not lain dormant. In the Apportionment Act of 1842, 5 Stat. 491, Congress provided that Representatives must be elected from single-member districts "composed of contiguous territory." See Griffith 12 (noting that the law was "an attempt to forbid the practice of the gerrymander"). Congress again imposed these requirements in the Apportionment Act of 1862, 12 Stat. 572, and in 1872 further required that districts "contai[n] as nearly as practicable an equal number of inhabitants," 17 Stat. 28, § 2. In the Apportionment Act of 1901, Congress imposed a compactness requirement. 31 Stat. 733. The requirements of contiguity, compactness, and equality of population were repeated in the 1911 apportionment legislation, 37 Stat. 13, but were not thereafter continued. Today, only the singlemember-district-requirement remains. See 2 U.S. C. § 2c. Recent history, however, attests to Congress's awareness of the sort of districting practices appellants protest, and of its power under Article I, § 4, to control them. Since 1980, no fewer than five bills have been introduced to regulate gerrymandering *277 in congressional districting. See H. R. 5037, 101st Cong., 2d Sess. (1990); H. R. 1711, 101st Cong., 1st Sess. (1989); H. R. 3468, 98th Cong., 1st Sess. (1983); H. R. 5529, 97th Cong., 2d Sess. (1982); H. R. 2349, 97th Cong., 1st Sess. (1981).[4] Eighteen years ago, we held that the Equal Protection Clause grants judges the power — and duty — to control political gerrymandering, see Davis v. Bandemer, 478 U.S. 109 (1986). It is to consideration of this precedent that we now turn. III As Chief Justice Marshall proclaimed two centuries ago, "[i]t is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803). Sometimes, however, the law is that the judicial department has no business entertaining the claim of unlawfulness — because the question is entrusted to one of the political branches or involves no judicially enforceable rights. See, e. g., Nixon v. United States, 506 U.S. 224 (1993) (challenge to procedures used in Senate impeachment proceedings); Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912) (claims arising under the Guaranty Clause of Article IV, § 4). Such questions are said to be "nonjusticiable," or "political questions." In Baker v. Carr, 369 U.S. 186 (1962), we set forth six independent tests for the existence of a political question: "[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards *278 for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Id., at 217. These tests are probably listed in descending order of both importance and certainty. The second is at issue here, and there is no doubt of its validity. "The judicial Power" created by Article III, § 1, of the Constitution is not whatever judges choose to do, see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 487 (1982); cf. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 332-333 (1999), or even whatever Congress chooses to assign them, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-577 (1992); Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 110-114 (1948). It is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule. Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions. Over the dissent of three Justices, the Court held in Davis v. Bandemer that, since it was "not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided," 478 U.S., at 123, such cases were justiciable. The clumsy shifting of the burden of proof for the premise (the Court was "not persuaded" that standards do not exist, rather than "persuaded" *279 that they do) was necessitated by the uncomfortable fact that the six-Justice majority could not discern what the judicially discernable standards might be. There was no majority on that point. Four of the Justices finding justiciability believed that the standard was one thing, see id., at 127 (plurality opinion of White, J., joined by Brennan, Marshall, and Blackmun, JJ.); two believed it was something else, see id., at 161 (Powell, J., joined by STEVENS, J., concurring in part and dissenting in part). The lower courts have lived with that assurance of a standard (or more precisely, lack of assurance that there is no standard), coupled with that inability to specify a standard, for the past 18 years. In that time, they have considered numerous political gerrymandering claims; this Court has never revisited the unanswered question of what standard governs. Nor can it be said that the lower courts have, over 18 years, succeeded in shaping the standard that this Court was initially unable to enunciate. They have simply applied the standard set forth in Bandemer's four-Justice plurality opinion. This might be thought to prove that the four-Justice plurality standard has met the test of time — but for the fact that its application has almost invariably produced the same result (except for the incurring of attorney's fees) as would have obtained if the question were nonjusticiable: Judicial intervention has been refused. As one commentary has put it, "[t]hroughout its subsequent history, Bandemer has served almost exclusively as an invitation to litigation without much prospect of redress." S. Issacharoff, P. Karlan, & R. Pildes, The Law of Democracy 886 (rev. 2d ed. 2002). The one case in which relief was provided (and merely preliminary relief, at that) did not involve the drawing of district lines;[5] in all of the cases we are aware of involving that most *280 common form of political gerrymandering, relief was denied.[6] Moreover, although the case in which relief was provided seemingly involved the ne plus ultra of partisan manipulation, see n. 5, supra, we would be at a loss to explain why the Bandemer line should have been drawn just there, and should not have embraced several districting plans that were upheld despite allegations of extreme partisan discrimination, *281 bizarrely shaped districts, and disproportionate results. See, e. g., Session v. Perry, 298 F. Supp. 2d 451 (ED Tex. 2004) (per curiam); O'Lear v. Miller, 222 F. Supp. 2d 850 (ED Mich.), summarily aff'd, 537 U.S. 997 (2002); Badham v. Eu, 694 F. Supp. 664, 670 (ND Cal. 1988), summarily aff'd, 488 U.S. 1024 (1989). To think that this lower court jurisprudence has brought forth "judicially discernible and manageable standards" would be fantasy. Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard promised by Bandemer exists. As the following discussion reveals, no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided. A We begin our review of possible standards with that proposed by Justice White's plurality opinion in Bandemer because, as the narrowest ground for our decision in that case, it has been the standard employed by the lower courts. The plurality concluded that a political gerrymandering claim could succeed only where plaintiffs showed "both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group." 478 U.S., at 127. As to the intent element, the plurality acknowledged that "[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended." Id., at 129. However, the effects prong was significantly harder to satisfy. Relief could not be based merely upon the fact that a group of persons banded together for political purposes had failed to achieve representation commensurate with its numbers, or that the apportionment scheme made its winning of elections more difficult. Id., at 132. Rather, *282 it would have to be shown that, taking into account a variety of historic factors and projected election results, the group had been "denied its chance to effectively influence the political process" as a whole, which could be achieved even without electing a candidate. Id., at 132-133. It would not be enough to establish, for example, that Democrats had been "placed in a district with a supermajority of other Democratic voters" or that the district "departs from pre-existing political boundaries." Id., at 140-141. Rather, in a challenge to an individual district the inquiry would focus "on the opportunity of members of the group to participate in party deliberations in the slating and nomination of candidates, their opportunity to register and vote, and hence their chance to directly influence the election returns and to secure the attention of the winning candidate." Id., at 133. A statewide challenge, by contrast, would involve an analysis of "the voters' direct or indirect influence on the elections of the state legislature as a whole." Ibid. (emphasis added). With what has proved to be a gross understatement, the plurality acknowledged this was "of necessity a difficult inquiry." Id., at 143. In her Bandemer concurrence, JUSTICE O'CONNOR predicted that the plurality's standard "will over time either prove unmanageable and arbitrary or else evolve towards some loose form of proportionality." Id., at 155 (opinion concurring in judgment, joined by Burger, C. J., and REHNQUIST, J.). A similar prediction of unmanageability was expressed in Justice Powell's opinion, making it the prognostication of a majority of the Court. See id., at 171 ("The . . . most basic flaw in the plurality's opinion is its failure to enunciate any standard that affords guidance to legislatures and courts"). That prognostication has been amply fulfilled. In the lower courts, the legacy of the plurality's test is one long record of puzzlement and consternation. See, e. g., Session, supra, at 474 ("Throughout this case we have borne *283 witness to the powerful, conflicting forces nurtured by Bandemer's holding that the judiciary is to address `excessive' partisan line-drawing, while leaving the issue virtually unenforceable"); Vieth I, 188 F. Supp. 2d, at 544 (noting that the "recondite standard enunciated in Bandemer offers little concrete guidance"); Martinez v. Bush, 234 F. Supp. 2d 1275, 1352 (SD Fla. 2002) (three-judge court) (Jordan, J., concurring) (the "lower courts continue to struggle in an attempt to interpret and apply the `discriminatory effect' prong of the [Bandemer] standard"); O'Lear, supra, at 855 (describing Bandemer's standard for assessing discriminatory effect as "somewhat murky"). The test has been criticized for its indeterminacy by a host of academic commentators. See, e. g., L. Tribe, American Constitutional Law § 13-9, p. 1083 (2d ed. 1988) ("Neither Justice White's nor Justice Powell's approach to the question of partisan apportionment gives any real guidance to lower courts forced to adjudicate this issue ..."); Still, Hunting of the Gerrymander, 38 UCLA L. Rev. 1019, 1020 (1991) (noting that the plurality opinion has "confounded legislators, practitioners, and academics alike"); Schuck, The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 87 Colum. L. Rev. 1325, 1365 (1987) (noting that the Bandemer plurality's standard requires judgments that are "largely subjective and beg questions that lie at the heart of political competition in a democracy"); Issacharoff, Judging Politics: The Elusive Quest for Judicial Review of Political Fairness, 71 Texas L. Rev. 1643, 1671 (1993) ("Bandemer begot only confusion"); Grofman, An Expert Witness Perspective on Continuing and Emerging Voting Rights Controversies, 21 Stetson L. Rev. 783, 816 (1992) ("[A]s far as I am aware I am one of only two people who believe that Bandemer makes sense. Moreover, the other person, Daniel Lowenstein, has a diametrically opposed view as to what the plurality opinion means"). Because this standard was misguided when proposed, has not been improved in subsequent application, and is not even defended *284 before us today by the appellants, we decline to affirm it as a constitutional requirement. B Appellants take a run at enunciating their own workable standard based on Article I, § 2, and the Equal Protection Clause. We consider it at length not only because it reflects the litigant's view as to the best that can be derived from 18 years of experience, but also because it shares many features with other proposed standards, so that what is said of it may be said of them as well. Appellants' proposed standard retains the two-pronged framework of the Bandemer plurality — intent plus effect — but modifies the type of showing sufficient to satisfy each. To satisfy appellants' intent standard, a plaintiff must "show that the mapmakers acted with a predominant intent to achieve partisan advantage," which can be shown "by direct evidence or by circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage." Brief for Appellants 19 (emphasis added). As compared with the Bandemer plurality's test of mere intent to disadvantage the plaintiff's group, this proposal seemingly makes the standard more difficult to meet — but only at the expense of making the standard more indeterminate. "Predominant intent" to disadvantage the plaintiff's political group refers to the relative importance of that goal as compared with all the other goals that the map seeks to pursue — contiguity of districts, compactness of districts, observance of the lines of political subdivision, protection of incumbents of all parties, cohesion of natural racial and ethnic neighborhoods, compliance with requirements of the Voting Rights Act of 1965 regarding racial distribution, etc. Appellants contend that their intent test must be discernible and manageable because it has been borrowed from our racial gerrymandering cases. See Miller v. Johnson, 515 U.S. 900 *285 (1995); Shaw v. Reno, 509 U.S. 630 (1993). To begin with, in a very important respect that is not so. In the racial gerrymandering context, the predominant intent test has been applied to the challenged district in which the plaintiffs voted. See Miller, supra; United States v. Hays, 515 U.S. 737 (1995). Here, however, appellants do not assert that an apportionment fails their intent test if any single district does so. Since "it would be quixotic to attempt to bar state legislatures from considering politics as they redraw district lines," Brief for Appellants 3, appellants propose a test that is satisfied only when "partisan advantage was the predominant motivation behind the entire statewide plan," id., at 32 (emphasis added). Vague as the "predominant motivation" test might be when used to evaluate single districts, it all but evaporates when applied statewide. Does it mean, for instance, that partisan intent must outweigh all other goals — contiguity, compactness, preservation of neighborhoods, etc. — statewide? And how is the statewide "outweighing" to be determined? If three-fifths of the map's districts forgo the pursuit of partisan ends in favor of strictly observing political-subdivision lines, and only two-fifths ignore those lines to disadvantage the plaintiffs, is the observance of political subdivisions the "predominant" goal between those two? We are sure appellants do not think so. Even within the narrower compass of challenges to a single district, applying a "predominant intent" test to racial gerrymandering is easier and less disruptive. The Constitution clearly contemplates districting by political entities, see Article I, § 4, and unsurprisingly that turns out to be root-and-branch a matter of politics. See Miller, supra, at 914 ("[R]edistricting in most cases will implicate a political calculus in which various interests compete for recognition . . ."); Shaw, supra, at 662 (White, J., dissenting) ("[D]istricting inevitably is the expression of interest group politics . . ."); Gaffney v. Cummings, 412 U.S. 735, 753 (1973) ("The reality is that districting inevitably has and is intended to have substantial *286 political consequences"). By contrast, the purpose of segregating voters on the basis of race is not a lawful one, and is much more rarely encountered. Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate it is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it. Moreover, the fact that partisan districting is a lawful and common practice means that there is almost always room for an election-impeding lawsuit contending that partisan advantage was the predominant motivation; not so for claims of racial gerrymandering. Finally, courts might be justified in accepting a modest degree of unmanageability to enforce a constitutional command which (like the Fourteenth Amendment obligation to refrain from racial discrimination) is clear; whereas they are not justified in inferring a judicially enforceable constitutional obligation (the obligation not to apply too much partisanship in districting) which is both dubious and severely unmanageable. For these reasons, to the extent that our racial gerrymandering cases represent a model of discernible and manageable standards, they provide no comfort here. The effects prong of appellants' proposal replaces the Bandemer plurality's vague test of "denied its chance to effectively influence the political process," 478 U.S., at 132-133, with criteria that are seemingly more specific. The requisite effect is established when "(1) the plaintiffs show that the districts systematically `pack' and `crack' the rival party's voters,[7]and (2) the court's examination of the `totality of circumstances' confirms that the map can thwart the plaintiffs' ability to translate a majority of votes into a majority *287 of seats." Brief for Appellants 20 (emphasis and footnote added). This test is loosely based on our cases applying § 2 of the Voting Rights Act of 1965, 42 U.S. C. § 1973, to discrimination by race, see, e. g., Johnson v. De Grandy, 512 U.S. 997 (1994). But a person's politics is rarely as readily discernible — and never as permanently discernible — as a person's race. Political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line. We dare say (and hope) that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold. These facts make it impossible to assess the effects of partisan gerrymandering, to fashion a standard for evaluating a violation, and finally to craft a remedy. See Bandemer, supra, at 156 (O'CONNOR, J., concurring in judgment).[8] Assuming, however, that the effects of partisan gerrymandering can be determined, appellants' test would invalidate the districting only when it prevents a majority of the electorate from electing a majority of representatives. Before considering whether this particular standard is judicially *288 manageable we question whether it is judicially discernible in the sense of being relevant to some constitutional violation. Deny it as appellants may (and do), this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle. It guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.[9] Even if the standard were relevant, however, it is not judicially manageable. To begin with, how is a party's majority status to be established? Appellants propose using the results of statewide races as the benchmark of party support. But as their own complaint describes, in the 2000 Pennsylvania statewide elections some Republicans won and some Democrats won. See Juris. Statement 137a-138a (describing how Democratic candidates received more votes for President and auditor general, and Republicans received more votes for United States Senator, attorney general, and treasurer). Moreover, to think that majority status in statewide races establishes majority status for district contests, one would have to believe that the only factor determining voting behavior at all levels is political affiliation. That is assuredly not true. As one law review comment has put it: *289 "There is no statewide vote in this country for the House of Representatives or the state legislature. Rather, there are separate elections between separate candidates in separate districts, and that is all there is. If the districts change, the candidates change, their strengths and weaknesses change, their campaigns change, their ability to raise money changes, the issues change — everything changes. Political parties do not compete for the highest statewide vote totals or the highest mean district vote percentages: They compete for specific seats." Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory, 33 UCLA L. Rev. 1, 59-60 (1985). See also Schuck, Partisan Gerrymandering: A Political Problem Without Judicial Solution, in Political Gerrymandering and the Courts 240, 241 (B. Grofman ed. 1990). But if we could identify a majority party, we would find it impossible to ensure that that party wins a majority of seats — unless we radically revise the States' traditional structure for elections. In any winner-take-all district system, there can be no guarantee, no matter how the district lines are drawn, that a majority of party votes statewide will produce a majority of seats for that party. The point is proved by the 2000 congressional elections in Pennsylvania, which, according to appellants' own pleadings, were conducted under a judicially drawn district map "free from partisan gerrymandering." Juris. Statement 137a. On this "neutral playing fiel[d]," the Democrats' statewide majority of the major-party vote (50.6%) translated into a minority of seats (10, versus 11 for the Republicans). Id., at 133a, 137a. Whether by reason of partisan districting or not, party constituents may always wind up "packed" in some districts and "cracked" throughout others. See R. Dixon, Democratic Representation 462 (1968) ("All Districting Is `Gerrymandering'"); Schuck, 87 Colum. L. Rev., at 1359. Consider, for *290 example, a legislature that draws district lines with no objectives in mind except compactness and respect for the lines of political subdivisions. Under that system, political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a "natural" packing effect. See Bandemer, 478 U. S., at 159 (O'CONNOR, J., concurring in judgment). Our one-person, one-vote cases, see Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964), have no bearing upon this question, neither in principle nor in practicality. Not in principle, because to say that each individual must have an equal say in the selection of representatives, and hence that a majority of individuals must have a majority say, is not at all to say that each discernible group, whether farmers or urban dwellers or political parties, must have representation equivalent to its numbers. And not in practicality, because the easily administrable standard of population equality adopted by Wesberry and Reynolds enables judges to decide whether a violation has occurred (and to remedy it) essentially on the basis of three readily determined factors — where the plaintiff lives, how many voters are in his district, and how many voters are in other districts; whereas requiring judges to decide whether a districting system will produce a statewide majority for a majority party casts them forth upon a sea of imponderables, and asks them to make determinations that not even election experts can agree upon. For these reasons, we find appellants' proposed standards neither discernible nor manageable. C For many of the same reasons, we also reject the standard suggested by Justice Powell in Bandemer. He agreed with the plurality that a plaintiff should show intent and effect, but believed that the ultimate inquiry ought to focus on whether district boundaries had been drawn solely for partisan *291 ends to the exclusion of "all other neutral factors relevant to the fairness of redistricting." 478 U.S., at 161 (opinion concurring in part and dissenting in part); see also id., at 164-165. Under that inquiry, the courts should consider numerous factors, though "[n]o one factor should be dispositive." Id., at 173. The most important would be "the shapes of voting districts and adherence to established political subdivision boundaries." Ibid. "Other relevant considerations include the nature of the legislative procedures by which the apportionment law was adopted and legislative history reflecting contemporaneous legislative goals." Ibid. These factors, which "bear directly on the fairness of a redistricting plan," combined with "evidence concerning population disparities and statistics tending to show vote dilution," make out a claim of unconstitutional partisan gerrymandering. Ibid. While Justice Powell rightly criticized the Bandemer plurality for failing to suggest a constitutionally based, judicially manageable standard, the standard proposed in his opinion also falls short of the mark. It is essentially a totality-of-the-circumstances analysis, where all conceivable factors, none of which is dispositive, are weighed with an eye to ascertaining whether the particular gerrymander has gone too far—or, in Justice Powell's terminology, whether it is not "fair." "Fairness" does not seem to us a judicially manageable standard. Fairness is compatible with noncontiguous districts, it is compatible with districts that straddle political subdivisions, and it is compatible with a party's not winning the number of seats that mirrors the proportion of its vote. Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts' intrusion into a process that is the very foundation of democratic decisionmaking. *292 IV We turn next to consideration of the standards proposed by today's dissenters. We preface it with the observation that the mere fact that these four dissenters come up with three different standards—all of them different from the two proposed in Bandemer and the one proposed here by appellants—goes a long way to establishing that there is no constitutionally discernible standard. A JUSTICE STEVENS concurs in the judgment that we should not address plaintiffs' statewide political gerrymandering challenges. Though he reaches that result via standing analysis, post, at 327, 328 (dissenting opinion), while we reach it through political-question analysis, our conclusions are the same: these statewide claims are nonjusticiable. JUSTICE STEVENS would, however, require courts to consider political gerrymandering challenges at the individual-district level. Much of his dissent is addressed to the incompatibility of severe partisan gerrymanders with democratic principles. We do not disagree with that judgment, any more than we disagree with the judgment that it would be unconstitutional for the Senate to employ, in impeachment proceedings, procedures that are incompatible with its obligation to "try" impeachments. See Nixon v. United States, 506 U.S. 224 (1993). The issue we have discussed is not whether severe partisan gerrymanders violate the Constitution, but whether it is for the courts to say when a violation has occurred, and to design a remedy. On that point, JUSTICE STEVENS's dissent is less helpful, saying, essentially, that if we can do it in the racial gerrymandering context we can do it here. We have examined, supra, at 285-288, the many reasons why that is not so. Only a few of them are challenged by JUSTICE STEVENS. He says that we "mistakenly assum[e] that race cannot provide a legitimate basis for making political *293 judgments." Post, at 338. But we do not say that race-conscious decisionmaking is always unlawful. Race can be used, for example, as an indicator to achieve the purpose of neighborhood cohesiveness in districting. What we have said is impermissible is "the purpose of segregating voters on the basis of race," supra, at 286—that is to say, racial gerrymandering for race's sake, which would be the equivalent of political gerrymandering for politics' sake. JUSTICE STEVENS says we "er[r] in assuming that politics is `an ordinary and lawful motive'" in districting, post, at 324—but all he brings forward to contest that is the argument that an excessive injection of politics is unlawful. So it is, and so does our opinion assume. That does not alter the reality that setting out to segregate voters by race is unlawful and hence rare, and setting out to segregate them by political affiliation is (so long as one doesn't go too far) lawful and hence ordinary. JUSTICE STEVENS's confidence that what courts have done with racial gerrymandering can be done with political gerrymandering rests in part upon his belief that "the same standards should apply," post, at 335. But in fact the standards are quite different. A purpose to discriminate on the basis of race receives the strictest scrutiny under the Equal Protection Clause, while a similar purpose to discriminate on the basis of politics does not. "[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country's long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion." Shaw, 509 U. S., at 650 (citation omitted). That quoted passage was in direct response to (and rejection of) the suggestion made by JUSTICES White and STEVENS in dissent that "a racial gerrymander of the sort alleged here is functionally equivalent to *294 gerrymanders for nonracial purposes, such as political gerrymanders." Ibid. See also Bush v. Vera, 517 U.S. 952, 964 (1996) (plurality opinion) ("We have not subjected political gerrymandering to strict scrutiny"). JUSTICE STEVENS relies on First Amendment cases to suggest that politically discriminatory gerrymanders are subject to strict scrutiny under the Equal Protection Clause. See post, at 324-325. It is elementary that scrutiny levels are claim specific. An action that triggers a heightened level of scrutiny for one claim may receive a very different level of scrutiny for a different claim because the underlying rights, and consequently constitutional harms, are not comparable. To say that suppression of political speech (a claimed First Amendment violation) triggers strict scrutiny is not to say that failure to give political groups equal representation (a claimed equal protection violation) triggers strict scrutiny. Only an equal protection claim is before us in the present case—perhaps for the very good reason that a First Amendment claim, if it were sustained, would render unlawful all consideration of political affiliation in districting, just as it renders unlawful all consideration of political affiliation in hiring for non-policy-level government jobs. What cases such as Elrod v. Burns, 427 U.S. 347 (1976), require is not merely that Republicans be given a decent share of the jobs in a Democratic administration, but that political affiliation be disregarded. Having failed to make the case for strict scrutiny of political gerrymandering, JUSTICE STEVENS falls back on the argument that scrutiny levels simply do not matter for purposes of justiciability. He asserts that a standard imposing a strong presumption of invalidity (strict scrutiny) is no more discernible and manageable than a standard requiring an evenhanded balancing of all considerations with no thumb on the scales (ordinary scrutiny). To state this is to refute it. As is well known, strict scrutiny readily, and almost always, results in invalidation. Moreover, the mere fact that there *295 exist standards which this Court could apply—the proposition which much of JUSTICE STEVENS's opinion is devoted to establishing, see, e. g., post, at 321-327, 340-341—does not mean that those standards are discernible in the Constitution. This Court may not willy-nilly apply standards—even manageable standards—having no relation to constitutional harms. JUSTICE STEVENS points out, see post, at 327, n. 15, that Bandemer said differences between racial and political groups "may be relevant to the manner in which the case is adjudicated, but these differences do not justify a refusal to entertain such a case." 478 U.S., at 125. As 18 years have shown, Bandemer was wrong. B JUSTICE SOUTER, like JUSTICE STEVENS, would restrict these plaintiffs, on the allegations before us, to district-specific political gerrymandering claims. Post, at 346, 353 (dissenting opinion). Unlike JUSTICE STEVENS, however, JUSTICE SOUTER recognizes that there is no existing workable standard for adjudicating such claims. He proposes a "fresh start," post, at 345: a newly constructed standard loosely based in form on our Title VII cases, see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and complete with a five-step prima facie test sewn together from parts of, among other things, our Voting Rights Act jurisprudence, law review articles, and apportionment cases. Even if these self-styled "clues" to unconstitutionality could be manageably applied, which we doubt, there is no reason to think they would detect the constitutional crime which JUSTICE SOUTER is investigating—an "extremity of unfairness" in partisan competition. Post, at 344. Under JUSTICE SOUTER's proposed standard, in order to challenge a particular district, a plaintiff must show (1) that he is a member of a "cohesive political group"; (2) "that the district of his residence . . . paid little or no heed" to traditional districting principles; (3) that there were "specific correlations *296 between the district's deviations from traditional districting principles and the distribution of the population of his group"; (4) that a hypothetical district exists which includes the plaintiff's residence, remedies the packing or cracking of the plaintiff's group, and deviates less from traditional districting principles; and (5) that "the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group." Post, at 347-350. When those showings have been made, the burden would shift to the defendants to justify the district "by reference to objectives other than naked partisan advantage." Post, at 351. While this five-part test seems eminently scientific, upon analysis one finds that each of the last four steps requires a quantifying judgment that is unguided and ill suited to the development of judicial standards: How much disregard of traditional districting principles? How many correlations between deviations and distribution? How much remedying of packing or cracking by the hypothetical district? How many legislators must have had the intent to pack and crack—and how efficacious must that intent have been (must it have been, for example, a sine qua non cause of the districting, or a predominant cause)? At step two, for example, JUSTICE SOUTER would require lower courts to assess whether mapmakers paid "little or no heed to . . . traditional districting principles." Post, at 348. What is a lower court to do when, as will often be the case, the district adheres to some traditional criteria but not others? JUSTICE SOUTER's only response to this question is to evade it: "It is not necessary now to say exactly how a district court would balance a good showing on one of these indices against a poor showing on another, for that sort of detail is best worked out case by case." Post, at 348-349. But the devil lurks precisely in such detail. The central problem is determining when political gerrymandering has gone too far. It does not solve that problem to break down the original unanswerable question *297 (How much political motivation and effect is too much?) into four more discrete but equally unanswerable questions. JUSTICE SOUTER's proposal is doomed to failure for a more basic reason: No test—yea, not even a five-part test—can possibly be successful unless one knows what he is testing for. In the present context, the test ought to identify deprivation of that minimal degree of representation or influence to which a political group is constitutionally entitled. As we have seen, the Bandemer test sought (unhelpfully, but at least gamely) to specify what that minimal degree was: "[a] chance to effectively influence the political process." 478 U.S., at 133. So did the appellants' proposed test: "[the] ability to translate a majority of votes into a majority of seats." Brief for Appellants 20. JUSTICE SOUTER avoids the difficulties of those formulations by never telling us what his test is looking for, other than the utterly unhelpful "extremity of unfairness." He vaguely describes the harm he is concerned with as vote dilution, post, at 351, a term which usually implies some actual effect on the weight of a vote. But no element of his test looks to the effect of the gerrymander on the electoral success, the electoral opportunity, or even the political influence, of the plaintiff's group. We do not know the precise constitutional deprivation his test is designed to identify and prevent. Even if (though it is implausible) JUSTICE SOUTER believes that the constitutional deprivation consists of merely "vote dilution," his test would not even identify that effect. Despite his claimed reliance on the McDonnell Douglas framework, JUSTICE SOUTER would allow the plaintiff no opportunity to show that the mapmakers' compliance with traditional districting factors is pretextual.[10] His reason for *298 this is never stated, but it certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution. As we have explained above, packing and cracking, whether intentional or no, are quite consistent with adherence to compactness and respect for political subdivision lines. See supra, at 289-290. An even better example is the traditional criterion of incumbency protection. JUSTICE SOUTER has previously acknowledged it to be a traditional and constitutionally acceptable districting principle. See Vera, 517 U. S., at 1047-1048 (dissenting opinion). Since that is so, his test would not protect those who are packed, and often tightly so, to ensure the reelection of representatives of either party. Indeed, efforts to maximize partisan representation statewide might well begin with packing voters of the opposing party into the districts of existing incumbents of that party. By this means an incumbent is protected, a potential adversary to the districting mollified, and votes of the opposing party are diluted. Like us, JUSTICE SOUTER acknowledges and accepts that "some intent to gain political advantage is inescapable whenever political bodies devise a district plan, and some effect results from the intent." Post, at 344. Thus, again like us, he recognizes that "the issue is one of how much is too much." Ibid. And once those premises are conceded, the only line that can be drawn must be based, as JUSTICE SOUTER again candidly admits, upon a substantive "notio[n] of fairness." Ibid. This is the same flabby goal that deprived Justice Powell's test of all determinacy. To be sure, JUSTICE SOUTER frames it somewhat differently: Courts must intervene, he says, when "partisan competition has reached an extremity of unfairness." Ibid. (emphasis added). We do not think the problem is solved by adding the modifier. *299 C We agree with much of JUSTICE BREYER's dissenting opinion, which convincingly demonstrates that "political considerations will likely play an important, and proper, role in the drawing of district boundaries." Post, at 358. This places JUSTICE BREYER, like the other dissenters, in the difficult position of drawing the line between good politics and bad politics. Unlike them, he would tackle this problem at the statewide level. The criterion JUSTICE BREYER proposes is nothing more precise than "the unjustified use of political factors to entrench a minority in power." Post, at 360 (emphasis in original). While he invokes in passing the Equal Protection Clause, it should be clear to any reader that what constitutes unjustified entrenchment depends on his own theory of "effective government." Post, at 356. While one must agree with JUSTICE BREYER's incredibly abstract starting point that our Constitution sought to create a "basically democratic" form of government, ibid., that is a long and impassable distance away from the conclusion that the Judiciary may assess whether a group (somehow defined) has achieved a level of political power (somehow defined) commensurate with that to which they would be entitled absent unjustified political machinations (whatever that means). JUSTICE BREYER provides no real guidance for the journey. Despite his promise to do so, ibid., he never tells us what he is testing for, beyond the unhelpful "unjustified entrenchment." Post, at 360. Instead, he "set[s] forth several sets of circumstances that lay out the indicia of abuse," "along a continuum," post, at 365, proceeding (presumably) from the most clearly unconstitutional to the possibly unconstitutional. With regard to the first "scenario," he is willing to assert that the indicia "would be sufficient to support a claim." Post, at 366. This seems refreshingly categorical, until one realizes that the indicia consist not merely of the failure of the party receiving the majority of votes to acquire *300 a majority of seats in two successive elections, but also of the fact that there is no "neutral" explanation for this phenomenon. Ibid. But of course there always is a neutral explanation—if only the time-honored criterion of incumbent protection. The indicia set forth in JUSTICE BREYER's second scenario "could also add up to unconstitutional gerrymandering," ibid. (emphasis added); and for those in the third "a court may conclude that the map crosses the constitutional line," post, at 367 (emphasis added). We find none of this helpful. Each scenario suffers from at least one of the problems we have previously identified, most notably the difficulties of assessing partisan strength statewide and of ascertaining whether an entire statewide plan is motivated by political or neutral justifications, see supra, at 285-286, 289-290. And even at that, the last two scenarios do not even purport to provide an answer, presumably leaving it to each district court to determine whether, under those circumstances, "unjustified entrenchment" has occurred. In sum, we neither know precisely what JUSTICE BREYER is testing for, nor precisely what fails the test. But perhaps the most surprising omission from JUSTICE BREYER's dissent, given his views on other matters, is the absence of any cost-benefit analysis. JUSTICE BREYER acknowledges that "a majority normally can work its political will," post, at 362, and well describes the number of actors, from statewide executive officers, to redistricting commissions, to Congress, to the People in ballot initiatives and referenda, that stand ready to make that happen. See post, at 362-363. He gives no instance (and we know none) of permanent frustration of majority will. But where the majority has failed to assert itself for some indeterminate period (two successive elections, if we are to believe his first scenario), JUSTICE BREYER simply assumes that "court action may prove necessary," post, at 364. Why so? In the real world, of course, court action that is available tends to be sought, not just where it is necessary, but where it is in the interest of the seeking party. And the vaguer the test *301 for availability, the more frequently interest rather than necessity will produce litigation. Is the regular insertion of the judiciary into districting, with the delay and uncertainty that brings to the political process and the partisan enmity it brings upon the courts, worth the benefit to be achieved — an accelerated (by some unknown degree) effectuation of the majority will? We think not. V JUSTICE KENNEDY recognizes that we have "demonstrat[ed] the shortcomings of the other standards that have been considered to date," post, at 308 (opinion concurring in judgment). He acknowledges, moreover, that we "lack ... comprehensive and neutral principles for drawing electoral boundaries," post, at 306-307; and that there is an "absence of rules to limit and confine judicial intervention," post, at 307. From these premises, one might think that JUSTICE KENNEDY would reach the conclusion that political gerrymandering claims are nonjusticiable. Instead, however, he concludes that courts should continue to adjudicate such claims because a standard may one day be discovered. The first thing to be said about JUSTICE KENNEDY's disposition is that it is not legally available. The District Court in this case considered the plaintiffs' claims justiciable but dismissed them because the standard for unconstitutionality had not been met. It is logically impossible to affirm that dismissal without either (1) finding that the unconstitutional-districting standard applied by the District Court, or some other standard that it should have applied, has not been met, or (2) finding (as we have) that the claim is nonjusticiable. JUSTICE KENNEDY seeks to affirm "[b]ecause, in the case before us, we have no standard." Post, at 313. But it is our job, not the plaintiffs', to explicate the standard that makes the facts alleged by the plaintiffs adequate or inadequate to state a claim. We cannot nonsuit them for our failure to do so. *302 JUSTICE KENNEDY asserts that to declare nonjusticiability would be incautious. Post, at 311. Our rush to such a holding after a mere 18 years of fruitless litigation "contrasts starkly" he says, "with the more patient approach" that this Court has taken in the past. Post, at 310. We think not. When it has come to determining what areas fall beyond our Article III authority to adjudicate, this Court's practice, from the earliest days of the Republic to the present, has been more reminiscent of Hannibal than of Hamlet. On July 18, 1793, Secretary of State Thomas Jefferson wrote the Justices at the direction of President Washington, asking whether they might answer "questions [that] depend for their solution on the construction of our treaties, on the laws of nature and nations, and on the laws of the land," but that arise "under circumstances which do not give a cognisance of them to the tribunals of the country." 3 Correspondence and Public Papers of John Jay 486-487 (H. Johnston ed. 1891) (emphasis in original). The letter specifically invited the Justices to give less than a categorical yes-or-no answer, offering to present the particular questions "from which [the Justices] will themselves strike out such as any circumstances might, in their opinion, forbid them to pronounce on." Id., at 487. On August 8, 1793, the Justices responded in a categorical and decidedly "impatient" manner, saying that the giving of advisory opinions — not just advisory opinions on particular questions but all advisory opinions, presumably even those concerning legislation affecting the Judiciary — was beyond their power. "[T]he lines of separation drawn by the Constitution between the three departments of the government" prevented it. Id., at 488. The Court rejected the more "cautious" course of not "deny[ing] all hopes of intervention," post, at 310, but leaving the door open to the possibility that at least some advisory opinions (on a theory we could not yet imagine) would not violate the separation of powers. In Gilligan v. Morgan, 413 U.S. 1, 7 (1973), a case filed after the Ohio National Guard's shooting *303 of students at Kent State University, the plaintiffs sought "initial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard." The Court held the suit nonjusticiable; the matter was committed to the political branches because, inter alia, "it is difficult to conceive of an area of governmental activity in which the courts have less competence." Id., at 10. The Court did not adopt the more "cautious" course of letting the lower courts try their hand at regulating the military before we declared it impossible. Most recently, in Nixon v. United States, the Court, joined by JUSTICE KENNEDY, held that a claim that the Senate had employed certain impermissible procedures in trying an impeachment was a nonjusticiable political question. Our decision was not limited to the particular procedures under challenge, and did not reserve the possibility that sometime, somewhere, technology or the wisdom derived from experience might make a court challenge to Senate impeachment all right. The only cases JUSTICE KENNEDY cites in defense of his never-say-never approach are Baker v. Carr and Bandemer. See post, at 310-311. Bandemer provides no cover. There, all of the Justices who concluded that political gerrymandering claims are justiciable proceeded to describe what they regarded as the discernible and manageable standard that rendered it so. The lower courts were set wandering in the wilderness for 18 years not because the Bandemer majority thought it a good idea, but because five Justices could not agree upon a single standard, and because the standard the plurality proposed turned out not to work. As for Baker v. Carr: It is true enough that, having had no experience whatever in apportionment matters of any sort, the Court there refrained from spelling out the equal protection standard. (It did so a mere two years later in Reynolds v. Sims, 377 U.S. 533 (1964).) But the judgment under review in Baker, unlike the one under review here, did not demand the determination of a standard. The lower *304 court in Baker had held the apportionment claim of the plaintiffs nonjusticiable, and so it was logically possible to dispose of the appeal by simply disagreeing with the nonjusticiability determination. As we observed earlier, that is not possible here, where the lower court has held the claim justiciable but unsupported by the facts. We must either enunciate the standard that causes us to agree or disagree with that merits judgment, or else affirm that the claim is beyond our competence to adjudicate. JUSTICE KENNEDY worries that "[a] determination by the Court to deny all hopes of intervention could erode confidence in the courts as much as would a premature decision to intervene." Post, at 310. But it is the function of the courts to provide relief, not hope. What we think would erode confidence is the Court's refusal to do its job — announcing that there may well be a valid claim here, but we are not yet prepared to figure it out. Moreover, that course does more than erode confidence; by placing the district courts back in the business of pretending to afford help when they in fact can give none, it deters the political process from affording genuine relief. As was noted by a lower court confronted with a political gerrymandering claim: "When the Supreme Court resolves Vieth, it may choose to retreat from its decision that the question is justiciable, or it may offer more guidance on the nature of the required effect. . . . We have learned firsthand what will result if the Court chooses to do neither. Throughout this case we have borne witness to the powerful, conflicting forces nurtured by Bandemer's holding that the judiciary is to address `excessive' partisan line-drawing, while leaving the issue virtually unenforceable. Inevitably, as the political party in power uses district lines to lock in its present advantage, the party out of power attempts to stretch the protective cover of the Voting Rights Act, urging dilution of critical standards that may, if accepted, aid their party in the short-run but *305 work to the detriment of persons now protected by the Act in the long-run. Casting the appearance both that there is a wrong and that the judiciary stands ready with a remedy, Bandemer as applied steps on legislative incentives for self-correction." Session, 298 F. Supp. 2d, at 474. But the conclusive refutation of JUSTICE KENNEDY's position is the point we first made: it is not an available disposition. We can affirm because political districting presents a nonjusticiable question; or we can affirm because we believe the correct standard which identifies unconstitutional political districting has not been met; we cannot affirm because we do not know what the correct standard is. Reduced to its essence, JUSTICE KENNEDY's opinion boils down to this: "As presently advised, I know of no discernible and manageable standard that can render this claim justiciable. I am unhappy about that, and hope that I will be able to change my opinion in the future." What are the lower courts to make of this pronouncement? We suggest that they must treat it as a reluctant fifth vote against justiciability at district and statewide levels — a vote that may change in some future case but that holds, for the time being, that this matter is nonjusticiable. VI We conclude that neither Article I, § 2, nor the Equal Protection Clause, nor (what appellants only fleetingly invoke) Article I, § 4, provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting. Considerations of stare decisis do not compel us to allow Bandemer to stand. That case involved an interpretation of the Constitution, and the claims of stare decisis are at their weakest in that field, where our mistakes cannot be corrected by Congress. See Payne v. Tennessee, 501 U.S. 808, 828 (1991). They are doubly weak in Bandemer because the majority's *306 inability to enunciate the judicially discernible and manageable standard that it thought existed (or did not think did not exist) presaged the need for reconsideration in light of subsequent experience. And they are triply weak because it is hard to imagine how any action taken in reliance upon Bandemer could conceivably be frustrated — except the bringing of lawsuits, which is not the sort of primary conduct that is relevant. While we do not lightly overturn one of our own holdings, "when governing decisions are unworkable or are badly reasoned, `this Court has never felt constrained to follow precedent.'" 501 U.S., at 827 (quoting Smith v. Allwright, 321 U.S. 649, 665 (1944)). Eighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims. The judgment of the District Court is affirmed. It is so ordered. JUSTICE KENNEDY, concurring in the judgment.

Plaintiffs-appellants Richard Vieth, Norma Jean Vieth, and Susan Furey challenge a map drawn by the Pennsylvania General Assembly establishing districts for the election of congressional Representatives, on the ground that the districting constitutes an unconstitutional political gerrymander.[1] n this Court held that political gerrymandering claims are justiciable, but *22 could not agree upon a standard to adjudicate them. The present appeal presents the questions whether our decision in was in error, and, if not, what the standard should be. The facts, as alleged by the plaintiffs, are as follows. The population figures derived from the 2000 census showed that Pennsylvania was entitled to only 19 Representatives in Congress, a decrease in 2 from the Commonwealth's previous delegation. Pennsylvania's General Assembly took up the task of drawing a new districting map. At the time, the Republican Party controlled a majority of both state Houses and held the Governor's office. Prominent national figures in the Republican Party pressured the General Assembly to adopt a partisan redistricting plan as a punitive measure against Democrats for having enacted pro-Democrat redistricting plans elsewhere. The Republican members of Pennsylvania's House and Senate worked together on such a plan. On January 3, the General Assembly passed its plan, which was signed into law by Governor Schweiker as Act 1. Plaintiffs, registered Democrats who vote in Pennsylvania, brought suit in the United States District Court for the Middle District of Pennsylvania, seeking to enjoin implementation of Act 1 under Rev. Stat. 199, 42 U.S. C. 1983. Defendants-appellees were the Commonwealth of Pennsylvania and various executive and legislative officers responsible for enacting or implementing Act 1. The complaint alleged, among other things, that the legislation created malapportioned districts, in violation of the one-person, one-vote requirement of Article 2, of the United States Constitution, and that it constituted a political gerrymander, in violation of Article and the Equal Protection Clause of the Fourteenth Amendment. With regard to the latter contention, the complaint alleged that the districts created by Act 1 were "meandering and irregular," and "ignor[ed] all traditional redistricting criteria, including the preservation of *23 local government boundaries, solely for the sake of partisan advantage." Juris. Statement 136a, ¶ 22, 13a, ¶ 20. A three-judge panel was convened pursuant to 28 U.S. C. 2284. The defendants moved to dismiss. The District Court granted the motion with respect to the political gerrymandering claim, and (on Eleventh Amendment grounds) all claims against the Commonwealth; but it declined to dismiss the apportionment claim as to other defendants. See On trial of the apportionment claim, the District Court ruled in favor of plaintiffs. See t retained jurisdiction over the case pending the court's review and approval of a remedial redistricting plan. On April 18, Governor Schweiker signed into law Act No. -34, Pa. Stat. Ann., Tit. 2, 39.301 (Act 34), a remedial plan that the Pennsylvania General Assembly had enacted to cure the apportionment problem of Act 1. Plaintiffs moved to impose remedial districts, arguing that the District Court should not consider Act 34 to be a proper remedial scheme, both because it was malapportioned, and because it constituted an unconstitutional political gerrymander like its predecessor. The District Court denied this motion, concluding that the new districts were not malapportioned, and rejecting the political gerrymandering claim for the reasons previously assigned in Vieth The plaintiffs appealed the dismissal of their Act 34 political gerrymandering claim.[2] We noted probable jurisdiction. *24 Political gerrymanders are not new to the American scene. One scholar traces them back to the Colony of Pennsylvania at the beginning of the 18th century, where several counties conspired to minimize the political power of the city of Philadelphia by refusing to allow it to merge or expand into surrounding jurisdictions, and denying it additional representatives. See E. Griffith, The Rise and Development of the Gerrymander 26-28 (194) (hereinafter Griffith). n 132, two members of His Majesty's Council and the attorney general and deputy inspector and comptroller general of affairs of the Province of North Carolina reported that the Governor had proceeded to "divide old Precincts established by Law, & to enact new Ones in Places, whereby his Arts he has endeavoured to prepossess People in a future election according to his desire, his Designs herein being either to endeavour by his means to get a Majority of his creatures in the Lower House" or to disrupt the assembly's proceedings. 3 Colonial Records of North Carolina 380-381 (W. Saunders ed. 1886); see also Griffith 29. The political gerrymander remained alive and well (though not yet known by that name) at the time of the framing. There were allegations that Patrick Henry attempted (unsuccessfully) to gerrymander James Madison out of the First Congress. See 2 W. Rives, Life and Times of James Madison 6, n. 1 (reprint 190); Letter from Thomas Jefferson to William Short, Feb. 9, 189, reprinted in Works of Thomas Jefferson 41 (P. Ford ed. 1904). And in 1812, of course, there occurred the notoriously outrageous political districting in Massachusetts that gave the gerrymander its name — an amalgam of the names of Massachusetts Governor Elbridge Gerry and the creature ("salamander") which the outline of an election district he was credited with forming was thought to resemble. See Webster's New nternational Dictionary 102 (2d ed. 194). "By 1840 the gerrymander was a recognized force in party politics and was generally attempted in all legislation *2 enacted for the formation of election districts. t was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength." Griffith 123. t is significant that the Framers provided a remedy for such practices in the Constitution. Article 4, while leaving in state legislatures the initial power to draw districts for federal elections, permitted Congress to "make or alter" those districts if it wished.[3] Many objected to the congressional oversight established by this provision. n the course of the debates in the Constitutional Convention, Charles Pinckney and John Rutledge moved to strike the relevant language. James Madison responded in defense of the provision that Congress must be given the power to check partisan manipulation of the election process by the States: "Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed. Besides, the inequality of the Representation in the Legislatures of particular States, would produce a like inequality in their representation in the Natl. Legislature, as it was presumable that the Counties having the power in the former case would secure it to themselves in the latter. What danger could there be in giving a controuling power to the Natl. Legislature?" 2 Records of the Federal Convention of 18, pp. 240-241 (M. Farrand ed. 1911). Although the motion of Pinckney and Rutledge failed, opposition to the "make or alter" provision of Article 4 — and the defense that it was needed to prevent political gerrymandering *26 — continued to be voiced in the state ratifying debates. A delegate to the Massachusetts convention warned that state legislatures "might make an unequal and partial division of the states into districts for the election of representatives, or they might even disqualify one third of the electors. Without these powers in Congress, the people can have no remedy; but the 4th section provides a remedy, a controlling power in a legislature, composed of senators and representatives of twelve states, without the influence of our commotions and factions, who will hear impartially, and preserve and restore to the people their equal and sacred rights of election." 2 Debates on the Federal Constitution 2 (J. Elliot 2d ed. 186). The power bestowed on Congress to regulate elections, and in particular to restrain the practice of political gerrymandering, has not lain dormant. n the Apportionment Act of 1842, Congress provided that Representatives must be elected from single-member districts "composed of contiguous territory." See Griffith 12 (noting that the law was "an attempt to forbid the practice of the gerrymander"). Congress again imposed these requirements in the Apportionment Act of 1862, and in 182 further required that districts "contai[n] as nearly as practicable an equal number of inhabitants," 2. n the Apportionment Act of 1901, Congress imposed a compactness requirement. The requirements of contiguity, compactness, and equality of population were repeated in the 1911 apportionment legislation, but were not thereafter continued. Today, only the singlemember-district-requirement remains. See 2 U.S. C. 2c. Recent history, however, attests to Congress's awareness of the sort of districting practices appellants protest, and of its power under Article 4, to control them. Since 1980, no fewer than five bills have been introduced to regulate gerrymandering *2 in congressional districting. See H. R. 03, 101st Cong., 2d Sess. (1990); H. R. 111, 101st Cong., 1st Sess. ; H. R. 3468, 98th Cong., 1st Sess. (1983); H. R. 29, 9th Cong., 2d Sess. ; H. R. 2349, 9th Cong., 1st Sess. (1981).[4] Eighteen years ago, we held that the Equal Protection Clause grants judges the power — and duty — to control political gerrymandering, see t is to consideration of this precedent that we now turn. As Chief Justice Marshall proclaimed two centuries ago, "[i]t is emphatically the province and duty of the judicial department to say what the law is." Sometimes, however, the law is that the judicial department has no business entertaining the claim of unlawfulness — because the question is entrusted to one of the political branches or involves no judicially enforceable rights. See, e. g., ; Pacific States Telephone & Telegraph (claims arising under the Guaranty Clause of Article V, 4). Such questions are said to be "nonjusticiable," or "political questions." n we set forth six independent tests for the existence of a political question: "[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards *28 for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question." These tests are probably listed in descending order of both importance and certainty. The second is at issue here, and there is no doubt of its validity. "The judicial Power" created by Article 1, of the Constitution is not whatever judges choose to do, see Valley Forge Christian ; cf. Grupo Mexicano de Desarrollo, S. or even whatever Congress chooses to assign them, see ; Chicago & Southern Air Lines, t is the power to act in the manner traditional for English and American courts. One of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule. Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions. Over the dissent of three Justices, the Court held in that, since it was "not persuaded that there are no judicially discernible and manageable standards by which political gerrymander cases are to be decided," such cases were justiciable. The clumsy shifting of the burden of proof for the premise (the Court was "not persuaded" that standards do not exist, rather than "persuaded" *29 that they do) was necessitated by the uncomfortable fact that the six-Justice majority could not discern what the judicially discernable standards might be. There was no majority on that point. Four of the Justices finding justiciability believed that the standard was one thing, see ; two believed it was something else, see The lower courts have lived with that assurance of a standard (or more precisely, lack of assurance that there is no standard), coupled with that inability to specify a standard, for the past 18 years. n that time, they have considered numerous political gerrymandering claims; this Court has never revisited the unanswered question of what standard governs. Nor can it be said that the lower courts have, over 18 years, succeeded in shaping the standard that this Court was initially unable to enunciate. They have simply applied the standard set forth in 's four-Justice plurality opinion. This might be thought to prove that the four-Justice plurality standard has met the test of time — but for the fact that its application has almost invariably produced the same result (except for the incurring of attorney's fees) as would have obtained if the question were nonjusticiable: Judicial intervention has been refused. As one commentary has put it, "[t]hroughout its subsequent history, has served almost exclusively as an invitation to litigation without much prospect of redress." S. ssacharoff, P. Karlan, & R. Pildes, The Law of Democracy 886 The one case in which relief was provided (and merely preliminary relief, at that) did not involve the drawing of district lines;[] in all of the cases we are aware of involving that most *280 common form of political gerrymandering, relief was denied.[6] Moreover, although the case in which relief was provided seemingly involved the ne plus ultra of partisan manipulation, see n. we would be at a loss to explain why the line should have been drawn just there, and should not have embraced several districting plans that were upheld despite allegations of extreme partisan discrimination, *281 bizarrely shaped districts, and disproportionate results. See, e. g., 298 F. Supp. 2d 41 ; 222 F. Supp. 2d 80 (ED Mich.), summarily aff'd, 3 U.S. 99 ; summarily aff'd, To think that this lower court jurisprudence has brought forth "judicially discernible and manageable standards" would be fantasy. Eighteen years of judicial effort with virtually nothing to show for it justify us in revisiting the question whether the standard promised by exists. As the following discussion reveals, no judicially discernible and manageable standards for adjudicating political gerrymandering claims have emerged. Lacking them, we must conclude that political gerrymandering claims are nonjusticiable and that was wrongly decided. A We begin our review of possible standards with that proposed by Justice White's plurality opinion in because, as the narrowest ground for our decision in that case, it has been the standard employed by the lower courts. The plurality concluded that a political gerrymandering claim could succeed only where plaintiffs showed "both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group." 48 U.S., As to the intent element, the plurality acknowledged that "[a]s long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended." However, the effects prong was significantly harder to satisfy. Relief could not be based merely upon the fact that a group of persons banded together for political purposes had failed to achieve representation commensurate with its numbers, or that the apportionment scheme made its winning of elections more difficult. Rather, *282 it would have to be shown that, taking into account a variety of historic factors and projected election results, the group had been "denied its chance to effectively influence the political process" as a whole, which could be achieved even without electing a candidate. -133. t would not be enough to establish, for example, that Democrats had been "placed in a district with a supermajority of other Democratic voters" or that the district "departs from pre-existing political boundaries." Rather, in a challenge to an individual district the inquiry would focus "on the opportunity of members of the group to participate in party deliberations in the slating and nomination of candidates, their opportunity to register and vote, and hence their chance to directly influence the election returns and to secure the attention of the winning candidate." A statewide challenge, by contrast, would involve an analysis of "the voters' direct or indirect influence on the elections of the state legislature as a whole." With what has proved to be a gross understatement, the plurality acknowledged this was "of necessity a difficult inquiry." n her concurrence, JUSTCE O'CONNOR predicted that the plurality's standard "will over time either prove unmanageable and arbitrary or else evolve towards some loose form of proportionality." at 1 A similar prediction of unmanageability was expressed in Justice Powell's opinion, making it the prognostication of a majority of the Court. See That prognostication has been amply fulfilled. n the lower courts, the legacy of the plurality's test is one long record of puzzlement and consternation. See, e. g., ; Vieth 188 F. Supp. 2d, at 44 ; 234 F. Supp. 2d 12, 132 (Jordan, J., concurring) (the "lower courts continue to struggle in an attempt to interpret and apply the `discriminatory effect' prong of the [] standard"); O', at 8 The test has been criticized for its indeterminacy by a host of academic commentators. See, e. g., L. Tribe, American Constitutional Law 13-9, p. 1083 ("Neither Justice White's nor Justice Powell's approach to the question of partisan apportionment gives any real guidance to lower courts forced to adjudicate this issue"); Still, Hunting of the Gerrymander, ; The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 8 Colum. L. Rev. 132, 136 ; ssacharoff, Judging Politics: The Elusive Quest for Judicial Review of Political Fairness, 1 Texas L. Rev. 1643, 161 (" begot only confusion"); Grofman, An Expert Witness Perspective on Continuing and Emerging Voting Rights Controversies, ("[A]s far as am aware am one of only two people who believe that makes sense. Moreover, the other person, Daniel Lowenstein, has a diametrically opposed view as to what the plurality opinion means"). Because this standard was misguided when proposed, has not been improved in subsequent application, and is not even defended *284 before us today by the appellants, we decline to affirm it as a constitutional requirement. B Appellants take a run at enunciating their own workable standard based on Article 2, and the Equal Protection Clause. We consider it at length not only because it reflects the litigant's view as to the best that can be derived from 18 years of experience, but also because it shares many features with other proposed standards, so that what is said of it may be said of them as well. Appellants' proposed standard retains the two-pronged framework of the plurality — intent plus effect — but modifies the type of showing sufficient to satisfy each. To satisfy appellants' intent standard, a plaintiff must "show that the mapmakers acted with a predominant intent to achieve partisan advantage," which can be shown "by direct evidence or by circumstantial evidence that other neutral and legitimate redistricting criteria were subordinated to the goal of achieving partisan advantage." Brief for Appellants 19 As compared with the plurality's test of mere intent to disadvantage the plaintiff's group, this proposal seemingly makes the standard more difficult to meet — but only at the expense of making the standard more indeterminate. "Predominant intent" to disadvantage the plaintiff's political group refers to the relative importance of that goal as compared with all the other goals that the map seeks to pursue — contiguity of districts, compactness of districts, observance of the lines of political subdivision, protection of incumbents of all parties, cohesion of natural racial and ethnic neighborhoods, compliance with requirements of the Voting Rights Act of 196 regarding racial distribution, etc. Appellants contend that their intent test must be discernible and manageable because it has been borrowed from our racial gerrymandering cases. See 1 U.S. 900 *28 (199); 09 U.S. 630 To begin with, in a very important respect that is not so. n the racial gerrymandering context, the predominant intent test has been applied to the challenged district in which the plaintiffs voted. See United 1 U.S. 3 (199). Here, however, appellants do not assert that an apportionment fails their intent test if any single district does so. Since "it would be quixotic to attempt to bar state legislatures from considering politics as they redraw district lines," Brief for Appellants 3, appellants propose a test that is satisfied only when "partisan advantage was the predominant motivation behind the entire statewide plan," Vague as the "predominant motivation" test might be when used to evaluate single districts, it all but evaporates when applied statewide. Does it mean, for instance, that partisan intent must outweigh all other goals — contiguity, compactness, preservation of neighborhoods, etc. — statewide? And how is the statewide "outweighing" to be determined? f three-fifths of the map's districts forgo the pursuit of partisan ends in favor of strictly observing political-subdivision lines, and only two-fifths ignore those lines to disadvantage the plaintiffs, is the observance of political subdivisions the "predominant" goal between those two? We are sure appellants do not think so. Even within the narrower compass of challenges to a single district, applying a "predominant intent" test to racial gerrymandering is easier and less disruptive. The Constitution clearly contemplates districting by political entities, see Article 4, and unsurprisingly that turns out to be root-and-branch a matter of politics. See ; ("[D]istricting inevitably is the expression of interest group politics"); 412 U.S. 3, 3 By contrast, the purpose of segregating voters on the of race is not a lawful one, and is much more rarely encountered. Determining whether the shape of a particular district is so substantially affected by the presence of a rare and constitutionally suspect motive as to invalidate it is quite different from determining whether it is so substantially affected by the excess of an ordinary and lawful motive as to invalidate it. Moreover, the fact that partisan districting is a lawful and common practice means that there is almost always room for an election-impeding lawsuit contending that partisan advantage was the predominant motivation; not so for claims of racial gerrymandering. Finally, courts might be justified in accepting a modest degree of unmanageability to enforce a constitutional command which (like the Fourteenth Amendment obligation to refrain from racial discrimination) is clear; whereas they are not justified in inferring a judicially enforceable constitutional obligation (the obligation not to apply too much partisanship in districting) which is both dubious and severely unmanageable. For these reasons, to the extent that our racial gerrymandering cases represent a model of discernible and manageable standards, they provide no comfort here. The effects prong of appellants' proposal replaces the plurality's vague test of "denied its chance to effectively influence the political process," 48 U.S., -133, with criteria that are seemingly more specific. The requisite effect is established when "(1) the plaintiffs show that the districts systematically `pack' and `crack' the rival party's voters,[]and (2) the court's examination of the `totality of circumstances' confirms that the map can thwart the plaintiffs' ability to translate a majority of votes into a majority *28 of seats." Brief for Appellants 20 (emphasis and footnote added). This test is loosely based on our cases applying 2 of the Voting Rights Act of 196, 42 U.S. C. 193, to discrimination by race, see, e. g., 12 U.S. 99 But a person's politics is rarely as readily discernible — and never as permanently discernible — as a person's race. Political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line. We dare say (and hope) that the political party which puts forward an utterly incompetent candidate will lose even in its registration stronghold. These facts make it impossible to assess the effects of partisan gerrymandering, to fashion a standard for evaluating a violation, and finally to craft a remedy. See at 16[8] Assuming, however, that the effects of partisan gerrymandering can be determined, appellants' test would invalidate the districting only when it prevents a majority of the electorate from electing a majority of representatives. Before considering whether this particular standard is judicially *288 manageable we question whether it is judicially discernible in the sense of being relevant to some constitutional violation. Deny it as appellants may (and do), this standard rests upon the principle that groups (or at least political-action groups) have a right to proportional representation. But the Constitution contains no such principle. t guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups. t nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.[9] Even if the standard were relevant, however, it is not judicially manageable. To begin with, how is a party's majority status to be established? Appellants propose using the results of statewide races as the benchmark of party support. But as their own complaint describes, in the 2000 Pennsylvania statewide elections some Republicans won and some Democrats won. See Juris. Statement 13a-138a (describing how Democratic candidates received more votes for President and auditor general, and Republicans received more votes for United States Senator, attorney general, and treasurer). Moreover, to think that majority status in statewide races establishes majority status for district contests, one would have to believe that the only factor determining voting behavior at all levels is political affiliation. That is assuredly not true. As one law review comment has put it: *289 "There is no statewide vote in this country for the House of Representatives or the state legislature. Rather, there are separate elections between separate candidates in separate districts, and that is all there is. f the districts change, the candidates change, their strengths and weaknesses change, their campaigns change, their ability to raise money changes, the issues change — everything changes. Political parties do not compete for the highest statewide vote totals or the highest mean district vote percentages: They compete for specific seats." Lowenstein & Steinberg, The Quest for Legislative Districting in the Public nterest: Elusive or llusory, 9-60 (198). See also Partisan Gerrymandering: A Political Problem Without Judicial Solution, in Political Gerrymandering and the Courts 240, 241 (B. Grofman ed. 1990). But if we could identify a majority party, we would find it impossible to ensure that that party wins a majority of seats — unless we radically revise the States' traditional structure for elections. n any winner-take-all district system, there can be no guarantee, no matter how the district lines are drawn, that a majority of party votes statewide will produce a majority of seats for that party. The point is proved by the 2000 congressional elections in Pennsylvania, which, according to appellants' own pleadings, were conducted under a judicially drawn district map "free from partisan gerrymandering." Juris. Statement 13a. On this "neutral playing fiel[d]," the Democrats' statewide majority of the major-party vote (0.6%) translated into a minority of seats (10, versus 11 for the Republicans). a, 13a. Whether by reason of partisan districting or not, party constituents may always wind up "packed" in some districts and "cracked" throughout others. See R. Dixon, Democratic Representation 462 (1968) ("All Districting s `Gerrymandering'"); 8 Colum. L. Rev., at 139. Consider, for *290 example, a legislature that draws district lines with no objectives in mind except compactness and respect for the lines of political subdivisions. Under that system, political groups that tend to cluster (as is the case with Democratic voters in cities) would be systematically affected by what might be called a "natural" packing effect. See 48 U. S., at 19 Our one-person, one-vote cases, see 3 U.S. 33 ; have no bearing upon this question, neither in principle nor in practicality. Not in principle, because to say that each individual must have an equal say in the selection of representatives, and hence that a majority of individuals must have a majority say, is not at all to say that each discernible group, whether farmers or urban dwellers or political parties, must have representation equivalent to its numbers. And not in practicality, because the easily administrable standard of population equality adopted by Wesberry and Reynolds enables judges to decide whether a violation has occurred (and to remedy it) essentially on the of three readily determined factors — where the plaintiff lives, how many voters are in his district, and how many voters are in other districts; whereas requiring judges to decide whether a districting system will produce a statewide majority for a majority party casts them forth upon a sea of imponderables, and asks them to make determinations that not even election experts can agree upon. For these reasons, we find appellants' proposed standards neither discernible nor manageable. C For many of the same reasons, we also reject the standard suggested by Justice Powell in He agreed with the plurality that a plaintiff should show intent and effect, but believed that the ultimate inquiry ought to focus on whether district boundaries had been drawn solely for partisan *291 ends to the exclusion of "all other neutral factors relevant to the fairness of redistricting." 48 U.S., ; see also at 164-16. Under that inquiry, the courts should consider numerous factors, though "[n]o one factor should be dispositive." The most important would be "the shapes of voting districts and adherence to established political subdivision boundaries." "Other relevant considerations include the nature of the legislative procedures by which the apportionment law was adopted and legislative history reflecting contemporaneous legislative goals." These factors, which "bear directly on the fairness of a redistricting plan," combined with "evidence concerning population disparities and statistics tending to show vote dilution," make out a claim of unconstitutional partisan gerrymandering. While Justice Powell rightly criticized the plurality for failing to suggest a constitutionally based, judicially manageable standard, the standard proposed in his opinion also falls short of the mark. t is essentially a totality-of-the-circumstances analysis, where all conceivable factors, none of which is dispositive, are weighed with an eye to ascertaining whether the particular gerrymander has gone too far—or, in Justice Powell's terminology, whether it is not "fair." "Fairness" does not seem to us a judicially manageable standard. Fairness is compatible with noncontiguous districts, it is compatible with districts that straddle political subdivisions, and it is compatible with a party's not winning the number of seats that mirrors the proportion of its vote. Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts' intrusion into a process that is the very foundation of democratic decisionmaking. *292 V We turn next to consideration of the standards proposed by today's dissenters. We preface it with the observation that the mere fact that these four dissenters come up with three different standards—all of them different from the two proposed in and the one proposed here by appellants—goes a long way to establishing that there is no constitutionally discernible standard. A JUSTCE STEVENS concurs in the judgment that we should not address plaintiffs' statewide political gerrymandering challenges. Though he reaches that result via standing analysis, post, 328 while we reach it through political-question analysis, our conclusions are the same: these statewide claims are nonjusticiable. JUSTCE STEVENS would, however, require courts to consider political gerrymandering challenges at the individual-district level. Much of his dissent is addressed to the incompatibility of severe partisan gerrymanders with democratic principles. We do not disagree with that judgment, any more than we disagree with the judgment that it would be unconstitutional for the Senate to employ, in impeachment proceedings, procedures that are incompatible with its obligation to "try" impeachments. See The issue we have discussed is not whether severe partisan gerrymanders violate the Constitution, but whether it is for the courts to say when a violation has occurred, and to design a remedy. On that point, JUSTCE STEVENS's dissent is less helpful, saying, essentially, that if we can do it in the racial gerrymandering context we can do it here. We have at 28-288, the many reasons why that is not so. Only a few of them are challenged by JUSTCE STEVENS. He says that we "mistakenly assum[e] that race cannot provide a legitimate for making political *293 judgments." Post, at 338. But we do not say that race-conscious decisionmaking is always unlawful. Race can be used, for example, as an indicator to achieve the purpose of neighborhood cohesiveness in districting. What we have said is impermissible is "the purpose of segregating voters on the of race," at 286—that is to say, racial gerrymandering for race's sake, which would be the equivalent of political gerrymandering for politics' sake. JUSTCE STEVENS says we "er[r] in assuming that politics is `an ordinary and lawful motive'" in districting, post, 4—but all he brings forward to contest that is the argument that an excessive injection of politics is unlawful. So it is, and so does our opinion assume. That does not alter the reality that setting out to segregate voters by race is unlawful and hence rare, and setting out to segregate them by political affiliation is (so long as one doesn't go too far) lawful and hence ordinary. JUSTCE STEVENS's confidence that what courts have done with racial gerrymandering can be done with political gerrymandering rests in part upon his belief that "the same standards should apply," post, at 33. But in fact the standards are quite different. A purpose to discriminate on the of race receives the strictest scrutiny under the Equal Protection Clause, while a similar purpose to discriminate on the of politics does not. "[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. n fact, our country's long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the of race—would seem to compel the opposite conclusion." 09 U. S., at 60 That quoted passage was in direct response to (and rejection of) the suggestion made by JUSTCES White and STEVENS in dissent that "a racial gerrymander of the sort alleged here is functionally equivalent to *294 gerrymanders for nonracial purposes, such as political gerrymanders." See also 1 U.S. 92, ("We have not subjected political gerrymandering to strict scrutiny"). JUSTCE STEVENS relies on First Amendment cases to suggest that politically discriminatory gerrymanders are subject to strict scrutiny under the Equal Protection Clause. See post, 4-32. t is elementary that scrutiny levels are claim specific. An action that triggers a heightened level of scrutiny for one claim may receive a very different level of scrutiny for a different claim because the underlying rights, and consequently constitutional harms, are not comparable. To say that suppression of political speech (a claimed First Amendment violation) triggers strict scrutiny is not to say that failure to give political groups equal representation (a claimed equal protection violation) triggers strict scrutiny. Only an equal protection claim is before us in the present case—perhaps for the very good reason that a First Amendment claim, if it were sustained, would render unlawful all consideration of political affiliation in districting, just as it renders unlawful all consideration of political affiliation in hiring for non-policy-level government jobs. What cases such as require is not merely that Republicans be given a decent share of the jobs in a Democratic administration, but that political affiliation be disregarded. Having failed to make the case for strict scrutiny of political gerrymandering, JUSTCE STEVENS falls back on the argument that scrutiny levels simply do not matter for purposes of justiciability. He asserts that a standard imposing a strong presumption of invalidity (strict scrutiny) is no more discernible and manageable than a standard requiring an evenhanded balancing of all considerations with no thumb on the scales (ordinary scrutiny). To state this is to refute it. As is well known, strict scrutiny readily, and almost always, results in invalidation. Moreover, the mere fact that there *29 exist standards which this Court could apply—the proposition which much of JUSTCE STEVENS's opinion is devoted to establishing, see, e. g., post, 1-32, 340-341—does not mean that those standards are discernible in the Constitution. This Court may not willy-nilly apply standards—even manageable standards—having no relation to constitutional harms. JUSTCE STEVENS points out, see post, n. 1, that said differences between racial and political groups "may be relevant to the manner in which the case is adjudicated, but these differences do not justify a refusal to entertain such a case." 48 U.S., at 12. As 18 years have shown, was wrong. B JUSTCE SOUTER, like JUSTCE STEVENS, would restrict these plaintiffs, on the allegations before us, to district-specific political gerrymandering claims. Post, at 346, 33 Unlike JUSTCE STEVENS, however, JUSTCE SOUTER recognizes that there is no existing workable standard for adjudicating such claims. He proposes a "fresh start," post, at 34: a newly constructed standard loosely based in form on our Title V cases, see McDonnell Douglas and complete with a five-step prima facie test sewn together from parts of, among other things, our Voting Rights Act jurisprudence, law review articles, and apportionment cases. Even if these self-styled "clues" to unconstitutionality could be manageably applied, which we doubt, there is no reason to think they would detect the constitutional crime which JUSTCE SOUTER is investigating—an "extremity of unfairness" in partisan competition. Post, at 344. Under JUSTCE SOUTER's proposed standard, in order to challenge a particular district, a plaintiff must show (1) that he is a member of a "cohesive political group"; (2) "that the district of his residence paid little or no heed" to traditional districting principles; (3) that there were "specific correlations *296 between the district's deviations from traditional districting principles and the distribution of the population of his group"; (4) that a hypothetical district exists which includes the plaintiff's residence, remedies the packing or cracking of the plaintiff's group, and deviates less from traditional districting principles; and () that "the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group." Post, at 34-30. When those showings have been made, the burden would shift to the defendants to justify the district "by reference to objectives other than naked partisan advantage." Post, at 31. While this five-part test seems eminently scientific, upon analysis one finds that each of the last four steps requires a quantifying judgment that is unguided and ill suited to the development of judicial standards: How much disregard of traditional districting principles? How many correlations between deviations and distribution? How much remedying of packing or cracking by the hypothetical district? How many legislators must have had the intent to pack and crack—and how efficacious must that intent have been (must it have been, for example, a sine qua non cause of the districting, or a predominant cause)? At step two, for example, JUSTCE SOUTER would require lower courts to assess whether mapmakers paid "little or no heed to traditional districting principles." Post, at 348. What is a lower court to do when, as will often be the case, the district adheres to some traditional criteria but not others? JUSTCE SOUTER's only response to this question is to evade it: "t is not necessary now to say exactly how a district court would balance a good showing on one of these indices against a poor showing on another, for that sort of detail is best worked out case by case." Post, at 348-349. But the devil lurks precisely in such detail. The central problem is determining when political gerrymandering has gone too far. t does not solve that problem to break down the original unanswerable question *29 (How much political motivation and effect is too much?) into four more discrete but equally unanswerable questions. JUSTCE SOUTER's proposal is doomed to failure for a more basic reason: No test—yea, not even a five-part test—can possibly be successful unless one knows what he is testing for. n the present context, the test ought to identify deprivation of that minimal degree of representation or influence to which a political group is constitutionally entitled. As we have seen, the test sought (unhelpfully, but at least gamely) to specify what that minimal degree was: "[a] chance to effectively influence the political process." 48 U.S., So did the appellants' proposed test: "[the] ability to translate a majority of votes into a majority of seats." Brief for Appellants 20. JUSTCE SOUTER avoids the difficulties of those formulations by never telling us what his test is looking for, other than the utterly unhelpful "extremity of unfairness." He vaguely describes the harm he is concerned with as vote dilution, post, at 31, a term which usually implies some actual effect on the weight of a vote. But no element of his test looks to the effect of the gerrymander on the electoral success, the electoral opportunity, or even the political influence, of the plaintiff's group. We do not know the precise constitutional deprivation his test is designed to identify and prevent. Even if (though it is implausible) JUSTCE SOUTER believes that the constitutional deprivation consists of merely "vote dilution," his test would not even identify that effect. Despite his claimed reliance on the McDonnell Douglas framework, JUSTCE SOUTER would allow the plaintiff no opportunity to show that the mapmakers' compliance with traditional districting factors is pretextual.[10] His reason for *298 this is never stated, but it certainly cannot be that adherence to traditional districting factors negates any possibility of intentional vote dilution. As we have explained above, packing and cracking, whether intentional or no, are quite consistent with adherence to compactness and respect for political subdivision lines. See An even better example is the traditional criterion of incumbency protection. JUSTCE SOUTER has previously acknowledged it to be a traditional and constitutionally acceptable districting principle. See 1 U. S., 4-1048 Since that is so, his test would not protect those who are packed, and often tightly so, to ensure the reelection of representatives of either party. ndeed, efforts to maximize partisan representation statewide might well begin with packing voters of the opposing party into the districts of existing incumbents of that party. By this means an incumbent is protected, a potential adversary to the districting mollified, and votes of the opposing party are diluted. Like us, JUSTCE SOUTER acknowledges and accepts that "some intent to gain political advantage is inescapable whenever political bodies devise a district plan, and some effect results from the intent." Post, at 344. Thus, again like us, he recognizes that "the issue is one of how much is too much." And once those premises are conceded, the only line that can be drawn must be based, as JUSTCE SOUTER again candidly admits, upon a substantive "notio[n] of fairness." This is the same flabby goal that deprived Justice Powell's test of all determinacy. To be sure, JUSTCE SOUTER frames it somewhat differently: Courts must intervene, he says, when "partisan competition has reached an extremity of unfairness." We do not think the problem is solved by adding the modifier. *299 C We agree with much of JUSTCE BREYER's dissenting opinion, which convincingly demonstrates that "political considerations will likely play an important, and proper, role in the drawing of district boundaries." Post, at 38. This places JUSTCE BREYER, like the other dissenters, in the difficult position of drawing the line between good politics and bad politics. Unlike them, he would tackle this problem at the statewide level. The criterion JUSTCE BREYER proposes is nothing more precise than "the unjustified use of political factors to entrench a minority in power." Post, at 360 (emphasis in original). While he invokes in passing the Equal Protection Clause, it should be clear to any reader that what constitutes unjustified entrenchment depends on his own theory of "effective government." Post, at 36. While one must agree with JUSTCE BREYER's incredibly abstract starting point that our Constitution sought to create a "basically democratic" form of government, ib that is a long and impassable distance away from the conclusion that the Judiciary may assess whether a group (somehow defined) has achieved a level of political power (somehow defined) commensurate with that to which they would be entitled absent unjustified political machinations (whatever that means). JUSTCE BREYER provides no real guidance for the journey. Despite his promise to do so, ib he never tells us what he is testing for, beyond the unhelpful "unjustified entrenchment." Post, at 360. nstead, he "set[s] forth several sets of circumstances that lay out the indicia of abuse," "along a continuum," post, at 36, proceeding (presumably) from the most clearly unconstitutional to the possibly unconstitutional. With regard to the first "scenario," he is willing to assert that the indicia "would be sufficient to support a claim." Post, at 366. This seems refreshingly categorical, until one realizes that the indicia consist not merely of the failure of the party receiving the majority of votes to acquire *300 a majority of seats in two successive elections, but also of the fact that there is no "neutral" explanation for this phenomenon. But of course there always is a neutral explanation—if only the time-honored criterion of incumbent protection. The indicia set forth in JUSTCE BREYER's second scenario "could also add up to unconstitutional gerrymandering," ; and for those in the third "a court may conclude that the map crosses the constitutional line," post, at 36 We find none of this helpful. Each scenario suffers from at least one of the problems we have previously identified, most notably the difficulties of assessing partisan strength statewide and of ascertaining whether an entire statewide plan is motivated by political or neutral justifications, see at 28-286, 289-290. And even at that, the last two scenarios do not even purport to provide an answer, presumably leaving it to each district court to determine whether, under those circumstances, "unjustified entrenchment" has occurred. n sum, we neither know precisely what JUSTCE BREYER is testing for, nor precisely what fails the test. But perhaps the most surprising omission from JUSTCE BREYER's dissent, given his views on other matters, is the absence of any cost-benefit analysis. JUSTCE BREYER acknowledges that "a majority normally can work its political will," post, at 362, and well describes the number of actors, from statewide executive officers, to redistricting commissions, to Congress, to the People in ballot initiatives and referenda, that stand ready to make that happen. See post, at 362-363. He gives no instance (and we know none) of permanent frustration of majority will. But where the majority has failed to assert itself for some indeterminate period (two successive elections, if we are to believe his first scenario), JUSTCE BREYER simply assumes that "court action may prove necessary," post, at 364. Why so? n the real world, of course, court action that is available tends to be sought, not just where it is necessary, but where it is in the interest of the seeking party. And the vaguer the test *301 for availability, the more frequently interest rather than necessity will produce litigation. s the regular insertion of the judiciary into districting, with the delay and uncertainty that brings to the political process and the partisan enmity it brings upon the courts, worth the benefit to be achieved — an accelerated (by some unknown degree) effectuation of the majority will? We think not. V JUSTCE KENNEDY recognizes that we have "demonstrat[ed] the shortcomings of the other standards that have been considered to date," post, at 308 (opinion concurring in judgment). He acknowledges, moreover, that we "lack comprehensive and neutral principles for drawing electoral boundaries," post, at 306-30; and that there is an "absence of rules to limit and confine judicial intervention," post, at 30. From these premises, one might think that JUSTCE KENNEDY would reach the conclusion that political gerrymandering claims are nonjusticiable. nstead, however, he concludes that courts should continue to adjudicate such claims because a standard may one day be discovered. The first thing to be said about JUSTCE KENNEDY's disposition is that it is not legally available. The District Court in this case considered the plaintiffs' claims justiciable but dismissed them because the standard for unconstitutionality had not been met. t is logically impossible to affirm that dismissal without either (1) finding that the unconstitutional-districting standard applied by the District Court, or some other standard that it should have applied, has not been met, or (2) finding (as we have) that the claim is nonjusticiable. JUSTCE KENNEDY seeks to affirm "[b]ecause, in the case before us, we have no standard." Post, at 313. But it is our job, not the plaintiffs', to explicate the standard that makes the facts alleged by the plaintiffs adequate or inadequate to state a claim. We cannot nonsuit them for our failure to do so. *302 JUSTCE KENNEDY asserts that to declare nonjusticiability would be incautious. Post, at 311. Our rush to such a holding after a mere 18 years of fruitless litigation "contrasts starkly" he says, "with the more patient approach" that this Court has taken in the past. Post, at 310. We think not. When it has come to determining what areas fall beyond our Article authority to adjudicate, this Court's practice, from the earliest days of the Republic to the present, has been more reminiscent of Hannibal than of Hamlet. On July 18, 193, Secretary of State Thomas Jefferson wrote the Justices at the direction of President Washington, asking whether they might answer "questions [that] depend for their solution on the construction of our treaties, on the laws of nature and nations, and on the laws of the land," but that arise "under circumstances which do not give a cognisance of them to the tribunals of the country." 3 Correspondence and Public Papers of John Jay 486- (H. Johnston ed. 1891) (emphasis in original). The letter specifically invited the Justices to give less than a categorical yes-or-no answer, offering to present the particular questions "from which [the Justices] will themselves strike out such as any circumstances might, in their opinion, forbid them to pronounce on." at On August 8, 193, the Justices responded in a categorical and decidedly "impatient" manner, saying that the giving of advisory opinions — not just advisory opinions on particular questions but all advisory opinions, presumably even those concerning legislation affecting the Judiciary — was beyond their power. "[T]he lines of separation drawn by the Constitution between the three departments of the government" prevented it. The Court rejected the more "cautious" course of not "deny[ing] all hopes of intervention," post, at 310, but leaving the door open to the possibility that at least some advisory opinions (on a theory we could not yet imagine) would not violate the separation of powers. n a case filed after the Ohio National Guard's shooting *303 of students at Kent State University, the plaintiffs sought "initial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard." The Court held the suit nonjusticiable; the matter was committed to the political branches because, inter alia, "it is difficult to conceive of an area of governmental activity in which the courts have less competence." The Court did not adopt the more "cautious" course of letting the lower courts try their hand at regulating the military before we declared it impossible. Most recently, in the Court, joined by JUSTCE KENNEDY, held that a claim that the Senate had employed certain impermissible procedures in trying an impeachment was a nonjusticiable political question. Our decision was not limited to the particular procedures under challenge, and did not reserve the possibility that sometime, somewhere, technology or the wisdom derived from experience might make a court challenge to Senate impeachment all right. The only cases JUSTCE KENNEDY cites in defense of his never-say-never approach are and See post, at 310-311. provides no cover. There, all of the Justices who concluded that political gerrymandering claims are justiciable proceeded to describe what they regarded as the discernible and manageable standard that rendered it so. The lower courts were set wandering in the wilderness for 18 years not because the majority thought it a good idea, but because five Justices could not agree upon a single standard, and because the standard the plurality proposed turned out not to work. As for : t is true enough that, having had no experience whatever in apportionment matters of any sort, the Court there refrained from spelling out the equal protection standard.) But the judgment under review in Baker, unlike the one under review here, did not demand the determination of a standard. The lower *304 court in Baker had held the apportionment claim of the plaintiffs nonjusticiable, and so it was logically possible to dispose of the appeal by simply disagreeing with the nonjusticiability determination. As we observed earlier, that is not possible here, where the lower court has held the claim justiciable but unsupported by the facts. We must either enunciate the standard that causes us to agree or disagree with that merits judgment, or else affirm that the claim is beyond our competence to adjudicate. JUSTCE KENNEDY worries that "[a] determination by the Court to deny all hopes of intervention could erode confidence in the courts as much as would a premature decision to intervene." Post, at 310. But it is the function of the courts to provide relief, not hope. What we think would erode confidence is the Court's refusal to do its job — announcing that there may well be a valid claim here, but we are not yet prepared to figure it out. Moreover, that course does more than erode confidence; by placing the district courts back in the business of pretending to afford help when they in fact can give none, it deters the political process from affording genuine relief. As was noted by a lower court confronted with a political gerrymandering claim: "When the Supreme Court resolves Vieth, it may choose to retreat from its decision that the question is justiciable, or it may offer more guidance on the nature of the required effect. We have learned firsthand what will result if the Court chooses to do neither. Throughout this case we have borne witness to the powerful, conflicting forces nurtured by 's holding that the judiciary is to address `excessive' partisan line-drawing, while leaving the issue virtually unenforceable. nevitably, as the political party in power uses district lines to lock in its present advantage, the party out of power attempts to stretch the protective cover of the Voting Rights Act, urging dilution of critical standards that may, if accepted, aid their party in the short-run but *30 work to the detriment of persons now protected by the Act in the long-run. Casting the appearance both that there is a wrong and that the judiciary stands ready with a remedy, as applied steps on legislative incentives for self-correction." 298 F. Supp. 2d, But the conclusive refutation of JUSTCE KENNEDY's position is the point we first made: it is not an available disposition. We can affirm because political districting presents a nonjusticiable question; or we can affirm because we believe the correct standard which identifies unconstitutional political districting has not been met; we cannot affirm because we do not know what the correct standard is. Reduced to its essence, JUSTCE KENNEDY's opinion boils down to this: "As presently advised, know of no discernible and manageable standard that can render this claim justiciable. am unhappy about that, and hope that will be able to change my opinion in the future." What are the lower courts to make of this pronouncement? We suggest that they must treat it as a reluctant fifth vote against justiciability at district and statewide levels — a vote that may change in some future case but that holds, for the time being, that this matter is nonjusticiable. V We conclude that neither Article 2, nor the Equal Protection Clause, nor (what appellants only fleetingly invoke) Article 4, provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting. Considerations of stare decisis do not compel us to allow to stand. That case involved an interpretation of the Constitution, and the claims of stare decisis are at their weakest in that field, where our mistakes cannot be corrected by Congress. See 01 U.S. 808, They are doubly weak in because the majority's *306 inability to enunciate the judicially discernible and manageable standard that it thought existed (or did not think did not exist) presaged the need for reconsideration in light of subsequent experience. And they are triply weak because it is hard to imagine how any action taken in reliance upon could conceivably be frustrated — except the bringing of lawsuits, which is not the sort of primary conduct that is relevant. While we do not lightly overturn one of our own holdings, "when governing decisions are unworkable or are badly reasoned, `this Court has never felt constrained to follow precedent.'" 01 U.S., at 82 ). Eighteen years of essentially pointless litigation have persuaded us that is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims. The judgment of the District Court is affirmed. t is so ordered. JUSTCE KENNEDY, concurring in the judgment.

Justice Kennedy

concurring

Vieth v. Jubelirer

2004-04-28

https://www.courtlistener.com/opinion/134735/vieth-v-jubelirer/

https://www.courtlistener.com/api/rest/v3/clusters/134735/

2003-051

A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process. The Court is correct to refrain from directing this substantial intrusion into the Nation's political life. While agreeing with the plurality that the complaint the appellants filed in the District Court must be dismissed, and while understanding that great caution is necessary when approaching this subject, I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases. When presented with a claim of injury from partisan gerrymandering, courts confront two obstacles. First is the lack of comprehensive and neutral principles for drawing *307 electoral boundaries. No substantive definition of fairness in districting seems to command general assent. Second is the absence of rules to limit and confine judicial intervention. With uncertain limits, intervening courts — even when proceeding with best intentions — would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust. That courts can grant relief in districting cases where race is involved does not answer our need for fairness principles here. Those controversies implicate a different inquiry. They involve sorting permissible classifications in the redistricting context from impermissible ones. Race is an impermissible classification. See Shaw v. Reno, 509 U.S. 630 (1993). Politics is quite a different matter. See Gaffney v. Cummings, 412 U.S. 735, 752 (1973) ("It would be idle, we think, to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it"). A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective. The object of districting is to establish "fair and effective representation for all citizens." Reynolds v. Sims, 377 U.S. 533, 565-568 (1964). At first it might seem that courts could determine, by the exercise of their own judgment, whether political classifications are related to this object or instead burden representational rights. The lack, however, of any agreed upon model of fair and effective representation makes this analysis difficult to pursue. The second obstacle — the absence of rules to confine judicial intervention — is related to the first. Because there are yet no agreed upon substantive principles of fairness in districting, we have no basis on which to define clear, manageable, *308 and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights. Suitable standards for measuring this burden, however, are critical to our intervention. Absent sure guidance, the results from one gerrymandering case to the next would likely be disparate and inconsistent. In this case, we have not overcome these obstacles to determining that the challenged districting violated appellants' rights. The fairness principle appellants propose is that a majority of voters in the Commonwealth should be able to elect a majority of the Commonwealth's congressional delegation. There is no authority for this precept. Even if the novelty of the proposed principle were accompanied by a convincing rationale for its adoption, there is no obvious way to draw a satisfactory standard from it for measuring an alleged burden on representational rights. The plurality demonstrates the shortcomings of the other standards that have been considered to date. See ante, at Parts III and IV (demonstrating that the standards proposed in Davis v. Bandemer, 478 U.S. 109 (1986), by the parties before us, and by our dissenting colleagues are either unmanageable or inconsistent with precedent, or both). I would add two comments to the plurality's analysis. The first is that the parties have not shown us, and I have not been able to discover, helpful discussions on the principles of fair districting discussed in the annals of parliamentary or legislative bodies. Our attention has not been drawn to statements of principled, well-accepted rules of fairness that should govern districting, or to helpful formulations of the legislator's duty in drawing district lines. Second, even those criteria that might seem promising at the outset (e. g., contiguity and compactness) are not altogether sound as independent judicial standards for measuring a burden on representational rights. They cannot promise political neutrality when used as the basis for relief. Instead, it seems, a decision under these standards would *309 unavoidably have significant political effect, whether intended or not. For example, if we were to demand that congressional districts take a particular shape, we could not assure the parties that this criterion, neutral enough on its face, would not in fact benefit one political party over another. See Gaffney, supra, at 753 ("District lines are rarely neutral phenomena. They can well determine what district will be predominantly Democratic or predominantly Republican, or make a close race likely"); see also R. Bork, The Tempting of America: The Political Seduction of the Law 88-89 (1990) (documenting the author's service as a special master responsible for redistricting Connecticut and noting that his final plan so benefited the Democratic Party, albeit unintentionally, that the party chairman personally congratulated him); M. Altman, Modeling the Effect of Mandatory District Compactness on Partisan Gerrymanders, 17 Pol. Geography 989, 1000-1006 (1998) (explaining that compactness standards help Republicans because Democrats are more likely to live in high density regions). The challenge in finding a manageable standard for assessing burdens on representational rights has long been recognized. See Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory? 33 UCLA L. Rev. 1, 74 (1985) ("[W]hat matters to us, and what we think matters to almost all Americans when district lines are drawn, is how the fortunes of the parties and the policies the parties stand for are affected. When such things are at stake there is no neutrality. There is only political contest"). The dearth of helpful historical guidance must, in part, cause this uncertainty. There are, then, weighty arguments for holding cases like these to be nonjusticiable; and those arguments may prevail in the long run. In my view, however, the arguments are not so compelling that they require us now to bar all future claims of injury from a partisan gerrymander. It is not in our tradition to foreclose the judicial process from the attempt *310 to define standards and remedies where it is alleged that a constitutional right is burdened or denied. Nor is it alien to the Judiciary to draw or approve election district lines. Courts, after all, already do so in many instances. A determination by the Court to deny all hopes of intervention could erode confidence in the courts as much as would a premature decision to intervene. Our willingness to enter the political thicket of the apportionment process with respect to one-person, one-vote claims makes it particularly difficult to justify a categorical refusal to entertain claims against this other type of gerrymandering. The plurality's conclusion that absent an "easily administrable standard," ante, at 290, the appellants' claim must be nonjusticiable contrasts starkly with the more patient approach of Baker v. Carr, 369 U.S. 186 (1962), not to mention the controlling precedent on the question of justiciability of Davis v. Bandemer, supra, the case the plurality would overrule. See ante, at 305-306. In Baker the Court made clear that the more abstract standards that guide analysis of all Fourteenth Amendment claims sufficed to ensure justiciability of a one-person, one-vote claim. See 369 U.S., at 226. "Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action." Ibid. The Court said this before the more specific standard with which we are now familiar emerged to measure the burden nonequipopulous districting causes on representational rights. See Reynolds, 377 U. S., at 565-568 (concluding that *311 "[s]ince the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment," a legislature's reliance on other apportionment interests is invalid, arbitrary, and capricious action if it leads to unequal populations among districts). The plurality's response that in Baker this Court sat in review only of a nonjusticiability holding is wide of the mark. See ante, at 303-304. As the plurality itself instructs: Before a court can conclude that it "has [any] business entertaining [a] claim," it must conclude that some "judicially enforceable righ[t]" is at issue. Ante, at 277. Whether a manageable standard made the right at issue in Baker enforceable was as much a necessary inquiry there as it is here. In light of Baker and Davis v. Bandemer, which directly address the question of nonjusticiability in the specific context of districting and of asserted violations of the Fourteenth Amendment, the plurality's further survey of cases involving different approaches to the justiciability of different claims cannot be thought controlling. See ante, at 302-303. Even putting Baker to the side — and so assuming that the existence of a workable standard for measuring a gerrymander's burden on representational rights distinguishes one-person, one-vote claims from partisan gerrymandering claims for justiciability purposes — I would still reject the plurality's conclusions as to nonjusticiability. Relying on the distinction between a claim having or not having a workable standard of that sort involves a difficult proof: proof of a categorical negative. That is, the different treatment of claims otherwise so alike hinges entirely on proof that no standard could exist. This is a difficult proposition to establish, for proving a negative is a challenge in any context. That no such standard has emerged in this case should not be taken to prove that none will emerge in the future. Where important rights are involved, the impossibility of full analytical satisfaction is reason to err on the side of caution. Allegations of unconstitutional bias in apportionment are *312 most serious claims, for we have long believed that "the right to vote" is one of "those political processes ordinarily to be relied upon to protect minorities." United States v. Carolene Products Co., 304 U.S. 144, 153, n. 4 (1938). If a State passed an enactment that declared "All future apportionment shall be drawn so as most to burden Party X's rights to fair and effective representation, though still in accord with one-person, one-vote principles," we would surely conclude the Constitution had been violated. If that is so, we should admit the possibility remains that a legislature might attempt to reach the same result without that express directive. This possibility suggests that in another case a standard might emerge that suitably demonstrates how an apportionment's de facto incorporation of partisan classifications burdens rights of fair and effective representation (and so establishes the classification is unrelated to the aims of apportionment and thus is used in an impermissible fashion). The plurality says that 18 years, in effect, prove the negative. Ante, at 306 ("Eighteen years of essentially pointless litigation have persuaded us"). As JUSTICE SOUTER is correct to point out, however, during these past 18 years the lower courts could do no more than follow Davis v. Bandemer, which formulated a single, apparently insuperable standard. See post, at 344-345 (dissenting opinion). Moreover, by the timeline of the law 18 years is rather a short period. In addition, the rapid evolution of technologies in the apportionment field suggests yet unexplored possibilities. Computer assisted districting has become so routine and sophisticated that legislatures, experts, and courts can use databases to map electoral districts in a matter of hours, not months. See, e. g., Larios v. Cox, 305 F. Supp. 2d 1335 (ND Ga. 2004) (per curiam). Technology is both a threat and a promise. On the one hand, if courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow. On the other hand, these new *313 technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties. That would facilitate court efforts to identify and remedy the burdens, with judicial intervention limited by the derived standards. If suitable standards with which to measure the burden a gerrymander imposes on representational rights did emerge, hindsight would show that the Court prematurely abandoned the field. That is a risk the Court should not take. Instead, we should adjudicate only what is in the papers before us. See Baker, 369 U. S., at 331 (Harlan, J., dissenting) (concluding that the malapportionment claim "should have been dismissed for `failure to state a claim upon which relief can be granted'" because "[u]ntil it is first decided to what extent [the] right [to apportion] is limited by the Federal Constitution, and whether what [a State] has done or failed to do ... runs afoul of any such limitation, we need not reach the issues of `justiciability' or `political question'"). Because, in the case before us, we have no standard by which to measure the burden appellants claim has been imposed on their representational rights, appellants cannot establish that the alleged political classifications burden those same rights. Failing to show that the alleged classifications are unrelated to the aims of apportionment, appellants' evidence at best demonstrates only that the legislature adopted political classifications. That describes no constitutional flaw, at least under the governing Fourteenth Amendment standard. See Gaffney, 412 U. S., at 752. As a consequence, appellants' complaint alleges no impermissible use of political classifications and so states no valid claim on which relief may be granted. It must be dismissed as a result. See Fed. Rule Civ. Proc. 12(b)(6); see also Davis v. Bandemer, 478 U. S., at 134. The plurality thinks I resolve this case with reference to no standard, see ante, at 301, but that is wrong. The Fourteenth *314 Amendment standard governs; and there is no doubt of that. My analysis only notes that if a subsidiary standard could show how an otherwise permissible classification, as applied, burdens representational rights, we could conclude that appellants' evidence states a provable claim under the Fourteenth Amendment standard. Though in the briefs and at argument the appellants relied on the Equal Protection Clause as the source of their substantive right and as the basis for relief, I note that the complaint in this case also alleged a violation of First Amendment rights. See Amended Complaint ¶ 48; Juris. Statement 145a. The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views. See Elrod v. Burns, 427 U.S. 347 (1976) (plurality opinion). Under general First Amendment principles those burdens in other contexts are unconstitutional absent a compelling government interest. See id., at 362. "Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views." California Democratic Party v. Jones, 530 U.S. 567, 574 (2000). As these precedents show, First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters' representational rights. The plurality suggests there is no place for the First Amendment in this area. See ante, at 294. The implication *315 is that under the First Amendment any and all consideration of political interests in an apportionment would be invalid. Ibid. ("Only an equal protection claim is before us in the present case — perhaps for the very good reason that a First Amendment claim, if it were sustained, would render unlawful all consideration of political affiliation in districting"). That misrepresents the First Amendment analysis. The inquiry is not whether political classifications were used. The inquiry instead is whether political classifications were used to burden a group's representational rights. If a court were to find that a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. Of course, all this depends first on courts' having available a manageable standard by which to measure the effect of the apportionment and so to conclude that the State did impose a burden or restriction on the rights of a party's voters. Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause. The equal protection analysis puts its emphasis on the permissibility of an enactment's classifications. This works where race is involved since classifying by race is almost never permissible. It presents a more complicated question when the inquiry is whether a generally permissible classification has been used for an impermissible purpose. That question can only be answered in the affirmative by the subsidiary showing that the classification as applied imposes unlawful burdens. The First Amendment analysis concentrates on whether the legislation burdens the representational rights of the complaining party's voters for reasons of ideology, beliefs, or political association. The analysis allows a pragmatic or functional assessment that accords some latitude to the States. See Eu v. San Francisco *316 County Democratic Central Comm., 489 U.S. 214 (1989); Anderson v. Celebrezze, 460 U.S. 780 (1983). Finally, I do not understand the plurality to conclude that partisan gerrymandering that disfavors one party is permissible. Indeed, the plurality seems to acknowledge it is not. See ante, at 292 ("We do not disagree with [the] judgment" that "partisan gerrymanders [are incompatible] with democratic principles"); ante, at 293 (noting that it is the case, and that the plurality opinion assumes it to be the case, that "an excessive injection of politics [in districting] is unlawful"). This is all the more reason to admit the possibility of later suits, while holding just that the parties have failed to prove, under our "well developed and familiar" standard, that these legislative classifications "reflec[t] no policy, but simply arbitrary and capricious action." Baker, 369 U. S., at 226. That said, courts must be cautious about adopting a standard that turns on whether the partisan interests in the redistricting process were excessive. Excessiveness is not easily determined. Consider these apportionment schemes: In one State, Party X controls the apportionment process and draws the lines so it captures every congressional seat. In three other States, Party Y controls the apportionment process. It is not so blatant or egregious, but proceeds by a more subtle effort, capturing less than all the seats in each State. Still, the total effect of Party Y's effort is to capture more new seats than Party X captured. Party X's gerrymander was more egregious. Party Y's gerrymander was more subtle. In my view, however, each is culpable. * * * The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself. Here, one has the sense that legislative restraint was abandoned. That should not be thought to serve the interests of our political order. Nor should it be thought to serve *317 our interest in demonstrating to the world how democracy works. Whether spoken with concern or pride, it is unfortunate that our legislators have reached the point of declaring that, when it comes to apportionment: "`We are in the business of rigging elections.'" Hoeffel, Six Incumbents Are a Week Away from Easy Election, Winston-Salem Journal, Jan. 27, 1998, p. B1 (quoting a North Carolina state senator). Still, the Court's own responsibilities require that we refrain from intervention in this instance. The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper. If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief. With these observations, I join the judgment of the Court.

A decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process. The Court is correct to refrain from directing this substantial intrusion into the Nation's political life. While agreeing with the plurality that the complaint the appellants filed in the District Court must be dismissed, and while understanding that great caution is necessary when approaching this subject, I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases. When presented with a claim of injury from partisan gerrymandering, courts confront two obstacles. First is the lack of comprehensive and neutral principles for drawing *307 electoral boundaries. No substantive definition of fairness in districting seems to command general assent. Second is the absence of rules to limit and confine judicial intervention. With uncertain limits, intervening courts — even when proceeding with best intentions — would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust. That courts can grant relief in districting cases where race is involved does not answer our need for fairness principles here. Those controversies implicate a different inquiry. They involve sorting permissible classifications in the redistricting context from impermissible ones. Race is an impermissible classification. See Politics is quite a different matter. See A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective. The object of districting is to establish "fair and effective representation for all citizens." At first it might seem that courts could determine, by the exercise of their own judgment, whether political classifications are related to this object or instead burden representational rights. The lack, however, of any agreed upon model of fair and effective representation makes this analysis difficult to pursue. The second obstacle — the absence of rules to confine judicial intervention — is related to the first. Because there are yet no agreed upon substantive principles of fairness in districting, we have no basis on which to define clear, manageable, *308 and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights. Suitable standards for measuring this burden, however, are critical to our intervention. Absent sure guidance, the results from one gerrymandering case to the next would likely be disparate and inconsistent. In this case, we have not overcome these obstacles to determining that the challenged districting violated appellants' rights. The fairness principle appellants propose is that a majority of voters in the Commonwealth should be able to elect a majority of the Commonwealth's congressional delegation. There is no authority for this precept. Even if the novelty of the proposed principle were accompanied by a convincing rationale for its adoption, there is no obvious way to draw a satisfactory standard from it for measuring an alleged burden on representational rights. The plurality demonstrates the shortcomings of the other standards that have been considered to date. See ante, at Parts III and IV by the parties before us, and by our dissenting colleagues are either unmanageable or inconsistent with precedent, or both). I would add two comments to the plurality's analysis. The first is that the parties have not shown us, and I have not been able to discover, helpful discussions on the principles of fair districting discussed in the annals of parliamentary or legislative bodies. Our attention has not been drawn to statements of principled, well-accepted rules of fairness that should govern districting, or to helpful formulations of the legislator's duty in drawing district lines. Second, even those criteria that might seem promising at the outset (e. g., contiguity and compactness) are not altogether sound as independent judicial standards for measuring a burden on representational rights. They cannot promise political neutrality when used as the basis for relief. Instead, it seems, a decision under these standards would *309 unavoidably have significant political effect, whether intended or not. For example, if we were to demand that congressional districts take a particular shape, we could not assure the parties that this criterion, neutral enough on its face, would not in fact benefit one political party over another. See ; see also R. Bork, The Tempting of America: The Political Seduction of the Law 88-89 (1990) (documenting the author's service as a special master responsible for redistricting Connecticut and noting that his final plan so benefited the Democratic Party, albeit unintentionally, that the party chairman personally congratulated him); M. Altman, Modeling the Effect of Mandatory District Compactness on Partisan Gerrymanders, 17 Pol. Geography 989, 1000-1006 (1998) (explaining that compactness standards help Republicans because Democrats are more likely to live in high density regions). The challenge in finding a manageable standard for assessing burdens on representational rights has long been recognized. See Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory? The dearth of helpful historical guidance must, in part, cause this uncertainty. There are, then, weighty arguments for holding cases like these to be nonjusticiable; and those arguments may prevail in the long run. In my view, however, the arguments are not so compelling that they require us now to bar all future claims of injury from a partisan gerrymander. It is not in our tradition to foreclose the judicial process from the attempt *310 to define standards and remedies where it is alleged that a constitutional right is burdened or denied. Nor is it alien to the Judiciary to draw or approve election district lines. Courts, after all, already do so in many instances. A determination by the Court to deny all hopes of intervention could erode confidence in the courts as much as would a premature decision to intervene. Our willingness to enter the political thicket of the apportionment process with respect to one-person, one-vote claims makes it particularly difficult to justify a categorical refusal to entertain claims against this other type of gerrymandering. The plurality's conclusion that absent an "easily administrable standard," ante, at 290, the appellants' claim must be nonjusticiable contrasts starkly with the more patient approach of not to mention the controlling precedent on the question of justiciability of the case the plurality would overrule. See ante, at 305-306. In the Court made clear that the more abstract standards that guide analysis of all Fourteenth Amendment claims sufficed to ensure justiciability of a one-person, one-vote claim. See "Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action." The Court said this before the more specific standard with which we are now familiar emerged to measure the burden nonequipopulous districting causes on representational rights. See 377 U. S., at (concluding that *311 "[s]ince the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment," a legislature's reliance on other apportionment interests is invalid, arbitrary, and capricious action if it leads to unequal populations among districts). The plurality's response that in this Court sat in review only of a nonjusticiability holding is wide of the mark. See ante, at 303-304. As the plurality itself instructs: Before a court can conclude that it "has [any] business entertaining [a] claim," it must conclude that some "judicially enforceable righ[t]" is at issue. Ante, at 277. Whether a manageable standard made the right at issue in enforceable was as much a necessary inquiry there as it is here. In light of and which directly address the question of nonjusticiability in the specific context of districting and of asserted violations of the Fourteenth Amendment, the plurality's further survey of cases involving different approaches to the justiciability of different claims cannot be thought controlling. See ante, at 302-303. Even putting to the side — and so assuming that the existence of a workable standard for measuring a gerrymander's burden on representational rights distinguishes one-person, one-vote claims from partisan gerrymandering claims for justiciability purposes — I would still reject the plurality's conclusions as to nonjusticiability. Relying on the distinction between a claim having or not having a workable standard of that sort involves a difficult proof: proof of a categorical negative. That is, the different treatment of claims otherwise so alike hinges entirely on proof that no standard could exist. This is a difficult proposition to establish, for proving a negative is a challenge in any context. That no such standard has emerged in this case should not be taken to prove that none will emerge in the future. Where important rights are involved, the impossibility of full analytical satisfaction is reason to err on the side of caution. Allegations of unconstitutional bias in apportionment are *312 most serious claims, for we have long believed that "the right to vote" is one of "those political processes ordinarily to be relied upon to protect minorities." United If a State passed an enactment that declared "All future apportionment shall be drawn so as most to burden Party X's rights to fair and effective representation, though still in accord with one-person, one-vote principles," we would surely conclude the Constitution had been violated. If that is so, we should admit the possibility remains that a legislature might attempt to reach the same result without that express directive. This possibility suggests that in another case a standard might emerge that suitably demonstrates how an apportionment's de facto incorporation of partisan classifications burdens rights of fair and effective representation (and so establishes the classification is unrelated to the aims of apportionment and thus is used in an impermissible fashion). The plurality says that 18 years, in effect, prove the negative. Ante, at 306 ("Eighteen years of essentially pointless litigation have persuaded us"). As JUSTICE SOUTER is correct to point out, however, during these past 18 years the lower courts could do no more than follow which formulated a single, apparently insuperable standard. See post, at 344-345 (dissenting opinion). Moreover, by the timeline of the law 18 years is rather a short period. In addition, the rapid evolution of technologies in the apportionment field suggests yet unexplored possibilities. Computer assisted districting has become so routine and sophisticated that legislatures, experts, and courts can use databases to map electoral districts in a matter of hours, not months. See, e. g., Technology is both a threat and a promise. On the one hand, if courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow. On the other hand, these new *313 technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties. That would facilitate court efforts to identify and remedy the burdens, with judicial intervention limited by the derived standards. If suitable standards with which to measure the burden a gerrymander imposes on representational rights did emerge, hindsight would show that the Court prematurely abandoned the field. That is a risk the Court should not take. Instead, we should adjudicate only what is in the papers before us. See (concluding that the malapportionment claim "should have been dismissed for `failure to state a claim upon which relief can be granted'" because "[u]ntil it is first decided to what extent [the] right [to apportion] is limited by the Federal Constitution, and whether what [a State] has done or failed to do runs afoul of any such limitation, we need not reach the issues of `justiciability' or `political question'"). Because, in the case before us, we have no standard by which to measure the burden appellants claim has been imposed on their representational rights, appellants cannot establish that the alleged political classifications burden those same rights. Failing to show that the alleged classifications are unrelated to the aims of apportionment, appellants' evidence at best demonstrates only that the legislature adopted political classifications. That describes no constitutional flaw, at least under the governing Fourteenth Amendment standard. See 412 U. S., at As a consequence, appellants' complaint alleges no impermissible use of political classifications and so states no valid claim on which relief may be granted. It must be dismissed as a result. See Fed. Rule Civ. Proc. 12(b)(6); see also The plurality thinks I resolve this case with reference to no standard, see ante, at 301, but that is wrong. The Fourteenth *314 Amendment standard governs; and there is no doubt of that. My analysis only notes that if a subsidiary standard could show how an otherwise permissible classification, as applied, burdens representational rights, we could conclude that appellants' evidence states a provable claim under the Fourteenth Amendment standard. Though in the briefs and at argument the appellants relied on the Equal Protection Clause as the source of their substantive right and as the basis for relief, I note that the complaint in this case also alleged a violation of First Amendment rights. See Amended Complaint ¶ 48; Juris. Statement 145a. The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views. See Under general First Amendment principles those burdens in other contexts are unconstitutional absent a compelling government interest. See "Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views." California Democratic 5 As these precedents show, First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters' representational rights. The plurality suggests there is no place for the First Amendment in this area. See ante, at 294. The implication *315 is that under the First Amendment any and all consideration of political interests in an apportionment would be invalid. That misrepresents the First Amendment analysis. The inquiry is not whether political classifications were used. The inquiry instead is whether political classifications were used to burden a group's representational rights. If a court were to find that a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. Of course, all this depends first on courts' having available a manageable standard by which to measure the effect of the apportionment and so to conclude that the State did impose a burden or restriction on the rights of a party's voters. Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause. The equal protection analysis puts its emphasis on the permissibility of an enactment's classifications. This works where race is involved since classifying by race is almost never permissible. It presents a more complicated question when the inquiry is whether a generally permissible classification has been used for an impermissible purpose. That question can only be answered in the affirmative by the subsidiary showing that the classification as applied imposes unlawful burdens. The First Amendment analysis concentrates on whether the legislation burdens the representational rights of the complaining party's voters for reasons of ideology, beliefs, or political association. The analysis allows a pragmatic or functional assessment that accords some latitude to the States. See ; Finally, I do not understand the plurality to conclude that partisan gerrymandering that disfavors one party is permissible. Indeed, the plurality seems to acknowledge it is not. See ante, at 292 ("We do not disagree with [the] judgment" that "partisan gerrymanders [are incompatible] with democratic principles"); ante, at 293 (noting that it is the case, and that the plurality opinion assumes it to be the case, that "an excessive injection of politics [in districting] is unlawful"). This is all the more reason to admit the possibility of later suits, while holding just that the parties have failed to prove, under our "well developed and familiar" standard, that these legislative classifications "reflec[t] no policy, but simply arbitrary and capricious action." That said, courts must be cautious about adopting a standard that turns on whether the partisan interests in the redistricting process were excessive. Excessiveness is not easily determined. Consider these apportionment schemes: In one State, Party X controls the apportionment process and draws the lines so it captures every congressional seat. In three other States, Party Y controls the apportionment process. It is not so blatant or egregious, but proceeds by a more subtle effort, capturing less than all the seats in each State. Still, the total effect of Party Y's effort is to capture more new seats than Party X captured. Party X's gerrymander was more egregious. Party Y's gerrymander was more subtle. In my view, however, each is culpable. * * * The ordered working of our Republic, and of the democratic process, depends on a sense of decorum and restraint in all branches of government, and in the citizenry itself. Here, one has the sense that legislative restraint was abandoned. That should not be thought to serve the interests of our political order. Nor should it be thought to serve *317 our interest in demonstrating to the world how democracy works. Whether spoken with concern or pride, it is unfortunate that our legislators have reached the point of declaring that, when it comes to apportionment: "`We are in the business of rigging elections.'" Hoeffel, Six Incumbents Are a Week Away from Easy Election, Winston-Salem Journal, Jan. 27, 1998, p. B1 (quoting a North Carolina state senator). Still, the Court's own responsibilities require that we refrain from intervention in this instance. The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper. If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief. With these observations, I join the judgment of the Court.

Justice Stevens

dissenting

Vieth v. Jubelirer

2004-04-28

https://www.courtlistener.com/opinion/134735/vieth-v-jubelirer/

https://www.courtlistener.com/api/rest/v3/clusters/134735/

2003-051

The central question presented by this case is whether political gerrymandering claims are justiciable. Although our reasons for coming to this conclusion differ, five Members of the Court are convinced that the plurality's answer to that question is erroneous. Moreover, as is apparent from our separate writings today, we share the view that, even if these appellants are not entitled to prevail, it would be contrary to precedent and profoundly unwise to foreclose all judicial review of similar claims that might be advanced in the future. That we presently have somewhat differing views — concerning both the precedential value of some of our recent cases and the standard that should be applied in future cases — should not obscure the fact that the areas of agreement set forth in the separate opinions are of far greater significance. The concept of equal justice under law requires the State to govern impartially. See Romer v. Evans, 517 U.S. 620, 623 (1996); Lehr v. Robertson, 463 U.S. 248, 265 (1983); New York City Transit Authority v. Beazer, 440 U.S. 568, 587 *318 (1979). Today's plurality opinion would exempt governing officials from that duty in the context of legislative redistricting and would give license, for the first time, to partisan gerrymanders that are devoid of any rational justification. In my view, when partisanship is the legislature's sole motivation — when any pretense of neutrality is forsaken unabashedly and all traditional districting criteria are subverted for partisan advantage — the governing body cannot be said to have acted impartially. Although we reaffirm the central holding of the Court in Davis v. Bandemer, 478 U.S. 109 (1986), we have not reached agreement on the standard that should govern partisan gerrymandering claims. I would decide this case on a narrow ground. Plaintiffs-appellants urge us to craft new rules that in effect would authorize judicial review of statewide election results to protect the democratic process from a transient majority's abuse of its power to define voting districts. I agree with the plurality's refusal to undertake that ambitious project. Ante, at 284-290. I am persuaded, however, that the District Court failed to apply well-settled propositions of law when it granted the defendants' motion to dismiss plaintiff-appellant Susan Furey's gerrymandering claim. According to the complaint, Furey is a registered Democrat who resides at an address in Montgomery County, Pennsylvania, that was located under the 1992 districting plan in Congressional District 13.[1] Under the new plan adopted by the General Assembly in 2002, Furey's address now places her in the "non-compact" District 6.[2] Furey alleges that the new districting plan was created "solely" to effectuate the interests of Republicans,[3] and that the General Assembly relied "exclusively" on a principle of "maximum partisan advantage" when drawing the plan.[4] In my judgment, Furey's *319 allegations are plainly sufficient to establish: (1) that she has standing to challenge the constitutionality of District 6; (2) that her district-specific claim is not foreclosed by the Bandemer plurality's rejection of a statewide claim of political gerrymandering; and (3) that she has stated a claim that, at least with respect to District 6, Pennsylvania's redistricting plan violates the equal protection principles enunciated in our voting rights cases both before and after Bandemer. The District Court therefore erred when it granted the defendants' motion to dismiss Furey's claim. I Prior to our seminal decision in Baker v. Carr, 369 U.S. 186 (1962), a majority of this Court had heeded Justice Frankfurter's repeated warnings about the dire consequences of entering the "political thicket" of legislative districting. Colegrove v. Green, 328 U.S. 549, 556 (1946). As a result, even the most egregious gerrymanders were sheltered from judicial review.[5] It was after Baker that we first decided that the Constitution prohibits legislators from drawing district lines that diminish the value of individual votes in overpopulated districts. In reaching that conclusion, *320 we explained that "legislatures . . . should be bodies which are collectively responsive to the popular will," Reynolds v. Sims, 377 U.S. 533, 565 (1964), and we accordingly described "the basic aim of legislative apportionment" as "achieving . . . fair and effective representation for all citizens," id., at 565-566. Consistent with that goal, we also reviewed claims that the majority had discriminated against particular groups of voters by drawing multimember districts that threatened "to minimize or cancel out the voting strength of racial or political elements of the voting population." Fortson v. Dorsey, 379 U.S. 433, 439 (1965). Such districts were "vulnerable" to constitutional challenge "if racial or political groups ha[d] been fenced out of the political process and their voting strength invidiously minimized." Gaffney v. Cummings, 412 U.S. 735, 754 (1973). See also Whitcomb v. Chavis, 403 U.S. 124, 143 (1971); Burns v. Richardson, 384 U.S. 73, 88 (1966). Our holding in Bandemer, 478 U. S., at 118-127, that partisan gerrymandering claims are justiciable followed ineluctably from the central reasoning in Baker, 369 U.S. 186. What was true in Baker is no less true in this context: "The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home if we take issue with [Pennsylvania] as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary *321 and capricious action." Id., at 226 (footnote omitted). "[T]hat the [gerrymandering] claim is submitted by a political group, rather than a racial group, does not distinguish [the cases] in terms of justiciability." Bandemer, 478 U. S., at 125. At issue in this case, as the plurality states, ante, at 278, is Baker's second test — the presence or absence of judicially manageable standards. The judicial standards applicable to gerrymandering claims are deeply rooted in decisions that long preceded Bandemer and have been refined in later cases. Among those well-settled principles is the understanding that a district's peculiar shape might be a symptom of an illicit purpose in the line-drawing process. Most notably, in Gomillion v. Lightfoot, 364 U.S. 339, 340 (1960), the Court invalidated an Alabama statute that altered the boundaries of the city of Tuskegee "from a square to an uncouth twenty-eight-sided figure" for the sole purpose of preventing African-Americans from voting in municipal elections. The allegations of bizarre shape and improper motive, "if proven, would abundantly [have] establish[ed] that Act 140 was not an ordinary geographic redistricting measure even within familiar abuses of gerrymandering." Id., at 341. Justice Fortas' concurring opinion in Kirkpatrick v. Preisler, 394 U.S. 526, 538 (1969), which referred to gerrymandering as "the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes," also identified both shape and purpose as relevant standards. The maps attached as exhibits in Gomillion, 364 U. S., at 348 (Appendix to opinion of the Court), and in subsequent voting rights cases demonstrate that an "uncouth" or bizarre shape can easily identify a district designed for a single-minded, nonneutral purpose. With purpose as the ultimate inquiry, other considerations have supplied ready standards for testing the lawfulness of a gerrymander. In his dissent in Bandemer, Justice Powell *322 explained that "the merits of a gerrymandering claim must be determined by reference to the configurations of the districts, the observance of political subdivision lines, and other criteria that have independent relevance to the fairness of redistricting." 478 U.S., at 165. Applying this three-part standard, Justice Powell first reviewed the procedures used in Indiana's redistricting process and noted that the party in power had excluded the opposition from its deliberations and had placed excessive weight on data concerning party voting trends. Id., at 175-176. Second, Justice Powell pointed to the strange shape of districts that conspicuously ignored traditional districting principles. Id., at 176-177. He noted the impact of such shapes on residents of the uncouth districts,[6] and he included in his opinion maps that illustrated the irregularity of the district shapes, id., at 181, 183. Third and finally, Justice Powell reviewed other "substantial evidence," including contemporaneous statements and press accounts, demonstrating that the architects of the districts "were motivated solely by partisan considerations." Id., at 177. The Court has made use of all three parts of Justice Powell's standard in its recent racial gerrymandering jurisprudence. In those cases, the Court has examined claims that redistricting schemes violate the equal protection guarantee where they are "so highly irregular" on their face that they "rationally cannot be understood as anything other than an effort" to segregate voters by race, Shaw v. Reno, 509 U.S. 630, 646-647 (1993) (Shaw I), or where "race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines," Miller v. Johnson, 515 U.S. 900, 913 (1995). See *323 also Easley v. Cromartie, 532 U.S. 234, 241 (2001); Shaw v. Hunt, 517 U.S. 899, 905 (1996) (Shaw II).[7] The Shaw line of cases has emphasized that "reapportionment is one area in which appearances do matter," Shaw I, 509 U. S., at 647, and has focused both on the shape of the challenged districts and the purpose behind the line-drawing in assessing the constitutionality of majority-minority districts under the Equal Protection Clause. These decisions, like Justice Powell's opinion in Bandemer, have also considered the process by which the districting schemes were enacted,[8] looked to other evidence demonstrating that purely improper considerations motivated the decision,[9] and included maps illustrating outlandish district shapes.[10] Given this clear line of precedents, I should have thought the question of justiciability in cases such as this — where a set of plaintiffs argues that a single motivation resulted in a districting scheme with discriminatory effects — to be well settled. The plurality's contrary conclusion cannot be *324 squared with our long history of voting rights decisions. Especially perplexing is the plurality's ipse dixit distinction of our racial gerrymandering cases. Notably, the plurality does not argue that the judicially manageable standards that have been used to adjudicate racial gerrymandering claims would not be equally manageable in political gerrymandering cases. Instead, its distinction of those cases rests on its view that race as a districting criterion is "much more rarely encountered" than partisanship, ante, at 286, and that determining whether race — "a rare and constitutionally suspect motive" — dominated a districting decision "is quite different from determining whether [such a decision] is so substantially affected by the excess of an ordinary and lawful motive as to [be] invali[d]," ibid. But those considerations are wholly irrelevant to the issue of justiciability. To begin with, the plurality errs in assuming that politics is "an ordinary and lawful motive." We have squarely rejected the notion that a "purpose to discriminate on the basis of politics," ante, at 286, 293, is never subject to strict scrutiny. On the contrary, "political belief and association constitute the core of those activities protected by the First Amendment," Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality opinion), and discriminatory governmental decisions that burden fundamental First Amendment interests are subject to strict scrutiny, id., at 363; cf. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 94-95 (1972). Thus, unless party affiliation is an appropriate requirement for the position in question, government officials may not base a decision to hire, promote, transfer, recall, discharge, or retaliate against an employee, or to terminate a contract, on the individual's partisan affiliation or speech. See Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 674-675 (1996); O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 716-717 (1996); Rutan v. Republican Party of Ill., 497 U.S. 62, 64-65 (1990); Branti v. Finkel, 445 U.S. 507, *325 519-520 (1980); Elrod, 427 U. S., at 355-363.[11] It follows that political affiliation is not an appropriate standard for excluding voters from a congressional district. The plurality argues that our patronage cases do not support the proposition that strict scrutiny should be applied in political gerrymandering cases because "[i]t is elementary that scrutiny levels are claim specific." Ante, at 294. It is also elementary, however, that the level of scrutiny is relevant to the question whether there has been a constitutional violation, not the question of justiciability.[12] The standards outlined above are discernible and judicially manageable regardless of the number of cases in which they must be applied or the level of scrutiny at which the analysis occurs.[13] Thus, the dicta from Shaw I and Bush v. Vera, 517 U.S. 952 (1996), on which the plurality relies, ante, at 293-294, are beside the point, because they speak not at all to the subject of justiciability. And while of course a difference exists between *326 the constitutional interests protected by the First and Fourteenth Amendments, the relevant lesson of the patronage cases is that partisanship is not always as benign a consideration as the plurality appears to assume. In any event, as I understand the plurality's opinion, it seems to agree that if the State goes "too far" — if it engages in "political gerrymandering for politics' sake" — it violates the Constitution in the same way as if it undertakes "racial gerrymandering for race's sake." Ante, at 293. But that sort of constitutional violation cannot be touched by the courts, the plurality maintains, because the judicial obligation to intervene is "dubious." Ante, at 286.[14] State action that discriminates against a political minority for the sole and unadorned purpose of maximizing the power of the majority plainly violates the decisionmaker's duty to remain impartial. See, e. g., Lehr, 463 U. S., at 265. Gerrymanders necessarily rest on legislators' predictions that "members of certain identifiable groups . . . will vote in the same way." Mobile v. Bolden, 446 U.S. 55, 87 (1980) (STEVENS, J., concurring in judgment). "In the line-drawing process, racial, religious, ethnic, and economic gerrymanders are all species of political gerrymanders." Id., at 88. Thus, the critical issue in both racial and political gerrymandering cases is the same: whether a single nonneutral criterion controlled the districting process to such an extent that the Constitution was offended. This Court has treated that precise question as justiciable in Gomillion and in the Shaw line of cases, and today's plurality has supplied no persuasive reason *327 for distinguishing the justiciability of partisan gerrymanders. Those cases confirm and reinforce the holding that partisan gerrymandering claims are justiciable.[15] II The plurality opinion in Bandemer dealt with a claim that the Indiana apportionment scheme for state legislative districts discriminated against Democratic voters on a statewide basis. 478 U.S., at 127. In my judgment, the Bandemer Court was correct to entertain that statewide challenge, because the plaintiffs in that case alleged a group harm that affected members of their party throughout the State. In the subsequent line of racial gerrymandering cases, however, the Court shifted its focus from statewide challenges and required, as a matter of standing, that plaintiffs stating race-based equal protection claims actually reside in the districts they are challenging. See United States v. Hays, 515 U.S. 737, 745 (1995). Because Hays has altered the standing rules for gerrymandering claims — and because, in my view, racial and political gerrymanders are species of the same constitutional concern — the Hays standing rule requires dismissal of the statewide claim.[16] But that does not *328 end the matter. Challenges to specific districts, such as those considered in the Shaw cases, relate to a different type of "representational" harm, and those allegations necessarily must be considered on a district-by-district basis. The complaint in this case alleges injuries of both types — a group harm to Democratic voters throughout Pennsylvania and a more individualized representational injury to Furey as a resident of District 6. In a challenge to a statewide districting plan, plaintiffs-appellants complain that they have been injured because of their membership in a particular, identifiable group. The plaintiffs-appellees in Bandemer, for example, alleged "that Democratic voters over the State as a whole, not Democratic voters in particular districts, ha[d] been subjected to unconstitutional discrimination." 478 U.S., at 127 (citing complaint). They specifically claimed that they were injured as members of a group because the number of Democratic representatives was not commensurate with the number of Democratic voters throughout Indiana. Much like the plaintiffs-appellees in Bandemer, plaintiffs-appellants in this case allege that the statewide plan will enable Republicans, who constitute about half of Pennsylvania's voters, to elect 13 or 14 members of the State's 19-person congressional delegation.[17] Under Hays, however, plaintiffs-appellants lack standing to challenge the districting plan on a statewide basis. 515 U.S., at 744-745.[18] A challenge to a specific district or districts, on the other hand, alleges a different type of injury entirely — one that *329 our recent racial gerrymandering cases have recognized as cognizable.[19] In Shaw I we held that "a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race." 509 U.S., at 649. After describing the pernicious consequences of race-conscious districting — even when designed to enhance the representation of the minority — and after explaining why dramatically irregular shapes "`have sufficient probative force to call for an explanation,'" id., at 647 (quoting Karcher v. Daggett, 462 U.S. 725, 755 (1983) (STEVENS, J., concurring)), we described the message a misshapen district sends to elected officials: "When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy." Shaw I, 509 U. S., at 648. Undergirding the Shaw cases is the premise that racial gerrymanders effect a constitutional wrong when they disrupt the representational norms that ordinarily tether elected officials to their constituencies as a whole. "[L]egislatures," we have explained, "should be bodies which are collectively responsive to the popular will," Reynolds, 377 U. S., at 565, for "[l]egislators are elected by voters, *330 not farms or cities or economic interests," id., at 562.[20] Gerrymanders subvert that representative norm because the winner of an election in a gerrymandered district inevitably will infer that her success is primarily attributable to the architect of the district rather than to a constituency defined by neutral principles. The Shaw cases hold that this disruption of the representative process imposes a cognizable "representational har[m]." Hays, 515 U. S., at 745. Because that harm falls squarely on the voters in the district whose representative might or does misperceive the object of her fealty, the injury is cognizable only when stated by voters who reside in that particular district, see Shaw II, 517 U. S., at 904; otherwise the "plaintiff would be asserting only a generalized grievance against governmental conduct of which he or she does not approve," Hays, 515 U. S., at 745. See also Bush v. Vera, 517 U. S., at 957-958 (plurality opinion). Although the complaint in this case includes a statewide challenge, plaintiff-appellant Furey states a stronger claim as a resident of the misshapen District 6.[21] She complains not merely about the injury resulting from the probable election of a congressional delegation that does not fairly represent *331 the entire State, or about the harm flowing from the probable election of a Republican to represent District 6.[22] She also alleges that the grotesque configuration of that district itself imposes a special harm on the members of the political minority residing in District 6 that directly parallels the harm recognized in Shaw I. Officials elected by the majority party in such a district, she claims, "are more likely to believe that their primary obligation is to represent only the members of that group, rather than the constituency as a whole."[23] This is precisely the harm that the Shaw cases treat as cognizable in the context of racial gerrymandering. The same treatment is warranted in this case. The risk of representational harms identified in the Shaw cases is equally great, if not greater, in the context of partisan gerrymanders. Shaw I was borne of the concern that an official elected from a racially gerrymandered district will feel beholden only to a portion of her constituents, and that those constituents will be defined by race. 509 U.S., at 648. The parallel danger of a partisan gerrymander is that the representative will perceive that the people who put her in power are those who drew the map rather than those who cast ballots, and she will feel beholden not to a subset of her constituency, but to no part of her constituency at all.[24] The problem, simply put, is that the will of the cartographers rather than the will of the people will govern.[25] As Judge *332 Ward recently wrote, "extreme partisan gerrymandering leads to a system in which the representatives choose their constituents, rather than vice-versa." Session v. Perry, 298 F. Supp. 2d 451, 516 (ED Tex. 2004) (per curiam) (concurring in part and dissenting in part). III Elected officials in some sense serve two masters: the constituents who elected them and the political sponsors who support them. Their primary obligations are, of course, to the public in general, but it is neither realistic nor fair to expect them wholly to ignore the political consequences of their decisions. "It would be idle . . . to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it." Gaffney, 412 U. S., at 752. Political factors are common and permissible elements of the art of governing a democratic society. But while political considerations may properly influence the decisions of our elected officials, when such decisions disadvantage *333 members of a minority group — whether the minority is defined by its members' race, religion, or political affiliation — they must rest on a neutral predicate. See Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976) ("The federal sovereign, like the States, must govern impartially"); Bandemer, 478 U.S., at 166 (Powell, J., dissenting). The Constitution enforces "a commitment to the law's neutrality where the rights of persons are at stake." Romer, 517 U.S., at 623. See also Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (KENNEDY, J., concurring) ("States act as neutral entities, ready to take instruction and to enact laws when their citizens so demand"). Thus, the Equal Protection Clause implements a duty to govern impartially that requires, at the very least, that every decision by the sovereign serve some nonpartisan public purpose.[26] In evaluating a claim that a governmental decision violates the Equal Protection Clause, we have long required a showing of discriminatory purpose. See Washington v. Davis, *334 426 U.S. 229 (1976).[27] That requirement applies with full force to districting decisions. The line that divides a racial or ethnic minority unevenly between school districts can be entirely legitimate if chosen on the basis of neutral factors — county lines, for example, or a natural boundary such as a river or major thoroughfare. But if the district lines were chosen for the purpose of limiting the number of minority students in the school, or the number of families holding unpopular religious or political views, that invidious purpose surely would invalidate the district. See Gomillion v. Lightfoot, 364 U.S., at 344-345; cf. Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 699-700 (1994). Consistent with that principle, our recent racial gerrymandering cases have examined the shape of the district and the purpose of the districting body to determine whether race, above all other criteria, predominated in the line-drawing process. We began by holding in Shaw I that a districting scheme could be "so irrational on its face that it [could] be understood only as an effort to segregate voters into separate voting districts because of their race." 509 U.S., at 658. Then, in Miller, we explained that Shaw I's irrational-shape test did not treat the bizarreness of a district's lines itself as a constitutional violation; rather, the irregularity of the district's contours in Shaw I was "persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines." 515 U.S., at *335 913. Under the Shaw cases, then, the use of race as a criterion in redistricting is not per se impermissible, see Shaw I, 509 U.S., at 642; Shaw II, 517 U.S. 899, but when race is elevated to paramount status — when it is the be-all and end-all of the redistricting process — the legislature has gone too far. "Race must not simply have been a motivation . . . but the predominant factor motivating the legislature's districting decision." Easley, 532 U.S., at 241 (internal quotation marks and citations omitted). Just as irrational shape can serve as an objective indicator of an impermissible legislative purpose, other objective features of a districting map can save the plan from invalidation. We have explained that "traditional districting principles," which include "compactness, contiguity, and respect for political subdivisions," are "important not because they are constitutionally required . . . but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines." Shaw I, 509 U.S., at 647 (citing Gaffney, 412 U.S., at 752, n. 18; Karcher, 462 U.S., at 755 (STEVENS, J., concurring)). "Where these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can `defeat a claim that a district has been gerrymandered on racial lines.'" Miller, 515 U.S., at 916 (quoting Shaw I, 509 U.S., at 647). In my view, the same standards should apply to claims of political gerrymandering, for the essence of a gerrymander is the same regardless of whether the group is identified as political or racial. Gerrymandering always involves the drawing of district boundaries to maximize the voting strength of the dominant political faction and to minimize the strength of one or more groups of opponents. Mobile, 446 U.S., at 87 (STEVENS, J., concurring in judgment). In seeking the desired result, legislators necessarily make judgments about the probability that the members of identifiable *336 groups — whether economic, religious, ethnic, or racial — will vote in a certain way. The overriding purpose of those predictions is political. See Karcher, 462 U.S., at 749-750 (STEVENS, J., concurring); Mobile, 446 U.S., at 88 (STEVENS, J., concurring in judgment).[28] It follows that the standards that enable courts to identify and redress a racial gerrymander could also perform the same function for other species of gerrymanders. See Bandemer, 478 U.S., at 125; Cousins v. City Council of Chicago, 466 F.2d 830, 853 (CA7 1972) (Stevens, J., dissenting). The racial gerrymandering cases therefore supply a judicially manageable standard for determining when partisanship, like race, has played too great of a role in the districting process. Just as race can be a factor in, but cannot dictate the outcome of, the districting process, so too can partisanship be a permissible consideration in drawing district lines, so long as it does not predominate. If, as plaintiff-appellant Furey has alleged, the predominant motive of the legislators who designed District 6, and the sole justification for its bizarre shape, was a purpose to discriminate against a political minority, that invidious purpose should invalidate the district. The plurality reasons that the standards for evaluating racial gerrymanders are not workable in cases such as this because partisan considerations, unlike racial ones, are perfectly legitimate. Ante, at 285-286. Until today, however, there has not been the slightest intimation in any opinion written by any Member of this Court that a naked purpose *337 to disadvantage a political minority would provide a rational basis for drawing a district line.[29] On the contrary, our opinions referring to political gerrymanders have consistently assumed that they were at least undesirable, and we always have indicated that political considerations are among those factors that may not dominate districting decisions.[30] Purely partisan motives are "rational" in a literal sense, but there must be a limiting principle. "[T]he word `rational' — for me at least — includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 452 (1985) (STEVENS, J., concurring). A legislature controlled by one party could not, for instance, impose special taxes on members of the minority party, or use tax revenues to pay the majority party's campaign expenses. The rational basis for government decisions must satisfy a standard of legitimacy and *338 neutrality; an acceptable rational basis can be neither purely personal nor purely partisan. See id., at 452-453. The Constitution does not, of course, require proportional representation of racial, ethnic, or political groups. In that I agree with the plurality. Ante, at 288. We have held, however, that proportional representation of political groups is a permissible objective, Gaffney, 412 U.S., at 754, and some of us have expressed the opinion that a majority's decision to enhance the representation of a racial minority is equally permissible, particularly when the decision is designed to comply with the Voting Rights Act of 1965.[31] Thus, the view that the plurality implicitly embraces today — that a gerrymander contrived for the sole purpose of disadvantaging a political minority is less objectionable than one seeking to benefit a racial minority — is doubly flawed. It disregards the obvious distinction between an invidious and a benign purpose, and it mistakenly assumes that race cannot provide a legitimate basis for making political judgments.[32] *339 In sum, in evaluating a challenge to a specific district, I would apply the standard set forth in the Shaw cases and ask whether the legislature allowed partisan considerations to dominate and control the lines drawn, forsaking all neutral principles.[33] Under my analysis, if no neutral criterion can be identified to justify the lines drawn, and if the only possible explanation for a district's bizarre shape is a naked desire to increase partisan strength, then no rational basis exists to save the district from an equal protection challenge. Such a narrow test would cover only a few meritorious claims, but it would preclude extreme abuses, such as those disclosed by the record in Badham v. Eu, 694 F. Supp. 664 (ND Cal. 1988), summarily aff'd, 488 U.S. 1024 (1989),[34] and it would perhaps shorten the time period in which the pernicious effects of such a gerrymander are felt. This test would mitigate the current trend under which partisan considerations are becoming the be-all and end-all in apportioning representatives. IV Plaintiff-appellant Furey plainly has stated a claim that District 6 constitutes an unconstitutional partisan gerrymander. According to the complaint, Pennsylvania's 2002 redistricting plan splits "Montgomery County alone . . . into six *340 different congressional districts."[35] The new District 6 "looms like a dragon descending on Philadelphia from the west, splitting up towns and communities throughout Montgomery and Berks Counties."[36] Furey alleges that the districting plan was created "solely to effectuate the interests" of Republicans,[37] and that the General Assembly relied "exclusively on a principle of maximum partisan advantage" when drawing the plan,[38] "to the exclusion of all other criteria."[39] The 2002 plan "is so irregular on its face that it rationally can be viewed only as an effort . . . to advance the interests of one political party, without regard for traditional redistricting principles and without any legitimate or compelling justification."[40] "The problem," Furey claims, is that the legislature "subordinated — indeed ignored — all traditional redistricting principles and all legitimate bases for governmental decisionmaking, in order to favor those with one political viewpoint over another."[41] The plan "ignores all other traditional redistricting criteria," she alleges, "thus demonstrating that partisanship — and nothing else — was the rationale behind the plan."[42] Because this complaint states a claim under a judicially manageable standard for adjudicating partisan gerrymandering cases, I would reverse the judgment of the District Court and remand for further proceedings consistent with this opinion. The plurality candidly acknowledges that legislatures can fashion standards to remedy political gerrymandering that are perfectly manageable and, indeed, that the legislatures in Iowa and elsewhere have done so. Ante, at 277, n. 4. If *341 a violation of the Constitution is found, a court could impose a remedy patterned after such a statute. Thus, the problem, in the plurality's view, is not that there is no judicially manageable standard to fix an unconstitutional partisan gerrymander, but rather that the Judiciary lacks the ability to determine when a state legislature has violated its duty to govern impartially. Quite obviously, however, several standards for identifying impermissible partisan influence are available to judges who have the will to enforce them. We could hold that every district boundary must have a neutral justification; we could apply Justice Powell's three-factor approach in Bandemer; we could apply the predominant motivation standard fashioned by the Court in its racial gerrymandering cases; or we could endorse either of the approaches advocated today by JUSTICE SOUTER and JUSTICE BREYER. What is clear is that it is not the unavailability of judicially manageable standards that drives today's decision. It is, instead, a failure of judicial will to condemn even the most blatant violations of a state legislature's fundamental duty to govern impartially. Accordingly, I respectfully dissent. [Appendix to opinion of STEVENS, J., follows this page.]

The central question presented by this case is whether political gerrymandering claims are justiciable. Although our reasons for coming to this conclusion differ, five Members of the Court are convinced that the plurality's answer to that question is erroneous. Moreover, as is apparent from our separate writings today, we share the view that, even if these appellants are not entitled to prevail, it would be contrary to precedent and profoundly unwise to foreclose all judicial review of similar claims that might be advanced in the future. That we presently have somewhat differing views — concerning both the precedential value of some of our recent cases and the standard that should be applied in future cases — should not obscure the fact that the areas of agreement set forth in the separate opinions are of far greater significance. The concept of equal justice under law requires the State to govern impartially. See ; ; New York City Transit Today's plurality opinion would exempt governing officials from that duty in the context of legislative redistricting and would give license, for the first time, to partisan gerrymanders that are devoid of any rational justification. n my view, when partisanship is the legislature's sole motivation — when any pretense of neutrality is forsaken unabashedly and all traditional districting criteria are subverted for partisan advantage — the governing body cannot be said to have acted impartially. Although we reaffirm the central holding of the Court in we have not reached agreement on the standard that should govern partisan gerrymandering claims. would decide this case on a narrow ground. Plaintiffs-appellants urge us to craft new rules that in effect would authorize judicial review of statewide election results to protect the democratic process from a transient majority's abuse of its power to define voting districts. agree with the plurality's refusal to undertake that ambitious project. Ante, at 284-290. am persuaded, however, that the District Court failed to apply well-settled propositions of law when it granted the defendants' motion to dismiss plaintiff-appellant Susan Furey's gerrymandering claim. According to the complaint, Furey is a registered Democrat who resides at an address in Montgomery County, Pennsylvania, that was located under the 1992 districting plan in Congressional District 13.[1] Under the new plan adopted by the General Assembly in 2002, Furey's address now places her in the "non-compact" District 6.[2] Furey alleges that the new districting plan was created "solely" to effectuate the interests of Republicans,[3] and that the General Assembly relied "exclusively" on a principle of "maximum partisan advantage" when drawing the plan.[4] n my judgment, Furey's *319 allegations are plainly sufficient to establish: (1) that she has standing to challenge the constitutionality of District 6; (2) that her district-specific claim is not foreclosed by the plurality's rejection of a statewide claim of political gerrymandering; and (3) that she has stated a claim that, at least with respect to District 6, Pennsylvania's redistricting plan violates the equal protection principles enunciated in our voting rights cases both before and after The District Court therefore erred when it granted the defendants' motion to dismiss Furey's claim. Prior to our seminal decision in a majority of this Court had heeded Justice Frankfurter's repeated warnings about the dire consequences of entering the "political thicket" of legislative districting. As a result, even the most egregious gerrymanders were sheltered from judicial review.[5] t was after Baker that we first decided that the Constitution prohibits legislators from drawing district lines that diminish the value of individual votes in overpopulated districts. n reaching that conclusion, *320 we explained that "legislatures should be bodies which are collectively responsive to the popular will," and we accordingly described "the basic aim of legislative apportionment" as "achieving fair and effective representation for all citizens," at -566. Consistent with that goal, we also reviewed claims that the majority had discriminated against particular groups of voters by drawing multimember districts that threatened "to minimize or cancel out the voting strength of racial or political elements of the voting population." Such districts were "vulnerable" to constitutional challenge "if racial or political groups ha[d] been fenced out of the political process and voting strength invidiously minimized." See also ; Our holding in -127, that partisan gerrymandering claims are justiciable followed ineluctably from the central reasoning in Baker, What was true in Baker is no less true in this context: "The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home if we take issue with [Pennsylvania] as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary *321 and capricious action." "[T]hat the [gerrymandering] claim is submitted by a political group, rather than a racial group, does not distinguish [the cases] in terms of justiciability." At issue in this case, as the plurality states, ante, at 278, is Baker's second test — the presence or absence of judicially manageable standards. The judicial standards applicable to gerrymandering claims are deeply rooted in decisions that long preceded and have been refined in later cases. Among those well-settled principles is the understanding that a district's peculiar shape might be a symptom of an illicit purpose in the line-drawing process. Most notably, in the Court invalidated an Alabama statute that altered the boundaries of the city of Tuskegee "from a square to an uncouth twenty-eight-sided figure" for the sole purpose of preventing African-Americans from voting in municipal elections. The allegations of bizarre shape and improper motive, "if proven, would abundantly [have] establish[ed] that Act 140 was not an ordinary geographic redistricting measure even within familiar abuses of gerrymandering." Justice Fortas' concurring opinion in which referred to gerrymandering as "the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes," also identified both shape and purpose as relevant standards. The maps attached as exhibits in and in subsequent voting rights cases demonstrate that an "uncouth" or bizarre shape can easily identify a district designed for a single-minded, nonneutral purpose. With purpose as the ultimate inquiry, other considerations have supplied ready standards for testing the lawfulness of a gerrymander. n his dissent in Justice Powell *322 explained that "the merits of a gerrymandering claim must be determined by reference to the configurations of the districts, the observance of political subdivision lines, and other criteria that have independent relevance to the fairness of redistricting." Applying this three-part standard, Justice Powell first reviewed the procedures used in ndiana's redistricting process and noted that the party in power had excluded the opposition from its deliberations and had placed excessive weight on data concerning party voting trends. Second, Justice Powell pointed to the strange shape of districts that conspicuously ignored traditional districting principles. He noted the impact of such shapes on residents of the uncouth districts,[6] and he included in his opinion maps that illustrated the irregularity of the district shapes, Third and finally, Justice Powell reviewed other "substantial evidence," including contemporaneous statements and press accounts, demonstrating that the architects of the districts "were motivated solely by partisan considerations." The Court has made use of all three parts of Justice Powell's standard in its recent racial gerrymandering jurisprudence. n those cases, the Court has examined claims that redistricting schemes violate the equal protection guarantee where they are "so highly irregular" on face that they "rationally cannot be understood as anything other than an effort" to segregate voters by race, or where "race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines," See *323 also ;[7] The Shaw line of cases has emphasized that "reapportionment is one area in which appearances do matter," Shaw and has focused both on the shape of the challenged districts and the purpose behind the line-drawing in assessing the constitutionality of majority-minority districts under the Equal Protection Clause. These decisions, like Justice Powell's opinion in have also considered the process by which the districting schemes were enacted,[8] looked to other evidence demonstrating that purely improper considerations motivated the decision,[9] and included maps illustrating outlandish district shapes.[10] Given this clear line of precedents, should have thought the question of justiciability in cases such as this — where a set of plaintiffs argues that a single motivation resulted in a districting scheme with discriminatory effects — to be well settled. The plurality's contrary conclusion cannot be *324 squared with our long history of voting rights decisions. Especially perplexing is the plurality's ipse dixit distinction of our racial gerrymandering cases. Notably, the plurality does not argue that the judicially manageable standards that have been used to adjudicate racial gerrymandering claims would not be equally manageable in political gerrymandering cases. nstead, its distinction of those cases rests on its view that race as a districting criterion is "much more rarely encountered" than partisanship, ante, at 286, and that determining whether race — "a rare and constitutionally suspect motive" — dominated a districting decision "is quite different from determining whether [such a decision] is so substantially affected by the excess of an ordinary and lawful motive as to [be] invali[d]," But those considerations are wholly irrelevant to the issue of justiciability. To begin with, the plurality errs in assuming that politics is "an ordinary and lawful motive." We have squarely rejected the notion that a "purpose to discriminate on the basis of politics," ante, at 286, 293, is never subject to strict scrutiny. On the contrary, "political belief and association constitute the core of those activities protected by the First Amendment," and discriminatory governmental decisions that burden fundamental First Amendment interests are subject to strict scrutiny, ; cf. Police Dept. of Thus, unless party affiliation is an appropriate requirement for the position in question, government officials may not base a decision to hire, promote, transfer, recall, discharge, or retaliate against an employee, or to terminate a contract, on the individual's partisan affiliation or speech. See Board of Comm'rs, Wabaunsee ; O'Hare Truck Service, nc. v. City of Northlake, ; Rutan v. Republican Party of ll., ; ; -363.[11] t follows that political affiliation is not an appropriate standard for excluding voters from a congressional district. The plurality argues that our patronage cases do not support the proposition that strict scrutiny should be applied in political gerrymandering cases because "[i]t is elementary that scrutiny levels are claim specific." Ante, at 294. t is also elementary, however, that the level of scrutiny is relevant to the question whether there has been a constitutional violation, not the question of justiciability.[12] The standards outlined above are discernible and judicially manageable regardless of the number of cases in which they must be applied or the level of scrutiny at which the analysis occurs.[13] Thus, the dicta from Shaw and on which the plurality relies, ante, at 293-294, are beside the point, because they speak not at all to the subject of justiciability. And while of course a difference exists between *326 the constitutional interests protected by the First and Fourteenth Amendments, the relevant lesson of the patronage cases is that partisanship is not always as benign a consideration as the plurality appears to assume. n any event, as understand the plurality's opinion, it seems to agree that if the State goes "too far" — if it engages in "political gerrymandering for politics' sake" — it violates the Constitution in the same way as if it undertakes "racial gerrymandering for race's sake." Ante, at 293. But that sort of constitutional violation cannot be touched by the courts, the plurality maintains, because the judicial obligation to intervene is "dubious." Ante, at 286.[14] State action that discriminates against a political minority for the sole and unadorned purpose of maximizing the power of the majority plainly violates the decisionmaker's duty to remain impartial. See, e. g., 463 U. S., at Gerrymanders necessarily rest on legislators' predictions that "members of certain identifiable groups will vote in the same way." "n the line-drawing process, racial, religious, ethnic, and economic gerrymanders are all species of political gerrymanders." at Thus, the critical issue in both racial and political gerrymandering cases is the same: whether a single nonneutral criterion controlled the districting process to such an extent that the Constitution was offended. This Court has treated that precise question as justiciable in and in the Shaw line of cases, and today's plurality has supplied no persuasive reason *327 for distinguishing the justiciability of partisan gerrymanders. Those cases confirm and reinforce the holding that partisan gerrymandering claims are justiciable.[15] The plurality opinion in dealt with a claim that the ndiana apportionment scheme for state legislative districts discriminated against Democratic voters on a statewide n my judgment, the Court was correct to entertain that statewide challenge, because the plaintiffs in that case alleged a group harm that affected members of party throughout the State. n the subsequent line of racial gerrymandering cases, however, the Court shifted its focus from statewide challenges and required, as a matter of standing, that plaintiffs stating race-based equal protection claims actually reside in the districts they are challenging. See United Because has altered the standing rules for gerrymandering claims — and because, in my view, racial and political gerrymanders are species of the same constitutional concern — the standing rule requires dismissal of the statewide claim.[16] But that does not *328 end the matter. Challenges to specific districts, such as those considered in the Shaw cases, relate to a different type of "representational" harm, and those allegations necessarily must be considered on a district-by-district The complaint in this case alleges injuries of both types — a group harm to Democratic voters throughout Pennsylvania and a more individualized representational injury to Furey as a resident of District 6. n a challenge to a statewide districting plan, plaintiffs-appellants complain that they have been injured because of membership in a particular, identifiable group. The plaintiffs-appellees in for example, alleged "that Democratic voters over the State as a whole, not Democratic voters in particular districts, ha[d] been subjected to unconstitutional discrimination." (citing complaint). They specifically claimed that they were injured as members of a group because the number of Democratic representatives was not commensurate with the number of Democratic voters throughout ndiana. Much like the plaintiffs-appellees in plaintiffs-appellants in this case allege that the statewide plan will enable Republicans, who constitute about half of Pennsylvania's voters, to elect 13 or 14 members of the State's 19-person congressional delegation.[17] Under however, plaintiffs-appellants lack standing to challenge the districting plan on a statewide -.[18] A challenge to a specific district or districts, on the other hand, alleges a different type of injury entirely — one that *329 our recent racial gerrymandering cases have recognized as cognizable.[19] n Shaw we held that "a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of " After describing the pernicious consequences of race-conscious districting — even when designed to enhance the representation of the minority — and after explaining why dramatically irregular shapes "`have sufficient probative force to call for an explanation,'" ), we described the message a misshapen district sends to elected officials: "When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that primary obligation is to represent only the members of that group, rather than constituency as a whole. This is altogether antithetical to our system of representative democracy." Shaw Undergirding the Shaw cases is the premise that racial gerrymanders effect a constitutional wrong when they disrupt the representational norms that ordinarily tether elected officials to constituencies as a whole. "[L]egislatures," we have explained, "should be bodies which are collectively responsive to the popular will," 377 U. S., at for "[l]egislators are elected by voters, *330 not farms or cities or economic interests,"[20] Gerrymanders subvert that representative norm because the winner of an election in a gerrymandered district inevitably will infer that her success is primarily attributable to the architect of the district rather than to a constituency defined by neutral principles. The Shaw cases hold that this disruption of the representative process imposes a cognizable "representational har[m]." 515 U. S., at Because that harm falls squarely on the voters in the district whose representative might or does misperceive the object of her fealty, the injury is cognizable only when stated by voters who reside in that particular district, see Shaw ; otherwise the "plaintiff would be asserting only a generalized grievance against governmental conduct of which he or she does not approve," 515 U. S., at See also -958 Although the complaint in this case includes a statewide challenge, plaintiff-appellant Furey states a stronger claim as a resident of the misshapen District 6.[21] She complains not merely about the injury resulting from the probable election of a congressional delegation that does not fairly represent *331 the entire State, or about the harm flowing from the probable election of a Republican to represent District 6.[22] She also alleges that the grotesque configuration of that district itself imposes a special harm on the members of the political minority residing in District 6 that directly parallels the harm recognized in Shaw Officials elected by the majority party in such a district, she claims, "are more likely to believe that primary obligation is to represent only the members of that group, rather than the constituency as a whole."[23] This is precisely the harm that the Shaw cases treat as cognizable in the context of racial gerrymandering. The same treatment is warranted in this case. The risk of representational harms identified in the Shaw cases is equally great, if not greater, in the context of partisan gerrymanders. Shaw was borne of the concern that an official elected from a racially gerrymandered district will feel beholden only to a portion of her constituents, and that those constituents will be defined by The parallel danger of a partisan gerrymander is that the representative will perceive that the people who put her in power are those who drew the map rather than those who cast ballots, and she will feel beholden not to a subset of her constituency, but to no part of her constituency at all.[24] The problem, simply put, is that the will of the cartographers rather than the will of the people will govern.[25] As Judge *332 Ward recently wrote, "extreme partisan gerrymandering leads to a system in which the representatives choose constituents, rather than vice-versa." (concurring in part and dissenting in part). Elected officials in some sense serve two masters: the constituents who elected them and the political sponsors who support them. Their primary obligations are, of course, to the public in general, but it is neither realistic nor fair to expect them wholly to ignore the political consequences of decisions. "t would be idle to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it." Political factors are common and permissible elements of the art of governing a democratic society. But while political considerations may properly influence the decisions of our elected officials, when such decisions disadvantage *333 members of a minority group — whether the minority is defined by its members' race, religion, or political affiliation — they must rest on a neutral predicate. See 426 U.S. ; The Constitution enforces "a commitment to the law's neutrality where the rights of persons are at stake." 517 U.S., at See also Board of Trustees of Univ. of 531 U.S. ("States act as neutral entities, ready to take instruction and to enact laws when citizens so demand"). Thus, the Equal Protection Clause implements a duty to govern impartially that requires, at the very least, that every decision by the sovereign serve some nonpartisan public purpose.[26] n evaluating a claim that a governmental decision violates the Equal Protection Clause, we have long required a showing of discriminatory purpose. See[27] That requirement applies with full force to districting decisions. The line that divides a racial or ethnic minority unevenly between school districts can be entirely legitimate if chosen on the basis of neutral factors — county lines, for example, or a natural boundary such as a river or major thoroughfare. But if the district lines were chosen for the purpose of limiting the number of minority students in the school, or the number of families holding unpopular religious or political views, that invidious purpose surely would invalidate the district. See -345; cf. Board of Ed. of Kiryas Joel Village School 512 U.S. 6, Consistent with that principle, our recent racial gerrymandering cases have examined the shape of the district and the purpose of the districting body to determine whether race, above all other criteria, predominated in the line-drawing process. We began by holding in Shaw that a districting scheme could be "so irrational on its face that it [could] be understood only as an effort to segregate voters into separate voting districts because of " Then, in we explained that Shaw 's irrational-shape test did not treat the bizarreness of a district's lines itself as a constitutional violation; rather, the irregularity of the district's contours in Shaw was "persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature's dominant and controlling rationale in drawing its district lines." 515 U.S., at *335 Under the Shaw cases, then, the use of race as a criterion in redistricting is not per se impermissible, see Shaw ; Shaw but when race is elevated to paramount status — when it is the be-all and end-all of the redistricting process — the legislature has gone too far. "Race must not simply have been a motivation but the predominant factor motivating the legislature's districting decision." 532 U.S., at Just as irrational shape can serve as an objective indicator of an impermissible legislative purpose, other objective features of a districting map can save the plan from invalidation. We have explained that "traditional districting principles," which include "compactness, contiguity, and respect for political subdivisions," are "important not because they are constitutionally required but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines." Shaw 509 U.S., (citing n. 18; 462 U.S., at ). "Where these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a State can `defeat a claim that a district has been gerrymandered on racial lines.'" (quoting Shaw 509 U.S., ). n my view, the same standards should apply to claims of political gerrymandering, for the essence of a gerrymander is the same regardless of whether the group is identified as political or racial. Gerrymandering always involves the drawing of district boundaries to maximize the voting strength of the dominant political faction and to minimize the strength of one or more groups of opponents. 446 U.S., at n seeking the desired result, legislators necessarily make judgments about the probability that the members of identifiable *336 groups — whether economic, religious, ethnic, or racial — will vote in a certain way. The overriding purpose of those predictions is political. See -750 ; 446 U.S., at[28] t follows that the standards that enable courts to identify and redress a racial gerrymander could also perform the same function for other species of gerrymanders. See ; The racial gerrymandering cases therefore supply a judicially manageable standard for determining when partisanship, like race, has played too great of a role in the districting process. Just as race can be a factor in, but cannot dictate the outcome of, the districting process, so too can partisanship be a permissible consideration in drawing district lines, so long as it does not predominate. f, as plaintiff-appellant Furey has alleged, the predominant motive of the legislators who designed District 6, and the sole justification for its bizarre shape, was a purpose to discriminate against a political minority, that invidious purpose should invalidate the district. The plurality reasons that the standards for evaluating racial gerrymanders are not workable in cases such as this because partisan considerations, unlike racial ones, are perfectly legitimate. Ante, at 285-286. Until today, however, there has not been the slightest intimation in any opinion written by any Member of this Court that a naked purpose *337 to disadvantage a political minority would provide a rational basis for drawing a district line.[29] On the contrary, our opinions referring to political gerrymanders have consistently assumed that they were at least undesirable, and we always have indicated that political considerations are among those factors that may not dominate districting decisions.[30] Purely partisan motives are "rational" in a literal sense, but there must be a limiting principle. "[T]he word `rational' — for me at least — includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially." Cleburne v. Cleburne Living Center, nc., A legislature controlled by one party could not, for instance, impose special taxes on members of the minority party, or use tax revenues to pay the majority party's campaign expenses. The rational basis for government decisions must satisfy a standard of legitimacy and *338 neutrality; an acceptable rational basis can be neither purely personal nor purely partisan. See at -453. The Constitution does not, of course, require proportional representation of racial, ethnic, or political groups. n that agree with the plurality. Ante, at 2. We have held, however, that proportional representation of political groups is a permissible objective, 412 U.S., at and some of us have expressed the opinion that a majority's decision to enhance the representation of a racial minority is equally permissible, particularly when the decision is designed to comply with the Voting Rights Act of 1965.[31] Thus, the view that the plurality implicitly embraces today — that a gerrymander contrived for the sole purpose of disadvantaging a political minority is less objectionable than one seeking to benefit a racial minority — is doubly flawed. t disregards the obvious distinction between an invidious and a benign purpose, and it mistakenly assumes that race cannot provide a legitimate basis for making political judgments.[32] *339 n sum, in evaluating a challenge to a specific district, would apply the standard set forth in the Shaw cases and ask whether the legislature allowed partisan considerations to dominate and control the lines drawn, forsaking all neutral principles.[33] Under my analysis, if no neutral criterion can be identified to justify the lines drawn, and if the only possible explanation for a district's bizarre shape is a naked desire to increase partisan strength, then no rational basis exists to save the district from an equal protection challenge. Such a narrow test would cover only a few meritorious claims, but it would preclude extreme abuses, such as those disclosed by the record in (ND Cal. 19), summarily aff'd, 4 U.S. 1024[34] and it would perhaps shorten the time period in which the pernicious effects of such a gerrymander are felt. This test would mitigate the current trend under which partisan considerations are becoming the be-all and end-all in apportioning representatives. V Plaintiff-appellant Furey plainly has stated a claim that District 6 constitutes an unconstitutional partisan gerrymander. According to the complaint, Pennsylvania's 2002 redistricting plan splits "Montgomery County alone into six * different congressional districts."[35] The new District 6 "looms like a dragon descending on Philadelphia from the west, splitting up towns and communities throughout Montgomery and Berks Counties."[36] Furey alleges that the districting plan was created "solely to effectuate the interests" of Republicans,[37] and that the General Assembly relied "exclusively on a principle of maximum partisan advantage" when drawing the plan,[38] "to the exclusion of all other criteria."[39] The 2002 plan "is so irregular on its face that it rationally can be viewed only as an effort to advance the interests of one political party, without regard for traditional redistricting principles and without any legitimate or compelling justification."[40] "The problem," Furey claims, is that the legislature "subordinated — indeed ignored — all traditional redistricting principles and all legitimate bases for governmental decisionmaking, in order to favor those with one political viewpoint over another."[41] The plan "ignores all other traditional redistricting criteria," she alleges, "thus demonstrating that partisanship — and nothing else — was the rationale behind the plan."[42] Because this complaint states a claim under a judicially manageable standard for adjudicating partisan gerrymandering cases, would reverse the judgment of the District Court and remand for further proceedings consistent with this opinion. The plurality candidly acknowledges that legislatures can fashion standards to remedy political gerrymandering that are perfectly manageable and, indeed, that the legislatures in owa and elsewhere have done so. Ante, at 277, n. 4. f *341 a violation of the Constitution is found, a court could impose a remedy patterned after such a statute. Thus, the problem, in the plurality's view, is not that there is no judicially manageable standard to fix an unconstitutional partisan gerrymander, but rather that the Judiciary lacks the ability to determine when a state legislature has violated its duty to govern impartially. Quite obviously, however, several standards for identifying impermissible partisan influence are available to judges who have the will to enforce them. We could hold that every district boundary must have a neutral justification; we could apply Justice Powell's three-factor approach in ; we could apply the predominant motivation standard fashioned by the Court in its racial gerrymandering cases; or we could endorse either of the approaches advocated today by JUSTCE SOUTER and JUSTCE BREYER. What is clear is that it is not the unavailability of judicially manageable standards that drives today's decision. t is, instead, a failure of judicial will to condemn even the most blatant violations of a state legislature's fundamental duty to govern impartially. Accordingly, respectfully dissent. [Appendix to opinion of STEVENS, J., follows this page.]

Justice Souter

second_dissenting

Vieth v. Jubelirer

2004-04-28

https://www.courtlistener.com/opinion/134735/vieth-v-jubelirer/

https://www.courtlistener.com/api/rest/v3/clusters/134735/

2003-051

The Constitution guarantees both formal and substantial equality among voters. For 40 years, we have recognized that lines dividing a State into voting districts must produce divisions with equal populations: one person, one vote. Reynolds v. Sims, 377 U.S. 533, 568 (1964). Otherwise, a vote in a less populous district than others carries more clout. Creating unequally populous districts is not, however, the only way to skew political results by setting district lines. The choice to draw a district line one way, not another, always carries some consequence for politics, save in a mythical State with voters of every political identity distributed in an absolutely gray uniformity. The spectrum of opportunity runs from cracking a group into impotent fractions, to packing its members into one district for the sake of marginalizing them in another. However equal districts may be in population as a formal matter, the consequence of a vote cast can be minimized or maximized, Karcher v. Daggett, 462 U.S. 725, 734, n. 6 (1983), and if unfairness is sufficiently demonstrable, the guarantee of equal protection condemns it as a denial of substantial equality. Davis v. Bandemer, 478 U.S. 109, 129-134 (1986) (plurality opinion). I The notion of fairness assumed to be denied in these cases has been described as "each political group in a State [having] the same chance to elect representatives of its choice as any other political group," id., at 124, and as a "right to `fair and effective representation,'" id., at 162 (Powell, J., concurring in part and dissenting in part). Cf. Wells v. Rockefeller, 394 U.S. 542, 551 (1969) (Harlan, J., dissenting) (describing the need for "a structure which will in fact as well as theory be responsive to the sentiments of the community"). It is undeniable that political sophisticates understand such *344 fairness and how to go about destroying it, see App. to Juris. Statement 134a, although it cannot possibly be described with the hard edge of one person, one vote. The difficulty has been to translate these notions of fairness into workable criteria, as distinct from mere opportunities for reviewing courts to make episodic judgments that things have gone too far, the sources of difficulty being in the facts that some intent to gain political advantage is inescapable whenever political bodies devise a district plan, and some effect results from the intent. Wells, supra, at 554-555 (White, J., dissenting) ("In reality, of course, districting is itself a gerrymandering in the sense that it represents a complex blend of political, economic, regional, and historical considerations"). Thus, the issue is one of how much is too much, and we can be no more exact in stating a verbal test for too much partisanship than we can be in defining too much race consciousness when some is inevitable and legitimate. See Bush v. Vera, 517 U.S. 952, 1057-1062 (1996) (SOUTER, J., dissenting). Instead of coming up with a verbal formula for too much, then, the Court's job must be to identify clues, as objective as we can make them, indicating that partisan competition has reached an extremity of unfairness. The plurality says, in effect, that courts have been trying to devise practical criteria for political gerrymandering for nearly 20 years, without being any closer to something workable than we were when Davis was decided. Ante, at 281.[1] While this is true enough, I do not accept it as sound counsel of despair. For I take it that the principal reason we have not gone from theoretical justiciability to practical administrability in political gerrymandering cases is the Davis plurality's specification that any criterion of forbidden gerrymandering must require a showing that members of the plaintiff's group had "essentially been shut out of the political process," 478 U.S., at 139. See, e. g., Badham v. Eu, 694 *345 F. Supp. 664, 670-671 (ND Cal. 1988) (three-judge court). That is, in order to avoid a threshold for relief so low that almost any electoral defeat (let alone failure to achieve proportionate results) would support a gerrymandering claim, the Davis plurality required a demonstration of such pervasive devaluation over such a period of time as to raise real doubt that a case could ever be made out. Davis suggested that plaintiffs might need to show even that their efforts to deliberate, register, and vote had been impeded. 478 U.S., at 133. This standard, which it is difficult to imagine a major party meeting, combined a very demanding burden with significant vagueness; and if appellants have not been able to propose a practical test for a Davis violation, the fault belongs less to them than to our predecessors. As Judge Higginbotham recently put it, "[i]t is now painfully clear that Justice Powell's concern that [Davis] offered a `"constitutional green light" to would-be gerrymanderers' has been realized." Session v. Perry, 298 F. Supp. 2d 451, 474 (ED Tex. 2004) (per curiam) (footnote omitted) (quoting Davis, supra, at 173 (Powell, J., concurring in part and dissenting in part)). II Since this Court has created the problem no one else has been able to solve, it is up to us to make a fresh start. There are a good many voices saying it is high time that we did, for in the years since Davis, the increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine. E. g., Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593, 624 (2002) (The "pattern of incumbent entrenchment has gotten worse as the computer technology for more exquisite gerrymandering has improved"); Karlan, The Fire Next Time: Reapportionment After the 2000 Census, 50 Stan. L. Rev. 731, 736 (1998) ("Finer-grained census data, better predictive methods, and more powerful computers allow for increasingly sophisticated equipopulous gerrymanders"); *346 Pildes, Principled Limitations on Racial and Partisan Redistricting, 106 Yale L. J. 2505, 2553-2554 (1997) ("Recent cases now document in microscopic detail the astonishing precision with which redistricters can carve up individual precincts and distribute them between districts with confidence concerning the racial and partisan consequences"). See also Morrill, A Geographer's Perspective, in Political Gerrymandering and the Courts 213-214 (B. Grofman ed. 1990) (noting that gerrymandering can produce "high proportions of very safe seats"); Brief for Bernard Grofman et al. as Amici Curiae 5-8 (decline of competitive seats). Cf. Wells, 394 U.S., at 551 (Harlan, J., dissenting) ("A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues"). I would therefore preserve Davis's holding that political gerrymandering is a justiciable issue, but otherwise start anew. I would adopt a political gerrymandering test analogous to the summary judgment standard crafted in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), calling for a plaintiff to satisfy elements of a prima facie cause of action, at which point the State would have the opportunity not only to rebut the evidence supporting the plaintiff's case, but to offer an affirmative justification for the districting choices, even assuming the proof of the plaintiff's allegations. My own judgment is that we would have better luck at devising a workable prima facie case if we concentrated as much as possible on suspect characteristics of individual districts instead of statewide patterns. It is not that a statewide view of districting is somehow less important; the usual point of gerrymandering, after all, is to control the greatest number of seats overall. But, as will be seen, we would be able to call more readily on some existing law when we defined what is suspect at the district level, and for now I would conceive of a statewide challenge as itself a function of claims that individual districts are illegitimately drawn. Finally, in the same interest of threshold simplicity, I would stick to problems *347 of single-member districts; if we could not devise a workable scheme for dealing with claims about these, we would have to forget the complications posed by multimember districts. III A For a claim based on a specific single-member district, I would require the plaintiff to make out a prima facie case with five elements. First, the resident plaintiff would identify a cohesive political group to which he belonged, which would normally be a major party, as in this case and in Davis. There is no reason in principle, however, to rule out a claimant from a minor political party (which might, if it showed strength, become the target of vigorous hostility from one or both major parties in a State) or from a different but politically coherent group whose members engaged in bloc voting, as a large labor union might do. The point is that it must make sense to speak of a candidate of the group's choice, easy to do in the case of a large or small political party, though more difficult when the organization is not defined by politics as such.[2] Second, a plaintiff would need to show that the district of his residence, see United States v. Hays, 515 U.S. 737 (1995) (requiring residence in a challenged district for standing), *348 paid little or no heed to those traditional districting principles whose disregard can be shown straightforwardly: contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains. Because such considerations are already relevant to justifying small deviations from absolute population equality, Karcher, 462 U. S., at 740, and because compactness in particular is relevant to demonstrating possible majority-minority districts under the Voting Rights Act of 1965, Johnson v. De Grandy, 512 U.S. 997, 1008 (1994), there is no doubt that a test relying on these standards would fall within judicial competence. Indeed, although compactness is at first blush the least likely of these principles to yield precision, it can be measured quantitatively in terms of dispersion, perimeter, and population ratios, and the development of standards would thus be possible. See generally Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L. Rev. 483 (1993); see also Bush v. Vera, 517 U. S., at 1057 (SOUTER, J., dissenting) (suggesting that such measuring formulas might have been applied to salvage Shaw v. Reno, 509 U.S. 630 (1993)).[3] It is not necessary now to say exactly *349 how a district court would balance a good showing on one of these indices against a poor showing on another, for that sort of detail is best worked out case by case. Third, the plaintiff would need to establish specific correlations between the district's deviations from traditional districting principles and the distribution of the population of his group. For example, one of the districts to which appellants object most strongly in this case is District 6, which they say "looms like a dragon descending on Philadelphia from the west, splitting up towns and communities throughout Montgomery and Berks Counties." App. to Juris. Statement 136a. To make their claim stick, they would need to point to specific protuberances on the Draconian shape that reach out to include Democrats, or fissures in it that squirm away from Republicans. They would need to show that when towns and communities were split, Democrats tended to fall on one side and Republicans on the other. Although some counterexamples would no doubt be present in any complex plan, the plaintiff's showing as a whole would need to provide reasonable support for, if not compel, an inference that the district took the shape it did because of the distribution of the plaintiff's group. That would begin, but not complete, the plaintiff's case that the defendant had chosen either to pack the group (drawn a district in order to include a uselessly high number of the group) or to crack it (drawn it so as to include fatally few), the ordinary methods of vote dilution in single-member district systems. Ante, at 286, n. 7. Fourth, a plaintiff would need to present the court with a hypothetical district including his residence, one in which the proportion of the plaintiff's group was lower (in a packing claim) or higher (in a cracking one) and which at the same time deviated less from traditional districting principles than the actual district. Cf. Thornburg v. Gingles, 478 U.S. 30, *350 50 (1986) (requiring a similar showing to demonstrate that a multimember district is "responsible for minority voters' inability to elect [their preferred] candidates"). This hypothetical district would allow the plaintiff to claim credibly that the deviations from traditional districting principles were not only correlated with, but also caused by, the packing or cracking of his group. Drawing the hypothetical district would, of course, necessarily involve redrawing at least one contiguous district,[4] and a plaintiff would have to show that this could be done subject to traditional districting principles without packing or cracking his group (or another) worse than in the district being challenged. Fifth, and finally, the plaintiff would have to show that the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group. See Washington v. Davis, 426 U.S. 229 (1976). In substantiating claims of political gerrymandering under a plan devised by a single major party, proving intent should not be hard, once the third and fourth (correlation and cause) elements are established, politicians not being politically disinterested or characteristically naive. Davis v. Bandemer, 478 U. S., at 128 ("[W]e think it most likely that whenever a legislature redistricts, those responsible for the legislation will know the likely political composition of the new districts"). I would, however, treat any showing of intent in a major-party case as too equivocal to count unless the entire legislature were controlled by the governor's party (or the dominant legislative party were vetoproof).[5] *351 If the affected group were not a major party, proof of intent could, admittedly, be difficult. It would be possible that a legislature might not even have had the plaintiff's group in mind, and a plaintiff would naturally have a hard time showing requisite intent behind a plan produced by a bipartisan commission. B A plaintiff who got this far would have shown that his State intentionally acted to dilute his vote, having ignored reasonable alternatives consistent with traditional districting principles. I would then shift the burden to the defendants to justify their decision by reference to objectives other than naked partisan advantage. They might show by rebuttal evidence that districting objectives could not be served by the plaintiff's hypothetical district better than by the district as drawn, or they might affirmatively establish legitimate objectives better served by the lines drawn than by the plaintiff's hypothetical. The State might, for example, posit the need to avoid racial vote dilution. Cf. Bush v. Vera, 517 U.S., at 990 (O'CONNOR, J., concurring) (compliance with § 2 of the Voting Rights Act of 1965 is a compelling state interest). It might plead one person, one vote, a standard compatible with gerrymandering but in some places perhaps unattainable without some lopsided proportions. The State might adopt the object of proportional representation among its political parties through its districting process. Gaffney v. Cummings, 412 U.S. 735, 754 (1973);[6] cf. Johnson v. De Grandy, 512 U.S., at *352 1024 (totality of the circumstances did not support finding of vote dilution where "minority groups constitute[d] effective voting majorities in a number of state Senate districts substantially proportional to their share in the population").[7] This is not, however, the time or place for a comprehensive list of legitimate objectives a State might present. The point here is simply that the Constitution should not petrify traditional districting objectives as exclusive, and it is enough to say that the State would be required to explain itself, to demonstrate that whatever reasons it gave were more than a mere pretext for an old-fashioned gerrymander. *353 C As for a statewide claim, I would not attempt an ambitious definition without the benefit of experience with individual district claims, and for now I would limit consideration of a statewide claim to one built upon a number of district-specific ones. Each successful district-specific challenge would necessarily entail redrawing at least one contiguous district, and the more the successful claims, the more surrounding districts to be redefined. At a certain point, the ripples would reach the state boundary, and it would no longer make any sense for a district court to consider the problems piecemeal. D The plurality says that my proposed standard would not solve the essential problem of unworkability. It says that "[i]t does not solve [the] problem [of determining when gerrymandering has gone too far] to break down the original unanswerable question . . . into four more discrete but equally unanswerable questions." Ante, at 296-297. It is common sense, however, to break down a large and intractable issue into discrete fragments as a way to get a handle on the larger one, and the elements I propose are not only tractable in theory, but the very subjects that judges already deal with in practice. The plurality asks, for example, "[w]hat . . . a lower court [is] to do when, as will often be the case, the district adheres to some traditional criteria but not others?" Ante, at 296. This question already arises in cases under § 2 of the Voting Rights Act of 1965, and the district courts have not had the same sort of difficulty answering it as they have in applying the Davis v. Bandemer plurality. See, e. g., Johnson v. Hamrick, 155 F. Supp. 2d 1355, 1362-1363 (ND Ga. 2001) (noncontiguity of a plaintiff's Gingles districts was not fatal to a § 2 claim against a municipal districting scheme because "the city's boundaries are rough and asymmetrical . . . [and] the non-contiguous portions *354 [of the proposed districts] are separated by unincorporated areas and are relatively near the districts to which they are joined"). The enquiries I am proposing are not, to be sure, as hard edged as I wish they could be, but neither do they have a degree of subjectivity inconsistent with the judicial function. The plurality also says that my standard is destined to fail because I have not given a precise enough account of the extreme unfairness I would prevent. Ante, at 297-298. But this objection is more the reliable expression of the plurality's own discouragement than the description of an Achilles heel in my suggestion. The harm from partisan gerrymandering is (as I have said, supra, at 343, 349-350) a species of vote dilution: the point of the gerrymander is to capture seats by manipulating district lines to diminish the weight of the other party's votes in elections. To devise a judicial remedy for that harm, however, it is not necessary to adopt a full-blown theory of fairness, furnishing a precise measure of harm caused by divergence from the ideal in each case. It is sufficient instead to agree that gerrymandering is, indeed, unfair, as the plurality does not dispute; to observe the traditional methods of the gerrymanderer, which the plurality summarizes, ante, at 274-276; and to adopt a test aimed at detecting and preventing the use of those methods, which, I think, mine is. If those methods are unnecessary to effective gerrymandering, as the plurality implies, ante, at 297-298, it is hard to explain why they have been so popular down through the ages of American politics. My test would no doubt leave substantial room for a party in power to seek advantage through its control of the districting process; the only way to prevent all opportunism would be to remove districting wholly from legislative control, which I am not prepared to say the Constitution requires. But that does not make it impossible for courts to identify at least the worst cases of gerrymandering, and to provide a remedy. The most the plurality can show is that my approach would *355 not catch them all. Cf. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1178 (1989) ("To achieve what is, from the standpoint of the substantive policies involved, the `perfect' answer is nice — but it is just one of a number of competing values"). IV In drafting the complaint for this case, appellants' counsel naturally proceeded on the assumption that they had to satisfy the Davis v. Bandemer plurality, or some revision in light of Shaw, but not the prima facie case I have in mind. Richard and Norma Jean Vieth make only statewide claims, for which the single district claim brought by Susan Furey provides insufficient grounding. As for Furey's own claim, her allegations fall short, for example, on the feasibility of an alternative district superior to her own, as I would require. But she might well be able to allege what I would require, if given leave to amend. I would grant her that leave, and therefore would vacate the judgment of the District Court and remand for further proceedings. From the Court's judgment denying her that opportunity, I respectfully dissent. JUSTICE BREYER, dissenting. The use of purely political considerations in drawing district boundaries is not a "necessary evil" that, for lack of judicially manageable standards, the Constitution inevitably must tolerate. Rather, pure politics often helps to secure constitutionally important democratic objectives. But sometimes it does not. Sometimes purely political "gerrymandering" will fail to advance any plausible democratic objective while simultaneously threatening serious democratic harm. And sometimes when that is so, courts can identify an equal protection violation and provide a remedy. Because the plaintiffs could claim (but have not yet proved) that such circumstances exist here, I would reverse the District Court's dismissal of their complaint. *356 The plurality focuses directly on the most difficult issue before us. It says, "[n]o test — yea, not even a five-part test — can possibly be successful unless one knows what he is testing for." Ante, at 297 (emphasis in original). That is true. Thus, I shall describe a set of circumstances in which the use of purely political districting criteria could conflict with constitutionally mandated democratic requirements — circumstances that the courts should "test for." I shall then explain why I believe it possible to find applicable judicially manageable standards. And I shall illustrate those standards. I I start with a fundamental principle. "We the People," who "ordain[ed] and establish[ed]" the American Constitution, sought to create and to protect a workable form of government that is in its "`principles, structure, and whole mass,'" basically democratic. G. Wood, The Creation of the American Republic, 1776-1787, p. 595 (1969) (quoting W. Murray, Political Sketches, Inscribed to His Excellency John Adams 5 (1787)). See also, e. g., A. Meiklejohn, Free Speech and Its Relation to Self-Government 14-15 (1948). In a modern Nation of close to 300 million people, the workable democracy that the Constitution foresees must mean more than a guaranteed opportunity to elect legislators representing equally populous electoral districts. Reynolds v. Sims, 377 U.S. 533, 568 (1964); Kirkpatrick v. Preisler, 394 U.S. 526, 530-531 (1969); Karcher v. Daggett, 462 U.S. 725, 730 (1983). There must also be a method for transforming the will of the majority into effective government. This Court has explained that political parties play a necessary role in that transformation. At a minimum, they help voters assign responsibility for current circumstances, thereby enabling those voters, through their votes for individual candidates, to express satisfaction or dissatisfaction with the political status quo. Those voters can either vote to support that status quo or vote to "throw the rascals out." *357 See generally McConnell v. Federal Election Comm'n, 540 U.S. 93, 188 (2003); California Democratic Party v. Jones, 530 U.S. 567, 574 (2000); Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604, 615-616 (1996). A party-based political system that satisfies this minimal condition encourages democratic responsibility. It facilitates the transformation of the voters' will into a government that reflects that will. Why do I refer to these elementary constitutional principles? Because I believe they can help courts identify at least one abuse at issue in this case. To understand how that is so, one should begin by asking why single-member electoral districts are the norm, why the Constitution does not insist that the membership of legislatures better reflect different political views held by different groups of voters. History, of course, is part of the answer, but it does not tell the entire story. The answer also lies in the fact that a single-member-district system helps to ensure certain democratic objectives better than many "more representative" (i. e., proportional) electoral systems. Of course, single-member districts mean that only parties with candidates who finish "first past the post" will elect legislators. That fact means in turn that a party with a bare majority of votes or even a plurality of votes will often obtain a large legislative majority, perhaps freezing out smaller parties. But single-member districts thereby diminish the need for coalition governments. And that fact makes it easier for voters to identify which party is responsible for government decision-making (and which rascals to throw out), while simultaneously providing greater legislative stability. Cf. C. Mershon, The Costs of Coalition: Coalition Theories and Italian Governments, 90 Am. Pol. Sci. Rev. 534 (1996) (noting that from 1946 to 1992, under proportional systems "almost no [Italian] government stayed in office more than a few years, and many governments collapsed after only a few months"); Hermens, Representation and Proportional Representation, *358 in Choosing an Electoral System: Issues and Alternatives 15, 24 (A. Lijphart & B. Grofman eds. 1984) (describing the "political paralysis which had become the hallmark of the Fourth Republic" under proportional representation). See also Duverger, Which is the Best Electoral System? in Choosing an Electoral System, supra, at 31, 32 (arguing that proportional systems "preven[t] the citizens from expressing a clear choice for a governmental team," and that nonproportional systems allow voters to "choose governments with the capacity to make decisions"). This is not to say that single-member districts are preferable; it is simply to say that single-member-district systems and more-directly-representational systems reflect different conclusions about the proper balance of different elements of a workable democratic government. If single-member districts are the norm, however, then political considerations will likely play an important, and proper, role in the drawing of district boundaries. In part, that is because politicians, unlike nonpartisan observers, normally understand how "the location and shape of districts" determine "the political complexion of the area." Gaffney v. Cummings, 412 U.S. 735, 753 (1973). It is precisely because politicians are best able to predict the effects of boundary changes that the districts they design usually make some political sense. See, e. g., Persily, In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders, 116 Harv. L. Rev. 649, 678, and nn. 94-95 (2002) (recounting the author's experience as a neutral court-appointed boundary drawer, in which the plan he helped draw moved an uninhabited swamp from one district to another, thereby inadvertently disrupting environmental projects that were important to the politician representing the swamp's former district). More important for present purposes, the role of political considerations reflects a surprising mathematical fact. Given a fairly large state population with a fairly large congressional *359 delegation, districts assigned so as to be perfectly random in respect to politics would translate a small shift in political sentiment, say a shift from 51% Republican to 49% Republican, into a seismic shift in the makeup of the legislative delegation, say from 100% Republican to 100% Democrat. See M. Altman, Modeling the Effect of Mandatory District Compactness on Partisan Gerrymanders, 17 Pol. Geography 989, 1002 (1998) (suggesting that, where the state population is large enough, even randomly selected compact districts will generally elect no politicians from the party that wins fewer votes statewide). Any such exaggeration of tiny electoral changes — virtually wiping out legislative representation of the minority party — would itself seem highly undemocratic. Given the resulting need for single-member districts with nonrandom boundaries, it is not surprising that "traditional" districting principles have rarely, if ever, been politically neutral. Rather, because, in recent political memory, Democrats have often been concentrated in cities while Republicans have often been concentrated in suburbs and sometimes rural areas, geographically drawn boundaries have tended to "pac[k]" the former. See ante, at 290 (plurality opinion) (citing Davis v. Bandemer, 478 U.S. 109, 159 (1986) (O'CONNOR, J., concurring in judgment)); Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory? 33 UCLA L. Rev. 1, 9 (1985) (explaining that the "`formal' criteria . . . do not live up to their advance billing as `fair' or `neutral'"). Neighborhood or community-based boundaries, seeking to group Irish, Jewish, or African-American voters, often did the same. All this is well known to politicians, who use their knowledge about the effects of the "neutral" criteria to partisan advantage when drawing electoral maps. And were it not so, the iron laws of mathematics would have worked their extraordinary volatility-enhancing will. *360 This is to say that traditional or historically based boundaries are not, and should not be, "politics free." Rather, those boundaries represent a series of compromises of principle — among the virtues of, for example, close representation of voter views, ease of identifying "government" and "opposition" parties, and stability in government. They also represent an uneasy truce, sanctioned by tradition, among different parties seeking political advantage. As I have said, reference back to these underlying considerations helps to explain why the legislature's use of political boundary-drawing considerations ordinarily does not violate the Constitution's Equal Protection Clause. The reason lies not simply in the difficulty of identifying abuse or finding an appropriate judicial remedy. The reason is more fundamental: Ordinarily, there simply is no abuse. The use of purely political boundary-drawing factors, even where harmful to the members of one party, will often nonetheless find justification in other desirable democratic ends, such as maintaining relatively stable legislatures in which a minority party retains significant representation. II At the same time, these considerations can help identify at least one circumstance where use of purely political boundary-drawing factors can amount to a serious, and remediable, abuse, namely, the unjustified use of political factors to entrench a minority in power. By entrenchment I mean a situation in which a party that enjoys only minority support among the populace has nonetheless contrived to take, and hold, legislative power. By unjustified entrenchment I mean that the minority's hold on power is purely the result of partisan manipulation and not other factors. These "other" factors that could lead to "justified" (albeit temporary) minority entrenchment include sheer happenstance, the existence of more than two major parties, the unique constitutional requirements of certain representational bodies *361 such as the Senate, or reliance on traditional (geographic, communities of interest, etc.) districting criteria. The democratic harm of unjustified entrenchment is obvious. As this Court has written in respect to popularly based electoral districts: "Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State's legislators. To conclude differently, and to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result. Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will." Reynolds, 377 U.S., at 565. Where unjustified entrenchment takes place, voters find it far more difficult to remove those responsible for a government they do not want; and these democratic values are dishonored. The need for legislative stability cannot justify entrenchment, for stability is compatible with a system in which the loss of majority support implies a loss of power. The need to secure minority representation in the legislature cannot justify entrenchment, for minority party representation is also compatible with a system in which the loss of minority support implies a loss of representation. Constitutionally specified principles of representation, such as that of two Senators per State, cannot justify entrenchment where the House of Representatives or similar state legislative body is at issue. Unless some other justification can be found in particular circumstances, political gerrymandering that so entrenches a minority party in power violates basic democratic norms and lacks countervailing justification. For this *362 reason, whether political gerrymandering does, or does not, violate the Constitution in other instances, gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution's Equal Protection Clause. III Courts need not intervene often to prevent the kind of abuse I have described, because those harmed constitute a political majority, and a majority normally can work its political will. Where a State has improperly gerrymandered legislative or congressional districts to the majority's disadvantage, the majority should be able to elect officials in statewide races—particularly the Governor—who may help to undo the harm that districting has caused the majority's party, in the next round of districting if not sooner. And where a State has improperly gerrymandered congressional districts, Congress retains the power to revise the State's districting determinations. See U.S. Const., Art. I, § 4; ante, at 275-277 (plurality opinion) (discussing the history of Congress' "power to check partisan manipulation of the election process by the States"). Moreover, voters in some States, perhaps tiring of the political boundary-drawing rivalry, have found a procedural solution, confiding the task to a commission that is limited in the extent to which it may base districts on partisan concerns. According to the National Conference of State Legislatures, 12 States currently give "first and final authority for [state] legislative redistricting to a group other than the legislature." National Conference of State Legislatures, Redistricting Commissions and Alternatives to the Legislature Conducting Redistricting (2004), available at http:// www.ncsl.org/programs/legman/Redistrict/Com&alter.htm (all Internet materials as visited Mar. 29, 2004, and available in Clerk of Court's case file). A number of States use a commission for congressional redistricting: Arizona, Hawaii, Idaho, Montana, New Jersey, and Washington, with Indiana *363 using a commission if the legislature cannot pass a plan and Iowa requiring the district-drawing body not to consider political data. Ibid.; Iowa General Assembly, Legislative Service Bureau, Legislative Guide to Redistricting (Dec. 2000), available at http://www.legis.state.ia.us/Central/LSB/ Guides/redist.htm. Indeed, where state governments have been unwilling or unable to act, "an informed, civically militant electorate," Baker v. Carr, 369 U.S. 186, 270 (1962) (Frankfurter, J., dissenting), has occasionally taken matters into its own hands, through ballot initiatives or referendums. Arizona voters, for example, passed Proposition 106, which amended the State's Constitution and created an independent redistricting commission to draw legislative and congressional districts. Ariz. Const., Art. 4, pt. 2, § 1 (West 2001). Such reforms borrow from the systems used by other countries utilizing single-member districts. See, e. g., Administration and Cost of Elections Project, Boundary Delimitation (hereinafter ACE Project), Representation in the Canadian Parliament, available at http://www.aceproject.org/main/english/bd/bdy_ca.htm (describing Canada's independent boundary commissions, which draft maps based on equality of population, communities of interest, and geographic factors); ACE Project, The United Kingdom Redistribution Process, available at http://www.aceproject.org/main/english/bd/bdy_gb.htm (describing the United Kingdom's independent boundary commissions, which make recommendations to Parliament after consultation with the public); G. Gudgin & P. Taylor, Seats, Votes, and the Spatial Organisation of Elections 8 (1979) (noting that the United Kingdom's boundary commissions are "explicitly neutral in a party political sense"). But we cannot always count on a severely gerrymandered legislature itself to find and implement a remedy. See Bandemer, 478 U. S., at 126. The party that controls the process has no incentive to change it. And the political advantages of a gerrymander may become ever greater in the future. *364 The availability of enhanced computer technology allows the parties to redraw boundaries in ways that target individual neighborhoods and homes, carving out safe but slim victory margins in the maximum number of districts, with little risk of cutting their margins too thin. See generally Handley, A Guide to 2000 Redistricting Tools and Technology, in The Real Y2K Problem: Census 2000 Data and Redistricting Technology (N. Persily ed. 2000); Karlan, The Fire Next Time: Reapportionment After the 2000 Census, 50 Stan. L. Rev. 731, 736 (1998); ante, at 345-346 (SOUTER, J., dissenting). By redrawing districts every 2 years, rather than every 10 years, a party might preserve its political advantages notwithstanding population shifts in the State. The combination of increasingly precise map-drawing technology and increasingly frequent map drawing means that a party may be able to bring about a gerrymander that is not only precise, but virtually impossible to dislodge. Thus, court action may prove necessary. When it is necessary, a court should prove capable of finding an appropriate remedy. Courts have developed districting remedies in other cases. See, e. g., Branch v. Smith, 538 U.S. 254 (2003) (affirming the District Court's injunction of use of state court's redistricting plan and order that its own plan be used until a state plan could be precleared under the Voting Rights Act of 1965); Karcher, 462 U.S. 725 (upholding the District Court's holding that a congressional reapportionment plan was unconstitutional); Reynolds, 377 U. S., at 586-587 (upholding the District Court's actions in ordering into effect a reapportionment of both houses of the state legislature). See also Issacharoff, Judging Politics: The Elusive Quest for Judicial Review of Political Fairness, 71 Texas L. Rev. 1643, 1688-1690, and nn. 227-233 (1993) (reporting that, in the wake of the 1980 census, there were 13 court-ordered plans for congressional redistricting, 5 plans that the courts rejected and returned to state legislatures for redrafting, 7 court-ordered state senate plans, 8 state senate *365 plans rejected and sent back to the state legislatures, 6 court-ordered state house plans, and 9 state house plans sent back for further legislative action—all of which meant that, leaving aside the preclearance provisions of § 5 of the Voting Rights Act of 1965, about one-third of all redistricting was done either directly by the federal courts or under courts' injunctive authority (citing cases)). Moreover, if the dangers of inadvertent political favoritism prove too great, a procedural solution, such as the use of a politically balanced boundary-drawing commission, may prove possible. The bottom line is that courts should be able to identify the presence of one important gerrymandering evil, the unjustified entrenching in power of a political party that the voters have rejected. They should be able to separate the unjustified abuse of partisan boundary-drawing considerations to achieve that end from their more ordinary and justified use. And they should be able to design a remedy for extreme cases. IV I do not claim that the problem of identification and separation is easily solved, even in extreme instances. But courts can identify a number of strong indicia of abuse. The presence of actual entrenchment, while not always unjustified (being perhaps a chance occurrence), is such a sign, particularly when accompanied by the use of partisan boundary-drawing criteria in the way that JUSTICE STEVENS describes, i. e., a use that both departs from traditional criteria and cannot be explained other than by efforts to achieve partisan advantage. Below, I set forth several sets of circumstances that lay out the indicia of abuse I have in mind. The scenarios fall along a continuum: The more permanently entrenched the minority's hold on power becomes, the less evidence courts will need that the minority engaged in gerrymandering to achieve the desired result. Consider, for example, the following sets of circumstances. First, suppose that the legislature has proceeded to redraw *366 boundaries in what seem to be ordinary ways, but the entrenchment harm has become obvious. E. g., (a) the legislature has not redrawn district boundaries more than once within the traditional 10-year period; and (b) no radical departure from traditional districting criteria is alleged; but (c) a majority party (as measured by the votes actually cast for all candidates who identify themselves as members of that party in the relevant set of elections; i. e., in congressional elections if a congressional map is being challenged) has twice failed to obtain a majority of the relevant legislative seats in elections; and (d) the failure cannot be explained by the existence of multiple parties or in other neutral ways. In my view, these circumstances would be sufficient to support a claim of unconstitutional entrenchment. Second, suppose that plaintiffs could point to more serious departures from redistricting norms. E. g., (a) the legislature has not redrawn district boundaries more than once within the traditional 10-year period; but (b) the boundary-drawing criteria depart radically from previous or traditional criteria; (c) the departure cannot be justified or explained other than by reference to an effort to obtain partisan political advantage; and (d) a majority party (as defined above) has once failed to obtain a majority of the relevant seats in election using the challenged map (which fact cannot be explained by the existence of multiple parties or in other neutral ways). These circumstances could also add up to unconstitutional gerrymandering. Third, suppose that the legislature clearly departs from ordinary districting norms, but the entrenchment harm, while seriously threatened, has not yet occurred. E. g., (a) the legislature has redrawn district boundaries more than once within the traditional 10-year census-related period— either, as here, at the behest of a court that struck down an initial plan as unlawful, see Vieth v. Pennsylvania, 195 F. Supp. 2d 672 (MD Pa. 2002) (per curiam) (finding that Pennsylvania's first redistricting plan violated the one-person, *367 one-vote mandate), or of its own accord; (b) the boundary-drawing criteria depart radically from previous traditional boundary-drawing criteria; (c) strong, objective, unrefuted statistical evidence demonstrates that a party with a minority of the popular vote within the State in all likelihood will obtain a majority of the seats in the relevant representative delegation; and (d) the jettisoning of traditional districting criteria cannot be justified or explained other than by reference to an effort to obtain partisan political advantage. To my mind, such circumstances could also support a claim, because the presence of midcycle redistricting, for any reason, raises a fair inference that partisan machinations played a major role in the map-drawing process. Where such an inference is accompanied by statistical evidence that entrenchment will be the likely result, a court may conclude that the map crosses the constitutional line we are describing. The presence of these, or similar, circumstances—where the risk of entrenchment is demonstrated, where partisan considerations render the traditional district-drawing compromises irrelevant, where no justification other than party advantage can be found—seem to me extreme enough to set off a constitutional alarm. The risk of harm to basic democratic principle is serious; identification is possible; and remedies can be found. V The plurality sets forth several criticisms of my approach. Some of those criticisms are overstated. Compare ante, at 300 ("[O]f course there always is a neutral explanation [of gerrymandering]—if only the time-honored criterion of incumbent protection"), with Brief for Appellants 13 (pointing to examples of efforts to gerrymander an incumbent of the opposition party out of office and elect a new member of the controlling party); compare ante, at 300 (complaining of "the difficulties of assessing partisan strength statewide"), with supra, at 366 (identifying the "majority party" simply by *368 adding up "the votes actually cast for all candidates who identify themselves as members of that party in the relevant set of elections"). Other criticisms involve differing judgments. Compare ante, at 299 (complaining about the vagueness of unjustified political machination, "whatever that means," and of unjustified entrenchment), with supra, at 360-361 (detailed discussion of "justified" and Reynolds v. Sims); compare ante, at 301 (finding costs of judicial intervention too high), with supra, at 364-365 (finding costs warranted to ensure majority rule). But the plurality makes one criticism that warrants a more elaborate response. It observes "that the mere fact that these four dissenters come up with three different standards—all of them different from the two proposed in Bandemer and the one proposed here by appellants—goes a long way to establishing that there is no constitutionally discernible standard." Ante, at 292. Does it? The dissenting opinions recommend sets of standards that differ in certain respects. Members of a majority might well seek to reconcile such differences. But dissenters might instead believe that the more thorough, specific reasoning that accompanies separate statements will stimulate further discussion. And that discussion could lead to change in the law, where, as here, one member of the majority, disagreeing with the plurality as to justiciability, remains in search of appropriate standards. See ante, at 311-312 (KENNEDY, J., concurring in judgment). VI In the case before us, there is a strong likelihood that the plaintiffs' complaint could be amended readily to assert circumstances consistent with those I have set forth as appropriate for judicial intervention. For that reason, I would authorize the plaintiffs to proceed; and I dissent from the majority's contrary determination.

The Constitution guarantees both formal and substantial equality among voters. For 40 years, we have recognized that lines dividing a State into voting districts must produce divisions equal populations: one person, one vote. Otherwise, a vote in a less populous district than others carries more clout. Creating unequally populous districts is not, however, the only way to skew political results by setting district lines. The choice to draw a district line one way, not another, always carries some consequence for politics, save in a mythical State voters of every political identity distributed in an absolutely gray uniformity. The spectrum of opportunity runs from cracking a group into impotent fractions, to packing its members into one district for the sake of marginalizing them in another. However equal districts may be in population as a formal matter, the consequence of a vote cast can be minimized or maximized, and if unfairness is sufficiently demonstrable, the guarantee of equal protection condemns it as a denial of substantial equality. I The notion of fairness assumed to be denied in these cases has been described as "each political group in a State [having] the same chance to elect representatives of its choice as any other political group," and as a "right to `fair and effective representation,'" Cf. (describing the need for "a structure which will in fact as well as theory be responsive to the sentiments of the community"). It is undeniable that political sophisticates understand such *344 fairness and how to go about destroying it, see App. to Juris. Statement 134a, although it cannot possibly be described the hard edge of one person, one vote. The difficulty has been to translate these notions of fairness into workable criteria, as distinct from mere opportunities for reviewing courts to make episodic judgments that things have gone too far, the sources of difficulty being in the facts that some intent to gain political advantage is inescapable whenever political bodies devise a district plan, and some effect results from the intent. ("In reality, of course, districting is itself a gerrymandering in the sense that it represents a complex blend of political, economic, regional, and historical considerations"). Thus, the issue is one of how much is too much, and we can be no more exact in stating a verbal test for too much partisanship than we can be in defining too much race consciousness when some is inevitable and legitimate. See Instead of coming up a verbal formula for too much, then, the Court's job must be to identify clues, as objective as we can make them, indicating that partisan competition has reached an extremity of unfairness. The plurality says, in effect, that courts have been trying to devise practical criteria for political gerrymandering for nearly 20 years, out being any closer to something workable than we were when was decided. Ante, at 281.[1] While this is true enough, I do not accept it as sound counsel of despair. For I take it that the principal reason we have not gone from theoretical justiciability to practical administrability in political gerrymandering cases is the plurality's specification that any criterion of forbidden gerrymandering must require a showing that members of the plaintiff's group had "essentially been shut out of the political process," See, e. g., That is, in order to avoid a threshold for relief so low that almost any electoral defeat (let alone failure to achieve proportionate results) would support a gerrymandering claim, the plurality required a demonstration of such pervasive devaluation over such a period of time as to raise real doubt that a case could ever be made out. suggested that plaintiffs might need to show even that their efforts to deliberate, register, and vote had been impeded. This standard, which it is difficult to imagine a major party meeting, combined a very demanding burden significant vagueness; and if appellants have not been able to propose a practical test for a violation, the fault belongs less to them than to our predecessors. As Judge Higginbotham recently put it, "[i]t is now painfully clear that Justice Powell's concern that [] offered a `"constitutional green light" to would-be gerrymanderers' has been realized." (footnote omitted) (quoting ). II Since this Court has created the problem no one else has been able to solve, it is up to us to make a fresh start. There are a good many voices saying it is high time that we did, for in the years since the increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine. E. g., Issacharoff, Gerrymandering and Political Cartels, ; Karlan, The Fire Next Time: Reapportionment After the 2000 Census, ; *346 Pildes, Principled Limitations on Racial and Partisan Redistricting, 106 Yale L. J. 2505, 2553-2554 (17) ("Recent cases now document in microscopic detail the astonishing precision which redistricters can carve up individual precincts and distribute them between districts confidence concerning the racial and partisan consequences"). See also Morrill, A Geographer's Perspective, in Political Gerrymandering and the Courts 213-214 (B. Grofman ed. 10) (noting that gerrymandering can produce "high proportions of very safe seats"); Brief for Bernard Grofman et al. as Amici Curiae 5-8 (decline of competitive seats). Cf. 34 U.S., at ("A computer may grind out district lines which can totally frustrate the popular will on an overwhelming number of critical issues"). I would therefore preserve 's holding that political gerrymandering is a justiciable issue, but otherwise start anew. I would adopt a political gerrymandering test analogous to the summary judgment standard crafted in McDonnell Douglas calling for a plaintiff to satisfy elements of a prima facie cause of action, at which point the State would have the opportunity not only to rebut the evidence supporting the plaintiff's case, but to offer an affirmative justification for the districting choices, even assuming the proof of the plaintiff's allegations. My own judgment is that we would have better luck at devising a workable prima facie case if we concentrated as much as possible on suspect characteristics of individual districts instead of statewide patterns. It is not that a statewide view of districting is somehow less important; the usual point of gerrymandering, after all, is to control the greatest number of seats overall. But, as will be seen, we would be able to call more readily on some existing law when we defined what is suspect at the district level, and for now I would conceive of a statewide challenge as itself a function of claims that individual districts are illegitimately drawn. Finally, in the same interest of threshold simplicity, I would stick to problems *347 of single-member districts; if we could not devise a workable scheme for dealing claims about these, we would have to forget the complications posed by multimember districts. III A For a claim based on a specific single-member district, I would require the plaintiff to make out a prima facie case five elements. First, the resident plaintiff would identify a cohesive political group to which he belonged, which would normally be a major party, as in this case and in There is no reason in principle, however, to rule out a claimant from a minor political party (which might, if it showed strength, become the target of vigorous hostility from one or both major parties in a State) or from a different but politically coherent group whose members engaged in bloc voting, as a large labor union might do. The point is that it must make sense to speak of a candidate of the group's choice, easy to do in the case of a large or small political party, though more difficult when the organization is not defined by politics as such.[2] Second, a plaintiff would need to show that the district of his residence, see United *348 paid little or no heed to those traditional districting principles whose disregard can be shown straightforwardly: contiguity, compactness, respect for political subdivisions, and conformity geographic features like rivers and mountains. Because such considerations are already relevant to justifying small deviations from absolute population equality, and because compactness in particular is relevant to demonstrating possible majority-minority districts under the Voting Rights Act of 165, there is no doubt that a test relying on these standards would fall in judicial competence. Indeed, although compactness is at first blush the least likely of these principles to yield precision, it can be measured quantitatively in terms of dispersion, perimeter, and population ratios, and the development of standards would thus be possible. See generally Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After ; see also ).[3] It is not necessary now to say exactly *34 how a district court would balance a good showing on one of these indices against a poor showing on another, for that sort of detail is best worked out case by case. Third, the plaintiff would need to establish specific correlations between the district's deviations from traditional districting principles and the distribution of the population of his group. For example, one of the districts to which appellants object most strongly in this case is District 6, which they say "looms like a dragon descending on Philadelphia from the west, splitting up towns and communities throughout Montgomery and Berks Counties." App. to Juris. Statement 136a. To make their claim stick, they would need to point to specific protuberances on the Draconian shape that reach out to include Democrats, or fissures in it that squirm away from Republicans. They would need to show that when towns and communities were split, Democrats tended to fall on one side and Republicans on the other. Although some counterexamples would no doubt be present in any complex plan, the plaintiff's showing as a whole would need to provide reasonable support for, if not compel, an inference that the district took the shape it did because of the distribution of the plaintiff's group. That would begin, but not complete, the plaintiff's case that the defendant had chosen either to pack the group (drawn a district in order to include a uselessly high number of the group) or to crack it (drawn it so as to include fatally few), the ordinary methods of vote dilution in single-member district systems. Ante, at 286, n. 7. Fourth, a plaintiff would need to present the court a hypothetical district including his residence, one in which the proportion of the plaintiff's group was lower (in a packing claim) or higher (in a cracking one) and which at the same time deviated less from traditional districting principles than the actual district. Cf. This hypothetical district would allow the plaintiff to claim credibly that the deviations from traditional districting principles were not only correlated but also caused by, the packing or cracking of his group. Drawing the hypothetical district would, of course, necessarily involve redrawing at least one contiguous district,[4] and a plaintiff would have to show that this could be done subject to traditional districting principles out packing or cracking his group (or another) worse than in the district being challenged. Fifth, and finally, the plaintiff would have to show that the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group. See Washington v. In substantiating claims of political gerrymandering under a plan devised by a single major party, proving intent should not be hard, once the third and fourth (correlation and cause) elements are established, politicians not being politically disinterested or characteristically naive. I would, however, treat any showing of intent in a major-party case as too equivocal to count unless the entire legislature were controlled by the governor's party (or the dominant legislative party were vetoproof).[5] *351 If the affected group were not a major party, proof of intent could, admittedly, be difficult. It would be possible that a legislature might not even have had the plaintiff's group in mind, and a plaintiff would naturally have a hard time showing requisite intent behind a plan produced by a bipartisan commission. B A plaintiff who got this far would have shown that his State intentionally acted to dilute his vote, having ignored reasonable alternatives consistent traditional districting principles. I would then shift the burden to the defendants to justify their decision by reference to objectives other than naked partisan advantage. They might show by rebuttal evidence that districting objectives could not be served by the plaintiff's hypothetical district better than by the district as drawn, or they might affirmatively establish legitimate objectives better served by the lines drawn than by the plaintiff's hypothetical. The State might, for example, posit the need to avoid racial vote dilution. Cf. (compliance 2 of the Voting Rights Act of 165 is a compelling state interest). It might plead one person, one vote, a standard compatible gerrymandering but in some places perhaps unattainable out some lopsided proportions. The State might adopt the object of proportional representation among its political parties through its districting process. ;[6] cf. 512 U.S., at *352 1024 (totality of the circumstances did not support finding of vote dilution where "minority groups constitute[d] effective voting majorities in a number of state Senate districts substantially proportional to their share in the population").[7] This is not, however, the time or place for a comprehensive list of legitimate objectives a State might present. The point here is simply that the Constitution should not petrify traditional districting objectives as exclusive, and it is enough to say that the State would be required to explain itself, to demonstrate that whatever reasons it gave were more than a mere pretext for an old-fashioned gerrymander. *353 C As for a statewide claim, I would not attempt an ambitious definition out the benefit of experience individual district claims, and for now I would limit consideration of a statewide claim to one built upon a number of district-specific ones. Each successful district-specific challenge would necessarily entail redrawing at least one contiguous district, and the more the successful claims, the more surrounding districts to be redefined. At a certain point, the ripples would reach the state boundary, and it would no longer make any sense for a district court to consider the problems piecemeal. D The plurality says that my proposed standard would not solve the essential problem of unworkability. It says that "[i]t does not solve [the] problem [of determining when gerrymandering has gone too far] to break down the original unanswerable question into four more discrete but equally unanswerable questions." Ante, at 26-27. It is common sense, however, to break down a large and intractable issue into discrete fragments as a way to get a handle on the larger one, and the elements I propose are not only tractable in theory, but the very subjects that judges already deal in practice. The plurality asks, for example, "[w]hat a lower court [is] to do when, as will often be the case, the district adheres to some traditional criteria but not others?" Ante, at 26. This question already arises in cases under 2 of the Voting Rights Act of 165, and the district courts have not had the same sort of difficulty answering it as they have in applying the plurality. See, e. g., (noncontiguity of a plaintiff's Gingles districts was not fatal to a 2 claim against a municipal districting scheme because "the city's boundaries are rough and asymmetrical [and] the non-contiguous portions *354 [of the proposed districts] are separated by unincorporated areas and are relatively near the districts to which they are joined"). The enquiries I am proposing are not, to be sure, as hard edged as I wish they could be, but neither do they have a degree of subjectivity inconsistent the judicial function. The plurality also says that my standard is destined to fail because I have not given a precise enough account of the extreme unfairness I would prevent. Ante, at 27-28. But this objection is more the reliable expression of the plurality's own discouragement than the description of an Achilles heel in my suggestion. The harm from partisan gerrymandering is (as I have said, ) a species of vote dilution: the point of the gerrymander is to capture seats by manipulating district lines to diminish the weight of the other party's votes in elections. To devise a judicial remedy for that harm, however, it is not necessary to adopt a full-blown theory of fairness, furnishing a precise measure of harm caused by divergence from the ideal in each case. It is sufficient instead to agree that gerrymandering is, indeed, unfair, as the plurality does not dispute; to observe the traditional methods of the gerrymanderer, which the plurality summarizes, ante, at 274-276; and to adopt a test aimed at detecting and preventing the use of those methods, which, I think, mine is. If those methods are unnecessary to effective gerrymandering, as the plurality implies, ante, at 27-28, it is hard to explain why they have been so popular down through the ages of American politics. My test would no doubt leave substantial room for a party in power to seek advantage through its control of the districting process; the only way to prevent all opportunism would be to remove districting wholly from legislative control, which I am not prepared to say the Constitution requires. But that does not make it impossible for courts to identify at least the worst cases of gerrymandering, and to provide a remedy. The most the plurality can show is that my approach would *355 not catch them all. Cf. Scalia, The Rule of Law as a Law of Rules, IV In drafting the complaint for this case, appellants' counsel naturally proceeded on the assumption that they had to satisfy the plurality, or some revision in light of Shaw, but not the prima facie case I have in mind. Richard and Norma Jean Vieth make only statewide claims, for which the single district claim brought by Susan Furey provides insufficient grounding. As for Furey's own claim, her allegations fall short, for example, on the feasibility of an alternative district superior to her own, as I would require. But she might well be able to allege what I would require, if given leave to amend. I would grant her that leave, and therefore would vacate the judgment of the District Court and remand for further proceedings. From the Court's judgment denying her that opportunity, I respectfully dissent. JUSTICE BREYER, dissenting. The use of purely political considerations in drawing district boundaries is not a "necessary evil" that, for lack of judicially manageable standards, the Constitution inevitably must tolerate. Rather, pure politics often helps to secure constitutionally important democratic objectives. But sometimes it does not. Sometimes purely political "gerrymandering" will fail to advance any plausible democratic objective while simultaneously threatening serious democratic harm. And sometimes when that is so, courts can identify an equal protection violation and provide a remedy. Because the plaintiffs could claim (but have not yet proved) that such circumstances exist here, I would reverse the District Court's dismissal of their complaint. *356 The plurality focuses directly on the most difficult issue before us. It says, "[n]o test — yea, not even a five-part test — can possibly be successful unless one knows what he is testing for." Ante, at 27 (emphasis in original). That is true. Thus, I shall describe a set of circumstances in which the use of purely political districting criteria could conflict constitutionally mandated democratic requirements — circumstances that the courts should "test for." I shall then explain why I believe it possible to find applicable judicially manageable standards. And I shall illustrate those standards. I I start a fundamental principle. "We the People," who "ordain[ed] and establish[ed]" the American Constitution, sought to create and to protect a workable form of government that is in its "`principles, structure, and whole mass,'" basically democratic. G. Wood, The Creation of the American Republic, 1776-1787, p. 55 (quoting W. Murray, Political Sketches, Inscribed to His Excellency John Adams 5 (1787)). See also, e. g., A. Meiklejohn, Free Speech and Its Relation to Self-Government 14-15 (148). In a modern Nation of close to 300 million people, the workable democracy that the Constitution foresees must mean more than a guaranteed opportunity to elect legislators representing equally populous electoral districts. ; ; There must also be a method for transforming the will of the majority into effective government. This Court has explained that political parties play a necessary role in that transformation. At a minimum, they help voters assign responsibility for current circumstances, thereby enabling those voters, through their votes for individual candidates, to express satisfaction or dissatisfaction the political status quo. Those voters can either vote to support that status quo or vote to "throw the rascals out." *357 See generally ; California Democratic ; Colorado Republican Federal Campaign A party-based political system that satisfies this minimal condition encourages democratic responsibility. It facilitates the transformation of the voters' will into a government that reflects that will. Why do I refer to these elementary constitutional principles? Because I believe they can help courts identify at least one abuse at issue in this case. To understand how that is so, one should begin by asking why single-member electoral districts are the norm, why the Constitution does not insist that the membership of legislatures better reflect different political views held by different groups of voters. History, of course, is part of the answer, but it does not tell the entire story. The answer also lies in the fact that a single-member-district system helps to ensure certain democratic objectives better than many "more representative" (i. e., proportional) electoral systems. Of course, single-member districts mean that only parties candidates who finish "first past the post" will elect legislators. That fact means in turn that a party a bare majority of votes or even a plurality of votes will often obtain a large legislative majority, perhaps freezing out smaller parties. But single-member districts thereby diminish the need for coalition governments. And that fact makes it easier for voters to identify which party is responsible for government decision-making (and which rascals to throw out), while simultaneously providing greater legislative stability. Cf. C. Mershon, The Costs of Coalition: Coalition Theories and Italian Governments, 0 Am. Pol. Sci. Rev. 534 (noting that from 146 to 12, under proportional systems "almost no [Italian] government stayed in office more than a few years, and many governments collapsed after only a few months"); Hermens, Representation and Proportional Representation, *358 in Choosing an Electoral : Issues and Alternatives 15, 24 (A. Lijphart & B. Grofman eds. 184) (describing the "political paralysis which had become the hallmark of the Fourth Republic" under proportional representation). See also Duverger, Which is the Best Electoral ? in Choosing an Electoral This is not to say that single-member districts are preferable; it is simply to say that single-member-district systems and more-directly-representational systems reflect different conclusions about the proper balance of different elements of a workable democratic government. If single-member districts are the norm, however, then political considerations will likely play an important, and proper, role in the drawing of district boundaries. In part, that is because politicians, unlike nonpartisan observers, normally understand how "the location and shape of districts" determine "the political complexion of the area." It is precisely because politicians are best able to predict the effects of boundary changes that the districts they design usually make some political sense. See, e. g., Persily, In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders, and nn. 4-5 (recounting the author's experience as a neutral court-appointed boundary drawer, in which the plan he helped draw moved an uninhabited swamp from one district to another, thereby inadvertently disrupting environmental projects that were important to the politician representing the swamp's former district). More important for present purposes, the role of political considerations reflects a surprising mathematical fact. Given a fairly large state population a fairly large congressional *35 delegation, districts assigned so as to be perfectly random in respect to politics would translate a small shift in political sentiment, say a shift from 51% Republican to 4% Republican, into a seismic shift in the makeup of the legislative delegation, say from 100% Republican to 100% Democrat. See M. Altman, Modeling the Effect of Mandatory District Compactness on Partisan Gerrymanders, 17 Pol. Geography 8, 1002 (suggesting that, where the state population is large enough, even randomly selected compact districts will generally elect no politicians from the party that wins fewer votes statewide). Any such exaggeration of tiny electoral changes — virtually wiping out legislative representation of the minority party — would itself seem highly undemocratic. Given the resulting need for single-member districts nonrandom boundaries, it is not surprising that "traditional" districting principles have rarely, if ever, been politically neutral. Rather, because, in recent political memory, Democrats have often been concentrated in cities while Republicans have often been concentrated in suburbs and sometimes rural areas, geographically drawn boundaries have tended to "pac[k]" the former. See ante, at 20 ); Lowenstein & Steinberg, The Quest for Legislative Districting in the Public Interest: Elusive or Illusory? Neighborhood or community-based boundaries, seeking to group Irish, Jewish, or African-American voters, often did the same. All this is well known to politicians, who use their knowledge about the effects of the "neutral" criteria to partisan advantage when drawing electoral maps. And were it not so, the iron laws of mathematics would have worked their extraordinary volatility-enhancing will. *360 This is to say that traditional or historically based boundaries are not, and should not be, "politics free." Rather, those boundaries represent a series of compromises of principle — among the virtues of, for example, close representation of voter views, ease of identifying "government" and "opposition" parties, and stability in government. They also represent an uneasy truce, sanctioned by tradition, among different parties seeking political advantage. As I have said, reference back to these underlying considerations helps to explain why the legislature's use of political boundary-drawing considerations ordinarily does not violate the Constitution's Equal Protection Clause. The reason lies not simply in the difficulty of identifying abuse or finding an appropriate judicial remedy. The reason is more fundamental: Ordinarily, there simply is no abuse. The use of purely political boundary-drawing factors, even where harmful to the members of one party, will often nonetheless find justification in other desirable democratic ends, such as maintaining relatively stable legislatures in which a minority party retains significant representation. II At the same time, these considerations can help identify at least one circumstance where use of purely political boundary-drawing factors can amount to a serious, and remediable, abuse, namely, the unjustified use of political factors to entrench a minority in power. By entrenchment I mean a situation in which a party that enjoys only minority support among the populace has nonetheless contrived to take, and hold, legislative power. By unjustified entrenchment I mean that the minority's hold on power is purely the result of partisan manipulation and not other factors. These "other" factors that could lead to "justified" (albeit temporary) minority entrenchment include sheer happenstance, the existence of more than two major parties, the unique constitutional requirements of certain representational bodies *361 such as the Senate, or reliance on traditional (geographic, communities of interest, etc.) districting criteria. The democratic harm of unjustified entrenchment is obvious. As this Court has written in respect to popularly based electoral districts: "Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State's legislators. To conclude differently, and to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result. Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will." Where unjustified entrenchment takes place, voters find it far more difficult to remove those responsible for a government they do not want; and these democratic values are dishonored. The need for legislative stability cannot justify entrenchment, for stability is compatible a system in which the loss of majority support implies a loss of power. The need to secure minority representation in the legislature cannot justify entrenchment, for minority party representation is also compatible a system in which the loss of minority support implies a loss of representation. Constitutionally specified principles of representation, such as that of two Senators per State, cannot justify entrenchment where the House of Representatives or similar state legislative body is at issue. Unless some other justification can be found in particular circumstances, political gerrymandering that so entrenches a minority party in power violates basic democratic norms and lacks countervailing justification. For this *362 reason, whether political gerrymandering does, or does not, violate the Constitution in other instances, gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution's Equal Protection Clause. III Courts need not intervene often to prevent the kind of abuse I have described, because those harmed constitute a political majority, and a majority normally can work its political will. Where a State has improperly gerrymandered legislative or congressional districts to the majority's disadvantage, the majority should be able to elect officials in statewide races—particularly the Governor—who may help to undo the harm that districting has caused the majority's party, in the next round of districting if not sooner. And where a State has improperly gerrymandered congressional districts, Congress retains the power to revise the State's districting determinations. See U.S. Const., Art. I, 4; ante, at 275-277 (discussing the history of Congress' "power to check partisan manipulation of the election process by the States"). Moreover, voters in some States, perhaps tiring of the political boundary-drawing rivalry, have found a procedural solution, confiding the task to a commission that is limited in the extent to which it may base districts on partisan concerns. According to the National Conference of State Legislatures, 12 States currently give "first and final authority for [state] legislative redistricting to a group other than the legislature." National Conference of State Legislatures, Redistricting Commissions and Alternatives to the Legislature Conducting Redistricting available at http:// www.ncsl.org/programs/legman/Redistrict/Com&alter.htm (all Internet materials as visited Mar. 2, and available in Clerk of Court's case file). A number of States use a commission for congressional redistricting: Arizona, Hawaii, Idaho, Montana, New Jersey, and Washington, Indiana *363 using a commission if the legislature cannot pass a plan and Iowa requiring the district-drawing body not to consider political data. Ibid.; Iowa General Assembly, Legislative Service Bureau, Legislative Guide to Redistricting available at http://www.legis.state.ia.us/Central/LSB/ Guides/redist.htm. Indeed, where state governments have been unwilling or unable to act, "an informed, civically militant electorate," 36 U.S. 186, (162) has occasionally taken matters into its own hands, through ballot initiatives or referendums. Arizona voters, for example, passed Proposition 106, which amended the State's Constitution and created an independent redistricting commission to draw legislative and congressional districts. Ariz. Const., Art. 4, pt. 2, 1 Such reforms borrow from the systems used by other countries utilizing single-member districts. See, e. g., Administration and Cost of Elections Project, Boundary Delimitation (hereinafter ACE Project), Representation in the Canadian Parliament, available at http://www.aceproject.org/main/english/bd/bdy_ca.htm (describing Canada's independent boundary commissions, which draft maps based on equality of population, communities of interest, and geographic factors); ACE Project, The United Kingdom Redistribution Process, available at http://www.aceproject.org/main/english/bd/bdy_gb.htm (describing the United Kingdom's independent boundary commissions, which make recommendations to Parliament after consultation the public); G. Gudgin & P. Taylor, Seats, Votes, and the Spatial Organisation of Elections 8 (17) (noting that the United Kingdom's boundary commissions are "explicitly neutral in a party political sense"). But we cannot always count on a severely gerrymandered legislature itself to find and implement a remedy. See The party that controls the process has no incentive to change it. And the political advantages of a gerrymander may become ever greater in the future. *364 The availability of enhanced computer technology allows the parties to redraw boundaries in ways that target individual neighborhoods and homes, carving out safe but slim victory margins in the maximum number of districts, little risk of cutting their margins too thin. See generally Handley, A Guide to 2000 Redistricting Tools and Technology, in The Real Y2K Problem: Census 2000 Data and Redistricting Technology ; Karlan, The Fire Next Time: Reapportionment After the 2000 Census, ; ante, at 345-346 By redrawing districts every 2 years, rather than every 10 years, a party might preserve its political advantages notstanding population shifts in the State. The combination of increasingly precise map-drawing technology and increasingly frequent map drawing means that a party may be able to bring about a gerrymander that is not only precise, but virtually impossible to dislodge. Thus, court action may prove necessary. When it is necessary, a court should prove capable of finding an appropriate remedy. Courts have developed districting remedies in other cases. See, e. g., (affirming the District Court's injunction of use of state court's redistricting plan and order that its own plan be used until a state plan could be precleared under the Voting Rights Act of 165); (upholding the District Court's holding that a congressional reapportionment plan was unconstitutional); -587 See also Issacharoff, Judging Politics: The Elusive Quest for Judicial Review of Political Fairness, 71 Texas L. Rev. 1643, 1688-160, and nn. 227-233 (reporting that, in the wake of the 180 census, there were 13 court-ordered plans for congressional redistricting, 5 plans that the courts rejected and returned to state legislatures for redrafting, 7 court-ordered state senate plans, 8 state senate *365 plans rejected and sent back to the state legislatures, 6 court-ordered state house plans, and state house plans sent back for further legislative action—all of which meant that, leaving aside the preclearance provisions of 5 of the Voting Rights Act of 165, about one-third of all redistricting was done either directly by the federal courts or under courts' injunctive authority (citing cases)). Moreover, if the dangers of inadvertent political favoritism prove too great, a procedural solution, such as the use of a politically balanced boundary-drawing commission, may prove possible. The bottom line is that courts should be able to identify the presence of one important gerrymandering evil, the unjustified entrenching in power of a political party that the voters have rejected. They should be able to separate the unjustified abuse of partisan boundary-drawing considerations to achieve that end from their more ordinary and justified use. And they should be able to design a remedy for extreme cases. IV I do not claim that the problem of identification and separation is easily solved, even in extreme instances. But courts can identify a number of strong indicia of abuse. The presence of actual entrenchment, while not always unjustified (being perhaps a chance occurrence), is such a sign, particularly when accompanied by the use of partisan boundary-drawing criteria in the way that JUSTICE STEVENS describes, i. e., a use that both departs from traditional criteria and cannot be explained other than by efforts to achieve partisan advantage. Below, I set forth several sets of circumstances that lay out the indicia of abuse I have in mind. The scenarios fall along a continuum: The more permanently entrenched the minority's hold on power becomes, the less evidence courts will need that the minority engaged in gerrymandering to achieve the desired result. Consider, for example, the following sets of circumstances. First, suppose that the legislature has proceeded to redraw *366 boundaries in what seem to be ordinary ways, but the entrenchment harm has become obvious. E. g., (a) the legislature has not redrawn district boundaries more than once in the traditional 10-year period; and (b) no radical departure from traditional districting criteria is alleged; but (c) a majority party (as measured by the votes actually cast for all candidates who identify themselves as members of that party in the relevant set of elections; i. e., in congressional elections if a congressional map is being challenged) has twice failed to obtain a majority of the relevant legislative seats in elections; and (d) the failure cannot be explained by the existence of multiple parties or in other neutral ways. In my view, these circumstances would be sufficient to support a claim of unconstitutional entrenchment. Second, suppose that plaintiffs could point to more serious departures from redistricting norms. E. g., (a) the legislature has not redrawn district boundaries more than once in the traditional 10-year period; but (b) the boundary-drawing criteria depart radically from previous or traditional criteria; (c) the departure cannot be justified or explained other than by reference to an effort to obtain partisan political advantage; and (d) a majority party (as defined above) has once failed to obtain a majority of the relevant seats in election using the challenged map (which fact cannot be explained by the existence of multiple parties or in other neutral ways). These circumstances could also add up to unconstitutional gerrymandering. Third, suppose that the legislature clearly departs from ordinary districting norms, but the entrenchment harm, while seriously threatened, has not yet occurred. E. g., (a) the legislature has redrawn district boundaries more than once in the traditional 10-year census-related period— either, as here, at the behest of a court that struck down an initial plan as unlawful, see 15 F. Supp. 2d 672 (finding that Pennsylvania's first redistricting plan violated the one-person, *367 one-vote mandate), or of its own accord; (b) the boundary-drawing criteria depart radically from previous traditional boundary-drawing criteria; (c) strong, objective, unrefuted statistical evidence demonstrates that a party a minority of the popular vote in the State in all likelihood will obtain a majority of the seats in the relevant representative delegation; and (d) the jettisoning of traditional districting criteria cannot be justified or explained other than by reference to an effort to obtain partisan political advantage. To my mind, such circumstances could also support a claim, because the presence of midcycle redistricting, for any reason, raises a fair inference that partisan machinations played a major role in the map-drawing process. Where such an inference is accompanied by statistical evidence that entrenchment will be the likely result, a court may conclude that the map crosses the constitutional line we are describing. The presence of these, or similar, circumstances—where the risk of entrenchment is demonstrated, where partisan considerations render the traditional district-drawing compromises irrelevant, where no justification other than party advantage can be found—seem to me extreme enough to set off a constitutional alarm. The risk of harm to basic democratic principle is serious; identification is possible; and remedies can be found. V The plurality sets forth several criticisms of my approach. Some of those criticisms are overstated. Compare ante, at 300 ("[O]f course there always is a neutral explanation [of gerrymandering]—if only the time-honored criterion of incumbent protection"), Brief for Appellants 13 (pointing to examples of efforts to gerrymander an incumbent of the opposition party out of office and elect a new member of the controlling party); compare ante, at 300 (complaining of "the difficulties of assessing partisan strength statewide"), Other criticisms involve differing judgments. Compare ante, at 2 (complaining about the vagueness of unjustified political machination, "whatever that means," and of unjustified entrenchment), (detailed discussion of "justified" and ); compare ante, at 301 (finding costs of judicial intervention too high), But the plurality makes one criticism that warrants a more elaborate response. It observes "that the mere fact that these four dissenters come up three different standards—all of them different from the two proposed in and the one proposed here by appellants—goes a long way to establishing that there is no constitutionally discernible standard." Ante, at 22. Does it? The dissenting opinions recommend sets of standards that differ in certain respects. Members of a majority might well seek to reconcile such differences. But dissenters might instead believe that the more thorough, specific reasoning that accompanies separate statements will stimulate further discussion. And that discussion could lead to change in the law, where, as here, one member of the majority, disagreeing the plurality as to justiciability, remains in search of appropriate standards. See ante, at 311-312 (KENNEDY, J., concurring in judgment). VI In the case before us, there is a strong likelihood that the plaintiffs' complaint could be amended readily to assert circumstances consistent those I have set forth as appropriate for judicial intervention. For that reason, I would authorize the plaintiffs to proceed; and I dissent from the majority's contrary determination.

Justice Ginsburg

dissenting

Currier v. Virginia

2018-06-22

https://www.courtlistener.com/opinion/4510030/currier-v-virginia/

https://www.courtlistener.com/api/rest/v3/clusters/4510030/

2017-042

Michael Nelson Currier was charged in Virginia state court with (1) breaking and entering, (2) grand larceny, and (3) possessing a firearm after having been convicted of a felony. All three charges arose out of the same criminal episode. Under Virginia practice, unless the prosecutor and the defendant otherwise agree, a trial court must sever a charge of possession of a firearm by a convicted felon from other charges that do not require proof of a prior conviction. Virginia maintains this practice recog- nizing that evidence of a prior criminal conviction, other than on the offense for which the defendant is being tried, can be highly prejudicial in jury trials. After trial for breaking and entering and grand larceny, the jury acquitted Currier of both charges. The prosecutor then chose to proceed against Currier on the severed felon- in-possession charge. Currier objected to the second trial on double jeopardy grounds. He argued that the jury acquittals of breaking and entering and grand larceny established definitively and with finality that he had not participated in the alleged criminal episode. Invoking the issue-preclusion component of the double jeopardy ban, Currier urged that in a second trial, the Commonwealth could not introduce evidence of his alleged involvement in 2 CURRIER v. VIRGINIA GINSBURG, J., dissenting breaking and entering and grand larceny, charges on which he had been acquitted. He further maintained that without allowing the prosecution a second chance to prove breaking and entering and grand larceny, the evidence would be insufficient to warrant conviction of the felon-in- possession charge. I would hold that Currier’s acquiescence in severance of the felon-in-possession charge does not prevent him from raising a plea of issue preclusion based on the jury acquit- tals of breaking and entering and grand larceny. I This Court’s decisions “have recognized that the [Double Jeopardy] Clause embodies two vitally important inter- ests.” Yeager v. United States, 557 U.S. 110, 117 (2009). “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 contin- uing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ ” Id., at 117–118 (quoting Green v. United States, 355 U.S. 184, 187–188 (1957)). The second interest the Clause serves is preservation of the “finality of judg- ments,” 557 U. S., at 118 (internal quotation marks omit- ted), particularly acquittals, see id., at 122–123 (an ac- quittal’s “finality is unassailable”); Evans v. Michigan, 568 U.S. 313, 319 (2013) (“The law attaches particular significance to an acquittal.” (internal quotation marks omitted)). The Clause effectuates its overall guarantee through multiple protections. Historically, among those protec- tions, the Court has safeguarded the right not to be sub- ject to multiple trials for the “same offense.” See Brown v. Ohio, 432 U.S. 161, 165 (1977). That claim-preclusive Cite as: 585 U. S. ____ (2018) 3 GINSBURG, J., dissenting rule stops the government from litigating the “same of- fense” or criminal charge in successive prosecutions, re- gardless of whether the first trial ends in a conviction or an acquittal. See Bravo-Fernandez v. United States, 580 U.S. ___, ___ (2016) (slip op., at 3); Brown, 432 U. S., at 165. To determine whether two offenses are the “same,” this Court has held, a court must look to the offenses’ elements. Blockburger v. United States, 284 U.S. 299, 304 (1932). If each offense “requires proof of a fact which the other does not,” Blockburger established, the offenses are discrete and the prosecution of one does not bar later prosecution of the other. Ibid. If, however, two offenses are greater and lesser included offenses, the government cannot prosecute them successively. See Brown, 432 U. S., at 169. Also shielded by the Double Jeopardy Clause is the issue-preclusive effect of an acquittal. First articulated in Ashe v. Swenson, 397 U.S. 436 (1970), the issue- preclusive aspect of the Double Jeopardy Clause prohibits the government from relitigating issues necessarily re- solved in a defendant’s favor at an earlier trial presenting factually related offenses. Ashe involved the robbery of six poker players by a group of masked men. Id., at 437. Missouri tried Ashe first for the robbery of Donald Knight. Id., at 438. At trial, proof that Knight was the victim of a robbery was “unassailable”; the sole issue in dispute was whether Ashe was one of the robbers. Id., at 438, 445. A jury found Ashe not guilty. Id., at 439. Missouri then tried Ashe for robbing a different poker player at the same table. Ibid. The witnesses at the second trial “were for the most part the same,” although their testimony for the prosecution was “substantially stronger” than it was at the first trial. Id., at 439–440. The State also “refined its case” by declining to call a witness whose identification testimony at the first trial had been “conspicuously nega- tive.” Id., at 440. The second time around, the State 4 CURRIER v. VIRGINIA GINSBURG, J., dissenting secured a conviction. Ibid. Although the second prosecution involved a different victim and thus a different “offense,” this Court held that the second prosecution violated the Double Jeopardy Clause. A component of that Clause, the Court explained, rests on the principle that “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.” Id., at 443, 445. Conse- quently, “after a jury determined by its verdict that [Ashe] was not one of the robbers,” the State could not “constitu- tionally hale him before a new jury to litigate that issue again.” Id., at 446. In concluding that the Double Jeopardy Clause includes issue-preclusion protection for defendants, the Court acknowledged that no prior decision had “squarely held [issue preclusion] to be a constitutional requirement.” Id., at 445, n. 10. “Until perhaps a century ago,” the Court explained, “few situations arose calling for [issue preclu- sion’s] application.” Ibid. “[A]t common law” and “under early federal criminal statutes, offense categories were relatively few and distinct,” and “[a] single course of crim- inal conduct was likely to yield but a single offense.” Ibid. “[W]ith the advent of specificity in draftsmanship and the extraordinary proliferation of overlapping and related statutory offenses,” however, “it became possible for prose- cutors to spin out a startlingly numerous series of offenses from a single alleged criminal transaction.” Ibid. With this proliferation, “the potential for unfair and abusive reprosecutions became far more pronounced.” Ibid. Toward the end of the 19th century, courts increasingly concluded that greater protections than those traditionally afforded under the Double Jeopardy Clause were needed to spare defendants from prosecutorial excesses. Federal courts, cognizant of the increased potential for exposing defendants to multiple charges based on the same crimi- Cite as: 585 U. S. ____ (2018) 5 GINSBURG, J., dissenting nal episode, borrowed issue-preclusion principles from the civil context to bar relitigation of issues necessarily re- solved against the government in a criminal trial. Ibid.; cf. United States v. Oppenheimer, 242 U.S. 85, 87 (1916) (“It 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.”). By 1970, when Ashe was decided, issue preclusion, “[a]lthough first developed in civil litigation,” had become “an established rule of federal criminal law.” Ashe, 397 U. S., at 443. The question presented in Ashe was whether issue preclusion is not just an established rule of federal criminal proce- dure, but also a rule of constitutional stature. The Court had no “hesitat[ion]” in concluding that it is. Id., at 445. Since Ashe, this Court has reaffirmed that issue preclu- sion ranks with claim preclusion as a Double Jeopardy Clause component. Harris v. Washington, 404 U.S. 55, 56 (1971) (per curiam). Given criminal codes of prolix charac- ter, issue preclusion both arms defendants against prose- cutorial excesses, see Ashe, 397 U. S., at 445, n. 10, and preserves the integrity of acquittals, see Yeager, 557 U. S., at 118–119. See also id., at 119 (Double Jeopardy Clause shields defendants against “relitiga[tion] [of] any issue that was necessarily decided by a jury’s acquittal in a prior trial”). II On March 7, 2012, a large safe containing some $71,000 in cash and 20 firearms was stolen from Paul and Brenda Garrison’s home. When police recovered the safe, which had been dumped in a river, the firearms remained inside, but most of the cash was gone. After a neighbor reported seeing a white pickup truck leaving the Garrisons’ drive- way around the time of the theft, police identified the Garrisons’ nephew, Bradley Wood, as a suspect. Wood later implicated Currier as an accomplice. A grand jury 6 CURRIER v. VIRGINIA GINSBURG, J., dissenting indicted Currier for breaking and entering, grand larceny, and possessing a firearm after having been convicted of a felony. The felon aspect of the felon-in-possession charge was based on Currier’s prior convictions for burglary and larceny. Currier was “in possession” of the firearms, the prosecution contended, based on his brief handling of the guns contained in the safe (taking them out and putting them back) when the remaining cash was removed from inside. Virginia courts, like many others, recognize that trying a felon-in-possession charge together with offenses that do not permit the introduction of prior felony convictions can be hugely prejudicial to a defendant. See Hackney v. Commonwealth, 28 Va. App. 288, 293–294, 504 S.E.2d 385, 388 (1998) (en banc). Evidence of prior convictions, they have observed, can “confus[e] the issues before the jury” and “prejudice the defendant in the minds of the jury by showing his or her depravity and criminal propensity.” Id., at 293, 504 S.E. 2d, at 388. Virginia courts therefore hold that “unless the Commonwealth and defendant agree to joinder, a trial court must sever a charge of possession of a firearm by a convicted felon from other charges that do not require proof of a prior conviction.” Id., at 295, 504 S.E. 2d, at 389. In Currier’s case, the prosecution and Currier acceded to the Commonwealth’s default rule, and the trial court accordingly severed the felon-in-possession charge from the breaking and entering and grand larceny charges. The Commonwealth proceeded to try Currier first for breaking and entering and grand larceny. Witnesses for the prosecution testified to Currier’s involvement in the crimes. First, Wood testified that Currier helped him break into the Garrisons’ home and steal the safe. Second, the Garrisons’ neighbor testified that she believed Currier was the passenger in the pickup truck she had seen leav- ing the Garrisons’ residence. The prosecution also sought Cite as: 585 U. S. ____ (2018) 7 GINSBURG, J., dissenting to introduce evidence that a cigarette butt found in Wood’s pickup truck carried Currier’s DNA. But the court excluded that evidence because the prosecution failed to disclose it at least 21 days in advance of trial, as Virginia law required. The sole issue in dispute at the first trial, Currier main- tains, was whether he participated in the break-in and theft. See App. 35 (prosecutor’s closing statement, stating “What is in dispute? Really only one issue and one issue alone. Was the defendant, Michael Currier, one of those people that was involved in the offense?”). The case was submitted to the jury, which acquitted Currier of both offenses. Despite the jury’s acquittal verdicts, the prosecution proceeded against Currier on the felon-in-possession charge. In advance of his second trial, Currier moved to dismiss the gun-possession charge based on the issue- preclusion component of the Double Jeopardy Clause. He urged that the jury at his first trial rejected the govern- ment’s contention that he was involved in the break-in and theft. Cf. Ashe, 397 U. S., at 446 (common issue in first and second trials was whether Ashe was one of the robbers). If the government could not attempt to prove anew his participation in the break-in and theft, he rea- soned, there would be no basis for a conviction on the gun- possession charge. I.e., his involvement in handling the guns, on the government’s theory of the case, depended on his anterior involvement in breaking and entering the Garrisons’ residence and stealing their safe. The trial court refused to dismiss the prosecution or to bar the government from introducing evidence of Currier’s alleged involvement in the break-in and theft. At the second trial, the prosecution shored up its at- tempt to prove Currier’s participation in the break-in and theft. The witnesses refined their testimony. Remedying its earlier procedural lapse by timely notifying Currier, 8 CURRIER v. VIRGINIA GINSBURG, J., dissenting the prosecution introduced the cigarette butt evidence. And, of course, to show Currier was a felon, the prosecu- tion introduced his prior burglary and larceny convictions. The jury found Currier guilty of the felon-in-possession offense. III The Court holds that even if Currier could have asserted a double jeopardy issue-preclusion defense in opposition to the second trial, he relinquished that right by acquiescing in severance of the felon-in-possession charge. This hold- ing is not sustainable. A defendant’s consent to severance does not waive his right to rely on the issue-preclusive effect of an acquittal. A It bears clarification first that, contra to the Court’s presentation, issue preclusion requires no showing of prosecutorial overreaching. But cf. ante, at 7 (stating that “the Double Jeopardy Clause exists to prevent [prosecuto- rial oppression]”). This Court so ruled in Harris v. Wash- ington, 404 U.S. 55, and it has subsequently reinforced the point in Turner v. Arkansas, 407 U.S. 366 (1972) (per curiam), and Yeager v. United States, 557 U.S. 110. In Harris, the Washington Supreme Court declined to give an acquittal issue-preclusive effect because there was “no indication of bad faith of the state in deliberately making a ‘trial run’ in the first prosecution.” State v. Harris, 78 Wash. 2d 894, 901, 480 P.2d 484, 488 (1971). The State Supreme Court further observed that “it was to the advantage of the defendant, and not the state, to separate the trials” because certain evidence was inadmis- sible in the first trial that would be admissible in the second. Id., at 898, 480 P. 2d, at 486. This Court reversed and explained that an acquittal has issue-preclusive effect “irrespective of the good faith of the State in bringing Cite as: 585 U. S. ____ (2018) 9 GINSBURG, J., dissenting successive prosecutions.” Harris, 404 U. S., at 57. In Turner, Arkansas prosecutors believed the defendant had robbed and murdered someone. 407 U. S., at 366. An Arkansas statute required that murder be charged sepa- rately, with no other charges appended. Id., at 367. After a jury acquitted Turner on the murder charge, the State sought to try him for robbery. Id., at 366–367. Even though state law, not an overzealous prosecutor, dictated the sequential trials, this Court held that the defendant was entitled to assert issue preclusion and found the case “squarely controlled by Ashe.” Id., at 370. In Yeager, the defendant stood trial on numerous factu- ally related offenses. 557 U. S., at 113–114. After a jury acquitted on some counts but hung on others, the prosecu- tion sought to retry a number of the hung counts. Id., at 115. The defendant argued that issue preclusion should apply in the second trial. In opposition, the prosecution stressed that a retrial “presen[ted] none of the governmen- tal overreaching that double jeopardy is supposed to pre- vent.” Brief for United States in Yeager v. United States, O. T. 2008, No. 08–67, p. 26 (internal quotation marks omitted). Indeed, the prosecution had “attempted to bring all the charges in a single proceeding,” and it was seeking a second trial on some charges only “because the jury hung.” Ibid. The Court did not regard as controlling the lack of prosecutorial overreaching. Instead, it emphasized that “[a] jury’s verdict of acquittal represents the commu- nity’s collective judgment regarding all the evidence and arguments presented to it” and that, once rendered, an acquittal’s “finality is unassailable.” 557 U. S., at 122–123. B There is in Currier’s case no suggestion that he expressly waived a plea of issue preclusion at a second trial, or that he failed to timely assert the plea. Instead, the conten- 10 CURRIER v. VIRGINIA GINSBURG, J., dissenting tion, urged by the prosecution and embraced by this Court, is that Currier surrendered his right to assert the issue- preclusive effect of his first-trial acquittals by consenting to two trials. This Court “indulge[s] every reasonable presumption against waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal quotation marks omitted). It has found “waiver by con- duct” only where a defendant has engaged in “conduct inconsistent with the assertion of [the] right.” Pierce Oil Corp. v. Phoenix Refining Co., 259 U.S. 125, 129 (1922). For example, a defendant who “voluntarily absents him- self” from trial waives his Sixth Amendment right to be present. Taylor v. United States, 414 U.S. 17, 19 (1973) (per curiam) (internal quotation marks omitted). Similarly, a defendant who “obtains the absence of a witness by wrongdoing” may “forfeit” or “waive” his Sixth Amend- ment right to confront the absent witness. Davis v. Wash- ington, 547 U.S. 813, 833 (2006). Where, however, a defendant takes no action inconsistent with the assertion of a right, the defendant will not be found to have waived the right. Currier took no action inconsistent with assertion of an issue-preclusion plea. To understand why, one must comprehend just what issue preclusion forecloses. Unlike the right against a second trial for the same offense (claim preclusion), issue preclusion prevents relitigation of a previously rejected theory of criminal liability without necessarily barring a successive trial. Take Ashe, for example. Issue preclusion prevented the prosecution from arguing, at a second trial, that Ashe was one of the rob- bers who held up the poker players at gunpoint. But if the prosecution sought to prove, instead, that Ashe waited outside during the robbery and then drove the getaway car, issue preclusion would not have barred that trial. Similarly here, the prosecution could not again attempt to Cite as: 585 U. S. ____ (2018) 11 GINSBURG, J., dissenting prove that Currier participated in the break-in and theft of the safe at the Garrisons’ residence. But a second trial could be mounted if the prosecution alleged, for instance, that Currier was present at the river’s edge when others showed up to dump the safe in the river, and that Currier helped to empty out and replace the guns contained in the safe. In short, issue preclusion does not operate, as claim preclusion does, to bar a successive trial altogether. Issue preclusion bars only a subset of possible trials—those in which the prosecution rests its case on a theory of liability a jury earlier rejected. That being so, consenting to a second trial is not inconsistent with—and therefore does not foreclose—a defendant’s gaining the issue-preclusive effect of an acquittal. The Court cites Jeffers v. United States, 432 U.S. 137 (1977), United States v. Dinitz, 424 U.S. 600 (1976), and United States v. Scott, 437 U.S. 82 (1978), as support for a second trial, on the ground that Currier consented to it. Those decisions do not undermine the inviolacy of an acquittal. In Jeffers, the defendant was charged with two offenses, one of which was a lesser included offense of the other. 432 U. S., at 140–141, 150. He asked for, and gained, separate trials of the two charges. Id., at 142–143. After conviction on the lesser included charge, he argued that a second trial on the remaining charge would violate his double jeopardy right “against multiple prosecutions.” Id., at 139, 143–144. A plurality of this Court rejected Jeffers’ argument, reasoning that he had waived the relevant right because he was “solely responsible for the successive prosecutions.” Id., at 154. Jeffers presented a claim-preclusion question. The Court there said not one word about issue preclusion. Nor did the Court address the staying power of an acquittal. It had no occasion to do so, as Jeffers was convicted on the 12 CURRIER v. VIRGINIA GINSBURG, J., dissenting first charge. Indeed, some years later, three Justices, including the author of the Jeffers plurality, stated: “There is no doubt that had the defendant in Jeffers been acquit- ted at the first trial, the [issue-preclusion protection] embodied in the Double Jeopardy Clause would have barred a second trial on the greater offense.” Green v. Ohio, 455 U.S. 976, 980 (1982) (White, J., joined by Blackmun and Powell, JJ., dissenting from the denial of certiorari) (emphasis added). Dinitz and Scott are even weaker reeds. In Dinitz, the defendant requested, and gained, a mistrial after the trial judge expelled his lead counsel from the courtroom. 424 U. S., at 602–605. In Scott, the defendant sought and obtained dismissal of two of three counts prior to their submission to the jury. 437 U. S., at 84. The question in each case was whether the defendant’s actions deprived him of the right to be spared from a second trial on the same offenses. Both decisions simply concluded that when a defendant voluntarily seeks to terminate a trial before a substantive ruling on guilt or innocence, the Double Jeop- ardy Clause is not offended by a second trial. The cases, however, said nothing about the issue-preclusive effect of a prior acquittal at a subsequent trial. Cf. Burks v. United States, 437 U.S. 1, 17 (1978) (“It cannot be meaningfully said that a person ‘waives’ his right to a judgment of ac- quittal by moving for a new trial.”). As was the case in Jeffers, Dinitz and Scott presented no occasion to do so.1 —————— 1 Ohio v. Johnson, 467 U.S. 493 (1984), cited by JUSTICE KENNEDY, ante, at 2, is not in point. It, too, like Jeffers, Scott, and Dinitz, involved claim preclusion, not issue preclusion, i.e., trial of greater offenses after guilty pleas to lesser offenses. See supra, at 2–3. The case does contain an enigmatic footnote stating, “in a case such as this, where the State has made no effort to prosecute the charges seriatim, the considerations of double jeopardy protection implicit in the application of [issue preclusion] are inapplicable.” 467 U. S., at 500, n. 9. True in a case like Johnson, which involved no prior acquittals, I would not read more into a terse, unelaborated footnote that contains no citation. Cite as: 585 U. S. ____ (2018) 13 GINSBURG, J., dissenting IV Venturing beyond JUSTICE KENNEDY’s rationale for resolving this case, the plurality would take us back to the days before the Court recognized issue preclusion as a constitutionally grounded component of the Double Jeop- ardy Clause. See ante, at 14 (questioning whether issue preclusion “really . . . exist[s] in criminal law”). I would not engage in that endeavor to restore things past.2 One decision, however, should be set straight. The plurality asserts that Dowling v. United States, 493 U.S. 342 (1990), established that issue preclusion has no role to play in regulating the issues or evidence presented at a successive trial. Ante, at 12. Dowling did no such thing. The case is tied to Federal Rule of Evidence 404(b), which allows the prosecution to introduce evidence of a defend- ant’s past criminal conduct for described purposes other —————— Evans v. Michigan, 568 U.S. 313 (2013), cited by the Court, ante, at 7, and JUSTICE KENNEDY, ante, at 2, is even further afield. There, the trial court erroneously granted a judgment of acquittal. The State sought retrial in view of the error. This Court held that, despite the error, the acquittal was a final judgment, which could not be undone. 568 U. S., at 316. Whatever may be said of Evans, that decision is certainly no authority for watering down the issue-preclusive effect of a judgment acquitting the defendant. Garrett v. United States, 471 U.S. 773 (1985), cited by the plurality, ante, at 13, also involves claim preclusion, not issue preclusion. The Court held, unremarkably, that a crime transpiring in one day is not the “same offense” as a continuing criminal enterprise spanning more than five years. Id., at 788. 2 If issue preclusion does exist in criminal law, the plurality asserts, it has only “guarded application,” Bravo-Fernandez v. United States, 580 U.S. ___, ___ (2016) (slip op., at 4). See ante, at 9. I do not gainsay that assertion. Bravo-Fernandez itself, however, involved the special problem of inconsistent verdicts rendered by the same jury. It held only that an acquittal cannot convey rejection of the prosecutor’s allegations when the jury simultaneously convicts the defendant of an offense turning on acceptance of the same allegations. 580 U. S., at ___ (slip op., at 2). 14 CURRIER v. VIRGINIA GINSBURG, J., dissenting than to show a defendant’s bad character. See Fed. Rule Evid. 404(b)(2). The defendant in Dowling was prosecuted for robbing a bank. 493 U. S., at 344. To bolster its case that Dowling was the perpetrator, the Government sought to introduce evidence that Dowling participated in a home invasion two weeks after the bank robbery. Id., at 344– 345. One difficulty for the prosecution: Dowling had been acquitted of the home invasion. Id., at 345. Nevertheless, the trial court admitted the evidence, informing the jurors that Dowling had been acquitted of the home-invasion charge and instructing them on the “limited purpose” for which the evidence was introduced. Id., at 345–346. The Court in Dowling “decline[d] to extend Ashe” to forbid the prosecution from introducing evidence, under Rule 404(b), of a crime for which the defendant had been acquitted, one involving criminal conduct unrelated to the bank robbery for which Dowling stood trial. Id., at 348. The charge for which Dowling was acquitted took place at a different time and involved different property, a differ- ent location, and different victims. Id., at 344. See also United States v. Felix, 503 U.S. 378, 386 (1992) (stressing that the two crimes in Dowling were “unrelated”). It surely could not be said that, in the bank robbery trial, Dowling was being tried a second time for the later- occurring home invasion offense. Here, by contrast, the two trials involved the same criminal episode. See Ashe, 397 U. S., at 446 (“same robbery”); Turner, 407 U. S., at 368–369 (“the same set of facts, circumstances, and the same occasion” (internal quotation marks omitted)). Extending Dowling from the Evidence Rule 404(b) context in which it was embedded to retrials involving the same course of previously acquitted conduct would un- dermine issue-preclusion’s core tenet. That tenet was well stated by Judge Friendly in United States v. Kramer, 289 F.2d 909 (CA2 1961): Cite as: 585 U. S. ____ (2018) 15 GINSBURG, J., dissenting “A defendant who has satisfied one jury that he had no responsibility for a crime ought not be forced to convince another of this [lack of responsibility]. . . . The very nub of [issue preclusion] is to extend res ju- dicata beyond those cases where the prior judgment is a complete bar. The Government is free, within limits set by the Fifth Amendment, to charge an acquitted defendant with other crimes claimed to arise from the same or related conduct; but it may not prove the new charge by asserting facts necessarily determined against it on the first trial . . . .” Id., at 915–916 (cita- tion omitted). So here. The first trial established that Currier did not participate in breaking and entering the Garrisons’ resi- dence or in stealing their safe. The government can at- tempt to prove Currier possessed firearms through a means other than breaking and entering the Garrisons’ residence and stealing their safe. But the government should not be permitted to show in the felon-in-possession trial what it failed to show in the first trial, i.e., Currier’s participation in the charged breaking and entering and grand larceny, after a full and fair opportunity to do so. * * * For the reasons stated, I would reverse the judgment of the Virginia Supreme Court

Michael Nelson Currier was charged in Virginia state court with (1) breaking and entering, (2) grand larceny, and (3) possessing a firearm after having been convicted of a felony. All three charges arose out of the same criminal episode. Under Virginia practice, unless the prosecutor and the defendant otherwise agree, a trial court must sever a charge of possession of a firearm by a convicted felon from other charges that do not require proof of a prior conviction. Virginia maintains this practice recog- nizing that evidence of a prior criminal conviction, other than on the offense for which the defendant is being tried, can be highly prejudicial in jury trials. After trial for breaking and entering and grand larceny, the jury acquitted Currier of both charges. The prosecutor then chose to proceed against Currier on the severed felon- in-possession charge. Currier objected to the second trial on double jeopardy grounds. He argued that the jury acquittals of breaking and entering and grand larceny established definitively and with finality that he had not participated in the alleged criminal episode. Invoking the issue-preclusion component of the double jeopardy ban, Currier urged that in a second trial, the Commonwealth could not introduce evidence of his alleged involvement in 2 CURRIER v. VIRGINIA GINSBURG, J., dissenting breaking and entering and grand larceny, charges on which he had been acquitted. He further maintained that without allowing the prosecution a second chance to prove breaking and entering and grand larceny, the evidence would be insufficient to warrant conviction of the felon-in- possession charge. I would hold that Currier’s acquiescence in severance of the felon-in-possession charge does not prevent him from raising a plea of issue preclusion based on the jury acquit- tals of breaking and entering and grand larceny. I This Court’s decisions “have recognized that the [Double Jeopardy] Clause embodies two vitally important inter- ests.” “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 contin- uing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ ” at –118 ). The second interest the Clause serves is preservation of the “finality of judg- ments,” (internal quotation marks omit- ted), particularly acquittals, see at 122–123 (an ac- quittal’s “finality is unassailable”); (“The law attaches particular significance to an acquittal.” (internal quotation marks omitted)). The Clause effectuates its overall guarantee through multiple protections. Historically, among those protec- tions, the Court has safeguarded the right not to be sub- ject to multiple trials for the “same offense.” See Brown v. Ohio, That claim-preclusive Cite as: 585 U. S. (2018) 3 GINSBURG, J., dissenting rule stops the government from litigating the “same of- fense” or criminal charge in successive prosecutions, re- gardless of whether the first trial ends in a conviction or an acquittal. See Bravo-Fernandez v. United States, 580 U.S. (2016) (slip op., at 3); Brown, 432 U. S., at To determine whether two offenses are the “same,” this Court has held, a court must look to the offenses’ elements. (32). If each offense “requires proof of a fact which the other does not,” Blockburger established, the offenses are discrete and the prosecution of one does not bar later prosecution of the other. If, however, two offenses are greater and lesser included offenses, the government cannot prosecute them successively. See Brown, 432 U. S., at 169. Also shielded by the Double Jeopardy Clause is the issue-preclusive effect of an acquittal. First articulated in the issue- preclusive aspect of the Double Jeopardy Clause prohibits the government from relitigating issues necessarily re- solved in a defendant’s favor at an earlier trial presenting factually related involved the robbery of six poker players by a group of masked men. Missouri tried first for the robbery of Donald Knight. At trial, proof that Knight was the victim of a robbery was “unassailable”; the sole issue in dispute was whether was one of the robbers. 445. A jury found not guilty. Missouri then tried for robbing a different poker player at the same table. The witnesses at the second trial “were for the most part the same,” although their testimony for the prosecution was “substantially stronger” than it was at the first trial. –440. The State also “refined its case” by declining to call a witness whose identification testimony at the first trial had been “conspicuously nega- tive.” The second time around, the State 4 CURRIER v. VIRGINIA GINSBURG, J., dissenting secured a conviction. Although the second prosecution involved a different victim and thus a different “offense,” this Court held that the second prosecution violated the Double Jeopardy Clause. A component of that Clause, the Court explained, rests on the principle that “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.” Conse- quently, “after a jury determined by its verdict that [] was not one of the robbers,” the State could not “constitu- tionally hale him before a new jury to litigate that issue again.” In concluding that the Double Jeopardy Clause includes issue-preclusion protection for defendants, the Court acknowledged that no prior decision had “squarely held [issue preclusion] to be a constitutional requirement.” n. 10. “Until perhaps a century ago,” the Court explained, “few situations arose calling for [issue preclu- sion’s] application.” “[A]t common law” and “under early federal criminal statutes, offense categories were relatively few and distinct,” and “[a] single course of crim- inal conduct was likely to yield but a single offense.” “[W]ith the advent of specificity in draftsmanship and the extraordinary proliferation of overlapping and related statutory offenses,” however, “it became possible for prose- cutors to spin out a startlingly numerous series of offenses from a single alleged criminal transaction.” With this proliferation, “the potential for unfair and abusive reprosecutions became far more pronounced.” Toward the end of the th century, courts increasingly concluded that greater protections than those traditionally afforded under the Double Jeopardy Clause were needed to spare defendants from prosecutorial excesses. Federal courts, cognizant of the increased potential for exposing defendants to multiple charges based on the same crimi- Cite as: 585 U. S. (2018) 5 GINSBURG, J., dissenting nal episode, borrowed issue-preclusion principles from the civil context to bar relitigation of issues necessarily re- solved against the government in a criminal trial. ; cf. United (“It 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.”). By 70, when was decided, issue preclusion, “[a]lthough first developed in civil litigation,” had become “an established rule of federal criminal law.” The question presented in was whether issue preclusion is not just an established rule of federal criminal proce- dure, but also a rule of constitutional stature. The Court had no “hesitat[ion]” in concluding that it is. Since this Court has reaffirmed that issue preclu- sion ranks with claim preclusion as a Double Jeopardy Clause component. (per curiam). Given criminal codes of prolix charac- ter, issue preclusion both arms defendants against prose- cutorial excesses, see 397 U. S., n. 10, and preserves the integrity of acquittals, see Yeager, 557 U. S., at 118–1. See also (Double Jeopardy Clause shields defendants against “relitiga[tion] [of] any issue that was necessarily decided by a jury’s acquittal in a prior trial”). II On March 7, 2012, a large safe containing some $71,000 in cash and 20 firearms was stolen from Paul and Brenda Garrison’s home. When police recovered the safe, which had been dumped in a river, the firearms remained inside, but most of the cash was gone. After a neighbor reported seeing a white pickup truck leaving the Garrisons’ drive- way around the time of the theft, police identified the Garrisons’ nephew, Bradley Wood, as a suspect. Wood later implicated Currier as an accomplice. A grand jury 6 CURRIER v. VIRGINIA GINSBURG, J., dissenting indicted Currier for breaking and entering, grand larceny, and possessing a firearm after having been convicted of a felony. The felon aspect of the felon-in-possession charge was based on Currier’s prior convictions for burglary and larceny. Currier was “in possession” of the firearms, the prosecution contended, based on his brief handling of the guns contained in the safe (taking them out and putting them back) when the remaining cash was removed from inside. Virginia courts, like many others, recognize that trying a felon-in-possession charge together with offenses that do not permit the introduction of prior felony convictions can be hugely prejudicial to a defendant. See Hackney v. Commonwealth, 293–294, 504 S.E.2d 385, 388 (98) (en banc). Evidence of prior convictions, they have observed, can “confus[e] the issues before the jury” and “prejudice the defendant in the minds of the jury by showing his or her depravity and criminal propensity.” 504 S.E. 2d, at 388. Virginia courts therefore hold that “unless the Commonwealth and defendant agree to joinder, a trial court must sever a charge of possession of a firearm by a convicted felon from other charges that do not require proof of a prior conviction.” S.E. 2d, at 389. In Currier’s case, the prosecution and Currier acceded to the Commonwealth’s default rule, and the trial court accordingly severed the felon-in-possession charge from the breaking and entering and grand larceny charges. The Commonwealth proceeded to try Currier first for breaking and entering and grand larceny. Witnesses for the prosecution testified to Currier’s involvement in the crimes. First, Wood testified that Currier helped him break into the Garrisons’ home and steal the safe. Second, the Garrisons’ neighbor testified that she believed Currier was the passenger in the pickup truck she had seen leav- ing the Garrisons’ residence. The prosecution also sought Cite as: 585 U. S. (2018) 7 GINSBURG, J., dissenting to introduce evidence that a cigarette butt found in Wood’s pickup truck carried Currier’s DNA. But the court excluded that evidence because the prosecution failed to disclose it at least 21 days in advance of trial, as Virginia law required. The sole issue in dispute at the first trial, Currier main- tains, was whether he participated in the break-in and theft. See App. 35 (prosecutor’s closing statement, stating “What is in dispute? Really only one issue and one issue alone. Was the defendant, Michael Currier, one of those people that was involved in the offense?”). The case was submitted to the jury, which acquitted Currier of both Despite the jury’s acquittal verdicts, the prosecution proceeded against Currier on the felon-in-possession charge. In advance of his second trial, Currier moved to dismiss the gun-possession charge based on the issue- preclusion component of the Double Jeopardy Clause. He urged that the jury at his first trial rejected the govern- ment’s contention that he was involved in the break-in and theft. Cf. 397 U. S., (common issue in first and second trials was whether was one of the robbers). If the government could not attempt to prove anew his participation in the break-in and theft, he rea- soned, there would be no basis for a conviction on the gun- possession charge. I.e., his involvement in handling the guns, on the government’s theory of the case, depended on his anterior involvement in breaking and entering the Garrisons’ residence and stealing their safe. The trial court refused to dismiss the prosecution or to bar the government from introducing evidence of Currier’s alleged involvement in the break-in and theft. At the second trial, the prosecution shored up its at- tempt to prove Currier’s participation in the break-in and theft. The witnesses refined their testimony. Remedying its earlier procedural lapse by timely notifying Currier, 8 CURRIER v. VIRGINIA GINSBURG, J., dissenting the prosecution introduced the cigarette butt evidence. And, of course, to show Currier was a felon, the prosecu- tion introduced his prior burglary and larceny convictions. The jury found Currier guilty of the felon-in-possession offense. III The Court holds that even if Currier could have asserted a double jeopardy issue-preclusion defense in opposition to the second trial, he relinquished that right by acquiescing in severance of the felon-in-possession charge. This hold- ing is not sustainable. A defendant’s consent to severance does not waive his right to rely on the issue-preclusive effect of an acquittal. A It bears clarification first that, contra to the Court’s presentation, issue preclusion requires no showing of prosecutorial overreaching. But cf. ante, at 7 (stating that “the Double Jeopardy Clause exists to prevent [prosecuto- rial oppression]”). This Court so ruled in and it has subsequently reinforced the point in (per curiam), and In the Washington Supreme Court declined to give an acquittal issue-preclusive effect because there was “no indication of bad faith of the state in deliberately making a ‘trial run’ in the first prosecution.” State v. The State Supreme Court further observed that “it was to the advantage of the defendant, and not the state, to separate the trials” because certain evidence was inadmis- sible in the first trial that would be admissible in the second. 480 P. 2d, at 486. This Court reversed and explained that an acquittal has issue-preclusive effect “irrespective of the good faith of the State in bringing Cite as: 585 U. S. (2018) 9 GINSBURG, J., dissenting successive prosecutions.” In Turner, Arkansas prosecutors believed the defendant had robbed and murdered An Arkansas statute required that murder be charged sepa- rately, with no other charges appended. After a jury acquitted Turner on the murder charge, the State sought to try him for robbery. at 366–367. Even though state law, not an overzealous prosecutor, dictated the sequential trials, this Court held that the defendant was entitled to assert issue preclusion and found the case “squarely controlled by” In Yeager, the defendant stood trial on numerous factu- ally related –114. After a jury acquitted on some counts but hung on others, the prosecu- tion sought to retry a number of the hung counts. at 115. The defendant argued that issue preclusion should apply in the second trial. In opposition, the prosecution stressed that a retrial “presen[ted] none of the governmen- tal overreaching that double jeopardy is supposed to pre- vent.” Brief for United States in O. T. 2008, No. 08–67, p. 26 (internal quotation marks omitted). Indeed, the prosecution had “attempted to bring all the charges in a single proceeding,” and it was seeking a second trial on some charges only “because the jury hung.” The Court did not regard as controlling the lack of prosecutorial overreaching. Instead, it emphasized that “[a] jury’s verdict of acquittal represents the commu- nity’s collective judgment regarding all the evidence and arguments presented to it” and that, once rendered, an acquittal’s “finality is unassailable.” 557 U. S., at 122–123. B There is in Currier’s case no suggestion that he expressly waived a plea of issue preclusion at a second trial, or that he failed to timely assert the plea. Instead, the conten- 10 CURRIER v. VIRGINIA GINSBURG, J., dissenting tion, urged by the prosecution and embraced by this Court, is that Currier surrendered his right to assert the issue- preclusive effect of his first-trial acquittals by consenting to two trials. This Court “indulge[s] every reasonable presumption against waiver of fundamental constitutional rights.” U.S. 458, (internal quotation marks omitted). It has found “waiver by con- duct” only where a defendant has engaged in “conduct inconsistent with the assertion of [the] right.” Pierce Oil For example, a defendant who “voluntarily absents him- self” from trial waives his Sixth Amendment right to be present. (per curiam) (internal quotation marks omitted). Similarly, a defendant who “obtains the absence of a witness by wrongdoing” may “forfeit” or “waive” his Sixth Amend- ment right to confront the absent witness. Where, however, a defendant takes no action inconsistent with the assertion of a right, the defendant will not be found to have waived the right. Currier took no action inconsistent with assertion of an issue-preclusion plea. To understand why, one must comprehend just what issue preclusion forecloses. Unlike the right against a second trial for the same offense (claim preclusion), issue preclusion prevents relitigation of a previously rejected theory of criminal liability without necessarily barring a successive trial. Take for example. Issue preclusion prevented the prosecution from arguing, at a second trial, that was one of the rob- bers who held up the poker players at gunpoint. But if the prosecution sought to prove, instead, that waited outside during the robbery and then drove the getaway car, issue preclusion would not have barred that trial. Similarly here, the prosecution could not again attempt to Cite as: 585 U. S. (2018) 11 GINSBURG, J., dissenting prove that Currier participated in the break-in and theft of the safe at the Garrisons’ residence. But a second trial could be mounted if the prosecution alleged, for instance, that Currier was present at the river’s edge when others showed up to dump the safe in the river, and that Currier helped to empty out and replace the guns contained in the safe. In short, issue preclusion does not operate, as claim preclusion does, to bar a successive trial altogether. Issue preclusion bars only a subset of possible trials—those in which the prosecution rests its case on a theory of liability a jury earlier rejected. That being so, consenting to a second trial is not inconsistent with—and therefore does not foreclose—a defendant’s gaining the issue-preclusive effect of an acquittal. The Court cites United (76), and United (78), as support for a second trial, on the ground that Currier consented to it. Those decisions do not undermine the inviolacy of an acquittal. In Jeffers, the defendant was charged with two offenses, one of which was a lesser included offense of the other. –141, 150. He asked for, and gained, separate trials of the two charges. at 142–143. After conviction on the lesser included charge, he argued that a second trial on the remaining charge would violate his double jeopardy right “against multiple prosecutions.” at 139, 143–144. A plurality of this Court rejected Jeffers’ argument, reasoning that he had waived the relevant right because he was “solely responsible for the successive prosecutions.” Jeffers presented a claim-preclusion question. The Court there said not one word about issue preclusion. Nor did the Court address the staying power of an acquittal. It had no occasion to do so, as Jeffers was convicted on the 12 CURRIER v. VIRGINIA GINSBURG, J., dissenting first charge. Indeed, some years later, three Justices, including the author of the Jeffers plurality, stated: “There is no doubt that had the defendant in Jeffers been acquit- ted at the first trial, the [issue-preclusion protection] embodied in the Double Jeopardy Clause would have barred a second trial on the greater offense.” Green v. Ohio, (82) (White, J., joined by Blackmun and Powell, JJ., dissenting from the denial of certiorari) (emphasis added). Dinitz and Scott are even weaker reeds. In Dinitz, the defendant requested, and gained, a mistrial after the trial judge expelled his lead counsel from the courtroom. 424 U. S., at 602–605. In Scott, the defendant sought and obtained dismissal of two of three counts prior to their submission to the The question in each case was whether the defendant’s actions deprived him of the right to be spared from a second trial on the same Both decisions simply concluded that when a defendant voluntarily seeks to terminate a trial before a substantive ruling on guilt or innocence, the Double Jeop- ardy Clause is not offended by a second trial. The cases, however, said nothing about the issue-preclusive effect of a prior acquittal at a subsequent trial. Cf. (78) (“It cannot be meaningfully said that a person ‘waives’ his right to a judgment of ac- quittal by moving for a new trial.”). As was the case in Jeffers, Dinitz and Scott presented no occasion to do so.1 —————— 1 (84), cited by JUSTICE KENNEDY, ante, at 2, is not in point. It, too, like Jeffers, Scott, and Dinitz, involved claim preclusion, not issue preclusion, i.e., trial of greater offenses after guilty pleas to lesser See at 2–3. The case does contain an enigmatic footnote stating, “in a case such as this, where the State has made no effort to prosecute the charges seriatim, the considerations of double jeopardy protection implicit in the application of [issue preclusion] are inapplicable.” n. 9. True in a case like Johnson, which involved no prior acquittals, I would not read more into a terse, unelaborated footnote that contains no citation. Cite as: 585 U. S. (2018) 13 GINSBURG, J., dissenting IV Venturing beyond JUSTICE KENNEDY’s rationale for resolving this case, the plurality would take us back to the days before the Court recognized issue preclusion as a constitutionally grounded component of the Double Jeop- ardy Clause. See ante, at 14 (questioning whether issue preclusion “really exist[s] in criminal law”). I would not engage in that endeavor to restore things past.2 One decision, however, should be set straight. The plurality asserts that Dowling v. United States, 493 U.S. 342 (90), established that issue preclusion has no role to play in regulating the issues or evidence presented at a successive trial. Ante, at 12. Dowling did no such thing. The case is tied to Federal Rule of Evidence 404(b), which allows the prosecution to introduce evidence of a defend- ant’s past criminal conduct for described purposes other —————— cited by the Court, ante, at 7, and JUSTICE KENNEDY, ante, at 2, is even further afield. There, the trial court erroneously granted a judgment of acquittal. The State sought retrial in view of the error. This Court held that, despite the error, the acquittal was a final judgment, which could not be undone. 8 U. S., at 316. Whatever may be said of Evans, that decision is certainly no authority for watering down the issue-preclusive effect of a judgment acquitting the defendant. (85), cited by the plurality, ante, at 13, also involves claim preclusion, not issue preclusion. The Court held, unremarkably, that a crime transpiring in one day is not the “same offense” as a continuing criminal enterprise spanning more than five years. 2 If issue preclusion does exist in criminal law, the plurality asserts, it has only “guarded application,” Bravo-Fernandez v. United States, 580 U.S. (2016) (slip op., at 4). See ante, at 9. I do not gainsay that assertion. Bravo-Fernandez itself, however, involved the special problem of inconsistent verdicts rendered by the same It held only that an acquittal cannot convey rejection of the prosecutor’s allegations when the jury simultaneously convicts the defendant of an offense turning on acceptance of the same allegations. 580 U. S., at (slip op., at 2). 14 CURRIER v. VIRGINIA GINSBURG, J., dissenting than to show a defendant’s bad character. See Fed. Rule Evid. 404(b)(2). The defendant in Dowling was prosecuted for robbing a To bolster its case that Dowling was the perpetrator, the Government sought to introduce evidence that Dowling participated in a home invasion two weeks after the bank robbery. – 345. One difficulty for the prosecution: Dowling had been acquitted of the home invasion. Nevertheless, the trial court admitted the evidence, informing the jurors that Dowling had been acquitted of the home-invasion charge and instructing them on the “limited purpose” for which the evidence was introduced. –346. The Court in Dowling “decline[d] to extend ” to forbid the prosecution from introducing evidence, under Rule 404(b), of a crime for which the defendant had been acquitted, one involving criminal conduct unrelated to the bank robbery for which Dowling stood trial. The charge for which Dowling was acquitted took place at a different time and involved different property, a differ- ent location, and different victims. See also United (92) (stressing that the two crimes in Dowling were “unrelated”). It surely could not be said that, in the bank robbery trial, Dowling was being tried a second time for the later- occurring home invasion offense. Here, by contrast, the two trials involved the same criminal episode. See 397 U. S., ; Turner, 407 U. S., at 368–369 (“the same set of facts, circumstances, and the same occasion” (internal quotation marks omitted)). Extending Dowling from the Evidence Rule 404(b) context in which it was embedded to retrials involving the same course of previously acquitted conduct would un- dermine issue-preclusion’s core tenet. That tenet was well stated by Judge Friendly in United States v. Kramer, 289 F.2d 909 (CA2 61): Cite as: 585 U. S. (2018) 15 GINSBURG, J., dissenting “A defendant who has satisfied one jury that he had no responsibility for a crime ought not be forced to convince another of this [lack of responsibility]. The very nub of [issue preclusion] is to extend res ju- dicata beyond those cases where the prior judgment is a complete bar. The Government is free, within limits set by the Fifth Amendment, to charge an acquitted defendant with other crimes claimed to arise from the same or related conduct; but it may not prove the new charge by asserting facts necessarily determined against it on the first trial” at 915–916 (cita- tion omitted). So here. The first trial established that Currier did not participate in breaking and entering the Garrisons’ resi- dence or in stealing their safe. The government can at- tempt to prove Currier possessed firearms through a means other than breaking and entering the Garrisons’ residence and stealing their safe. But the government should not be permitted to show in the felon-in-possession trial what it failed to show in the first trial, i.e., Currier’s participation in the charged breaking and entering and grand larceny, after a full and fair opportunity to do so. * * * For the reasons stated, I would reverse the judgment of the Virginia Supreme Court